MIDTERM EXAMINATION IN EVIDENCE
FEBRUARY 21, 2007 5:30 PM
5% PER ITEM.
CASE PROBLEM NO. 1. Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen, in Malabon, Rizal, on March 1, 1987.[i][4] They lived together as husband and wife in Australia. On May 18, 1989, [ii][5] a decree of divorce, purportedly dissolving the marriage, was issued by an Australian family court.
On June 26, 1992, respondent became an Australian citizen, as shown by a “Certificate of Australian Citizenship” issued by the Australian government.[iii][6] Petitioner -- a Filipina -- and respondent were married on January 12, 1994 in Our Lady of Perpetual Help Church in Cabanatuan City.[iv][7] In their application for a marriage license, respondent was declared as “single” and “Filipino.”[v][8]
Starting October 22, 1995, petitioner and respondent lived separately without prior judicial dissolution of their marriage. While the two were still in Australia, their conjugal assets were divided on May 16, 1996, in accordance with their Statutory Declarations secured in Australia.[vi][9]
On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of Marriage[vii][10] in the court a quo, on the ground of bigamy -- respondent allegedly had a prior subsisting marriage at the time he married her on January 12, 1994. She claimed that she learned of respondent’s marriage to Editha Samson only in November, 1997.
In his Answer, respondent averred that, as far back as 1993, he had revealed to petitioner his prior marriage and its subsequent dissolution.[viii][11] He contended that his first marriage to an Australian citizen had been validly dissolved by a divorce decree obtained in Australia in 1989;[ix][12] thus, he was legally capacitated to marry petitioner in 1994.
On July 7, 1998 -- or about five years after the couple’s wedding and while the suit for the declaration of nullity was pending -- respondent was able to secure a divorce decree from a family court in Sydney, Australia because the “marriage ha[d] irretrievably broken down.”[x][13]
Respondent prayed in his Answer that the Complaint be dismissed on the ground that it stated no cause of action.[xi][14] The Office of the Solicitor General agreed with respondent.[xii][15] The court marked and admitted the documentary evidence of both parties.[xiii][16] After they submitted their respective memoranda, the case was submitted for resolution.[xiv][17]
Question: Respondent contends that (1) the burden to prove Australian divorce law falls upon petitioner, because she is the party challenging the validity of a foreign judgment. He contends that petitioner was satisfied with the original of the divorce decree and was cognizant of the marital laws of Australia, because she had lived and worked in that country for quite a long time. (2) Besides, the Australian divorce law is allegedly known by Philippine courts; thus, judges may take judicial notice of foreign laws in the exercise of sound discretion. Are these contentions (1) and (2) correct? Why?
ANSWER:
The burden of proof lies with “the party who alleges the existence of a fact or thing necessary in the prosecution or defense of an action.”[xv][41] In civil cases, plaintiffs have the burden of proving the material allegations of the complaint when those are denied by the answer; and defendants have the burden of proving the material allegations in their answer when they introduce new matters.[xvi][42] Since the divorce was a defense raised by respondent, the burden of proving the pertinent Australian law validating it falls squarely upon him.
It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws.[xvii][43] Like any other facts, they must be alleged and proved. Australian marital laws are not among those matters that judges are supposed to know by reason of their judicial function.[xviii][44] The power of judicial notice must be exercised with caution, and every reasonable doubt upon the subject should be resolved in the negative.(Garcia v. Recio, GR 138322, Oct. 2, 2007).
CASE PROBLEM NO.2. Plaintiffs-appellants, with co-plaintiffs-appellants Leonora Prietos and Luzviminda Antig who were lessees of the apartment units, filed a case for damages against defendants-appellees Harry John Viloriam [sic], Margarita Milagros Viloria, and John P. Young. The complaint alleged that by reason of the gross negligence and want of care of the construction workers and employees of the defendants-appellees, the bunkhouse or workers' quarters in the construction site caught fire spreading rapidly, burning the adjacent buildings owned by plaintiffs-appellants. Due to the negligence of defendants-appellees which resulted in the fire, plaintiffs-appellants suffered actual damages representing the value of the buildings and other personal properties.
Defendant-appellee John Young, the building contractor, in his answer, contended that he can not be held responsible even if there was negligence on the part of the employees for he had exercised the diligence of a good father of a family in the selection and supervision of his workers. Plaintiffs-appellants had no cause of action against him. As counterclaim, defendant-appellee Young sought for moral damages in the amount of P200,000.00, and exemplary damages of P50,000.00 and attorney's fees of P10,000.00.
Defendants-appell[ees] Harry and Margarita Viloria also alleged that plaintiffs-appellants had no cause of action against them. The fire court not have been caused by gross negligence of their workers for they did not have any worker in the construction of their building. The said construction was being undertaken by the independent contractor, John Young, who hired and supervised his own workers. The newly constructed building was partially destroyed by the fire. As counterclaim, defendants-appell[ees] prayed for moral damages in the sum of P2,500,000.00, exemplary damages of P100,000.00 and attorney's fees of P20,000.00.
