Civil Case No. 931-94 for nullification of Contract to Sell Real Properties, Cancellation of Annotations on Transfer Certificates of Title and Damages was filed before the Regional Trial Court of Imus, Cavite City, by ASB Realty Corporation (ASB) and E. M. Ramos and Sons, Inc. (EMRASON) against Ayala Land, Inc. (ALI), Emerito B. Ramos, Jr., et al.^[1]

In its complaint, ASB alleged that on 21 May 1994, EMRASON, a real estate company which owns real estate properties in Dasmariñas, Cavite City, with a total area of 372 hectares, whose chairman and president is Emerito M. Ramos, Sr., with his wife, Susana B. Ramos, and children as stockholders, entered into a Letter-Agreement with ASB for the conditional sale of sixty-five percent (65%) of the said land for a consideration of P400,000,000.00 payable in five installments. However, ASB, through its president, Mr. Luke C. Roxas, received a letter from the children of Emerito Ramos, Sr., informing him that on 18 May 1994, they entered into a Contract to Sell said real estate properties with ALI.^[2] ASB confirmed the contract of the Ramos children with ALI when it found out that the same was annotated on the Transfer Certificates of Title of the real estate properties in dispute. This prompted ASB to file the Complaint dated 13 June 1994 before the trial court.^[3] ALI, thereafter, filed its Answer with Compulsory Counterclaim and Cross-claim.^[4]

Plaintiff ASB subsequently filed a Motion^[5] for Leave to take testimony by deposition upon oral examination of Emerito Ramos, Sr., citing Section 4(c), Rule 24 of the Revised Rules of Court stating that Emerito Ramos, Sr. was already 87 years old and although he was of sound mind there is always the possibility that he may not be able to testify on plaintiff's behalf in the course of the trial on the merits. In the Omnibus Order^[6] of the trial court dated 17 October 1994, plaintiff's motion was granted. ASB then obtained the deposition upon oral examination of Emerito Ramos, Sr. on six different occasions, to wit: 22 and 24 November 1994, 5, 8 and 16 December 1994, and 26 January 1995. Upon termination of Emerito Ramos, Sr.'s direct testimony by deposition, both plaintiffs and defendants agreed that the cross-examination be scheduled on 02, 10 and 15 February 1995.^[7] These dates were reset to 15 February 1995. However, on 30 January 1995, ALI filed a "Motion^[8] to Resolve Objections (In deposition proceedings with Omnibus Motion)" on the propriety, admissibility and conformity of the deposition proceedings to the Rules. Specifically, ALI sought rulings on its objections to leading questions, violations of the best-evidence rule, rule on presentation of secondary evidence, incompetence of the deponent, opinion rule, manner of presentation of evidence, and testimonies not forming part of the offer.^[9] As a consequence, the trial court, in an Order dated 14 February 1995, cancelled the cross-examination of Emerito Ramos, Sr.'s deposition scheduled on 15 February 1995.

On 05 May 1995,^[10] the trial court ruled on the objections of ALI sustaining some of its objections, overruling the others and upholding the propriety of the presentation of evidence made by plaintiff through deposition. In the same Order, the trial court directed the setting of the cross-examination of the deponent. ALI filed a Motion for Reconsideration of the Order setting the hearing of the case for cross-examination, which the trial court denied on 07 September 1995.^[11] The trial court again directed that the cross-examination of Emerito Ramos, Sr., be scheduled. The same was thus set on 06 October 1995. Before this date, however, ALI filed a Manifestation and Motion dated 02 October 1995 praying that the date set be cancelled and re-scheduled to another date.^[12] The trial court reset the hearing on 27 October 1995.

Thereafter, ALI filed before the Court of Appeals a Petition for Certiorari and Prohibition with urgent application for Temporary Restraining Order and Writ of Preliminary Injunction^[13] to restrain the public respondent, Judge Lucenito Tagle, from implementing the Order dated 07 September 1995 and to declare null and void and expunging the entire deposition proceedings taken in connection with Civil Case No. 931-94.^[14]

The Court of Appeals issued a Temporary Restraining Order dated 04 October 1995^[15] and later on, a Writ of Preliminary Injunction dated 14 November 1995^[16] pending resolution of the petition.

On 29 October 1996, the Court of Appeals rendered its decision^[17] denying due course and dismissing the petition of ALI. The Court of Appeals held:

In the instant case, Atty. Emerito Ramos, Sr. testified on matters of his personal knowledge, even if in the course of his testimony, he referred to certain documents in court, being the President and Chairman of EMRASON. In that capacity, he carried on negotiations relative to the sale of the Dasmariñas property. Indeed, "all persons who can perceive, and perceiving, can make known their perception to others, may be witnesses" (Sec. 20, Rule 130, Rules of Court).

