JOWEL SALES, PETITIONER, VS. CYRIL A. SABINO, RESPONDENT

Sales versus Sabino

The Case

This is a petition for review on certiorari brought by Jowel Sales against Cyril Sabino, arising from a civil action for damages. Sabino sued Sales, the driver of the vehicle involved in an accident that caused the death of Sabino's son, and during the trial Sabino offered in evidence the deposition of a witness, Buaneres Corral, who had gone abroad. Sales objected to its admission. The case matters because it fixes the ground rules for using depositions at trial: when a deposition may substitute for live testimony under the Rules of Court, and whether cross-examining a deponent during the taking of the deposition waives the right to object to its admissibility in court.

Procedural History

Sabino filed an amended complaint for damages in the Regional Trial Court at Pasig City against Sales and others. During trial, Sabino took the oral deposition of Buaneres Corral before the Clerk of Court, and later offered it in evidence, together with a Bureau of Immigration certification attesting that Corral had departed for abroad. Over Sales's opposition, the trial court admitted the deposition and the certification in its order of February 1997, and denied reconsideration in March 1997.

Sales then went to the Court of Appeals on certiorari, imputing grave abuse of discretion to the trial court. The Court of Appeals upheld the trial court in its decision of January 1998, reasoning that Sales's active participation in the taking of the deposition, through counsel, estopped him from assailing its admissibility. Reconsideration was denied in March 1998. Sales then came to the Supreme Court by petition for review on certiorari under Rule 45.

Facts

In February 1995, Cyril Sabino filed an amended complaint for damages in the Regional Trial Court at Pasig City against Jowel Sales, the driver of the vehicle involved in the accident that caused the death of Sabino's son, Elbert, and against other defendants. Before any responsive pleading was filed, Sabino notified the defendants that he would take the deposition of Buaneres Corral before the Clerk of Court.

The deposition on oral examination was taken in December 1995 and resumed in January 1996, before the Clerk of Court of Pasig. Sales's counsel was present, actively participated, and even cross-examined the deponent at length. During trial, Sabino had the deposition marked as his exhibits and formally offered it in evidence, together with a certification from the Bureau of Immigration attesting that Corral had departed for abroad in May 1996.

Sales opposed the admission of the deposition, arguing that the jurisdictional requirements of the Rules of Court had not been complied with, and he asked that it be expunged from the records. The trial court admitted the deposition and the certification. Sales elevated the matter to the Court of Appeals, which upheld the trial court, and the case reached the Supreme Court.

Issues

• Whether or not the requirement for using a deposition, namely that the witness is out of the Philippines, was satisfied by a Bureau of Immigration certification attesting that the deponent had left the country but silent on whether he was in the Philippines at the time the deposition was offered in evidence.
• Whether or not the petitioner, by cross-examining the deponent during the taking of the deposition, waived any and all objections in connection therewith.

Applicable Provisions

Section 4 of Rule 23 of the Rules of Court, on the use of depositions, provides:

At the trial 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: 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 resides at a distance more than one hundred (100) 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 or 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 exception circumstances exist and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.

This is the provision under which Sabino sought to use Corral's deposition, and the Court measures whether the condition that the witness is out of the Philippines was established.

Section 29 of Rule 23, on objections to depositions, is also invoked by the Court, and it provides in gist that errors and irregularities in depositions as to notice, qualifications of the officer, and manner of taking are waived if not objected to before or during the taking, while 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.

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.

This supports the ruling that cross-examining the deponent did not waive the objection to admissibility.

Ruling

On the first issue, the Court held that the requirement was satisfied. A deposition is generally not meant to substitute for the actual testimony in open court, and may be used without the deponent being called only when one of the listed conditions is satisfactorily established. Among those conditions is that the witness is out of the Philippines. The trial court found that Corral was abroad when the offer of his deposition was made, and that factual finding of absence or unavailability deserved respect, having been adequately substantiated by the Bureau of Immigration certification. The Court noted that it is customary for courts to accept statements of parties as to the unavailability of a witness as a predicate to the use of depositions. Had Corral returned, Sales could have presented evidence of that fact; instead, he offered the return only as a possibility, not as a fact. Grave abuse of discretion was therefore not shown.

On the second issue, the Court held that Sales was not estopped. The inadmissibility of deposition testimony rests on hearsay, because the party against whom it is offered had no opportunity to cross-examine the deponent at the time the testimony is presented against him. The opportunity for cross-examination must ordinarily be accorded at the time the testimonial evidence is actually presented during trial. Hence, 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 at the trial proper. In participating in the taking but objecting to admissibility, Sales did not assume inconsistent positions. The Court added, finally, that certiorari will not lie against an order admitting or rejecting a deposition in evidence, the remedy being an appeal from the final judgment.

Doctrine

A deposition is not a substitute for live testimony and is generally hearsay when offered in lieu of the deponent's oral testimony in open court. It may be used without calling the deponent only when one of the conditions in Section 4 of Rule 23 is satisfactorily established, among them that the witness is out of the Philippines. The trial court's factual finding of the witness's absence or unavailability, when adequately substantiated, deserves respect, and courts customarily accept the parties' statements as to unavailability as a predicate for using the deposition.

Cross-examining a deponent during the taking of the deposition does not, without more, waive the right to object to the deposition's admissibility at trial, because the opportunity for cross-examination must ordinarily be accorded when the testimony is actually presented against the party. Under Section 29 of Rule 23, objections to the competency, relevancy, or materiality of testimony may be raised for the first time at trial. Finally, certiorari does not lie against an order admitting or rejecting a deposition; the remedy is an appeal from the final judgment.

Disposition

The petition was denied, with costs against the petitioner, and the rulings of the Court of Appeals and the trial court admitting the deposition in evidence were upheld.

Remember This

Memorize this line: a deposition may be used when the witness is out of the Philippines, and cross-examining the deponent during the taking does not waive the objection to its admissibility at trial. Examiners use this case to test the exceptions to the hearsay rule for depositions under Rule 23 and the distinction between objecting during the taking and objecting at trial.