One of the documentary evidences offered is the Fire Investigation Report, duly signed by the officer of the day. Petitioners assert that the Fire Investigation Report[xix][21] by an official of the Cebu City Fire Station should have been admitted in evidence as an exception to the hearsay rule. Some confusion surrounds the issue of admissibility of the Fire Investigation Report (Exhibits “A,” “A-1” to “A-4” inclusive). The record discloses that the officer who signed the report, Fire Major Eduardo P. Enriquez, was subpoenaed at the request of and testified in open court for petitioners. He identified the Report, which petitioners offered in their Offer of Exhibits[xx][25] as:
(1) Part of the testimony of Major Eduardo P. Enriquez;
(2) To prove that an impartial investigation has determined that the "fire started at the generator ... within the construction site" (Exhibit "A-3").
Private respondents objected to Exhibits “A,” “A-1” to “A-4,” inclusive, for being “hearsay and incompetent evidence.”[xxi][26] The trial court then denied their admission “for being hearsay, this fact admitted by witness himself, F/Maj. Eduardo Enriquez, as part of whose testimony said exhibits were offered.”[xxii][27]
Question: Is the Court correct in not admitting the Fire Investigation Report for being hearsay and incompetent? What is the applicable rule on the matter ? if Major Enriquez was not presented to testify on his report, would your answer be different?.
ANSWER: In light of the purposes for which the exhibits in question were offered, as aforestated, the trial court erred in rejecting all of them as hearsay. Since Major Enriquez himself took the witness stand and was available for cross-examination, the portions of the report which were of his personal knowledge or which consisted of his perceptions and conclusions were not hearsay. The rest of the report, such as the summary of the statements of the parties based on their sworn statements (which were annexed to the Report) as well as the latter, having been included in the first purpose of the offer, may then be considered as independently relevant statements which were gathered in the course of the investigation and may thus be admitted as such, but not necessarily to prove the truth thereof. It has been said that:
“Where, regardless of the truth or falsity of a statement, the fact that it has been made is relevant, the hearsay rule does not apply, but the statement may be shown. Evidence as to the making of such statement is not secondary but primary, for the statement itself may constitute a fact in issue, or be circumstantially relevant as to the existence of such a fact.”[xxiii][28]
When Major Enriquez took the witness stand, testified for petitioners on his Report and made himself available for cross-examination by the adverse party, the Report, insofar as it proved that certain utterances were made (but not their truth), was effectively removed from the ambit of the aforementioned Section 44 of Rule 130. Properly understood, this section does away with the testimony in open court of the officer who made the official record, considers the matter as an exception to the hearsay rule and makes the entries in said official record admissible in evidence as prima facie evidence of the facts therein stated. The underlying reasons for this exceptionary rule are necessity and trustworthiness, as explained in Antillon v. Barcelon:[xxiv][29]
The litigation is unlimited in which testimony by officials is daily needed; the occasions in which the officials would be summoned from his ordinary duties to declare as a witness are numberless. The public officers are few in whose daily work something is not done in which testimony is not needed from official sources. Were there no exception for official statements, hosts of officials would be found devoting the greater part of their time to attending as witnesses in court or delivering their deposition before an officer. The work of administration of government and the interest of the public having business with officials would alike suffer in consequence. For these reasons, and for many others, a certain verity is accorded such documents, which is not extended to private documents. (3 Wigmore on Evidence, sec. 1631).
The law reposes a particular confidence in public officers that it presumes they will discharge their several trusts with accuracy and fidelity; and, therefore, whatever acts they do in discharge of their duty may be given in evidence and shall be taken to be true under such a degree of caution as the nature and circumstances of each case may appear to require.
It would have been an entirely different matter if Major Enriquez was not presented to testify on his report. In that case the applicability of Section 44 of Rule 130 would have been ripe for determination, and this Court would have agreed with the Court of Appeals that said report was inadmissible since the aforementioned third requisite was not satisfied. The statements given by the sources of information of Major Enriquez failed to qualify as "official information," there being no showing that, at the very least, they were under a duty to give the statements for record.(Rodriguez v. Viloria, GR 121964, JUNE 17, 1997)
CASE PROBLEM NO. 3. On May 21, 1982, petitioner Dumez Company, a French company, through petitioner Trans-Orient Engineers, Inc., a corporation organized and existing under the laws of the Philippines, engaged the services of private respondent Veronico Ebilane as carpenter for one of its projects in the Middle East, with Riyadh, Saudi Arabia, as his place of actual employment. The parties executed and signed a one-year overseas employment agreement embodying the terms and conditions of private respondent's employment.
Private respondent commenced performance of said contract on July 3, 1982. On August 31, 1982, while at the job site, private respondent was suddenly seized by abdominal pain and rushed to the Riyadh Central Hospital were appendectomy was performed on him. During his confinement, he developed right-sided weakness and numbness and difficulty of speaking which was found to have been caused by Atrial Fibrillation and CVA embolism.
In a letter dated September 22, 1982, petitioners formally terminated private respondent's employment effective September 29, 1982, up to which time petitioners paid private respondent his salaries under his employment contract. Thereafter, on October 13, 1982, private respondent was repatriated to Manila.
On November 23, 1982, private respondent filed a complaint for illegal dismissal against petitioners. Such complaint was filed with the Workers' Assistance and Adjudication Office of the POEA.
In deciding the case in favor of respondent, the POEA took judicial notice of Social Insurance Law of Saudi Arabia.
Question: is the POEA correct in taking judicial notice of the Social Insurance Law of Saudi Arabia, which was not duly proved during the hearing? Explain.
