JUDICIAL AFFIDAVIT RULE (A.M. No.

12-8-8-SC, September 4, 2012)

Judicial Affidavit Rule requires that direct examination of a witness, which is the
examination-in-chief of a witness by the party presenting him on the facts relevant to the
issue, shall be in the form of judicial affidavits, subject to the usual mode of
cross-examination.

When is the Rule effective?

Effectivity Date: Took effect on Jan. 1, 2013
[However, in criminal cases without private prosecutors, the Supreme Court allowed
public prosecutors in first- and second-level courts until the end of 2013 to utilize the
affidavits of the complainant and his witnesses prepared and submitted in connection
with the investigation and filing of the Information in court. Public prosecutors are
required to fully comply with the Rule by 1 January 2014.
During the one-year period when the concession is in effect, the attending public
prosecutor, upon presenting the witness, shall require the witness to affirm what the
sworn statement contains and may only ask the witness additional direct examination
questions that have not been amply covered by the sworn statement.
The concession does not apply in criminal cases where the private complainant is
represented by a duly empowered private prosecutor, who has the obligation to comply
with the Rule.]

Purpose: To avoid case congestion and delays that plague most courts in cities,
given the huge volume of cases filed each year and the slow and cumbersome
adversarial system that the judiciary has in place.

BRIEF HISTORY ON THE ISSUANCE OF THIS RULE.

These reasons for the issuance of the Judicial Affidavit Rule are contained in the
“whereas” clauses of A.M. No. 12-8-8-SC.]

[The JA Rule, was promulgated to address congestion and delays in courts.

Designed to expedite court proceedings, it primarily affects the manner by which
evidence is presented in court,21 particularly with regard to the taking of the
witnesses' testimonies. Consequently, in lieu of direct testimony in court, the
parties are required to submit the judicial affidavits of their witnesses within a
given period. Nevertheless, the JA Rule was not devised to supplant or amend
existing procedural rules; rather, it is designed to supplement and augment them.

About 40% of criminal cases are dismissed annually owing to the fact that complainants
simply give up coming to court after repeated postponements. Few foreign
businessmen make long-term investments in the Philippines because its courts are
unable to provide ample and speedy protection to their investments, THUS keeping its
people poor.
So, In order to reduce the time needed for completing the testimonies of witnesses in
cases under litigation, on 21 February 2012 the Supreme Court approved for piloting by
trial courts in Quezon City the compulsory use of judicial affidavits in place of the direct
testimonies of witnesses. It is reported that such piloting has quickly resulted in reducing
by about two-thirds the time used for presenting the testimonies of witnesses, thus
speeding up the hearing and adjudication of cases. The adoption of the Rule hopes to
replicate nationwide the success of the Quezon City experience in the use of judicial
affidavits.

WHAT IS THE SCOPE OF APPLICATION OF THIS RULE UNDER SECTION 1?

1st let us discuss the kinds of cases or proceedings where the rule will apply.

This Rule shall apply to all actions, proceedings, and incidents requiring the reception of
evidence. However, the Rule shall not apply to small claims cases under A.M. 08-8-7-
SC.

The Rule may apply to criminal cases in three situations, as follows: (1) The maximum
of the imposable penalty does not exceed six years; (2) regardless of the penalty
involved, with respect to the civil aspect of the actions, or where the accused agrees to
the use of the Rule.

NOW LET’S DISCUSS THE COURTS WHERE THE RULE WILL APPLY ALSO
UNDER SECTION 1?

Section 1. Scope. - (a) This Rule shall apply to all actions, proceedings, and incidents
requiring the reception of evidence before:

(1) The Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the
Municipal Trial Courts, the Municipal Circuit Trial Courts, and the Shari' a
Circuit Courts but shall not apply to small claims cases under A.M. 08-8-7-
SC;

(2) The Regional Trial Courts and the Shari'a District Courts;

(3) The Sandiganbayan, the Court of Tax Appeals, the Court of Appeals,
and the Shari'a Appellate Courts;

(4) The investigating officers and bodies authorized by the Supreme Court
to receive evidence, including the Integrated Bar of the Philippine (IBP);
and

(5) The special courts and quasi-judicial bodies, whose rules of procedure
are subject to disapproval of the Supreme Court, insofar as their existing
rules of procedure contravene the provisions of this Rule. 1
 (b) For the purpose of brevity, the above courts, quasi-judicial bodies, or
investigating officers shall be uniformly referred to here as the "court."

Submission of Judicial Affidavits and exhibits in lieu of Direct Testimonies

WHERE
TO WHOM

[The Rule specifies only two manners of service or filing of the affidavit: by
personal service or by licensed courier service. It is interesting that there is no
express mention of “registered mail” and it is logical that the term “courier
service” does not refer to, and does not include, registered mail. The purpose of
the Rule is to expedite cases and there can be no reliance on the presumptive
receipt by reason of registered mail.

