As early as 1924, some ABA members have questioned the form and function of the canons. Among their concerns was the "revolving door" or "the process by which lawyers and others temporarily enter government service from private life and then leave it for large fees in private practice, where they can exploit information, contacts, and influence garnered in government service."[25] These concerns were classified as adverse-interest conflicts' and "congruent-interest conflicts." "Adverse-interest conflicts" exist where the matter in which the former government lawyer represents a client in private practice is substantially related to a matter that the lawyer dealt with while employed by the government and the interests of the current and former are adverse.[26] On the other hand, "congruent-interest representation conflicts" are unique to government lawyers and apply primarily to former government lawyers.[27] For several years, the ABA attempted to correct and update the canons through new canons, individual amendments and interpretative opinions. In 1928, the ABA amended one canon and added thirteen new canons.[28] To deal with problems peculiar to former government lawyers, Canon 36 was minted which disqualified them both for "adverse-interest conflicts" and "congruent-interest representation conflicts."[29] The rationale for disqualification is rooted in a concern that the government lawyer's largely discretionary actions would be influenced by the temptation to take action on behalf of the government client that later could be to the advantage of parties who might later become private practice clients
Friday, January 6, 2017
Moreover, this "inconsistency" refers only to a collateral matter and does not deviate from the fact that accused-appellant was positively and categorically identified as the perpetrator of the crime. The "inconsistency" only bolsters the credibility of Lejano as it shows that his testimony was not rehearsed nor perjured. Thus -
Inconsistencies in the testimonies of the prosecution witnesses with respect to minor details and collateral matters do not affect the substance of their declarations nor the veracity or weight of their testimony. In fact, these minor inconsistencies enhance the credibility of the witnesses for they remove any suspicion that their testimonies were contrived or rehearsed. In People v. Maglente [306 SCRA 546 (1999)], this Court ruled that inconsistencies in details which are irrelevant to the elements of the crime are not grounds for acquittal.[5]The defense maintains that Lejano is a perjured witness as he could not even state the exact date when his cousin died. Again, this Court is not convinced. Whatever seeming discrepancy there was in Lejano's testimony was not as irreconcilable nor material or relevant as to merit its complete disregard by the court. The date when the victim died refers only to a collateral matter. The established fact remains that accused-appellant stabbed the victim to death.
A partnership may be constituted in any form, except where immovable property or real rights are contributed thereto, in which case a public instrument shall be necessary.[6]Hence, based on the intention of the parties, as gathered from the facts and ascertained from their language and conduct, a verbal contract of partnership may arise.[7] The essential points that must be proven to show that a partnership was agreed upon are (1) mutual contribution to a common stock, and (2) a joint interest in the profits.[8]Understandably so, in view of the absence of a written contract of partnership between respondent and Jacinto, respondent resorted to the introduction of documentary and testimonial evidence to prove said partnership. The crucial issue to settle then is whether or not the “Dead Man’s Statute” applies to this case so as to render inadmissible respondent’s testimony and that of his witness, Josephine.
The “Dead Man’s Statute” provides that if one party to the alleged transaction is precluded from testifying by death, insanity, or other mental disabilities, the surviving party is not entitled to the undue advantage of giving his own uncontradicted and unexplained account of the transaction.[9] But before this rule can be successfully invoked to bar the introduction of testimonial evidence, it is necessary that:
Two reasons forestall the application of the “Dead Man’s Statute” to this case.