ANSWER: The POEA Administrator, in finding petitioners liable to private respondent for medical benefits accruing to the latter under the Social Insurance Law of Saudi Arabia, took judicial notice of the said law. To this extent, the POEA Administrator's actuations are legally defensible. We have earlier ruled in Norse Management Co. (PTE) vs. National Seamen Board[xxv][12] that evidence is usually a matter of procedure of which a mere quasi-judicial body is not strict about. Although in a long line of cases, we have ruled that a foreign law, being a matter of evidence must be alleged and proved, in order to be recognized and applied in a particular controversy involving conflicts of laws, jurisprudence on this matter was not meant to apply to cases before administrative or quasi-judicial bodies in the light of the well-settled rule that administrative and quasi-judicial bodies are not bound strictly by technical rules. (Dumez Company v. NLRC, GR 74495, July 11, 1996)
CASE PROBLEM NO. 4. Petitioner was born on January 1, 1923 in Amoy, China. In 1932, as a nine-year old boy, he arrived at the port of Manila on board the vessel "Angking." Since then, he has stayed in the Philippines where he found employment and eventually started his own business, married a Filipina, with whom he had four children. On July 4, 1989, at the age of 66, he filed a verified petition to be admitted as a Filipino citizen under C.A. No. 473, otherwise known as the Revised Naturalization Law, as amended. Petitioner, after stating his qualifications as required in §2, and lack of the disqualifications enumerated in §3 of the law, stated —
17. That he has heretofore made (a) petition for citizenship under the provisions of Letter of Instruction No. 270 with the Special Committee on Naturalization, Office of the Solicitor General, Manila, docketed as SCN Case No. 031776, but the same was not acted upon owing to the fact that the said Special Committee on Naturalization was not reconstituted after the February, 1986 revolution such that processing of petitions for naturalization by administrative process was suspended;
During the hearings, petitioner testified as to his qualifications and presented three witnesses to corroborate his testimony. So impressed was Prosecutor Isaac Alvero V. Moran with the testimony of petitioner that, upon being asked by the court whether the State intended to present any witness present any witness against him, he remarked:
Actually, Your Honor, with the testimony of the petitioner himself which is rather surprising, in the sense that he seems to be well-versed with the major portion of the history of the Philippines, so, on our part, we are convinced, Your Honor Please, that petitioner really deserves to be admitted as a citizen of the Philippines. And for this reason, we do not wish to present any evidence to counteract or refute the testimony of the witnesses for the petitioner, as well as the petitioner himself. 3
Accordingly, on August 25, 1999, the trial court granted the petition and admitted petitioner to Philippine citizenship. The State, however, through the Office of the Solicitor General, appealed all the names by which he is or had been known; (2) failed to state all his former placer of residence in violation of C.A. No. 473, §7; (3) failed to conduct himself in a proper and irreproachable manner during his entire stay in the Philippines, in violation of §2; (4) has no known lucrative trade or occupation and his previous incomes have been insufficient or misdeclared, also in contravention of §2; and (5) failed to support his petition with the appropriate documentary evidence. 4
The Court of Appeals reversed the lower court, and appreciated the documents annexed to the records but which were not offered by the Solicitor General.
The petitioner appealed to the Supreme Court assigning as error: that the appellate court erred in considering the documents which had merely been annexed by the State to its appellant's brief and, on the basis of which, justified the reversal of the trial court's decision. Not having been presented and formally offered as evidence, they are mere "scrap(s) of paper devoid of any evidentiary value," 12 so it was argued, because under Rule 132, §34 of the Revised Rules on Evidence, the court shall consider no evidence which has not been formally offered.
Rule on the assigned error: was it correct for the CA to appreciate evidence not formally offered?
ANSWER: Petitioner's principal contention is that the appellate court erred in considering the documents which had merely been annexed by the State to its appellant's brief and, on the basis of which, justified the reversal of the trial court's decision. Not having been presented and formally offered as evidence, they are mere "scrap(s) of paper devoid of any evidentiary value,"[1][12] so it was argued, because under Rule 132, §34 of the Revised Rules on Evidence, the court shall consider no evidence which has not been formally offered.
The contention has no merit. Petitioner failed to note Rule 143[2][13] of the Rules of Court which provides that -
These rules shall not apply to land registration, cadastral and election cases, naturalization and insolvency proceedings, and other cases not herein provided for, except by analogy or in a suppletory character and whenever practicable and convenient. (Emphasis added)
Prescinding from the above, the rule on formal offer of evidence (Rule 132, §34) now being invoked by petitioner is clearly not applicable to the present case involving a petition for naturalization. The only instance when said rules may be applied by analogy or suppletorily in such cases is when it is "practicable and convenient." That is not the case here, since reliance upon the documents presented by the State for the first time on appeal, in fact, appears to be the more practical and convenient course of action considering that decision in naturalization proceedings are not covered by the rule on res judicata.[3][14] Consequently, a final favorable judgment does not preclude the State from later on moving for a revocation of the grant of naturalization on the basis of the same documents.(Ong Chia v. Republic, GR 127240, March 27, 2000)
CASE PROBLEM NO. 5. Private respondents are brothers who were engaged in the business of forwarding and transporting "balikbayan" boxes from California, U.S.A. to Metro Manila, Philippines. Manuel J. Salazar (hereinafter "Manuel") managed the Philippine side via MANSAL Forwarders, a business registered in his name with principal office at No. 48 Scout Tobias Street, Quezon City. On the other hand, Mario J. Salazar (hereinafter "Mario") handled the U.S. side of the forwarding business as General Manager of M.J.S. International, Inc., a corporation with principal office at No. 3400 Fletcher Drive, Los Angeles, California, U.S.A.