There is no overriding reason why registered mail should be removed as a

manner of service/filing. A party could send the judicial affidavit way in advance
by registered mail. It is the party’s lookout if the other party or court indeed
received the judicial affidavit within the prescribed period.

Another minor issue is when is a courier service considered licensed? The rule is
not clear whether a separate license or accreditation for courier service providers
on top of the SEC registration. It appears that other than the usual government
registration, there is no need for separate Supreme Court accreditation.

These issues can be dispensed with by deleting the portion providing for
personal service or by courier. This is surplusage. The intent of the Rule is to
ENSURE receipt of the judicial affidavit by the court and other party at least five
days before the pre-trial or hearing, and the Rule can simply so provide, just like
in pre-trial rules.]

WHEN
[This Rule amends the existing minimum period, which is three days, for
the service and filing of the pre-trial brief. Under the new Rule, considering
that the judicial affidavit must be attached to the pre-trial brief, the latter
must be served and filed within five days.]
WHAT TO SUBMIT

Section 2. Submission of Judicial Affidavits and Exhibits in lieu of direct testimonies. -

(a) The parties shall file with the court and serve on the adverse party, personally or by
licensed courier service, not later than five days before pre-trial or preliminary
conference or the scheduled hearing with respect to motions and incidents, the
following:
 (1) The judicial affidavits of their witnesses, which shall take the place of
such witnesses' direct testimonies; and

(2) The parties' docun1entary or object evidence, if any, which shall be

attached to the judicial affidavits and marked as Exhibits A, B, C, and so
on in the case of the complainant or the plaintiff, and as Exhibits 1, 2, 3,
and so on in the case of the respondent or the defendant.

(b) Should a party or a witness desire to keep the original document or object
evidence in his possession, he may, after the same has been identified, marked
as exhibit, and authenticated, warrant in his judicial affidavit that the copy or
reproduction attached to such affidavit is a faithful copy or reproduction of that
original. In addition, the party or witness shall bring the original document or
object evidence for comparison during the preliminary conference with the
attached copy, reproduction, or pictures, failing which the latter shall not be
admitted.

This is without prejudice to the introduction of secondary evidence in place of the

original when allowed by existing rules.

[Can you submit amended or supplemental affidavits?

There may be instances when it is necessary to execute a supplemental or
amended affidavit, like in the case of newly-discovered evidence.]

WHAT DOES A JUDICIAL AFFIDAVIT CONTAINS?

Contents of Judicial Affidavit:

Section 3. Contents of judicial Affidavit. - A judicial affidavit shall be prepared in the

language known to the witness and, if not in English or Filipino, accompanied by
a translation in English or Filipino, and shall contain the following:

(a) The name, age, residence or business address, and occupation of the
witness;

(b) The name and address of the lawyer who conducts or supervises the
examination of the witness and the place where the examination is being held;

(c) A statement that the witness is answering the questions asked of him, fully
conscious that he does so under oath, and that he may face criminal liability for
false testimony or perjury;

(d) Questions asked of the witness and his corresponding answers,

consecutively numbered, that:
 (1) Show the circumstances under which the witness acquired the facts
upon which he testifies;

(2) Elicit from him those facts which are relevant to the issues that the
case presents; and

(3) Identify the attached documentary and object evidence and establish
their authenticity in accordance with the Rules of Court;

(e) The signature of the witness over his printed name; and

(f) A jurat with the signature of the notary public who administers the oath or an
officer who is authorized by law to administer the same.

[What is a jurat?

A jurat, which is different from an “acknowledgment” as defined under the Rules

on Notarial Practice, refers to an act in which an individual on a single
occasion: (a) appears in person before the notary public and presents an
instrument or document; (b) is personally known to the notary public or
identified by the notary public through competent evidence of identity as
defined by these Rules; (c) signs the instrument or document in the
presence of the notary; and (d) takes an oath or affirmation before the
notary public as to such instrument or document. (Rule 2, Sec. 6 of the 2004
Rules on Notarial Practice, A.M. No. 02-8-13-SC)

It is important to note the strict requirement that, in the execution of the jurat, the
requisite competent evidence of identity must include at least one current
identification document issued by an official agency bearing the photograph and
signature of the individual.

For purposes of comparison, “acknowledgment” refers to an act in which an

individual on a single occasion: (a) appears in person before the notary public
and presents an integrally complete instrument or document; (b) is attested to be
personally known to the notary public or identified by the notary public through
competent evidence of identity as defined by the notarial rules; and (c)
represents to the notary public that the signature on the instrument or document
was voluntarily affixed by him for the purposes stated in the instrument or
document, declares that he has executed the instrument or document as his free
and voluntary act and deed, and, if he acts in a particular representative capacity,
that he has the authority to sign in that capacity.]

Sworn Attestation of the Lawyer

[What is the sworn attestation of the lawyer?

One of the problems with the Rule is the fact that judges only have limited opportunity to
observe the demeanor of the witnesses.

