DASMARIÑAS GARMENTS, INC., PETITIONER, VS. HON. RUBEN T. REYES, JUDGE, REGIONAL TRIAL COURT, MANILA, BRANCH 50, AND AMERICAN PRESIDENT LINES, LTD., RESPONDENTS.

Sometime in September, 1987, in the Regional Trial Court of
Manila, the American President Lines, Ltd. sued Dasmariñas Garments, Inc. to
recover the sum of US $53,228.45 as well as an amount equivalent to twenty-five
percent (25%) thereof as attorney’s fees and litigation expenses.

In its answer dated December 1, 1987, Dasmariñas Garments, Inc.
(hereafter, simply Dasmariñas) specifically denied any liability to the
plaintiff (hereafter simply APL), and set up compulsory counterclaims against
it.

The case was in due course scheduled for trial on April 27,
1988. On that date APL presented its
first witness whose testimony was completed on November 12, 1988. The case was reset to May 3, 1989 for
reception of the testimony of two (2) more witnesses in APL’s behalf.

At the hearing of May 3, 1989, instead of presenting its
witnesses, APL filed a motion praying that it intended to take the depositions
of H. Lee and Yeong Fang Yeh in Taipei, Taiwan, and prayed that for this
purpose, a “commission or letters rogatory be issued addressed to the
consul, vice-consul or consular agent of the Republic of the Philippines in
Taipei **.” Five (5) days later APL filed an amended motion stating that
since the Philippine Government has no consulate office in Taiwan in view of its
“one-China policy,” there being in lieu thereof an office set up by
the President “presently occupied by Director Joaquin Races which is the
Asian Exchange Center, Inc.,” it was necessary — and it therefore prayed — “that commission or letters
rogatory be issued addressed to Director Joaquin Roces, Executive Director,
Asian Executive Exchange Center, Inc., Room 901, 112 Chunghsiao, E. Road,
Section 1, Taipei, Republic of China, to hear and take the oral deposition of
the aforenamed persons **.”

The motion was opposed by Dasmariñas. It contended that (a) the motion was “fatally defective in
that it does not seek ** that a foreign court examine a person within its
jurisdiction;” (b) issuance of letters rogatory was unnecessary because
the witnesses “can be examined before the Philippine Court;” and (c)
the Rules of Court “expressly require that the testimony of a witness must
be taken orally in open court and not by deposition.”

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

By Order dated March 15, 1991, the Trial Court resolved the
incident in favor of APL, disposing as follows:

“ACCORDINGLY, the motion to take the testimonies of plaintiffs
Taiwanese witnesses, Kenneth H. Lee and Yeong Fah Yeh, by deposition (upon
written interrogatories) is hereby GRANTED. The Asian Exchange Center, Inc. thru Director Joaquin R. Roces is hereby
COMMISSIONED to take down the deposition. Compliance with the Rules on the taking of testimony by deposition upon written
interrogatories under Sections 25-29 of Rule 24, Rules of Court, is enjoined.

Let this Order be coursed through the Department of Foreign
Affairs, Manila, pursuant to Supreme Court Administrative Circular No. 4 dated
April 6, 1987.”

The Court opined that “the Asian Exchange Center, Inc, being
the authorized Philippine representative in Taiwan, may take the testimonies of
plaintiffs witnesses residing there by deposition, but only upon written
interrogatories so as to give
defendant the opportunity to cross-examine the witnesses by serving
cross-examination.”

Dasmariñas sought reconsideration by motion filed June 25, 1991
on the following grounds: (1) authority
of the Asian Exchange Center, Inc. (AECI) to take depositions has not been
established it not being one of those so authorized by the Rules of Court to
take depositions in a foreign state; (2) AECI’s articles of incorporation show
that it is not vested with any such authority; (3) to permit deposition-taking
by commission without the authority of the foreign state in which deposition is
taken constitutes infringement of judicial sovereignty; and (4) depositions by
written interrogatories have inherent
limitations and are not suitable to matters dependent on the credibility of
witnesses; oral testimony in open court remains the “most satisfactory
method of investigation of facts” and “affords the greatest
protection to the rights and liberties of citizens.”

