[T]o account for his sequestered shares in ETPI and to cease and desist from exercising voting rights on the sequestered shares in the special stockholder' meeting to be held on August 12, 1991, from representing himself as a director, officer, employee or agent of ETPI, and from participating, directly or indirectly[,] in the management of ETPI.9
WHEREFORE, it is ordered that an annual stockholders meeting of the [ETPI], for 1992 be held on Friday, November 27, 1992, at 2:00 o'clock in the afternoon, at the ETPI Board Room, Telecoms Plaza, 7th Floor, 316 Gil J. Puyat Avenue, Makati, Metro Manila. x x x The stockholders meeting shall be conducted under the supervision and control of this Court, through Mr. Justice Sabino R. de Leon, Jr. [O]nly the registered owners, their duly authorized representatives or their proxies may vote their corresponding shares.
The following minimum safeguards must be set in place and carefully maintained until final judicial resolution of the question of whether or not the sequestered shares of stock (or in a proper case the underlying assets of the corporation concerned) constitute ill-gotten wealth[.]12
This Court notes that, like in Africa's motion to hold a stockholders meeting (to elect a board of directors), the Sandiganbayan, in the PCGG's petition to hold a stockholders meeting (to amend the articles of incorporation to increase the authorized capital stock), again failed to apply the two-tiered test. On such determination hinges the validity of the votes cast by the PCGG in the stockholders meeting of March 17, 1997. This lapse by the Sandiganbayan leaves this Court with no other choice but to remand these questions to it for proper determination.x x x x
WHEREFORE, this Court Resolved to REFER the petitions at bar to the Sandiganbayan for reception of evidence to determine whether there is a prima facie evidence showing that the sequestered shares in question are ill-gotten and there is an imminent danger of dissipation to entitle the PCGG to vote them in a stockholders meeting to elect the ETPI Board of Directors and to amend the ETPI Articles of Incorporation for the sole purpose of increasing the authorized capital stock of ETPI.
WITNESSES TO BE PRESENTED AND A BRIEF DESCRIPTION OF THEIR TESTIMONIES
(1) Maurice V. Bane '“ representative of Cable and Wireless Limited (C & W) at the time ETPI was organized.x x x x
(2) Mr. Manuel H. Nieto '“ x x x
(3) Ms. Evelyn Singson '“ x x x
(4) Mr. Severino P. Buan, Jr. '“ x x x
(5) Mr. Apolinario K. Medina - x x x
(6) Mr. Potenciano A. Roque '“ x x x
(7) Caesar Parlade - x x x
- In the hearings of the incidents of [Civil Case No. 0009], i.e., Civil Case Nos. 0048, 0050, 0130, 014628 the following witnesses were presented therein:
a. Cesar O.V. Parlade
b. Maurice Bane
c. Evelyn Singson
d. Leonorio Martinez
e. Ricardo Castro; and
f. Rolando Gapud- [The petitioner] wishes to adopt in [Civil Case No. 0009] their testimonies and the documentary exhibits presented and identified by them, since their testimonies and the said documentary exhibits are very relevant to prove the case of the [petitioner] in [Civil Case No. 0009].
- The adverse parties in the aforementioned incidents had the opportunity to cross-examine them.
Wherefore, the [petitioner's] Motion x x x is '“
- partly denied insofar as [the petitioner] prays therein to adopt the testimonies on oral deposition of Maurice V. Bane and Rolando Gapud as part of its evidence in Civil Case No. 0009 for the reason that said deponents according to the [petitioner] are not available for cross-examination in this Court by the [respondents]. (emphasis added)
- partly Granted, in the interest of speedy disposition of this long pending case, insofar as plaintiff prays therein to adopt certain/particular testimonies of Cesar O. Parlade, Evelyn Singson, Leoncio Martinez, and Ricardo Castro and documentary exhibits which said witnesses have identified in incident Civil Case Nos. xxx 0130 xxx, subject to the following conditions :
- xxx
- xxx
- That the said witnesses be presented in this Court so that they can be cross-examined on their particular testimonies in incident Civil Cases xxx [by the respondents].
- An order forthwith be issued re-opening the plaintiff's case and setting the same for trial any day in April 2000 for the sole purpose of introducing additional evidence and limited only to the marking and offering of the [Bane deposition] which already forms part of the records and used in Civil Case No. 0130 x x x;
- In the alternative, x x x the [Sandiganbayan] to take judicial notice of the facts established by the [Bane deposition], together with the marked exhibits appended thereto. [emphasis ours]
Judicial notice is found under Rule 129 which is titled 'What Need Not Be Proved.' Apparently, this provision refers to the Court's duty to consider admissions made by the parties in the pleadings, or in the course of the trial or other proceedings in resolving cases before it. The duty of the Court is mandatory and in those cases where it is discretionary, the initiative is upon the Court. Such being the case, the Court finds the Urgent Motion and/or Request for Judicial Notice as something which need not be acted upon as the same is considered redundant.
On the matter of the [Bane deposition], [its] admission is done through the ordinary formal offer of exhibits wherein the defendant is given ample opportunity to raise objection on grounds provided by law. Definitely, it is not under Article (sic) 129 on judicial notice. [Emphasis ours]
But in the court's view, it is not really a question of whether or not plaintiff has already rested its case as to obviate the further presentation of evidence. It is not even a question of whether the non-appearing defendants are deemed to have waived their right to cross-examine Bane as to qualify the admission of the deposition sans such cross-examination. Indeed, We do not see any need to dwell on these matters in view of this Court's Resolution rendered on April 1, 1998 which already denied the introduction in evidence of Bane's deposition and which has become final in view of plaintiff's failure to file any motion for reconsideration or appeal within the 15-day reglementary period. Rightly or wrongly, the resolution stands and for this court to grant plaintiff's motion at this point in time would in effect sanction plaintiff's disregard for the rules of procedure. Plaintiff has slept on its rights for almost two years and it was only in February of 2000 that it sought to rectify its ineptitude by filing a motion to reopen its case as to enable it to introduce and offer Bane's deposition as additional evidence, or in the alternative for the court to take judicial notice of the allegations of the deposition. But how can such a motion be granted when it has been resolved as early as 1998 that the deposition is inadmissible. Without plaintiff having moved for reconsideration within the reglementary period, the resolution has attained finality and its effect cannot be undone by the simple expedient of filing a motion, which though purporting to be a novel motion, is in reality a motion for reconsideration of this court's 1998 ruling. [emphases ours]
THE PETITION
The petitioner filed the present petition claiming that the Sandiganbayan committed grave abuse of discretion:I.
x x x IN HOLDING THAT ITS INTERLOCUTORY ORDER IN 1998 HAD BECOME FINAL.II.
x x x IN x x x REFUSING TO ADMIT THE BANE DEPOSITION '“WHICH WAS ALREADY ADMITTED AS EVIDENCE IN AN INCIDENT CASE (CIVIL CASE NO. 0130) '“ AS PART OF PETITIONER'S EVIDENCE IN THE MAIN x x x CASE (CIVIL CASE NO. 0009).III.
x x x IN REFUSING TO ADMIT A HIGHLY RELEVANT AND IMPORTANT PIECE OF EVIDENCE FOR THE PETITIONER ON THE BASIS OF FLIMSY AND TENUOUS TECHNICAL GROUNDS.
THE ISSUES
On the basis of the pleadings, we summarize the pivotal issues for our resolution, as follows:
- Whether the petition was filed within the required period.
- Whether the Sandiganbayan committed grave abuse of discretion '“
- In holding that the 1998 resolution has already attained finality;
- In holding that the petitioner's 3rd motion partakes of a prohibited motion for reconsideration;
- In refusing to re-open the case given the critical importance of the Bane deposition to the petitioner's cause; and
- In refusing to admit the Bane deposition notwithstanding the prior consolidation of Civil Case No. 0009 and Civil Case No. 0130.
- Whether the Bane deposition is admissible under -
- Rule 23, Section 4, par. (c) alone or in relation to Section 47, Rule 130 of the Rules of Court; and
- The principle of judicial notice.
As distinguished from a final order which disposes of the subject matter in its entirety or terminates a particular proceeding or action, leaving nothing else to be done but to enforce by execution what has been determined by the court, an interlocutory order does not dispose of a case completely, but leaves something more to be adjudicated upon. The term 'final' judgment or order signifies a judgment or an order which disposes of the case as to all the parties, reserving no further questions or directions for future determination.
On the other hand, a court order is merely interlocutory in character if it leaves substantial proceedings yet to be had in connection with the controversy. It does not end the task of the court in adjudicating the parties' contentions and determining their rights and liabilities as against each other. In this sense, it is basically provisional in its application.54 (emphasis supplied)
Sec. 5. Order of trial. '“ Subject to the provisions of section 2 of Rule 31, and unless the court for special reasons otherwise directs, the trial shall be limited to the issues stated in the pre-trial order and shall proceed as follows:x x x x
(f) The parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in the furtherance of justice, permits them to adduce evidence upon their original case[.] [emphases ours]
After the parties have produced their respective direct proofs, they are allowed to offer rebutting evidence only, but, it has been held, the court, for good reasons, in the furtherance of justice, may permit them to offer evidence upon their original case, and its ruling will not be disturbed in the appellate court where no abuse of discretion appears. So, generally, additional evidence is allowed when it is newly discovered, or where it has been omitted through inadvertence or mistake, or where the purpose of the evidence is to correct evidence previously offered. The omission to present evidence on the testator's knowledge of Spanish had not been deliberate. It was due to a misapprehension or oversight. (citations omitted; emphases ours)
The strict rule is that the plaintiff must try his case out when he commences. Nevertheless, a relaxation of the rule is permitted in the sound discretion of the court. 'The proper rule for the exercise of this discretion,' it has been said by an eminent author, 'is, that material testimony should not be excluded because offered by the plaintiff after the defendant has rested, although not in rebuttal, unless it has been kept back by a trick, and for the purpose of deceiving the defendant and affecting his case injuriously.'
These principles find their echo in Philippine remedial law. While the general rule is rightly recognized, the Code of Civil Procedure authorizes the judge 'for special reasons,' to change the order of the trial, and "for good reason, in the furtherance of justice," to permit the parties 'to offer evidence upon their original case.' These exceptions are made stronger when one considers the character of registration proceedings and the fact that where so many parties are involved, and action is taken quickly and abruptly, conformity with precise legal rules should not always be expected. Even at the risk of violating legal formulá, an opportunity should be given to parties to submit additional corroborative evidence in support of their claims of title, if the ends of justice so require. (emphases ours)
However, the court for good reasons, may, in the furtherance of justice, permit the parties to offer evidence upon their original case, and its ruling will not be disturbed where no abuse of discretion appears, Generally, additional evidence is allowed when x x x; but it may be properly disallowed where it was withheld deliberately and without justification.86
Rule 31
Consolidation or Severance
Section 1. Consolidation. '“ When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.94 (emphases ours)
(1) | Where all except one of several actions are stayed until one is tried, in which case the judgment in the one trial is conclusive as to the others. This is not actually consolidation but is referred to as such. (quasi-consolidation)98 |
(2) | Where several actions are combined into one, lose their separate identity, and become a single action in which a single judgment is rendered. This is illustrated by a situation where several actions are pending between the same parties stating claims which might have been set out originally in one complaint. (actual consolidation)99 |
(3) | Where several actions are ordered to be tried together but each retains its separate character and requires the entry of a separate judgment. This type of consolidation does not merge the suits into a single action, or cause the parties to one action to be parties to the other. (consolidation for trial)100 |
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:x x x x
(c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (1) that the witness is dead; or (2) that the witness 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]
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.
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.
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
(3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment[.] [emphases ours]126
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)
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]
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.
Down the oft-trodden path in our judicial system, by common sense, tradition and the law, the Judge in trying a case sees only with judicial eyes as he ought to know nothing about the facts of the case, except those which have been adduced judicially in evidence. Thus, when the case is up for trial, the judicial head is empty as to facts involved and it is incumbent upon the litigants to the action to establish by evidence the facts upon which they rely. (emphasis ours)
I have revised my dissenting opinion to include the Bane deposition so that the Court and the public will understand what the Bane deposition is all about. (underlining added)
In the 1966 edition of Vicente J. Francisco's Revised Rules of Court, Francisco wrote:
The effect of consolidation of actions is to unite and merge all of the different actions consolidated into a single action, in the same manner as if the different causes of actions involved had originally been joined in a single action, and the order of consolidation, if made by a court of competent jurisdiction, is binding upon all the parties to the different actions until it is vacated or set aside. After the consolidation there can be no further proceedings in the separate actions, which are by virtue of the consolidation discontinued and superseded by a single action, which should be entitled in such manner as the court may direct, and all subsequent proceedings therein be conducted and the rights of the parties adjudicated in a single action (1 C.J.S., 113, pp. 1371-1372).
At the very beginning of the discussion on consolidation of actions in the Corpus Juris Secundum, the following caveat appears:
The term consolidation is used in three different senses. First, where several actions are combined into one and lose their separate identity and become a single action in which a single judgment is rendered; second, where all except one of several actions are stayed until one is tried, in which case the judgment in the one is conclusive as to the others; third, where several actions are ordered to be tried together but each retains its separate character and requires the entry of a separate judgment. The failure to distinguish between these methods of procedure, which are entirely distinct, the two latter, strictly speaking, not being consolidation, a fact which has not always been noted, has caused some confusion and conflict in the cases. (1 C.J.S., 107, pp. 1341-1342) (Emphasis added).
In defining the term 'consolidation of actions,' Francisco provided a colatilla that the term 'consolidation' is used in three different senses, citing 1 C.J.S. 1341 and 1 Am. Jur. 477 (Francisco, Revised Rules of Court, p. 348).