Moreover, even if lawyers briefed the witness, the oral answer given by the witness
during direct examination is almost wholly dependent on the witness. This is no longer
true under this Rule because the lawyer prepares the judicial affidavit which takes the
place of the direct testimony.

Thus, it is now required that the judicial affidavit shall contain a sworn attestation
at the end, executed by the lawyer who conducted or supervised the examination
of the witness, to the effect that:

1. He faithfully recorded or caused to be recorded the questions he asked and the

corresponding answers that the witness gave; and

2. Neither he nor any other person then present or assisting him coached the
witness regarding the latter’s answers.

To put teeth to this prohibition, the Rule provides that a false attestation shall subject
the lawyer mentioned to disciplinary action, including disbarment. There is no
requirement that the lawyer who prepared the judicial affidavit must be the one to
present the witness in court.]

Section 4. Sworn attestation of the lawyer. - (a) The judicial affidavit shall contain a
sworn attestation at the end, executed by the lawyer who conducted or supervised the
examination of the witness, to the effect that:

(1) He faithfully recorded or caused to be recorded the questions he asked

and the corresponding answers that the witness gave; and

(2) Neither he nor any other person then present or assisting him coached
the witness regarding the latter's answers.

(b) A false attestation shall subject the lawyer mentioned to disciplinary action,
including disbarment.

Subpoena

 subpoena duces tecum is a writ summoning a witness to testify orally.

 subpoena duces tecum instructs the witness to bring in hand books, papers, or
evidence for the court.
 Ex parte deposition is a deposition taken without notice in cases of necessity
and in cases where all that is sought in the way of testimony is mere formal proof
or proof of an isolated fact.
Under this section, we will discuss what are the instances that would lead the
requesting party to apply for the issuance of subpoena.
GOVT EMPLOYEE/OFFICIAL or REQUESTED WITNESS (NOT AN ADVERSE
PARTY WITNESS. HOSTILE WITNESS:
1. unjustifiably declines to execute a judicial affidavit; or
2. refuses without just cause to make the relevant books, documents, or other
things under his control available for copying, authentication, and eventual
production in court,

Section 5. Subpoena. - If the government employee or official, or the requested

witness, who is neither the witness of the adverse party nor a hostile witness,
unjustifiably declines to execute a judicial affidavit or refuses without just cause
to make the relevant books, documents, or other things under his control
available for copying, authentication, and eventual production in court, the
requesting party may avail himself of the issuance of a subpoena ad
testificandum or duces tecum under Rule 21 of the Rules of Court. The rules
governing the issuance of a subpoena to the witness in this case shall be the same
as when taking his deposition except that the taking of a judicial affidavit shal1 be
understood to be ex parte.

[There is no need for a judicial affidavit if the witness is called to testify through a
subpoena.]

[On the other hand, this provision expressly applies to requested witnesses who are
neither the witness of the adverse party nor a hostile witness. What’s the reason for the
exclusion? What rule should apply?]

Offer of and Objections to Testimony in Judicial Affidavit

Lets have a comparison between the ROC and JAR on this section.

Under ROC, as regards the testimony of a witness, the offer must be made at the time the
witness is called to testify (Rule 132, Sec. 35 NEW).

While under JAR, (slide), means that the purpose is NOT required to be indicated in the judicial
affidavit.

Under ROC, Objection to a witness may take the form of: (a) a disqualification from testifying;
or (b) to a specific question raised. Under the Rules of Court, objection to a question
propounded in the course of the oral examination of a witness shall be made as soon as the
grounds therefor shall become reasonably apparent (Rule 132, Sec. 36).

While under JAR,(slide)

Section 6. Offer of and objections to testimony in judicial affidavit. - The party
presenting the judicial affidavit of his witness in place of direct testimony shall state the
purpose of such testimony at the start of the presentation of the witness. The adverse
party may move to disqualify the witness or to strike out his affidavit or any of the
answers found in it on ground of inadmissibility. The court shall promptly rule on the
motion and, if granted, shall cause the marking of any excluded answer by placing it in
brackets under the initials of an authorized court personnel, without prejudice to a
tender of excluded evidence under Section 40 of Rule 132 of the Rules of Court.

Examination of the Witness on his Judicial Affidavit

[How does the Judicial Affidavit Rule affect the rules on examination of witness?]

Section 7. Examination of the witness on his judicial affidavit. - The adverse party shall
have the right to cross-examine the witness on his judicial affidavit and on the exhibits
attached to the same. The party who presents the witness may also examine him as on
re-direct. In every case, the court shall take active part in examining the witness to
determine his credibility as well as the truth of his testimony and to elicit the answers
that it needs for resolving the issues.

Oral Offer and Objections to Exhibits

Section 8. Oral offer of and objections to exhibits. - (a) Upon the termination of the
testimony of his last witness, a party shall immediately make an oral offer of evidence
of his documentary or object exhibits, piece by piece, in their chronological order,
stating the purpose or purposes for which he offers the particular exhibit.