According to the petitioner, sometime in February of 1989, while he was in Los Angeles, California, U.S.A., Mario tried to convince him to invest some money in the said business. Mario had allegedly represented that petitioner's money will be held in trust and administered by both him and his brother for the exclusive use of their forwarding and transporting business. Petitioner further alleged that Mario promised him a return on his investment equivalent to ten per centum (10%) for one month, at the end of which, his money plus interest earned shall be returned to him.
When petitioner returned to the Philippines, it was Manuel's turn to persuade him to part with his money under the said investment scheme. Eventually convinced by the private respondents’ representations and assurances, petitioner agreed to invest the total amount of US $34,000.00 which he entrusted to his aunt, Liwayway Dee Tanzo, who was residing in the U.S.A. Thus, petitioner issued several personal checks made out to Liwayway Dee Tanzo,. or to "Calfed", or payable to cash. Except for California Federal Check No. 322 which was encashed by Mario himself, private respondents received the proceeds of the above checks through Liwayway Dee Tanzo on several occasions in August 1989.
Meanwhile, Mario encountered serious liquidity problems that prompted him to petition the U.S. Bankruptcy Court for a release from his debts on September 27, 1990. He was ordered "released from all dischargeable debts" by the said court on January 25, 1991.
Upon the expiration of the thirty (30) day investment period, petitioner demanded from Mario in the States and Manuel in Quezon City proper accounting of his financial investment and/or the return of his capital plus interest earned. At the outset, private respondents avoided their obligation to petitioner by making various excuses but after persistent demands by the latter, Manuel finally admitted that their shipments had encountered some problems with the Bureau of Customs. Thus, on January 29, 1990, Manuel executed a letter authorizing the petitioner to withdraw documents to assist in the release of their shipments from the Bureau of Customs. However, when petitioner attempted to secure the release of the "balikbayan" boxes from the Bureau of Customs, he discovered that the same had actually contained smuggled goods and were accordingly seized and forfeited in favor of the government.
To prove that the money was not in trust, but a loan, the respondents offered as evidence its previous transactions of loan with other friends in the U.S. . Manuel offered in evidence copies of the contracts of loan entered into between M.J.S. International and Liwayway Dee Tanzo, which are contracts of loan and not trust agreements.
Petitioner object to the admissibility of said evidence, as they are irrelevant to the contract of trust agreements that was entered between him and Mario.
Rule on his contention.
ANSWER: The contention is wrong. The Supreme Court rules: “We agree with the petitioner that these loan contracts do not by themselves prove that his agreement with the private respondents was also a loan. As correctly pointed out by the petitioner, he is not a party to these contracts that clearly stipulate "Liwayway Dee Tanzo" as creditor and "M.J.S. International represented by its General Manager, Mario J. Salazar" as debtor.
These loan contracts may, however, be given evidentiary value in support of Manuel's claim that the agreement with petitioner was no different from the loan contracts with Liwayway Dee Tanzo. Under the rule of res inter alios acta, evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time; but it may be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or usage, and the like.[4][13]
Elaborating thus, we have held that:
[C]ollateral facts may be received as evidence under exceptional circumstances, as when there is a rational similarity or resemblance between the conditions giving rise to the fact offered and the circumstances surrounding the issue or fact to be proved. Evidence of similar acts may frequently become relevant, especially in actions based on fraud and deceit, because it sheds light on the state of mind or knowledge of a person; it provides insight into such person's motive or intent; it uncovers a scheme, design or plan; or it reveals a mistake.[5][14] (Underscoring supplied). S-jcj
The series of transactions between M.J.S. International and Liwayway Dee Tanzo were entered into under similar circumstances as those surrounding the contract between petitioner and Mario. Just like the alleged trust agreement between petitioner and Mario, the loan contracts between M.J.S. International and Liwayway Dee Tanzo provide that the creditors shall lend to the debtor a specific amount for use by the latter in its business operations.[6][15] Petitioner also admits that he entrusted the checks to Liwayway Dee Tanzo for investment in private respondents' business. This shows that private respondents were transacting directly with Liwayway Dee Tanzo in the usual manner that they conduct business, that is the loan of money for stipulated interest. Hence, private respondents' modus operandi, if there ever was one, in raising additional capital for M.J.S. International was to borrow money from willing investors. It is thus unlikely, considering the scheme of things, that private respondents would all of a sudden deviate from an established business practice to enter into a trust agreement with the petitioner” (Tanzo v. Drilon, GR 106671, March 30, 2000).
PROBLEM NO. 6. In a land dispute, the parties appeared before the barangay council,which rendered a decision of the conflicting claims which they presented before said council.Said barangay decision was contained in a document termed as Administrative Case No. 4,
During trial said documentary exhibit was offered, which the court admitted and appreciated in deciding in favor of the appellants.In their first assignment, appellants assail the admission in evidence over the objection of the appellant of Exhibit "3." This exhibit is a decision in favor of the defendant-appellee against herein plaintiff-appellant Grace Ventura, by the council of Barrio of San Pascual, Tuba, Benguet, in its Administrative Case No. 4, for the settlement of ownership and possession of the land.
