IV (b).

Use of deposition under Section 4, Rule 23 and as a former testimony under Section 47, Rule 130

Since the present consolidation did not affect Civil Case No. 0130 as an original, albeit incidental, case,
the admissibility of the Bane deposition cannot avoid being measured against the requirements of
Section 47, Rule 130 of the Rules of Court – the rule on the admissibility of testimonies or deposition
taken in a different proceeding. In this regard, the petitioner argues that Section 4, Rule 23 of the Rules
of Court (then Rule 24)[110] must, at any rate, prevail over Section 47, Rule 130[111] of the same Rules.

At the outset, we note that when the petitioner’s motion to adopt the testimonies taken in the incident
cases drew individual oppositions from the respondents, the petitioner represented to the
Sandiganbayan its willingness to comply with the provisions of Section 47, Rule 130 of the Rules of
Court,[112] and, in fact, again presented some of the witnesses. The petitioner’s about-face two years
thereafter even contributed to the Sandiganbayan’s own inconsistency on how to treat the Bane
deposition, in particular, as evidence.

Section 4, Rule 23 of the Rules of Court on “Deposition Pending Action” (deposition de bene esse)
provides for the circumstances when depositions may be used in the trial, or at the hearing of a motion
or an interlocutory proceeding.

SEC. 4. Use of depositions. — At the trial or upon the hearing of a motion or 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 one of the following provisions:

xxxx

(c) The deposition of a witness, whether or not a party, may be used by any partyfor 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 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[.] [emphasis ours]

On the other hand, Section 47, Rule 130 of the Rules of Court provides:

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.

A plain reading of Rule 23 of the Rules of Court readily rejects the petitioner’s position that the Bane
deposition can be admitted into evidence without observing the requirements of Section 47, Rule 130 of
the Rules of Court.
Before a party can make use of the deposition taken at the trial of a pending action, Section 4, Rule 23
of the Rules of Court does not only require due observance of its sub-paragraphs (a) to (d); it also
requires, as a condition for admissibility, compliance with “the rules on evidence.” Thus, even Section 4,
Rule 23 of the Rules of Court makes an implied reference to Section 47, Rule 130 of the Rules of Court
before the deposition may be used in evidence. By reading Rule 23 in isolation, the petitioner failed to
recognize that the principle conceding admissibility to a deposition under Rule 23 should be consistent
with the rules on evidence under Section 47, Rule 130.[113] In determining the admissibility of the Bane
deposition, therefore, reliance cannot be given on one provision to the exclusion of the
other; both provisions must be considered. This is particularly true in this case where the evidence in
the prior proceeding does not simply refer to a witness’ testimony in open court but to a deposition
taken under another and farther jurisdiction.

A common thread that runs from Section 4, Rule 23 of the Rules of Court and Section 47, Rule 130 of the
same Rules is their mutual reference to depositions.

A deposition is chiefly a mode of discovery whose primary function is to supplement the pleadings for
the purpose of disclosing the real points of dispute between the parties and affording an adequate
factual basis during the preparation for trial.[114]Since depositions are principally made available to the
parties as a means of informing themselves of all the relevant facts, depositions are not meant as
substitute for the actual testimony in open court of a party or witness. Generally, the deponent must
be presented for oral examination in open court at the trial or hearing. This is a requirement of the rules
on evidence under Section 1, Rule 132 of the Rules of Court.[115]

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 set forth therein, in lieu of the actual oral testimony of
the deponent in open court, may be opposed by the adverse party and excluded under the hearsay rule
– i.e., that the adverse party had or has no opportunity to cross-examine the deponent at the time that
his testimony is offered. That opportunity for cross-examination was afforded during the taking of the
deposition alone is no argument, as the opportunity for cross-examination must normally be accorded
a party at the time that the testimonial evidence is actually presentedagainst him during the trial or
hearing of a case.[116] However, under certain conditions and for certain limited purposes laid down in
Section 4, Rule 23 of the Rules of Court, the deposition may be used without the deponent being
actually called to the witness stand.[117]

Section 47, Rule 130 of the Rules of Court is an entirely different provision.While a former testimony or
deposition appears under the Exceptions to the Hearsay Rule, the classification of former testimony or
deposition as an admissible hearsay is not universally conceded.[118] A fundamental characteristic of
hearsay evidence is the adverse party’s lack of opportunity to cross-examine the out-of-court declarant.
However, Section 47, Rule 130 explicitly requires, inter alia, for the admissibility of a former testimony or
deposition that the adverse party must have had an opportunity to cross-examine the witness or the
deponent in the prior proceeding.

This opportunity to cross-examine though is not the ordinary cross-examination[119] afforded an adverse
party in usual trials regarding “matters stated in the direct examination or connected therewith.”
Section 47, Rule 130 of the Rules of Court contemplates a different kind of cross-examination, whether
actual or a mere opportunity, whose adequacy depends on the requisite identity of issues in the former
case or proceeding and in the present case where the former testimony or deposition is sought to be
introduced.

