3 - Rosete V Lim

8/21/2016 SUPREMECOURTREPORTSANNOTATEDVOLUME490
*
G.R. No. 136051. June 8, 2006.
ALFREDO P. ROSETE, OSCAR P. MAPALO and CHITO

P. ROSETE, petitioners, vs. JULIANO LIM and LILIA
LIM, respondents.
Criminal Procedure Rights of the Accused Self

Incrimination The right against selfincrimination is accorded to
every person who gives evidence, whether voluntary or under
compulsion of subpoena, in any civil, criminal or administrative
proceeding.The right against selfincrimination is accorded to
every person who gives evidence, whether voluntary or under
compulsion of subpoena, in any civil, criminal or administrative
proceeding. The right is not to be compelled to be a witness
against himself. It secures to a witness, whether he be a party or
not, the right to refuse to answer any particular incriminatory
question, i.e., one the answer to which has a
_______________
* FIRST DIVISION
126
126 SUPREME COURT REPORTS ANNOTATED
Rosete vs. Lim
tendency to incriminate him for some crime. However, the right

can be claimed only when the specific question, incriminatory in
character, is actually put to the witness. It cannot be claimed at
any other time. It does not give a witness the right to disregard a
subpoena, decline to appear before the court at the time
appointed, or to refuse to testify altogether. The witness receiving
a subpoena must obey it, appear as required, take the stand, be
sworn and answer questions. It is only when a particular question
is addressed to which may incriminate himself for some offense
that he may refuse to answer on the strength of the constitutional
guaranty.
http://www.central.com.ph/sfsreader/session/00000156ac911c9d68696e20003600fb002c009e/t/?o=False 1/16
Same Same Same Under the Rules of Court, in all criminal

prosecutions the defendant is entitled among others, to the
following.An accused occupies a different tier of protection
from an ordinary witness. Under the Rules of Court, in all
criminal prosecutions the defendant is entitled among others1)
to be exempt from being a witness against himself, and 2) to
testify as witness in his own behalf but if he offers himself as a
witness he may be crossexamined as any other witness however,
his neglect or refusal to be a witness shall not in any manner
prejudice or be used against him.
Same Same Same As long as the suit is criminal in nature,
the party thereto can altogether decline to take the witness stand
it is not the character of the suit involved but the nature of the
proceedings that controls.It is clear, therefore, that only an
accused in a criminal case can refuse to take the witness stand.
The right to refuse to take the stand does not generally apply to
parties in administrative cases or proceedings. The parties
thereto can only refuse to answer if incriminating questions are
propounded. This Court applied the exceptiona party who is not
an accused in a criminal case is allowed not to take the witness
standin administrative cases/ proceedings that partook of the
nature of a criminal proceeding or analogous to a criminal
proceeding. It is likewise the opinion of the Court that said
exception applies to parties in civil actions which are criminal in
nature. As long as the suit is criminal in nature, the party thereto
can altogether decline to take the witness stand. It is not the
character of the suit involved but the nature of the proceedings
that controls.
Actions Pleadings and Practice Issues Issues are joined
when all the parties have pleaded their respective theories and the
terms of
127
VOL. 490, JUNE 8, 2006 127
Rosete vs. Lim
the dispute are plain before the court.Issues are joined when all
the parties have pleaded their respective theories and the terms
of the dispute are plain before the court. In the present case, the
issues have, indeed, been joined when petitioners, as well as the
other defendants, filed their answers. The respective claims and
defenses of the parties have been defined and the issues to be
decided by the trial court have been laid down.
PETITION for review on certiorari of the decision and

resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Piera, Marcella, Romero and Associates for private
respondents Sps. Lim.
(Ret.) Justice Cuevas Law Office cocounsel for Sps.
Lim.
CHICONAZARIO, J.:
Before Us is a petition for1 review on certiorari which seeks