Question: Is Exh. 3 admissible as evidence in court?
ANSWER: The decision of the Barrio Council of San Pascual, Tuba, Banguet, in its Administrative Case No. 4, for the settlement of ownership and possession of the land in question is ultra vires because barrio councils, which are not courts, have no judicial powers (Sec. 1, Art. VIII, Constitution; see Sec. 12, Rep. Act No. 2370, otherwise known as the Barrio Charter). Said administrative order if presented as exhibit is inadmissible in a judicial proceeding as evidence for ascertaining the truth respecting the fact of ownership and possession (Sec. 1, Rule 128, Rules of Court). (MIGUEL V. Catalino [G.R. No. L-23072. November 29, 1968.])
PROBLEM NO 7.How would you state your objections to the following:
A) : “You stated in your last testimony that you saw A driving the car, why are you now insisting that A was not driving”, when what the witness had merely said was that he had seen A seated on the front seat of the vehicle.
B) : Does ABC or did ABC produce the goods that your company was intending to buy?
C) “Tell us in your own words, what happed?”
d) “How is it that you can recollect a date as long ago as that and you cannot remember the day of the week?”
E) : “Did you know that the accused had been beating his wife nightly?:, when there is no prior evidence that such was the case. Or if the accused is the one asked: “When did you stop beating your wife?”, when there is no evidence that he had been beating his wife.
Answers: A)Objection, Your Honor, the question is misleading.”
B)“Objection, Your Honor, it is compound question”.
C)“Your Honor, the question calls for a narrative answer”.
D)“Objection, Your Honor, the question is argumentative. ”or“Objection, Your Honor, the question is harassing the witness.”
E)“Objection, Your Honor, the question assumes facts not in evidence.
Problem no. 8: What is a judicial admission? When is it mandatory? Discretionary? And when is hearing necessary?
ANSWER: Section 1. Judicial notice, when mandatory. — A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions. (1a)
Section 2. Judicial notice, when discretionary. — A court may take judicial notice of matters which are of public knowledge, or are capable to unquestionable demonstration, or ought to be known to judges because of their judicial functions. (1a)
Section 3. Judicial notice, when hearing necessary. — During the trial, the court, on its own initiative, or on request of a party, may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon.
After the trial, and before judgment or on appeal, the proper court, on its own initiative or on request of a party, may take judicial notice of any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case. (n)
Section 4. 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. (2a)
PROBLEM NO. 9. When the original of document is in the custody of public officer or is recorded in a public office, how would you prove its contents?
ANSWER: Section 7. Evidence admissible when original document is a public record. — When the original of document is in the custody of public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof. (2a)
PROBLEM NO. 10. Who are the persons under the rules of evidence who cannot testify because of a “Disqualification by reason of privileged communication.”?
ANSWER: Section 24. Disqualification by reason of privileged communication. — The following persons cannot testify as to matters learned in confidence in the following cases:
(a) The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants;
(b) An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorney's secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity;
(c) A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in capacity, and which would blacken the reputation of the patient;
(d) A minister or priest cannot, without the consent of the person making the confession, be examined as to any confession made to or any advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs;
(e) A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure. (21a)
PROBLEM NO. 11. When is “Previous Conduct as Evidence” admissible and when is it not admissible?
ANSWER: 4. Previous Conduct as Evidence
Section 34. Similar acts as evidence. — Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time; but it may be received to prove a specific intent or knowledge; identity, plan, system, scheme, habit, custom or usage, and the like. (48a)
Section 35. Unaccepted offer. — An offer in writing to pay a particular sum of money or to deliver a written instrument or specific personal property is, if rejected without valid cause, equivalent to the actual production and tender of the money, instrument, or property. (49a)
PROBLEM NO. 12.Delfin I. Cruz and Adoracion Cruz were spouses and their children were Thelma, Nerissa, Arnel and Gerry Cruz. Upon the death of Delfin I. Cruz, [his] surviving spouse and children executed on August 22, 1977 a notarized Deed of Partial Partition (Exhibit 2) by virtue of which each one of them was given a share of several parcels of registered lands all situated in Taytay, Rizal.
The following day, August 23, 1977, the same mother and children executed a Memorandum Agreement (Exhibit H) which provided:
“That the parties hereto are common co-owners pro-indiviso in equal shares of the following registered real properties, all situated at Taytay, Rizal, Philippines, x x x.
x x x
That sometime on August 22, 1977, a Deed of Partial Partition was executed among us before Atty. Virgilio J. Tamayo, Notary Public on and for the Province of Rizal, per Doc. No. 1776; Page No. 14; of his Notarial Register No. XLIX, Series of 1977;
x x x
That as a result of said partial partition, the properties affected were actually partitioned and the respective shares of each party, adjudicated to him/her;
That despite the execution of this Deed of Partial Partition and the eventual disposal or sale of their respective shares, the contracting parties herein covenanted and agreed among themselves and by these presents do hereby bind themselves to one another that they shall share alike and received equal shares from the proceeds of the sale of any lot or lots allotted to and adjudicated in their individual names by virtue of this deed of partial partition.’
That this Agreement shall continue to be valid and enforceable among the contracting parties herein up to and until the last lot covered by the Deed of [P]artial [P]artition above adverted to shall have been disposed of or sold and the proceeds thereof equally divided and their respective shares received by each of them.”
This Memorandum Agreement was registered and annotated in the titles of the lands covered by the Deed of Partial Partition.