(b) After each piece of exhibit is offered, the adverse party shall state the legal
ground for his objection, if any, to its admission, and the court shall immediately
make its ruling respecting that exhibit.

(c) Since the documentary or object exhibits form part of the judicial
affidavits that describe and authenticate them, it is sufficient that such
exhibits are simply cited by their markings during the offers, the objections, and
the rulings, dispensing with the description of each exhibit.

Application of Rule to Criminal Actions /

Process of submission:
[In what instances does the Judicial Affidavit Rule apply in criminal actions? Sec.
9 A]
Process of submission (for the accused) [Procedure for the application of the
Judicial Affidavit Rule to criminal actions Sec. 9 B & C]

The Judicial Affidavit Rule also applies to criminal actions or cases, aside from
those kinds of cases earlier discussed in section 1 scope.
General rule in submitting or filing a JA in lieu of direct testimony is reiterated
under section 2. But in this section 9, it is applicable only to the prosecution.
Section 9 is the only portion of the Rule that provides a separate provision for
criminal cases from cases under section 2, veering from the simultaneous filing
of judicial affidavits by the parties.

Now what if the accused desires to be heard on his defense. So there is also a
procedure for the submission of JA and exhibits in lieu of direct testimonies by
the ACCUSED

[ACCUSED] These affidavits shall serve as direct testimonies of the accused and
his witnesses when they appear before the court to testify.

Section 9. Application of rule to criminal actions. - (a) This rule shall apply to all criminal
actions:

(1) Where the maximum of the imposable penalty does not exceed six
years;

(2) Where the accused agrees to the use of judicial affidavits, irrespective
of the penalty involved; or

(3) With respect to the civil aspect of the actions, whatever the penalties
involved are.

(b) 1 The prosecution shall submit the judicial affidavits of its witnesses not later
than five days before the pre-trial, serving copies if the same upon the accused.
2 The complainant or public prosecutor shall attach to the affidavits such
documentary or object evidence as he may have, marking them as Exhibits A, B,
C, and so on. No further judicial affidavit, documentary, or object evidence shall
be admitted at the trial.

(c) 3 If the accused desires to be heard on his defense after receipt of the judicial
affidavits of the prosecution, he shall have the option to submit his judicial
affidavit as well as those of his witnesses to the court within ten days from receipt
of such affidavits and serve a copy of each on the public and private prosecutor,
including his documentary and object evidence previously marked as Exhibits 1,
2, 3, and so on. (Note) These affidavits shall serve as direct testimonies of the
accused and his witnesses when they appear before the court to testify.

Effect of Non-Compliance with the Judicial Affidavit Rule

[What is the effect if a party fails to submit the required affidavits and exhibits on
time? Sec. 10 A]
[What is the effect if a witness or counsel fails to appear at the scheduled hearing
of the case as required? Sec. 10 B]
[What is the effect of the judicial affidavits do not conform to the requirements of
Sections 3 and 4 of the JAR? Sec 10 C]

Section 10. Effect of non-compliance with the judicial Affidavit Rule. - (a) A party who
fails to submit the required judicial affidavits and exhibits on time shall be deemed to
have waived their submission. The court may, however, allow only once the late
submission of the same provided, 1 the delay is for a valid reason, 2 would not unduly
prejudice the opposing party, and 3 the defaulting party pays a fine of not less
than P 1,000.00 nor more than P 5,000.00 at the discretion of the court.

(b) The court shall not consider the affidavit of any witness who fails to appear at
the scheduled hearing of the case as required. Counsel who fails to appear
without valid cause despite notice shall be deemed to have waived his client's
right to confront by cross-examination the witnesses there present.

(c) GR: The court shall not admit as evidence judicial affidavits that do not
conform to the content requirements of Section 3 and the attestation requirement
of Section 4 above.

EXC: The court may, however, allow only once the subsequent submission of the
compliant replacement affidavits before the hearing or trial provided 1 the delay
is for a valid reason and 2 would not unduly prejudice the opposing party and
provided further, 3 that public or private counsel responsible for their preparation
and submission pays a fine of not less than P 1,000.00 nor more
than P 5,000.00, at the discretion of the court.

NON-COMPLIANCE EFFECT
Failure to submit the required judicial It is DEEMED A WAIVER of the
affidavits and exhibits on time submission:

However, the court may allow ONLY

once the late submission of the
required judicial affidavits and exhibits
provided:
1. The delay is for a valid reason;
2. It would not unduly prejudice the
opposing party; and
3. The defaulting party pays a fine not
less than P 1,000 nor more than P
5,000 at the discretion of the court.
Failure to appear at the scheduled The court shall not consider the
hearing of the case as required. affidavit of any witness.
Failure of counsel to appear without a It is a DEEMED A WAIVER of his
valid cause despite notice. client’s right to confront by cross-
examination the witness there present.
 Judicial affidavits do not conform to The court shall not admit as evidence
the content requirements of Section 3 judicial affidavits.
and the attestation requirement of
Section 4. However, the court may allow ONLY
once the subsequent submission of
the complaint replacement affidavits
before the hearing or trial, provided:
1. The delay is for a valid reason;
2. It would not unduly prejudice the
opposing party; and
3. Public or private counsel
responsible for their preparation and
submission pays a fine not less than P
1,000 nor more than P 5,000 at the
discretion of the court.