to set aside the Decision of the Court of Appeals in CA
G.R. SP No. 45400 dated 24 August 1998 which upheld the
Orders of Branch 77 of the Regional Trial Court (RTC) of
Quezon
2
City in Civil Case No.3 Q9525803 dated 22 July
1997 and 27 August 1997, allowing the taking of
deposition upon oral examination of petitioners4 Oscar P.
Mapalo and Chito P. Rosete, and its Resolution dated 19
October 1998 denying petitioners Motion for
Reconsideration.
Relevant to the petition are the following antecedents:
On 5 December 1995, respondents Juliano Lim and Lilia
Lim filed before Branch 77 of the RTC of Quezon City a
Complaint for Annulment, Specific Performance with
Damages
_______________
1 CA Rollo, pp. 140158 Penned by Associate Justice Artemon D. Luna

with Associate Justices Eugenio S. Labitoria and Marina L. Buzon,
concurring.
2 Records, Vol. 2, pp. 883884.
3 Id., Vol. 3, pp. 10531055.
4 CA Rollo, p. 221.
128

Rosete vs. Lim
against AFP Retirement and Separation Benefits System

(AFPRSBS), Espreme Realty and Development
Corporation (Espreme Realty), Alfredo P. Rosete, Maj.
Oscar Mapalo, Chito P. Rosete, Bank of the Philippine
Islands (BPI), and Register of Deeds of the Province of
Mindoro
5
Occidental, docketed as Civil Case No. Q95
25803. It asked, among other things, that the Deed of Sale
executed by AFPRSBS covering certain parcels of lands in
favor of Espreme Realty and the titles thereof under the

name of the latter be annulled and that the AFPRSBS
and Espreme Realty be ordered to execute the necessary
documents to restore ownership and title of said lands to
respondents, and that the Register of Deeds be ordered to
cancel the titles of said land under the name of Espreme
Realty and to transfer the same in the names of
respondents.
On 18 January 1996, petitioners filed a Motion to
Dismiss on the grounds that the court has no jurisdiction
over the subject matter of the 6
action or suit and that venue
has been improperly laid. A Supplemental Motion to
Dismiss was filed
7
by petitioner Alfredo P. Rosete on 23
January 1996. Respondents
8
opposed the Motion to Dismiss9
filed by petitioners to which petitioners filed 10
their Reply.11
Respondents filed 12
a Comment13
on the Reply. AFPRSBS,
Espreme Realty, and, BPI filed their respective Motions
to Dismiss which respondents opposed.
_______________
5 Records, Vol. 1, pp. 145.

6 Id., pp. 107110.
7 Id., pp. 125127.
8 Id., pp. 141149.
9 Id., pp. 156160.
10 Id., pp. 176178.
11 Id., pp. 136139.
12 Id., pp. 151155.
13 Id., pp. 171174.
129
VOL. 490, JUNE 8, 2006 129

Rosete vs. Lim
In an Order dated 12 March 1996, the Motions

14
to Dismiss
filed by all the defendants were denied.
15
The Motions
16
for
Reconsideration filed17 by petitioners and BPI, which
respondents opposed,
18
were also denied in an Order dated
24 May 1996.
On 6 June 1996, BPI filed its
19
Answer with Compulsory
Counterclaim and Crossclaim to which respondents
20
filed
their Reply and Answer
21
to Counterclaim. Respondents
also filed a Motion to Serve Supplemental Allegation
against BPI and petitioner Chito Rosete which 22
the trial
court granted in an order dated 28 July 1996.
On 7 June 1996, petitioners

23
manifested that on 5 June
1996, they filed a Petition for Certiorari and Prohibition in
the Court of Appeals, docketed as CAG.R. SP No. 40837,
challenging the trial courts Orders dated 12 March 1996
and 24 May 1996 that denied 24their Motions to Dismiss and
Reconsideration, respectively. They likewise informed the
trial court
25
that on 6 June 1996, they filed an26 Ex Parte
Motion to Admit Answers Ex Abudanti Cautela.
_______________
14 Id., pp. 186189.

