1. AFP RETIREMENT AND SEPARATION BENEFITS SYSTEM vs.
REPUBLIC It is, the absence of the plaintiff, and not the absence of the lawyer, which may
OF THE PHILIPPINES
The issue to be resolved in the present case is whether the court a quo acted
contrary to law and jurisprudence when it dismissed petitioners application for
land registration on the ground that petitioner failed to prosecute the subject
case.
We answer in the affirmative.
The reason of the court a quo in dismissing petitioners application for land
registration on the ground of failure to prosecute was the lack of authority on the
part of Ms. Aban to testify on behalf of the petitioner.
However, Section 3, Rule 17 of the 1997 Rules of Civil Procedure, as amended,
provides only three instances wherein the Court may dismiss a case for failure to
prosecute:
(1) if the plaintiff fails to appear at the time of trial; or
(2) if he fails to prosecute the action for an unreasonable length of time; or
(3) if he fails to comply with the Rules of Court or any order of the court.
Clearly, the courts basis for pronouncing that the petitioner failed to prosecute its
case is not among those grounds provided by the Rules. It had no reason to
conclude that the petitioner failed to prosecute its case.
The petitioner did not fail to prosecute the subject case considering that it
appeared during trial, presented Ms. Aban, who gave competent testimony as
regards the titling of the subject lots, and the court a quo never held petitioner
liable for any delay in prosecuting the subject case.
2. DAYO vs DAYO (Marahay vs Melicor)
Petitioner filed with respondent court an action for recovery of real property
against Aliwanag B. Valleramos. Later, the complaint was amended to implead
and include other defendants, the other private respondents herein, as
indispensable parties.
Petitioner appeared without counsel prompting private respondents, through their
counsel, to move for the dismissal of the case for petitioner's alleged inability to
prosecute her case and for apparent lack of interest.
The sole issue is whether or not respondent judge committed grave abuse of
discretion amounting to lack or excess of jurisdiction in ordering the dismissal of
the case and, consequently, denying petitioner the right to fully prosecute her
case.
Section 3, Rule 17 of the Rules of Court provides that
warrant the dismissal of the case on the ground of non-suit. In the case at bar,
only the counsel for plaintiff was absent, plaintiff herself being in attendance in
court.
3. PINGA vs HEIRS OF SANTIAGO
The heirs of German Santiago (Respondents) represented by Fernando Santiago
filed a complaint for injunction against Eduardo Pinga and Vicente Saavedra
(Petitioners) for unlawfully entering their coco lands, cutting wood and bamboos
and harvesting the fruits of the coconut fruits therein. The Respondents prayed
that Petitioners be enjoined from committing the said acts and be ordered to pay
damages.
Petitioners filed an Answer with a Counterclaim disputing the ownership of the
properties by the Respondents asserting that Pingas father had been in
possession of the said properties since 1930s.
The RTC dismissed the Complaint filed by the respondents for failure to
prosecute their case for an unreasonable length of time and for not presenting
their evidence thereon. Petitioners were allowed to present their evidence ex-
parte.
The Respondents filed a Motion for Reconsideration to seek dismissal of the
entire action and that the petitioners be disallowed to present their evidence ex-
parte stating that to allow them to present their evidence ex-parte was not in
accord with established jurisprudence. The RTC granted their Motion for
Reconsideration and dismissed the Counterclaim of the Petitioners.
ISSUE:
Whether or not the dismissal of the complaint necessarily carries the dismissal of
the compulsory counterclaim.
RULING:
NO. Under Section 3, Rule 17 of the 1997 Rules of Procedure, the dismissal of
the Complaint due to the fault of the plaintiff does not necessarily carry with it the
dismissal of the Counterclaim, compulsory or otherwise.
It is without prejudice to the right of defendants to prosecute the Counterclaim.
4. RP vs DIAZ ENRIQUEZ
Civil action sought the recovery of ill-gotten wealth from respondents for the
benefit of the Republic. Allegedly, these properties were illegally obtained during
the reign of former President Ferdinand E. Marcos
On motion for the dismissal of this case, since plaintiff's counsel failed to appear
despite due notice and there was no representative from the plaintiff,
Sandiganbayan issued its Order dismissing the case without prejudice.
Petitioner argues that its single incidence of absence after Falcon resigned does
not amount to failure to prosecute under Rule 17, Section 3 of the Rules of Court.