Endnotes:
1 Under Rule 65 of the Rules of Court.
2 Penned by Associate Justice Rodolfo G. Palattao, and concurred in by Associate Justices Narciso S. Nario and Nicodemo T. Ferrer; rollo, pp. 60-67.
3 Fourth Division.
4 Petitioner's Motion to Admit Supplemental Offer of Evidence and Comment/Opposition Ad Cautelam; rollo, pp. 370-371.
5 See Republic v. Sandiganbayan, 334 Phil. 475 (1997).
6 Petitioner's Reply; id. at 744-745.
7 Entitled Victor Africa v. Presidential Commission on Good Government.
8 See Republic of the Phils. v. Sandiganbayan, 450 Phil. 98, 104 (2003).
9 Id. at 103.
10 Id. at 104.
11 Id. at 103.
12 Id. at 104-105.
13 Resolved by this Court on April 30, 2003.
14 Republic of the Phils. v. Sandiganbayan, supra note 8.
15 Rollo, p. 304. The other incident cases which were consolidated with the main case are as follows:
1. Civil Case No. 0043 (Polygon Investors and Managers, Inc. v. PCGG) '“ a complaint praying that judgment be rendered enjoining the PCGG, its commissioners, officers, employees, agents and/or representatives from enforcing and/or implementing a writ of sequestration.
2. Civil Case No. 0044 (Aerocom Investors and Managers, Inc. v. PCGG) '“ a complaint praying that the Writ of Sequestration dated June 15, 1988 and Mission Order No. MER-88-20 dated August 1, 1988 be declared null and void ab initio.
3. Civil Case No. 0045 (Africa v. PCGG) '“ an amended complaint praying that judgment be rendered restraining (a) defendant Eduardo M. Villanueva from representing himself and acting as Director, President and/or General Manager of ETPI and committing or continuing to exercise the power, authority and functions appertaining to such office; and (b) defendant PCGG from directly or indirectly interfering with the management of ETPI.
4. Civil Case No. 0047 (Africa v. Gutierrez, et al.) '“ a complaint praying that defendants be enjoined from acting as directors of ETPI.
5. Civil Case No. 0131 (Traders Royal Bank v. PCGG, Africa, et al.) '“ complaint praying that defendants be ordered to interplead and litigate their conflicting claims.
6. Civil Case No. 0139 (Far East Bank and Trust Company v. PCGG, Africa, et al.) '“ a complaint praying that defendants be directed to interplead and litigate their respective claims on the proceeds of the deposit accounts maintained with plaintiff and that judgment be accordingly rendered.
7. Civil Case No. 0143 (Standard Chartered Bank v. PCGG, Africa, Nieto, et al.) '“ a complaint praying that judgment be rendered requiring all the defendants to interplead among themselves and litigate to determine who are the legitimate signatories of OWNI in its accounts with the plaintiff.
8. Civil Case No. 0128 (Traders Royal Bank v. PCGG) '“ a complaint praying that defendants be directed to interplead and litigate their conflicting claims between them, and that judgment be rendered accordingly.
9. Civil Case No. 0106 (Domestic Satellite Philippines, Inc. v. PCGG and Asset Privatization Trust) '“ a petition praying that PCGG be ordered to withdraw its objection to the alleged settlement agreed upon between DOMSAT and APT.
10. Civil Case No. 0114 (PHILCOMSAT and POTC v. PCGG) '“ a complaint seeking to declare as null and void the writs of sequestration issued by PCGG over plaintiffs-corporations and to enjoin PCGG and its officers, agents, and nominees from interfering with the management and operations of the plaintiffs-corporations. (Records, Volume III, pp. 451-452; 841-843.)
16 Resolution dated December 13, 1996; id. at 300.
17 Ibid.
18 Petitioner sent to the respondents a Notice to Take Oral Deposition of Mr. Maurice V. Bane dated August 30, 1996, pursuant to Section 1, Rule 24 of the Revised Rules of Court (Records, Volume XXXVI, pp. 11534-11535), which the Sandiganbayan 'noted.' Considering Victor Africa's manifestation, among others, that he was not available on the previously scheduled dates, on September 25, 1996, the petitioner filed and sent a Second Amended Notice to Take Deposition of Mr. Maurice V. Bane upon Oral Examination (Rollo, pp. 68-71). The Second Amended Notice reads:
The right to take deposition de bene esse is a precautionary privilege to prevent [the] loss of evidence in the event the attendance of the witness at the trial cannot be procured. Hence, Section 1, Rule 24 of the Revised Rules of Court, specifically grants the plaintiff the right to depose Mr. Maurice Bane without leave of court. x x x.
It should moreover be noted that Mr. Maurice Bane, who resides in England, has resigned from Cable and Wireless and is unable to travel to Manila to attend or testify before this Honorable Court. Section 4, Rule 24, allows Plaintiff to use Mr. Maurice V. Bane's proposed deposition in evidence insofar as the same may be admissible under the Rules of Evidence. (underscoring and boldfacing supplied)
19 Rollo, pp. 292-297.
20 Id. at 68-69. The records show that Maurice Bane executed the aforesaid affidavit dated January 1991 in Makati, Metro Manila, Philippines. Records, Volume III, pp. 683-688.
21 Id. at 69.
22 Id. at 299-321.
23 Republic of the Phils. v. Sandiganbayan, supra note 8, at 109.
24 Resolved by this Court on April 30, 2003.
25 Sandiganbayan Third Division Pre-Trial Order dated March 17, 1997, p. 1; rollo, p. 576. Penned by Associate Justice Sabino R. de Leon, Jr., and concurred in by Associate Justices Cipriano A. del Rosario and Leonardo I. Cruz.
26 Records, Volume XXXVI, p. 11405.
27 Dated January 21, 1998; id. at 322-329. Originally, what the petitioner filed was a Manifestation that it was adopting the testimonies of specified witnesses, among others. However, on January 8, 1998, the Sandiganbayan required the petitioner 'to file a corrected pleading in the form of a motion in lieu of the Manifestation.' (Records, Volume XLIV, pp. 128-130, 175).
28 Civil Case Nos. 0048, 0050 and 0146 were ordered consolidated with Civil Case No. 0009 by the Court in Africa v. PCGG, G.R. Nos. 83831, 85594, 85597, and 85621, January 9, 1992, 205 SCRA 38.
29 Records, Volume XLIV, pp. 278-282 and 497-500; Volume XLV, pp. 3-6 and 22-26.
30 Dated March 13, 1998; Rollo, pp. 593-597.
31 Fourth Division.
32 Penned by Associate Justice Sabino R. de Leon, Jr., and concurred in by Associate Justices Narciso S. Nario and Teresita J. Leonardo-de Castro (now a Member of this Court); rollo, pp. 331-338.
33 Id. at 18.
34 Id. at 339-346.
35 Penned by Associate Justice Rodolfo G. Palattao, and concurred in by Associate Justices Narciso S. Nario and Nicodemo T. Ferrer; id. at 352-355.
36 Id. at 777-778.
37 Id. at 357-359.
38 Id. at 360-368.
39 The Sandiganbayan (Fourth Division) promulgated on April 1, 2003 a resolution denying the demurrers to evidence filed by the respondents; id. at 777-790.
40 Supra note 2.
41 Represented by the Office of the Solicitor General. While this case was pending, then Chief Presidential Legal Counsel Eduardo Antonio Nachura was appointed Solicitor General, formerly a Member of this Court.
42 Rollo, p. 28, citing People v. MTC of Quezon City, 333 Phil. 500 (1996).
43 Id. at 35-50.
44 In his Manifestation, respondent Ferdinand R. Marcos, Jr. stated that he was adopting the Comment of respondent Nieto; id. at 856-857. On the other hand, respondent Juan Ponce Enrile and the substituted heirs of respondent Jose Africa merely reiterated the arguments advanced by respondent Nieto.
45 Id. at 471.
46 Section 4, Rule 65 of the Rules of Court reads:
When and where petition filed. '“ The petition shall be filed not later than sixty (60) days from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from notice of the denial of said motion.
47 Respondent Nieto's Comment, citing GSIS v. CA, 334 Phil. 163 (1997); rollo, p. 490.
48 Respondent Nieto's Comment, citing Vicente J. Francisco, The Revised Rules of Court in the Philippines, p. 338; id. at 489.
49 Id. at 521-528.
50 Petitioner's Reply (to Nieto's Comment), citing Regalado, Remedial Law Compendium, p. 582, 2001 ed.; id. at 522.
51 Raymundo v. Isagon Vda. de Suarez, G.R. No. 149017, November 28, 2008, 572 SCRA 384.
52 Investments, Inc. v. Court of Appeals, 231 Phil. 302 (1987), cited in Denso (Phils.), Inc. v. Intermediate Appellate Court, 232 Phil. 256 (1987).
53 Rudecon Management Corp. v. Singson, 494 Phil. 581 (2005).
54 Tomacruz-Lactao v. Espejo, 478 Phil. 755 (2004).
55 Jose Y. Feria and Maria Concepcion Noche, 2 Civil Procedure Annotated, 2001 ed., pp. 151-152, citing Manila Electric Co. v. Artiaga and Green, 50 Phil. 144, 147 (1927). This proceeds from the court's inherent power to control its process and orders so as to make them conformable to law and justice. The only limitation is that the judge cannot act with grave abuse of discretion, or that no injustice results thereby (Bangko Silangan Development Bank v. Court of Appeals, 412 Phil. 755 [2001]).
56 Rule 41, Section 1 of the Rules of Court reads:
Subject of appeal. '” An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable. No appeal may be taken from:
x x x x
(c) An interlocutory order;
x x x x
In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65.
57 Rollo, p. 31, citing Philgreen Trading Construction Corp. v. Court of Appeals, 338 Phil. 433 (1997).
58 Indiana Aerospace University v. Commission on Higher Education, 408 Phil. 483 (2001).
59 Africa v. Hon. Sandiganbayan, 350 Phil. 846 (1998).
60 When a deposition is presented at trial and admitted by the court, it is competent evidence for the party in whose behalf it was taken, although it may not have been actually read when introduced in evidence. (Vicente J. Francisco, 2 The Revised Rules of Court in the Philippines, p. 127, 1966, citing Baron v. David, 51 Phil. 1 [1927].)
61 Section 34, Rule 132 of the Rules of Court reads:
Offer of evidence. '” The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified.
62 Leviste v. Court of Appeals, G.R. No. 189122, March 17, 2010, 615 SCRA 619, 633, citing Dueñas, Jr. v. House of Representatives Electoral Tribunal, G.R. No. 185401, July 21, 2009, 593 SCRA 316, 344.
63 Republic of the Philippines v. Sandiganbayan, 453 Phil. 1059 (2003).
64 Section 6, Rule 18 of the Rules of Court requires the parties to state in their respective Pre-Trial Briefs the following:
(a) A statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof;
(b) A summary of admitted facts and proposed stipulation of facts;
(c) The issues to be tried or resolved;
(d) The documents or exhibits to be presented, stating the purpose thereof;
(e) A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners; and
(f) The number and names of the witnesses, and the substance of their respective testimonies.
Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial. (emphases added)
65 Section 1, Rule 131 of the Rules of Court reads:
Burden of proof. '” Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law. (emphasis added)
66 See Manuel V. Moran, 2 Comments on the Rules of Court, 1996 ed., p. 140.
67 Section 1, Rule 33 of the Rules of Court reads:
Demurrer to evidence. '” After the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. If his motion is denied, he shall have the right to present evidence. If the motion is granted but on appeal the order of dismissal is reversed he shall be deemed to have waived the right to present evidence. (emphasis added)
68 Petitioner's Urgent Motion and/or Request for Judicial Notice, p. 3; rollo, p. 341.
69 Petitioner's Motion to Admit Supplemental Offer of Evidence, p. 6; id. at 365.
70 Section 4, Rule 129 of the Rules of Court reads:
Judicial admissions. '“ An admission, verbal or written, made by the party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made.
71 In page 6 of the petitioner's Motion to Admit Supplemental Offer of Evidence, the petitioner admitted the termination of the presentation of its evidence; yet, in page 4 of the petitioner's Reply (to respondent Nieto's opposition to petitioner's Motion to Admit Supplemental Offer of Evidence), the petitioner stated that it has not yet rested its case.
72 Dated August 21, 2000 and April 3, 2001.
73 Rollo, pp. 31 and 34.
74 James M. Henderson, 6 Commentaries on the Law of Evidence in Civil Cases Based Upon the Works of Burr W. Jones, § 2502, pp. 4950-4951.
75 Director of Lands v. Roman Archbishop of Manila, 41 Phil. 121 (1920).
76 Ibid.
77 John Henry Wigmore, 6 A Treatise on the Anglo-American System of Evidence in Trials at Common Law, 1940, p. 519.
78 Director of Lands v. Roman Archbishop of Manila, supra note 75.
79 Seares v. Hernando, etc., et al., 196 Phil. 487 (1981).
80 88 C.J.S. § 104, p. 217; 5A C.J.S. § 1606, p. 102; and Lopez v. Liboro, 81 Phil. 431 (1948).
81 Land Bank of the Philippines v. Court of Appeals, 456 Phil. 755 (2003).
82 San Fernando Rural Bank, Inc. v. Pampanga Omnibus Development Corporation, G.R. No. 168088, April 4, 2007, 520 SCRA 564.