Effect of the JAR on other existing rules

Section 11. Repeal or modification of inconsistent rules. - The provisions of the Rules

of Court and the rules of procedure governing investigating officers and bodies
authorized by the Supreme Court to receive evidence are repealed or modified insofar
as these are inconsistent with the provisions of this Rule.1âwphi1

The rules of procedure governing quasi-judicial bodies inconsistent herewith are hereby

disapproved.

Xxx

G.R. No. 214054, August 05, 2015

NG MENG TAM, Petitioner, v. CHINA BANKING CORPORATION, Respondent.

DECISION

VILLARAMA, JR., J.:

Before this Court is a direct recourse from the Regional Trial Court (RTC) via
petition1 for review on the question of whether Section 52 of the Judicial Affidavit Rule
(JAR) applies to hostile or adverse witnesses.  The petition seeks to annul and set aside
the May 28, 20143 and August 27, 20144 Orders of the RTC, Branch 139, Makati City in
Civil Case No. 08-1028.
This case stemmed from a collection suit filed by China Banking Corporation (China
Bank) against Ever Electrical Manufacturing Company Inc. (Ever), the heirs of Go Tong,
Vicente Go, George Go and petitioner Ng Meng Tam sometime in December 2008. 
China Bank alleged that it granted Ever a loan amounting to P5,532,331.63.  The loan
was allegedly backed by two surety agreements executed by Vicente, George and
petitioner in its favor, each for P5,000,000.00, and dated December 9, 1993 and May 3,
1995, respectively.  When Ever defaulted in its payment, China Bank sent demand
letters collectively addressed to George, Vicente and petitioner.  The demands were
unanswered.  China Bank filed the complaint for collection docketed as Civil Case No.
08-1028, which was raffled off to RTC Branch 62, Makati City.

In his Answer, petitioner alleged that the surety agreements were null and void since
these were executed before the loan was granted in 2004. Petitioner posited that the
surety agreements were contracts of adhesion to be construed against the entity which
drafted the same.  Petitioner also alleged that he did not receive any demand letter.

In the course of the proceedings, petitioner moved that his affirmative defenses be
heard by the RTC on the ground that the suit is barred by the statute of limitations and
laches.5 The motion was denied by the court.6 On appeal, the Court of Appeals (CA) in
its December 22, 2010 Decision 7 ruled that a preliminary hearing was proper pursuant
to Section 6,8 Rule 16 of the Rules of Court due to the grounds cited by petitioner. 
There being no appeal, the decision became final and executory on August 28,
2011.9redarclaw

On March 15, 2011, petitioner served interrogatories to parties 10 pursuant to Sections

111 and 6,12 Rule 25 of the Rules of Court to China Bank and required Mr. George C.
Yap, Account Officer of the Account Management Group, to answer.

On June 22, 2011, George Yap executed his answers to interrogatories to

parties.13redarclaw

In the meantime, having failed mediation and judicial dispute resolution, Civil Case No.
08-1028 was re-raffled off to RTC Branch 139, Makati City.

Petitioner again moved for the hearing of his affirmative defenses.  Because he found
Yap’s answers to the interrogatories to parties evasive and not responsive, petitioner
applied for the issuance of a subpoena duces tecum and ad testificandum against
George Yap pursuant to Section 6, 14 Rule 25 of the Revised Rules of Court.

On April 29, 2014, when the case was called for the presentation of George Yap as a
witness, China Bank objected citing Section 5 of the JAR.  China Bank said that Yap
cannot be compelled to testify in court because petitioner did not obtain and present
George Yap’s judicial affidavit.  The RTC required the parties to submit their motions on
the issue of whether the preparation of a judicial affidavit by George Yap as an adverse
or hostile witness is an exception to the judicial affidavit rule.15redarclaw
Petitioner contended that Section 5 does not apply to Yap because it specifically
excludes adverse party witnesses and hostile witnesses from its application.  Petitioner
insists that Yap needed to be called to the stand so that he may be qualified as a hostile
witness pursuant to the Rules of Court.

China Bank, on the other hand, stated that petitioner’s characterization of Yap’s
answers to the interrogatories to parties as ambiguous and evasive is a declaration of
what type of witness Yap is.  It theorizes that the interrogatories to parties answered by
Yap serve as the judicial affidavit and there is no need for Yap to be qualified as a
hostile witness.

