Written-report-on-sec-7-rule-24.docx

Joshua John O. Alaan LE 105 WRITTEN REPORT ON SECTION 7, RULE 24 OF THE RULES OF COURT Provision: Section 7. Depositions pending appeal. – If an appeal has been taken from a judgment of a court, including the Court of Appeals in proper cases, or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of depositions of witnesses to perpetuate their testimony for use in the event of future proceedings in the said court. In such case the party who desires to perpetuate the testimony may make a motion in the said court for leave to take the depositions, upon the same notice and service thereof as if the action was pending therein. The motion shall state (a) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each; and (b) the reason for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these Rules for depositions taken pending actions. Objective The depositions are taken pending appeal with a view to their being used in the event of futher proceedings in the court of origin or in the appellate court. In other words, depositions pending appeal are taken in anticipation of the conduct of a further hearing or trial either in the court which rendered the final judgment relative to a case or in the appellate court and it has for its purpose the perpetuation of testimony of witnesses. Hence this type of deposition is a deposition in perpetuam rei memoriam. Overview of the Provision I. Q: How is deposition pending appeal being made? A: If an appeal has been taken from a judgment of a court, including the Court of Appeals in proper cases, or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may:

i. Allow the taking of depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the said court  The court referred to in Section 7 includes the Municipal Trial Court, Regional Trial Court and the Court of Appeals in proper cases.  The period within which the motion for leave of court to take depositions pending appeal is the 15-day period from notice of final judgment or order rendered by the court. The filing of the said motion may either be: a. An appeal has already been made with regard to a judgment rendered by a particular court; and b. Before the taking of an appeal, provided that the time within which appeal is to be filed has not yet expired.  In the ruling of the Supreme Court in the case of Dasmarinas Garments v. Reyes (G.R. No. 108229, August 24, 1993), the Court affirmed the taking of depositions pending appeal. In the said case, the petitioner Dasmarinas Garments contended that the taking of depositions should only take place within the pre-trial phase or before the pre-trial phase and that any deposition taken outside of the said periods should no longer be considered by the court. The Supreme Court held that the petitioner’s contention is unmeritorious to wit: “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"  Illustrative Example: The Municipal Trial Court rendered judgment in an unlawful detainer case on February 20, 2019. The said court ruled against ABC, the defendant. ABC received the notice of MTC’s judgment on February 27, 2019. In this case, ABC, should it desire the taking of depositions of witnesses, has up to March 14, 2019 to file a motion in the said court for leave to take the depositions

Notably, March 14, 2019 is the last day of the 15-day period from notice of final judgment rendered by the Municipal Trial Court. II. Q: What are the requirements in the taking of depositions pending appeal? A: In such case the party who desires to perpetuate the testimony may: i. Make a motion in the said court for leave to take the depositions; ii. Notice or service thereof as if the action was pending therein.  The taking of depositions pending appeal necessitates the permission of the court by the filing of motion for leave of court to take depositions.  The second requirement necessitates cross-reference to Section 21 and Section 22 of Rule 23 which provide to wit: Section 21. Notice of filing.- The officer taking the deposition shall give prompt notice of its filing to all the parties Section 22. Furnishing copies.- Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent. Knowing that a motion for leave to take depositions pending appeal is necessary, let us examine the contents of the said motion. III. Q: What are the contents of the motion for leave? A: The motion for leave must contain the following: i. The names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each; and ii. The reason for perpetuating their testimony  The prospective deponent should be identified in the motion and such identification must specify the substance of the testimony which the movant expects to elicit from him.  The reason for perpetuating the testimony must also be included so that the court may determine on whether or not the taking of deposition may prevent failure or delay of justice.

After the filing of the motion for leave, the court will act accordingly relative to the same. IV. Q: What are the actions of the court on the motion? A: If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may: i. ii.

Make an order allowing the depositions to be taken; and The depositions may be taken and used in the same manner and under the same conditions as are prescribed in the Rules for depositions taken in pending action.  The second item (item ii.) requires cross-reference to Section 4 of Rule 23. The said section provides to wit: “Section 4. Use of depositions.- At the trial or upon the hearing of a motion or an interlocutory proceeding, any part 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 one 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 of 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 resides at a distance more than one hundred (100) 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 or 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; and

(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.” Applicability of the Rule to Criminal Cases In his separate opinion in the case of People v. Webb, G.R. No. 132577, 1999, citing Justice Regalado, Justice Davide stated the applicability of Section 7, Rule 24 of the Rules of Court to criminal cases to wit: “This Section, which was formerly Section 7 of Rule 134, applies to criminal cases. (REGALADO F.D., REMEDIAL LAW COMPENDIUM, vol. 1, 1997 ed., 322). According to Justice Regalado the procedure in Section 7 is available in all actions, including criminal cases. In addition, Justice Davide stated that certain provisions in Civil Procedure may be suppletorily applied in criminal cases such as that of Section 7 Rule 24 in case of silence in the Rules of Criminal Procedure.