83 Leviste v. Court of Appeals, supra note 62.
84 Supra note 80, at 434.
85 Supra note 75, at 124.
86 Manuel V. Moran, supra note 66, at 141, citing 64 C.J. 160-163.
87 In Hampson v. Taylor (8 A. 331, 23 A. 732, 15 R.I. 83, January 11, 1887) the Rhode Island Supreme Court ruled:
We are of the opinion that it was entirely within the discretion of the court to open the case for further testimony. The counsel for the plaintiff says, in excuse for the omission, that it was conceded at the former trial, without contest, that the place of the accident was a part of the public highway, and he was thus put off his guard. It is quite common for the court to allow a party to submit further testimony, after he has rested, when his opponent attempts to take advantage of some formal point which has been inadvertently overlooked, since it is or ought to be the aim of the court, in ordering the course of proof, to further, not to defeat the ends of justice.
88 Rollo, p. 18.
89 Republic of the Philippines v. Sandiganbayan, 336 Phil. 304 (1997).
90 In W. W. Dearing v. Fred Wilson & Co., Inc., 187 Phil. 488, 493-494 (1980), we held:
Anent grave abuse of discretion, in Icutanim v. Hernandez, x x x it was held that appeal and not certiorari, is the proper remedy for the correction of any error as to the competency of a witness committed by an inferior court in the course of trial, since such a situation involves an error of law constituting a violation of the rules of evidence, apart from the fact that to allow any special civil action under the circumstances would lead to multiplicity of suits and lead to protracted if not endless trials. Similarly and for the same reasons, that rule would apply to the admission or rejection of a deposition being offered as evidence. Thus, the jurisprudential rule is that the admission or rejection of certain interrogatories in the course of discovery procedure could be an error of law but not an abuse of discretion, much less a grave one. Again, the reason for this rule [is that] the procedure for the taking of depositions whether oral or thru written interrogatories is outlined in the rules leaving no discretion to the Court to adopt any other not substantially equivalent thereto. Should the judge substantially deviate from what the rule prescribes, he commits a legal error, not an abuse of discretion. (citation omitted; emphases and underscoring ours)
91 Petitioner's Reply to the Opposition (filed by the substituted heirs of respondent Jose Africa), p. 7; rollo, p. 462.
92 Section 9 of Presidential Decree 1606, in effect at the time of the consolidation, provides:
Rule-making Power. The Sandiganbayan shall have the power to promulgate its own rules of procedure and, pending such promulgation, the Rules of Court shall govern its proceedings. 93 1964 Rules of Court. This provision was copied verbatim under the present rules.
94 This provision, in turn, is an exact reproduction of Rule 42(a) of the 1938 Federal Rules of Civil Procedure of the United States.
95 Wright and Miller, Federal Practice and Procedure: Civil 2d § 2381, p. 427.
96 See People v. Sandiganbayan, 456 Phil. 707 (2003); Cojuangco, Jr. v. Court of Appeals, G.R. No. 37404, November 18, 1991, 203 SCRA 619; Caños v. Hon. Peralta, etc., et al., 201 Phil. 422 (1982).
97 Wright and Miller, supra note 95, at 429.
98 1 C.J.S. § 107, p. 1341; Wright and Miller, Federal Practice and Procedure: Civil 2d § 2382.
99 1 C.J.S. § 107, id.; Wright and Miller, id. at 429. See Yu, Sr. v. Basilio G. Magno Construction and Development Enterprises, Inc., G.R. Nos. 138701-02, October 17, 2006, 504 SCRA 618.
100 1 C.J.S. § 107, id.; 1 Am. Jur. 2d § 131, p. 804; Wright and Miller, id.
101 The April 15, 1993 Resolution ordering consolidation reads:
Submitted for resolution is the Motion for Consolidation, dated June 22, 1992, filed by the Republic of the Philippines (represented by the PCGG), counsel.
The record shows that there is no opposition in the above-entitled cases to the said motion. It also appears that the subject matters of the above entitled cases are and/or may be treated as mere incidents in Civil Case No. 0009.
WHEREFORE, the above-entitled cases are hereby ordered consolidated with Civil Case No. 0009, and shall henceforth be consolidated and treated as mere incidents of said Civil Case No. 0009. (Records, Volume III, pp. 843-844.)
102 See Victor Africa's Motion (Records, Volume XVIII, pp. 6717-6722).
103 In its Motion for Consolidation, the petitioner argued:
4. On various dates, several actions were filed which are intimately related with Civil Case No. 0009, involving as they are the same subject matter and substantially the same parties x x x.
x x x x
10. Besides, the present Motion for Consolidation is not without a paradigm which was recently sketched by [the Sandiganbayan]. During the hearing on April 6, 1992 of Africa vs. PCGG, docketed as Civil Case No. 0127, [the Sandiganbayan] resolved to conduct a joint trial of the said case and of OWNI vs. Africa, docketed as Civil Case No. 0126, inasmuch as both cases are intimately related. The consolidation of the above-captioned cases would be merely a step in the same direction already taken by [the Sandiganbayan] in Africa and OWNI. (Records, Volume XV, pp. 5617-5622.)
104 In the 1966 edition of Vicente J. Francisco's Revised Rules of Court, Francisco wrote:
The effect of consolidation of actions is to unite and merge all of the different actions consolidated into a single action, in the same manner as if the different causes of actions involved had originally been joined in a single action, and the order of consolidation, if made by a court of competent jurisdiction, is binding upon all the parties to the different actions until it is vacated or set aside. After the consolidation there can be no further proceedings in the separate actions, which are by virtue of the consolidation discontinued and superseded by a single action, which should be entitled in such manner as the court may direct, and all subsequent proceedings therein be conducted and the rights of the parties adjudicated in a single action (1 C.J.S., 113, pp. 1371-1372).
At the very beginning of the discussion on consolidation of actions in the Corpus Juris Secundum, the following caveat appears:
The term consolidation is used in three different senses. First, where several actions are combined into one and lose their separate identity and become a single action in which a single judgment is rendered; second, where all except one of several actions are stayed until one is tried, in which case the judgment in the one is conclusive as to the others; third, where several actions are ordered to be tried together but each retains its separate character and requires the entry of a separate judgment. The failure to distinguish between these methods of procedure, which are entirely distinct, the two latter, strictly speaking, not being consolidation, a fact which has not always been noted, has caused some confusion and conflict in the cases. (1 C.J.S., 107, pp. 1341-1342) (Emphasis added).
In defining the term 'consolidation of actions,' Francisco provided a colatilla that the term 'consolidation' is used in three different senses, citing 1 C.J.S. 1341 and 1 Am. Jur. 477 (Francisco, Revised Rules of Court, p. 348).
105 The respondents vigorously opposed the petitioner's motion to adopt the testimony of, among others, Maurice Bane, and the Sandiganbayan ruled in favor of the respondents, without the petitioner questioning this development until after two years later. This circumstance cannot be taken lightly in view of the petitioner's gross procedural deficiency in the handling of this main case.
106 In those cases where the Court ordered or affirmed the order of consolidation, even without expressly providing for the admissibility of evidence in all of the consolidated cases, the parties are the same and/or the issues are relatively simple and/or the causes of action could have actually been stated in one complaint (see Domdom v. Third and Fifth Divisions of the Sandiganbayan, G.R. Nos. 182382-83, February 24, 2010, 613 SCRA 528; Active Wood Products Co., Inc. v. Court of Appeals, G.R. No. 86603, February 5, 1990, 181 SCRA 774; Delta Motor Sales Corporation v. Mangosing, No. L-41667, April 30, 1976, 70 SCRA 598; Sideco v. Paredes, et al., 74 Phil. 6 (1942).
107 Dated March 17, 1997; rollo, pp. 576-587.
108 Under Section 7, Rule 18 of the Rules of Court, a Pre-Trial Order controls the subsequent course of the action, unless modified before trial to prevent manifest injustice.
109 Records, Volume XXXVI, p. 11405.
110 1964 Rules of Court, Rule 24, Depositions and Discovery.
111 Petitioner's Reply with Manifestation to Respondent Enrile's Comment, pp. 12-13; rollo, pp. 679-680.
112 Records, Volume XLV, pp. 110-112. Petitioner's Common Reply reads:
1. While it is true that Section 47, Rule 130 of the Rules of Court provides:
x x x x
[petitioner] wishes to inform this Honorable Court that in order to substantially comply with the aforementioned requirements, it would be willing to present subject witnesses, except for Maurice Bane and Rolando Gapud whose availability are difficult to obtain being foreign residents, only to be cross-examined by the defendants who had no opportunity to cross-examine them in said previous proceeding.
113 Dasmariñas Garments, Inc. v. Reyes, G.R. No. 108229, August 24, 1993, 225 SCRA 622.
114 Jonathan Landoil International Co., Inc. v. Mangudadatu, G.R. No. 155010, August 16, 2004, 436 SCRA 559, 573, citing Fortune Corporation v. CA, G.R. No. 108119, January 19, 1994, 229 SCRA 355, 362.
115 Dasmariñas Garments, Inc. v. Reyes, supra note 113.
116 Ibid.
117 Ibid.
118 Jovito R. Salonga, Philippine Law of Evidence, p. 540, 2nd ed., 1958. John Henry Wigmore, supra note 77, at 51-53. But the generally accepted view, followed by our own rules on evidence, is that prior testimony or deposition is an exception to hearsay prohibition. (McCormick on Evidence by Edward Cleary, § 254, p. 759, 3rd ed., Hornbook Series, Lawyer's ed., 1984).
119 Section 6, Rule 132 of the Rules of Court reads:
Cross-examination; its purpose and extent. '” Upon the termination of the direct examination, the witness may be cross-examined by the adverse party as to any matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue.
120 John Henry Wigmore, supra note 77, at 83.
121 Oscar M. Herrera, 5 Remedial Law, 1999, pp. 773, 774-775.
122 Id. at 773, citing Gibson v. Gagnon, 82 Colo 108, 257, p. 348; 2 Jones, Sec. 9:25.
123 Manuel V. Moran, 5 Comments on the Rules of Court, 1980 ed., p. 409.
124 Vicente J. Francisco, Evidence, 1955, p. 646.
125 Ricardo J. Francisco, 7 The Revised Rules of Court in the Philippines, Evidence, Part I, 1997 ed., pp. 628-629.
126 Prior to the revision of the rules on evidence, the phrase 'out of the Philippines' appeared in the context of the witness' unavailability (Section 41, Rule 130 of the 1964 Rules of Court). After the revision (the latest amendments to the rules on evidence became effective on July 1, 1989), this phrase was deleted from the present Section 47, Rule 130 of the Rules of Court. In contrast, the same phrase, which appeared in Rule 24 of the old Rules (Rule 24, Deposition and Discovery, 1964 Rules of Court), was retained in the present Rule 23 of the Rules of Court on depositions. The phrase 'unable to testify,' however, survived the amendment of the rules and was retained in both Section 47, Rule 130 of the Rules of Court and Section 4(c), Rule 23 of the same Rules.
127 Vicente J. Francisco, Evidence, supra note 124, at 649.
128 John Henry Wigmore, 5 A Treatise on the Anglo-American System of Evidence in Trials at Common Law, § 1404, p. 149.
129 Northwest Airlines, Inc. v. Cruz, 376 Phil. 96 (1999).
130 Ricardo J. Francisco, supra note 125, at 627, cited in the Comment filed by the substituted heirs of respondent Jose Africa, p. 3.
131 John Henry Wigmore, supra note 128, at 148.
132 To make matters worse, by not questioning the Sandiganbayan's denial of its 1st Motion (to Adopt), the petitioner has impliedly acceded to the Sandiganbayan's ruling that the non-presentation of the deponent in court for cross-examination is unjustified. Unfortunately, the petitioner 'realized' its mistake only two precious years later.
133 Ricardo J. Francisco, supra note 125, at 220.
134 Id. at 219.
135 Edward Cleary, supra note 118, at 48.
136 Manuel V. Moran, supra note 123, at 410.
137 Jovito R. Salonga, supra note 118, at 542.
138 Oscar M. Herrera, supra note 121, at 772. Privies are distributed into several classes, according to the manner of the relationship. Thus, there are privies in estate, as donor and donee, lessor and lessee, and joint tenants; privies in blood, as heir and ancestor; privies in representation as executor and testator, administrator and intestate; privies in law for the law without privity of blood and estate casts the land upon another as by escheat. (Id. at 542.)
139 Notably, Africa was not impleaded in Civil Case No. 0009 (Republic v. Sandiganbayan, G.R. No. 106244, January 22, 1997, 266 SCRA 515).
140 Petitioner's Reply to Nieto's Comment, p. 4; and petitioner's Reply with Manifestation to Respondent Enrile's Comment, pp. 11-12. Rollo, pp. 678-679.
141 Records, Volume XXXVI, p. 11534.
142 Records, Volume XXXVI, pp. 11574-11578; Volume XXXVII, pp. 11649- 11654; 11704-11709.
143 Records, Volume XXXVI, pp. 11610-11612.
144 Records, Volume XXXVII, pp. 11719-11720.
145 While the Sandiganbayan recognized that the petitioner intends to use the Bane deposition in Civil Case No. 0009 (as stated in the Second Amended Notice of the Taking of the Bane Deposition), the Sandiganbayan denied Africa's Motion as if Africa himself was impleaded in and is a party who can be bound by the proceedings and the judgment in Civil Case No. 0009 (except only as a substituted heir of the late respondent Jose Africa). In denying Victor Africa's motion (forgetting about the concern raised by respondent Enrile '“ which is equally applicable to the other respondents), the Sandiganbayan seemed oblivious of the fact that the respondents who were non-parties to Civil Case 0130 (where the deposition was taken) should be heard. Apparently, the Sandiganbayan relied blindly on the petitioner's assertion that the taking of deposition is a matter of right and failed to address the consequences and/or issues that may arise from the apparently innocuous statement that the petitioner intends to use the Bane deposition in Civil Case No. 0009 (where only the respondents, and not Africa, are parties). The Sandiganbayan ruled:
'More importantly, under Section 1 of Rule 24 the taking of such deposition, after the answer has been served, is a matter of right and can be resorted to without leave of court.' (Records, XXXVII, pp. 11719-11720)
146 376 Phil. 111-112 (1999).