Subsequently, the same parties caused the consolidation and subdivisions of the lands they respectively inherited from the late Delfin I. Cruz per Deed of Partial Partition. After that, they registered the Deed of Partial Partition and subdivision plans and titles were issued in their names. In the case of Nerissa Cruz Tamayo, the following titles were issued to her in her name: TCT No. 502603 (Exhibit A), TCT No. 502604, (Exhibit B), TCT No. 502605 (Exhibit C), TCT No. 502606 (Exhibit D), TCT No. 502608 (Exhibit E), TCT No. 502609 (Exhibit F), TCT No. 502610 (Exhibit G), hereinafter called the lands in question. Naturally, the annotation pertaining to the Memorandum Agreement was carried in each of said seven (7) titles and annotated in each of them.
Meanwhile, the spouses Eliseo and Virginia Malolos filed Civil Case No. 31231 against the spouses Nerissa Cruz-Tamayo and Nelson Tamayo for a sum of money. The Court of First Instance of Rizal, Branch XVI (Quezon City) rendered a decision of June 1, 1981 in favor of Eliseo and Virginia condemning the spouses Nerissa and Nelson Tamayo to pay them P126,529.00 with 12% interest per annum from the filing of the complaint plus P5,000.00 attorney’s fee. After the finality of that decision, a writ of execution (Exhibit J) was issued on November 20, 1981.
Enforcing said writ, the sheriff of the court levied upon the lands in question. On June 29, 1983, these properties were sold in an execution sale to the highest bidders, the spouses Eliseo and Virginia Malolos. Accordingly, the sheriff executed a Certificate of Sale (Exhibit K) over –
‘… all the rights, claims, interests, titles, shares, and participations of defendant spouses Nerissa Tamayo and Nelson Tamayo..’
Nerissa Cruz Tamayo failed to exercise her right of redemption within the statutory period and so the final deed of sale was executed by the sheriff conveying the lands in question to spouses Eliseo and Virginia Malolos. The Malolos couple asked Nerissa Cruz Tamayo to give them the owner’s duplicate copy of the seven (7) titles of the lands in question but she refused. The couple moved the court to compel her to surrender said titles to the Register of Deeds of Rizal for cancellation. This was granted on September 7, 1984. But Nerissa was adamant. She did not comply with the Order of the court and so the Malolos couple asked the court to declare said titles as null and void.
During the trial of the civil case, some of the documentary evidence presented were mortgage and sale transactions entered by the other sisters and brothers of Nerissa Tamayo.Said evidence were objected for being immaterial and irrelevant.
The trial court that these pieces of evidence are applicable under the res inter alios acta rule and the principle of independent and relevant statements. Do you agree? What do you understand concerning the said principles?
ANSWER: Res inter alios acta, as a general rule, prohibits the admission of evidence that tends to show that what a person has done at one time is probative of the contention that he has done a similar as act at another time.[xxvi][24] Evidence of similar acts or occurrences compels the dependant to meet allegations that are not mentioned in the complaint, confuses him in his defense, raises a variety of irrelevant issues, and diverts the attention of the court from the issues immediately before it. Hence, this evidentiary rule guards against the practical inconvenience of trying collateral issues and protracting the trial and prevents surprise or other mischief prejudicial to litigants.[xxvii][25]
The rule, however, is not without exception. While inadmissible in general, collateral facts may be received as evidence under exceptional circumstances, as when there is a rational similarity or resemblance between the conditions giving rise to the fact offered and the circumstances surrounding the issue or fact to be proved.[xxviii][26] Evidence of similar acts may frequently become relevant, especially in actions based on fraud and deceit, because it sheds light on the state of mind or knowledge of a person’s; it provides insight into such person’s motive or intent; it uncovers a scheme, design or plan; or it reveals a mistake.[xxix][27]
In this case, petitioners argue that transactions relating to the other parcels of land they entered into, in the concept of absolute owners, are inadmissible as evidence to show that the parcels in issue are not co-owned. The court is not persuaded. Evidence of such transactions falls under the exception to the rule on the res inter alios acta. Such evidence is admissible because it is relevant to an issue in the case and corroborative of evidence already received.[xxx][28] The relevancy of such transactions is readily apparent. The nature of ownership of said property should be the same as that of the lots on question since they are all subject to the MOA. If the parcels of land were held and disposed by petitioners in fee simple, in the concept of absolute owners, then the lots in question should similarly be treated as absolutely owned in fee simple by the Tamayo spouses. Unmistakably, the evidence in dispute manifests petitioners’ common purpose and design to treat all the parcels of land covered by the DPP as absolutely owned and not subject to co-ownership.[xxxi][29]
Under the principle of estoppel, petitioners are barred from claiming co-ownership of the lands in issue. In estoppel, a person, who by his deed or conduct has introduced another to act in a particular manner, is barred from adopting an inconsistent position, attitude or course of conduct that thereby causes loss or injury to another.[xxxii][30] It further bars him from denying the truth of a fact which has, in the contemplation of law, become settled by the acts and proceedings of judicial or legislative officers or by the act of the party himself, either by conventional writing or by representations, express or implied or in pairs.[xxxiii][31]
In their transaction with others, petitioners have declared that the other lands covered by the same MOA are absolutely owned, without indicating the existence of a co-ownership over such properties. Thus, they are estopped from claiming otherwise because, by their very own acts and representations as evidenced by the deeds of mortgage and of sale, they have denied such co-ownership. (CRUZ V.MALOLOS, GR126713, JULY 27, 1998)
PROBLEM NO. 13 A) In a land dispute, the defendants offered to compromise the case by offering P20,000 cash for the dismissal of the case. The plaintiffs did not agree, and so the case for recovery of possession pushed through. During trial, the plaintiff testified about the offer of compromise. The defendant objected to its admissibility. As judge would you admit said testimony?