15 Id., pp. 209212.
16 Id., pp. 190195.
17 Id., pp. 220224.
18 Id., p. 248.
19 Id., pp. 254260.
20 Records, Vol. 2, pp. 586587.
21 Id., pp. 597598.
22 Id., p. 602.
23 The Court of Appeals dismissed the petition on 30 October 1996
(Records, Vol. 2, pp. 715725) and denied petitioners motion for
reconsideration on 9 May 1997 (Records, Vol. 2, pp. 748752). On appeal to
the Supreme Court, the appeal (G.R. No. 129864) was dismissed on 29
August 2000.
24 Records, Vol. 1, pp. 276277.
25 Records, Vol. 2, pp. 539570.
26 The Latin phrase Ex Abudanti Cautela means out of abundant
caution.
130

Rosete vs. Lim
On 7 August 1996, petitioner Chito Rosete filed a motion

asking that the order granting the Motion to Serve
Supplemental Allegation against BPI and him be
reconsidered and set aside, and that respondents be
ordered to reduce their supplemental allegations27in the
form and manner required by the Rules of Court.
28
Same
was denied in an order dated 12 August 1996. This denial
was appealed to the Court of Appeals on 26 August
29
1996,
which was docketed as CAG.R. SP No. 41821.
Petitioner Chito Rosete filed his Supplemental
30
Answer
(Ex Abudanti Cautela) on 9 September 1996.
On 28 May 1997, respondents filed a Notice to Take

Deposition Upon Oral Examination giving notice that on
June 18 and 20, 1997 at 9:00 a.m., they will cause the 31
deposition of petitioners Oscar Mapalo and Chito Rosete.
On 13 June 1997, petitioners filed an Urgent Ex Parte
Motion and 32Objection to Take Deposition Upon Oral
Examination. They argued that the deposition may not be
taken without leave of court as no answer has yet been
served and the issues have not yet been joined since their
Answer was filed ex abudanti cautela, pending resolution of
the Petition for Certiorari challenging the orders dated 12
March 1996 and 24 May 1996 that denied their Motions to
Dismiss and for Reconsideration, respectively. This is in
addition to the fact that they challenged via a Petition for
Certiorari before the Court of Appeals the lower courts
Orders dated 23 July 1996 and 12 August 1996 which,
respectively, granted respondents
_______________
27 Records, Vol. 2, pp. 608611.

28 Id., p. 614.
29 Id., pp. 623639. The petition for certiorari was denied on 27 April
1998 and the motion for reconsideration was denied on 13 July 1998. On
appeal to the Supreme Court (G.R. No. 134646), the Court considered the
case closed and terminated.
30 Id., pp. 673674.
31 Id., pp. 820822.
32 Id., pp. 832852.
131
VOL. 490, JUNE 8, 2006 131

Rosete vs. Lim
Motion to Serve Supplemental Allegation Against

Defendants BPI and Chito Rosete, and for the latter to
plead thereto, and denied Chito Rosetes Motion for
Reconsideration of the order dated 23 July 1996. Moreover,
they contend that since there are two criminal cases
pending before the City Prosecutors of Mandaluyong City
and Pasig City involving the same set of facts as in the
present case wherein respondent Juliano Lim is the private
complainant and petitioners are the respondents, to permit
the taking of the deposition would be violative of their right
against selfincrimination because by means of the oral
deposition, respondents would seek to establish the
allegations of fact in the complaint which are also the
allegations of fact in the complaintaffidavits in the said

criminal cases.
Respondents filed
33
their Comment on the Objection 34to
Deposition Taking to which petitioners filed their Reply.
In an Order dated 22 July 1997, the lower court denied
petitioners motion and objection to take deposition35 upon
oral examination, and scheduled the taking thereof. On 7
August 1997, 36 petitioners filed a Motion for
Reconsideration. They filed a Supplemental
37
Motion for
Reconsideration on 11 August 1997.
On 13 August 1997, petitioners filed an Urgent Ex Parte
Motion to Cancel or Suspend
38
the Taking of the Deposition
Upon Oral Examination.
In an Order dated 27 August 1997, the lower court
denied petitioners Motion for Reconsideration and
Supplemental
_______________
33 Id., pp. 858864.

