Rosete v.

Lim
Depositions | June 8, 2006| Chico-Nazario

SUMMARY: The petitioners are being sued for annnulment and specific performance because of the sale of
real property made by AFP-RSBS to Espreme Realty of parcels of land which allegedly belong to respondent
Lims. The respondents want to take the deposition of petitioners, but petitioners refuse to do so by filing a
motion and objection to take deposition upon oral examination. Petitioners claim that this goes against self-
incrimination since they had pending criminal cases involving the same facts, and that they can completely
refuse to testify. Trial court and CA denied their motion. The SC upheld the lower courts’ ruling, saying that
the present case is a civil case, not a criminal one. The pending criminal cases do not give them the right to
refuse to testify in civil cases.

DOCTRINE: Only an accused in a criminal case can refuse to take the witness stand. Or in cases which partake
of the nature of a criminal proceedings or analogous thereto. Or in civil actions which are criminal in nature. It
is the nature of the proceedings that controls, not the character of the suit involved. Mapalo and Rosete’s
Right Against Self-Incrimination would not be violated by the taking of their deposition in the civil case. Right
can only be claimed when the specific incriminatory question is actually put to the witness. IT DOES NOT GIVE
A WITNESS THE RIGHT TO DISREGARD A SUBPOENA, DECLINE TO APPEAR BEFORE THE COURT, OR REFUSE TO
TESTIY ALTOGETHER. Petitioners here cannot exercise the right to refuse to take the witness stand and to
refuse to give their depositions since the civil case filed is NOT criminal in nature (it being an action for
Annulment, Specific Performance with Damages). They can only invoke the right against self-incrimination
when an incriminating questions is actually asked of them.

FACTS OF THE CASE:

Nature Petition for review on certiorari on decision and resolution of CA

Parties Petitioners: Alfredo Rosete, Oscar Mapalo, Chito Rosete

Respondent: Juliano Lim and Lilia Lim

PROCEDURAL HISTORY:

RTC QC Juliano and Lilia Lim filed a complaint for annulment, specific
performance with damages against AFP Retirement and Separation
Benefits System (AFP-RSBS), Espreme Realty and Dev’t Corp., Alfredo
Rosete, Maj. Mapalo, Chito Rosete, BPI and Register of Deeds of
Mindoro Occidental, asking for the annulment of the Deed of Sale
executed by AFP-RSBS covering parcels of lands in favor of Espreme
Realty.

o The Lims also wanted AFP-RSBS and Espreme Realty to

execute the documents that will restore the ownership and
title of the lots to them WITH cancellation by the Register of
Deeds of titles under the name of Espreme Realty and to
transfer the titles in their names.

Petitioners filed a motion to dismiss.

 o Denied.

Petitioners filed a petition for certiorari and prohibition in the CA;

AND an ex-parte motion to admit answers Ex Abudanti Cautela
( translated as “out of abundant caution” or “to be on the safe side”)
o Chito Rosete filed his Supplemental Answer (ex abudanti
cautela)

Respondents filed a Notice to Take Deposition Upon Oral Exam to

cause deposition of petitioners Mapalo and Rosete.
o Petitioners filed an Urgent Ex-Parte Motion and Objection to
Take Deposition Upon Oral Examination since:
o deposition may not be taken without leave
of court as no answer has been served and
the issues have not yet been joined since
the Answer was filed ex abudanti cautela
pending resolution of the petition for
certiorari.
o Taking of deposition = violate of THEIR right
against self-incrimination since via the oral
deposition, respondents would seek to
“establish the allegations of fact in the
complaint which are also the allegations of
fact in the complaint-affidavits” in the
criminal cases pending before the City
Prosecutors involving the same set of facts
as in the present case where Juliano Lim is
the complainant and petitioners are
respondents.

RTC denied motion and objection to take deposition upon oral

examination.
o Scheduled the taking of the deposition.

Petitioners filed a Supplemental MR and an Urgent Ex-Parte motion

to cancel or suspend the taking of the deposition upon oral
examination.
o RTC denied.

