G.R. No. 162155               August 28, 2007COMMISSIONER OF INTERNAL REVENUE and ARTURO V. PARCERO in his official capacity as Revenue District Officer of Revenue District No. 049 (Makati), Petitioners, vs.PRIMETOWN PROPERTY GROUP, INC., Respondent.

D E C I S I O NCORONA, J.:This petition for review on certiorari1 seeks to set aside the August 1, 2003 decision2 of the Court of Appeals (CA) in CA-G.R. SP No. 64782 and its February 9, 2004 resolution denying reconsideration.3

On March 11, 1999, Gilbert Yap, vice chair of respondent Primetown Property Group, Inc., applied for the refund or credit of income tax respondent paid in 1997. In Yap's letter to petitioner revenue district officer Arturo V. Parcero of Revenue District No. 049 (Makati) of the Bureau of Internal Revenue (BIR),4 he explained that the increase in the cost of labor and materials and difficulty in obtaining financing for projects and collecting receivables caused the real estate industry to slowdown.5 As a consequence, while business was good during the first quarter of 1997, respondent suffered losses amounting to P71,879,228 that year.6

According to Yap, because respondent suffered losses, it was not liable for income taxes.7 Nevertheless, respondent paid its quarterly corporate income tax and remitted creditable withholding tax from real estate sales to the BIR in the total amount of P26,318,398.32.8 Therefore, respondent was entitled to tax refund or tax credit.9

On May 13, 1999, revenue officer Elizabeth Y. Santos required respondent to submit additional documents to support its claim.10 Respondent complied but its claim was not acted upon. Thus, on April 14, 2000, it filed a petition for review11 in the Court of Tax Appeals (CTA).On December 15, 2000, the CTA dismissed the petition as it was filed beyond the two-year prescriptive period for filing a judicial claim for tax refund or tax credit.12 It invoked Section 229 of the National Internal Revenue Code (NIRC):Sec. 229. Recovery of Taxes Erroneously or Illegally Collected. -- No suit or proceeding shall be maintained in any court for the recovery of any national internal revenue tax hereafter alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessively or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Commissioner; but such suit or proceeding may be maintained, whether or not such tax, penalty, or sum has been paid under protest or duress.

In any case, no such suit or proceeding shall be filed after the expiration of two (2) years from the date of payment of the tax or penalty regardless of any supervening cause that may arise after payment:Provided, however, That the Commissioner may, even without a claim therefor, refund or credit any tax, where on the face of the return upon which payment was made, such payment appears clearly to have been erroneously paid. (emphasis supplied)The CTA found that respondent filed its final adjusted return on April 14, 1998. Thus, its right to claim a refund or credit commenced on that date.13

The tax court applied Article 13 of the Civil Code which states:Art. 13. When the law speaks of years, months, days or nights, it shall be understood that years are of three hundred sixty-five days each; months, of thirty days; days, of twenty-four hours, and nights from sunset to sunrise.If the months are designated by their name, they shall be computed by the number of days which they respectively have.In computing a period, the first day shall be excluded, and the last included. (emphasis supplied)Thus, according to the CTA, the two-year prescriptive period under Section 229 of the NIRC for the filing of judicial claims was equivalent to 730 days. Because the year 2000 was a leap year, respondent's petition, which was filed 731 days14 after respondent filed its final adjusted return, was filed beyond the reglementary period.15

Respondent moved for reconsideration but it was denied.16 Hence, it filed an appeal in the CA.17

On August 1, 2003, the CA reversed and set aside the decision of the CTA.18 It ruled that Article 13 of the Civil Code did not distinguish between a regular year and a leap year. According to the CA:The rule that a year has 365 days applies, notwithstanding the fact that a particular year is a leap year.19

In other words, even if the year 2000 was a leap year, the periods covered by April 15, 1998 to April 14, 1999 and April 15, 1999 to April 14, 2000 should still be counted as 365 days each or a total of 730 days. A statute which is clear and explicit shall be neither interpreted nor construed.20

Petitioners moved for reconsideration but it was denied.21 Thus, this appeal.Petitioners contend that tax refunds, being in the nature of an exemption, should be strictly construed against claimants.22 Section 229 of the NIRC should be strictly applied against respondent inasmuch as it has been consistently held that the prescriptive period (for the filing of tax refunds and tax credits) begins to run on the day claimants file their final adjusted returns.23 Hence, the claim should have been filed on or before April 13, 2000 or within 730 days, reckoned from the time respondent filed its final adjusted return.

The conclusion of the CA that respondent filed its petition for review in the CTA within the two-year prescriptive period provided in Section 229 of the NIRC is correct. Its basis, however, is not.The rule is that the two-year prescriptive period is reckoned from the filing of the final adjusted return.24 But how should the two-year prescriptive period be computed?As already quoted, Article 13 of the Civil Code provides that when the law speaks of a year, it is understood to be equivalent to 365 days. In National Marketing Corporation v. Tecson,25 we ruled that a year is equivalent to 365 days regardless of whether it is a regular year or a leap year.26

However, in 1987, EO27 292 or the Administrative Code of 1987 was enacted. Section 31, Chapter VIII, Book I thereof provides:Sec. 31. Legal Periods. — "Year" shall be understood to be twelve calendar months; "month" of thirty days, unless it refers to a specific calendar month in which case it shall be computed according to the number of days the specific month contains; "day", to a day of twenty-four hours and; "night" from sunrise to sunset. (emphasis supplied)A calendar month is "a month designated in the calendar without regard to the number of days it may contain."28It is the "period of time running from the beginning of a certain numbered day up to, but not including, the corresponding numbered day of the next month, and if there is not a sufficient number of days in the next month, then up to and including the last day of that month."29 To illustrate, one calendar month from December 31, 2007 will be from January 1, 2008 to January 31, 2008; one calendar month from January 31, 2008 will be from February 1, 2008 until February 29, 2008.30

A law may be repealed expressly (by a categorical declaration that the law is revoked and abrogated by another) or impliedly (when the provisions of a more recent law cannot be reasonably reconciled with the previous one).31Section 27, Book VII (Final Provisions) of the Administrative Code of 1987 states:Sec. 27. Repealing clause. — All laws, decrees, orders, rules and regulation, or portions thereof, inconsistent with this Code are hereby repealed or modified accordingly.A repealing clause like Sec. 27 above is not an express repealing clause because it fails to identify or designate the laws to be abolished.32 Thus, the provision above only impliedly repealed all laws inconsistent with the Administrative Code of 1987.1avvphi1

Implied repeals, however, are not favored. An implied repeal must have been clearly and unmistakably intended by the legislature. The test is whether the subsequent law encompasses entirely the subject matter of the former law and they cannot be logically or reasonably reconciled.33

Both Article 13 of the Civil Code and Section 31, Chapter VIII, Book I of the Administrative Code of 1987 deal with the same subject matter — the computation of legal periods. Under the Civil Code, a year is equivalent to 365 days whether it be a regular year or a leap year. Under the Administrative Code of 1987, however, a year is composed of 12 calendar months. Needless to state, under the Administrative Code of 1987, the number of days is irrelevant.There obviously exists a manifest incompatibility in the manner of computing legal periods under the Civil Code and the Administrative Code of 1987. For this reason, we hold that Section 31, Chapter VIII, Book I of the Administrative Code of 1987, being the more recent law, governs the computation of legal periods. Lex posteriori derogat priori.Applying Section 31, Chapter VIII, Book I of the Administrative Code of 1987 to this case, the two-year prescriptive period (reckoned from the time respondent filed its final adjusted return34 on April 14, 1998) consisted of 24 calendar months, computed as follows:

Year 1

1st calendar month

April 15, 1998 to May 14, 1998

  2nd calendar month

May 15, 1998 to June 14, 1998

  3rd calendar month

June 15, 1998 to July 14, 1998

  4th calendar month

July 15, 1998 to August 14, 1998

  5th calendar month

August 15, 1998

to September 14, 1998

  6th calendar month

September 15, 1998

to October 14, 1998

  7th calendar month

October 15, 1998

to November 14, 1998

  8th calendar month

November 15, 1998

to December 14, 1998

  9th calendar month

December 15, 1998

to January 14, 1999

  10th calendar month

January 15, 1999

to February 14, 1999

  11th calendar month

February 15, 1999

to March 14, 1999

  12th calendar month

March 15, 1999 to April 14, 1999

Year 2

13th calendar month

April 15, 1999 to May 14, 1999

  14th calendar month

May 15, 1999 to June 14, 1999

  15th calendar month

June 15, 1999 to July 14, 1999

  16th calendar month

July 15, 1999 to August 14, 1999

  17th calendar month

August 15, 1999

to September 14, 1999

  18th calendar month

September 15, 1999

to October 14, 1999

  19th calendar month

October 15, 1999

to November 14, 1999

  20th calendar month

November 15, 1999

to December 14, 1999

  21st calendar month

December 15, 1999

to January 14, 2000

  22nd calendar month

January 15, 2000

to February 14, 2000

  23rd calendar month

February 15, 2000

to March 14, 2000

  24th calendar month

March 15, 2000 to April 14, 2000

We therefore hold that respondent's petition (filed on April 14, 2000) was filed on the last day of the 24th calendar month from the day respondent filed its final adjusted return. Hence, it was filed within the reglementary period.Accordingly, the petition is hereby DENIED. The case is REMANDED to the Court of Tax Appeals which is ordered to expeditiously proceed to hear C.T.A. Case No. 6113 entitled Primetown Property Group, Inc. v. Commissioner of Internal Revenue and Arturo V. Parcero.No costs.SO ORDERED.

G.R. No. 108119 January 19, 1994FORTUNE CORPORATION, petitioner, vs.HON. COURT OF APPEALS AND INTER-MERCHANTS CORPORATION, respondents.Antonio L. Azores for petitioner.Estella and Virtudazo Law Firm for private respondent. REGALADO, J.:This petition impugns and seeks the review on certiorari of the decision 1 of respondent Court of Appeals, dated September 23, 1992, which affirmed the order of the Regional Trial Court of San Pablo City disallowing the taking of the oral deposition of Juanito S. Teope, Chairman of the Board of Directors of herein private respondent Inter-Merchants Corporation.

An action for breach of contract was filed by petitioner Fortune Corporation against respondent Inter-Merchants Corporation, docketed as Civil Case No. SP-3469, before the Regional Trial Court of San Pablo City, Branch 30. After respondent corporation had filed its Answer, petitioner served the former with written interrogatories pursuant to Rule 25 of the Rules of Court. The interrogatories were answered by respondent corporation through its board chairman, Juanito A. Teope.The pre-trial conference was thereafter scheduled for January 9, February 12 and April 22, 1992.On March 26, 1992, however, petitioner served upon private respondent a Notice to Take Deposition Upon Oral Examination 2 dated March 26, 1992, notifying the latter that on April 7, 1992, at San Pablo City, herein petitioner would take the deposition of said Juanito A. Teope, in accordance with Section 15, Rule 24.

Private respondent filed an Urgent Motion Not To Take Deposition/Vehement Opposition to Plaintiff's Notice to Take Deposition Upon Oral Examination, 3 dated March 27, 1992, alleging inter alia that : (a) herein petitioner has previously availed of one mode of discovery, that is, the written interrogatories which practically covered all the claims, counterclaims and defenses in the case; (b) there is absolutely no sound reason or justification advanced for the taking of the oral deposition; (c) such taking would cause annoyance, embarrassment and oppression upon the prospective deponent, Juanito A. Teope; (d) Mr. Teope has no intention of leaving the country; and (e) the intended deponent is available to testify in open court if required during the trial on the merits.

The trial court thereafter issued on April 3, 1992 an order 4 that the requested deposition shall not be taken for the following reasons:

. . . , the Court opines that the deposition of Juanito A. Teope set on April 7, 1992, appears unwarranted since the proposed deponent had earlier responded to the written interrogatories of the plaintiff and has signified his availability to testify in court.To allow the deposition will deprive the Court of the opportunity to ask clarificatory questions, if any, on the proposed deponent who appears to be a vital witness.

Its motion for reconsideration having been denied, petitioner filed an original action for certiorari before the Supreme Court which was docketed as G.R. No. 101526. However, in a resolution dated May 20, 1992, this Court referred the case to the Court of Appeals for consideration and adjudication on the merits.As earlier stated, respondent Court of Appeals promulgated a decision on September 23, 1992, dismissing the petition and holding that:

It cannot be gainsaid that the respondent court has jurisdiction to direct, in its discretion, that a deposition shall not be taken, if there are valid reasons for so ruling. This is provided for in Sections 16 and 18, Rule 24 of the Rules of Court. Said sections imply that the right of a party to take depositions as means of discovery is not absolute. Thus, as held in the case of Caguiat vs. Torres, 30 SCRA 106, 110:

. . . sections 16 and 18 of Rule 24, (which) are precisely designed to protect parties and their witnesses, whenever in the opinion of the trial court, the move to take their depositions under the guise of discovery is actually intended to only annoy, embarrass or oppress them. In such instances, these provisions expressly authorize the court to either prevent the taking of a deposition or stop one that is already being taken.