By Order dated July 5, 1991, the motion for reconsideration was
denied because “filed out of time” and being a mere rehash of
arguments already passed upon. In the
same Order, APL was directed “to take the necessary steps to implement the
order authorizing the ** (deposition-taking) of its witnesses not later than
the end of this month, otherwise the Court will consider inaction or lack of
interest as waiver to adduce additional evidence by deposition.”

Dasmariñas instituted a special civil action of certiorari in
the Court of Appeals to nullify the orders of the Trial Court just
described. Said Appellate Court
restrained enforcement of the orders of March 15, 1991 and July 5, 1991
“in order to maintain the status quo and to prevent the infliction
of irreparable damage and injury upon the petitioner.”

After due proceedings, the Court of Appeals (Third Division)
rendered judgment on September 23, 1992 denying Dasmariñas’ petition for certiorari
and upholding the challenged orders of the Trial Court. Once again, Dasmariñas sought
reconsideration of an adverse disposition, and once again, was rebuffed. Its motion for reconsideration was denied in
a Resolution of the Court of Appeals dated December 11, 1992.

Once again Dasmariñas has availed of the remedy of appeal. It has come to this Court and prays for the
reversal of the Appellate Court’s Decision of September 23, 1992 and Resolution
dated December 11, 1992. Once again, it
will fail.

Dasmariñas ascribes to the Court of Appeals the following errors,
to wit:

1) “in holding that a party could, during
the trial of the case, present its evidence by taking the deposition of its
witnesses in a foreign jurisdiction before a private entity not authorized by
law to take depositions in lieu of their oral examination in open Court
considering that:

(a)    the
taking of deposition is a mode of pretrial discovery to be availed of before
the action comes to trial;

(b) no urgent or compelling reason has been
shown to justify the departure from the accepted and usual judicial proceedings
of examining witnesses in open court where their demeanor could be observed by
the trial judge;”

2) “in disregarding the inherently
unfair situation in allowing private respondent, a foreign entity suing in the
Philippines, to present its evidence by mere deposition of its witnesses away
from the ‘penetrating scrutiny’ of the trial Judge while petitioner is
obligated to bring and present its witnesses in open court subject to the prying eyes and probing questions of the
Judge;” and

3) “in sanctioning the deposition taking
of ** (APL’s) witnesses in Taipei, Taiwan, a foreign jurisdiction not
recognized by the Philippines in view of its ‘one-China policy,’ before the
AECI, a private entity not authorized by law to take depositions.”

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

Depositions are principally made available by law to the parties
as a means of informing themselves of all the relevant facts; they are not
therefore generally meant to be a substitute for the actual testimony in open
court of a party or witness. The
deponent must as a rule be presented for oral examination in open court at the
trial or hearing. This is a requirement
of the rules of evidence. Section 1,
Rule 132 of the Rules of Court provides:

“SECTION 1. Examination to be done in open court. — The examination of witnesses presented in a trial or hearing
shall be done in open court, and under oath or affirmation. Unless the witness is incapacitated to
speak, or the question calls for a
different mode of answer, the
answers of the witness shall be given orally.”

Indeed, any deposition offered to prove the facts therein set out
during a trial or hearing, in lieu of the actual oral testimony of the deponent
in open court, may be opposed and excluded on the ground that it is
hearsay: the party against whom it is
offered has no opportunity to cross-examine the deponent at the time that his
testimony is offered. It matters not
that 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 that the
testimonial evidence is actually presented against him during the trial or
hearing.

However, depositions may be used without the deponent being
actually called to the witness stand by the proponent, under certain conditions
and for certain limited purposes. These
exceptional situations are governed by Section 4, Rule 24 of the Rules of Court.

