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[G.R. No. 151310.March 11, 2002]
SECURITY BANK CORP. vs. DEL ALCAZAR, et al.
THIRD DIVISION
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court dated MAR 11 2002 .
G.R. No. 151310(Security Bank Corporation vs. Erlinda Dungo del Alcazar, represented by her Attorney-In-Fact, Rufino S. Javier.)
Petitioner assails the resolution of the Court of Appeals upholding the regional trial court's order allowing the taking of the testimony of respondent and her witnesses by oral depositions before the legal officer of the Philippine Embassy in Los Angeles, California.
The present controversy stemmed from a complaint for damages filed by private respondent against petitioner after the latter had pre-terminated the contract of lease in violation thereof.
Apparently, on December 19, 1995, petitioner, represented by 2 of its vice presidents, entered into and executed a contract of lease over respondent's property to put up a branch of petitioner.The term of lease was for 10 years beginning June 1, 1995 until May 31, 2005.However, on October 26, 1998, respondent received a letter from petitioner informing her of petitioner's intention to pre-terminate said lease contract by December 31, 1998.In response, respondent reminded petitioner that under their lease contract, petitioner had no right to pre-terminate.In spite of this, petitioner went ahead and vacated the leased premises.On April 22, 1999, private respondent wrote a letter to petitioner demanding payment of arrearages amounting to P486,680.00 and rentals for the ensuing months.Petitioner refused to pay.Thus, a case for damages was filed with the regional trial court and in due course, respondent filed a Notice to Take Deposition by Oral Examination of respondent and 3 other witnesses all residing in Los Angeles, California, USA.
The trial court allowed the deposition taking over petitioner's opposition, prompting the latter to elevate the matter via a petition for certiorari to the Court of Appeals but the same proved to be unavailing.
Without seeking reconsideration, petitioner filed the instant petition.
The petition is not impressed with merit.
Petitioner's lone argument that since respondent filed her suit in the Philippines, she and her witnesses should appear before the trial court for direct and cross examination, deserves scant consideration.
Section 4 of Rule 24 of the Rules of Court is explicit:
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:
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(c)The deposition of a witness, whether or not aparty, 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.
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 he is 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) (Dasmari�as Garments, Inc. vs. Judge, et al, 225 SCRA 622.)
It is to be noted too that the order to take deposition is interlocutory in character and may not be questioned by certiorari.Indeed, petitioner is not deprived of its right to cross-examine the deponents nor of presenting countervailing testimony.
WHEREFORE , petition is denied due course.
SO ORDERED.
Very truly yours,
(Sgd.) JULIETA Y. CARREON
Clerk of Court
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