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475 PHIL. 410


[ G.R. No. 141857, June 09, 2004 ]




This is a petition for review on certiorari of the Decision[1] of the Court of Appeals in CA-G.R. SP No. 46035 dismissing the petition for certiorari and prohibition filed by the petitioners, which assailed the July 17, 1997, August 27, 1997 and October 29, 1997 Orders of the Regional Trial Court of Cebu City, Branch 11 in Civil Case No. CEB-9224.

The Antecedents

On July 19, 1990, petitioners Rodson Philippines, Inc., Eurasia Heavy Industries, Inc., Autographics, Inc. and Peter Y. Rodriguez, filed a Complaint[2] for damages against respondent Eastar Resources (Asia) Corporation with the Regional Trial Court of Cebu City, Branch 7, then presided by Judge Generoso A. Juaban. The case was docketed as Civil Case No. CEB-9224.

The respondent, in its Answer,[3] denied all the material averments of the complaint and interposed a compulsory counterclaim amounting to P29,000,000.

After the requisite pre-trial and without the parties having settled the case amicably, a full-blown trial on the merits ensued.

After the presentation of Peter Y. Rodriguez and Yolanda Lua as witnesses, the petitioners filed their formal offer of evidence on September 3, 1993. The petitioners rested their case after their documentary evidence was admitted by the court. The respondent then presented one witness, Mary C. Maquilan. On March 29, 1994, the respondent prayed for time to make their formal offer of evidence. The court granted the respondent’s motion and gave it a period of fifteen (15) days to do so. The court then granted the petitioners a period of ten (10) days from service of the said formal offer within which to file their comment thereon.

The petitioners declared in open court that they would be presenting rebuttal evidence, and prayed that the hearing for the said purpose be set at 9:00 a.m. of May 4, 1994.[4] The case was reset to June 1, 1994.

The petitioners changed their original counsel and retained a new one, Atty. Purita Hontanosas-Cortes, the sister of their original counsel.[5]

In the meantime, the respondent filed its formal offer of evidence and sent a copy thereof to the petitioners on June 1, 1994. When the case was called for the presentation of the petitioners’ rebuttal evidence on the said date, the new counsel for the petitioners manifested her desire to recall the respondent’s witness, Mary Maquilan, for further cross-examination. She reasoned that she was not satisfied with the cross-examination of the previous counsel, and asked for time to file the necessary motion. The court granted the same, and gave her fifteen (15) days to do so. The court also gave the respondent a period of ten (10) days from receipt thereof within which to file its comment or opposition. The court held in abeyance the resolution of the respondent’s formal offer of evidence until such time that the petitioners’ motion to recall Maquilan for further cross-examination was resolved. On June 24, 1994, the petitioners filed their motion to recall Maquilan as a witness for further cross-examination.[6]

In the meantime, Judge Juaban retired from the government service. Acting Presiding Judge Andres C. Garalza, Jr. issued an order giving the respondent a final period of seven (7) days from notice within which to file its written comment on the petitioners’ motion to recall Maquilan.[7]

Thereafter, Judge Martin A. Ocampo was appointed presiding judge of the RTC of Cebu City, Branch 7. The hearing of the petitioners’ motion to recall the witness was set for hearing on March 26, 1996. During the hearing, the counsel for the petitioners called the attention of the court to the fact that they had not yet filed their comment on the respondent’s formal offer of evidence because of the pending incident. The court, for its part, declared that a formal offer of evidence was premature, precisely because of such pending incident. Thus:

Just for a while, Your Honor …You see one of the questions which would be propounded to her in the event that the request for cross-examination will be granted to recall the witness is whether before charges were made to the plaintiffs a compliance with Republic Act 376665 (sic) made. Under this Act, your Honor …


You can cross-examine her on that when you subpoena her.


Yes, Your Honor. Your Honor please, if she will be summoned back as rebuttal witness I cannot go straight. I still have to –


You can cross-examine her because she is a hostile witness.


Yes, Your Honor. But before we do that since there is a formal offer of evidence submitted by the defendant -


The Court has not yet ruled on that.


We don’t have a Comment yet as to their formal---


Because the Court has not yet ordered you to comment precisely because of this pending Motion. If there is still presentation of evidence then this will be premature. The offer of evidence is premature. That is why the Court has not yet considered it. On the other hand, if there will be additional evidence, they can amend this. You have to amend this because there is additional evidence.


So far, Your Honor, as I have said, it is not us who will be offering additional evidence. We will relie (sic) on what we have formally offered and we will rise and fall on the basis of our evidence. Now, the point here, Your Honor please, is to show to the Honorable Court that counsel is coming up with an issue which has not been raised in this case is to cross-examine Mary Maquilan on the basis of Republic Act 37665 (sic) which is not an issue in this case. The point here is this ----


Are we not putting the cards here? We are objecting to the proposed testimony of this witness when she has not been in the witness stand. You object when the questions are propounded.