“SEC 4. Use of
depositions. — At the trial or upon the hearing of a motion of an
interlocutory proceeding, any part or all of a deposition, so far as admissible
under the rules of evidence, may be used against any party who was present or
represented at the taking of the deposition or who had due notice thereof, in accordance with any of the following
provisions:

(a)    Any deposition may be used by any party for
the purpose of contradicting or impeaching the testimony of deponent as a
witness:

(b)    The deposition of a party or of any one who
at the time of taking the deposition was an officer, director, or managing
agent of a public or private corporation, partnership, or association which is
a party may be used by an adverse party for any purpose;

(c)    The deposition of a witness, whether or not
a party, may be used by any party for any purpose if the court finds: (1) that the witness is dead; or (2) that
the witness if out of the province and at a greater distance than fifty (50)
kilometers from the place of trial or hearing, or is out of the Philippines,
unless it appears that his absence was procured by the party offering the
deposition; or (3) that the witness is unable to attend to testify because of
age, sickness, infirmity, or imprisonment; or (4) that the party offering the
deposition has been unable to procure the attendance of the witness by
subpoena; or (5) upon application and notice, that such exceptional
circumstances exist as to make it desirable, in the interest of justice and
with due regard to the importance of presenting the testimony of witnesses
orally in open court, to allow the deposition to be used;

(d)    If only part of a deposition is offered in
evidence by a party, the adverse party may require him to introduce all of it
which is relevant to the part introduced, and any party may introduce any other
parts.”

The principle conceding admissibility to a deposition when the
deponent is dead, out of the Philippines, or otherwise unable to come to court
to testify, is consistent with another rule of evidence, found in Section 47,
Rule 132 of the Rules of Court.

“SEC. 47. Testimony
or deposition at a former proceeding. — The testimony or deposition of a
witness deceased or unable to testify, given in a former case or proceeding,
judicial or administrative, involving the same parties and subject matter, may
be given in evidence against the adverse party who had the opportunity to cross?examine
him.”

It is apparent then that the deposition of any person may be
taken wherever he may be, in the Philippines or abroad. If the party or witness is in the
Philippines, his deposition “shall be taken before any judge, municipal or
notary public” (Sec. 10, Rule 24, Rules of Court). If in a foreign state or country, the
deposition “shall be taken: (a) on
notice before a secretary or embassy or legation, consul general, consul,
vice-consul, or consular agent of the Republic of the Philippines, or (b)
before such person or officer as may be appointed by commission or under
letters rogatory” (Sec. 11, Rule 24).

Leave of court is not necessary where the deposition is to be taken before “a secretary
or embassy or legation, consul general, consul, vice-consul,
or consular agent of the Republic of the Philippines,” and the defendant’s answer has already been
served (Sec. 1, Rule 24). After answer,
whether the deposition-taking is to be accomplished within the Philippines or
outside, the law does not authorize or contemplate any intervention by the
court in the process, all that is required being that “reasonable
notice” be given “in writing to every other party to the action **
(stating) the time and place for taking the deposition and the name and address
of each person to be examined, if known, and if the name is not known, a
general description sufficient to identify him or the particular class or group
to which he belongs. ** ” (Sec. 15, Rule 24). The court intervenes in the process only if a party moves (1) to
“enlarge or shorten the time” stated in the notice (id.), or (2)
“upon notice and for good cause shown,” to prevent the deposition-taking, or
impose conditions therefor, e.g., that “certain matters shall not be
inquired into” or that the taking be “held with no one present except
the parties to the action and their officers or counsel,” etc. (Sec. 16,
Rule 24), or (3) to terminate the process on motion and upon a showing that
“it is being conducted in bad faith or in such manner as unreasonably to
annoy, embarrass, or oppress the deponent or party” (Sec 18, Rule 24).

Where the deposition is to be taken n a foreign country where the
Philippines has no “secretary or embassy or legation, consul general,
consul, vice-consul, or consular agent,” then obviously it may be taken
only “before such person or officer as may be appointed by commission or
under letters rogatory. Section 12,
Rule 24 provides as follows:

“SEC. 12. Commission
or letters rogatory. — A commission or letters rogatory shall be issued
only when necessary or convenient, on application and notice, and on such terms
and with such directions as are just and appropriate. Officers may be designated in notices or commissions either by
name or descriptive title and letters rogatory may be addressed ‘To the
Appropriate Judicial Authority in (here name the country).’”