First, petitioners filed a compulsory counterclaim[11] against respondent in their answer before the trial court, and with the filing of their counterclaim, petitioners themselves effectively removed this case from the ambit of the “Dead Man’s Statute”.[12] Well entrenched is the rule that when it is the executor or administrator or representatives of the estate that sets up the counterclaim, the plaintiff, herein respondent, may testify to occurrences before the death of the deceased to defeat the counterclaim.[13] Moreover, as defendant in the counterclaim, respondent is not disqualified from testifying as to matters of fact occurring before the death of the deceased, said action not having been brought against but by the estate or representatives of the deceased.[14]
Second, the testimony of Josephine is not covered by the “Dead Man’s Statute” for the simple reason that she is not “a party or assignor of a party to a case or persons in whose behalf a case is prosecuted”. Records show that respondent offered the testimony of Josephine to establish the existence of the partnership between respondent and Jacinto. Petitioners’ insistence that Josephine is the alter ego of respondent does not make her an assignor because the term “assignor” of a party means “assignor of a cause of action which has arisen, and not the assignor of a right assigned before any cause of action has arisen.”[15] Plainly then, Josephine is merely a witness of respondent, the latter being the party plaintiff.
We are not convinced by petitioners’ allegation that Josephine’s testimony lacks probative value because she was allegedly coerced by respondent, her brother-in-law, to testify in his favor. Josephine merely declared in court that she was requested by respondent to testify and that if she were not requested to do so she would not have testified. We fail to see how we can conclude from this candid admission that Josephine’s testimony is involuntary when she did not in any way categorically say that she was forced to be a witness of respondent. Also, the fact that Josephine is the sister of the wife of respondent does not diminish the value of her testimony since relationship per se, without more, does not affect the credibility of witnesses.[16]
Petitioners’ reliance alone on the “Dead Man’s Statute” to defeat respondent’s claim cannot prevail over the factual findings of the trial court and the Court of Appeals that a partnership was established between respondent and Jacinto. Based not only on the testimonial evidence, but the documentary evidence as well, the trial court and the Court of Appeals considered the evidence for respondent as sufficient to prove the formation of a partnership, albeit an informal one.
The “Dead Man’s Statute” provides that if one party to the alleged transaction is precluded from testifying by death, insanity, or other mental disabilities, the surviving party is not entitled to the undue advantage of giving his own uncontradicted and unexplained account of the transaction.[9] But before this rule can be successfully invoked to bar the introduction of testimonial evidence, it is necessary that:
Two reasons forestall the application of the “Dead Man’s Statute” to this case.
First, petitioners filed a compulsory counterclaim[11] against respondent in their answer before the trial court, and with the filing of their counterclaim, petitioners themselves effectively removed this case from the ambit of the “Dead Man’s Statute”.[12] Well entrenched is the rule that when it is the executor or administrator or representatives of the estate that sets up the counterclaim, the plaintiff, herein respondent, may testify to occurrences before the death of the deceased to defeat the counterclaim.[13] Moreover, as defendant in the counterclaim, respondent is not disqualified from testifying as to matters of fact occurring before the death of the deceased, said action not having been brought against but by the estate or representatives of the deceased.[14]
Second, the testimony of Josephine is not covered by the “Dead Man’s Statute” for the simple reason that she is not “a party or assignor of a party to a case or persons in whose behalf a case is prosecuted”. Records show that respondent offered the testimony of Josephine to establish the existence of the partnership between respondent and Jacinto. Petitioners’ insistence that Josephine is the alter ego of respondent does not make her an assignor because the term “assignor” of a party means “assignor of a cause of action which has arisen, and not the assignor of a right assigned before any cause of action has arisen.”[15] Plainly then, Josephine is merely a witness of respondent, the latter being the party plaintiff.
We are not convinced by petitioners’ allegation that Josephine’s testimony lacks probative value because she was allegedly coerced by respondent, her brother-in-law, to testify in his favor. Josephine merely declared in court that she was requested by respondent to testify and that if she were not requested to do so she would not have testified. We fail to see how we can conclude from this candid admission that Josephine’s testimony is involuntary when she did not in any way categorically say that she was forced to be a witness of respondent. Also, the fact that Josephine is the sister of the wife of respondent does not diminish the value of her testimony since relationship per se, without more, does not affect the credibility of witnesses.[16]
Petitioners’ reliance alone on the “Dead Man’s Statute” to defeat respondent’s claim cannot prevail over the factual findings of the trial court and the Court of Appeals that a partnership was established between respondent and Jacinto. Based not only on the testimonial evidence, but the documentary evidence as well, the trial court and the Court of Appeals considered the evidence for respondent as sufficient to prove the formation of a partnership, albeit an informal one.
