FERMIN A. BAGADIONG, PETITIONER, VS. HON. FELICIANO S. GONZALES, JUDGE OF THE COURT OF FIRST INSTANCE OF CATANDUANES, CLEMENTE ABUNDO, RAFAEL VILLALUNA AND FRANCISCO A. PERFECTO…

This is a special civil action for certiorari instituted
on April 27, 1966 by the petitioner to annul the order^[1]
dated April 18, 1966 of respondent Judge of the Court of First Instance of Catanduanes in
Civil Case No. 546, entitled “Clemente Abundo and Rafael Villaluna,
plaintiffs, versus Jorge V. Almojuela, Dominador Monjardin, Fermin A. Bagadiong and Armando
Ala, defendants, Francisco A. Perfecto, intervenor.”
Alleged as ground for the petition is that the order was issued with grave
abuse of discretion, amounting to lack of jurisdiction.

The facts are as follows:

On January 12, 1966, the herein plaintiffs-respondents filed the
aforementioned Civil Case No. 546 for prohibition with preliminary prohibitory
and mandatory injunction with the Court of First Instance of Catanduanes against defendants Jorge V. Almojuela,
Dominador Monjardin, Fermin A. Bagadiong (the herein
petitioner) and Armando Ala who are the Governor, Vice Governor, Provincial
Treasurer and Provincial Auditor of the Province of Catanduanes,
respectively.  In the said petition, it
is alleged that defendants, including the herein petitioner, are authorizing,
approving and effecting the disbursements of public funds of the province for
purposes stated in the alleged annual Provincial Budget of the Province for the
Fiscal Year 1965-1966 purporting on its face to have been approved by the
Provincial Board on August 23, 1965 under Resolution No. 62-A; that the
aforesaid budget is a falsified document because the Provincial Board never
approved the same, the alleged Provincial Board Resolution No. 62-A which is
claimed to have approved the said Budget does not exist; that upon discovery of
the anomaly, plaintiffs Clemente Abundo
and Rafael Villaluna made representations with the
Secretary of Finance on November 17, 1965, to have the alleged Board Resolution
No. 62-A approving the budget, considered null and void because the said
plaintiffs never took part in the deliberation approving the said Resolution;
that for the defendants to continue making disbursements of public funds under
the falsified budget, the people and
the government of the Province of Catanduanes
will suffer irreparable damage and injury from which there is no other plain,
speedy and adequate remedy in the ordinary course of law except the instant
petition.  Plaintiffs pray that pending
resolution of the petition on the merits, a preliminary injunction be issued
restraining the defendants from authorizing, approving and effecting the
disbursements of public funds on the basis of the said budget.^[2]

On January 14, 1966,
a writ of preliminary injunction was issued by the respondent Judge against the
defendants commanding them to desist from authorizing and making any further
disbursements of funds from the budget
in question.  On January 17, 1966, the defendants filed a motion
for reconsideration and to dissolve the writ of preliminary injunction.^[3]
A complaint in intervention^[4]
was filed on January 21, 1966 by herein respondent Francisco A. Perfecto
praying, among others, that the
annual budget of the Province of Catanduanes for the
fiscal year 1965-1966 be declared null and void ab
initio, the same being falsification that
all original parties to the case be ordered to refund the province all moneys
purportedly appropriated under the falsified budget and disbursed and collected
by them, respectively; and that all the said original parties be condemned,
jointly and severally, to pay the Province of Catanduanes
an amount equal to all disbursements under the falsified budget, by way of
exemplary damages.

On January 31, 1966,
the respondent judge denied the motion to vacate and lift the writ of
preliminary injunction in an order^[5]
dated January 31, 1966.

When the Civil Case No. 546 was called for trial on April 18, 1966,
counsel for plaintiffs called one of the defendants, the herein petitioner, Fermin A. Bagadiong, to the
witness stand as one of the witnesses for the plaintiffs.  Counsel for the defendants raised the
objection that the said party cannot be called as a witness for the plaintiffs
because it would violate his constitutional right against
self-incrimination.  On the other hand,
counsel for the plaintiffs contended that this being purely a civil action, the
right against self-incrimination is not involved, and if any testimony elicited
from the herein petitioner would tend to incriminate himself, there would be
ample time for the herein petitioner to raise the proper objection.

The respondent Judge in his order^[6]
held that the position taken by the counsel for the plaintiffs is legally
correct, thereby, ruling that the petitioner may testify as a witness for the
plaintiffs.

After a verbal motion to reconsider the aforesaid order was
denied by the respondent Judge, the herein petitioner filed with this Court the
instant petition, claiming as earlier stated, that the respondent Judge acted
in excess of his jurisdiction and/or with grave abuse of discretion in allowing
the herein petitioner to testify for the respondents in Civil Case No. 546, and
that there is no appeal, nor any plain, speedy and adequate remedy in the
ordinary course of law.

After the respondents have filed their answer to the instant
petition, as required by this Court, both parties submitted their respective
memoranda in lieu of oral argument, after which the case was considered
submitted for decision.

The principal issue raised in the instant case is whether or not
respondent Judge acted in excess of his jurisdiction and with grave abuse of
discretion in allowing the herein petitioner to testify as a witness for the
herein respondents, despite his claim of violating his right against
self-incrimination.