34 Id., pp. 865874.
35 Id., pp. 883884.
36 Id., pp. 912925.
37 Records, Vol. 3, pp. 926932.
38 Id., pp. 933935.
132

Rosete vs. Lim
Motion for Reconsideration, and scheduled

39
the taking of
the Deposition Upon Oral Examination.
On 22 September1997, respondents filed an Omnibus
Motion: (1) To Strike Out Answer of Defendants Mapalo
and Chito Rosete (2) to Declare Defendants Mapalo and
Chito Rosete In Default
40
and (3) For Reception 41of Plaintiffs
Evidence Ex Parte, which petitioners opposed.
On 29 September 1997, petitioners filed with the Court
of Appeals a Petition for Certiorari and Prohibition (CA
G.R. SP No. 45400) assailing the Orders42 of the lower court
dated 22 July 1997 and 27 August 1997.
In an Order dated 29 October 1997, the lower court: (1)
ordered the striking out from the record of the Answer ex
abudanti cautela filed by petitioners Mapalo and Chito
Rosete for their continued unjustified refusal to be sworn
pursuant to Rule 29 of the 1997 Rules of Civil Procedure
(2) declared defendants Mapalo and Chito Rosete in
default and I allowed plaintiffs43 to present their evidence ex

parte as regards the latter. On 25 November 1997,
petitioners filed an Urgent Exparte Omnibus Motion (1)
For Reconsideration (2) To Lift Order of Default and (3)
To Hold In44
Abeyance Presentation of Plaintiffs Evidence
Ex Parte. The day 45
after, petitioners filed an Amended
Omnibus Motion.
On 28 November 1997, respondents filed a Motion 46
to Set
Case for Ex Parte Presentation of Evidence47
which the
lower court set for 11 December 1997.
_______________
39 Id., pp. 10531055.

40 Id., pp. 10721077.
41 Id., pp. 10781087.
42 CA Rollo, pp. 2111.
43 Records, Vol. 3, pp. 12051207.
44 Id., pp. 12131222.
45 Id., pp. 12231233.
46 Id., pp. 12351237.
47 Id., p. 1257.
133
VOL. 490, JUNE 8, 2006 133

Rosete vs. Lim
In an Order dated 11 December 1997, the lower 48court

denied petitioners urgent ex parte omnibus motion. On
even date, the ex parte presentation of evidence against
49
petitioners Mapalo and Chito Rosete was terminated. 50
On 10 February 1998, petitioners filed a Petition for
Certiorari and Prohibition before the Court of Appeals (CA
G.R. SP No. 46774) questioning the lower courts
51
Orders
dated 29 October 1997 and 11 December 1997.
On 24 August 1998, the Court of Appeals dismissed the
Petition for Certiorari and Prohibition, and upheld the
Orders of the lower court dated 22 July 52
1997 and 27
August 1997 (CAG.R.
53
SP No. 45400).
54
The Motion for
Reconsideration which was 55
opposed by respondents was
denied on 19 October 1998.
Petitioners assail the ruling of the Court of Appeals via
a Petition for Review on Certiorari. They anchor their
petition on the following grounds:
I.
THE TRIAL COURT ERRED AND ACTED IN GRAVE ABUSE

OF DISCRETION AMOUNTING TO LACK OF OR IN EXCESS
OF JURISDICTION IN DECLARING IN ITS ORDER DATED
AUGUST 27, 1997 THAT THE CONSTITUTIONAL RIGHT
AGAINST SELF INCRIMINATION OF OSCAR MAPALO AND
CHITO ROSETE WOULD NOT BE VIOLATED BY THE
TAKING OF THEIR DEPO
_______________
48 Id., pp. 12641265.