Your Honor please, the point here is counsel would like to recall my client to the witness stand after the termination.


But we cannot tie their hands to what they should ask and what they should not ask.

COURT (continuation)

You may object when time comes.


With due respect, Your Honor, if my memory is right, it is very clear that the recall of witness is always govern (sic) by the Rules of materiality of evidence and competency, Your Honor.


That is why the Court is denying the Motion to Recall for cross-examination. But the Court will allow her to subpoena her as their hostile witness, in the course of rebuttal.


I submit, Your Honor, that’s the best remedy.


Provided, of course, they will have to pay the expenses.


Your Honor please, with all candidness I adhere to the ruling of the Court.


Are you going to bind with the Court the production of the witness? Because you manifested in your latest pleading that you may not know about the whereabouts of your client. You are trying to -----


Madam counsel, I don’t have control over Mary Maquilan. That was ten (10) years ago.


The Court will issue subpoena.


Your Honor please, that my contention while (sic) if there will be delay in the submission of its Comment and the former Presiding Judge of this Court would not resolve my pending Motion for Recall. It took him eight (8) months under the original period and then in the second period of forty (40) days all in excess of the periods given by the Court.[8]
After the hearing, the court issued an order denying the petitioners’ motion to recall Maquilan as witness for additional cross-examination, without prejudice to the petitioners’ recalling the latter as a hostile witness on the presentation of its rebuttal evidence.

In the meantime, the petitioners failed to file their comment on the respondent’s formal offer of evidence. The court, likewise, failed to resolve the said incident despite the denial of the petitioners’ motion to recall Maquilan for additional cross-examination.

On April 1, 1996, the trial court sent a subpoena ad testificandum to Maquilan, requiring her to appear before the court and to testify as a hostile rebuttal witness for the petitioners at 9:00 a.m. on June 17 and 18, 1996. The respondent filed its urgent motion to quash the subpoena on the ground that the witness was a resident of Quezon City, which was more than fifty (50) kilometers away and, as such, could not be compelled to testify under Section 9 of Rule 23 of the Revised Rules of Court.[9]

During the hearing on June 17, 1996, the trial court expressed doubts as to whether it could compel Maquilan to appear before the court, considering that she was a resident of Quezon City which is more than fifty (50) kilometers from the venue of trial.[10]

Because of the adverse rulings they had been receiving from the trial court, the petitioners manifested that they would file a motion to inhibit the judge from further hearing the case, and to have the case re-raffled to another branch. The court welcomed such motion, if only to put the petitioners’ mind at rest.[11]

In its Order[12] dated August 19, 1996, Judge Martin A. Ocampo inhibited himself from further hearing the case and ordered the transmittal of the records of the case to the Office of the Executive Judge for re-raffle.

The case was re-raffled to the RTC of Cebu City, Branch 11, presided by Judge Isaias P. Dicdican. After a review of the records, the trial court discovered that the petitioners’ motion to recall Mary Maquilan had already been denied; that the petitioners had not yet filed their comment on the respondent’s formal offer of documentary evidence; and, that the said formal offer of evidence had not yet been resolved by the court. On July 17, 1997, the trial court issued an Order[13] admitting the respondent’s documentary evidence for the purposes they were offered. The court also set the continuation of the trial for the presentation of the petitioners’ rebuttal evidence to 8:30 a.m. of August 27, 1997.[14]

On August 25, 1997, the petitioners filed a Motion to Defer the Hearing Set on August 27, 1997,[15] and prayed that they be given a chance to file their written objection to the formal offer of evidence filed by the respondent. The trial court denied the motion, per its Order dated August 27, 1997. The trial court ruled that the ten-day period given to the petitioners per its Order of March 29, 1994 had long since elapsed. It emphasized that the order holding in abeyance its ruling on the respondent’s formal offer of evidence did not toll the ten-day period for the filing of the petitioners’ comment thereon.

The petitioners filed a motion for the reconsideration of the order. The trial court denied the said motion in an Order dated October 29, 1997.

The petitioners, thereafter, filed a petition for certiorari[16] and prohibition with the Court of Appeals, assailing the orders of the RTC, with a prayer for the issuance of a restraining order directing the public respondent RTC to refrain from proceeding with the scheduled hearing of the case and other subsequent settings thereof. The petitioners defined the issue raised by it in the petition as follows:
The respondent was required to file its Comment on the petition. Such Comment was filed beyond the period provided therefore; however, the CA still admitted the same.

On October 22, 1999, the appellate court rendered its assailed Decision and dismissed the petition for being devoid of merit. The petitioners’ motion for reconsideration suffered the same fate and was denied by the appellate court.