Section 47, Rule 130 requires that the issues involved in both cases must, at least, be substantially the
same; otherwise, there is no basis in saying that the former statement was - or would have been -
sufficiently tested by cross-examination or by an opportunity to do so.[120] (The requirement of similarity
though does not mean that all the issues in the two proceedings should be the same.[121] Although some
issues may not be the same in the two actions, the admissibility of a former testimony on an issue which
is similar in both actions cannot be questioned.[122])

These considerations, among others, make Section 47, Rule 130 a distinct rule on evidence and
therefore should not be confused with the general provisions on deposition under Rule 23 of the Rules
of Court. In other words, even if the petitioner complies with Rule 23 of the Rules of Court on the use of
depositions, the observance of Section 47, Rule 130 of the Rules of Court cannot simply be avoided or
disregarded.

Undisputably, the Sandiganbayan relied on the Bane deposition, taken in Civil Case No. 0130, for
purposes of this very same case. Thus, what the petitioner established andwhat the Sandiganbayan
found, for purposes of using the Bane deposition, refer only to the circumstances laid down under
Section 4(c), Rule 23 of the Rules of Court, not necessarily to those of Section 47, Rule 130 of the Rules
of Court, as a distinct rule on evidence that imposes further requirements in the use of depositions in
a different case or proceeding. In other words, the prior use of the deposition under Section 4(c), Rule
23 cannot be taken as compliance with Section 47, Rule 130 which considers the same deposition as
hearsay, unless the requisites for its admission under this rule are observed. The aching question is
whether the petitioner complied with the latter rule.

Section 47, Rule 130 of the Rules of Court lays down the following requisites for the admission of a
testimony or deposition given at a former case or proceeding.

1. The testimony or deposition of a witness deceased or otherwise unable to testify;

2. The testimony was given in a former case or proceeding, judicial or administrative;

3. Involving the same parties;

4. Relating to the same matter;

5. The adverse party having had the opportunity to cross-examine him.[123]

The reasons for the admissibility of testimony or deposition taken at a former trial or proceeding are the
necessity for the testimony and its trustworthiness.[124] However, before the former testimony or
deposition can be introduced in evidence, the proponent must first lay the proper
predicate therefor,[125] i.e., the party must establish the basis for the admission of the Bane deposition in
the realm of admissible evidence. This basis is the prior issue that we must now examine and resolve.

IV (c). Unavailability of witness

(3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment[.]
[emphases ours][126]

The phrase “unable to testify” appearing in both Rule 23 and Rule 130 of the Rules of Court refers to a
physical inability to appear at the witness stand and to give a testimony.[127] Hence notwithstanding the
deletion of the phrase “out of thePhilippines,” which previously appeared in Section 47, Rule 130 of the
Rules of Court,absence from jurisdiction[128] - the petitioner’s excuse for the non-presentation of Bane in
open court - may still constitute inability to testify under the same rule. This is not to say, however, that
resort to deposition on this instance of unavailability will always be upheld. Where the deposition is
taken not for discovery purposes, but to accommodate the deponent, then the deposition should be
rejected in evidence.[129]

Although the testimony of a witness has been given in the course of a former proceeding between the
parties to a case on trial, this testimony alone is not a ground for its admission in evidence. The witness
himself, if available, must be produced in court as if he were testifying de novo since his testimony given
at the former trial is mere hearsay.[130] The deposition of a witness, otherwise available, is also
inadmissible for the same reason.

Indeed, the Sandiganbayan’s reliance on the Bane deposition in the other case (Civil Case No. 0130) is an
argument in favor of the requisite unavailability of the witness. For purposes of the present case (Civil
Case No. 0009), however, the Sandiganbayan would have no basis to presume, and neither can or
should we, that the previous condition, which previously allowed the use of the deposition, remains and
would thereby justify the use of the same deposition in another case or proceeding, even if the other
case or proceeding is before the same court. Since the basis for the admission of the Bane deposition, in
principle, being necessity,[131] the burden of establishing its existence rests on the party who seeks the
admission of the evidence. This burden cannot be supplantedby assuming the continuity of the previous
condition or conditions in light of the general rule against the non-presentation of the deponent in
court.[132]

IV (d). The requirement of opportunity of the adverse party to cross-examine; identity of parties; and
identity of subject matter

The function of cross-examination is to test the truthfulness of the statements of a witness made on
direct examination.[133] The opportunity of cross-examination has been regarded as an essential
safeguard of the accuracy and completeness of a testimony. In civil cases, the right of cross-examination
is absolute, and is not a mere privilege of the party against whom a witness may be called.[134] This right
is available, of course, at the taking of depositions, as well as on the examination of witnesses at the
trial. The principal justification for the general exclusion of hearsay statements and for the admission, as
an exception to the hearsay rule, of reported testimony taken at a former hearing where the present
adversary was afforded the opportunity to cross-examine, is based on the premise that the opportunity
of cross-examination is an essential safeguard[135] against falsehoods and frauds.