In its May 28, 2014 Order, the RTC denied for lack of merit petitioner’s motion to
examine Yap without executing a judicial affidavit.  The RTC in interpreting Section 5 of
the JAR stated:LawlibraryofCRAlaw

x x x  The aforementioned provision, which allows the requesting party to avail himself
of the provisions of Rule 21 of the Rules of Court finds applicability to: (a) a government
employee or official, or the requested witness, who is neither the witness of the adverse
party nor a hostile witness and (b) who unjustifiably declines to execute a judicial
affidavit or refuses without just cause to make the relevant books, documents, or other
things under his control available for copying, authentication, and eventual production in
court.

In the case at bar, witness George Yap is being utilized as an adverse witness for the
[petitioner].  Moreover, there was no showing that he unjustifiably declines to execute a
judicial affidavit.  In fact, it was [China Bank]’s counsel who insisted that said witness’
judicial affidavit be taken. Thus, Section 5 of the [JAR] which [petitioner] invoked to
exempt him from the Rule finds no application.  Unless there is contrary ruling on the
matter by the Supreme Court, this court has no choice but to implement the rule as
written.

On this note, this Court also finds no merit on the contention of [China Bank] that the
answer to the written interrogatories by witness George Yap already constitutes his
judicial affidavit. Inasmuch as the Court strictly implemented the [JAR] on the part of
[petitioner], so shall it rule in the same manner on the part of [China Bank].  As correctly
pointed out by [petitioner], the said answer to interrogatories does not comply with
Section 3 of the [JAR] which provides for the contents of the judicial affidavit. 16

In essence, the RTC ruled that Section 5 did not apply to Yap since he was an adverse
witness and he did not unjustifiably decline to execute a judicial affidavit.  It
stated:LawlibraryofCRAlaw

In view of the foregoing, the motion of the [petitioner] that witness George Yap be
examined without executing a Judicial Affidavit is hereby DENIED FOR LACK OF
MERIT.17
Petitioner moved for reconsideration but it was denied by the RTC in its August 27,
2014 Order.18  The RTC reiterated its position and stated:LawlibraryofCRAlaw

It must be pointed out that the [petitioner] [was] the [one] who invoked the provisions of
Section 5 of the [JAR] to compel the attendance of witness George Yap and as such, it
is their duty to show the applicability of the said provisions to the case at bar.  As stated
in the challenged Order, Section 5 of the [JAR] finds applicability to: (a) a government
employee or official, or the requested witness, who is neither the witness of the adverse
party nor a hostile witness and (b) who unjustifiably declines to execute a judicial
affidavit or refuses without just cause to make the relevant books, documents, or other
things under his control available for copying, authentication, and eventual production in
court.  In the case at bar, [petitioner] [does] not deny that witness George Yap is to be
utilized as [his] adverse witness.  On this score alone, it is clear that the provisions
invoked do not apply.19

The RTC stressed that Section 5 of the JAR required the requested witness’ refusal to
be unjustifiable. It stated:LawlibraryofCRAlaw

x x x the [JAR] requires that the refusal must be unjustifiable and without just cause.  It
must be pointed out that [China Bank]’s previous motions to quash the subpoena was
grounded on the claim that having already submitted to this court his sworn written
interrogatories, his being compelled to testify would be unreasonable, oppressive and
pure harassment. Thus, witness’ refusal to testify cannot be considered unjustifiable
since he raised valid grounds.20

Hence, this petition.

Petitioner contends that the RTC committed a grave error when it interpreted Section 5
to include adverse party and hostile witnesses.  Based on the wording of Section 5,
adverse party and hostile witnesses are clearly excluded.

China Bank asserts that Yap neither refused unjustifiably nor without just cause refused
to a judicial affidavit.  It cited the RTC’s August 27, 2014 Order where the court said that
Yap had answered the interrogatories and to compel him to testify in open court would
be “unreasonable, oppressive and pure harassment.”  Moreover, it stated that based on
the language used by Section 2 of the JAR the filing of judicial affidavits is mandatory.

The petition is anchored on the following arguments:LawlibraryofCRAlaw

RTC BR. 139-MAKATI COMMITTED AN ERROR OF LAW WHEN IT INTERPRETED

SEC. 5 OF THE [JAR] CONTRARY TO ITS WORDINGS.

II
RTC BR. 139-MAKATI COMMITTED AN ERROR OF LAW WHEN IT INTERPRETED
SEC. 5 [OF THE JAR] CONTRARY TO ITS PRACTICAL INTENTION AND COMMON
SENSE.

III

RTC BR. 139-MAKATI COMMITTED AN ERROR OF LAW WHEN IT EFFECTIVELY

DISREGARDED THE RELEVANT RULES ON MODE OF DISCOVERY WHICH
GOVERN THE PRESENTATION OF ADVERSE WITNESSES.