Moreover, the respondent court, in its assailed Order, has indicated at least three (3) valid reasons for it not to order the deposition taken: First, that the proposed deponent had earlier responded to the written Interrogatories; Second, that the proposed deponent had signified his availability to testify in court; and Third, that to allow the deposition would deprive the trial court of the opportunity to ask clarificatory questions, if any, on the proposed deponent who appears to be a vital witness.Finally, anent private respondent's contention that certiorari does not lie in this case, it should be recalled that certiorari presupposes either lack or excess of jurisdiction or grave abuse of discretion. In the instant case, no question of jurisdiction is possible simply because the respondent court undoubtly had jurisdiction over petitioner's case. On the question of abuse of discretion, appeal and not certiorari is the proper remedy for the correction of any error as to the admission or rejection of a deposition being offered as evidence since such a situation would involve an error of law constituting a violation of rules of evidence. Hence, as held in the case of Dearing vs. Fredwilson (sic) & Co., Inc., 98 SCRA 758, 764:

. . . . Thus, the jurisprudential rule is that the admission or rejection of certain interrogatories in the course of discovery procedure could be an error of law but not an abuse of discretion, much less a grave one. . . .

With the denial of petitioner's motion for reconsideration, the instant petition was filed, submitting the following issues for resolution:

1. Whether or not the conclusion of the Honorable Court of Appeals, based on a gross misapprehension of facts, constitutes reversible error;2. Whether or not the said order, based on the three reasons stated therein, is arbitrary or whimsical because it is contrary to reason, logic or equity;3. Whether or not mere allegation, without proof, that the examination sought by petitioner was intended merely to annoy, embarrass or oppress the proposed deponent is, as a matter of law, "good cause" within the purview of Rule 24, Section 16, Rules of Court; and4. Whether or not, absent the requisite element of "good cause" as mandated by Section 16 of Rule 24, Rules of Court, a trial court has unbridled discretion

to forbid the taking of deposition upon oral examination as authorized under Rule 24, Section 15, Rules of Court.Rule 24 of the Rules of Court provides:Sec. 1. Depositions pending action, when may be taken. — By leave of court after jurisdiction has been obtained over any defendant or property which is the subject of the action, or without such leave after an 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. The attendance of witnesses may be compelled by the use of a subpoena as provided in Rule 23. Depositions shall be taken only in accordance with these rules. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.

The seeming unreceptive and negative attitude of lawyers and the courts towards discovery procedures has heretofore been observed and discommended by the Court in this wise:

. . . Now, it appears to the Court that among far too many lawyers (and not a few judges), there is, if not a regrettable unfamiliarity and even outright ignorance about the nature, purposes and operations of the modes of discovery, at least a strong yet unreasoned and unreasonable disinclination to resort to them — which is a great pity for the intelligent and adequate use of the deposition-discovery mechanism, coupled with pre-trial procedure, could, as the experience of other jurisdictions convincingly demonstrates, effectively shorten the period of litigation and speed up adjudication. . . . . 5

It would do well, therefore, to point out the finer attributes of these rules of discovery, the availment of which, we are convinced, would contribute immensely to the attainment of the judiciary's primordial goal of expediting the disposition of cases.The rules providing for pre-trial discovery of testimony, pre-trial inspection of documentary evidence and other tangible things, and the examination of property and person, were an important innovation in the rules of procedure. The promulgation of this group of rules satisfied the long-felt need for a legal machinery in the courts to supplement the pleadings, for the purpose of disclosing the real points of dispute between the parties and of affording an adequate factual basis in preparation for trial. The rules are not grounded on the supposition that the pleadings are the only or chief basis of preparation for trial. On the contrary, the limitations of the pleadings in this respect are recognized. In most cases under the rules the function of the pleadings extends hardly beyond notification to the opposing parties of the general nature of a party's claim or defense. It is recognized that pleadings have not been successful as fact-sifting mechanisms and that attempts to force them to serve that purpose have resulted only in making the pleadings increasingly complicated and technical, without any corresponding disclosure of the issues which it will be necessary to prove at the trial. Thus the rules provide for simplicity and brevity in pleadings, which in most cases will terminate with the answer; and at the same time adapt the old and familiar deposition procedure to serve as a device for ascertaining before trial what facts are really in dispute and need to be tried. Experience had shown that the most effective legal machinery for reducing and clarifying the issues was a preliminary examination, as broad in scope as the trial itself, of the evidence of both parties. 6

Stated otherwise, the rules seek to make a trial less a game of blind man's buff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent. 7

The elemental purpose of the discovery procedure was pithily explained by the Court, speaking through now Chief Justice Andres R. Narvasa, in the recent case of Republic vs. Sandiganbayan, 8 which opinion, we feel, should be reiterated through an extended reproduction, to wit:

The resolution of controversies is, as everyone knows, the raison d'etre of courts. This essential function is accomplished by first, the ascertainment of all the material and relevant facts from the pleadings and from the evidence adduced by the parties, andsecond, after that determination of the facts has been completed, by the application of the law thereto to the end that the controversy may be settled authoritatively, definitely and finally.It is for this reason that a substantial part of the adjective law in this jurisdiction is occupied with assuring that all the facts are indeed presented to the Court; for obviously, to the extent that adjudication is made on the basis of incomplete facts, to that extent there is faultiness in the approximation of objective justice. It is thus the obligation of lawyers no less than of judges to see that this objective is attained; that is to say, that there be no suppression, obscuration, misrepresentation or distortion of the facts; and that no party be unaware of any fact material and relevant to the action, or surprised by any factual detail suddenly brought to his attention during the trial.Seventy-one years ago, in Alonzo vs. Villamor, this Court described the nature and object of litigation and in the process laid down the standards by which judicial contests are to be conducted in this jurisdiction. It said:

A litigation is not a game of technicalities in which one, more deeply schooled and skilled in the subtle art of movement and position, entraps and destroys the other. It is, rather a contest in which each contending party fully and fairly lays before the court the facts in issue and then brushing aside as wholly trivial and indecisive all imperfections of form and technicalities of procedure, asks that justice be done on the merits. Lawsuits, unlike duels, are not be won by a rapier's thrust. Technicality, when it deserts its proper office as an aid to justice and becomes its great hindrance and chief enemy, deserves scant consideration from courts. There should be no vested right in technicalities. . . . .

The message is plain. It is the duty of each contending party to lay before the court the facts in issue — fully and fairly; i.e., to present to the court all the material and relevant facts known to him, suppressing or concealing nothing, nor preventing another party, by clever and adroit manipulation of the technical rules of pleading and evidence, from also presenting all the facts within his knowledge.Initially, that undertaking of laying the facts before the court is accomplished by the pleadings filed by the parties; but that, only in a very general way. Only "ultimate facts" are set forth in the pleadings; hence, only the barest outline of the factual basis of a party's claims or defenses is limned in his pleadings. The law says that every pleading "shall contain in a methodical and logical form, a plain, concise and direct statement of the ultimate facts on which the

party pleading relies for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts.Parenthetically, if this requirement is not observed, i.e., the ultimate facts are alleged too generally or "not averred with sufficient definiteness or particularly to enable . . . (an adverse party) properly to prepare his responsive pleading or to prepare for trial," a bill of particulars seeking a "more definite statement" may be ordered by the court on motion of a party. The office of a bill of particulars is, however, limited to making more particular or definite the ultimate facts in a pleading. It is not its office to supply evidentiary matters. And the common perception is that said evidentiary details are made known to the parties and the court only during the trial, when proof is adduced on the issues of fact arising from the pleadings.The truth is that "evidentiary matters" may be inquired into and learned by the parties before the trail. Indeed, it is the purpose and the policy of the law that the parties — before the trial if not indeed even before the pre-trial — should discover or inform themselves of all the facts relevant to the action, not only those known to them individually, but also those known to their adversaries; in other words, thedesideratum is that civil trials should not be carried on in the dark; and the Rules of Court make this ideal possible through the deposition-discovery mechanism set forth in Rules 24 to 29. The experience in other jurisdictions has been that ample discovery before trial, under proper regulation, accomplished one of the most necessary ends of modern procedure: It not only eliminates unessential issues from trial thereby shortening them considerably, but also requires parties to play the game with the cards on the table so that the possibility of fair settlement before trial is measurably increased. . . . .As just intimated, the deposition-discovery procedure was designed to remedy the conceded inadequacy and cumbersomeness of the pre-trial functions of notice-giving, issue-formulation and fact revelation theretofore performed primarily by the pleadings.The various modes or instruments of discovery are meant to serve (1) as a device, along with the pre-trial hearing under Rule 20, to narrow and clarify the basic issues between the parties, and (2) as a device for ascertaining the facts relative to those issues. The evident purpose is, to repeat, to enable the parties, consistent with recognized privileges, to obtain the fullest possible knowledge of the issues and facts before civil trials and thus prevent that said trials are carried on in the dark.To this end, the field of inquiry that may be covered by depositions or interrogatories is as broad as when the interrogated party is called as witness to testify orally at trial. The inquiry extends to all facts which are relevant, whether they be ultimate or evidentiary, expecting only those matters which are privileged. The objective is as much to give every party the fullest possible information of all the relevant facts before the trial as to obtain evidence for use upon said trial. The principle is reflected in Sec. 2, Rule 24 (governing depositions ) which generally allows the examination of a deponent —

1) "regarding any matter, not privileged, which is relevant to the subject of the pending action, whether relating to the claim or defense of any other party,"2) as well as:

(a) "the existence, description, nature, custody, condition and location of any books, documents, or other tangible things" and(b) "the identity and location of persons having knowledge of relevant facts."

What is chiefly contemplated is the discovery of every bit of information which may be useful in the preparation for trial, such as the identity and location of persons having knowledge of relevant facts; those relevant facts themselves; and the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things. Hence, the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of fishing expedition serve to preclude a party from inquiring into the facts underlying his opponent's case. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession. The deposition-discovery procedure simply advances the stage at which the disclosure can be compelled from the time of trial to the period preceding it, this reducing the possibility of surprise. . . . . (Emphases in the original text.)

The other principal benefits derivable from the availability and operation of a liberal discovery procedure are the following:

1. It is of great assistance in ascertaining the truth and in checking and preventing perjury. The reasons for this are:

(a) The witness (including a party) is examined while his memory is fresh:(b) The witness (including a party) is generally not coached in preparation for a pre-trial oral examination with the result that his testimony is likely to be more spontaneous. Where the examination is upon written interrogatories, however, it appears that some lawyers furnish the witness with copies of the interrogatories and thereby enable him to prepare his answers in advance.(c) A party or witness whose deposition has been taken at an early stage in the litigation cannot, at a later date, readily manufacture testimony in contradiction to his deposition;(d) Testimony is preserved, so that if a witness unexpectedly dies or becomes unavailable at the trial, his deposition is available.

2. It is an effective means of detecting and exposing false, fraudulent, and sham claims and defenses.3. It makes available in a simple, convenient, and often inexpensive way facts which otherwise could not have been proved, except with great difficulty and sometimes not at all.