Sec. 16, Rule 132, as contended by petitioner, is not applicable to the case at bench as Atty. Ramos was not refreshing his memory on a fact or transaction with the aid of memoranda. Rather, he was freely recollecting and testifying on matters within the ambit of his own personal competence, and merely referring to the letter that he received from Mr. Fernando Ayala, and another letter written by a Victor Manarang to his son, Emerito Ramos, Jr., both letters being now in his possession by reason of his duties as President and Chairman of EMRASON. (TSN, 05 December 1994, pp. 70-85)^[18]

ALI's Motion for Reconsideration was likewise denied by the Court of Appeals.

On 10 June 1999, Emerito Ramos, Sr. died at the age of 92 years old. Plaintiff then filed before the trial court a motion to introduce in evidence the deposition of Emerito Ramos, Sr.^[19] The motion was opposed by ALI.^[20] ASB filed its Reply.^[21] ALI thereafter filed its Rejoinder^[22] and ASB its Sur-rejoinder.^[23]

On 28 September 1999, the trial court issued its Order setting aside the opposition of ALI and admitting in evidence the deposition of Emerito Ramos, Sr.^[24] Motion for Reconsideration filed by ALI was denied in an Order dated 24 December 1999. ^[25] ALI again elevated the case to the Court of Appeals by way of Petition for Review on Certiorari^[26] under Rule 65 of the Rules of Court.

In a decision^[27] dated 31 January 2002, the Court of Appeals dismissed the petition for lack of merit. ALI filed a Motion for Reconsideration^[28] which was opposed^[29] by private respondents ASB and EMRASON. The motion was denied in a resolution dated 23 May 2002.^[30]

Hence this Petition.

The issues raised in the instant petition are the following:

1. WHETHER OR NOT THE ALLEGED DEPOSITION OF THE WITNESS EMERITO M. RAMOS, SR. IS ADMISSIBLE UNDER THE RULES.
   
   
2. WHETHER OR NOT PETITIONER HAD WAIVED ITS RIGHT TO CROSS-EXAMINE THE DEPONENT, EMERITO M. RAMOS, SR.
   
   
3. WHETHER OR NOT RESPONDENT APPELLATE COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT SUSTAINED THE RULING OF THE LOWER COURT IN FINDING THE DEPOSITION OF WITNESS EMERITO M. RAMOS, SR. AS ADMISSIBLE IN EVIDENCE.^[31]
   

The first issue is not novel. The same has been in fact passed upon twice by the Court of Appeals.

As defined, the term "deposition" is sometimes used in a broad sense to describe any written statement verified by oath. In its more technical and appropriate sense, the meaning of the word is limited to written testimony of a witness given in the course of a judicial proceeding in advance of the trial or hearing upon oral examination. A deposition is the testimony of a witness, put or taken in writing, under oath or affirmation, before a commissioner, examiner or other judicial officer, in answer to interlocutory and cross-interlocutory, and usually subscribed by the witnesses.^[32]

[A]nd the purposes of taking depositions are to: 1) Give greater assistance to the parties in ascertaining the truth and in checking and preventing perjury; 2) Provide an effective means of detecting and exposing false, fraudulent claims and defenses; 3) Make available in a simple, convenient and inexpensive way, facts which otherwise could not be proved except with great difficulty; 4) Educate the parties in advance of trial as to the real value of their claims and defenses thereby encouraging settlements; 5) Expedite litigation; 6) Safeguard against surprise; 7) Prevent delay; 8) Simplify and narrow the issues; and 9) Expedite and facilitate both preparation and trial.^[33]

In the case of Jonathan Landoil International Co., Inc. v. Mangudadatu, this Court instructs:^[34]

. . . Deposition is chiefly a mode of discovery, the primary function of which is to supplement the pleadings for the purpose of disclosing the real points of dispute between the parties and affording an adequate factual basis during the preparation for trial. The liberty of a party to avail itself of this procedure, as an attribute of 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."