As for the administratrix’s invocation of the Dead Man’s Statute, the same does not likewise lie. The rule renders incompetent: 1) parties to a case; 2) their assignors; or 3) persons in whose behalf a case is prosecuted.
As to the second assigned error, petitioners argue that the testimonies of Sanson and Celedonia as witnesses to each other’s claim against the deceased are not covered by the Dead Man’s Statute;[28] besides, the administratrix waived the application of the law when she cross-examined them.
The administratrix, on the other hand, cites the ruling of the Court of Appeals in its decision on review, the pertinent portion of which reads:
In any event, what the Dead Man’s Statute proscribes is the admission of testimonial evidence upon a claim which arose before the death of the deceased. The incompetency is confined to the giving of testimony.[29] Since the separate claims of Sanson and Celedonia are supported by checks-documentary evidence, their claims can be prosecuted on the bases of said checks.
Jade is not a party to the case. Neither is she an assignor nor a person in whose behalf the case is being prosecuted. She testified as a witness to the transaction. In transactions similar to those involved in the case at bar, the witnesses are commonly family members or relatives of the parties. Should their testimonies be excluded due to their apparent interest as a result of their relationship to the parties, there would be a dearth of evidence to prove the transactions. In any event, as will be discussed later, independently of the testimony of Jade, the claims of the Montinolas would still prosper on the basis of their documentary evidence—the checks.x x x
The rule is exclusive and cannot be construed to extend its scope by implication so as to disqualify persons not mentioned therein. Mere witnesses who are not included in the above enumeration are not prohibited from testifying as to a conversation or transaction between the deceased and a third person, if he took no active part therein.
x x x[27] (Underscoring supplied)
As to the second assigned error, petitioners argue that the testimonies of Sanson and Celedonia as witnesses to each other’s claim against the deceased are not covered by the Dead Man’s Statute;[28] besides, the administratrix waived the application of the law when she cross-examined them.
The administratrix, on the other hand, cites the ruling of the Court of Appeals in its decision on review, the pertinent portion of which reads:
The more logical interpretation is to prohibit parties to a case, with like interest, from testifying in each other’s favor as to acts occurring prior to the death of the deceased.But Sanson’s and Celedonia’s claims against the same estate arose from separate transactions. Sanson is a third party with respect to Celedonia’s claim. And Celedonia is a third party with respect to Sanson’s claim. One is not thus disqualified to testify on the other’s transaction.
Since the law disqualifies parties to a case or assignors to a case without distinguishing between testimony in his own behalf and that in behalf of others, he should be disqualified from testifying for his co-parties. The law speaks of “parties or assignors of parties to a case.” Apparently, the testimonies of Sanson and Saquin on each other’s behalf, as co-parties to the same case, falls under the prohibition. (Citation omitted; underscoring in the original and emphasis supplied)
In any event, what the Dead Man’s Statute proscribes is the admission of testimonial evidence upon a claim which arose before the death of the deceased. The incompetency is confined to the giving of testimony.[29] Since the separate claims of Sanson and Celedonia are supported by checks-documentary evidence, their claims can be prosecuted on the bases of said checks.