4. It educates the parties in advance of trial as to the real value of their claims and defenses, thereby encouraging settlements out of court.5. It expediates the disposal of litigation, saves the time of the courts, and clears the docket of many cases by settlements and dismissals which otherwise would have to be tried.6. It safeguards against surprise at the trial, prevents delays, and narrows and simplifies the issues to be tried, thereby expediting the trial.7. It facilitates both the preparation and trial of the cases. 9

We shall now proceed to resolve the issues raised by herein petitioner.I. Petitioner avers that the decision of respondent court dismissing its petition on the ground that appeal and notcertiorari is the proper remedy in this case, is erroneous for the reason that such ruling is based on facts which are not obtaining in the case at bar, viz.: (a) that petitioner had already obtained a deposition, which it had not; (b) that said deposition was offered as evidence, which was not done because there was nothing yet to offer; and (c) that said offer was rejected, which did not happen because there was nothing to reject as nothing was offered.Petitioner claims that since the very purpose of Rule 24 of the Rules of Court is to authorize the taking of a deposition in a pending action, either to make a discovery in preparation for or to be used as evidence upon the trial of such action, the taking of the deposition in the case at bar should be done and finished before trial. Hence, it would be a grave abuse of discretion to compel petitioner to proceed with the trial of the case without the proposed deposition being first undertaken. Appeal will be utterly inadequate to remedy the situation because, in that case, the court shall have rendered its decision without the petitioner having been afforded the opportunity to make use of the answers that the deponent would have otherwise given as a result of the deposition. Reversal on appeal of the said decision by the public respondent may only entail retrial in the lower court and added expense, as well as unnecessary delay in the case. By its very nature, the taking of the deposition in the case at bar should be made and completed before trial, and the remedy of appeal to determine whether or not the trial court committed grave abuse of discretion in denying the petitioner thereof is neither proper, much less adequate.We agree with petitioner.Under Section 1, Rule 65 of the Rules of Court, the writ of certiorari lies if the following requisites concur : (a) that it is directed against a tribunal, board or officer exercising judicial functions; (b) that such tribunal, board or officer has acted without or in excess of jurisdiction or with grave abuse of discretion; and (c) that there is no appeal nor any plain, speedy and adequate remedy in the ordinary course of law.Section 16 of Rule 24 provides that after notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and upon notice and for good cause shown, the court in which the action is pending may, among others, make an order that the deposition shall not be taken.This provision explicitly vests in the court the power to order that the deposition shall not be taken and this grant connotes the authority to exercise discretion in connection therewith. It is well settled, however, that the discretion conferred by law is not unlimited: that it must be exercised, not arbitrarily, capriciously, or oppressively, but in a reasonable manner and in consonance with the spirit of the law, to the end that its purpose may be attained. Referring to the objective of Section 16 of then Rule 18 (now Rule 24) of the Rules of Court, former Chief Justice Manuel V. Moran had these comments:

The advisory of the United States Supreme Court said that this provision is intended to be one of the safeguards for the protection of the parties and deponents on account of the unrestricted right to discovery given by sections 1 and 2 of this Rule. A party may take the deposition of a witness who knows nothing about the case, with the only purpose of annoying him or wasting the time of the other parties. In such case, the court may, on motion, order that the deposition shall not be taken. Or, a party may designate a distinct place for the taking of a deposition, and the adverse party may not have sufficient means to reach that place, because of poverty or otherwise, in which case the court, on motion, may order that the deposition be taken at another place, or that it be taken by written interrogatories. The party serving the notice may wish to inquire into matters the disclosure of which may be oppressive or embarrassing to the deponent, especially if the disclosure is to be made in the presence of third persons, or, the party serving the notice may attempt to inquire into matters which are absolutely private of the deponent, the disclosure of which may affect his interests and is not absolutely essential to the determination of the issues involved in the case. Under such circumstances, the court, on motion, may order "that certain matter shall not be inquired into or that the scope of the examination shall be limited to certain matters, or that the examination shall be held with no one present except the parties to the action and their officers or counsel, or that after being sealed the deposition shall be opened only by order of the court, or that secret processes, developments, or research need not be disclosed, or that the parties shall simultaneously file specific documents or informations enclosed in sealed envelopes to be opened as directed by the court." In other words, this provision affords the adverse party, as well as the deponent, sufficient protection against abuses that may be committed by a party in the exercise of his unlimited right to discovery. As a writer said: "Any discovery involves a prying into another person's affairs, a prying that is quite justified if it is to be a legitimate aid to litigation, but not justified if it is not to be such an aid." For this reason, courts are given ample powers to forbid discovery which is intended not as an aid to litigation, but merely to annoy, embarrass or oppress either the deponent or the adverse party, or both." 10

The rule is that certiorari will generally not lie to review a discretionary action of any tribunal. Also, as a general proposition, a writ of certiorari is available only to review final judgments or decrees, and will be refused where there has been no final judgment or order and the proceeding for which the writ is sought is still pending and undetermined in the lower tribunal. Pursuant to this rule, it has been held that certiorari will not lie to review or correct discovery orders made prior to trial. 11 This is because, like other discovery orders, orders made under Section 16, Rule 24 are interlocutory and not appealable, 12 considering that they do not finally dispose of the proceeding or of any independent offshoot of it. 13

However, such rules are subject to the exception that discretionary acts will be reviewed where the lower court or tribunal has acted without or in excess of its jurisdiction, where an interlocutory order does not conform to essential requirements of law and may reasonably cause material injury throughout subsequent proceedings for which the remedy of appeal will be inadequate, or where there is a clear or serious abuse of discretion. 14

It is our considered opinion that on the bases of circumstances obtaining in the case at bar, and which will hereinavfter be discussed, certiorari may be availed of to review the questioned order of the trial court.II. Petitioner asseverates that the trial court gravely abused its discretion in ordering that the deposition be not taken in the absence of good cause therefor. It asserts that the reasons advanced by the trial court cannot be considered "good cause" within the contemplation of the law, which reasons, to repeat, are: (a) that the proposed deponent had earlier responded to written interrogatories; (b) that the proposed deponent had signified his availability to testify in court; and (c) that to allow the deposition would deprive the trial court of the opportunity to ask clarificatory questions to the vital witness. It further claims that a mere allegation, without any proof in support thereof, that petitioner intended to annoy, harass or oppress the proposed deponent, and therefore acted in bad faith, is not sufficient justification to order that the deposition shall not be taken.It is true that to ensure that availment of the modes of discovery would be untrammeled and efficacious, Rule 29 imposes serious sanctions on the party who refuses to comply with or respond to the modes of discovery, such as dismissing his action or proceeding or part thereof, or rendering judgment by default against the disobedient party; contempt of court, or arrest of the party or agent of the party; payment of the amount of reasonable expenses incurred in obtaining a court order to compel discovery; taking the matters inquired into as established in accordance with the claim of the party seeking discovery; refusal to allow the disobedient party to support or oppose designated claims or defenses; striking out his pleadings or parts thereof; or staying further proceedings.But then, there are concomitant limitations to discovery, even when permitted to be undertaken without leave of court and without judicial intervention. As indicated by the Rules, limitations inevitably arise when it can be shown that the examination is being conducted in bad faith or in such a manner as to annoy, embarrass, or oppress the person subject to the inquiry. Also, further limitations come into existence when the inquiry touches upon the irrelevant or encroaches upon the recognized domains of privilege.In fine, as we have earlier clarified, the liberty of a party to make discovery is well-nigh unrestricted if the matters inquired into are otherwise relevant and not privileged, and the inquiry is made in good faith and within the bounds of law.Section 16 of Rule 24 clearly states that it is only upon notice and for good cause that the court may order that the deposition shall not be taken. The matter of good cause is to be determined by the court in the exercise of judicial discretion. Good cause means a substantial reason — one that affords a legal excuse. Whether or not substantial reasons exist is for the court to determine, as there is no hard and fast rule for determining the question as to what is meant by the term "for good cause shown." 15

The requirement, however, that good cause be shown for a protective order puts the burden on the party seeking relief to show some plainly adequate reasons for the order. A particular and specific demonstration of facts, as distinguished from conclusory statements, is required to establish good cause for the issuance of a protective order. 16 What constitutes good cause furthermore depends upon the kind of protective order that is sought. 17

In light of the general philosophy of full discovery of relevant facts and the board statement of scope in Rule 24, and in view of the power of the court under Sections 16 and 18 of said Rule to control the details of time, place, scope, and financing for the protection of the deponents and parties, it is fairly rare that it will be ordered that a deposition should not be taken at all. All motions under these subparagraphs of the rule must be supported by "good

cause" and a strong showing is required before a party will be denied entirely the right to take a deposition. A mere allegation, without proof, that the deposition is being taken in bad faith is not a sufficient ground for such an order. Neither is an allegation that it will subject the party to a penalty or forfeiture. The mere fact that the information sought by deposition has already been obtained through a bill of particulars, interrogatories, or other depositions will not suffice, although if it is entirely repetitious a deposition may be forbidden. The allegation that the deponent knows nothing about the matters involved does not justify prohibiting the taking of a deposition, nor that whatever the witness knows is protected by the "work product doctrine," nor that privileged information or trade secrets will be sought in the course of the examination, nor that all the transactions were either conducted or confirmed in writing. 18

In the present case, private respondent failed to sufficiently establish that there is good cause to support the order of the trial court that the deposition shall not be taken, for several reasons.1. We agree with petitioner's submission that the fact that petitioner had previously availed of the mode of discovery, which is by written interrogatories supposedly covering all claims, counterclaims and defenses in the case, cannot be considered "good cause", because: (a) the fact that information similar to that sought had been obtained by answers to interrogatories does not bar an examination before trial, and is not a valid objection to the taking of a deposition where there is no duplication and the examining party is not acting in bad faith; and (b) knowledge of the facts by the petitioner concerning which the proposed deponent is to be examined does not justify a refusal of such examination.As a general rule, the scope of discovery is to be liberally construed so as to provide the litigants with information essential to the expenditious and proper litigation of each of the facts in dispute. Moreover, it cannot be disputed that the various methods of discovery as provided for in the Rules are clearly intended to be cumulative, as opposed to alternative or mutually exclusive. 19

The issue of whether a party who has resorted to a particular method of discovery will be barred in subsequently using other discovery devices has been definitely discussed and resolved as follows:

On the question of whether an oral deposition might be taken after service of interrogatories, the courts took a relatively liberal view. In Howard v. States Marine Corp., the first case in which this question was raised, Judge Hilbert said that:

Where it develops that examination by interrogatories has been inadequate, the court unquestionably has, and in a proper case should exercise, discretion to permit an oral examination. But it should be made to clearly appear that the relevant subject matter will not involve the interrogation of the witness with respect to those particulars upon which he was examined by interrogatories.

In Canuso v. City of Niagara Falls, the fact that a bill of particulars had previously been served and interrogatories answered was held no objection to an oral examination since no duplication was involved and bad faith had not been shown. And in Alfred Bell & Co. v. Catalda Fine Arts, Inc., oral examination was allowed, even though the individual had previously

answered interrogatories, except as to matters with respect to which he had "given responsive and categorical testimony." 20

It is quite clear, therefore, and we so hold that under the present Rules the fact that a party has resorted to a particular method of discovery will not bar subsequent use of other discovery devices, as long as the party is not attempting to circumvent a ruling of the court, or to harass or oppress the other party. As a matter of practice, it will often be desirable to resort to both interrogatories and depositions in one or the other sequence. Additional lines of inquiry may come to light after the deposition has been taken, as to which written interrogatories probably would be adequate, and there is no reason why the examining party should not be entitled to obtain all the relevant information he desires if no substantial prejudice is done to the party from whom discovery is sought. On the other hand, interrogatories may well be used as a preliminary to the taking of depositions, in order to ascertain what individuals have the information sought. And, of course, if the answers to interrogatories are evasive and unsatisfactory, the interrogating party should be able to utilize the more effective method of oral examination rather than have to reframe interrogatories. Ordinarily, however, there will be no occasion for a party to use both methods at the same time, at least to obtain the same information. 21

It has long been recognized that there are far greater advantages in obtaining the facts and circumstances involved in a confronting examination than in a written one. Hence:

1. Examination by interrogatories is both more cumbersome and less efficient than oral examination before trial. Where it develops that examination by interrogatories has been inadequate, the court unquestionably has, and in a proper case should exercise, discretion to permit an oral examination. But it should be made to clearly appear that the relevant subject matter will not involve the interrogation of the witness with respect to those particulars upon which he was examined by interrogatories. 22

2. In actual effectiveness, interrogatories are far inferior to the oral examination. Their defects are quite obvious. In the first place, they give the party to whom they are addressed more time to study their effect, which furnishes a better opportunity to frame protective answers which conceal or evade. In the next place, as a means of forcing a specific, detailed and thorough disclosure from a reluctant party, there is a tendency for the interrogatories to grow in number, complexity and variety of form so as to call for as many aspects of the proof as possible, with the result that they often become difficult to administer. . . . .

In view of these limitations upon the effectiveness of written interrogatories, it is evident that they are not well adapted for the purpose of general examination. It is only when the facts sought are few, formal and isolated, that this method can be satisfactorily employed. So long as the discovery is restricted to the case of the examiner, and he is not permitted to inquire into the case of his adversary, the facts sought by discovery will usually be few, formal and isolated, and written interrogatories will perhaps serve reasonably well. For a small task, a feeble instrument may suffice. But if discovery is to involve a thorough inquiry into the vital and highly controversial phases of the case, resort must be had to an oral examination. . . . .. . . Where the facts to be elicited are relatively few and important, whether ultimate facts or evidentiary facts, the legal machinery of interrogatories is a very useful, expeditious and inexpensive method; but where they are very

numerous, . . . they tend to become unduly burdensome, oppressive and vexatious to the adverse party and difficult for the court to administer. . . . . Furthermore, the procedure tends to be unnecessarily wasteful of judicial time. The judicial ruling upon the interrogatories themselves is not necessarily conclusive or even important in most cases as determinative of the issues in the case. The purpose of the interrogating party is to develop information or force admission; but if the answers are not satisfactory or useful, the time spent in considering them and the objections thereto is generally wasted, because the answers do not become evidence in the case unless voluntarily introduced by the interrogator as admissions against interest on the part of the party interrogated.. . . Where a more comprehensive examination of the adverse party is desired it should ordinarily be done by taking his deposition. 23

3. The obvious advantage of interrogatories over a deposition is that they are much less expensive. There is no significant expense for the party sending the interrogatories except for the time spent in preparing the questions. In addition, interrogatories are a much simpler device. There are none of the details that must be taken care of in arranging for a deposition, such as obtaining a court reporter and fixing the time and place for the examination.

