This treats of the petition for review on certiorari of the Court of Appeals' Decision and Resolution in CA G.R. SP No. 66252 dated 30 April 2002^[1] and 27 June 2002,^[2] respectively,  which set aside the Order of the Regional Trial Court (RTC) of Pasig City^[3] dated  10 May 2001, declaring an  application for insurance and an insurance policy as inadmissible evidence.

The facts of the case are undisputed.

On 15 March 1994, Viveca Lim Yu (private respondent) brought against her husband, Philip Sy Yu (petitioner), an action for legal separation and dissolution of conjugal partnership on the grounds of marital infidelity and physical abuse. The case was filed before the RTC of Pasig and raffled to Branch 158, presided by Judge Jose R. Hernandez.

During trial, private respondent moved for the issuance of a subpoena duces tecum and ad testificandum^[4] to certain officers of Insular Life Assurance Co. Ltd. to compel production of the insurance policy and application of a person suspected to be petitioner's illegitimate child.^[5]  The trial court denied the motion.^[6] It ruled that the insurance contract is inadmissible evidence in view of Circular Letter No. 11-2000, issued by the Insurance Commission which presumably prevents insurance companies/agents from divulging confidential and privileged information pertaining to insurance policies.^[7]  It added that the production of the application and insurance contract would violate Article 280^[8] of the Civil Code and Section 5 of the Civil Registry Law,^[9] both of which prohibit the unauthorized identification of the parents of an illegitimate child.^[10]  Private respondent sought reconsideration of the Order, but the motion was denied by the trial court.^[11]

Aggrieved, private respondent filed a petition for certiorari before the Court of Appeals, imputing grave abuse of discretion amounting to lack or excess of jurisdiction on the part of Judge Hernandez in issuing the 10 May 2001 Order.^[12]  The Court of Appeals summarized the issues as follows: (i) whether or not an insurance policy and its corresponding application form can be admitted as evidence to prove a party's extra-marital affairs in an action for legal separation; and (ii) whether or not a trial court has the discretion to deny a party's motion to attach excluded evidence to the record under Section 40, Rule 132 of the Rules of Court.^[13]

According to the Court of Appeals, private  respondent  was merely seeking the production of the insurance application and contract, and was not yet offering the same as part of her evidence.  Thus, it declared that petitioner's objection to the admission of the documents was premature, and the trial court's pronouncement that the documents are inadmissible,  precipitate.^[14]  The  contents of the insurance application and insurance documents cannot be considered as privileged information, the Court of Appeals added, in view of the opinion of the Insurance Commissioner dated 4 April 2001 to the effect that Circular Letter No.11-2000 "was never intended to be a legal impediment in complying with lawful orders".^[15]  Lastly, the Court of Appeals ruled that a trial court does not have the discretion to deny a party's privilege to tender excluded evidence, as this privilege allows said party to raise on appeal the exclusion of such evidence.^[16]  Petitioner filed a motion for reconsideration but to no avail.

In the present petition, petitioner argues that the Court of Appeals blundered in delving into errors of judgment supposedly committed by the trial court as if the petition filed therein was an ordinary appeal and not a special civil action.  Further, he claims that  the Court of Appeals failed to show any specific instance of grave abuse of discretion on the part of the trial court in issuing the assailed Order.  Additionally, he posits that private respondent had already mooted her petition before the Court of Appeals when she filed her formal offer of rebuttal exhibits, with tender of excluded evidence before the trial court.^[17]

For her part, private respondent  maintains that the details surrounding the insurance policy are crucial to the issue of petitioner's infidelity and his financial capacity to provide support to her and their children. Further, she argues that she had no choice but to make a tender of excluded evidence considering that she was left to speculate on what the insurance application and policy ruled out by the trial court would contain.^[18]

A petition for certiorari under Rule 65 is the proper remedy to correct errors  of jurisdiction  and  grave abuse of discretion tantamount to lack or excess of jurisdiction committed by a lower court.^[19]  Where a respondent does not have the legal power to determine the case and yet he does so, he acts without jurisdiction; where, "being clothed with  power to determine the case, oversteps his authority as determined by law, he is performing a function in excess of jurisdiction."^[20]

Petitioner claims that the Court of Appeals passed upon errors of judgment, not errors of jurisdiction, since it delved into the propriety of the denial of the subpoena duces tecum and subpoena ad testificandum.  The argument must fail.

While trial courts have the discretion to admit or exclude evidence, such power is exercised only when the evidence has been formally offered.^[21]  For a long time, the Court has recognized that during the early stages of the development of proof, it is impossible for a trial court judge to know with certainty whether evidence is relevant or not, and thus  the practice of excluding evidence on doubtful objections to its materiality should be avoided.^[22] As  well elucidated in the case of Prats & Co. v. Phoenix Insurance Co.:^[23]

Moreover, it must be remembered that in the heat of the battle over which he presides a judge of first instance may possibly fall into error in judging of the relevancy of proof where a fair and logical connection is in fact shown. When such a mistake is made and the proof is erroneously ruled out, the Supreme Court, upon appeal, often finds itself embarrassed and possibly unable to correct the effects of the error without returning the case for a new trial, a step which this court is always very loath to take. On the other hand, the admission of proof in a court of first instance, even if the question as to its form, materiality, or relevancy is doubtful, can never result in much harm to either litigant, because the trial judge is supposed to know the law; and it is its duty, upon final consideration of the case, to distinguish the relevant and material from the irrelevant and immaterial. If this course is followed and the cause is prosecuted to the Supreme Court upon appeal, this court then has all the material before it necessary to make a correct judgment.