The Issues

In the present recourse, the petitioners raise the following issues:



On the first issue, the petitioners contend that the trial court committed a grave abuse of its discretion amounting to excess or lack of jurisdiction when it resolved the respondent’s formal offer of evidence and admitted such documentary evidence before they could file their comment or opposition thereto. They aver that although they had until June 12, 1996, per the trial court’s Order of March 26, 1996, within which to file their comment on such formal offer of evidence, the said period was suspended because of their motion to recall Maquilan as a witness for further cross-examination. They assert that during the hearing of March 26, 1996, the petitioners called the attention of the court to the fact that they had not yet filed their comment on the respondent’s formal offer of evidence, and that the court declared that there was no need for them to do so as yet because of the unresolved motion. They emphasized that even after the court denied their motion to recall Maquilan as witness and ordered them to present her as a hostile witness on rebuttal evidence, the court still failed to resolve the respondent’s formal offer of evidence.

In overruling the contention of the petitioners, the Court of Appeals ratiocinated, thus:
… Going by the records, however, the petitioners were amply accorded the chance and/or opportunity to register their objections to the private respondent’s offer of evidence. For as early as May 27, 1994, the petitioners were already charged with knowledge or notice that they were being required to file their comments and/or objection to the offer of evidence. Nevertheless, it appears that action on the offer was put on hold pending the resolution of the motion to recall a witness. Resultantly, since the disposition of the motion to recall was made the condition sine qua non for further action on the private respondent’s offer of evidence, the petitioners should have lost no time in submitting their comment to the offer once, or as soon as the court denied on March 29, 1996, their motion to recall Ms. Maquilan for further cross-examination. To be sure, the petitioners should not have experienced any difficulty in complying with this order, given the undisputed fact that, counting from May 27, 1994, they had no less than twenty solid months to do so. As it was, the petitioners complacently took their own sweet time, so to speak, apparently secure on their assumption --which turned out to be a bit erroneous—that there was a standing order from Judge M.A. Ocampo to defer action on the offer of evidence. We have earnestly scoured the records in search of the aforementioned order, however, and have found none at all. Of course, we have also carefully reviewed the stenographic notes of the March 27, 1996 hearing which, in fine, indicated that the petitioners’ counsel asked for time to submit their comment/objection to the offer of evidence, and that Judge M.A. Ocampo declined to act on the same. Simply put, the petitioners have made capital of Judge M.A. Ocampo’s disinclination, failure, or inability to act on the private respondent’s offer of evidence, and invoked this as justification for their non-submission of the comment. The petitioners, however, advertently refused to recognize, or seemed to have minimized the fact that, by asking Judge M.A. Ocampo for another period of time to submit their comment, they had, in effect if not in fact, cleverly prolonged the proceedings in this case, as though to show that the period of twenty months or so, reckoned from May 27, 1994, was not yet sufficient and enough time to enable them to submit the comment/objection to the private respondent’s offer of evidence.
At this juncture, We adopt the ratiocination of the private respondent, to wit—
“The Order of the trial court dated 1 June 1994 (Annex ‘2’ hereof) merely stated that ‘in the interim,’ meaning, from the filing of petitioners’ motion to recall witness up to the time the trial court would rule on the same, it would hold action on private respondent’s formal offer.

“The petitioners filed their Motion to Recall Witness only on 21 June 1994, which was way beyond the original period given.

“Therefore, when petitioners filed the said motion to recall, there was no more period to suspend as it had long expired on 12 June 1994.”
It would, thus, appear that even during the time that the petitioners were supposed to file their motion to recall, they had already played fast and loose with court processes. Even then, as correctly argued by the respondent, there was actually no more time to suspend, as it had long expired on June 12, 1997, for which reason the respondent’s formal offer of documentary evidence was truly ripe for resolution. Hence, We hold, that far from gravely abusing his discretion, the respondent judge acted prudently and judiciously when he declared in his second assailed order that ---
“The Court would stand by its order issued on July 17, 1997 that it was perfectly all right for it to proceed to act on the defendant’s formal offer of documentary evidence, as there’s no more legal obstacle for it to do so.”
Indeed, His Honor exhibited a circumspect and attentive awareness of the antecedent and attendant circumstances surrounding the case. In contrast to the posture of petitioners, His Honor displayed the better part of sound legal discretion in issuing the assailed orders, as these effectively put a halt to the pernicious and dilatory tactics and maneuverings, of litigants,---or their counsel---which are anathema in this age of clogged court dockets.[19]
The Ruling of the Court

We agree with the Court of Appeals.

We note that the petitioners failed to append to their petition at bar a copy of their motion for reconsideration of the July 17, 1997 Order of the trial court, admitting the documentary evidence offered by the respondent. The said pleading is very relevant in this case, because we could there discern if the petitioners had prayed for a chance to file their comment on or opposition to the admission of the respondent’s documentary evidence, and incorporated therein their objections to the said motion, if any. The petitioners are required, under the second paragraph of Section 1, Rule 65 of the Rules of Court, to append to their petition a copy of the said motion for reconsideration. Under Section 3, Rule 46 of the Rules of Court, the petitioners’ failure to comply with the second paragraph of Section 1, Rule 65 shall be sufficient ground for the dismissal of the petition.