On the other hand, depositions are preferable if a searching interrogation of the other party is desired. At a deposition, the examining party has great flexibility and can frame his questions on the basis of answers to previous questions. Moreover, the party being examined does not have the opportunity to study the questions in advance and to consult with his attorney before answering, as he does if interrogatories are used. Attempts at evasion, which might be met by a persistent oral examination, cannot be easily dealt with by interrogatories. The flexibility and the potency of oral depositions is in large part lacking in written interrogatories. It is for these reasons that depositions are . . . by far the most widely used of the discovery devices.

xxx xxx xxxFurthermore, . . . written interrogatories are most valuable as a device to compel admissions and the disclosure of major factual matters not concerned with details; the deposition is the best device suited to compel disclosure of detailed information. 24

2. The availability of the proposed deponent to testify in court does not constitute "good cause" to justify the court's order that his deposition shall not be taken. That the witness is unable to attend or testify is one of the grounds when the deposition of a witness may be used in court during the trial. 25 But the same reason cannot be successfully invoked to prohibit the taking of his deposition.

The right to take statements and the right to use them in court have been kept entirely distinct. The utmost freedom is allowed in taking depositions; restrictions are imposed upon their use. As a result, there is accorded the widest possible opportunity for knowledge by both parties of all the facts before the trial. Such of this testimony as may be appropriate for use as a substitute for viva voce examination may be introduced at the trial; the remainder of the testimony, having served its purpose in revealing the facts to the parties before trial, drops out of judicial picture. 26

Regardless of the development of devices for pre-trial fact investigation, our legal system is now thoroughly committed to the notion that on trial itself the adducing of facts by viva

voce testimony of witnesses — whose demeanor and manner are subject to the observation of the judge — is superior to the use of written statements of the same witnesses. Preference for oral testimony has dictated most of the limitations on the use of depositions as evidence. And since their use as evidence was originally conceived as the sole function of depositions proper, the limitations on their taking dovetailed with the limitations on their use. But under the concept adopted by the new Rules, the deposition serves the double function of a method of discovery — with use on trial not necessarily contemplated — and a method of presenting testimony. Accordingly, no limitations other than relevancy and privilege have been placed on the taking of depositions, while the use at the trial is subject to circumscriptions looking toward the use of oral testimony wherever practicable. 27

3. We are also in conformity with petitioner's submission that the mere fact that the court could not thereby observe the behavior of the deponent does not justify the denial of the right to take deposition. As we have already explained:

The main reason given in support of the contested order is that, if the deposition were taken, the court could not observe the behavior of the deponents. The insufficiency of this circumstance to justify the interdiction of the taking of the deposition becomes apparent when we consider that, otherwise, no deposition could ever be taken, said objection or handicap being common to all depositions alike. In other words, the order of respondent Judge cannot be sustained without nullifying the right to take depositions, and therefore, without, in effect repealing section 1 of Rule 18 (now Rule 24) of the Rules of Court, which, clearly, was not intended by the framers of section 16 of the same rule. 28

4. Finally, in the absence of proof, the allegation that petitioner merely intended to annoy, harass or oppress the proposed deponent cannot ably support the setting aside of a notice to take deposition.Orders to protect the party or witness from annoyance, embarrassment or oppression may be issued if the following requirements are complied with: (a) that there is a motion made by any party or by the person to be examined; (b) that the motion has been seasonably filed; (c) that there is good cause shown; and (d) that notice of such motion has been served to the other party. 29

Once a party has requested discovery, the burden is on the party objecting to show that the discovery requested is not relevant to the issues, 30 and to establish the existence of any claimed privilege. 31 These, private respondent has failed to do so. Consequently, its objection to the taking of the deposition cannot be sustained.

Furthermore, the fact that the deposition is to be taken in San Pablo City, whereas the proposed deponent lives in Manila, is not sufficient to establish private respondent's theory that the requested deposition was intended to annoy and harass the proposed deponent.Inconvenience to the party whose deposition is to be taken is not a valid objection to the taking of his deposition.32 No doubt, private respondent and its representative who is to be examined will be inconvenienced — as are all parties when required to submit to examination — but this is no ground for denial of the deposition-discovery process. 33 The mere fact that an officer of private respondent would be required to attend the examination and thereby absent himself from some of his usual business affairs during the taking of the deposition is utterly insufficient to justify the court in ruling that he is being annoyed, embarrassed or oppressed, within the meaning of this language. Something far beyond this is required in this connection to grant a party relief. At any rate, petitioner has signified its willingness to select a suitable office in Manila for the taking of the deposition in order to accommodate the proposed deponent. 34

On the bases of the foregoing disquisitions, we find and so hold that the trial court committed a grave abuse of discretion in issuing an order that the deposition shall not be taken in this case, and that respondent court erred in affirming the same.WHEREFORE, the petition is GRANTED. The questioned decision of respondent Court of Appeals is hereby REVERSED and SET ASIDE, and judgment is hereby rendered ORDERING the court a quo to allow herein petitioner to take the deposition upon oral examination of Juanito S. Teope in and for purposes of Civil Case No. SP-3469 pending before it.SO ORDERED.

G.R. No. 71388 September 23, 1986MARIA MONSERRAT R. KOH, petitioner, vs.HONORABLE INTERMEDIATE APPELLATE COURT, HON. JOB. B. MADAYAG in his capacity as the Presiding Judge, of Branch CXLV, Regional Trial Court of Makati, et al., respondents.Bito, Misa & Lozada Law Office for petitioner.Fernandez, Oliva, Umali & Associates and Vicente C. Ramirez, Jr. for respondents. FERIA, J.:The Court affirms the decision of the Intermediate Appellate Court (now renamed Court of Appeals) which dismissed the petition for certiorari filed by petitioner against respondent Judge Job B. Madayag of the Regional Trial Court of Makati and respondent First Interstate Bank of California. Petitioner sought to annul and set aside the order of respondent Judge denying her motion to dismiss the complaint based on res adjudicata.On June 15, 1983, respondent Bank filed a Complaint against petitioner to recover the sum of US-$7,434.90 or its equivalent in Philippine Currency which, due to a computer error, it had overpaid to her on October 8, 1981. The Complaint alleged that on September 30, 1981, petitioner's father sent her US-$500.00 through the Metropolitan Bank & Trust Company which was the remitting bank of respondent Bank. But due to computer mistake, respondent Bank's Los Angeles Office erroneously overstated the amount to US-$8,500.00 instead of US-$500.00, and as a consequence respondent Bank issued and delivered to petitioner Cashier Check No. 1217681 amounting to US-$8,500.00 dated October 8, 1981 which petitioner deposited to her account and subsequently withdrew.In her Answer dated August 17, 1983, petitioner admitted the above-stated allegations in the Complaint and alleged that immediately after receipt of a formal demand letter to return the overpayment, she offered to pay respondent Bank through its lawyer in installments of $100.00 a month but the offer was unreasonably rejected.It is significant to note that no copy of said Answer was attached to the petition for certiorari filed by petitioner with the Intermediate Appellate Court, nor was any copy thereof attached to the petition for review on certiorari filed with this Court. It was only in the Comment of respondents' counsel filed with this Court that a copy of said Answer was attached thereto.On August 19, 1983, Mr. E.R. Belen, Officer-in-Charge of the Regional Trial Court of Makati, Branch 141, sent the following "NOTICE OF CASE STATUS" to the parties through their respective lawyers.

G R E E T I N G S:Please take notice that cases where issues have been joined will be scheduled for pre-trial conference only after Rules 24, 25, 26, 27, 28, and 29-where applicable, necessary and or feasible have been resorted to by the parties.If a party believes that those modes of discovery are not applicable, necessary or feasible with respect to him, he shall file a manifestation to that effect.The pre-trial conference, shall be scheduled as soon as the respective manifestations of having resorted to, or of dispensing with, those modes of discovery have been filed by the parties.

The party, who has dispensed with those modes of discovery shall be deemed to have waived resort thereto, and, unless for good cause shown, motion to resort thereto, after termination of the pre-trial, shall not be grantee. The costs entailed the waiving party in presenting evidence during trial that could have been obtained through any of those modes of discovery which were waived, shall not be assessed against the adverse party nor awarded as part of the litigation expenses.If, after 30 days from receipt of this notice, no such manifestation has been filed, the case shall be archived or dismissed as the case may be.Upon Order of the Court, this 19th day of August 1983.Makati, Metro Manila.(SGD.) E.R. BELENOfficer-in-Charge

No manifestation was filed by the parties' lawyers. On November 29, 1983, the presiding Judge (not respondent Judge), issued the following order:

For non-compliance with the Order (Notice of Case Status) dated August 19, 1983, more particularly the last paragraph thereof, this case is hereby dismissed.

This order was received by respondent Bank's counsel on December 28, 1983.On July 4, 1984, respondent Bank, through a new counsel, refiled its complaint which was assigned to Branch 143 of the Regional Trial Court of Makati presided over by respondent Judge. Petitioner filed a motion to dismiss the complaint on the ground of res adjudicata, as well as a supplement thereto, which was opposed by respondent Bank.On August 27, 1984, respondent Judge denied the motion to dismiss and on November 27, 1984, he denied petitioner's motion for reconsideration, on the following grounds:(1) The dismissal was too drastic and was tantamount to depriving the plaintiff of its day in court.(2) Notwithstanding the failure of the parties in said case to comply with said notice of case status (above quoted), the court (Branch 141) should have set the case for pre-trial conference since the last pleading had been filed and there are no other conditions to be complied with before any case is calendared for pre-trial under Section 1 of Rule 20.(3) It would be better for the defendant to have a definite and clear-cut decision as to her liability or non-liability, instead of winning a case on a technicality.On May 8, 1985, petitioner filed a petition for certiorari with the Intermediate Appellate Court praying that the orders denying the motion to dismiss and the motion for reconsideration be set aside as null and void and that the complaint be ordered dismissed. On May 21, 1985, the appellate court, finding no merit to the petition, resolved not to give it due course. In its decision, the appellate court ruled as follows:

We concur with the above reasoning of respondent Judge. We should add to that our observation that the order of dismissal of Judge Elbiñas in Civil Case No. 4272 (Annex F) was null and void for lack of legal basis. The 'notice of case status' (Annex D) was not an order' of the court. I t was, as its title indicated, only a 'notice,' not an order. The warning in the last paragraph of the notice advising the parties that-

'If, after 30 days from receipt of this notice, no such manifestation has been filed, the case shall be archived or dismiss as the case may be.'was not an order of the court. It was a warning emanating from E.R. Belen, the officer-in-charge (of civil cases). The failure of the parties to heed the warning was not tantamount to disobedience of a lawful order of the court, for the 'officer-in-charge' was not the court or judge.Since the order of dismissal was null and void, it did not have the force of a judgment. It did not constitute a bar to the refiling of the bank's complaint. Respondent Judge did not err, or abuse his discretion, in denying petitioner's motion to dismiss Civil Case No. 7765. (pp. 35-36, Record)

Petitioner has appealed by certiorari to this Court. We are constrained to affirm Indeed, with the admission in petitioner's Answer of the allegations in the Complaint that due to computer error there was an overpayment to her of the amount of US-$8,000.00, coupled with her offer to pay respondent Bank the amount of the overpayment in installments of $100.00 a month, we cannot find any justification for ruling that the order dismissing the first complaint operated as an adjudication on the merits or constituted a bar to the second complaint. In fact, the trial court could have, on motion, rendered a judgment on the pleadings in the first case in favor of respondent Bank.True it is that respondent Bank's counsel should have taken the precaution of complying with the instructions contained in the "NOTICE OF CASE STATUS" if only to avoid the consequent delay resulting from non-compliance; that respondent Bank's counsel was negligent in not seeking a reconsideration or clarification of the order of dismissal or appealing therefrom. But, fortunately for respondent Bank, the omissions of its counsel are not fatal to its cause in view of the defective procedure which culminated in the dismissal of the first complaint.The rules on discovery (Rules 24, 25, 26, 27, 28 and 29 of the Revised Rules of Court) are intended to enable a party to obtain knowledge of material facts within the knowledge of the adverse party or of third parties through depositions to obtain knowledge of material facts or admissions from the adverse party through written interrogatories; to obtain admissions from the adverse party regarding the genuineness of relevant documents or relevant matters of fact through requests for admission; to inspect relevant documents or objects and lands or other property in the possession or control of the adverse party; and to determine the physical or mental condition of a party when such is in controversy. This mutual discovery enables a party to discover the evidence of the adverse party and thus facilitates an amicable settlement or expedites the trial of the case. All the parties are required to lay their cards on the table so that justice can be rendered on the merits of the case.Trial judges should, therefore, encourage the proper utilization of the rules on discovery. However, recourse to discovery procedures is not mandatory. If the parties do not choose to resort to such procedures, the pre-trial conference should be set pursuant to the mandatory provisions of Section 1 of Rule 20.Petitioner argues that respondent Judge was wrong in stating that a pre-trial order should have been issued since the last pleading had been filed, because the "notice of case status" was issued on August 19, 1983, while the last pleading or the answer to petitioner's counterclaim was filed much later. Although, ordinarily, the last pleading which has to be filed before the court shall set the case for pre-trial under Section 1 of Rule 20 is the answer to the counterclaim (Itchon vs. Baligod, 17 SCRA 268; Pioneer Insurance & Surety Corp. vs.