147 In its Motion for Summary Judgment, dated January 28, 1997, the petitioner itself conceded that respondents are not parties to Civil Case No. 0130, where the deposition was taken:
7. In this connection, we are not unmindful of the observation of [the Sandiganbayan] that:
The principal issue in the main case, Civil Case No. 0009 x x x which is an action for reversion, forfeiture, accounting and damages, is whether or not there is preponderance of evidence that the Class 'A' shareholding in ETPI is ill-gotten wealth x x x. That point should not be pre-empted in the resolution of the subject incident in G.R. No. 107789 x x x
8. Nor are we unmindful that this Honorable Court made clear that the finding in its December 13, 1996 resolution 'does not render moot and academic the principal issue in the main case, Civil Case No. 0009, which is: whether or not there is preponderance of evidence of alleged ill-gotten wealth of the defendants therein, especially Jose Africa, Roberto S. Benedicto and Manuel H. Nieto, Jr., none of whom is a party either in incident Civil Case No. 0130 or in the subject G.R. No. 107789. (Italics supplied) (Records, XL, pp. 12568-12569.)
148 Mabayo Farms, Inc. v. Court of Appeals, G.R. No. 140058, August 1, 2002, 386 SCRA 110; and Development Bank of the Philippines v. Bautista, et al., 135 Phil. 201 (1968).
149 Section 6, Rule 23 of the Rules of Court reads:
Objections to admissibility. '” Subject to the provisions of section 29 of this Rule, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.
Section 17, Rule 23 of the Rules of Court reads:
Record of examination; oath; objections.'” The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically unless the parties agree otherwise. All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties served with notice of taking a deposition may transmit written interrogatories to the officers, who shall propound them to the witness and record the answers verbatim.
150 Records, Volume XXXVII, pp. 11628-11623.
151 See the petitioner's Pre-Trial Brief (Records, Volume XXXVI, p. 11405) where the petitioner made a representation to present Mr. Maurice Bane. See the petitioner's Common Reply (Records, Volume XLV, pp. 110-112) where the petitioner conceded the applicability of Section 47, Rule 130; see the petitioner's Motion for Summary Judgment (Records, Volume XL, pp. 12568-12569) where the petitioner admitted that the respondents were not parties to Civil Case No. 0130 (where the deposition was taken) and Victor Africa was neither a party to Civil Case No. 0009.
152 Ricardo J. Francisco, supra note 125, at 69.
153 Oscar M. Herrera, supra note 121, at 72.
154 Manifest things require no proof; what is known by the magistrate need not be proved; Jovito R. Salonga, supra note 118, at 45; and Eduardo B. Peralta, Jr., Perspectives of Evidence, 2005, p. 52, citing 1 Jones on Evidence, p. 209.
155 Section 1, Rule 129 of the Revised Rules on Evidence.
156 Id., Section 2.
157 Id., Section 3.
158 Manuel V. Moran, supra note 123, at 47-48, citing Municipal Council of San Pedro Laguna v. Colegio de San Jose, 65 Phil. 318 (1938); and Prieto v. Arroyo, 121 Phil. 1335 (1965).
159 In Occidental Land Transportation Co., Inc. v. Court of Appeals, G.R. No. 96721, March 19, 1993, 220 SCRA 167, 176, citing Tabuena v. Court of Appeals, 196 SCRA 656 (1991), we stated:
And unlike the factual situation in Tabuena v. CA, the decision in Civil Case No. 3156 formed part of the records of the instant case (Civil Case No. 2728) with the knowledge of the parties and in the absence of their objection. This fact was pointed out by the lower court, to wit:
The x x x findings of the Oroquieta Court became as conclusive upon the company and its driver by their acquiescence and silence x x x. (Decision of lower court, p. 12; records, p. 239)
x x x x
Returning to Exhibit "O," supra (Decision, Civil Case No. 3156, CFI, Branch III, Oroquieta City), the Court hastens to add: Said exhibit has not been objected to nor commented upon by the defendants Company and Enerio, through their counsel, x x x.
This being the case, petitioners were aware that Exhibit "O" (Decision in Civil Case No. 3156) had formed part of the records of the case and would thereby be considered by the trial court in its decision.
160 Section 1, Rule 9 of the Rules of Court reads:
Defenses and objections not pleaded. - Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim. (underscoring ours)
In Lewin v. Galang, etc., 109 Phil. 1041, 1045 (1960), cited by the petitioner, the Court held:
In view of this special defense [res judicata], the court below should have taken judicial notice of the habeas corpus proceedings instituted by petitioner before the same Court of First Instance of Manila and before the same judge, Case No. 28409, Ted Lewin v. Commissioner of Immigration and Commissioner of Customs, and we find that practically the same facts relied upon in petitioner's present petition for declaratory judgment are the very facts upon which petitioner based his request for the issuance of the writ of habeas corpus in the previous case.
In Tiburcio, et al. v. People's Homesite and Housing Corporation, et al., 106 Phil. 477, 483-484 (1959), likewise cited by the petitioner, we held:
Appellants finally claim that the lower court erred in dismissing the complaint on the ground of res judicata by taking judicial notice of its own records in Land Registration Case No. L-3 invoking in support of their contention the principle that a court cannot take judicial notice of the contents of the records of other cases even when such cases had been tried by the same court and notwithstanding the [fact] that both cases may have been tried before the same judge. While the principle invoked is considered to be the general rule, the same is not absolute. There are exceptions to this rule. Thus, as noted by former Chief Justice Moran:
In some instance[s], courts have taken judicial notice of proceedings in other causes, because of their close connection with the matter in controversy. x x x
Moreover, appellants' objection to the action of the trial court on this matter is merely technical because they do not dispute the fact that appellant x x x, who instituted the present case, is the same person who filed the application in Land Registration Case No. L-3 for the registration of the same parcel of land which application was denied by the court x x x. It may therefore be said that in the two cases there is not only identity of subject matter but identity of parties and causes of action. Indeed, the trial court did not err in dismissing the complaint on the ground of res judicata.
161 Petitioner's Reply with Manifestation (to respondent Enrile's Comment) enumerates the various 'family member' cases which arose from the present and main case, Civil Case No. 0009.
162 De los Angeles v. Hon. Cabahug, et al., 106 Phil. 839 (1959); Lewin v. Galang, etc., supra note 160; and Tiburcio, et al. v. People's Homesite and Housing Corporation, et al., supra note 160.
163 Lewin v. Galang, etc., supra; and Tiburcio, et al. v. People's Homesite and Housing Corporation, et al., supra.
164 319 Phil. 387, 389 (1995).
165 Rules of Court, Rule 130, Section 47.
166 Revised Rules on Evidence, Rule 128, Section 3.
167 The dissent then compares the proceedings in the Court when cases are consolidated to support its position that consolidation results in the merger of the different causes of action. However, it is not exactly appropriate to compare the consolidation of cases in the Supreme Court with the consolidation ordered by the Sandiganbayan because the Supreme Court is NOT a trier of facts. First, the scope of our review is limited generally to 'questions of law.' Hence, no issue of prejudice to other parties can arise should petitions in the Court be consolidated. Second, unlike consolidated cases in the Supreme Court, the Sandiganbayan itself had, in fact, separately adjudged an incident of Civil Case No. 0130 and the few other incident cases independent of Civil Case No. 0009.
168 Correctible under Rule 65 of the Rules of Court.
169 When it denied Africa's separate opposition.
DISSENTING OPINION
CARPIO, J.:Allegedly the deposition of Maurice V. Bane was introduced as PCGG's evidence in Civil Case No. 0130 (in relation to G.R. No. 107789) which is an incident of and consolidated with the above-entitled case in connection with PCGG's 'Very Urgent Petition for Authority to Hold Special Stockholders Meeting for the Purpose of Increasing ETPI's Authorized Capital Stock' and the said deposition of Maurice V. Bane is now a part and parcel of the record of this main case.
This is a special civil action for certiorari1 filed by the Republic of the Philippines (petitioner), through the Presidential Commission on Good Government (PCGG), seeking to set aside the Resolution dated 7 February 2002 of the Sandiganbayan, which denied petitioner's Motion to Admit Supplemental Offer of Evidence (Re: Deposition of Maurice V. Bane).
The case pertains to the complaint filed before the Sandiganbayan by petitioner against private respondents for reconveyance, reversion, accounting, restitution, and damages. The complaint, which was filed on 22 July 1987, was docketed as Civil Case No. 0009. Civil Case No. 0009 involves, among others, the shares of private respondents in Eastern Telecommunications Philippines, Inc. (ETPI), which were allegedly ill-gotten and were eventually sequestered by the government.2
The issue in this certiorari proceeding concerns the admissibility of the deposition of Maurice V. Bane, taken primarily for testimony regarding the interlocutory issue in Civil Case No. 0130, which is one of the incident cases of Civil Case No. 0009.
Civil Case No. 0130 is a petition for certiorari filed with the Sandiganbayan by Victor Africa, son of Jose L. Africa,3 who is one of the defendants in Civil Case No. 0009, against the PCGG. Victor Africa filed the petition, seeking to nullify the PCGG orders directing him, among others, to account for his sequestered shares in ETPI. In a Resolution dated 12 April 1993,4 the Sandiganbayan ordered the consolidation of the main case, Civil Case No. 0009, with several incident cases including Civil Case No. 0130.5
On 25 September 1996, in Civil Case No. 0009 in connection with Incident Case No. 0130 and G.R. No. 107789, petitioner filed with the Sandiganbayan a Second Amended Notice to Take Deposition of Mr. Maurice V. Bane Upon Oral Examination.6 On 23 and 24 October 1996, the deposition upon oral examination of Maurice V. Bane, former director and treasurer-in trust of ETPI, was taken before Consul General Ernesto Castro at the Philippine Embassy in London, England. Among the defendants in the main Civil Case No. 0009, only Victor Africa appeared during the taking of the deposition.
On 22 January 1998, petitioner filed a motion7 praying that it be allowed to adopt the testimonies of several of its witnesses in incidental Civil Case Nos. 0048, 0050, 0130 and 0146, including the deposition of Maurice V. Bane, as its evidence in the main case, Civil Case No. 0009. On 1 April 1998, the Sandiganbayan issued a Resolution, denying in part the motion as regards the adoption of the testimony on oral deposition of Maurice V. Bane (and Rolando Gapud) as part of petitioner's evidence in Civil Case No. 0009, 'for the reason that said deponents according to the plaintiff, are not available for cross examination in this Court by the defendants.'8
On 14 December 1999, petitioner made its Formal Offer of Evidence consisting of Exhibits 'A' to 'XX-27.' However, through oversight, petitioner failed to include among its exhibits the deposition of Maurice V. Bane. Thus, in its Urgent Motion And/Or Request for Judicial Notice dated 21 February 2000, petitioner prayed that it be allowed to introduce as additional evidence the deposition of Maurice V. Bane, or in the alternative, for the Sandiganbayan to take judicial notice of the facts established by the said deposition. On 21 August 2000, the Sandiganbayan issued a Resolution denying petitioner's motion. The Resolution stated:
Judicial notice is found under Rule 129 which is titled 'What Need Not Be Proved.' Apparently, this provision refers to the Court's duty to consider admissions made by the parties in the pleadings, or in the course of the trial or other proceedings in resolving cases before it. The duty of the Court is mandatory and in those cases where it is discretionary, the initiative is upon the Court. Such being the case, the Court finds the Urgent Motion and/or Request for judicial notice as something which need not be acted upon as the same is considered redundant.
On the matter of the deposition of Maurice V. Bane, the admission of the same is done through the ordinary formal offer of exhibits wherein the defendant is given ample opportunity to raise objection on grounds provided by law. Definitely, it is not under Article 129 on judicial notice.9
In the subject Resolution [issued on 21 August 2000], this Court ruled that the Urgent Motion and/or Request for Judicial Notice was something that need not be acted upon as the same was already considered redundant, the deposition of Bane, having become part and parcel of the record of this main case since Civil Case No. 0130 is an incident to the same.
This Court further held that the admission of same is done through ordinary formal offer of exhibits wherein defendant is given ample opportunity to raise objection on grounds provided by law, and not under Rule 129 on judicial notice.
WHEREFORE, there being no other issue which merit consideration of this Court, the Motion for Reconsideration is hereby denied.10 (Emphasis supplied)
The only issue that the court is actually called upon to address in the pending incident is whether or not We should allow plaintiff-movant's Supplemental Offer of Evidence consisting of the deposition of Maurice V. Bane.
x x x
Defendants' Opposition to the pending incident as well as plaintiff's Reply to the Opposition gave various reasons why the motion should or should not be granted. But in the court's view, it is not really a question of whether or not plaintiff has already rested its case as to obviate the further presentation of evidence. It is not even a question of whether the non-appearing defendants are deemed to have waived their right to cross-examine Bane as to qualify the admission of the deposition sans such cross-examination. Indeed, We do not see any need to dwell on these matters in view of this court's Resolution rendered in April 1, 1998 which already denied the introduction in evidence of Bane's deposition and which has become final in view of plaintiff's failure to file any motion for reconsideration or appeal within the 15-day reglementary period. Rightly or wrongly, the resolution stands and for this court to grant plaintiff's motion at this point in time would in effect sanction plaintiff's disregard for the rules of procedure. Plaintiff has slept on its rights for almost two years and it was only in February of 2000 that it sought to rectify its ineptitude by filing a motion to reopen its case as to enable it to introduce and offer Bane's deposition as additional evidence, or in the alternative for the court to take judicial notice of the allegations of the deposition. But how can such a motion be granted when it has been resolved as early as 1998 that the deposition is inadmissible. Without plaintiff having moved for reconsideration within the reglementary period, the resolution has attained finality and its effect cannot be undone by the simple expedient of filing a motion, which though purporting to be a novel motion, is in reality a motion for reconsideration of this court's 1998 ruling. Hence, the subsequent motions, including the present incident are deemed moot and academic.11
REPUBLIC OF THE PHILIPPINES
SANDIGANBAYAN
MANILA
Third Division
Republic of the Philippines,Plaintiff,CIVIL CASE NO. 0009-versus- (Incident Case No. 0130and G.R. No. 107789)
JOSE L. AFRICA, ET AL.,Defendants.