What the PARAD, DARAB and CA failed to consider and realize is that Amanda’s declaration in her Affidavit covering Pedro’s alleged admission and recognition of the alternate farming scheme is inadmissible for being a violation of the Dead Man’s Statute,[29] which provides that “[i]f one party to the alleged transaction is precluded from testifying by death, insanity, or other mental disabilities, the other party is not entitled to the undue advantage of giving his own uncontradicted and unexplained account of the transaction.”[30] Thus, since Pedro is deceased, and Amanda’s declaration which pertains to the leasehold agreement affects the 1996 “Kasunduan sa Buwisan ng Lupa” which she as assignor entered into with petitioners, and which is now the subject matter of the present case and claim against Pedro’s surviving spouse and lawful successor-in-interest Dominga, such declaration cannot be admitted and used against the latter, who is placed in an unfair situation by reason of her being unable to contradict or disprove such declaration as a result of her husband-declarant Pedro’s prior death.
If petitioners earnestly believed that they had a right, under their supposed mutual agreement with Pedro, to cultivate the land under an alternate farming scheme, then they should have confronted Pedro or sought an audience with Amanda to discuss the possibility of their institution as co-lessees of the land; and they should have done so soon after the passing away of their father Eugenio. However, it was only in 1996, or 17 years after Pedro was installed as tenant in 1979 and long after his death in 1984, that they came forward to question Pedro’s succession to the leasehold. As correctly held by the PARAD, petitioners slept on their rights, and are thus precluded from questioning Pedro’s 1979 agricultural leasehold contract.
Amanda, on the other hand, cannot claim that Pedro deceived her into believing that he is the sole successor to the leasehold. Part of her duties as the landowner’s representative or administrator was to know the personal circumstances of the lessee Eugenio; more especially so, when Eugenio died. She was duty-bound to make an inquiry as to who survived Eugenio, in order that the landowner – or she as representative – could choose from among them who would succeed to the leasehold. Under Section 9 of RA 3844, Makapugay, or Amanda – as Makapugay’s duly appointed representative or administrator – was required to make a choice, within one month from Eugenio’s death, who would succeed as agricultural lessee. Thus:
Amanda may not claim ignorance of the above provision, as ignorance of the law excuses no one from compliance therewith.[31] Thus, when she executed the 1979 Agricultural Leasehold Contract with Pedro, she is deemed to have chosen the latter as Eugenio’s successor, and is presumed to have diligently performed her duties, as Makapugay’s representative, in conducting an inquiry prior to making the choice.
The same holds true for petitioners. They should be held to a faithful compliance with Section 9. If it is true that they entered into a unique arrangement with Pedro to alternately till the land, they were thus obliged to inform Makapugay or Amanda of their arrangement, so that in the process of choosing Eugenio’s successor, they would not be left out. But evidently, they did not; they slept on their rights, and true enough, they were excluded, if there was any such alternate farming agreement between them. And after Pedro was chosen and installed as Eugenio’s successor, they allowed 17 years to pass before coming out to reveal this claimed alternate farming agreement and insist on the same.
If petitioners earnestly believed that they had a right, under their supposed mutual agreement with Pedro, to cultivate the land under an alternate farming scheme, then they should have confronted Pedro or sought an audience with Amanda to discuss the possibility of their institution as co-lessees of the land; and they should have done so soon after the passing away of their father Eugenio. However, it was only in 1996, or 17 years after Pedro was installed as tenant in 1979 and long after his death in 1984, that they came forward to question Pedro’s succession to the leasehold. As correctly held by the PARAD, petitioners slept on their rights, and are thus precluded from questioning Pedro’s 1979 agricultural leasehold contract.