Even considering the merits of the case, the petition must still fail.

We join the Court of Appeals in ruling that the trial court did not commit a grave abuse of its discretion amounting to excess of or without jurisdiction in issuing the assailed orders. By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, and it must be shown that the discretion was exercised arbitrarily or despotically. For certiorari to lie, there must be a capricious, arbitrary and whimsical exercise of power, the very antithesis of the judicial prerogative in accordance with centuries of both civil law and common law traditions19

Irrefragably, the petitioners had until June 12, 1994 within which to file their comment on the respondent’s formal offer of evidence. The ten-day period within which to file such comment was not suspended by the filing and, thereafter, the pendency of the petitioners’ motion to recall Maquilan as a witness for additional cross-examination. What was merely suspended by such motion was the trial court’s resolution of the respondent’s formal offer of evidence. The petitioners failed to file their comment within the period therefor.

Indeed, Judge Martin Ocampo erred in declaring that the respondent’s formal offer of evidence was prematurely filed, and that the petitioners need not yet file their comment thereon because of the petitioners’ unresolved motion. The respondent had already presented its lone witness, Maquilan, who already testified on direct and cross-examination. Hence, the respondent was obliged to formally offer its documentary evidence as provided by Section 35, Rule 132 of the Revised Rules on Evidence:
SEC. 35. When to make offer. – As regards the testimony of a witness, the offer must be made at the time the witness is called to testify.

Documentary and object evidence shall be offered after the presentation of a party’s testimonial evidence. Such offer shall be done orally unless allowed by the court to be done in writing.
Assuming for the nonce that the petitioners believed in good faith the declaration of Judge Ocampo that they could file their comment after the trial court had resolved their pending motion to recall Maquilan for further cross-examination, the records show that the court denied the said motion on March 26, 1996. It then behooved the petitioners to file their comment on the respondent’s formal offer of evidence after receipt of the said order, or soon thereafter. The petitioners failed to do so. It was only, after receiving the trial court’s Order dated July 17, 1997, admitting the documentary evidence of the respondent, after the lapse of more than one year that the petitioners “awakened” and complained of having been deprived of their right to file their comment on such formal offer of evidence. Even then, the petitioners could have filed a motion for the reconsideration, appending thereto their comment/opposition to the respondent’s documentary evidence. The petitioners did not do so. If they had appended such opposition to their motion for reconsideration, the trial court could have reviewed the same, and, thereafter, even reconsider its July 17, 1997 Order. A denial thereon could then have been raised before the Court of Appeals, as the appellate court would be able to determine whether or not the trial court, in denying such motion for reconsideration, committed a grave abuse of its discretion.

The petitioners complain that, with the trial court’s admission of the respondent’s documentary evidence in the absence of their comment thereon, they are apt to lose P29,000,000 on the respondent’s counterclaim. They contend that such loss would be a grave injustice to them. Hence, the petitioners argue that the CA should have granted their petition.

We do not agree. It bears stressing that the petitioners still have the right to adduce rebuttal evidence to controvert or overcome the probative weight of the respondent’s documentary evidence. Moreover, since the petitioners were aware that the respondent had a counterclaim of P29,000,000, it behooved them to observe diligence and vigilance in filing their comment without delay. However, by their own negligence, the petitioners failed to file the said comment. As such, the petitioners are not entitled to a writ of certiorari to shield themselves from their own omission and negligence. It must be stressed that he who comes to court for equitable relief must do so with clean hands.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED DUE COURSE and is hereby DISMISSED. Costs against the petitioners.


Puno, (Chairman), Quisumbing, Austria-Martinez, and Tinga, JJ., concur.

[1] Penned by Associate Justice Renato C. Dacudao with Associate Justices Salvador J. Valdez, Jr. and Mariano M. Umali concurring.

[2] Rollo, p. 74.

[3] Id. at 80.

[4] Id. at 237.

[5] Id. at 238; see also Rollo, p. 253.

[6] Id. at 146.

[7] Id. at 43.

[8] CA Rollo, pp. 149-152.

[9] Rollo, p. 184.

[10] Id. at 188.

[11] Ibid.

[12] Id. at 239-241.

[13] Id. at 70-71.

[14] Id. at 71.

[15] Id. at 190-191.

[16] CA Rollo, p. 2.

[17] Id. at 7.

[18] Rollo, p. 26.

[19] Rollo, pp. 46-48.

[19] Purefoods Corporation v. National Labor Relations Commission, 171 SCRA 415 (1989).

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