Hontanosas, 78 SCRA 447), in the case at bar, petitioner's counterclaim for damages resulting from the filing of the complaint did not require an answer (Navarro vs. Bello, 102 Phil. 1019; Gojo vs. Goyola, 35 SCRA 557). Since the counterclaim was the last pleading, the court should have issued a pre-trial order after its submission and it was the duty of the clerk of court to place the case in the pre-trial calendar under Section 5 of Rule 20.Petitioner invokes the provisions of Section 3 of Rule 17 which reads as follows:Failure to prosecute.-If plaintiff fails to appear at the time of the trial, or to prosecute his action for an unreasonable length of time, or to comply with these rules or any order of the court, the action may be dismissed upon motion of the defendant or upon the court's own motion. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise provided by court.This provision is not applicable to the case at bar. As the appellate court correctly held, the "notice of case status" was not an order of the court. It was signed by Mr. E.R. Belen, officer-in-charge. Even the warning in the notice (that if no such manifestation has been filed after 30 days from receipt the case shall be archived or dismissed as the case may be) was ambiguous. The failure of the parties to heed the warning did not constitute disobedience of a lawful order of the court. Consequently, the order of dismissal could not have the effect of an adjudication upon the merits. Neither could respondent Bank be considered to have failed to prosecute its action for an unreasonable length of time, inasmuch as petitioner's Answer was dated August 17, 1983 and the order of dismissal was dated November 29, 1983.Petitioner cites the case of Arellano vs. Court of First Instance of Sorsogon (65 SCRA 45) in support of her stand. However, in said case, the Court upheld the order of dismissal for failure of respondent Barreta to serve any answer to petitioner Arellano's interrogatories. The dismissal was based on Section 5 of Rule 29 which provides that if a party fails to serve answers to interrogatories submitted under Rule 25, after proper service of such interrogatories, the Court on motion and notice may dismiss the action or render judgment by default.Petitioner further contends that if the ruling of the appellate court regarding the legality of the notice signed by the officer-in-charge were sustained, then court processes such as summons, notices of pre-trial, writs of execution and the like can be merely disregarded by lawyers. This contention is without merit. Section 1 of Rule 14 expressly provides that upon the filing of the complaint, the clerk of court shall forthwith issue the corresponding summons to the defendant. Sections 1 and 5 of Rule 20 authorize the clerk of court to issue the notice of the date of the pre-trial and Section 2 of Rule 22 authorizes the clerk of court to issue the notice of the date of the trial. A writ of execution may be issued by the clerk of court pursuant to an order of execution signed by the judge. There is no rule authorizing the issuance of the "notice of case status" in question signed by an officer-in-charge.WHEREFORE, the decision of the appellate court is affirmed, with costs against petitioner. This decision is immediately executory.SO ORDERED.

.R. No. 90478 November 21, 1991REPUBLIC OF THE PHILIPPINES (PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT), petitioner, vs.SANDIGANBAYAN, BIENVENIDO R. TANTOCO, JR. and DOMINADOR R. SANTIAGO, respondents.Dominador R. Santiago for and in his own behalf and as counsel for respondent Tantoco, Jr. NARVASA, J.:pPrivate respondents Bienvenido R. Tantoco, Jr. and Dominador R. Santiago — together with Ferdinand E. Marcos, Imelda R. Marcos, Bienvenido R. Tantoco, Sr., Gliceria R. Tantoco, and Maria Lourdes Tantoco-Pineda-are defendants in Civil Case No. 0008 of the Sandiganbayan. The case was commenced on July 21, 1987 by the Presidential Commission on Good Government (PCGG) in behalf of the Republic of the Philippines. The complaint which initiated the action was denominated one "for reconveyance, reversion, accounting, restitution and damages," and was avowedly filed pursuant to Executive Order No. 14 of President Corazon C. Aquino.After having been served with summons, Tantoco, Jr. and Santiago, instead of filing their answer, jointly filed a "MOTION TO STRIKE OUT SOME PORTIONS OF THE COMPLAINT AND FOR BILL OF PARTICULARS OF OTHER PORTIONS" dated Nov. 3, 1987. 1 The PCGG filed an opposition thereto, 2 and the movants, a reply to the opposition. 3 By order dated January 29, 1988, the Sandiganbayan, in order to expedite proceedings and accommodate the defendants, gave the PCGG forty-five (45) days to expand its complaint to make more specific certain allegations. 4

Tantoco and Santiago then presented a "motion for leave to file interrogatories under Rule 25 of the Rules of Court" dated February 1, 1988, and "Interrogatories under Rule 25." 5 Basically, they sought an answer to the question: "Who were the Commissioners of the PCGG (aside from its Chairman, Hon. Ramon Diaz, who verified the complaint) who approved or authorized the inclusion of Messrs. Bienvenido R. Tantoco, Jr. and Dominador R. Santiago as defendants in the . . case?" 6 The PCGG responded by filing a motion dated February 9, 1988 to strike out said motion and interrogatories as being impertinent, "queer," "weird," or "procedurally bizarre as the purpose thereof lacks merit as it is improper, impertinent and irrelevant under any guise." 7

On March 18, 1988, in compliance with the Order of January 29, 1988, the PCGG filed an Expanded Complaint. 8As this expanded complaint, Tantoco and Santiago reiterated their motion for bill of particulars, through a Manifestation dated April 11, 1988. 9

Afterwards, by Resolution dated July 4, 1988, 10 the Sandiganbayan denied the motion to strike out, for bill of particulars, and for leave to file interrogatories, holding them to be without legal and factual basis. Also denied was the PCGG's motion to strike out impertinent pleading dated February 9, 1988. The Sandiganbayan declared inter alia the complaint to be "sufficiently definite and clear enough," there are adequate allegations . . which clearly portray the supposed involvement and/or alleged participation of defendants-movants in the transactions described in detail in said Complaint," and "the other matters sought for particularization are evidentiary in nature which should be ventilated in the pre-trial or trial proper . ." It also opined that "(s)ervice of interrogatories before joinder of issue and without leave of court is premature . . (absent) any special or extraordinary circumstances . . which would justify . . (the same)."

Tantoco and Santiago then filed an Answer with Compulsory Counterclaim under date of July 18, 1988. 11 In response, the PCGG presented a "Reply to Answer with Motion to Dismiss Compulsory Counterclaim " 12

The case was set for pre-trial on July 31, 1989. 13 On July 25, 1989, the PCGG submitted its PRE-TRIAL. 14 The pre-trial was however reset to September 11, 1989, and all other parties were required to submit pre-trial briefs on or before that date. 15

On July 27, 1989 Tantoco and Santiago filed with the Sandiganbayan a pleading denominated "Interrogatories to Plaintiff," 16 and on August 2, 1989, an "Amended Interrogatories to Plaintiff"' 17 as well as a Motion for Production and Inspection of Documents. 18

The amended interrogatories chiefly sought factual details relative to specific averments of PCGG's amended complaint, through such questions, for instance, as—

1. In connection with the allegations . . in paragraph 1 . ., what specific property or properties does the plaintiff claim it has the right to recover from defendants Tantoco, Jr. and Santiago for being ill-gotten?3. In connection with the allegations . . in paragraph 10 (a) . . what specific act or acts . . were committed by defendants Tantoco, Jr. and Santiago in "concert with" defendant Ferdinand Marcos and in furtherance or pursuit, of the alleged systematic plan of said defendant Marcos to accumulate ill-gotten wealth?"5. In connection with . . paragraph 13 . ., what specific act or acts of the defendants Tantoco, Jr. and Santiago . . were committed by said defendants as part, or in furtherance, of the alleged plan to conceal assets of defendants Ferdinand and Imelda Marcos?7. In connection with . . paragraph 15(c) . . is it plaintiff's position or theory of the case that Tourist Duty Free Shops, Inc., including all the assets of said corporation, are beneficially owned by either or both defendants Ferdinand and Imelda Marcos and that the defendants Tantoco, Jr. and Santiago, as well as, the other stockholders of record of the same corporation are mere "dummies" of said defendants Ferdinand and /or Imelda R. Marcos?

On the other hand, the motion for production and inspection of documents prayed for examination and copying of—

1) the "official records and other evidence" on the basis of which the verification of the Amended Complaint asserted that the allegations thereof are "true and correct;"2) the documents listed in PCGG's Pre-Trial Brief as those "intended to be presented and . . marked as exhibits for the plaintiff;" and3) "the minutes of the meeting of the PCGG which chronicles the discussion (if any) and the decision (of the Chairman and members) to file the complaint" in the case at bar.

By Resolutions dated August 21, 1989 and August 25, 1989, the Sandiganbayan admitted the Amended Interrogatories and granted the motion for production and inspection of documents (production being scheduled on September 14 and 15, 1989), respectively.On September 1, 1989, the PCGG filed a Motion for Reconsideration of the Resolution of August 25, 1989 (allowing production and inspection of documents). It argued that1) since the documents subject thereof would be marked as exhibits during the pre-trial on September 11, 1989 anyway, the order for "their production and inspection on September 14 and 15, are purposeless and unnecessary;"2) movants already know of the existence and contents of the document which "are clearly described . . (in) plaintiff's Pre-Trial Brief;"3) the documents are "privileged in character" since they are intended to be used against the PCGG and/or its Commissioners in violation of Section 4, Executive Order No. 1, viz.:

(a) No civil action shall lie against the Commission or any member thereof for anything done or omitted in the discharge of the task contemplated by this Order.(b) No member or staff of the Commission shall be required to testify or produce evidence in any judicial, legislative, or administrative proceeding concerning matters within its official cognizance.

It also filed on September 4, 1989 an opposition to the Amended Interrogatories, 19 which the Sandiganbayan treated as a motion for reconsideration of the Resolution of August 21, 1989 (admitting the Amended Interrogatories). The opposition alleged that —

1) the interrogatories "are not specific and do not name the person to whom they are propounded . .," or "who in the PCGG, in particular, . . (should) answer the interrogatories;"2) the interrogatories delve into "factual matters which had already been decreed . . as part of the proof of the Complaint upon trial . .;"3) the interrogatories "are frivolous" since they inquire about "matters of fact . . which defendants . . sought to . . (extract) through their aborted Motion for Bill of Particulars;"4) the interrogatories "are really in the nature of a deposition, which is prematurely filed and irregularly utilized . . (since) the order of trial calls for plaintiff to first present its evidence."Tantoco and Santiago filed a reply and opposition on September 18, 1989.After hearing, the Sandiganbayan promulgated two (2) Resolutions on September 29, 1989, the first, denying reconsideration (of the Resolution allowing production of documents), and the second, reiterating by implication the permission to serve the amended interrogatories on the plaintiff (PCGG). 20

Hence, this petition for certiorari.The PCGG contends that said orders, both dated September 29, 1989, should be nullified because rendered with grave abuse of discretion amounting to excess of jurisdiction. More particularly, it claims —a) as regards the order allowing the amended interrogatories to the plaintiff PCGG:

1) that said interrogatories are not specific and do not name the particular individuals to whom they are propounded, being addressed only to the PCGG;2) that the interrogatories deal with factual matters which the Sandiganbayan (in denying the movants' motion for bill of particulars) had already declared to be part of the PCGG's proof upon trial; and3) that the interrogatories would make PCGG Commissioners and officers witnesses, in contravention of Executive Order No. 14 and related issuances; and

b) as regards the order granting the motion for production of documents:1) that movants had not shown any good cause therefor;2) that some documents sought to be produced and inspected had already been presented in Court and marked preliminarily as PCGG's exhibits, and the movants had viewed, scrutinized and even offered objections thereto and made comments thereon; and3) that the other documents sought to be produced are either —

(a) privileged in character or confidential in nature and their use is proscribed by the immunity provisions of Executive Order No. 1, or(b) non-existent, or mere products of the movants' suspicion and fear.