B) In a criminal case for malicious mischief, the accused offered to pay 5,000 pesos to pay for the broken bottles of beer, and asks for the dismissal of the criminal case. During the trial, the offer was used as evidence to prove the criminal liability of the accused. Is said evidence admissible as an implied admission of guilt? Would your answer be the same is the crime charged is reckless imprudence resulting to homicide?
c) In a physical injuries case, the accused offered to pay the medical and hospital expenses. Can this be considered as proof of civil or criminal liability of the accused?
ANSWER: Section 27. Offer of compromise not admissible. — In civil cases, an offer of compromise is not an admission of any liability, and is not admissible in evidence against the offeror.
In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromised by the accused may be received in evidence as an implied admission of guilt.
A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to lesser offense, is not admissible in evidence against the accused who made the plea or offer.
An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not admissible in evidence as proof of civil or criminal liability for the injury. (24a)
PROBLEM NO. 14. Some examples of the exceptions to the hearsay rule are the following:
Section 37. Dying declaration. — The declaration of a dying person, made underthe consciousness of an impending death, may be received in any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death. (31a)
Section 38. Declaration against interest. — The declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact is asserted in the declaration was at the time it was made so far contrary to declarant's own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors in interest and against third persons. (32a)
Section 39. Act or declaration about pedigree. — The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word "pedigree" includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these fast occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. (33a)
Section 40. Family reputation or tradition regarding pedigree. — The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engravings on rings, family portraits and the like, may be received as evidence of pedigree. (34a)
Section 41. Common reputation. — Common reputation existing previous to the controversy, respecting facts of public or general interest more than thirty years old, or respecting marriage or moral character, may be given in evidence. Monuments and inscriptions in public places may be received as evidence of common reputation. (35)
Section 42. Part of res gestae. — Statements made by a person while a starting occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae. (36a)
QUESTION: State the other five exceptions, and explain each.
ANSWER: Section 43. Entries in the course of business. — Entries made at, or near the time of transactions to which they refer, by a person deceased, or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty. (37a)
Section 44. Entries in official records. — Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated. (38)
Section 45. Commercial lists and the like. — Evidence of statements of matters of interest to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible as tending to prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein. (39)
Section 46. Learned treatises. — A published treatise, periodical or pamphlet on a subject of history, law, science, or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject. (40a)
Section 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. (41a)
Problem No. 15: The general rule is that leading questions are not allowed during trial. State some exceptions to the rule.
ANSWER: Section 10. Leading and misleading questions. — A question which suggests to the witness the answer which the examining party desires is a leading question. It is not allowed, except:
(a) On cross examination;
(b) On preliminary matters;
(c) When there is a difficulty is getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute;
(d) Of an unwilling or hostile witness; or
(e) Of a witness who is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party.
PROBLEM NO. 16. In a criminal case for murder, a thumbmarked affidavit was presented as evidence. The affidavit was not testified in court by the affiant. The affidavit runs (excerpt) as follows:
Q: Do you believe in GOD?
A: Yes.
Q: What is your name?
A: Paulino Baquiran, Jr.
Q: What happen (sic) to you:
A: I was shot.
Q: Who shot you?
A: Cpl. Tuting Ugaddan.
Q: When?
A: At about 9:00 o’clock, January 27, 1991.
Q: Where?
A:: At the Geraldine (sic) Canteen, Lingaling, Tumauini, Isabela.
Q: How do you feel?
A: So painful.”[xxxiv][17]
QUESTION: Is such affidavit admissible to prove the guilt of the accused? Why?
ANSWER: The defense simply failed to offer any piece of evidence attributing to said prosecution witness any foul motive to falsely accused and incriminate a fellow officer in so grave a crime.[xxxv][23] Absence of evidence as to improper motive actuating said witness of the prosecution strongly tends to sustain that no such motive existed and, thus, his credibility is strengthened[xxxvi][24] and his testimony is worthy of full faith and credit.[xxxvii][25]
Dying declaration though generally hearsay are admissible in evidence as an exception to the hearsay rule pursuant to Section 37 of Rule 130.[xxxviii][26] The above declaration under the factual milieu of this case, has the vestiges of the accepted elements for the admissibility of a dying declaration which are:
-- the declaration must concern the crime and sorrounding circumstances of the declarant’s death;
-- it was made at a time when the declarant was under the consciousness of an impending death;
-- the declarant would be competent to testify;
-- the declaration is offered in any case in which the decedent is the victim.[xxxix][27]
Said declaration pertains to the identity of the declarant’s assailant and the instances that transpired concerning what happened to him. At the time that declaration was made, the declarant was hospitalized, wounded on the throat, and was very weak.[xl][28] Combining these circumstances with the victim-declarant’s aversion of pain creates upon the latter impression that his death is imminent and immediate. The enigma of contemplating of a death-at-hand produces the most powerful consideration that impels and induces the mind to speak the truth – “a situation so solemn and awful as to be considered by law as creating an obligation equal to that which is imposed by an oath administered in court.”[xli][29]
On his competency to testify, there is no allegation nor evidence on record which would support the slightest impression that the declarant would have been incompetent to testify had he survived. At the time of his death he was a member of the police force and is presumably capable of perceiving, retaining what has been perceived and expressing what has been retained. These circumstances suffice to sustain the presumption of his competency to testify at the material time.(UGADDAN V. CA, 124914, July 2, 1997).