Petitioner asserts that she was diligent in attending the hearings and in
submitting the requirements of the Sandiganbayan. Their inability to send
representatives for the Republic in the hearing can only be appreciated as mere
inadvertence and excusable negligence, which cannot amount to failure to
prosecute.
As worded, Rule 17, Section 3 of the Rules of Court, provides that the court may
dismiss a complaint in case there are no justifiable reasons that explain the
plaintiff's absence during the presentation of the evidence in chief.
The word "may" in Rule 17, Section 3 of the Rules of Court, operates to confer on
the court the discretion to decide between the dismissal of the case on
technicality vis--vis the progressive prosecution thereof.
The Sandiganbayan appears to have limited itself to a rigid application of
technical rules without applying the real test explained above. The Order was
bereft of any explanation alluding to the indifference and irresponsibility of
petitioner. The Order was also silent on any previous act of petitioner that can be
characterized as contumacious or slothful.
5. TIU VS MIDDLETON
The present Petition arose from a Complaint for recovery of ownership and
possession of real property. Petitioner averred that he would be presenting six
witnesses, but he did not name them.
Main Issue: Can Petitioners Unnamed Witnesses Testify?
Petitioner argues that the Rules of Court merely requires that witnesses be
named in the pre-trial brief, but it does not authorize a judge to exclude a witness
who was not identified. Furthermore, he maintains that neither the trial court nor
the respondents required during the pre-trial that unnamed witnesses be barred
from testifying.
What needs stressing is that the parties as well as the trial court must realize that
the parties are obliged not only to make formal identification and specification of
the issues and of their proofs, as above described, there is no reason why the
Court may not oblige the parties to set these matters down in the separate
writings and submit them to the Court prior to the pre-trial, and then to discuss,
refine and embody the matters agreed upon in a single document at or shortly
after the pre-trial -- but also and equally as peremptorily, to directly address and
discuss with sincerity and candor and in entire good faith each of the other
subjects enumerated in Section 1, Rule 20,
i.e., the possibility of an amicable settlement or of a submission to arbitration, the
advisability of a preliminary reference of issues to a commissioner, and such
other matters as may aid in the prompt disposition of the action, inclusive of a
resort to the modes of discovery.
In light of the objectives of a pre-trial and the role of the trial court therein, judges
have the discretion to exclude witnesses and other pieces of evidence not listed
in the pre-trial brief, provided the parties are given prior notice to this effect
6. LICOMCEN INC VS ABAINZA
Respondent filed an action for sum of money and damages against Liberty
Commercial Center, Inc. A perusal of the records reveals that, although petitioner
did not invoke Article 1724 of the Civil Code as a defense in its answer or in its
pre-trial brief, petitioner belatedly asserted such defense in its Memorandum filed
before the trial court. Thus, from its previous defense that it has fully paid its
obligations to respondent, petitioner changed its theory by adding that since the
additional work done by respondent was not authorized in writing, then
respondent cannot recover additional costs.
Petitioner cannot change its defense after the termination of the period of
testimony and after the exhibits of both parties have already been admitted by
the court. The non-inclusion of this belated defense in the pre-trial order barred
its consideration during the trial. To rule otherwise would put the adverse party at
a disadvantage since he could no longer offer evidence to rebut the new theory.
Indeed, parties are bound by the delimitation of issues during the pre-trial.
Sections 6 and 7, Rule 18 of the Rules of Court provide:
Sec. 6. Pre-trial brief. The parties shall file with the court and serve on the
adverse party, in such manner as shall insure their receipt thereof at least three
(3) days before the date of the pre-trial, their respective pre-trial briefs which shall
contain, among others:
(c) The issues to be tried or resolved;
7. NPC VS ADIONG
In Civil Case No. 1918-03, plaintiffs Ibrahim Abdo, et al. as a group of farmers,
fishermen, laborers, workers, vendors, household members, and businessmen,
collectively sought to hold NPC liable for damages for operating seven
Hydroelectric Power plants allegedly without due regard to the health and safety
of the plaintiffs and other residents of Marawi City and the province of Lanao del
Sur. The plaintiffs alleged that they and several others suffered ecological and
economic disasters brought about by the operation of regulatory dams which
affected the natural flow of Lake Lanao and destroyed their farms, properties,
businesses and sources of livelihood. In addition to damages, the plaintiffs also
sought the refund of millions of pesos from the Purchase Power Adjustment
(PPA) collected by NPC from its electric consumers through the Lanao Del Sur
Electric Cooperative.