This Court issued a temporary restraining order on October 27, 1989, directing the Sandiganbayan to desist from enforcing its questioned resolutions of September 29, 1989 in Civil Case No. 0008. 21

After the issues were delineated and argued at no little length by the parties, the Solicitor General withdrew "as counsel for plaintiff . . with the reservation, however, conformably with Presidential Decree No. 478, the provisions of Executive Order No. 292, as well as the decisional law of 'Orbos v. Civil Service Commission, et al.,' (G.R. No. 92561, September 12, 1990) 22 to submit his comment/observation on incidents/matters pending with this . . Court if called for by circumstances in the interest of the Government or if he is so required by the Court." 23 This, the Court allowed by Resolution dated January 21, 1991. 24

Subsequently, PCGG Commissioner Maximo A. Maceren advised the Court that the cases from which the Solicitor General had withdrawn would henceforth be under his (Maceren's) charge "and/or any of the following private attorneys: Eliseo B. Alampay, Jr., Mario E. Ongkiko, Mario Jalandoni and such other attorneys as it may later authorize." 25

The facts not being in dispute, and it appearing that the parties have fully ventilated their respective positions, the Court now proceeds to decide the case.Involved in the present proceedings are two of the modes of discovery provided in the Rules of Court: interrogatories to parties , 26 and production and inspection of documents and things. 27 Now, it appears to the Court that among far too many lawyers (and not a few judges), there is, if not a regrettable unfamiliarity and even outright ignorance about the nature, purposes and operation of the modes of discovery, at least a strong yet unreasoned and unreasonable disinclination to resort to them — which is a great pity for the intelligent and adequate use of the deposition-discovery mechanism, coupled with pre-trial procedure, could, as the experience of other jurisdictions convincingly demonstrates, effectively shorten the period of litigation and speed up adjudication. 28 Hence, a few words about these remedies is not at all inappropriate.

The resolution of controversies is, as everyone knows, the raison d'etre of courts. This essential function is accomplished by first, the ascertainment of all the material and relevant facts from the pleadings and from the evidence adduced by the parties, and second, after that determination of the facts has been completed, by the application of the law thereto to the end that the controversy may be settled authoritatively, definitely and finally.It is for this reason that a substantial part of the adjective law in this jurisdiction is occupied with assuring that all the facts are indeed presented to the Court; for obviously, to the extent that adjudication is made on the basis of incomplete facts, to that extent there is faultiness in the approximation of objective justice. It is thus the obligation of lawyers no less than of judges to see that this objective is attained; that is to say, that there no suppression, obscuration, misrepresentation or distortion of the facts; and that no party be unaware of any fact material a relevant to the action, or surprised by any factual detail suddenly brought to his attention during the trial. 29

Seventy-one years ago, in Alonso v. Villamor, 30 this Court described the nature and object of litigation and in the process laid down the standards by which judicial contests are to be conducted in this jurisdiction. It said:

A litigation is not a game of technicalities in which one, more deeply schooled and skilled in the subtle art of movement and position, entraps and destroys the other. It is, rather a contest in which each contending party fully and fairly lays before the court the facts in issue and then brushing aside as wholly trivial and indecisive all imperfections of form and technicalities of procedure, asks that justice be done on the merits. Lawsuits, unlike duels, are not to be won by a rapier's thrust. Technicality, when it deserts its proper office as an aid to justice and becomes its great hindrance and chief enemy, deserves scant consideration from courts. There should be no vested right in technicalities. . . .

The message is plain. It is the duty of each contending party to lay before the court the facts in issue-fully and fairly; i.e., to present to the court all the material and relevant facts known to him, suppressing or concealing nothing, nor preventing another party, by clever and adroit manipulation of the technical rules of pleading and evidence, from also presenting all the facts within his knowledge.

Initially, that undertaking of laying the facts before the court is accomplished by the pleadings filed by the parties; but that, only in a very general way. Only "ultimate facts" are set forth in the pleadings; hence, only the barest outline of the facfual basis of a party's claims or defenses is limned in his pleadings. The law says that every pleading "shall contain in a methodical and logical form, a plain, concise and direct statement of the ultimate factson which the party pleading relies for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts." 31

Parenthetically, if this requirement is not observed, i.e., the ultimate facts are alleged too generally or "not averred with sufficient definiteness or particularity to enable . . (an adverse party) properly to prepare his responsive pleading or to prepare for trial," a bill of particulars seeking a "more definite statement" may be ordered by the court on motion of a party. The office of a bill of particulars is, however, limited to making more particular or definite the ultimate facts in a pleading It is not its office to supply evidentiary matters. And the common perception is that said evidentiary details are made known to the parties and the court only during the trial, when proof is adduced on the issues of fact arising from the pleadings.The truth is that "evidentiary matters" may be inquired into and learned by the parties before the trial. Indeed, it is the purpose and policy of the law that the parties — before the trial if not indeed even before the pre-trial — should discover or inform themselves of all the facts relevant to the action, not only those known to them individually, but also those known to adversaries; in other words, the desideratum is that civil trials should not be carried on in the dark; and the Rules of Court make this ideal possible through the deposition-discovery mechanism set forth in Rules 24 to 29. The experience in other jurisdictions has been that ample discovery before trial, under proper regulation, accomplished one of the most necessary of modern procedure: it not only eliminates unessential issue from trials thereby shortening them considerably, but also requires parties to play the game with the cards on the table so that the possibility of fair settlement before trial is measurably increased. . ."32

As just intimated, the deposition-discovery procedure was designed to remedy the conceded inadequacy and cumbersomeness of the pre-trial functions of notice-giving, issue-formulation and fact revelation theretofore performed primarily by the pleadings.The various modes or instruments of discovery are meant to serve (1) as a device, along with the pre-trial hearing under Rule 20, to narrow and clarify the basic issues between the parties, and (2) as a device for ascertaining the facts relative to those issues. The evident purpose is, to repeat, to enable parties, consistent with recognized privileges, to obtain the fullest possible knowledge of the issues and facts before trials and thus prevent that said trials are carried on in the dark. 33

To this end, the field of inquiry that may be covered by depositions or interrogatories is as broad as when the interrogated party is called as a witness to testify orally at trial. The inquiry extends to all facts which are relevant, whether they be ultimate or evidentiary, excepting only those matters which are privileged. The objective is as much to give every party the fullest possible information of all the relevant facts before the trial as to obtain evidence for use upon said trial. The principle is reflected in Section 2, Rule 24 (governing depositions) 34 which generally allows the examination of a deponent —

1) "regarding any matter, not privileged, which is relevant to the subject of the pending action, whether relating to the claim or defense of any other party;"2) as well as:

(a) "the existence, description, nature, custody, condition and location of any books, documents, or other tangible things" and(b) "the identity and location of persons having knowledge of relevant facts."

What is chiefly contemplated is the discovery of every bit of information which may be useful in the preparation for trial, such as the identity and location of persons having knowledge of relevant facts; those relevant facts themselves; and the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things. Hence, "the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of "fishing expedition" serve to preclude a party from inquiring into the facts underlying his opponent's case. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession. The deposition-discovery procedure simply advances the stage at which the disclosure can be compelled from the time of trial to the period preceding it, thus reducing the possibility, of surprise, . . . 35

In line with this principle of according liberal treatment to the deposition-discovery mechanism, such modes of discovery as (a) depositions (whether by oral examination or written interrogatories) under Rule 24, (b) interrogatories to parties under Rule 25, and (c) requests for admissions under Rule 26, may be availed of without leave of court, and generally, without court intervention. The Rules of Court explicitly provide that leave of court is not necessary to avail of said modes of discovery after an answer to the complaint has been served. 36 It is only when an answer has not yet been filed (but after jurisdiction has been obtained over the defendant or property subject of the action) that prior leave of court is needed to avail of these modes of discovery, the reason being that at that time the issues are not yet joined and the disputed facts are not clear. 37

On the other hand, leave of court is required as regards discovery by (a) production or inspection of documents or things in accordance with Rule 27, or (b) physical and mental examination of persons under Rule 28, which may be granted upon due application and a showing of due cause.To ensure that availment of the modes of discovery is otherwise untrammeled and efficacious, the law imposes serious sanctions on the party who refuses to make discovery, such as dismissing the action or proceeding or part thereof, or rendering judgment by default against the disobedient party; contempt of court, or arrest of the party or agent of the party; payment of the amount of reasonable expenses incurred in obtaining a court order to compel discovery; taking the matters inquired into as established in accordance with the claim of the party seeking discovery; refusal to allow the disobedient party support or oppose designated claims or defenses; striking out pleadings or parts thereof; staying further proceedings. 38

Of course, there are limitations to discovery, even when permitted to be undertaken without leave and without judicial intervention. "As indicated by (the) Rules . . ., limitations inevitably arise when it can be shown that the examination is being conducted in bad faith or in such a manner as to annoy, embarass, or oppress the person subject to the inquiry. 39 And . . . further limitations come into existence when the inquiry touches upon the irrelevant or encroaches upon the recognized domains of privilege." 40

In fine, the liberty of a party to make discovery is well nigh unrestricted if the matters inquired into are otherwise relevant and not privileged, and the inquiry is made in good faith and within the bounds of the law.It is in light of these broad principles underlying the deposition-discovery mechanism, in relation of course to the particular rules directly involved, that the issues in this case will now be resolved.

The petitioner's objections to the interrogatories served on it in accordance with Rule 25 of the Rules of Court cannot be sustained.It should initially be pointed out — as regards the private respondents "Motion for Leave to File Interrogatories" dated February 1, 1988 41 — that it was correct for them to seek leave to serve interrogatories, because discovery was being availed of before an answer had been served. In such a situation, i.e., "after jurisdiction has been obtained over any defendant or over property subject of the action" but before answer, Section 1 of Rule 24 (treating of depositions), in relation to Section 1 of Rule 25 (dealing with interrogatories to parties) explicitly requires "leave of court." 42 But there was no need for the private respondents to seek such leave to serve their "Amended Interrogatories to Plaintiff" (dated August 2, 1989 43) after they had filed their answer to the PCGG's complaint, just as there was no need for the Sandiganbayan to act thereon.

1. The petitioner's first contention — that the interrogatories in question are defective because they (a) do not name the particular individuals to whom they are propounded, being addressed only to the PCGG, and (b) are "fundamentally the same matters . . (private respondents) sought to be clarified through their aborted Motion . . for Bill of Particulars" — are untenable and quickly disposed of.The first part of petitioner's submission is adequately confuted by Section 1, Rule 25 which states that if the party served with interrogatories is a juridical entity such as "a public or private corporation or a partnership or association," the same shall be "answered . . by any officer thereof competent to testify in its behalf." There is absolutely no reason why this proposition should not be applied by analogy to the interrogatories served on the PCGG. That the interrogatories are addressed only to the PCGG, without naming any specific commissioner o officer thereof, is utterly of no consequence, and may not be invoked as a reason to refuse to answer. As the rule states, the interrogatories shall be answered "by any officer thereof competent to testify in its behalf."That the matters on which discovery is desired are the same matters subject of a prior motion for bill of particulars addressed to the PCGG's amended complaint — and denied for lack of merit — is beside the point. Indeed, as already pointed out above, a bill of particulars may elicit only ultimate facts, not so-called evidentiary facts. The latter are without doubt proper subject of discovery. 44

Neither may it be validly argued that the amended interrogatories lack specificity. The merest glance at them disproves the argument. The interrogatories are made to relate to individual paragraphs of the PCGG's expanded complaint and inquire about details of the ultimate facts therein alleged. What the PCGG may properly do is to object to specific items of the interrogatories, on the ground of lack of relevancy, or privilege, or that the inquiries are being made in bad faith, or simply to embarass or oppress it. 45 But until such an objection is presented and sustained, the obligation to answer subsists.

2. That the interrogatories deal with factual matters which will be part of the PCGG's proof upon trial, is not ground for suppressing them either. As already pointed out, it is the precise purpose of discovery to ensure mutual knowledge of all the relevant facts on the part of all parties even before trial, this being deemed essential to proper litigation. This is why either party may compel the other to disgorge whatever facts he has in his possession; and the stage at which disclosure of evidence is made is advanced from the time of trial to the period preceding it.3. Also unmeritorious is the objection that the interrogatories would make PCGG Commissioners and officers witnesses, in contravention of Executive Order No. 14 and related issuances. In the first place, there is nothing at all wrong in a party's making his adversary his witness .46 This is expressly allowed by Section 6, Rule 132 of the Rules of Court, viz.:

Sec. 6. Direct examination of unwilling or hostile witnesses. — A party may . . . call 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, and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party, and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also, and may be cross-examined by the adverse party only upon the subject-matter of his examination in chief.