IV

ON A POLICY LEVEL AND IN THE EVENT RTC BR. 139-MAKATI’S

INTERPRETATION AND APPLICATION OF SEC. 5 OF THE [JAR] IS CORRECT (I.E.,
THAT OPPOSING PARTY WHO INTENDS TO PRESENT ADVERSE OR HOSTILE
WITNESS MUST GET AND SUBMIT THAT WITNESS’ JUDICIAL AFFIDAVIT NO
MATTER WHAT) IT IS HUMBLY SUBMITTED, WITH THE UTMOST INDULGENCE OF
THE HONORABLE SUPREME COURT, THAT THE SAME RULE BE IMPROVED OR
AMENDED BY PROVIDING SANCTIONS IN THE EVENT THE ADVERSE OR
HOSTILE WITNESS REFUSES TO ANSWER OR EXECUTE JUDICIAL AFFIDAVIT AS
REQUIRED BY THE OPPOSING PARTY.21

We grant the petition.

THE JUDICIAL AFFIDAVIT RULE

APPLIES TO PENDING CASES

On September 4, 2012, the JAR was promulgated to address case congestion and
delays in courts.  To this end, it seeks to reduce the time needed to take witnesses’
testimonies.22  The JAR took effect on January 1, 2013 and would also apply to pending
cases pursuant to Section 12 to wit:LawlibraryofCRAlaw

Sec. 12. Effectivity. – This rule shall take effect on January 1, 2013 following its
publication in two newspapers of general circulation not later than September 15,
2012.  It shall also apply to existing cases.  (Emphasis supplied)

The Court En Banc gave public prosecutors in first and second level courts one year of
modified compliance.23  The JAR thus took full effect on January 1, 2014.

Here, parties were presenting their evidence for the RTC’s consideration when the JAR
took effect.  Therefore, pursuant to Section 12 the JAR applies to the present collection
suit.

SECTION 5 OF THE JAR DOES NOT

APPLY TO ADVERSE PARTY WITNESSES
The JAR primarily affects the manner by which evidence is presented in court.  Section
2(a) of the JAR provides that judicial affidavits are mandatorily filed by parties to a case
except in small claims cases.  These judicial affidavits take the place of direct testimony
in court.  It provides:LawlibraryofCRAlaw

Sec. 2. Submission of Judicial Affidavits and Exhibits in lieu of direct testimonies. –  (a)
The parties shall file with the court and serve on the adverse party, personally or by
licensed courier service, not later than five days before pre-trial or preliminary
conference or the scheduled hearing with respect to motions and incidents, the
following:LawlibraryofCRAlaw

(1) The judicial affidavits of their witnesses, which shall take the place of such
witnesses’ direct testimonies; and

(2) The parties’ documentary or object evidence, if any, which shall be attached to the
judicial affidavits and marked as Exhibits A, B, C, and so on in the case of the
complainant or the plaintiff, and as Exhibits 1, 2, 3, and so on in the case of the
respondent or the defendant.

xxxx

Section 324  of the JAR enumerates the content of a judicial affidavit.

Under Section 10,25 parties are to be penalized if they do not conform to the provisions
of the JAR. Parties are however allowed to resort to the application of a subpoena
pursuant to Rule 21 of the Rules of Court in Section 5 of the JAR in certain situations. 
Section 5 provides:LawlibraryofCRAlaw

Sec. 5. Subpoena. – If the government employee or official, or the requested witness,

who is neither the witness of the adverse party nor a hostile witness, unjustifiably
declines to execute a judicial affidavit or refuses without just cause to make the relevant
books, documents, or other things under his control available for copying,
authentication, and eventual production in court, the requesting party may avail himself
of the issuance of a subpoena ad testificandum or duces tecum under Rule 21 of the
Rules of Court. The rules governing the issuance of a subpoena to the witness in this
case shall be the same as when taking his deposition except that the taking of a judicial
affidavit shal1 be understood to be ex parte.

While we agree with the RTC that Section 5 has no application to Yap as he was
presented as a hostile witness we cannot agree that there is need for a finding that
witness unjustifiably refused to execute a judicial affidavit.

Section 5 of the JAR contemplates a situation where there is a (a) government

employee or official or (b) requested witness who is not the (1) adverse party’s witness
nor (2) a hostile witness.  If this person either (a) unjustifiably declines to execute a
judicial affidavit or (b) refuses without just cause to make the relevant documents
available to the other party and its presentation to court, Section 5 allows the requesting
party to avail of issuance of subpoena ad testificandum or duces tecum under Rule 21
of the Rules of Court.  Thus, adverse party witnesses and hostile witnesses being
excluded they are not covered by Section 5.  Expressio unius est exclusion alterius: the
express mention of one person, thing, or consequence implies the exclusion of all
others.26redarclaw

Here, Yap is a requested witness who is the adverse party’s witness.  Regardless
of whether he unjustifiably declines to execute a judicial affidavit or refuses
without just cause to present the documents, Section 5 cannot be made to apply
to him for the reason that he is included in a group of individuals expressly
exempt from the provision’s application.

The situation created before us begs the question: if the requested witness is the
adverse party’s witness or a hostile witness, what procedure should be followed?