Judge Adiong issued a Resolution ordering NPC to refunds in favor of plaintiffs.
NPC sought reconsideration of the order alleging that no pre-trial was conducted
and yet respondent judge already passed upon the merits of the case. NPCs
motion, however, was denied by Judge Adiong.
An administrative complaint filed by the National Power Corporation (NPC)
through its president Cyril C. Del Callar, charging respondent Judge Santos B.
Adiong, Presiding Judge of the Regional Trial Court (RTC) with gross ignorance
of the law, manifest partiality and conduct unbecoming a member of the
Judiciary.
Judge Adiong failed to conduct a pre-trial conference contrary to elementary
rules of procedure which he should have known all too well considering his long
years of service in the bench.
It is elementary and plain that the holding of such a pre-trial conference is
mandatory and failure to do so is inexcusable. When the law or procedure is so
elementary, such as the provisions of the Rules of Court, not to know it or to act
as if one does not know it constitutes gross ignorance of the law.
8. FILOIL vs DYPAC
The only issue in this appeal is whether or not the court acquired jurisdiction over
the person of the defendant-private corporation when the summons and copy of
the complaint were served on its retained counsel.
It is the position of herein defendant-appellant that the lower court did not acquire
jurisdiction over it due to improper service of summons and, therefore, there was
an error in declaring the latter in default and rendering judgment against it instead
of dismissing the case for lack of jurisdiction.
The summons and copy of the complaint were served upon Atty. Paulino Al.
Aquino, an Assistant Attorney in the Syquia Law Offices and who, in three or four
instances, had already appeared in court in connection with the Motions to
Dismiss on the ground of improper service of summons.
Section 13, Rule 14 of the Revised Rules of Court, provides that service of
summons upon a domestic corporation may be made on its agent.
In the case at bar, where defendant- corporation's counsel received the
summons, he was acting for and in behalf of the defendant in connection with the
Motions to Dismiss on the ground of lack of jurisdiction on the person of the
defendant due to improper service of summons. Perforce, he was the
defendant's agent and under the aforecited rule, service upon him is sufficient.
9. PIONEER INSURANCE vs HONTANOSAS
The petitioner's main thrust in this legal attack is directed to the order declaring
defendants (now the petitioners) in default at the second pre-trial hearing and
allowing the plaintiffs (the present private respondents) to present evidence ex
parte before the Clerk of Court.
The records do not disclose any reply of the plaintiffs to the answer of Pioneer
Insurance & Surety Corp., nor any answer to the compulsory counterclaim of the
Corp. The above state of the case as far as the pleadings are concerned clearly
and manifestly show that the case was not yet ready for pre-trial, that it was as
yet premature because the last pleading had not yet been filed by the plaintiffs.
Even the state of the pleadings as of February 21, 1972 when the telegrams
were sent notifying the parties of the pre-trial reveals the prematureness of
calendaring the case pre-trial. As of February 21, 1972, the complaint was
already amended to implead Lucman who submitted his answer with compulsory
counterclaim. But plaintiffs had not yet filed their reply and their answer to the
counterclaim, because the records indicate that the plaintiffs' answer to the
counterclaim is dated February 22, 1972. And to the compulsory counterclaim of
defendant Pioneer Insurance & Surety Corp., plaintiffs made no answer
whatsoever.
10. JUNGCO vs CA
RTC Judge set the case for Pre-trial hearings. Defendant failed to appear but
there was no proof of notification, and the pre-trial was reset to November 9,
1984, and reset again to March 1, 1985. At the hearing on March 1, 1985
defendant-petitioner herein, filed a motion for postponement asking for a
resetting of the hearing to April 5, 1985, declaring him as a default and allowing
plaintiff to present evidence ex-parte. Petitioner filed a Motion for
Reconsideration, alleging among others that he was not duly notified of the
hearing on March 22, 1985.
On July 12, 1985, petitioner filed a motion to set aside order of default but said
motion was denied. Mainly, petitioner argues that the trial court gravely abused
its descretion in considering him as in default.
Pursuant to Section 1, Rule 20 of the Rules of Court, the appearance of the
parties at the scheduled pre-trial conference is mandatory. And to ensure the
enforcement of such mandate.