Respondents filed an Omnibus Motion to:

o Strike out Answer of Mapalo and Rosete
o Declare them in default
o Reception of Plaintiff’s Evidence ex-party

RTC ordered the ff:

 Striking out from record of Answer ex abudanti cautela filed
by petitioners Mapalo and Rosete for their unjustified refusal
to be sworn in accord. With Rule 29
 Declaring Mapalo and Rosete in default
 Allowed plaintiffs to present their evidence ex parte
 Petitioners filed an Ugent Ex-Parte Omnibus Motion for a)
Reconsideration, b) Lift Order of Default, c) To Hold in Abeyance
Presentation of Plaintiffs’ Evidence Ex-Parte. Petitioners filed an
Amended Omnibus Motion thereafter.

Respondents filed a Motion to Set Case for Ex-Parte presentation of

evidence; RTC set the date.
 RTC also denied petitioners’ urgent ex-parte omnibus motion
 Also, ex-parte presentation of evidence against petitioners
Mapalo and Rosete was terminated.

Court of Appeals CA upheld RTC decision.

Supreme Court Hence, this petition.

ISSUES & RATIO:

1) W/N a Notice to Take Deposition Upon Oral Examination need not be with leave of court because an answer ex
abudante cautela has been filed? YES
 A Notice to Take Deposition Upon Oral Examination need not be With Leave of Court when an
answer has been filed
o Sec. 1, Rule 24 states that depositions pending action may be taken either:
1. By leave of court – after jurisdiction has been obtained over any defendant or
over property which is the subject of the action
2. Without leave of court – after answer has been served, the testimony of any
person WHETHER A PARTY OR NOT, may be taken AT THE INSTANCE OF ANY
PARTY, by deposition upon oral examination or written interrogatories.
o Petitioners’ answer ex abudanti cautela filed with the trial court is within the ambit
of the “answer” as contemplated in Sec. 1, Rule 24, contrary to petitioners’ claims.
1. Ex abudanti cautela does NOT make their answer any less of an answer,
particularly since in this case, petitioners’ answer contains their respective
defenses. (An Answer = pleading where a defending party sets forth his
defense)
o Also, petitioners’ argument that the issues have not been joined is untenable since
they have already filed their answers. Issues are joined when all parties have
pleaded their respective theories and the terms of the dispute are plain before the
court.

 Mapalo and Rosete’s Right Against Self-Incrimination would not be violated by the taking of their
deposition in the civil case
o Sec. 17, Article III, 1987 Constitution: “No person shall be compelled to be a witness
against himself.”
o Right against self-incrimination is given by any person who gives evidence
voluntarily or under compulsion of subpoena, in any civil, criminal or administrative
proceeding. A person may thus not be compelled to be a witness against himself,
securing himself as witness the right to refuse to answer ANY PARTICULAR
INCRIMINATORY QUESTION (i.e., the answer to which has a tendency to incriminate
him for some crime)
1. Right can only be claimed when the specific incriminatory question is actually
put to the witness. IT DOES NOT GIVE A WITNESS THE RIGHT TO DISREGARD
A SUBPOENA, DECLINE TO APPEAR BEFORE THE COURT, OR REFUSE TO
 TESTIY ALTOGETHER.
o In Criminal Cases, defendant’s right to be exempt from being a witness against
himself means he cannot be compelled to testify or produce evidence in the
criminal case in which he is accused or one of the accused (not even a subpoena or
any other order of the court can compel him to do so). He may also refuse to testify
altogether or even to answer any question or take the witness stand
o In Civil Cases, an ordinary witness (or a party to a civil action) may be compelled to
testify by subpoena
1. Right to Refuse to Answer limited only to particular incriminatory questions
at the time such is put to him EXCEPT if the civil action concerned is criminal
in nature
o In Administrative Cases or Proceedings, the right to refuse the witness stand does
not generally apply as well EXCEPT if the administrative cases or proceedings
partake of the nature of a criminal proceeding or are analogous to a criminal
proceeding.
IN SUMMARY: Petitioners here cannot exercise the right to refuse to take the witness stand and to refuse to
give their depositions since the civil case filed is NOT criminal in nature (it being an action for Annulment,
Specific Performance with Damages). They can only invoke the right against self-incrimination when an
incriminating questions is actually asked of them.

DISPOSITIVE: WHEREFORE, all the foregoing considered, the instant petition is dismissed for lack of merit.