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:
(a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as witness;
(b) The deposition of a party or of any one who at the time of the taking of the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose;
(c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (1) that the witness is dead; or (2) that the witness 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; and
(d) if only part of the deposition is offered in evidence by a party, the adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts. (Emphasis supplied)
Republic of the Philippines
SANDIGANBAYAN
Manila
- - - -
THIRD DIVISION
REPUBLIC OF THE PHILIPPINES,Plaintiff,-versus- CIVIL CASE NO. 0009
JOSE L. AFRICA, ET AL.,Defendants.
X - - - - - - - - - - - - - - - - - - - - - - - - - - - x
VICTOR AFRICA, ET AL.,Intervenors,
X - - - - - - - - - - - - - - - - - - - - - - - - - - - x
POLYGON INVESTORS AND MANAGERS,
INC.,Plaintiff,-versus- CIVIL CASE NO. 0043
PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT, ET AL.,Defendants.
X - - - - - - - - - - - - - - - - - - - - - - - - - - - x
AEROCOM INVESTORS AND MANAGERS,
INC.,Plaintiff,-versus- CIVIL CASE NO. 0044
PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT, ET AL.,Defendants.
X - - - - - - - - - - - - - - - - - - - - - - - - - - - x
JOSE L. AFRICA, ET AL.,Plaintiffs,-versus- CIVIL CASE NO. 0045
EDUARDO M. VILLANUEVA and
PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT,Defendants.
X - - - - - - - - - - - - - - - - - - - - - - - - - - - x
JOSE L. AFRICA, ET AL.,Plaintiffs,-versus- CIVIL CASE NO. 0047
MELQUIADES GUTIERREZ,
ET AL.,
Defendants.
X - - - - - - - - - - - - - - - - - - - - - - - - - - - x
VICTOR AFRICA, ET AL.,Plaintiffs,-versus- CIVIL CASE NO. 0130PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT, ET AL.,Defendants.
X - - - - - - - - - - - - - - - - - - - - - - - - - - - x
TRADERS ROYAL BANK,Plaintiff,-versus- CIVIL CASE NO. 0131PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT, ET AL.,Defendants.
X - - - - - - - - - - - - - - - - - - - - - - - - - - - x
FAR EAST BANK & TRUST CO.,Plaintiff,
-versus- CIVIL CASE NO. 0139
PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT, ET AL.,
Defendants.
X - - - - - - - - - - - - - - - - - - - - - - - - - - - x
STANDARD CHARTERED BANK,Plaintiff,-versus- CIVIL CASE NO. 0143
PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT, ET AL.,Defendants.
X - - - - - - - - - - - - - - - - - - - - - - - - - - - x
TRADERS ROYAL BANK,Plaintiff,-versus- CIVIL CASE NO. 0128
PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT, ET AL.,Defendants.
X - - - - - - - - - - - - - - - - - - - - - - - - - - - x
DOMESTIC SATELLITE
PHILIPPINES, INC.,Petitioner,-versus- CIVIL CASE NO. 0106
PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT AND THE
ASSET PRIVATIZATION TRUST,
X - - - - - - - - - - - - - - - - - - - - - - - - - - - x
PHILIPPINE COMMUNICATIONS
SATELLITE CORPORATION AND
PHILIPPINE OVERSEAS TELE-
COMMUNICATIONS CORPORATION,Plaintiffs,-versus- CIVIL CASE NO. 0114
PRESIDENTIAL COMMISSION Present:
ON GOOD GOVERNMENT, HERMOSISIMA, J., Chairman,
Defendant. DEL ROSARIO & DE LEON, JJ.Promulgated: April 15, 1993
X - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -xR E S O L U T I O N
DE LEON, J.
Submitted for resolution is the Motion for Consolidation, dated June 22, 1992, filed by the Republic of the Philippines (represented by the PCGG), through counsel.
The record shows that there is no opposition in the above-entitled cases to the said motion. It also appears that the subject matters of the above-entitled cases are and/or may be treated as mere incidents in Civil Case No. 0009.
WHEREFORE, the above-entitled cases are hereby ordered consolidated with Civil Case No. 0009, and shall henceforth be considered and treated as mere incidents of said Civil Case No. 0009.
SO ORDERED.
Manila, Philippines, April 12, 1993.17
Section 1, Rule 31 of the Rules of Court provides:
Section 1. Consolidation. '“ When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. (Emphasis supplied)
Where several actions are ordered to be tried together but each retains its separate character and requires entry of a separate judgment. This type of consolidation does not merge the suits into a single action, or cause the parties to one action to be parties to the other.
The effect of consolidation of actions is to unite and merge all of the different actions consolidated into a single action, in the same manner as if the different causes of action involved had originally been joined in a single action, and the order of consolidation, if made by a court of competent jurisdiction, is binding upon all the parties to the different actions until it is vacated or set aside. After the consolidation there can be no further proceedings in the separate actions, which are by virtue of the consolidation discontinued and superseded by a single action, which should be entitled in such manner as the court may direct, and all subsequent proceedings therein be conducted and the rights of the parties adjudicated in a single action.18 (Emphasis supplied)
In Teston v. Development Bank of the Philippines, the Court laid down the requisites for the consolidation of cases, viz:
'A court may order several actions pending before it to be tried together where they arise from the same act, event or transaction, involve the same or like issues, and depend largely or substantially on the same evidence, provided that the court has jurisdiction over the cases to be consolidated and that a joint trial will not give one party an undue advantage or prejudice the substantive rights of the parties.'
The rule allowing consolidation is designed to avoid multiplicity of suits, to guard against oppression or abuse, to prevent delays, to clear congested dockets, and to simplify the work of the trial court '“ in short, the attainment of justice with the least expense and vexation to the parties-litigants.
x x x
In the present case, it would be more in keeping with law and equity if all the cases filed against petitioner were consolidated with that having the lowest docket number pending with the Third Division of the Sandiganbayan. The only notable differences in these cases lie in the date of the transaction, the entity transacted with and the amount involved. The charge and core element are the same '“ estafa through falsification of documents based on alleged overstatements of claims for miscellaneous and extraordinary expenses. Notably, the main witness is also the same '“ Hilconeda P. Abril.
It need not be underscored that consolidation of cases, when proper, results in the simplification of proceedings which saves time, the resources of the parties and the courts and the abbreviation of trial. It contributes to the swift dispensation of justice, and is in accord with the aim of affording the parties a just, speedy and inexpensive determination of their cases before the courts. Above all, consolidation avoids the possibility of rendering conflicting decisions in two or more cases which would otherwise require a single judgment.25 (Emphasis and underscoring in the original)
REPUBLIC OF THE PHILIPPINES
SANDIGANBAYAN
MANILA
Third Division
Republic of the Philippines,
Plaintiff,CIVIL CASE NO. 0009-versus- (Incident Case No. 0130and G.R. No. 107789)
JOSE L. AFRICA, ET AL.,
Defendants.
x---------------------------------- xSECOND AMENDED NOTICE TO TAKE DEPOSITION OF MR. MAURICE V. BANE UPON ORAL EXAMINATION
---------------------------------------------------------------------------------------
Pursuant to Rule 2426 of the Revised Rules of Court, notice is hereby given to defendants Jose L. Africa (deceased) thru his Estate represented by Victor Africa and Atty. Juan de Ocampo and Atty. Yolanda Javellana, Manuel H. Nieto, Jr., Ferdinand E. Marcos (deceased) thru his Estate represented by Special Administratrix BIR Commissioner Liwayway Vinzons-Chato, Imelda R. Marcos, Ferdinand R. Marcos, Jr., Juan Ponce Enrile, and Potenciano Ilusorio thru their counsels on records that Plaintiff thru the undersigned counsel will take the testimony by oral deposition of Mr. Maurice V. Bane c/o Cable & Wireless Plc., 124 Theobalds Road, London WC1X 8RX, England on October 23, 24 and 25, 1996 at 9:00 a.m. and 2:00 p.m., until finished before the Philippine Consul General in London, England, in his office or in a suitable place in London or in Wales, England, as may be advised to the parties.
The purpose of the deposition is for Mr. Maurice Bane to identify and testify on the facts set forth in his Affidavit hereto attached as Annex 'A' so as to prove the ownership issue in favor of plaintiff and/or establish prima facie factual foundation for sequestration of Eastern's Class A stock in support of the 'Very Urgent Petition For Authority To Hold Special Stockholders' Meeting For the Sole Purpose of Increasing Eastern's Authorized Capital Stock' (Incident Case No. 0130 '“ G.R. No. 107789). The deposition of said witness shall be used in evidence in Incident Case No. 0130-G.R. No. 107789 as well as in the main case of Civil Case No. 0009. (Underscoring in the original; boldfacing supplied)
It may be true that Section 34, Rule 132 of the Rules directs the court to consider no evidence which has not been formally offered and that under Section 35, documentary evidence is offered after presentation of testimonial evidence. However, a liberal interpretation of these Rules would have convinced the trial court that a separate formal offer of evidence in Civil Case No. 6518 was superfluous because not only was an offer of evidence made in Civil Case No. 6521 that was being jointly heard by the trial court, counsel for Jose Renato Lim had already declared he was adopting these evidences for Civil Case No. 6518. The trial court itself stated that it would freely utilize in one case evidence adduced in the other only to later abandon this posture. Jose Renato Lim testified in Civil Case No. 6518. The trial court should have at least considered his testimony since at the time it was made, the Rules provided that testimonial evidence is deemed offered at the time the witness is called to testify. Rules of procedure should not be applied in a very rigid, technical case as they are devised chiefly to secure and not defeat substantial justice.31
Sec. 4. [Rule 23] 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:
(a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as witness;
(b) The deposition of a party or of any one who at the time of the taking of the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose;
(c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (1) that the witness is dead; or (2) that the witness 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; and
(d) if only part of the deposition is offered in evidence by a party, the adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.
Sec. 47. [Rule 130] 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. (Emphasis supplied)
[I]n general the testimony is offered to prove that the Class A stockholdings in Eastern Telecommunications Philippines Inc, or 'Eastern' for short, otherwise referred to as the Filipino 60% equity, is ill gotten in nature; that the actual and/or beneficial owner of said shares was the late President Ferdinand Marcos; and that accordingly, said shares are subject to reversion and/or forfeiture in favor of the Plaintiff Republic of the Philippines in this case. Specifically, the testimony is offered to establish the environmental facts and attendant circumstances surrounding the formation and organization of Eastern in 1974; that there was duress and/or compulsion exerted upon Cable & Wireless and its wholly owned subsidiary, the Eastern Extension Australasia Telegraph Company, of which the witness was the then General Manager in the Philippines, such that Cable & Wireless and Eastern Extension Australasia were forced or compelled to give up their legitimate business activities in the Philippines which was 100% British owned in favor of Eastern, which was to be newly organized as a 60/40 Filipino company, with 40% being for the account of the company of the witness, Mr. Bane.
In short, the witness will establish in these proceedings that President Marcos and/or his emissaries or parties acting on his behalf gave the witness only two possible options which was: (1) a 40% equity in the company to be newly organized, which is Eastern in exchange for surrendering all of the assets and franchise of Eastern Extension Australasia; or 100% of nothing, meaning that if the witness and his company refused to give up their legitimate business in the Philippines then Marcos made it clear that there will be no more Eastern Extension Australasia that would be operating in the Philippines.