In resolving the question of whether the requirement of opportunity to cross-examine has been
satisfied, we have to consider first the required identity of parties as the present opponent to the
admission of the Bane deposition to whom the opportunity to cross-examine the deponent is imputed
may not after all be the same “adverse party” who actually had such opportunity.

To render the testimony of a witness admissible at a later trial or action, the parties to the first
proceeding must be the same as the parties to the later proceeding. Physical identity, however, is not
required; substantial identity[136] or identity of interests[137]suffices, as where the subsequent proceeding
is between persons who represent the parties to the prior proceeding by privity in law, in blood, or in
estate. The term “privity” denotes mutual or successive relationships to the same rights of property.[138]

In the present case, the petitioner failed to impute, much less establish, the identity of interest or privity
between the then opponent, Africa, and the present opponents, the respondents. While Africa is the
son of the late respondent Jose Africa, at most, the deposition should be admissible only against him as
an ETPI stockholder who filed thecertiorari petition docketed as Civil Case No. 0130 (and, unavoidably,
as successor-in-interest of the late respondent Jose Africa). While Africa and the respondents are all ETPI
stockholders, this commonality does not establish at all any privity between them for purposes of
binding the latter to the acts or omissions of the former respecting the cross-examination of the
deponent. The sequestration of their shares does not result in the integration of their rights and
obligations as stockholders which remain distinct and personal to them, vis-a-vis other stockholders.[139]

IV (d1). The respondents’ notice of taking of Bane deposition is insufficient evidence of waiver

The petitioner staunchly asserts that the respondents have waived their right to cross-examine the
deponent for their failure to appear at the deposition-taking despite individual notices previously sent to
them.[140]

In its first Notice to Take Oral Deposition of Mr. Maurice V. Bane dated August 30, 1996,[141] the
petitioner originally intended to depose Mr. Bane on September 25-26 1996. Because it failed to specify
in the notice the purpose for taking Mr. Bane’s deposition, the petitioner sent a Second Amended
Notice to Take Deposition of Mr. Maurice V. Bane Upon Oral Examination where it likewise moved the
scheduled deposition-taking to October 23-26, 1996.

The records show that Africa moved several times for protective orders against the intended deposition
of Maurice Bane.[142] On the other hand, among the respondents, only respondent Enrile appears to
have filed an Opposition[143] to the petitioner’s first notice, where he squarely raised the issue of
reasonability of the petitioner’s nineteen-day first notice. While the Sandiganbayan denied Africa’s
motion for protective orders,[144] it strikes us that no ruling was ever handed down on respondent
Enrile’s Opposition.[145]

It must be emphasized that even under Rule 23, the admission of the deposition upon oral examination
is not simply based on the fact of prior notice on the individual sought to be bound thereby.
In Northwest Airlines v. Cruz, [146] we ruled that -
The provision explicitly vesting in the court the power to order that the deposition shall not be taken
connotes the authority to exercise discretion on the matter. However, the discretion conferred by law is
not unlimited. It must be exercised, not arbitrarily or oppressively, but in a reasonable manner and in
consonance with the spirit of he law. The courts should always see to it that the safeguards for the
protection of the parties and deponents are firmly maintained. As aptly stated by Chief Justice Moran:

. . . . (T)his provision affords the adverse party, as well as the deponent, sufficient protection against
abuses that may be committed by a party in the exercise of his unlimited right to discovery. As a writer
said: "Any discovery involves a prying into another person's affairs — prying that is quite justified if it is
to be a legitimate aid to litigation, but not justified if it is not to be such an aid." For this reason, courts
are given ample powers to forbid discovery which is intended not as an aid to litigation, but merely to
annoy, embarrass or oppress either the deponent or the adverse party, or both. (emphasis ours)

In the present case, not only did the Sandiganbayan fail to rule on respondent Enrile’s Opposition (which
is equally applicable to his co-respondents), it also failed to provide even the bare minimum “safeguards
for the protection of,” (more so) non-parties,[147] and to ensure that these safeguards are firmly
maintained. Instead, the Sandiganbayan simply bought the petitioner’s assertion (that the taking of
Bane deposition is a matter of right) and treated the lingering concerns – e.g., reasonability of the
notice; and the non-party status of the respondents in Civil Case No. 0130 - at whose incident (docketed
as G.R. No. 107789) the Bane deposition was taken - rather perfunctorily to the prejudice of the
respondents.

