Thursday, March 15, 2012

Dulay vs. Dulay (2005)

Facts: Rodrigo Dulay (respondent) filed a complaint against his nephew Pfeger Dulay (petitioner) for recovery of his bank deposit. In his complaint, Rodrigo alleged that he opened a trust account with the Bank of Boston (USA) naming Pfeger as his trustee. Unknown to him, Pfeger allegedly depleted the bank account without his consent. Since Rodrigo is in the US, he filed a petition for the issuance of letters rogatory in order to get his deposition and a representative from the Bank of Boston. Petitioner also filed with the court its motion to be allowed to do cross-examination of the witnesses on account of the written interrogatories filed by respondent. 

Unfortunately, there had been a considerable delay in taking the deposition of Rodrigo and the bank representative because the Massachusetts Court brushed aside the letters rogatory sent to it by the Philippine court hearing the case. Depositions were eventually taken through a notary public in New York. But said depositions were not admitted automatically. The Philippine Court also required Rodrigo to submit an authentication by the Philippine Consulate in New York of said depositions and a certification of the notary public’s authority. Said authentication was subsequently submitted by Rodrigo. Because of these delays in obtaining the depositions, Pfeger filed an omnibus motion praying for the dismissal of the case due to failure to prosecute. In said motion, he also questioned the validity of the depositions for lack of substantial compliance with Rule 23, secs. 11, 12 and 14, since it was a notary public in New York and not the clerk of court in Boston, which took the depositions. 

(1) Whether or not the case for recovery of bank deposits must be dismissed for failure to prosecute. 

(2) Whether or not the depositions taken are inadmissible for non-compliance with Rule 23. 

(1) NO, the case should not be dismissed for failure to prosecute. Respondent cannot be faulted for the resultant delay brought about by the brushing aside of the Court in Boston of the letters rogatory sent by the Phil. Court involved in this case. Neither can the trial court be faulted for allowing the admission of the depositions taken not in strict adherence to its original directive, nor for directing the petitioner to have the depositions authenticated. Obviously, it was not within the trial court’s power, much less the respondent’s to force the Clerk of Court of Boston to have the deposition taken before it. It would be illogical and unreasonable to expect respondent to comply with the letters rogatory without the cooperation of the very institution or personality named in the letters rogatory and requested to examine the witnesses. After all, while a court had the authority to entertain a discovery request, it is not required to provide judicial assistance thereto. This reality was recognized by the trial court when it ordered respondent to have the questioned depositions authenticated by the Philippine consulate. 

(2) NO, the depositions taken are not invalid. In our jurisdiction, depositions in foreign countries may be taken: (a) on notice before a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the Republic of the Philippines; (b) before such person or officer as may be appointed by commission or under letters rogatory; or (c) before any person authorized to administer oaths as stipulated in writing by the parties. While letters rogatory are requests to foreign tribunals, commissions are directives to officials of the issuing jurisdiction. 

Generally, a commission is an instrument issued by a court of justice, or other competent tribunal, directed to a magistrate by his official designation or to an individual by name, authorizing him to take the depositions of the witnesses named therein, while a letter rogatory is a request to a foreign court to give its aid, backed by its power, to secure desired information. Commissions are taken in accordance with the rules laid down by the court issuing the commission, while in letters rogatory, the methods of procedure are under the control of the foreign tribunal. Leave of court is not required when the deposition is to be taken before a secretary of 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. However, if the deposition is to be taken in a foreign country where the Philippines has no secretary of embassy or legation, consul general, consul, vice-consul or consular agent, it may be taken only before such person or officer as may be appointed by commission or under letters rogatory. 

In the instant case, the authentication made by the consul was a ratification of the authority of the notary public who took the questioned depositions. The deposition was, in effect, obtained through a commission, and no longer through letters rogatory. It must be noted that this move was even sanctioned by the trial court by virtue of its Order dated 28 September 2000. With the ratification of the depositions in issue, there is no more impediment to their admissibility. Besides, the allowance of the deposition cannot be said to have caused any prejudice to the adverse party. They were given the opportunity to cross-examine the witnesses through their cross-interrogatories, which were in turn answered by the deponents. Save for the complaint of delay in the proceedings, petitioners were unable to point out any injury they suffered as a result of the trial court’s action. 

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1 comments: on "Dulay vs. Dulay (2005)"

Anonymous said...

check the stated 2nd issue, is it ''inadmissible'' or ''admissible''?

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