Lastly, the testimony is offered to prove the ownership issue that is involved in this case in favor of the Plaintiff, and also support the pending petition of Eastern Telecoms to increase its authorized capital stock from the present 250 million pesos to 4 billion pesos by allowing the PCGG to vote the sequestered Class A stock in the company. Hence, the testimony will establish the prima facie factual foundation for maintaining the sequestration of the Class A stock.35
In the 2006 case of Yuchengco v. Sandiganbayan,47 this Court overturned the ruling of the Sandiganbayan's Partial Decision and held that the testimonies through depositions of Campos, Gapud and de Guzman established the Marcoses' beneficial ownership of Prime Holding Incorporated (PHI). The Court ruled that 'the testimonies of Campos, Gapud, and de Guzman, persons who actually participated in the formation and early years of operation of PHI, constitute evidence that directly addresses the critical issue.'48
MR. LIM: Mr. Bane, paragraph 2 of your affidavit refers to a company ETPI, the acronym in letter 'ETPI.' May I ask you, sir, what is ETPI? A That's Eastern Telecommunications Philippines, Incorporated. Q ETPI and Eastern refer to the same company, which is Eastern Telecoms or the full name thereof, Eastern Telecommunications Philippines, Inc? A That's correct, yes. Q Again, your Honor, for consistency in the proceedings, instead of ETPI, the questions and the answers will refer to 'Eastern Telecommunications Philippines, Inc' as simply 'Eastern.' Paragraph 2 also of your affidavit refers to 'EEATC.' Please, sir, tell us, Mr. Bane, what position, what particular position you held in EEATC when it was operating in the Philippines? A I was the general manager. Q Was that the highest position in the Philippines? Was that the highest office in EEATC in the Philippine operation? A Yes, it was, yes, the British terminology for these things quite often is that we always used to refer to 'managers' but the American terminology, of course, is usually 'president' it was the equivalent of. Q Thank you, sir. Now, just for clarity can you elaborate on what was EEATC in relation to Cable and Wireless or C&W? MR. AFRICA: He has already answered, your Honor. A Yes, it was a wholly, 100% owned subsidiary of Cable and Wireless.[37] x x x Q x x x Mr. Bane, I would refer you back to paragraph 3 of your affidavit, sir. I noted from your narration in paragraph 3 that the earth satellite stations contract which you had just explained was awarded after bidding by President Marcos to a company you mentioned here which is Philippines Overseas Telecommunications Corporation, or POTC. My question is: do you know this POTC, what was it? A Yes, it was the - - I think I'm correct in saying - - it was the management arm of Philcomsat. Philcomsat, Philippines Telecommunications Satellite Corporation. POTC, well the managers of Philcomsat, and I understand that the shareholders were the same in each case. Q In this paragraph, sir, you stated in reference to Philippine Overseas Telecommunications Corporation or POTC that it was 'relatively unknown in the international telecommunications industry.' Could you explain that?[38] x x x A Well, there were some, I should imagine, some ten or twelve companies were bidding or hoping to be awarded the earth station contract. Among those was my own company, Eastern - - EEATC. We had not heard of, any of us: RCA, ITT, the large number of other domestic companies such as Clavicili and others, were all bidding for this earth station and none of us had heard of POTC until it suddenly emerged that it was a company that had been formed and that very shortly after our bids all went in, we heard that it had been, that the contract had been awarded to Philippines Overseas Telecommunications Corporation. Q Thank you, sir. (Off the record) May I proceed, your Honor? Did you find out who were the people behind POTC? A Yes Q And who were they? A To the best of my recollection the incorporators were Potenciano Ilusorio, Honorio Poblador, Ambassador Nieto, Ambassador Benedicto, and I think there were two other gentlemen, one of them I think was the brother in law of Mr. Nieto and the other one I cannot recall - - no, I can't recall his name. He died fairly soon after, I think, that was formed.[39] x x x MR. LIM: Mr. Bane, you mentioned personalities like Potenciano Ilusorio, Honorio Poblador, Manuel Nieto Jr., Roberto Benedicto. My question to you, sir, is: what was your personal impression of these gentlemen vis-á-vis, for instance, the Marcos administration? A Well, it was common knowledge among the expatriate, senior expatriate community that these gentlemen were close associates of President Marcos. MR. AFRICA: May I also object again, your Honor please, to the statement of the witness. Again, it's not a statement of fact but only a matter of discussion among his co-workers, but facts again are different from what his perception was. MR. LIM: That is noted, your Honor. CONSUL GENERAL: That is noted, Mr. Africa. MR. LIM: Mr. Witness, was this group of people, these gentlemen or personalities that you have mentioned, do you know if they were later on identified with any particular business or industry sector in the Philippines? A Yes, they were identified with telecommunication interests. Q Was there an occasion when your own company, EEATC, forged a partnership or business with POTC? A Yes, there was. Q What was the business that the two companies forged or engaged in? A That business was to establish a tropospheric scatter system between the Philippines and Taiwan. In actual fact, it was three companies involved: it was POTC and also Western Union International in the United States, and Eastern Extension or EEATC. x x x Q So that tropospheric scatter system became operational? A Oh yes, yes. Q Do you know if the system was inaugurated? A It was, yes. Q Who were the principal guests during the inauguration? A President and Mrs. Marcos. Q Now what technical qualification did your company, EEATC, have to operate that tropospheric scatter system? A In addition to being a 20% stockholder, my company was appointed as managers. Eastern, with the backing of Cable & Wireless, was able to provide all the necessary technical expertise for the implementation and operation of the system. Cable & Wireless as such has done these systems, a large number of these systems worldwide, so we had all the experience necessary. Q At that time, meaning at the time this tropospheric scatter system was established, what was your company then, what was your company at that time? A Eastern Extension Australasia and China Telegraph. Q EEATC? A EEATC. Q If you don't mind, sir, kindly refer to that as EEATC instead of Eastern. What technical qualification did POTC have to be able to be EEATC's partner in this tropospheric system business? A To the best of my knowledge little or no technical qualification.[40] x x x Q Now Mr. Bane, let me now take you to paragraph 5 of your affidavit and if I may read to you, sir. Paragraph 5: When President Marcos declared Martial Law in September 1972, it was clear that his grip on the country was virtually complete. C&W was fully aware of its uneasy tenure in the Philippines. In March 1973, then Secretary of National Defense Juan Ponce Enrile called us to a conference at Camp Crame. I attended said meeting together with the representatives of RCA and Globe Mackay. Secretary Enrile firmly told us that we had until July 1974 to organize ourselves into 60/40 corporations with Filipino majority ownership and, if we did not comply, the Government would take the necessary action. First of all, please explain and elucidate on your statement 'C&W was aware of its uneasy tenure in the Philippines.' A Well, prior to Martial Law we were operating quite comfortably as a company, but with the implementation of Martial Law there was great deal of uncertainty as to what might happen in the country under Martial Law. In other countries it had been known that things were, shall we say, nationalized or taken over and, of course, there was a certain degree of unease among us when we discussed in the Cable & Wireless that something similar might happen in the Philippines. Q Now you made mention in this paragraph that I read of other companies, namely RCA and Globe Mackay. What were these companies? A They were similar to EEATC, operating in exactly the same fashion, doing the same type of business, all three of us were competing against each other for international business. Q Do you know the nationality of RCA and Globe Mackay? A They were both 100% American corporations. Q Whereas EEATC was, according to you, 100% British? A That is correct, yes. Q Except for that difference in the nationality the three of you, meaning EEATC, RCA and Globe Mackay, were engaged in the same kind of business which was telecommunications in the Philippines? A Correct. x x x Q Now, can you remember where in Camp Crame this meeting took place? A Yes, it was in a fairly large boardroom. I would imagine the table was large enough to accommodate about 16 people. I had the impression that it was the board room perhaps attached to the Secretary of Defense's office in Camp Crame. Q Now, was it actually Secretary of National Defense Juan Ponce Enrile who met with you? A Yes, it was. Q In person? A In person. Q Now, in paragraph 6 of your affidavit which is a reference to what transpired in that meeting, you stated, and I would like to quote the short sentence in paragraph 6: 'I pointed out that - - ' I withdraw the question. Mr. Witness, what transpired in this meeting with Secretary Enrile? In other words, why did he call you together with RCA and Globe Mackay people to a meeting? A Well, he said, as far as I can recall and after all it's a long time ago, he recalled that the meeting was to in effect spell out the rules in terms of telecommunications. He pointed out to RCA and ITT that under the Laurel-Langley Act, which was due I think in July 1974 to expire, that they would have to go 60% Philippine ownership. I think that I'm pretty sure that Mr. Voss or his lawyer did say that their franchise in actual fact was established in 1924 and therefore it fell without, beyond the Laurel-Langley Act, but I seem to recall that Attorney Enrile said that that's not germane, you will go 60/40. He also said to us, EEATC, that you will go 60/40. x x x MR. LIM: x x x My question, sir, is: what exactly did Secretary Enrile tell you, and I refer to your person, and your lawyer who was with you, Attorney Luciano Salazar? A After he dealt with RCA and Globe Mackay, I said to him: well, the Laurel-Langley Act does not apply to EEATC; we are 100% British corporation, our franchise goes back to 1880 and we were the first company, actually, to connect the Philippines to the outside world in communications, granted by Queen Isabella of Spain, I think, and after the War, the Second World War, the franchise was renewed by President Quirino in 1952, I think it was. x x x Q You mean to tell the court that Secretary Enrile also included your company EEATC to be made 60/40? A Oh yes. Q Now, your companion, Attorney Luciano Salazar, did he say anything to Mr. Enrile? A Yes, he did. Q What was his remark or explanation if any? A He said that the franchise was perfectly constitutional and that Mr. Bane was quite correct and that legally there was no reason for Eastern to go 60/40. Q When you say now, just now Eastern you are referring to EEATC? A EEATC, yes. x x x MR. LIM: Did Secretary Enrile respond favorably to the explanations of Attorney Salazar? A No, he did not. He said that if EEATC did not move to a 60/40 position then there would be no EEATC. x x x Q What options did Secretary Enrile give you during this meeting? MR. AFRICA: Same objection, your Honor please, which is that Secretary Enrile is the best witness for this particular aspect. MR. LIM: Same request for - - subject to a court ruling later. A Two options really: to become 60/40 Filipino corporation or to, in effect, have 100% of nothing, because there would not be any EEATC.[41] x x x MR. LIM: Thank you, your Honor. Mr. Bane, we ended your testimony with your confirmation that the events narrated in paragraph 7 up to paragraph 14 of your affidavit all transpired after that meeting in March 1973 with Secretary Enrile, so my question now is: in particular what followed after that meeting with Secretary Enrile, was the formation and organization of Eastern in 1974? A Mmm. Q Is that correct? A Well, yes, the events really were I had to advise Cable & Wireless Hong Kong, who were very closely connected with the Philippines, of the situation and I said we had no alternative but to go to a 60/40 corporation. It was decided that I should come back to London and discuss it with the directors of Cable & Wireless in London. Also, we were asked at the meeting, which perhaps I forgot earlier on, by Secretary Enrile for progress reports of moving to 60/40 corporation. So I wrote a letter to Secretary Enrile and said that we were now actively planning and that I had already spoken to one or two other telecommunication corporations but that I had to return to London to discuss it with my senior directors. It was difficult at that time because it was Martial Law. No people were allowed to leave the Philippines so, through that letter, I made an application to leave and I was granted leave to come back to the UK to discuss with Cable & Wireless the formation of a 60/40 corporation. Q Eventually, after clearing all those hurdles, after doing all the groundwork, I mean after passing through all the groundwork and the details, eventually what transpired was the organization of Eastern in 1974 as a 60/40 Filipino corporation? A That is correct, yes. Q And the 40% or minority equity was taken by your company, Cable & Wireless? A Correct, yes. Q Mr. Bane, would you, and I refer to your person, have agreed to divest of 100% British owned EEATC if pressure was not exerted on you by Secretary Enrile? MR. AFRICA: Objected to, your Honor please, no relevance. MR. LIM: I am asking the witness for his answer to the basic facts that now present themselves as a result of the previous testimony. MR. AFRICA: The same objection, your Honor. It calls for a personal opinion. MR. LIM: Subject to the court's ruling may I ask the witness to answer? May I repeat the question, sir? Would you, and I refer to you person, have acceded or agreed to divesting yourself of 100% British owned EEATC in favor of only 40% equity in a new corporation, if pressure was not exerted on you by Secretary Enrile? A No, I would not; I would have continued with EEATC as 100% British Corporation. You see, you have to appreciate that I had all the resources and all the backing and all the financial support of Cable & Wireless who were the largest telecommunications operator in the world. We could have quite easily '“ and I know that finance would have been available from them '“ we could have quite easily continued as 100% British corporation. Q Would Cable & Wireless, your own company, have agreed to the divestment of 100% British owned EEATC if pressure was not exerted by Secretary Enrile? A No, I don't think they would. x x x MR. LIM: In other words, you are saying that had it not been for that fateful meeting with Secretary Enrile and the pressure was brought to bear on your person and your company you would not have agreed to organizing Eastern in 1974? MR. AFRICA: Same objection, your Honor, please, calling for an opinion and a conclusion. A No, I would not. MR. LIM: And the same thing is true with your company, C&W, there would have been no permission or approval from C&W? MR. AFRICA: Same objection, your Honor, please. A No, they would not. MR. LIM: And when you say no, you would not, you are saying that your person and C&W would not have agreed to divesting EEATC of 100% British control? MR. AFRICA: Same objection, your Honor, please. A Correct. MR. LIM: He said 'That's correct.' Did you, and I refer to your person, or Attorney Salazar check or try to find out if Secretary Enrile was acting for President Marcos in reference to this March 1973 meeting? A No, no we didn't. It was under Martial Law and I mean when you spoke of President Marcos you spoke of Secretary Enrile, they were the two very close people. Martial Law, after all, was declared as a result of an apparent attempted assassination on Secretary Enrile. There was no point in us trying to appeal to President Marcos. We had to accept that what Secretary Enrile said was in effect President Marcos.