Amanda, on the other hand, cannot claim that Pedro deceived her into believing that he is the sole successor to the leasehold. Part of her duties as the landowner’s representative or administrator was to know the personal circumstances of the lessee Eugenio; more especially so, when Eugenio died. She was duty-bound to make an inquiry as to who survived Eugenio, in order that the landowner – or she as representative – could choose from among them who would succeed to the leasehold. Under Section 9 of RA 3844, Makapugay, or Amanda – as Makapugay’s duly appointed representative or administrator – was required to make a choice, within one month from Eugenio’s death, who would succeed as agricultural lessee. Thus:
Section 9. Agricultural Leasehold Relation Not Extinguished by Death or Incapacity of the Parties - In case of death or permanent incapacity of the agricultural lessee to work his landholding, the leasehold shall continue between the agricultural lessor and the person who can cultivate the landholding personally, chosen by the agricultural lessor within one month from such death or permanent incapacity, from among the following: (a) the surviving spouse; (b) the eldest direct descendant by consanguinity; or (c) the next eldest descendant or descendants in the order of their age: Provided, That in case the death or permanent incapacity of the agricultural lessee occurs during the agricultural year, such choice shall be exercised at the end of that agricultural year: Provided, further, That in the event the agricultural lessor fails to exercise his choice within the periods herein provided, the priority shall be in accordance with the order herein established.
In case of death or permanent incapacity of the agricultural lessor, the leasehold shall bind his legal heirs. (Emphasis supplied)
Amanda may not claim ignorance of the above provision, as ignorance of the law excuses no one from compliance therewith.[31] Thus, when she executed the 1979 Agricultural Leasehold Contract with Pedro, she is deemed to have chosen the latter as Eugenio’s successor, and is presumed to have diligently performed her duties, as Makapugay’s representative, in conducting an inquiry prior to making the choice.
The same holds true for petitioners. They should be held to a faithful compliance with Section 9. If it is true that they entered into a unique arrangement with Pedro to alternately till the land, they were thus obliged to inform Makapugay or Amanda of their arrangement, so that in the process of choosing Eugenio’s successor, they would not be left out. But evidently, they did not; they slept on their rights, and true enough, they were excluded, if there was any such alternate farming agreement between them. And after Pedro was chosen and installed as Eugenio’s successor, they allowed 17 years to pass before coming out to reveal this claimed alternate farming agreement and insist on the same.
Section 20(a) of Rule 130, commonly known as the Survivorship Disqualification Rule or Dead Man Statute, which provides as follows:
The case at bar, although instituted against the heirs of Praxedes Villanueva after the estate of the latter had been distributed to them, remains within the ambit of the protection. The reason is that the defendants-heirs are properly the "representatives" of the deceased, not only because they succeeded to the decedent's right by descent or operation of law, but more importantly because they are so placed in litigation that they are called on to defend which they have obtained from the deceased and make the defense which the deceased might have made if living, or to establish a claim which deceased might have been interested to establish, if living.[11]
Such protection, however, was effectively waived when counsel for petitioners cross-examined private respondent Vicente. "A waiver occurs when plaintiff's deposition is taken by the representative of the estate or when counsel for the representative cross-examined the plaintiff as to matters occurring during deceased's lifetime."[12] It must further be observed that petitioners presented a counterclaim against private respondent Vicente. When Vicente thus took the witness stand, it was in a dual capacity as plaintiff in the action for recovery of property and as defendant in the counterclaim for accounting and surrender of fields nos. 4 and 13. Evidently, as defendant in the counterclaim, he was not disqualified from testifying as to matters of fact occurring before the death of Praxedes Villanueva, said action not having been brought against, but by the estate or representatives of the estate/deceased person.
Likewise, under a great majority of statutes, the adverse party is competent to testify to transactions or communications with the deceased or incompetent person which were made with an agent of such person in cases in which the agent is still alive and competent to testify. But the testimony of the adverse party must be confined to those transactions or communications which were had with the agent.[13] The contract/promise to sell under consideration was signed by petitioner Goñi as attorney-in-fact (apoderado) of Praxedes Villanueva. He was privy to the circumstances surrounding the execution of such contract and therefore could either confirm or deny any allegations made by private respondent Vicente with respect to said contract. The inequality or injustice sought to be avoided by Section 20(a) of Rule 130, where one of the parties no longer has the opportunity to either confirm or rebut the testimony of the other because death has permanently sealed the former's lips, does not actually exist in the case at bar, for the reason that petitioner Goñi could and did not negate the binding effect of the contract/promise to sell. Thus, while admitting the existence of the said contract/ promise to sell, petitioner Goñi testified that the same was subsequently novated into a verbal contract of lease over fields nos. 4 and 13 of the Hacienda Dulce Nombre de Maria.