The PCGG insinuates that the private respondents are engaged on a "fishing expedition," apart from the fact that the information sought is immaterial since they are evidently meant to establish a claim against PCGG officers who are not parties to the action. It suffices to point out that "fishing expeditions" are precisely permitted through the modes of discovery. 47 Moreover, a defendant who files a counterclaim against the plaintiff is allowed by the Rules to implead persons (therefore strangers to the action) as additional defendants on said counterclaim. This may be done pursuant to Section 14, Rule 6 of the Rules, to wit:

Sec. 14. Bringing new parties. — When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants, if jurisdiction over them can be obtained."

The PCGG's assertion that it or its members are not amenable to any civil action "for anything done or omitted in the discharge of the task contemplated by . . (Executive) Order (No. 1)," is not a ground to refuse to answer the interrogatories. The disclosure of facto relevant to the action and which are not self-incriminatory or otherwise privileged is one thing; the matter of whether or not liability may arise from the facts disclosed in light of Executive Order No. 1, is another. No doubt, the latter proposition may properly be set up by way of defense in the action.The apprehension has been expressed that the answers to the interrogatories may be utilized as foundation for a counterclaim against the PCGG or its members and officers. They will be. The private respondents have made no secret that this is in fact their intention. Withal, the Court is unable to uphold the proposition that while the PCGG obviously feels itself at liberty to bring actions on the basis of its study and appreciation of the evidence in its possession, the parties sued should not be free to file counterclaims in the same actions against the PCGG or its officers for gross neglect or ignorance, if not downright bad faith or malice in the commencement or initiation of such judicial proceedings, or that in the actions that it may bring, the PCGG may opt not to be bound by rule applicable to the parties it has sued, e.g., the rules of discovery.So, too, the PCGG's postulation that none of its members may be "required to testify or produce evidence in any judicial . . proceeding concerning matters within its official cognizance," has no application to a judicial proceeding it has itself initiated. As just suggested, the act of bringing suit must entail a waiver of the exemption from giving evidence; by bringing suit it brings itself within the operation and scope of all the rules governing civil actions, including the rights and duties under the rules of discovery. Otherwise, the absurd would have to be conceded, that while the parties it has impleaded as defendants may be required to "disgorge all the facts" within their knowledge and in their possession, it may not itself be subject to a like compulsion.The State is, of course, immune from suit in the sense that it cannot, as a rule, be sued without its consent. But it is axiomatic that in filing an action, it divests itself of its sovereign character and sheds its immunity from suit, descending to the level of an ordinary litigant. The PCGG cannot claim a superior or preferred status to the State, even while assuming to represent or act for the State. 48

The suggestion 49 that the State makes no implied waiver of immunity by filing suit except when in so doing it acts in, or in matters concerning, its proprietary or non-governmental capacity, is unacceptable; it attempts a distinction without support in principle or precedent. On the contrary —

The consent of the State to be sued may be given expressly or impliedly. Express consent may be manifested either through a general law or a special law. Implied consent is given when the State itself commences litigation or when it enters into a contract. 50

The immunity of the State from suits does not deprive it of the right to sue private parties in its own courts. The state as plaintiff may avail itself of the different forms of actions open to private litigants. In short, by taking the initiative in an action against the private parties, the state surrenders its privileged position and comes down to the level of the defendant. The latter automatically acquires, within certain limits, the right to set up whatever claims and other defenses he might have against the state. . . . (Sinco, Philippine Political Law, Tenth E., pp. 36-37, citing U.S. vs. Ringgold, 8 Pet. 150, 8 L. ed. 899)" 51

It can hardly be doubted that in exercising the right of eminent domain, the State exercises its jus imperii, as distinguished from its proprietary rights or jus gestionis. Yet, even in that area, it has been held that where private property has been taken in expropriation without just compensation being paid, the defense of immunity from suit cannot be set up by the State against an action for payment by the owner. 52

The Court also finds itself unable to sustain the PCGG's other principal contention, of the nullity of the Sandiganbayan's Order for the production and inspection of specified documents and things allegedly in its possession.The Court gives short shrift to the argument that some documents sought to be produced and inspected had already been presented in Court and marked preliminarily as PCGG's exhibits, the movants having in fact viewed, scrutinized and even offered objections thereto and made comments thereon. Obviously, there is nothing secret or confidential about these documents. No serious objection can therefore be presented to the desire of the private respondents to have copies of those documents in order to study them some more or otherwise use them during the trial for any purpose allowed by law.The PCGG says that some of the documents are non-existent. This it can allege in response to the corresponding question in the interrogatories, and it will incur no sanction for doing so unless it is subsequently established that the denial is false.The claim that use of the documents is proscribed by Executive Order No. 1 has already been dealt with. The PCGG is however at liberty to allege and prove that said documents fall within some other privilege, constitutional or statutory.The Court finally finds that, contrary to the petitioner's theory, there is good cause for the production and inspection of the documents subject of the motion dated August 3, 1989. 53 Some of the documents are, according to the verification of the amended complaint, the basis of several of the material allegations of said complaint. Others, admittedly, are to be used in evidence by the plaintiff. It is matters such as these into which inquiry is precisely allowed by the rules of discovery, to the end that the parties may adequately prepare for pre-trial and trial. The only other documents sought to be produced are needed in relation to the allegations of the counterclaim. Their relevance is indisputable; their disclosure may not be opposed.

One last word. Due no doubt to the deplorable unfamiliarity respecting the nature, purposes and operation of the modes of discovery earlier mentioned, 54 there also appears to be a widely entertained idea that application of said modes is a complicated matter, unduly expensive and dilatory. Nothing could be farther from the truth. For example, as will already have been noted from the preceding discussion, all that is entailed to activate or put in motion the process of discovery by interrogatories to parties under Rule 25 of the Rules of Court, is simply the delivery directly to a party of a letter setting forth a list of least questions with the request that they be answered individually. 55 That is all. The service of such a communication on the party has the effect of imposing on him the obligation of answering the questions "separately and fully in writing underoath," and serving "a copy of the answers on the party submitting the interrogatories within fifteen (15) days after service of the interrogatories . . ." 56 The sanctions for refusing to make discovery have already been mentioned. 57 So, too, discovery under Rule 26 is begun by nothing more complex than the service on a party of a letter or other written communication containing a request that specific facts therein set forth and/or particular documents copies of which are thereto appended, be admitted in writing. 58 That is all. Again, the receipt of such a communication by the party has the effect of imposing on him the obligation of serving the party requesting admission with "a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters," failing in which "(e)ach of the matters of

which admission is requested shall be deemed admitted." 59 The taking of depositions in accordance with Rule 24 (either on oral examination or by written interrogatories) while somewhat less simple, is nonetheless by no means as complicated as seems to be the lamentably extensive notion.

WHEREFORE, the petition is DENIED, without pronouncement as to costs. The temporary restraining order issued on October 27, 1989 is hereby LIFTED AND SET ASIDE.SO ORDERED.

G.R. No. 108229 August 24, 1993DASMARIÑAS GARMENTS, INC., petitioner, vs.HON. RUBEN T. REYES, Judge, Regional Trial Court, Manila, Branch 50, and AMERICAN PRESIDENT LINES, LTD., respondents.Sobreviñas, Diaz, Haudini & Bodegon Law Offices for petitioner.Tan, Manzano & Velez Law Offices for private respondent. 

R E S O L U T I O NNARVASA, C.J.:Sometime in September, 1987, in the Regional Trial Court of Manila, the American President Lines, Ltd. sued Dasmariñas Garments, Inc. to recover the sum of US $53,228.45 as well as an amount equivalent to twenty-five percent (25%) thereof as attorney's fees and litigation expenses.In its answer dated December 1, 1987, Dasmariñas Garments, Inc. (hereafter, simply Dasmariñas) specifically denied any liability to the plaintiff (hereafter simply APL), and set up compulsory counterclaims against it.The case was in due course scheduled for trial on April 27, 1988. On that date APL presented its first witness whose testimony was completed on November 12, 1988. The case was reset to May 3, 1989 for reception of the testimony of two (2) more witnesses in APL's behalf.At the hearing of May 3, 1989, instead of presenting its witnesses, APL filed a motion praying that it intended to take the depositions of H. Lee and Yeong Fang Yeh in Taipei, Taiwan and prayed that for this purpose, a "commission or letters rogatory be issued addressed to the consul, vice-consul or consular agent of the Republic of the Philippines in Taipei . . . " Five (5) days later APL filed an amended motion stating that since the Philippine Government has no consulate office in Taiwan in view of its "one China policy," there being in lieu thereof an office set up by the President "presently occupied by Director Joaquin Roces which is the Asia Exchange Center, Inc.," it was necessary — and it therefore prayed — "that commission or letters rogatory be issued addressed to Director Joaquin Roces, Executive Director, Asian Executive Exchange Center, Inc., Room 901, 112 Chunghsiao, E. Road, Section 1, Taipe, Republic of China, to hear and take the oral deposition of the aforenamed persons . . . ."

The motion was opposed by Dasmariñas. It contended that (a) the motion was "fatally defective in that it does not seek . . . that a foreign court examine a person within its jurisdiction;" (b) issuance of letters rogatory was unnecessary because the witnesses "can be examined before the Philippine Court;" and (c) the Rules of Court "expressly require that the testimony of a witness must be taken orally in open court and not by deposition."Extensive argument on the matter thereafter followed, through various pleadings filed by the parties, in the course of which APL submitted to the Trial Court (a) the letter received by its counsel from Director Joaquin R. Roces of the Asian Exchange Center, Inc., dated November 20, 1989, advising that "this Office can only take deposition upon previous authority from the Department of Foreign Affairs," this being "in consonance with the Supreme Court Administrative Order requiring courts or judicial bodies to course their requests through the Department of Foreign Affairs;" and (b) a letter sent by "fax" to the same counsel by a law firm in Taipei, Lin & Associates Maritime Law Office, transmitting information inter alia of the mode by which, under the "ROC Civil Procedure Code," "a copy or an abridged copy" of documents on file with a Taiwan Court may be obtained.By Order dated March 15, 1991, the Trial Court resolved the incident in favor of APL, disposing as follows:

ACCORDINGLY, the motion to take testimonies of plaintiff's Taiwanese witnesses, Kenneth H. Lee and Yeong Fah Yeh, by deposition (upon written interrogatories) is hereby GRANTED. The Asian Exchange Center, Inc. thru Director Joaquin R. Roces is hereby COMMISSIONED to take down the deposition. Compliance with the Rules on the taking of testimony by deposition upon written interrogatories under Sections 25-29 of Rule 24, Rules of Court is enjoined.Let this Order be coursed through the Department of Foreign Affairs, Manila, pursuant to Supreme Court Administrative Circular No. 4 dated April 6, 1987.

The Court opined that "the Asian Exchange Center, Inc. being the authorized Philippine representative in Taiwan, may take the testimonies of plaintiff's witnesses residing there by deposition, but only upon written interrogatoriesso as to give defendant the opportunity to cross-examine the witnesses by serving cross-examination."Dasmariñas sought reconsideration by motion filed June 25, 1991 on the following grounds: (1) authority of the Asian Exchange Center, Inc. (AECI) to take depositions has not been established, it not being one of those so authorized by the Rules of Court to take depositions in a foreign state; (2) AECI's articles of incorporation show that it is not vested with any such authority; (3) to permit deposition-taking by commission without the authority of the foreign state in which deposition is taken constitutes infringement of judicial sovereignty; and (4) depositions by written interrogatories have inherent limitations and are not suitable to matters dependent on the credibility of witnesses; oral testimony in open court remains the "most satisfactory method of investigation of facts'" and "'affords the greatest protection to the rights and liberties of citizens."By Order dated July 5, 1991, the motion for reconsideration was denied because "filed out of time" and being a mere rehash of arguments already passed upon. In the same Order, APL was directed "to take the necessary steps to implement the order authorizing the . . . (deposition-taking) of its witnesses not later than the end of this month, otherwise the Court will consider inaction or lack of interest as waiver to adduce additional evidence by deposition."