Depositions maybe taken at anytime after the institution of any action, whenever necessary or convenient.^[35]

In this case, the trial court permitted the taking of Emerito Ramos, Sr.'s deposition chiefly because of his advance age which ground is considered valid and justified under the Rules of Court.^[36]

ALI contends that the prerequisites of a valid deposition were disregarded. It repeatedly insists that what transpired from 22 November 1994 to 26 January 1995 was simply a recordation of testimony of Emerito Ramos, Sr. intended to form part of a deposition for submission to the trial court but not a deposition itself considering that it never underwent the process of a valid deposition taken under Rules 23 and 132 of the Rules of Court, as the deposition was not completed, signed, certified, filed or offered before the court a quo, hence, under the Rules, considered incompetent evidence.^[37]

It must be noted that the depositions of Emerito Ramos, Sr., taken on the dates earlier mentioned, were substantially made in accordance with the requirements of the Rules. In fact, in its Petition before the Court of Appeals, ALI confirmed the taking of deposition on said dates and that it was duly represented by its counsel during the proceedings. As to whether the manner by which the deposition was taken faithfully complied with the requirements under the Rules of Court, it is not disputed that the deposition was taken inside the courtroom of the trial court, before the clerk of court. A stenographer was present, tape recorders and a video camera were even utilized to record the proceedings, in the presence of all the opposing counsels of record including ALI's.^[38] The following factual findings remain uncontroverted:

To reiterate, the deposition of the late Emerito Ramos, Sr. was taken inside the courtroom by the Clerk of Court in the presence of the parties and their lawyers, and the entire proceedings was transcribed by the stenographers of the Court. Thus, the requirements that the deposition has to be sealed, examined and signed by the deponent, and also certified, sealed and signed by the deposition officer would be, to the mind of the court, already superfluous. Strict compliance with the formal requirements of Rule 23 would hold true in cases of depositions taken outside the Court. As intimated earlier, the rules on discovery should not be unduly restricted; otherwise, the perceived advantage of a liberal discovery procedure in ascertaining the truth and expediting the disposal of litigation would be defeated. Be that as it may, the motion for reconsideration filed by defendant Ayala Land, Inc. is DENIED.^[39]

On the objection of ALI owing to the lack of signature of the deponent, it should be noted that a deposition not signed does not preclude its use during the trial. A deponent's signature to the deposition is not in all events indispensable since the presence of signature goes primarily to the form of deposition. The requirement that the deposition must be examined and signed by the witness is only to ensure that the deponent is afforded the opportunity to correct any errors contained therein and to ensure its accuracy.^[40] In any event, the admissibility of the deposition does not preclude the determination of its probative value at the appropriate time. The admissibility of evidence should not be equated with weight of evidence. The admissibility of evidence depends on its relevance and competence while the weight of evidence pertains to evidence already admitted and its tendency to convince and persuade.^[41]

This Court has observed that the trial court has painstakingly gone over every objection of ALI contained in its Motion dated 30 January 1995 and ruled on every single objection in the Order dated 05 May 1995 and these objections were again taken up in the Order of the trial court dated 07 September 1995. On this point, we find no compelling reason to disturb the conclusions arrived at by the trial court.

It has been repeatedly held that the deposition - discovery rules are to be accorded a broad and liberal treatment and 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,^[42] as in the case at bar.

The second and third issues raised by ALI are that it was denied an opportunity to cross-examine the deponent consequently resulting in its denial of due process. The records reveal that ALI was given more than enough opportunity to cross-examine the deponent and its failure to exercise such right is solely attributable to its own inaction. At this instance, ALI cannot feign prejudice and denial of due process. As echoed in several cases,^[43] due process is, in essence, simply an opportunity to be heard. The right to cross-examine is not an absolute one which a party can demand at all times. The right is a personal one which may be waived by conduct amounting to a renunciation of the right of cross-examination, thus, where a party has had the opportunity to cross-examine a witness but failed to avail himself of it, he necessarily forfeits the right to cross-examine.^[44] As rightly observed by the Court of Appeals:

Applying the foregoing precept in the light of the facts obtaining in the instant case, We are not inclined to indulge the PETITIONER in its argument that it was deprived of its constitutional right to due process. Verily, as may be readily gleaned from the records, the PETITIONER was afforded several opportunities to cross-examine the deponent ATTY. RAMOS. However, despite its knowledge of deponent's old age and frail health, PETITIONER chose to squander its right to subject under appropriate test the assertions raised by the witness in his deposition. It is worth noting that the PETITIONER, following the termination of the direct examination of the deceased ATTY. RAMOS, requested for a setting of the cross-examination. During the supposed date of cross-examination, however, instead of seizing the chance to exercise the right which they now all too belatedly invoke, PETITIONER moved for the postponement of the proceedings. After this Court ruled on its Motion to Resolve objections, the PETITIONER again moved for several times for the resetting of the cross-examination to future dates.^[45]

WHEREFORE, premises considered, the instant petition is DENIED for lack of merit. The Decision of the Court of Appeals dated 31 January 2002 and its Resolution dated 23 May 2002 are AFFIRMED. Costs against petitioner.