A commission may be defined as “(a)n instrument issued by a
court of justice, or other competent tribunal, to authorize a person to take
depositions, or do any other act by authority of such court or tribunal”
(Feria, J., Civil Procedure, 1969 ed., p. 415, citing Cyclopedic Law
Dictionary, p. 200). Letters rogatory,
on the other hand, may be defined as
“(a)n instrument sent in the name and by the authority of a judge or court
to another, requesting the latter to cause to be examined, upon interrogatories
filed in a cause pending before the former, a witness who is within the
jurisdiction of the judge or court to whom such letters are addressed”
(Feria, J., op. cit., citing Cyclopedic Law Dictionary, p. 653). Section 12, Rule 24 just quoted states that
a commission is addressed to “officers ** designated ** either by name or
descriptive title,” while letters rogatory are addressed to some
“appropriate judicial authority in the foreign state.” Noteworthy in
this connection is the indication in the Rules that letters rogatory may be
applied for and issued only after a commission has been “returned unexecuted,” as is apparent from Form 21 of the
“Judicial Standard Forms” appended to the Rules of Court, which
requires the inclusion in a “petition for letters rogatory” of the
following paragraph, viz.:

“ *****

“3.  A
commission issued by this Court on the ____________ day of __________, 19__, to take the testimony of (here name the witness or
witnesses) in (here name the foreign country in which the testimony is to be
taken), before _____________________ (name of officer), was returned
unexecuted by _____________ on the
ground that ____________________________ all of which more fully appears from
the certificate of said _________________________ to said commission and made a
part hereof by attaching it hereto (or state other facts to show commission is
inadequate or cannot be execute)” (italics supplied).

In the case at bar, the Regional Trial Court has issued a
commission to the “Asian Exchange Center, Inc. thru Director Joaquin R.
Roces” “to take the testimonies of ** Kenneth H. Lee and Yeong Fah
Yeh, by deposition (upon written interrogatories) **.” It appears that
said Center may, “upon request and authority of the Ministry (now Department)
of Foreign Affairs, Republic of the Philippines” issue a “Certificate
of Authentication” attesting to the identity and authority of Notaries
Public and other public officers of the
Republic of China, Taiwan (eg., the Section Chief, Department of Consular
Affairs of the latter’s Ministry of Foreign Affairs) (Annex B of Annex N of the
petition for review on certiorari) — a prima facie showing not rebutted by petitioner.

It further appears that the commission is to be coursed through
the Department of Foreign Affairs conformably with Circular No. 4 issued by
Chief Justice Claudio Teehankee on April 6, 1987, pursuant to the suggestion of
the Department of Foreign
Affairs — directing “ALL JUDGES OF THE REGIONAL TRIAL COURTS,
METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS IN CITIES, MUNICIPAL TRIAL
COURTS AND MUNICIPAL CIRCUIT TRIAL COURTS” “to course all requests
for the taking of deposition of witnesses residing abroad through the
Department of Foreign Affairs” to enable it and “the Philippine Foreign
Service establishments to act on the matter in a judicious and expeditious
manner;” this, “in the interest of justice,” and to avoid delay
in the deposition-taking.

Petitioner would however prevent the carrying out of the
commission on various grounds.

The first is that the deposition-taking will take place in
“a foreign jurisdiction not recognized by the Philippines in view of its
‘one-China policy.’” This is inconsequential. What matters is that the deposition is taken before a Philippine
official acting by authority of the Philippine Department of Foreign Affairs
and in virtue of a commission duly
issued by the Philippine Court in which the action is pending, and in
accordance, moreover, with the provisions of the Philippine Rules of Court
pursuant to which opportunity for cross-examination of the deponent will be fully accorded to the adverse party.