49 Id., p. 1267.
50 The Court of Appeals dismissed the petition for certiorari on 30 April
1999 and the motion for reconsideration was denied on 25 January 2000.
On appeal to the Supreme Court, the appeal was denied on 29 May 2000.
51 Records, Vol. 4, pp. 13231361.
52 CA Rollo, pp. 140158.
53 Id., pp. 159166.
54 Id., pp. 204208.
55 Id., p. 221.
134

Rosete vs. Lim
SITION IN THE CIVIL CASE FILED IN THE LOWER COURT

ALTHOUGH THEY ARE ALSO RESPONDENTS OR
DEFENDANTS IN THE AFOREMENTIONED CRIMINAL
CASES FILED BY HEREIN PRIVATE RESPONDENT JULIANO
LIM INVOLVING THE SAME OR IDENTICAL SET OF FACTS
AND
II.
THE TRIAL COURT ERRED AND ACTED IN GRAVE

ABUSE OF DISCRETION AMOUNTING TO LACK OF OR IN
EXCESS OF JURISDICTION IN DECLARING IN ITS ORDER
DATED JULY 22, 1997 THAT (A) THE NOTICE TO TAKE
DEPOSITION UPON ORAL EXAMINATION NEED NOT BE
WITH LEAVE OF COURT BECAUSE AN ANSWER EX
ABUDANTE CAUTELA HAS BEEN FILED AND (B) JOINDER
OF ISSUES IS NOT REQUIRED
56
IN ORDER THAT THE
SECTION 1, RULE 23 OF THE RULES OF CIVIL
PROCEDURE MAY BE AVAILED OF.
Petitioners argue that the Court of Appeals gravely erred

when it found that the trial court did not abuse its
discretion when it refused to recognize petitioners Oscar

Mapalo and Chito Rosetes constitutional right against self
incrimination when, through its Orders dated 22 July 1997
and 27 August 1997, it allowed and scheduled the taking of
their depositions by way of oral examination. They explain
they refuse to give their depositions due to the pendency of
two criminal cases against them, namely, Batas Pambansa
Blg. 22 and Estafa, because their answers would expose
them to criminal action or liability since they would be
furnishing evidence against themselves in said criminal
cases. They allege there can be no doubt that the questions
to be asked during the taking of the deposition would
revolve around the allegations in the complaint in the civil
case which are identical to the allegations in the complaint
affidavits in the two criminal cases, thus, there is a
tendency to incriminate both Oscar Mapalo and Chito
Rosete. Moreover, they explain that while an ordinary
witness may be compelled to take the witness stand and
claim the
_______________
56 Now Section 1, Rule 23 of the 1997 Rules of Civil Procedure.
135
VOL. 490, JUNE 8, 2006 135

Rosete vs. Lim
privilege against selfincrimination as each question

requiring an incriminating answer is shot at him, an
accused may altogether refuse to answer any and all
questions because the right against selfincrimination
includes the right to refuse to testify.
In short, petitioners Mapalo and Chito Rosete refuse to
have their depositions taken in the civil case because they
allegedly would be incriminating themselves in the
criminal cases because the testimony that would be elicited
from them may be used in the criminal cases. As
defendants in the civil case, it is their claim that to allow
their depositions to be taken would violate their
constitutional right against selfincrimination because said
right includes the right to refuse to take the witness stand.
In order to resolve this issue, we must determine the
extent of a persons right against selfincrimination. A
persons right against selfincrimination is enshrined in
Section 17, Article III of the 1987 Constitution which reads:
No person shall be compelled to be a witness against