SO ORDERED.

Puno, (Chairman), Callejo, Sr., and Tinga, JJ., concur.
Austria-Martinez, J., no part.

---

^[1] Vol. 1, Records, pp. 1-4.

^[2] Annex C; Vol. 1, Records, p. 40.

^[3] Annex B; CA Rollo, pp. 27-40.

^[4] Annex B-1; CA Rollo, pp. 41-48.

^[5] Annex C; CA Rollo, p. 51.

^[6] Annex D; CA Rollo, pp. 55-60.

^[7] Vol. II, Records, p. 326.

^[8] Annex E; CA Rollo, p. 60.

^[9] CA Rollo, p. 95.

^[10] Annex G; CA Rollo, pp. 72-86.

^[11] Annex J; Rollo, pp. 130-134.

^[12] Annex K; CA Rollo, p. 135.

^[13] Docketed as CA-G.R. SP No. 38541.

^[14] Annex J; CA Rollo, pp. 92-104.

^[15] Per Justice Hector L. Hofilena with Justices Jainal D. Rasul and Oswaldo D. Agcaoili, concurring. Annex L; CA Rollo, p. 106.

^[16] Annex M; CA Rollo, p. 107.

^[17] Penned by Justice Antonio M. Martinez with Associate Justices Ricardo P. Galvez and Hilarion L. Aquino, concurring. Annex N; CA Rollo, pp. 109-114.

^[18] CA Rollo, pp. 113-114.

^[19] CA Rollo, pp. 115-133.

^[20] CA Rollo, pp. 135-139.

^[21] Rollo, pp. 504-512.

^[22] Rollo, p. 513.

^[23] Rollo, p. 517.

^[24] Annex P; Rollo, p. 523.

^[25] Annex Q-1; Rollo, p. 221.

^[26] CA-G.R. SP No. 57325.

^[27] Penned by Associate Justice Bienvenido L. Reyes with Justices Alicia Austria Martinez and Roberto A. Barrios, concurring. CA Rollo, pp. 267-276.

^[28] CA Rollo, p. 283.

^[29] CA Rollo, p. 298.

^[30] CA Rollo, p. 314.

^[31] Rollo, p. 713.

^[32] Mata v. Bayona, G.R. No. L-50720, 26 March 1984, 128 SCRA 388, citing 16 Am Jur. 699.

^[33] People v. Webb, G.R. No. 132577, 17 August 1999, 312 SCRA 573, 585-586.

^[34] G.R. No. 155010, 16 August 2004, 436 SCRA 559, 573, reiterating the earlier case of Republic v. Sandiganbayan, G.R. No. 90478, 21 November 1991, 204 SCRA 212.

^[35] Dasmariñas Garments, Inc. v. Reyes, G.R. No. 108229, 24 August 1993, 225 SCRA 622.

^[36] Rule 23, Section 4(c)(3) of the Rules of Court provides:


^[37] Memorandum, p. 16; Rollo, p. 718.

^[38] Vol. V, Records, p. 1216.

^[39] CA Rollo, pp. 271-272.

^[40] Will Docter Meat Co. v. Hotel Kingsway, 232 S. W. 2d 821; Ikerd v. Lapworth, 435 F., 2d 197; Smith v. Henwood, 349 Mo. 396, 161 S. W.2d 232; Hoyberg v. Henshe, 153 Mo. 63, 55 S.W. 83.

^[41] Permanent Savings and Loan Bank v. Velarde, G.R. No. 140608, 23 September 2004, 439 SCRA 1; PNOC Shipping and Transport Corporation v. Court of Appeals, G.R. No. 107518, 08 October 1998, 297 SCRA 402 ; De la Torre v. Court of Appeals, G.R. No. 102786, 14 August 1998, 294 SCRA 196.

^[42] Republic of the Philippines v. Sandiganbayan, G.R. No 90478, 21 November 1991, 204 SCRA 212.

^[43] BLTB v. Bitanga, G.R. No. 137934, 10 August 2001, 362 SCRA 635; Tubiano v. Razo, G.R. No. 132598, 13 July 2000, 335 SCRA 531; Orola v. Alovera, G.R. No. 111074, 14 July 2000, 335 SCRA 609; Central Pangasinan Electric Cooperative, Inc. v. Macaraeg, G.R. No. 145800, 22 January 2003, 395 SCRA 720.

^[44] De la Paz v. Intermediate Appellate Court, G.R. No. L-71537, 17 September 1987, 154 SCRA 65.

^[45] CA Rollo, p. 273.