In conjunction with the order of consolidation, the petitioner’s reliance on the prior notice on the
respondents, as adequate opportunity for cross-examination, cannot override the non-party status of
the respondents in Civil Case No. 0130 – the effect of consolidation being merely for trial. As non-
parties, they cannot be bound by proceedings in that case. Specifically, they cannot be bound by the
taking of the Bane deposition without the consequent impairment of their right of cross-
examination.[148] Opportunityfor cross-examination, too, even assuming its presence, cannot be singled
out as basis for the admissibility of a former testimony or deposition since such admissibility is also
anchored on the requisite identity of parties. To reiterate, although the Sandiganbayan considered the
Bane deposition in resolving Civil Case No. 0130, its action was premised on Africa’s status as a party in
that case where the Bane deposition was taken.

Corollarily, the idea of privity also permeates Rule 23 of the Rules of Court through its Section 5 which
provides:

Effect of substitution of parties. — Substitution of parties does not affect the right to use depositions
previously taken; and, when an action has been dismissed and another action involving the same subject
is afterward brought between the same parties or their representatives or successors in interest, all
depositions lawfully taken and duly filed in the former action may be used in the latter as if originally
taken therefor. [italics and underscoring ours]

In light of these considerations, we reject the petitioner’s claim that the respondents waived their right
to cross-examination when they failed to attend the taking of the Bane deposition. Incidentally, the
respondents’ vigorous insistence on their right to cross-examine the deponent speaks loudly that they
never intended any waiver of this right.
Interestingly, the petitioner’s notice of the deposition-taking relied on Rule 23 of the Rules of Court.
Section 15 of this rule reads:

Deposition upon oral examination; notice; time and place. — A party desiring to take the deposition of
any person upon oral examination shall give reasonable notice in writing to every other party to the
action. The notice shall state 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. On motion of any party upon whom
the notice is served, the court may for cause shown enlarge or shorten the time.

Under this provision, we do not believe that the petitioner could reasonably expect that the individual
notices it sent to the respondents would be sufficient to bind them to the conduct of the then
opponent’s (Africa’s) cross-examination since, to begin with, they were not even parties to the action.
Additionally, we observe that in the notice of the deposition taking, conspicuously absent was any
indication sufficient to forewarn the notified persons that their inexcusable failure to appear at the
deposition taking would amount to a waiver of their right of cross-examination, without prejudice to the
right of the respondents to raise their objections at the appropriate time.[149] We would be treading on
dangerous grounds indeed were we to hold that one not a party to an action,and neither in privity nor
in substantial identity of interest with any of the parties in the same action, can be bound by the
action or omission of the latter, by the mere expedient of a notice. Thus, we cannot simply deduce a
resultant waiver from the respondents’ mere failure to attend the deposition-taking despite notice sent
by the petitioner.

Lastly, we see no reason why the Bane deposition could not have been taken earlier in Civil Case No.
0009 – the principal action where it was sought to be introduced – while Bane was still here in the
Philippines. We note in this regard that the Philippineswas no longer under the Marcos administration
and had returned to normal democratic processes when Civil Case No. 0009 was filed. In fact, the
petitioner’s notice itself states that the “purpose of the deposition is for Mr. Maurice Bane to identify and
testify on the facts set forth in his Affidavit,” which Mr. Bane had long executed in 1991 inMakati,
Metro Manila.[150] Clearly, a deposition could then have been taken - without compromising the
respondents’ right to cross-examine a witness against them - considering that the principal purpose of
the deposition is chiefly a mode of discovery. These, to our mind, are avoidable omissions that, when
added to the deficient handling of the present matter, add up to the gross deficiencies of the
petitioner in the handling of Civil Case No. 0009.

After failing to take Bane’s deposition in 1991 and in view of the peculiar circumstances of this case,
the least that the petitioner could have done was to move for the taking of the Bane deposition and
proceed with the deposition immediately upon securing a favorable ruling thereon. On that occasion,
where the respondents would have a chance to be heard, the respondents cannot avoid a resultant
waiver of their right of cross-examination if they still fail to appear at the deposition-
taking. Fundamental fairness dictates this course of action. It must be stressed that not only were the
respondents non-parties to Civil Case No. 0130, they likewise have no interest in
Africa’scertiorari petition asserting his right as an ETPI stockholder.

Setting aside the petitioner’s flip-flopping on its own representations,[151] this Court can only express
dismay on why the petitioner had to let Bane leave the Philippinesbefore taking his deposition despite
having knowledge already of the substance of what he would testify on. Considering that the testimony
of Bane is allegedly a “vital cog” in the petitioner’s case against the respondents, the Court is left to
wonder why the petitioner had to take the deposition in an incident case (instead of the main case) at a
time when it became the technical right of the petitioner to do so.

x x x."