The JAR being silent on this point, we turn to the provisions governing the rules
on evidence covering hostile witnesses specially Section 12, Rule 132 of the Rules
of Court which provides:LawlibraryofCRAlaw

SEC. 12.  [new 13] Party may not impeach his own witness. – Except with respect to
witnesses referred to in paragraphs (d) and (e) of Section 10, the party producing a
witness is not allowed to impeach his credibility.

A witness may be considered as unwilling or hostile only if so declared by the court

upon adequate showing of his adverse interest, unjustified reluctance to testify, or his
having misled the party into calling him to the witness stand.

The unwilling or hostile witness so declared, or the witness who is an adverse party,
may be impeached by the party presenting him in all respects as if he had been called
by the adverse party, except by evidence of his bad character. He may also be
impeached and cross-examined by the adverse party, but such cross-examination must
only be on the subject matter of his examination-in-chief.

Before a party may be qualified under Section 12, Rule 132 of the Rules of Court,
the party presenting the adverse party witness must comply with Section 6, Rule
25 of the Rules of Court which provides:LawlibraryofCRAlaw

SEC. 6.  Effect of failure to serve written interrogatories. – Unless thereafter

allowed by the court for good cause shown and to prevent a failure of justice, a
party not served with written interrogatories may not be compelled by the
adverse party to give testimony in open court, or to give a deposition pending
appeal.

In Afulugencia v. Metropolitan Bank & Trust Co.,27 this Court stated that “in civil cases,
the procedure of calling the adverse party to the witness stand is not allowed, unless
written interrogatories are first served upon the latter.” 28  There petitioners Spouses
Afulugencia sought the issuance of a subpoena duces tecum and ad testificandum to
compel the officers of the bank to testify and bring documents pertaining to the
extrajudicial foreclosure and sale of a certain parcel of land.  Metrobank moved to
quash the issuance of the subpoenas on the ground of non-compliance with Section 6,
Rule 25 of the Rules of Court.  In quashing the issuance of the subpoena, the Court
reminded litigants that the depositions are a mechanism by which fishing expeditions
and delays may be avoided. Further written interrogatories aid the court in limiting
harassment and to focus on what is essential to a case. The Court
stated:LawlibraryofCRAlaw

One of the purposes of the above rule is to prevent fishing expeditions and needless
delays; it is there to maintain order and facilitate the conduct of trial.  It will be presumed
that a party who does not serve written interrogatories on the adverse party beforehand
will most likely be unable to elicit facts useful to its case if it later opts to call the adverse
party to the witness stand as its witness. Instead, the process could be treated as a
fishing expedition or an attempt at delaying the proceedings; it produces no significant
result that a prior written interrogatories might bring.

Besides, since the calling party is deemed bound by the adverse party’s testimony,
compelling the adverse party to take the witness stand may result in the calling party
damaging its own case. Otherwise stated, if a party cannot elicit facts or information
useful to its case through the facility of written interrogatories or other mode of
discovery, then the calling of the adverse party to the witness stand could only serve to
weaken its own case as a result of the calling party’s being bound by the adverse
party’s testimony, which may only be worthless and instead detrimental to the calling
party’s cause.

Another reason for the rule is that by requiring prior written interrogatories, the court
may limit the inquiry to what is relevant, and thus prevent the calling party from straying
or harassing the adverse party when it takes the latter to the stand.

Thus, the rule not only protects the adverse party from unwarranted surprises or
harassment; it likewise prevents the calling party from conducting a fishing expedition or
bungling its own case. Using its own judgment and discretion, the court can hold its own
in resolving a dispute, and need not bear witness to the parties perpetrating unfair court
practices such as fishing for evidence, badgering, or altogether ruining their own cases.
Ultimately, such unnecessary processes can only constitute a waste of the court’s
precious time, if not pointless entertainment.29 (Citation omitted)

In this case, parties, with the approval of the Court, furnished and answered
interrogatories to parties pursuant to Rule 25 of the Rules of Court.  They
therefore complied with Section 6 of Rule 25 of the Rules of Court. Before the
present controversy arose, the RTC had already issued subpoenas for Yap to
testify and produce documents.  He was called to the witness stand when China
Bank interposed its objection for non-compliance with Section 5 of the JAR. 
Having established that Yap, as an adverse party witness, is not within Section 5
of the JAR’s scope, the rules in presentation of adverse party witnesses as
provided for under the Rules of Court shall apply.  In keeping with this Court’s
decision in Afulugencia, there is no reason for the RTC not to proceed with the
presentation of Yap as a witness.

In sum, Section 5 of the JAR expressly excludes from its application adverse
party and hostile witnesses.  For the presentation of these types of witnesses, the
provisions on the Rules of Court under the Revised Rules of Evidence and all
other correlative rules including the modes of deposition and discovery rules
shall apply.

WHEREFORE, the petition is GRANTED.  The May 28, 2014 and August 27, 2014
Orders of the Regional Trial Court, Branch 139, Makati City are
hereby ANNULLED and SET ASIDE.
No pronouncement as to costs.
SO ORDERED.cralawlawlibrary