himself.
The right against selfincrimination is accorded to every
person who gives evidence, whether voluntary or under
compulsion of subpoena, in any civil, criminal or
administrative proceeding. The right is not to be compelled
to be a witness against himself. It secures to a witness,
whether he be a party or not, the right to refuse to answer
any particular incriminatory question, i.e., one the answer
to which has a tendency to incriminate him for some crime.
However, the right can be claimed only when the specific
question, incriminatory in character, is actually put to the
witness. It cannot be claimed at any other time. It does not
give a witness the right to disregard a subpoena, decline to
appear before the court at the time appointed, or to refuse
to testify altogether. The witness receiving a subpoena
must obey it, appear as required, take the stand, be sworn
and answer questions. It is only when a particular question
is addressed to which may incriminate
136

Rosete vs. Lim
himselfforsomeoffensethathemayrefusetoansweronthe
57
strength of the constitutional guaranty.
As to an accused in a criminal case, it is settled that he
can refuse outright
58
to take the stand as a witness. In
People v. Ayson, this Court clarified the rights of an
accused in the matter of giving testimony or refusing to do
so. We said:
An accused occupies a different tier of protection from an

ordinary witness. Under the Rules of Court, in all criminal
prosecutions the defendant is entitled among others
1) to be exempt from being a witness against himself, and
2) to testify as witness in his own behalf but if he offers
himself as a witness he may be crossexamined as any other
witness however, his neglect or refusal to be a witness shall not
in any manner prejudice or be used against him.
The right of the defendant in a criminal case to be exempt
from being a witness against himself signifies that he cannot be
compelled to testify or produce evidence in the criminal case in
which he is the accused, or one of the accused. He cannot be
compelled to do so even by subpoena or other process or order of
the Court. He cannot be required to be a witness either for the
prosecution, or for a coaccused, or even for himself. In other
wordsunlike an ordinary witness (or a party in a civil action)

who may be compelled to testify by subpoena, having only the
right to refuse to answer a particular incriminatory question at
the time it is put to himthe defendant in a criminal action can
refuse to testify altogether. He can refuse to take the witness
stand, be sworn, answer any question. x x x (Italics supplied.)
It is clear, therefore, that only an accused in a criminal

case can refuse to take the witness stand. The right to
refuse to take the stand does not generally apply to parties
in administrative cases or proceedings. The parties thereto
can only refuse to answer if incriminating questions are
pro
_______________
57 People v. Ayson, G.R. No. 85215, 7 July 1989, 175 SCRA 216, 226
227.
58 Id., pp. 232233.
137
VOL. 490, JUNE 8, 2006 137

Rosete vs. Lim
pounded. This Court applied the exceptiona party who is

not an accused in a criminal case is allowed not to take the
witness standin administrative cases/proceedings that
partook of the nature of a59criminal proceeding or analogous
to a criminal proceeding. It is likewise the opinion of the
Court that said exception applies to parties in civil actions
which are criminal in nature. As long as the suit is
criminal in nature, the party thereto can altogether decline
to take the witness stand. It is not the character of the suit
60
involved but the nature of the proceedings that controls.
In the Ayson case, it is evident that the Court treats a
party in a civil case as an ordinary witness, who can invoke
the right against selfincrimination only when the
incriminating question is propounded. Thus, for a party in
a civil case to possess the right to refuse to take the witness
stand, the civil case must also partake of the nature of a
criminal proceeding.
In the present controversy, the case is civil it being a
suit for Annulment, Specific Performance with Damages.
In order for petitioners to exercise the right to refuse to
take the witness stand and to give their depositions, the
case must partake of the nature of a criminal proceeding.
The case on hand certainly cannot be categorized as such.
The fact that there are two criminal cases pending which
are allegedly based on the same set of facts as that of the
civil case will not give them the right to refuse to take the
witness stand and to give their depositions. They are not
facing criminal charges in the civil case. Like an ordinary
witness, they can invoke the right against self
incrimination only when the incriminating question is
actually asked of them. Only if and when incriminating
questions are thrown their way can they refuse to answer
on the ground of their right against selfincrimination.
_______________
59 Cabal v. Hon. Kapunan, Jr., 116 Phil. 1361, 13671368 6 SCRA