Petitioner was declared as in default by the trial court for failure to appear at the
scheduled pre-trial hearing despite due notice thereof. Consequently, petitioner
may not insist that the trial court set aside its Order of default in view of his
meritorious defense since such defense, as it appears in his answer, is already
within the knowledge of said court prior to the issuance of the disputed Order.
In fact, present jurisprudence show that a "Motion to Set Aside Order of Default"
is not the proper remedy of a party who had been so declared as in default, a
Motion for Reconsideration being the relevant remedy without need for a recital
of defendant's "meritorious defenses" simply because the said defenses of the
defendant are already laid down in the answer.
The instant petition for review seeks the setting aside of the order of default
isssued by the lower court against petitioner is DENIED.
11. PHIL EXPORT VS AMALGAMATED MNGT CORP.
The petitioner posits that based on the RTCs pre-trial order, the only issue to be
resolved was whether there was a deficiency claim after the foreclosure of the
real estate mortgage; that the liability of Cuevas and Saddul on the deficiency
claim was already an admitted fact under the pre-trial order; and that the RTC
improperly considered and determined their liability.
The Court cannot sustain the petitioners position.
The pre-trial order nowhere stated that Cuevas and Saddul already admitted their
liability on the petitioners deficiency claim. Their admission appearing in the pre-
trial order referred only to the fact that they and AMDC had received advances in
large amounts from the petitioner, and that the real estate mortgage securing the
loan had already been foreclosed.
Whether Cuevas and Saddul were liable on the deficiency claim was proper for
the ascertainment and determination by the RTC as the trial court and the CA as
the appellate tribunal, notwithstanding the silence of the pre-trial order on it,
The issues to be tried between the parties in a case shall be limited to those
defined in the pre-trial order, as Section 7, Rule 18 of the Rules of Court explicitly
provides:
Section 7. Record of pre-trial. The proceedings in the pre-trial shall be recorded.
Upon the termination thereof, the court shall issue an order which shall recite in
detail the matters taken up in the conference, the action taken thereon, the
amendments allowed to the pleadings, and the agreements or admissions made
by the parties as to any of the matters considered. Should the action proceed
to trial, the order shall explicitly define and limit the issues to be tried. The
contents of the order shall control the subsequent course of the action,
unless modified before trial to prevent manifest injustice.
12. SON VS SON
Whether or not the Deed of Sale with Right to Repurchase, although not taken up
as one of the issues during the pre-trial, may be admitted in evidence considering
that the same was properly pleaded and the adverse party not only failed to
object to the presentation of said deed in evidence but even cross-examined
extensively on the same during the trial.
Section 4, Rule 20 of the Revised Rules of Court provides that:
Sec. 4. Record of pre-trial results. After the pre-trial the court shall make an
order which recites the action taken at the conference, the amendments allowed
to the pleadings, and the agreements made by the parties as to any of the
matters considered, such order shall limit the issues for trial to those not
disposed of by admissions or agreements of counsel and when entered controls
the subsequent course of the action, unless modified before trial to prevent
manifest injustice
Private respondents' failure to raise any objection: (a) when petitioners presented
in evidence the 1951 Deed of Sale with Right to Repurchase; (b) when
petitioners' counsel vigorously cross-examined respondent Teofista Son Arcipe
on the aforementioned deed; and (c) when Anastacio Son testified on said
document, constitutes an implied assent on the part of respondents to depart
from the issue contained in the pre-trial order.
Private respondents cannot claim that they were not adequately prepared to
meet petitioners' defense. They were simply not "caught in surprise." On the
other hand, they had every opportunity to present rebuttal or counter-evidence on
the issue.
13. ASIAS EMERGING DRAGON CORP vs DOTC
Manila Hotel Corporation(MHC) seeks to intervene in the consolidated cases
alleging that it has a legal interest in the matter in litigation. It avers that it
purchased 20% of PIATCOs shares from the latters two stockholders, namely,
SB Airport Investments, Inc. and Sojitz Corporation.
MHC claims that it has a legal interest in the issues raised and the early and
complete compliance with the decision of this Court. Thus it prays that (1) AEDCs
petition be dismissed; (2) its (MHCs) proposed alternative manner be approved
and (3) it be allowed to manage and operate the NAIA IPT III for 25 years.