Dasmariñas also contends that the “taking of deposition is a mode of pretrial discovery to be
availed of before the action comes to trial.” Not so. Depositions
may be taken at any time after the institution of any action, whenever
necessary or convenient. There is no rule that limits deposition-taking only to the period of
pre-trial or before it; no prohibition against the taking of depositions after
pre-trial. Indeed, the law authorizes
the taking of depositions of witnesses before or after an appeal is taken from
the judgment of a Regional Trial Court “to perpetuate their testimony for
use in the event of further proceedings in the said court” (Rule 134,
Rules of Court), and even during the process of execution of a final and
executory judgment (East Asiatic Co. v. C.I.R., 40 SCRA 521, 544).

Dasmariñas further claims that the taking of deposition under the
circumstances is a “departure from the accepted and usual judicial proceedings
of examining witnesses in open court where their demeanor could be observed by
the trial judge;” that it is “inherently unfair” to allow APL,
“a foreign entity suing in the Philippines, to present its evidence by
mere deposition of its witnesses away from the ‘penetrating scrutiny’ of the
trial Judge while petitioner is
obligated to bring and present its witnesses in open court subject to the prying eyes and
probing questions of the Judge.”

Of course the deposition-taking in the case at bar is a
“departure from the accepted and usual judicial proceedings of examining
witnesses in open court where their demeanor could be observed by the trial judge;” but the procedure is not on that
account rendered illegal nor is the deposition thereby taken, inadmissible. It precisely falls within one of the
exceptions where the law permits such a situation, i.e., the use of a
deposition in lieu of the actual appearance and testimony of the deponent in
open court and without being “subject to the prying eyes and probing
questions of the Judge.” This is allowed provided the deposition is taken
in accordance with the applicable provisions of the Rules of Court and the
existence of any of the exceptions for its admissibility — e.g., “that
the witness if out of the province and at a greater distance than fifty (50)
kilometers from the place of trial or hearing, or is out of the Philippines, unless
it appears that his absence was procured by the party offering the deposition;
or ** that the witness is unable to attend to testify because of age, sickness,
infirmity, or imprisonment, etc.” (Sec. 4, Rule 24, supra, italics
supplied) — is first satisfactorily established (See Lopez v. Maceren, 95
Phil. 754).

The Regional Trial Court saw fit to permit the taking of the depositions
of the witnesses in question only by written interrogatories, removing the
proponent’s option to take them by oral examination, i.e., by going to Taipei
and actually questioning the witnesses verbally with the questions and answers
and observations of the parties being recorded stenographically. The imposition of such a limitation, and the
determination of the cause thereof, are to be sure within the Court’s
discretion. The ostensible reason given
by the Trial Court for the condition — that the depositions be taken
“only upon written interrogatories” — is “so as to give
defendant (Dasmariñas) the opportunity to cross-examine the witnesses by
serving cross-interrogatories.” The statement implies that opportunity to
cross-examine will not be accorded the defendant if the depositions were to be
taken upon oral examination, which, of course, is not true. For even if the depositions were to be taken
on oral examination in Taipei, the adverse party is still accorded full right
to cross-examine the deponents by the law, either by proceeding to Taipei and
there conducting the cross-examination orally, or opting to conduct said
cross-examination merely by serving cross-interrogatories.

One other word. In its
Order of July 5, 1991 — denying Dasmariñas’ motion for reconsideration of the
earlier order dated March 15, 1991 (allowing the taking of deposition by
commission) — one of the reasons adduced by the Regional Trial Court for the
denial was that the motion had been “filed out of time.” Evidently,
the Trial Court reached this conclusion because, as the record discloses, the
motion for reconsideration was filed by Dasmariñas on June 25, 1991,
twenty-five (25) days after notice (on May 20, 1991) of the Order of March 15,
1991 sought to be reconsidered. Denial
of the motion on such a ground is incorrect. In the first place, it appears that there was a motion for extension of
time to file a motion for reconsideration, ending on June 25, 1991 which was
however not acted on or granted by the Court. More importantly, the order sought to be reconsidered is an interlocutory order, in respect of which there is
no provision of law fixing the time within which reconsideration thereof should be sought.

PREMISES CONSIDERED, the Court Resolved to DISMISS the
petition for review on certiorari. Costs
against petitioner.

SO ORDERED.

Padilla, Regalado, Nocon, and
Puno, JJ., concur.