1059, 1063 (1962) Pascual, Jr. v. Board of Medical Examiners, 138 Phil.
361, 363 28 SCRA 344, 348 (1969).
60 Galman v. Pamaran, G.R. Nos. L7120809 and L7121213, 30
August 1985, 138 SCRA 294, 323.
138

Rosete vs. Lim
On the second assigned error, petitioners contend that the

taking of their oral depositions should not be allowed
without leave of court as no answer has yet been served
and the issues have not yet been joined because their
answers were filed ex abudanti cautela pending final
resolution of the petition for certiorari challenging the trial
courts Orders dated 12 March 1996 and 24 May 1996 that
denied their motions to dismiss and for reconsideration,
respectively. 61
Section 1 of Rule 24 of the Revised Rules of Court
reads:
Section 1. Depositions pending action, when may be taken.By

leave of court after jurisdiction has been obtained over any
defendant or over property which is the subject of the action, or
without such leave after an answer has been served, the
testimony of any person, whether a party or not, may be taken, at
the instance of any party, by deposition upon oral examination or
written interrogatories. The attendance of witnesses may be
compelled by the use of a subpoena as provided in Rule 23.
Depositions shall be taken only in accordance with these rules.
The deposition of a person confined in prison may be taken only
by leave of court on such terms as the court prescribes.
From the quoted section, it is evident that once an answer

has been served, the testimony of a person, whether a party
or not, may be taken by deposition upon oral examination
or written interrogatories. In the case before us, petitioners
contend they have not yet served an answer to respondents
because the answers that they have filed with the trial
court were made ex abudanti cautela. In other words, they
do not consider the answers they filed in court and served
on respondents as answers contemplated by the Rules of
Court on the ground that same were filed ex abudanti
cautela.
We find petitioners contention to be untenable. Ex
abudanti cautela means out of abundant caution or to be
on the
_______________
61 Substantially reproduced in 1997 RULES OF CIVIL PROCEDURE,

Rule 23, Section 1.
139
VOL. 490, JUNE 8, 2006 139

Rosete vs. Lim
62
safe side. An answer ex abudanti cautela does not make
their answer less of an answer. A cursory look at the
answers filed by petitioners shows that they contain their
respective defenses. An answer is a pleading
63
in which a
defending party sets forth his defenses and the failure to
file one within the time allowed herefore may 64cause a
defending party to be declared in default. Thus,
petitioners, knowing fully well the effect of the nonfiling of
an answer, filed their answers despite the pendency of
their appeal with the Court of Appeals on the denial of
their motion to dismiss.
Petitioners argument that the issues of the case have
not yet been joined must necessarily fail in light of our
ruling that petitioners have filed their answers although
the same were made ex abudanti cautela. Issues are joined
when all the parties have pleaded their respective theories65
and the terms of the dispute are plain before the court. In
the present case, the issues have, indeed, been joined when
petitioners, as well as the other defendants, filed their
answers. The respective claims and defenses of the parties
have been defined and the issues to be decided by the trial
court have been laid down.
We cannot also sustain petitioners contention that the

lower court erred when it said that the joinder of issues is
not required in order that Section 1, Rule 23 of the 1997
Rules of Civil Procedure may be availed of. Under said
section, a deposition pending action may be availed of: (1)
with leave of court when an answer has not yet been filed
but after jurisdiction has been obtained over any defendant
or property subject of the action, or (2) without leave of
court after an answer to the complaint has been served. In
the instant case, the taking of the deposition may be
availed of even without leave of court because petitioners
have already served their answers to the complaint.
_______________
62 Blacks Law Dictionary, 8th Ed., p. 600.