PROBLEM NO. 17 What is an “interlocking confession”? What is its significance in the admissibility of evidence?
ANSWER: Extrajudicial confessions which are independently made without collusion, identical with each other in their material respects and confirmatory of the other are called interlocking confessions. They are, therefore, also admissible as circumstantial evidence against their co-accused implicated therein to show the probability of the latter’s actual participation in the commission of the crime. They are also admissible as corroborative evidence against the others, it being clear from other facts and circumstances presented that persons other than the declarants themselves participated in the commission of the crime charged and proved. They are what is commonly known as interlocking confession and constitute an exception to the general rule that extrajudicial confessions/admissions are admissible in evidence only against the declarants thereof.”(SANTOS V. SANDIGANBAYAN, 71523, Dec. 8, 2000)
PROBLEM NO. 18. Does an annotation in a tax declaration of an alleged Deed of Sale sufficiently prove conveyance of title to a property?
ANSWER: In sum, considering that the annotation of the disputed Deed of Sale in a tax declaration is not sufficient proof of the transfer of property and inasmuch as the subject of inquiry is the Deed of Sale, it was incumbent on the petitioners to adduce in evidence the original or a copy of the deed consistent with Section 3, Rule 130 of the Rules of Court. In the absence of the said document, the exhortations of petitioners regarding the existence of said deed of sale must fail. (EBREO V. EBREO, 71523, DEC. 8, 2000)
PROBLEM NO. 19.What do you understand by the “totality of circumstances test”, and how is it related to “out-of-court identification”?
Answer: In People v. Teehankee, Jr.,[xlii][25] the Court, through Mr. Justice Reynato S. Puno, explained the procedure for out-of-court identification and the test to determine the admissibility of such identification. It listed the following ways of identifying the suspects during custodial investigation: show-ups, mug shots and line-ups. The Court there ruled:
“x x x. Out-of-court identification is conducted by the police in various ways. It is done thru show-ups where the suspect alone is brought face to face with the witness for identification. It is done thru mug shots where photographs are shown to the witness to identify the suspect. It is also done thru line-ups where a witness identifies the suspect from a group of persons lined up for the purpose. Since corruption of out-of-court identification contaminates the integrity of in-court identification during the trial of the case, courts have fashioned out rules to assure its fairness and its compliance with the requirements of constitutional due process. In resolving the admissibility of and relying on out-of-court identification of suspects, courts have adopted the totality of circumstances test where they consider the following factors, viz: (1) the witness’ opportunity to view the criminal at the time of the crime; (2) the witness’ degree of attention at that time: (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and (6) the suggestiveness of the identification procedure.” (PEOPLE V. TIMON,GR NO. 97841-42, NOV. 12, 1997)
PROBLEM NO. 20. Can a birth certificate be both an evidence of fact of birth and filiation? Explain.
Answer: While under the Family Code, filiation can be established by, among others, the record of birth appearing in the civil register,[7][80] yet the rule is where the birth certificate presented was not signed by the father against whom filiation is asserted, such may not be accepted as evidence of the alleged filiation. In Angeles v. Maglaya,[8][81] we held:
x x x Such certificate, albeit considered a public record of a private document is, under Section 23, Rule 132 of the Rules of Court, evidence only of the fact which gave rise to its execution: the fact of birth of a child. Jurisprudence teaches that a birth certificate, to be considered as validating proof of paternity and as an instrument of recognition, must be signed by the father and mother jointly, or by the mother alone if the father refuses. x x x[9][82]
In Angeles v. Maglaya, we refused to give evidentiary weight to the birth certificate as proof of filiation in a case for settlement of estate to support a claim of legitimacy because the same was unsigned by the alleged father. With more reason we should not accord value to the birth certificate in this case considering that its effect would be to increase the penalty to be imposed on the appellant. This is a criminal case wherein an interpretation unfavorable to the accused is generally unacceptable.
The Solicitor General cites this Court’s pronouncement in Heirs of Cabais v. Court of Appeals,[10][83] that “[a] birth certificate, being a public document, offers prima facie evidence of filiation and a high degree of proof is needed to overthrow the presumption of truth contained in such public document.”[11][84] The pronouncement is not applicable to this case. It was made merely as an elucidation of the limited evidentiary value of a baptismal certificate in this jurisdiction vis-à-vis a birth certificate. In that case, presented was the baptismal certificate of the person whose filiation was sought to be established. The birth certificate itself was not presented. In the case at bar, the birth certificate of AAA was presented.
We thus hold that the birth certificate of AAA is prima facie evidence only of the fact of her birth and not of her relation to appellant. After all, it is undisputed that appellant is not AAA’s biological father.(PP V. DELANTAR, 169143, Feb, 2, 2007)
End of the examination.
(Please pay 5 pesos for Xerox/ink fee)
No comments:
Post a Comment