The matter in controversy is the NAIA IPT III. MHC has no connection at all to
this structure. It is merely a stockholder of PIATCO, the builder of NAIA IPT III.
Its interest, if any, is indirect, contingent and inchoate. PIATCO has a legal
personality separate and distinct from that of its stockholders, including MHC. It
has rights and obligations which pertain solely to itself, not to any of its
component members (i.e., its stockholders).
The following are the requisites for intervention of a non-party:
1. Legal interest
(a) in the matter in controversy; or
(b) in the success of either of the parties; or
(c) against both parties; or
(d) person is so situated as to be adversely affected by a distribution or other
disposition of property in the custody of the court or of an officer thereof;
2. Intervention will not unduly delay or prejudice the adjudication of rights of
original parties;
3. Intervenor's rights may not be fully protected in a separate proceeding.
The right to intervene is not an absolute right; it may only be permitted by the
courts when the movant establishes facts which satisfy the requirements of the
law authorizing it.
As the requisites have not been met, MHC has no right whatsoever to intervene.
14. MACTAN CEBU INTL AIRPORT VS HEIRS OF MINOZA
Petitioner argues that to allow the intervenors to intervene in the proceedings
before the trial court would not only unduly prolong and delay the resolution of
the case, it would make the proceedings unnecessarily complicated and change
the nature of the proceedings. Furthermore, contrary to the requirements for the
allowance of a motion for intervention, their legal interest in the subject properties
appear to be merely contingent or expectant and not of direct or immediate
character.
Section 1, Rule 19 of the Rules of Court states that intervention shall be allowed
when a person has:
(1) a legal interest in the matter in litigation;
(2) or in the success of any of the parties;
(3) or an interest against the parties;
(4) or when he is so situated as to be adversely affected by a distribution or
disposition of property in the custody of the court or an officer thereof.
In the case at bar, the intervenors are claiming that they are the legitimate heirs
of Estanislao Mioza and Inocencia Togono and not the original plaintiffs
represented by Leila Hermosisima. This Court has ruled that the interest
contemplated by law must be actual, substantial, material, direct and immediate,
and not simply contingent or expectant. It must be of such direct and immediate
character that the intervenor will either gain or lose by the direct legal operation
and effect of the judgment. Otherwise, if persons not parties to the action were
allowed to intervene, proceedings would become unnecessarily complicated,
expensive and interminable.
The intervenors contentions that Leilas predecessors-in-interest executed, in
fraud of the intervenors, an extra judicial settlement of the estate of the late
spouses Estanislao Mioza and Inocencia Togono and adjudicated unto
themselves the estate of the deceased spouses, and that subsequently, her
predecessors-in-interest fraudulently and deceitfully sold the subject lots to the
NAC, would unnecessarily complicate and change the nature of the
proceedings.1avvphi1
In addition to resolving who the true and legitimate heirs of Estanislao Mioza
and Inocencia Togono are, the parties would also present additional evidence in
support of this new allegation of fraud, deceit, and bad faith and resolve issues of
conflicting claims of ownership, authenticity of certificates of titles, and regularity
in their acquisition. Verily, this would definitely cause unjust delay in the
adjudication of the rights claimed by the original parties, which primarily hinges
only on the issue of whether or not the heirs represented by Leila have a right to
repurchase the subject properties from the MCIAA.
The allegation of fraud and deceit is an independent controversy between the
original parties and the intervenors. In general, an independent controversy
cannot be injected into a suit by intervention, hence, such intervention will not be
allowed where it would enlarge the issues in the action and expand the scope of
the remedies
15. EXECUTIVE SECRETARY vs NORTHEAST FREIGHT
Petitioners focus on the argument that respondent may not intervene on the
ground that it has no legal interest therein, petitioners do not allege or present
any evidence that the adjudication of the rights of the original parties shall be
delayed or prejudiced with the intervention of respondent, or that the rights of
respondent may be protected in a separate proceeding.
Respondent is similarly situated as the Subic enterprises and would be
prejudiced in much the same way as the said Subic enterprises with the
implementation of EO 418. Respondent should be allowed to intervene so it
could be accorded equal favor as the Subic enterprises before the law and, if the
contrary so warrants, suffer equally the brunt of the same law.