"Section 20. Disqualification by reason of interest or relationship. - The following persons cannot testify as to matters in which they are interested, directly or indirectly, as herein enumerated:The object and purpose of the rule is to guard against the temptation to give false testimony in regard to the transaction in question on the part of the surviving party and further to put the two parties to a suit upon terms of equality in regard to the opportunity of giving testimony.[9] It is designed to close the lips of the party plaintiff when death has closed the lips of the party defendant, in order to remove from the surviving party the temptation to falsehood and the possibility of fictitious claims against the deceased.[10]
"(a) Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted, against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person or against such person unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind."
The case at bar, although instituted against the heirs of Praxedes Villanueva after the estate of the latter had been distributed to them, remains within the ambit of the protection. The reason is that the defendants-heirs are properly the "representatives" of the deceased, not only because they succeeded to the decedent's right by descent or operation of law, but more importantly because they are so placed in litigation that they are called on to defend which they have obtained from the deceased and make the defense which the deceased might have made if living, or to establish a claim which deceased might have been interested to establish, if living.[11]
Such protection, however, was effectively waived when counsel for petitioners cross-examined private respondent Vicente. "A waiver occurs when plaintiff's deposition is taken by the representative of the estate or when counsel for the representative cross-examined the plaintiff as to matters occurring during deceased's lifetime."[12] It must further be observed that petitioners presented a counterclaim against private respondent Vicente. When Vicente thus took the witness stand, it was in a dual capacity as plaintiff in the action for recovery of property and as defendant in the counterclaim for accounting and surrender of fields nos. 4 and 13. Evidently, as defendant in the counterclaim, he was not disqualified from testifying as to matters of fact occurring before the death of Praxedes Villanueva, said action not having been brought against, but by the estate or representatives of the estate/deceased person.
Likewise, under a great majority of statutes, the adverse party is competent to testify to transactions or communications with the deceased or incompetent person which were made with an agent of such person in cases in which the agent is still alive and competent to testify. But the testimony of the adverse party must be confined to those transactions or communications which were had with the agent.[13] The contract/promise to sell under consideration was signed by petitioner Goñi as attorney-in-fact (apoderado) of Praxedes Villanueva. He was privy to the circumstances surrounding the execution of such contract and therefore could either confirm or deny any allegations made by private respondent Vicente with respect to said contract. The inequality or injustice sought to be avoided by Section 20(a) of Rule 130, where one of the parties no longer has the opportunity to either confirm or rebut the testimony of the other because death has permanently sealed the former's lips, does not actually exist in the case at bar, for the reason that petitioner Goñi could and did not negate the binding effect of the contract/promise to sell. Thus, while admitting the existence of the said contract/ promise to sell, petitioner Goñi testified that the same was subsequently novated into a verbal contract of lease over fields nos. 4 and 13 of the Hacienda Dulce Nombre de Maria.
In this regard, guidance is provided by the following articles of the Civil Code involving the interpretation of contracts:
Rule 130, Section 13 which provides for the rules on the interpretation of documents is likewise enlightening:
Article 1370. If the terms of a contract are clear and leave no doubt upon the intention of the contracting parties, the literal meaning of its stipulations shall control.
If the words appear to be contrary to the evident intention of the parties, the latter shall prevail over the former.
Article 1371. In order to judge the intention of the contracting parties, their contemporaneous and subsequent acts shall be principally considered.
Rule 130, Section 13 which provides for the rules on the interpretation of documents is likewise enlightening:
Section 13. Interpretation according to circumstances. - For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject thereof and of the parties to it, may be shown, so that the judge may be placed in the position of those whose language he is to interpret.
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