In the instant case, the insurance application and the insurance policy were yet to be presented in court, much less formally offered before it.  In fact, private respondent was merely asking for the issuance of subpoena duces tecum and subpoena ad testificandum when the trial court issued the assailed Order.  Even assuming that the documents would eventually be declared inadmissible, the trial court was not then in a position to make a declaration to that effect at that point.  Thus, it barred the production of the subject documents prior to the assessment of its probable worth. As observed by petitioners, the  assailed Order was not a mere ruling on the admissibility of evidence; it was, more importantly, a ruling affecting the proper conduct of trial.^[24]

Excess of jurisdiction refers to any act which although falling within the general powers of the judge is not authorized and is consequently void with respect to the particular case because  the conditions under which  he was only authorized to  exercise his general power in that case did not exist and therefore, the judicial power was not legally exercised.^[25]  Thus, in declaring that the documents are irrelevant and inadmissible even before they were formally offered, much less presented before it, the trial court  acted in excess of its discretion.

Anent the issue of whether the information contained in the documents is privileged in nature, the same was clarified and settled by the Insurance Commissioner's opinion that the circular on which the trial court based its ruling was not designed to obstruct lawful court orders.^[26]  Hence, there is no more impediment to presenting the insurance application and policy.

Petitioner additionally claims that by virtue of private respondent's tender of excluded evidence, she has rendered moot her petition before the Court of Appeals since the move evinced that she had another speedy and adequate remedy under the law. The Court holds otherwise.

Section 40, Rule 132 provides:

Sec.40. Tender of excluded evidence. If documents or things offered in evidence are excluded by the court, the offeror may have the same attached to or made part of the record.  If the evidence excluded is oral, the offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony.

It is thus apparent that before tender of excluded evidence is made, the evidence must have been formally offered before the court.   And before formal offer of evidence  is made, the evidence must have been identified and  presented before the court. While private respondent made a "Tender of Excluded Evidence," such is not the tender contemplated by the above-quoted rule, for obviously, the insurance policy and application were not formally offered much less presented before the trial court.  At most, said "Tender of Excluded Evidence" was a manifestation of an undisputed fact that the subject documents were declared inadmissible by the trial court even before these were presented during trial.  It was not the kind of plain, speedy and adequate remedy which private respondent could have resorted to instead of the petition for certiorari she filed before the Court of Appeals. It did not in any way render the said petition moot.

WHEREFORE, premises considered, the petition is DENIED.  The Decision dated  30 April 2002  and Resolution dated 27 June 2002 are  AFFIRMED. Costs against petitioner.

SO ORDERED.

Puno, (Chairman), Austria-Martinez, and Callejo, Sr., JJ., concur.
Chico-Nazario, J., on leave.

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^[1] Rollo, pp. 36-45.

^[2] Id at 48-50.

^[3] Id. at 108-111.

^[4] CA Rollo, p. 47.

^[5] Rollo, p. 171.

^[6] Order dated 10 May 2001, id. 108-111.

^[7] Rollo, p. 109.

^[8] Art. 280.  When the father or the mother makes the recognition separately, he or she shall not reveal the name or the person with whom he or she had the child; neither shall he or she state any circumstance whereby the other person may be identified.

^[9] Act No. 3753, Section 5, fourth paragraph reads:

In case of an illegitimate child, the birth certificate shall be signed and sworn to jointly by the parents of the infant or only the mother if the father refuses.  In the latter case, it shall not be permissible to state or reveal in the document the name of the father who refuses to acknowledge the child or to give therein any information by which such father could be identified.

^[10] Rollo, p. 109.

^[11] Id. at  128.

^[12] Id. at  62-75.

^[13] Id. at  36.

^[14] Id. at 43 citing Rules 34- to 36 of  the Revised Rules on Evidence.

^[15] CA Rollo, p. 58.

^[16] Rollo, p. 45.

^[17] Id. at 30.

^[18] Id. at  262-264.

^[19] Sec. 1, Rule 65, Revised Rules on Civil Procedure.

^[20] Punzalan v. Dela Peña, G.R.  No. 158543, 21 July 2004, 434 SCRA 601, 609.

^[21] Sec. 34, Rule 132, Revised  Rules on Evidence:

Sec. 34. Offer of evidence.- The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified.

^[22] People v. Yatco, et al. ,97 Phil. 940, 946 (1955) citing Prats & Co. v. Phoenix Insurance Co., 52 Phil. 807 (1929).

^[23] 52 Phil. 807, 816-817 (1929).

^[24] Rollo, p. 316.

^[25] Broom v. Douglas, 175 Ala. 268,  57 S 860; Tengco v. Jocson, 43 Phil 716 (1922).

^[26] CA Rollo, p. 58.