IV (b).

Use of deposition under Section 4, Rule 23 and as a

former testimony under Section 47, Rule
130

Since the present consolidation did not affect Civil Case No. 0130 as an
original, albeit incidental, case, the admissibility of the Bane deposition
cannot avoid being measured against the requirements of Section 47,
Rule

130 of the Rules of Court – the rule on the admissibility of testimonies

or deposition taken in a different proceeding. In this regard, the
petitioner argues that Section 4, Rule 23 of the Rules of Court (then
Rule 24) must, at any rate, prevail over Section 47, Rule 130 of the
same Rules.

At the outset, w e note that w hen the petitioner’s motion to adopt the
testimonies taken in the incident cases drew individual oppositions
from the respondents, the petitioner represented to the Sandiganbayan
its w illingness to comply w ith the provisions of Section 47, Rule 130 of
the Rules of Court, and, in fact, again presented some of the w
itnesses. The petitioner’s about-face tw o years thereafter even
contributed to the Sandiganbayan’s ow n inconsistency on how to treat
the Bane deposition, in particular, as evidence. Section 4, Rule 23 of
the Rules of Court on "Deposition Pending Action" (deposition de b ene
esse) provides for the circumstances w hen depositions may be used in
the trial, or at the hearing of a motion or an interlocutory
proceeding.

SEC. 4. Use of depositions. — At the trial or upon the hearing of a

motion or an interlocutory proceeding, any
part or all of a deposition, so far as adm issible under the rules of
evidence , may be used against any
party w ho w as present or represented at the taking of the deposition
or w ho had due notice thereof, in
accordance w ith any one of the follow ing provisions:
xxxx

(c) The deposition of a w itness, w hether or not a party, m ay be

used by any party for any purpose if the court finds: (1) that the w
itness is dead; or (2) that the w itness resides at a distance more than
one hundred
(100) kilometers from the place of trial or hearing, or is out of the
Philippines, unless it appears that his absence w as procured by the
party offering the deposition; or (3) that the w itness is unable to
attend or testify because of age, sickness, infirmity, or imprisonment;
or (4) that the party offering the deposition has been unable to procure
the attendance of the w itness by subpoena; or (5) upon application
and notice, that such exceptional circumstances exist as to make it
desirable, in the interest of justice and w ith due regard to the
importance of presenting the testimony of w itnesses orally in open
court, to allow the deposition to be used[.] [emphasis ours]

On the other hand, Section 47, Rule 130 of the Rules of Court provides:
SEC. 47. Testimony or deposition at a former proceeding. – The
testimony or deposition of a w itness deceased or unable to testify,
given in a former case or proceeding, judicial or administrative,
involving the same parties and subject matter, m ay be given in
evidence against the adverse party w ho had the opportunity to cross-
examine him. A plain reading of Rule 23 of the Rules of Court readily
rejects the petitioner’s position that the Bane deposition can be
admitted into evidence w ithout observing the requirements of Section
47, Rule 130 of the Rules of Court. Before a party can make use of the
deposition taken at the trial of a pending action, Section 4, Rule 23 of
the Rules of Court does not only require due observance of its sub-
paragraphs (a) to (d); it also requires, as a condition for admissibility,
compliance w ith "the rules on evidence." Thus, even Section 4, Rule
23 of the Rules of Court makes an implied reference to Section 47, Rule
130 of the Rules of Court before the deposition may be used in
evidence. By reading Rule 23 in isolation, the petitioner failed to
recognize that the principle conceding admissibility to a deposition
under Rule 23 should be consistent w ith the rules on evidence under
Section 47, Rule 130. In determining the admissibility of the Bane
deposition, therefore, reliance cannot be given on one provision to the
exclusion of the other; both provisions m ust be considered. This is
particularly true in this case w here the evidence in the prior
proceeding does not simply refer to a w itness’ testimony in open court
but to a deposition taken under another and farther jurisdiction.

A common thread that runs from Section 4, Rule 23 of the Rules of

Court and Section 47, Rule 130 of the same Rules is their mutual
reference to depositions.

A deposition is chiefly a mode of discovery w hose primary function is

to supplement the pleadings for the purpose of disclosing the real
points of dispute betw een the parties and affording an adequate
factual basis during the preparation for trial. Since depositions are
principally made available to the parties as a means of informing
themselves of all the relevant facts, depositions are not meant as
substitute for the actual testimony in open court of a party or w itness.
Generally, the deponent must be presented for oral examination in
open court at the trial or hearing. This is a requirement of the rules on
evidence under Section 1, Rule 132 of the Rules of Court.
IV (c). Unavailability of witness
For the admission of a former testimony or deposition, Section 47, Rule
130 of the Rules of Court simply requires, inter alia, that the w itness or
deponent be "deceased or unab le to testify." On the other hand, in
using a deposition that w as taken during the pendency of an action,
Section 4, Rule 23 of the Rules of Court provides several grounds that
w ill justify dispensing w ith the actual testimony of the deponent in
open court and specifies, inter alia, the circumstances of the
deponent’s inability to attend or testify, as follow s:
(3) that the w itness is unable to attend or testify because of age,
sickness, infirmity, or imprisonment[.] [emphases ours]

The phrase "unable to testify" appearing in both Rule 23 and Rule 130
of the Rules of Court refers to a physical inability to appear at the w
itness stand and to give a testimony.Hence notw ithstanding the
deletion of the phrase "out of the Philippines," w hich previously
appeared in Section 47, Rule 130 of the Rules of Court, absence from
jurisdiction - the petitioner’s excuse for the non-presentation of Bane in
open court - may still constitute inability to testify under the same rule.
This is not to say, how ever, that resort to deposition on this instance
of unavailability w ill alw ays be upheld. Where the deposition is taken
not for discovery purposes, but to accommodate the deponent, then
the deposition should be rejected in evidence.