The petitioner contends that the provision of the Rules of Court
which authorizes a party to call the adverse party to the witness stand applies
only to purely civil actions where the defendant does not run the risk of being
prosecuted for any offense.  Likewise,
the petitioner asserts that the right against self-incrimination can only be
claimed when the incriminatory question is being propounded and not before, by
a mere witness, but not by a party defendant, as in the case at bar.  We find no merit to these contentions.

There is no legal impediment for a party to call any of the
adverse parties to be his witness, as clearly provided in Section 6, Rule 132
of the Rules of Court which expressly provides:

“A party may interrogate any unwilling or hostile witness by
leading questions.  A party may call on
adverse party or an officer, director, or managing agent of a public or private
corporation or of a partnership or association which is an adverse party, and
interrogate him by leading questions and contradict and impeach him in all
respects as if he had been called by the adverse party, and the witness thus
called may be contradicted and impeached by or on behalf of the adverse party
also, and may be cross-examined by the adverse party only upon the
subject-matter of his examination in chief.”

It is in a criminal case, when the accused may not be compelled
to testify, or to so much as utter a word, even for his own defense.^[7] But while the constitutional guaranty
against self-incrimination protects a person in all types of cases, be they
criminal, civil or administrative,^[8] said privilege, in proceedings other than a
criminal case against him who invokes it, is considered an option to refuse to
answer incriminating question, and not a prohibition of inquiry.

As aptly stated by this
Court in the case of Gonzales vs. Secretary of Labor, et al:^[9]

“Except in criminal cases, there is no rule prohibiting a party
litigant from utilizing his adversary as a witness.  As a matter of fact, Section 83 of Rule 123,
Rules of Court, expressly authorizes a party to call an adverse party to the
witness stand and interrogate him.  This
rule is, of course, subject to the constitutional injunction not to compel any
person to testify against himself.  But
it is established that the privilege against self-incrimination must be invoked
at the proper time, and the proper time to invoke it is when a question calling
for a criminating answer is propounded. 
This has to be so, because before a question is asked there would be no
way of telling whether the information to be elicited from the witness is
self-incriminating or not.  As stated in
Jones on Evidence (Vol. 6, pp. 4926-4927), a person who has been summoned to
testify ‘cannot decline to appear, nor can he decline to be sworn as a witness’
and ‘no claim of privilege can be made until a question calling for a
criminating answer is asked; at that time, and generally speaking, at that time
only, the claim of privilege may properly be imposed.'” (Underscoring
supplied).

In the instant case,
petitioner invoked the privilege even prior to any question being propounded,
and simply declined to take the witness stand. 
In the above-cited Gonzales case, it will be noted that the privilege
against self-incrimination must be invoked when a question calling for an
incriminating answer is propounded, because before a question is asked, there
would be no way of telling whether the information to be elicited from the
witness is self-incriminating or not. 
Moreover, the herein petitioner was being directed to take the stand,
not in a criminal case where he is an accused but in civil action.  This is expressly permitted by Section 6,
Rule 132 of the Rules of Court which authorizes a party to call any adverse
party as his witness.

In the later case of Suarez v. Tengco,
2 SCRA 71, 73-74, the following was stated:

“Here, petitioner invoked the privilege even prior to any
question, and simply declined to take the witness stand.  Note that in the Gonzales case, above-cited,
the adverse party was directed to take the witness stand in proceedings to
investigate an alleged failure to pay overtime compensation, which, under the
corresponding special laws, carries a penal sanction.  Here, petitioner was being directed to take
the stand, not in a criminal case where he is an accused, but in an independent
civil action which, although arising from the same facts involved in a criminal
case pending before the same court, is still regarded by law as an ‘entirely
separate and distinct’ action, governed by a corresponding different set of
rules (Civil Code of the Phil., Art. 2177).”

The almost exact similarity of the instant case and the case just
cited leaves no room for doubt, and there is complete justification therefore
that the same ruling must be applied here.

WHEREFORE, the instant petition to prohibit the respondent
judge from directing petitioner to take the witness stand and testify is
denied, without prejudice to petitioner’s properly invoking the guaranty
against self-incrimination when questions are propounded to him on the
stand.  Costs against the petitioner.

SO ORDERED.

Teehankee, (Chairman), Fernandez,
Guerrero, and Melencio-Herrera,
JJ., concur.

Makasiar, J., in the result.

^[1]
Annex “G” to the petition, p. 41, Rollo.

^[2]
Annex “B”, p. 14, Rollo.

^[3]
Annex “C”, p. 16, Rollo.

^[4]
Annex “E”, p. 22, Rollo.

^[5]
Annex “D”, p. 19, Rollo.

^[6]
Annex “G”, p. 41, Rollo.

^[7]
U.S. vs. Junio,
1 Phil. 50; U.S. vs. Luzon, 4 Phil. 344; U.S. vs. Binayoh,
35 Phil. 23.

^[8]
Article IV, Section 20, Philippine
Constitution; Bermudez vs. Castillo, 64 Phil. 483.

^[9]
L-6409, February 5, 1954, 94
Phil. 325.