63 1997 RULES OF CIVIL PROCEDURE, Rule 6, Section 4.
64 1997 RULES OF CIVIL PROCEDURE, Rule 9, Section 3.
65 The 2002 Revised Manual For Clerks of Court, Vol. 1, p. 250.
140

Ancheta vs. GuerseyDalaygon
WHEREFORE, all the foregoing considered, the instant

petition is dismissed for lack of merit.
SO ORDERED.
Panganiban (C.J., Chairperson), AustriaMartinez

and Callejo, Sr., JJ., concur.
YnaresSantiago, J., On Leave.
Petition dismissed.
Note.While appellants could not have been compelled

to be witnesses against themselves, they waived this right
by voluntary taking the witness stand. (People vs. Ventura,
433 SCRA 389 [2004])
o0o
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8/21/2016 SUPREMECOURTREPORTSANNOTATEDVOLUME490

ALFREDO P. ROSETE, OSCAR P. MAPALO and CHITO

Criminal Procedure Rights of the Accused Self

126 SUPREME COURT REPORTS ANNOTATED

Rosete vs. Lim

tendency to incriminate him for some crime. However, the right

Same Same Same Under the Rules of Court, in all criminal

VOL. 490, JUNE 8, 2006 127

Rosete vs. Lim

PETITION for review on certiorari of the decision and

Before Us is a petition for1 review on certiorari which seeks

1 CA Rollo, pp. 140158 Penned by Associate Justice Artemon D. Luna

128 SUPREME COURT REPORTS ANNOTATED

against AFP Retirement and Separation Benefits System

favor of Espreme Realty and the titles thereof under the

5 Records, Vol. 1, pp. 145.

VOL. 490, JUNE 8, 2006 129

In an Order dated 12 March 1996, the Motions

On 7 June 1996, petitioners

14 Id., pp. 186189.

130 SUPREME COURT REPORTS ANNOTATED

On 7 August 1996, petitioner Chito Rosete filed a motion

On 28 May 1997, respondents filed a Notice to Take

27 Records, Vol. 2, pp. 608611.

VOL. 490, JUNE 8, 2006 131

Motion to Serve Supplemental Allegation Against

allegations of fact in the complaintaffidavits in the said

33 Id., pp. 858864.

132 SUPREME COURT REPORTS ANNOTATED

Motion for Reconsideration, and scheduled

default and I allowed plaintiffs43 to present their evidence ex

39 Id., pp. 10531055.

VOL. 490, JUNE 8, 2006 133

In an Order dated 11 December 1997, the lower 48court

THE TRIAL COURT ERRED AND ACTED IN GRAVE ABUSE

48 Id., pp. 12641265.

134 SUPREME COURT REPORTS ANNOTATED

SITION IN THE CIVIL CASE FILED IN THE LOWER COURT

THE TRIAL COURT ERRED AND ACTED IN GRAVE

Petitioners argue that the Court of Appeals gravely erred

discretion when it refused to recognize petitioners Oscar

56 Now Section 1, Rule 23 of the 1997 Rules of Civil Procedure.

VOL. 490, JUNE 8, 2006 135

privilege against selfincrimination as each question

No person shall be compelled to be a witness against

136 SUPREME COURT REPORTS ANNOTATED

An accused occupies a different tier of protection from an

wordsunlike an ordinary witness (or a party in a civil action)

It is clear, therefore, that only an accused in a criminal

VOL. 490, JUNE 8, 2006 137

pounded. This Court applied the exceptiona party who is

59 Cabal v. Hon. Kapunan, Jr., 116 Phil. 1361, 13671368 6 SCRA

138 SUPREME COURT REPORTS ANNOTATED

On the second assigned error, petitioners contend that the

Section 1. Depositions pending action, when may be taken.By

From the quoted section, it is evident that once an answer

61 Substantially reproduced in 1997 RULES OF CIVIL PROCEDURE,

VOL. 490, JUNE 8, 2006 139

We cannot also sustain petitioners contention that the