The Court finds no basis for saying that the rights of the original parties shall be
delayed or prejudiced by the intervention of respondent. The intervention of
respondent even appears to this Court to be more beneficial and convenient for
petitioners, because they would only have to defend the constitutionality of EO
418 in one case and forum. Finally, given the closely related, if not exactly
similar, causes of action of respondent and the Subic enterprises against
petitioners, the admission of the Petition for Intervention of respondent would
avoid multiplicity of suits and clogging of the dockets of the courts
16. METROBANK vs RTC
Plaintiff Metrobank and defendants BPI Consortium filed a joint motion to dismiss
the complaint. The lower court issued the order dismissing the complaint with
prejudice. Private respondent filed a motion for reconsideration of the order
dismissing the complaint with prejudice, claiming it was not furnished with copy of
the joint motion for dismissal. The respondent court issued the order granting the
motion for reconsideration filed by the intervenor.
Private respondent filed a motion to admit amended complaint and attached the
Amended Intervention Complaint to the motion. Respondent court admitted the
amended complaint in intervention. This is the order, which is subject of the
petition for certiorari.
The contention of petitioner that the order of the lower court has the effect of
allowing the intervention suit to prosper despite the dismissal of the main action
obviously cannot be upheld.
There is here no final dismissal of the main case. The aforementioned order of
the lower court has the effect not only of allowing the intervention suit to proceed
but also of vacating its previous order of dismissal. The reinstatement of the case
in order to try and determine the claims and rights of the intervenor is proper.
The joint motion of plaintiff and the original defendants to dismiss the case,
without notice to and consent of the intervenor, has the effect of putting to rest
only the respective claims of the said original parties inter se but the same cannot
in any way affect the claim of private respondent which was allowed by the court
to intervene without opposition from the original parties.
In the case at bar, a reading of the amended complaint in intervention shows that
it merely supplements an incomplete allegation of the cause of action stated in
the original complaint so as to submit the real matter in dispute. Contrary to
petitioner's contention, it does not substantially change intervenor's cause of
action or alter the theory of the case, hence its allowance is in order.
associates of former President Marcos which therefore renders him unable to
testify at the trial.
The general rule is that a plaintiff may not be permitted to take depositions before
answer is served. Plaintiff must await joinder of issues because if the discovery is
to deal with matters relevant to the case, it is difficult to know exactly what is
relevant until some progress has been made toward developing the issues.
There are instances, however, when a deposition is allowed to be taken before
service of answer once jurisdiction has been acquired over the person or thing.
Leave of court may be granted only in "exceptional" or "unusual" cases, and the
decision is entirely within the discretion of the court.
There is no question that the trial court has the power to direct, in its discretion,
that a deposition shall not be taken, if there are valid reasons for so ruling.
Petitioner's reasons do not amount to an "exceptional" or "unusual" case for us to
grant leave and reverse respondent court.
Petitioner has not sufficiently shown the necessity for taking Mr. Gapud's
deposition at this point in time before the other defendants, particularly the
individual defendants, have served their answers. Petitioner has not alleged that
Mr. Gapud is old, sick or infirm as to necessitate the taking of his deposition.
Indeed, no urgency has been cited and no ground given that would make it
prejudicial for petitioner to await joinder of issues. No proof, much less any
allegation, has been presented to show that there exists a real threat to Mr.
Gapud's life once he returns to the Philippines and that adequate security cannot
be provided by petitioner for such a vital witness.
18. ROSETE vs LIM

17. REPUBLIC vs SANDIGANBAYAN

Respondent Sandiganbayan denied petitioner's "Motion for Leave to Take

Deposition of Rolando C. Gapud Upon Oral Examination in the Crown Colony of
Hongkong." Respondent court held that the taking of deposition is premature
because not all defendants have been summoned or have filed their answers to
the complaint, and no special circumstances existed that warranted the taking of
the deposition before service of answers. Reconsideration of the resolution was
likewise denied. Hence this petition.

Petitioner alleges that the taking of Mr. Gapud's deposition in lieu of his testimony
is necessary because the allegations in the complaint are based mainly on his
disclosures regarding the business activities of President Marcos and Lucio Tan;
that although Mr. Gapud was granted immunity by President Aquino from
criminal, civil and administrative suits, he has been out of the country since 1987
and has no intention of returning, fearing for his safety; that this fear arose from
his damaging disclosures on the illicit activities of the cronies and business