[42] x x x MR LIM.: Now, subject to the same request for a later ruling from the court, do I understand it, Mr. Bane, that initially you were talking to Ilusorio and Poblador? A That's correct. Q But later in the negotiations the two were out and you were now just talking to Mr Nieto? A Not just to Mr. Nieto; we were also talking to Attorney Jose Africa. Q So let me clarify that. After the Enrile meeting and because of your decision to just go along with what Enrile wanted, there was this process set into motion to organize a new outfit and at the start you were talking to Ilusorio and Poblador, is that right? A Correct. Q Later on, and this was before Eastern was organized, you continued the negotiations, this time with Ambassador Manuel Nieto junior and Attorney Jose L. Africa, is that correct? A Correct. Q Now, there is a statement in paragraph 9: 'We learned much later that this was upon the instructions of President Marcos.' Who told you that President Marcos had issued the instruction to be dealing with Nieto? MR. AFRICA: Objected to, your Honor, asking for '“ MR. LIM: I am asking the source of the statement. MR. AFRICA: My objections, I am just putting it on record: objected to for asking for hearsay evidence. MR. LIM: Subject to a later ruling, your Honor. A It was either Ambassador Nieto or Attorney Africa. Q Now, I show you paragraph 10 of your affidavit which is continued, I am sorry I show you paragraph 10, I draw your attention to paragraph 10 of your affidavit which is found on page 4. Do you confirm and ratify in particular what is stated in paragraph 10 of the affidavit? MR. AFRICA: Subject to question and answer later on, your Honor, please. A Yes. MR. LIM: Thank you, sir. May I request, your Honor, that the entire paragraph 10 be sub marked as Exhibit C-12-C-1 and that the last sentence therein reading: 'Africa quickly spelt out the rules '“ that they were interested in the proposition and that we were to deal only with the BAN group (composed of Roberto Benedicto, Jose Africa and Manuel Nieto, Jr.,). We were informed that this was at the express wish of President Marcos who had appointed their group to control telecommunications interests;' that that particular sentence be now underscored but same would be part of C-12-C-1 which is the entire paragraph 10, but the last sentence I request that it be underlined or underscored for emphasis. (Marked) Q What participation did you have in the organization of Eastern? A I was very deeply involved, together with our director from London, Wilfred H. Davies and also our finance director, David West. Q Were you one of the incorporators of Eastern? A I was, yes. Q Did you sign the Articles of Incorporation of Eastern? A I did. Q Would you have agreed to be one of the incorporators of Eastern and signed its Articles if no pressure was exerted on you by Secretary Enrile? MR. AFRICA: Objected to, your Honor, please. MR. LIM: I request an answer for the same reason. A No, I don't think I would. Q What is that, Mr Bane? A No, I would not, no. Q You are telling the honorable court that your agreeing to incorporate Eastern and your having signed the Articles of Eastern was the result of that pressure during the Enrile meeting in March of 1973? MR. AFRICA: Same objection, your Honor. A Yes, that is correct, because we would have continued as 100% British corporation. So the pressure was brought to bear upon us to go to a 60/40 corporation. MR. LIM: I notice from the Articles of Incorporation of Eastern that you are the Treasurer in Trust, that you were the Treasurer in Trust, meaning the Treasurer upon the incorporation of Eastern? A Yes, that's true.43 x x x MR. LIM: That is the tenor of the affidavit. Just to satisfy that concern I will rephrase the question. Do you know what happened to the assets of EEATC when Eastern was incorporated on June 10, 1974? A Yes, Eastern purchased all the assets of EEATC. Q I would like to draw your attention to paragraph 12 of your affidavit which I read: 'The figure eventually negotiated for the assets (net book value only and no good will) was ten million pesos (P10,000,000.00) on the basis of which the BAN group will put up six million pesos (P6,000,000.00). Further meetings took place to finalize the details but Africa later informed us that they could not raise the required amount. As a compromise, he suggested that the new corporation raise a bank loan from which 'C&W' could be paid. While we were not happy with this arrangement, we resigned ourselves to the fact that we would have to accede. It was agreed that stockholders' contribution would be five million pesos (P5,000,000.00) plus a bank loan of seven million pesos (P7,000,000.00) to cover asset payment and working capital. Africa then advised that they could only raise one million pesos (P1,000,000.00) and 'C&W' could loan them two million pesos (P2,000,000.00). Again, we were unhappy but again we complied.' My question is: do you confirm the correctness of this narration including the figures mentioned here? MR. AFRICA: Subject to question and answer, your Honor please, as there are statements which are of conclusion and/or hearsay. A Yes, I do confirm that that's precisely what happened. MR. LIM: What this one million pesos which was the amount that the Africa group said they could only raise, what was this one million? A Well, it was their contribution to the capital of the company. Q Aside from the one million pesos contribution to the capital of Eastern from the Filipino group of Benedicto, Africa, and Nieto, do you know if additional contributions in terms of money were made by them afterwards? A Well, in as much as that they repaid the loans that C&W granted them out of the dividends yes, there were in effect contributions, I suppose. Q How much was the amount of the loan? A Two million pesos. Q That two million pesos loan was repaid by the Filipino group out of stock dividends? A No, out of '“ yes, stock dividends, yes, cash dividends. Q Cash dividends? A Cash dividends as I recall. Q Now, aside from that were there any subsequent contributions to the capital of Eastern from the Filipino group? A Not as far as I can recall, no. Q So in terms of cold cash or money, what they contributed initially was only one million pesos? A Correct. Q The loan that they got from C&W of two million was repaid to the company, or to C&W in terms of the dividends? MR. AFRICA: Already answered, your Honor. A Yes, yes, correct. MR. LIM: Who granted the loan to the Filipino group? A The Hong Kong and Shanghai Bank. Well, they didn't grant it to the Filipino group; they granted it to Eastern. Q And was there a guarantee made for that loan? MR. AFRICA: Leading, your Honor please. A Yes, a guarantee was made by Cable & Wireless. MR. LIM: I request, your Honor, for emphasis that paragraph 12 of the affidavit which has been read into the record and which has been confirmed by the witness be bracketed and sub marked as Exhibit C-12-d-1, paragraph 12. (Marked) Mr Bane, would you or your company Cable & Wireless have agreed to that kind of payment arrangement, which is to pay in dividends, if it were not for the pressure from Secretary Enrile? MR. AFRICA: Same objection, your Honor please. A No, we would not; it wasn't, it was not standard business practice in any way at all. We would not normally have agreed to a condition such as that. x x x Q Mr Bane, what was the position of Manuel Nieto Jr. in Eastern after incorporation? A He was the President. x x x Q Now, Mr Bane, paragraph 13 of your affidavit mentions that: 'Attorney Luciano Salazar drafted the Presidential Decree for the transfer of EEATC's franchise to Eastern, that said draft decree was personally delivered to Manuel Nieto, Jr., who committed to secure President Marcos' approval and signature.' Do I take it that this was in 1974 contemporaneously with the organization of Eastern? A Yes, it was. Q You said Manuel Nieto Jr., was the Eastern President? A That's correct. Q Was Mr. Nieto able to secure the approval of President Marcos to the transfer of EEATC's franchise to Eastern? A Yes, he was, it was issued under Presidential Decree. Q If I show you a copy of that Presidential Decree would you be able to recognize it in the sense that it refers to your company, the former EEATC, not former, the EEATC? A Yes. (Handed) Q At this point, your Honor, I make of record that this representation has handed to Mr. Maurice Bane Exhibit C Motion Increase in Capital. A Yes, that is indeed the Presidential Decree. Q Your Honor, may I make a little correction in my manifestation. What I handed to the witness is a photocopy of Presidential Decree 48944 with the Exhibit marking being reproduced as part of the document, the document actually marked as Exhibit C is now part of the case records. Now, Mr. Witness, please tell the court whether you had any personal participation in the preparation of this particular decree PD 489? A Yes, I did. I consulted with Attorney Salazar. We went through the Eastern franchise and so to that extent, in putting this together, yes I did co-operate with Attorney Salazar, although of course Attorney Salazar was the prime person behind drafting the document. Q Your affidavit mentions that this was approved by President Marcos in the entirety of the draft decree as prepared by Attorney Salazar and you, meaning no correction was made by Malacañang. My question is: what did that convey to you, meaning the fact that Marcos approved the Presidential Decree drafted by Attorney Salazar and yourself without revision or amendment? MR. AFRICA: Objected to, your Honor please, asking for an opinion and a conclusion. MR. LIM: That is very relevant, your Honor, the witness having participated in preparing this. MR. AFRICA: Anyway, my objection is on the record. A Well, Mr. Nieto undertook and promised us that he would get the draft Presidential Decree signed into law by President Marcos. MR. LIM: And was he able to deliver on his promise? A He certainly was. You can see the signature on the bottom. Q Witness referring to '“ A I do recognize that signature, yes, as President Marcos' signature. Q Your Honor, at this point may I request that this draft '“ I'm sorry that this copy of PD 489 be again marked in this deposition proceedings as Exhibit D Deposition Bane and the signature of President Marcos at the bottom of page 2 pointed at by the witness be sub marked and bracketed as D-1 Deposition Bane. (Marked) Mr. Bane, did you also serve as director of Eastern, one of the directors, I mean, of Eastern? A Yes, I was for a time, a short period of time. Q Now, after Eastern's incorporation in 1974 did you carry on as an officer of Eastern? A Yes, I did. Q What positions? A Executive Vice President and Treasurer. Q And as you said this was up to 1987? A Yes. x x x Q Would you have acceded to that kind of set up, meaning having Filipino partners in the persons of Mr. Nieto and later Attorney Africa if it were not for the pressure from Secretary Enrile during your March 1973 meeting? MR. AFRICA: Already answered, your Honor please. A I can only repeat what I said before, that no, of course I would not. MR. LIM: Now, during your stint with Eastern in association with Mr. Nieto and later with Attorney Jose Africa, do you know of instances when President Marcos intervened on behalf of Eastern, or showed personal interest for Eastern? MR. AFRICA: Question is vague and intervene is an all-encompassing word. MR. LIM: I reform, your Honor. Mr Bane, you said that from 1974 continuously up to 1987 you were associated with Eastern, you were one of its officers and you were working with Filipino directors or officers. During this time the President of the Philippines of course was continuously Mr. Marcos. My question, sir, is: during your incumbency in Eastern do you know of instances when President Marcos helped your company obtain correspondenceships, or in its competition with PLDT? A Yes, I do, yes. Q In what way did Marcos help Eastern? A Well, once the company was formed and under the formation of the company Eastern or Cable & Wireless had a management contract to manage the company, we could see that telecommunications development was very badly needed in the Philippines. The satellite earth station had been constructed and the Tropo had gone in, but there was still a very large demand for circuits. We therefore devised a plan to put underseas cables, telephone cables, from the Philippines to Japan, from the Philippines to Hong Kong, Philippines to Singapore and then latterly Philippines to Taiwan. For that we obviously needed approvals right at the top, because we were, in effect, in competition with PLDT. PLDT were really dragging their heels in development, perhaps because of lack of financing or whatever. So we saw an opportunity to perhaps establish Eastern as a major player in the Philippines telecommunications. I therefore drafted a letter which was '“ what is the word I'm looking for perhaps '“ which was fine tuned perhaps is the best word, by Attorney Jose Africa. And this set out Eastern's plans for development of submarine cable systems and everything else, and we asked at the bottom of the letter for Presidential approval. And this letter was signed by Ambassador Nieto; it was taken to Malacañang and it was signed, written across the top of the page, I think the words were just 'Approved, President Marcos' so we received approval, direct approval from President Marcos to proceed with the implementation of this very big cable project. It meant to say that we had bypassed the national telecommunications commission under whose authority this would normally have been submitted, but knowing as we did that with PLDT's opposition we probably wouldn't have got it through the NTC. Q So it was President Marcos himself who gave the approval for Eastern to undertake the construction of these submarine cables that you mentioned? A That's correct, yes. Q And can you tell us the significance of that designation, what happened to Eastern because it got this project? A Well, by putting in the submarine cable systems, since we were financing them, we had to have the approval of, of course, the distant administration '“ in this case Hong Kong, Singapore and Taiwan, so one of the benefits that accrued from this was that we became a telephone correspondent to these countries. After all, these cables were very high capacity. I think to Hong Kong they were 1380 telephone circuits, to Japan 960 telephone circuits, so that what it did it was for the great benefit of the Philippines. We used the phrase in the letter 'to make the Philippines the hub of telecommunications in South East Asia,' which we hoped we were going to do and I think to a large extent we did do. The ultimate benefit to Eastern was quite considerable, it enormously increased cash flow and of course from that we financed the cables.45 x x x Q Mr. Bane, you stated that you were with Eastern for 21 years? A That's correct, yes. Q 21 continuous years. A With EEATC and with Eastern. x x x Q Mr. Bane, were there other stockholders of Class A during this 21 year period? A The only changes that I was aware of that were made was that Attorney Jose Africa pointed out to me, after the incorporation, that they wanted to put some of the stock, or they would put some of the stock in the name of various companies. He also mentioned that of course they were going to put some small, a very small minority of shares in the names of family members. That's as far as I knew. Q These companies, what companies were these? Or rather, excuse me sir, rather what would be the nature of these companies? A I don't know, I don't know what the companies were. I do know the names. I think Ambassador Nieto's was Aerocom, was Ambassador Benedicto's Universal Molasses, I can't remember? And then Attorney Jose Africa, I think,was Polygon. Q Now having been associated with Manuel Nieto Jr. and Jose L. Africa and also Mr. Benedicto for many years, did you come to know at any time during that period of association with them whether President Marcos had any participation or control in their stockholdings in Eastern? MR. AFRICA: Please, objected to, your Honor, witness isn't competent. The best witnesses would be the persons themselves, not what this witness has been told. MR. LIM: If the witness knows, your Honor. MR. AFRICA: But what he was told, not what is true, or what is true and correct? A No, I was not told that President Marcos had a stockholding in Eastern. There was, of course, speculation among ourselves as to '“ in a vague sort of way we often wondered. The only time that I actually knew that President Marcos had a significant stockholding in Eastern was when, after sequestration, Ambassador Nieto went on to television and stated on television that I think first of all he stated something about Philcomsat POTC and he then stated on television that President Marcos owned 40% of the stock of Eastern. That's the only time that I was, I had any direct, shall we say, or had been directly informed '“ by television of course '“ that President Marcos was a stockholder.46
In all cases involving alleged ill-gotten wealth brought by or against the Presidential Commission on Good Government, it is the policy of this Court to set aside technicalities and formalities that serve merely to delay or impede their judicious resolution. This Court prefers to have such cases resolved on the merits before the Sandiganbayan. Substantial justice to all parties, not mere legalisms or perfection of form, should now be relentlessly pursued. Eleven years have passed since the government started its search for and reversion of such alleged ill-gotten wealth. The definitive resolution of such cases on the merits is thus long overdue. If there is adequate proof of illegal acquisition, accumulation, misappropriation, fraud or illicit conduct, let it be brought out now.50cralaw
Endnotes:
1 Under Rule 65 of the 1997 Rules of Civil Procedure.
2 See Petition for Certiorari, dated 14 March 2002, p. 12; rollo, p. 13.
3 Upon his demise, Jose L. Africa was eventually substituted by his heirs as defendants in Civil Case No. 0009. Victor Africa is one of the legal epresentatives/forced heirs of deceased respondent Jose L. Africa; Sandiganbayan Resolution issued on 1 April 1998, p. 6; rollo, p. 336.