Dasmariñas instituted a special civil action of certiorari in the Court of Appeals to nullify the orders of the Trial Court just described. Said Appellate Court restrained enforcement of the orders of March 15, 1991 and July 5, 1991 "in order to maintain the status quo and to prevent the infliction of irreparable damage and injury upon the petitioner."After due proceedings, the Court of Appeals (Third Division) rendered judgment on September 23, 1992 denying Dasmariñas petition for certiorari and upholding the challenged orders of the Trial Court. Once again, Dasmariñas sought reconsideration of an adverse disposition, and once again, was rebuffed. Its motion for reconsideration was denied in a Resolution of the Court of Appeals dated December 11, 1992.Once again Dasmariñas has availed of the remedy of appeal. It has come to this Court and prays for the reversal of the Appellate Court's Decision of September 23, 1992 and Resolution dated December 11, 1992. Once again, it will fail.Dasmariñas ascribes to the Court of Appeals the following errors, to wit:

1) "in holding that a party could, during the trial of the case, present its evidence by taking the deposition of its witnesses in a foreign jurisdiction before a private entity not authorized by law to take depositions in lieu of their oral examination in open Court considering that:

a) the taking of deposition is a mode of pretrial discovery to be availed of before the action comes to trial;b) no urgent or compelling reason has been shown to justify the departure from the accepted and usual judicial proceedings of examining witnesses in open court where their demeanor could be observed by the trial judge;"

2) "in disregarding the inherently unfair situation in allowing private respondent, a foreign entity suing in the Philippines, to present its evidence by mere deposition of its witnesses away from the 'penetrating scrutiny' of the trial Judge while petitioner is obligated to bring and present its witnesses in open court subject to the prying eyes and probing questions of the Judge;" and3) "in sanctioning the deposition taking of . . . (APL's) witnesses in Taipei, Taiwan, a foreign jurisdiction not recognized by the Philippines in view of its 'one-China policy,' before the AECI, a private entity not authorized by law to take depositions."

Depositions are chiefly a mode of discovery. They are intended as a means to compel disclosure of facts resting in the knowledge of a party or other person which are relevant in some suit or proceeding in court. Depositions, and the other modes of discovery (interrogatories to parties; requests for admission by adverse party; production or inspection of documents or things; physical and mental examination of persons) are meant to enable a party to learn all the material and relevant facts, not only known to him and his witnesses but also those known to the adverse party and the latter's own witnesses. In fine, the object of discovery is to make it possible for all the parties to a case to learn all the material and relevant facts, from whoever may have knowledge thereof, to the end that their pleadings or motions may not suffer from inadequacy of factual foundation, and all the relevant facts may be clearly and completely laid before the Court, without omission or suppression.Depositions are principally made available by law to the parties as a means of informing themselves of all the relevant facts; they are not therefore generally meant to be a substitute for the actual testimony in open court of a party or witness. The deponent must as

a rule be presented for oral examination in open court at the trial or hearing. This is a requirement of the rules of evidence. Section 1, Rule 132 of the Rules of Court provides:

Sec. 1. Examination to be done in open court. — The examination of witnesses presented in a trial or hearing shall be done in open court, and under oath or affirmation. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally.

Indeed, any deposition offered to prove the facts therein set out during a trial or hearing, in lieu of the actual oral testimony of the deponent in open court, may be opposed and excluded on the ground that it is hearsay; the party against whom it is offered has no opportunity to cross-examine the deponent at the time that his testimony is offered. It matters not that that opportunity for cross-examination was afforded during the taking of the deposition; for normally, the opportunity for cross-examination must be accorded a party at the time that the testimonial evidence is actually presented against him during the trial or hearing.However, depositions may be used without the deponent being actually called to the witness stand by the proponent, under certain conditions and for certain limited purposes. These exceptional situations are governed by Section 4, Rule 24 of the Rules of Court.

Sec. 4. Use of depositions. — At the trial or upon the hearing of a motion of an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any of the following provisions:(a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness;(b) The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose;(c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (1) that the witness is dead; or (2) that the witness if out of the province and at a greater distance than fifty (50) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or (3) that the witness is unable to attend to 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 witness by subpoena; or (5) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used;(d) If only part of a deposition is offered in evidence by a party, the adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.

The principle conceding admissibility to a deposition when the deponent is dead, out of the Philippines, or otherwise unable to come to court to testify, is consistent with another rule of evidence, found in Section 47, Rule 132 of the Rules of Court.

Sec. 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.

It is apparent then that the deposition of any person may be taken wherever he may be, in the Philippines or abroad. If the party or witness is in the Philippines, his deposition "shall be taken before any judge, municipal or notary public" (Sec. 10, Rule 24, Rules of Court). If in a foreign state or country, the deposition "shall be taken: (a) on notice before a secretary or embassy or legation, consul general, consul, vice-consul, or consular agent of the Republic of the Philippines, or (b) before such person or officer as may be appointed by commission or under letters rogatory" (Sec. 11, Rule 24).Leave of court is not necessary where the deposition is to be taken before "a secretary or embassy or legation, consul general, consul, vice-consul, or consular agent of the Republic of the Philippines," and the defendant's answer has already been served (Sec. 1 Rule 24). After answer, whether the deposition-taking is to be accomplished within the Philippines or outside, the law does not authorize or contemplate any intervention by the court in the process, all that is required being that "reasonable notice" be given "in writing to every other party to the action . . . (stating) the time and place for taking the deposition and the name and address of each person to be examined, if known, and if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. . . . " (Sec. 15, Rule 24). The court intervenes in the process only if a party moves (1) to "enlarge or shorten the time" stated in the notice (id.), or (2) "upon notice and for good cause shown," to prevent the deposition-taking, or impose conditions therefor, e.g., that "certain matters shall not be inquired into" or that the taking be "held with no one present except the parties to the action and their officers or counsel," etc. (Sec. 16, Rule 24), or(3) to terminate the process on motion and upon a showing that "it is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party" (Sec 18, Rule 24).Where the deposition is to be taken in a foreign country where the Philippines has no "secretary or embassy or legation, consul general, consul, vice-consul, or consular agent," then obviously it may be taken only "before such person or officer as may be appointed by commission or under letters rogatory. Section 12, Rule 24 provides as follows:

Sec. 12. Commission or letters rogatory. — A commission or letters rogatory shall be issued only when necessary or convenient, on application and notice, and on such terms and with such directions as are just and appropriate. Officers may be designated in notices or commissions either by name or descriptive title and letters rogatory may be addressed "To the Appropriate Judicial Authority in (here name the country)."

A commission may be defined as "(a)n instrument issued by a court of justice, or other competent tribunal, to authorize a person to take depositions, or do any other act by authority of such court or tribunal" (Feria, J., Civil Procedure, 1969 ed., p. 415, citing Cyclopedic Law Dictionary, p. 200). Letters rogatory, on the other hand, may be defined as "(a)n instrument sent in the name and by the authority of a judge or court to another, requesting the latter to cause to be examined, upon interrogatories filed in a cause pending before the former, a witness who is within the jurisdiction of the judge or court to whom such letters are addressed" (Feria, J., op. cit., citing Cyclopedic Law Dictionary, p. 653). Section

12, Rule 24 just quoted states that a commission is addressed to "officers . . . designated . . . either by name or descriptive title," while letters rogatory are addressed to some "appropriate judicial authority in the foreign state." Noteworthy in this connection is the indication in the Rules that letters rogatory may be applied for and issued only after a commission has been "returned unexecuted" as is apparent from Form 21 of the "Judicial Standard Forms" appended to the Rules of Court, which requires the inclusion in a "petition for letters rogatory" of the following paragraph, viz.:

xxx xxx xxx3. A commission issued by this Court on the ______ day of ______, 19__, to take the testimony of (here name the witness or witnesses) in (here name the foreign country in which the testimony is to be taken), before _________________ (name of officer), was returned unexecuted by __________________ on the ground that ____________, all of which more fully appears from the certificate of said __________ to said commission and made a part hereof by attaching it hereto (or state other facts to show commission is inadequate or cannot be executed) (emphasis supplied).

In the case at bar, the Regional Trial Court has issued a commission to the "Asian Exchange Center, Inc. thru Director Joaquin R. Roces" "to take the testimonies of . . . Kenneth H. Lee and Yeong Fah Yeh, by deposition (upon written interrogatories) . . . ." It appears that said Center may, "upon request and authority of the Ministry (now Department) of Foreign Affairs, Republic of the Philippines" issue a "Certificate of Authentications" attesting to the identity and authority of Notaries Public and other public officers of the Republic of China, Taiwan (eg., the Section Chief, Department of Consular Affairs of the latter's Ministry of Foreign Affairs) (Annex B of Annex N of the petition for review on certiorari) — a prima facie showing not rebutted by petitioner.It further appears that the commission is to be coursed through the Department of Foreign Affairs conformably with Circular No. 4 issued by Chief Justice Claudio Teehankee on April 6, 1987, pursuant to the suggestion of the Department of Foreign Affairs — directing "ALL JUDGES OF THE REGIONAL TRIAL COURTS, METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS IN CITIES, MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT TRIAL COURTS" "to course all requests for the taking of deposition of witnesses residing abroad through the Department of Foreign Affairs" to enable it and "the Philippine Foreign Service establishments to act on the matter in a judicious and expeditious manner;" this, "in the interest of justice," and to avoid delay in the deposition-taking.Petitioner would however prevent the carrying out of the commission on various grounds.The first is that the deposition-taking will take place in "a foreign jurisdiction not recognized by the Philippines in view of its 'one-China policy.'" This is inconsequential. What matters is that the deposition is taken before a Philippine official acting by authority of the Philippine Department of Foreign Affairs and in virtue of a commission duly issued by the Philippine Court in which the action is pending, and in accordance, moreover, with the provisions of the Philippine Rules of Court pursuant to which opportunity for cross-examination of the deponent will be fully accorded to the adverse party.Dasmariñas also contends that the "taking of deposition is a mode of pretrial discovery to be availed of before the action comes to trial." Not so. Depositions may be taken at any time after the institution of any action, whenever necessary or convenient. There is no rule that limits deposition-taking only to the period of pre-trial or before it; no prohibition against the taking of depositions after pre-trial. Indeed, the law authorizes the taking of depositions of

witnesses before or after an appeal is taken from the judgment of a Regional Trial Court "to perpetuate their testimony for use in the event of further proceedings in the said court" (Rule 134, Rules of Court), and even during the process of execution of a final and executory judgment (East Asiatic Co. v. C.I.R., 40 SCRA 521, 544).Dasmariñas further claims that the taking of deposition under the circumstances is a "departure from the accepted and usual judicial proceedings of examining witnesses in open court where the demeanor could be observed by the trial judge;" that it is "inherently unfair" to allow APL, "a foreign entity suing in the Philippines, to present its evidence by mere deposition of its witnesses away from the 'penetrating scrutiny' of the trial Judge while petitioner is obligated to bring and present its witnesses in open court subject to the prying eyes and probing questions of the Judge."Of course the deposition-taking in the case at bar is a "departure from the accepted and usual judicial proceedings of examining witnesses in open court where their demeanor could be observed by the trial judge;" but the procedure is not on that account rendered illegal nor is the deposition thereby taken, inadmissible. It precisely falls within one of the exceptions where the law permits such a situation, i.e., the use of deposition in lieu of the actual appearance and testimony of the deponent in open court and without being "subject to the prying eyes and probing questions of the Judge." This is allowed provided the deposition is taken in accordance with the applicable provisions of the Rules of Court and the existence of any of the exceptions for its admissibility — e.g., "that the witness if out of the province and at a greater distance than fifty (50) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or . . . that the witness is unable to attend to testify because of age, sickness, infirmity, or imprisonment, etc." (Sec. 4 Rule 24, supra, emphasis supplied) — is first satisfactorily established (See Lopez v. Maceren, 95 Phil. 754).The Regional Trial Court saw fit to permit the taking of the depositions of the witnesses in question only by written interrogatories, removing the proponent's option to take them by oral examination, i.e., by going to Taipei and actually questioning the witnesses verbally with the questions and answers and observations of the parties being recorded stenographically. The imposition of such a limitation, and the determination of the cause thereof, are to be sure within the Court's discretion. The ostensible reason given by the Trial Court for the condition — that the deposition be taken "only upon written interrogatories" — is "so as to give defendant (Dasmariñas) the opportunity to cross-examine the witnesses by serving cross-interrogatories." The statement implies that opportunity to cross-examine will not be accorded the defendant if the depositions were to be taken upon oral examination, which, of course, is not true. For even if the depositions were to be taken on oral examination in Taipei, the adverse party is still accorded full right to cross-examine the deponents by the law, either by proceeding to Taipei and there conducting the cross-examination orally, or opting to conduct said cross-examination merely by serving cross-interrogatories.One other word. In its Order of July 5, 1991 — denying Dasmariñas motion for reconsideration of the earlier order dated March 15, 1991 (allowing the taking of deposition by commission) — one of the reasons adduced by the Regional Trial Court for the denial was that the motion had been "filed out of time." Evidently, the Trial Court reached this conclusion because, as the record discloses, the motion for reconsideration was filed by Dasmariñas on June 25, 1991, twenty-five (25) days after notice (on May 20, 1991) of the Order of March 15, 1991 sought to be reconsidered. Denial of the motion on such a ground is incorrect. In the first place, it appears that there was a motion for extension of time to file

a motion for reconsideration, ending on June 25, 1991 which was however not acted on or granted by the Court. More importantly, the order sought to be reconsidered is an interlocutory order, in respect of which there is no provision of law fixing the time within which reconsideration thereof should be sought.PREMISES CONSIDERED, the Court Resolved to DISMISS the petition for review on certiorari. Costs against petitioner.SO ORDERED.