4 Promulgated on 15 April 1993.
5 See Sandiganbayan Resolution issued on 1 April 1998, p. 5; rollo, p. 335; Records, pp. 6646-6649.
6 Rollo, pp. 68-71.
7 Id. at 322-329.
8 See Sandiganbayan Resolution issued on 1 April 1998, p. 6; rollo, p. 336.
9 Sandiganbayan Resolution issued on 21 August 2000, pp. 3-4; rollo, pp. 354-355.
10 Sandiganbayan Resolution issued on 3 April 2001, p. 2; rollo, p. 358.
11 Rollo, pp. 63, 65-67.
12 Justice Brion's modified draft Decision, p. 2.
13 Comment cum Opposition, filed on 18 July 2008, SB records (Civil Case No. 0009), Volume 66, pp. 126-136; Rejoinder, filed on 14 September 2009, SB records (Civil Case No. 0009), Volume 67, pp. 206-210; Comment cum Opposition, filed on 14 September 2009, SB records (Civil Case No. 0009), Volume 67, pp. 212-213; Memorandum, filed on 8 February 2010, SB records (Civil Case No. 0009), Volume 68, pp. 62-73.
14 Offer of Evidence filed on 14 May 2008, SB records (Civil Case No. 0009), Volume 65, pp. 539-545; Supplemental Offer of Evidence filed on 4 September 2008, SB records (Civil Case No. 0009), Volume 66, pp. 242-243.
15 Underscoring in the original.
16 Underscoring in the original; boldfacing supplied.
17 SB Records (Civil Case No. 0009), Volume 18, pp. 6646-6649. (Boldfacing supplied)
18 2 V. Francisco, The Revised Rules of Court in the Philippines 352-353 (1973).
19 See Republic of the Philippines v. Sandiganbayan, G.R. Nos. 166859, 169203 & 180702, 12 April 2011; Raquel-Santos v. Court of Appeals, G.R. Nos. 174986, 175071 & 181415, 7 July 2009, 592 SCRA 169; Grefalde v. Sandiganbayan, 401 Phil. 553 (2000).
20 Active Wood Products, Co. Inc. v. Court of Appeals, 260 Phil. 825 (1990). Section 5, Rule 9 of the Internal Rules of the Supreme Court reads:
SEC. 5. Consolidation of cases. '“ The Court may order the consolidation of cases involving common questions of law or fact. The Chief Justice shall assign the consolidated cases to the Member-in-Charge to whom the case having the lower or lowest docket number has been raffled, subject to equalization of cases load by raffle. The Judicial Records Office shall see to it that (a) the rollos of the consolidated cases are joined together to prevent the loss, misplacement or detachment of any of them; and (b) the cover of each rollo indicates the G.R. or UDK number of the case with which the former is consolidated.
The Member-in-Charge who finds after study that the cases do not involve common questions of law or of fact may request the Court to have the case or cases returned to the original Member-in-Charge.
The Sandiganbayan has a similar rule regarding the consolidation of cases. Section 2, Rule XII of the Revised Internal Rules of Sandiganbayan (A.M. No. 02-6-07-SB dated 28 August 2002) provides:
SEC. 2. Consolidation of Cases.- Cases arising from the same incident or series of incidents, or involving common questions of fact and law, may be consolidated in the Division to which the case bearing the lowest docket number is raffled.
(a) Before Cases Are Raffled - Should the propriety of consolidation appear upon the filing of the cases concerned as determined by the Raffle Committee, all such cases shall be consolidated and considered as one case for purposes of the raffle and inventory of pending cases assigned to each of the Divisions.
(b) After Cases Are Raffled - Should the propriety of such consolidation become apparent only after the cases are raffled, consolidation may be effected upon written motion of a litigant concerned filed with the Division taking cognizance of the case to be consolidated. If the motion is granted, consolidation shall be made to the Division in which the case with the lowest docket number is assigned. The Division to which the cases are consolidated shall transfer to the Division from which the consolidated cases came, an equivalent number of cases of approximately the same age, nature and stage in the proceedings, with proper notice to the parties in said cases.
21 It is even held in American jurisprudence that '[w]here two or more actions are consolidated, a deposition taken in one of them prior to the consolidation is admissible on the trial of the consolidated action.' (1 C.J.S. 1375)
22 Philippine National Bank v. Gotesco Tyan Ming Development, Inc., G.R. No. 183211, 5 June 2009, 588 SCRA 798; Republic of the Philippines v. Court of Appeals, 451 Phil. 497 (2003).
23 G.R. No. 172393, 20 October 2010, 634 SCRA 107.
24 G.R. Nos. 182382-83, 24 February 2010, 613 SCRA 528.
25 Id. at 535-536.
26 Now Rule 23 of the 1997 Rules of Civil Procedure.
27 Justice Brion's modified draft Decision, p. 47.
28 G.R. Nos. 138701-02, 17 October 2006, 504 SCRA 618, 634.
29 Mendoza v. Court of Appeals, 240 Phil. 561 (1987).
30 357 Phil. 452 (1998).
31 Id. at 478-479.
32 Transcript of the notes on the Deposition of Maurice V. Bane, p. 10; rollo, p. 89.
33 Transcript of the notes on the Deposition of Maurice V. Bane, p. 8; rollo, p. 87.
34 Sec. 4. [Rule 23] 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:
x x x
(c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (1) that the witness is dead; or (2) that the witness 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; (Emphasis supplied)
35 Transcript of the notes on the Deposition of Maurice V. Bane, pp. 8-9; rollo, pp. 87-88.
36A F F I D A V I T
I, MAURICE V. BANE, of legal age married, a British [words missing from photocopy], and with business address at Eastern Telecommunications [missing words] Inc., Telecoms Plaza, Sen. Gil Puyat Avenue, Makati, Manila, after being duly sworn, do hereby depose and say,
1. I am presently the Senior Adviser of Eastern Telecommunications Philippines, Inc. ('ETPI'), a Philippine corporation duly registered and authorized to engage in the business of telecommunications in the Philippines since 1974;
2. Until my retirement, I served as the representative of Cable and Wireless, Ltd., ('C&W') a British company that presently owns 40% of the outstanding capital stocks of 'ETPI', 'C&W', through its wholly owned subsidiary, Eastern Extension Australasia and China Telephone Co., ('EEATC'), was formerly the sole owner and operator of the franchise that is now owned and held by 'ETPI'. The company has been operating in the Philippines since 1880 initially under a royal decree from Spain. Following the Pacific War in 1945, the franchise was renewed in 1952 by the Philippine Government under then President Elpidio Quirino;
3. In the late 60's the possibility of establishing earth satellite stations in the Philippines arose as a result of heavy pressure from the U.S. Military who were to be its major users. Many companies and consortiums, including 'EEATC' bidded for the contract. Then President Marcos finally awarded the contract together with the franchise to the Philippines Overseas Telecommunications Corp. ('POTC') which at that time was relatively unknown in the international communications industry. The prime movers of 'POTC' were Messrs. Potenciano Ilusorio, Honorio Poblador, Manuel H. Nieto, Jr. and Roberto S. Benedicto, who were all known Marcos associates. This group became very much a part of the Philippines telecommunications scene.
4. 'EEATC' forged a partnership with 'POTC' for the establishment of a tropospheric
scatter system communications with Taiwan. A franchise, Oceanic Wireless Network, Inc. was purchased and all government approvals were obtained by Messrs. Nieto and Ilusorio. The system was installed and during its inauguration, the principal guests were President and Mrs. Marcos, showing perhaps the political influence of Nieto and Ilusorio.
5. When President Marcos declared Martial Law in September 1972, it was clear that his grip on the country was virtually complete. 'C&W' was fully aware of its uneasy tenure in the Philippines. In March 1973, then Secretary of National Defense Juan Ponce Enrile called us to a conference at Camp Crame. I attended the said meeting together with the representatives of RCA and Globe Mackay. Secretary Enrile firmly told us that we had until July, 1974 to organize ourselves into 60/40 corporations with Filipino majority ownership and, if we did not comply, the Government would take the necessary action.
6. I pointed out that 'EEATC' was not covered by the Laurel-Langley Act since we were a British corporation with a fully constitutional franchise. Secretary Enrile said that if we did not comply with his directive, there would be no more 'EEATC';
7. While we might have legal and valid grounds to contest the directive, under the prevailing martial law restrictions we had little recourse but to comply. After considering all economic and political factors, it was felt that some form of partnership with the POTC group would be the most advantageous option;
8. Prior to the above, discussions had been held with Ilusorio and Poblador, who then appeared in charge of POTC '“ discussions were generally unsatisfactory since it was quite hard to pin Ilusorio down and we gained the impression that they wanted us to give them their participation in 'EEATC' with minimal monetary consideration in return for political protection;
9. In approximately April/May 1973, rapid changes took place in POTC. Ilusorio and Poblador appeared to have lost their control in POTC and Nieto emerged as the controlling figure. We learned much later that this was upon the instructions of President Marcos. Thus, discussions concerning 'EEATC' were continued with Nieto;
10. The time factor was important with July 1974 over the horizon and it was agreed to call a meeting with the accounting group of SyCip, Gorres and Velayo as intermediary. At the said meeting, we found that Atty. Jose Africa was the main representative of Nieto/POTC. He had previously not seemed a major figure in the group although he had attended several board meetings of Oceanic Wireless. Africa quickly spelt out the rules '“ that they were interested in the proposition and that we were to deal only with the DAN group (composed of Roberto Benedicto, Jose Africa and Manuel Nieto, Jr.). We were informed that this was at the express wish of President Marcos who had appointed their group to control the telecommunications interests;
11. Negotiations were thereafter commenced with Mr. Eduardo M. Villanueva of SGV as intermediary, David West and W. H. Davies were the major 'C&W' participants. We also requested Atty. Luciano Salazar Law Office to represent us on legal matters;
12. The figure eventually negotiated for the assets (net book value only and no good will) was Ten Million Pesos (P10,000,000.00) on the basis of which the BAN group will put up Six Million Pesos (P6,000,000.00). Further meetings took place to finalize the details but Africa later informed us that they could not raise the required amount. As a compromise, he suggested that the new corporation raise a bank loan from which 'C&W' could be paid. While we were not happy with this arrangement, we resigned ourselves to the fact that we would have to accede. It was agreed that stockholders' contribution would be Five Million Pesos (P5,000,000.00) plus a bank loan of Seven Million Pesos (P7,000,000.00) to cover asset payment and working capital. Africa then advised that they could only raise One Million Pesos (P1,000,000.00) and 'C&W' could loan them Two Million Pesos (P2,000,000.00). Again, we were unhappy but again we complied;
13. All the necessary documents, articles, by-laws and stockholders agreements were drawn up by the Salazar Law Office. Of particular delicacy was the issue of franchise. It was decided that the old franchise should be retained in all detail but this was to be transferred to a new company to be called Eastern Telecommunications Philippines, Inc. Atty. Salazar drafted the Presidential Decree for the transfer of the franchise. The draft was personally delivered to Nieto who committed to secure President Marcos' approval and signature. True enough, Marcos signed the P.D. Drafted by Atty. Salazar in its entirety, without any revision or amendment. This was convincing evidence of the political power and influence of the BAN group;
14. After complying with all the registration requirements and other government regulations, 'ETPI' commenced to fully operate as a telecommunications company under its new franchise in August 1974;
15. I am executing this affidavit to attest to the truth of the foregoing facts in order to elucidate on the events and circumstances that led to the transfer of the assets and franchise of 'EEATC' in favor of 'ETPI' and the emergence of BAN group thereat.
Affiant further sayeth naught.
09 January 1991, Makati, Metro Manila.
(signed)
MAURICE V. BANE
Affiant
37 Transcript of the notes on the Deposition of Maurice V. Bane, pp. 16-17; rollo, pp. 95-96.
38 Transcript of the notes on the Deposition of Maurice V. Bane, pp. 19-20; rollo, pp. 98-99.
39 Transcript of the notes on the Deposition of Maurice V. Bane, pp. 20-21; rollo, pp. 99-100.
40 Transcript of the notes on the Deposition of Maurice V. Bane, pp. 23-25; rollo, pp. 102-104.
41 Transcript of the notes on the Deposition of Maurice V. Bane, pp. 26-31, 33, 35; rollo, pp. 105-110, 112, 114.
42 Transcript of the notes on the Deposition of Maurice V. Bane, pp. 37-41; rollo, pp. 116-120.
43 Transcript of the notes on the Deposition of Maurice V. Bane, pp. 47-50; rollo, pp. 126-129.
44AUTHORIZING 'THE EASTERN EXTENSION AUSTRALASIA AND CHINA TELEGRAPH COMPANY, LIMITED' TO TRANSFER THE FRANCHISE GRANTED TO THAT COMPANY UNDER REPUBLIC ACT NO. 808, AS AMENDED BY REPUBLIC ACT NO. 5002, TO THE EASTERN TELECOMMUNICATIONS PHILIPPINES, INC.
45 Transcript of the notes on the Deposition of Maurice V. Bane, pp. 56-65; rollo, pp. 135-144.
46 Transcript of the notes on the Deposition of Maurice V. Bane, pp. 76-78; rollo, pp. 155-157.
47 515 Phil. 1 (2006).
48 Id. at 46.
49 G.R. No. 113420, 7 March 1997, 269 SCRA 316.
50 Id. at 334.