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ANNOTATION

FAILURE TO MAKE AN OFFER OF EVIDENCE: A FATAL OMISSION?


By
ROGELIO E. SUBONG*
_______________

I.Introduction, p. 409
II.Offer of Evidence Defined, p. 411
1.Legal basis and meaning of formal, p. 411
2.Offer of documentary/object (real) evidence and offer of testimonial evidence, p.
413
3.Tenor of oral and written offers of evidence, p. 414
III.Offer of Evidence Distinguished From Offer of Proof, p. 416
IV.Rationale of Offer of Evidence, p. 418
V.Pertinent Cases on Offer of Evidence, p. 418
a)De Castro vs. CA, 75 Phil. 824 (1946), p. 418
b)Alcaraz vs. Racimo, 125 SCRA 328 (1983), p. 419
c)Veran vs. CA, 157 SCRA 438 (1988), p. 420
d)People vs. Villapaa, 161 SCRA 72 (1988), p. 420
VI.Failure to Offer is Fatal; Exceptions, p. 421
1.Exceptions in American jurisdiction, p. 422
2.Exceptions in Philippine jurisdiction, p. 423
a)People vs. De Roxas, 6 SCRA 666 (1962), p. 423
b)People vs. Tanjutco, 23 SCRA 361 (1968), p. 424
c)Bravo, Jr. vs. Borja, 134 SCRA 466 (1985), p. 424
VII.Failure to Offer Before Administrative Bodies, p. 425
VIII.The Case Under AnnotationSps. Renato Ong and Francia N. Ong vs. CA,
supra, p. 427
__________________

* A.B. (UP) 62 & LL.B (UP) 66; Member, SCRA, Editorial Staff.
409

VOL. 301, JANUARY 21, 1999


409
Failure to Make An Offer of Evidence: A Fatal Omission?
IX.Some Observations, p. 429
a)Supreme Court is consistent with settled rule, p. 429
b)Could the appellate courts still hold Inland Trailways liable even if it did not appeal
the trial court decision?, p. 429
c)Was there a misjoinder of causes of action in the complaint filed by the plaintiffs?,
p. 431
IX.Conclusion, p. 433
_________________

I. Introduction
The rules on evidence aim to search for the truththe so-called judicial truth or
courtroom truth which is elicited from the body of evidence that has crossed the
barrier of exclusion before courts of law. Evidence is the means sanctioned by
these rules, of ascertaining in a judicial proceedings the truth respecting a matter of
fact. (Rule 128, Sec. 1). Under the Rules of Court, evidence is viewed as a
procedure of finding or ferreting out the truth before the courts or in a judicial
proceeding between or among conflicting versions of the facts as presented by
the parties. It is also a process of determining what evidence may or may not be
admitted as tested against the proper procedure of presenting testimonial and
documentary/object (real) evidence and against the rules of admissibility. If they fail
to surmount this test, they would be excluded in the judicial decision-making
process. Thus as early as 1916, the Supreme Court already defined the proper
attitude of a judge towards rumors, news, or any information swirling outside the
courtroom about a case: Of course, it is his duty in such cases to disregard as far
as he humanly may, all such information when the accused are brought before him
for trial, and to rest his findings of fact and his judgment strictly upon the evidence
adduced at the trial and no finding of fact can be sustained which is not supported
by such evidence. (U.S. vs. Solaa, 33 Phil. 582 [1916]). This was spoken in a
criminal case, but it also applies to civil cases.
The provisions on evidence in the Rules of Court mainly deal with what constitutes
evidence and/or the conditions of its admissibility. In other words, they pertain to
testimonial and documentary/object (real) evidence which cannot be taken
cognizance of by the court. Thus, exclusionary provisions abound defining the
situations when certain evidence cannot be admitted by the court for failure to
comply with the rules of admissibility or when barred by pertinent provisions of the
Constitution particularly, the Bill of Rights and other related statutory enactments.
The controversial Kuratong-Baleleng case presents an example wherein this rule of
exclusion was applied, perhaps too rigidly, as some Free Legal Assistance Group
(FLAG) lawyers observed. For the record, this case stemmed from the killing in 1995
of some 11 suspected kidnappers inside a van, along Commonwealth Avenue,
Diliman, Quezon City, while being escorted by military and police officers. Charges
for 11 counts of murder filed against ranking military and police officers for what
was claimed by the skeptical public, as not a shoot-out, but as pure and simple rub-
out, of these suspects were dismissed by a Quezon City trial judge for lack of
probable cause. He mainly based his resolution on the recanting affidavits of
prosecution witnesses, namely: Eduardo de los Reyes, Corazon de la Cruz, Armando
Capili, Jane Gomez and 7 private complainants who are relatives of the victims.
FLAG lawyers complained that the dismissal was precipitate and premature since
there was still a witness who has not yet recanted and willing to testify, Mario Enad.
The trial judge explained that Enad was not listed as a prosecution witness and the
Ombudsman found his testimony as unworthy of belief and discarded him as a
witness for the prosecution.
When a newspaper columnist asked why he did not study and take into account
the proceedings in and recommendation of the Senate which conducted an inquiry
on this incident, he declared that: To begin with, these are not part of the record
before the court. Secondly, these are irrelevant in resolving the motions of the
accused earlier mentioned. (See Judge Wenceslao I. Agnir, Jr., The Kuratong-
Baleleng Dismissal: A Footnote. The Lawyers Review, Vol. XIII, May 31, 1999, No. 5,
p. 24; Italics supplied). The trial judge justified his action by claiming that the
witness and the documents referred to above could not have been considered as
they were not yet accorded judicial cognizance. So even if these kinds of evidence
exist, and waiting in the wings, so to speak, if they have not been properly
identified, offered and admitted, they cannot be taken into consideration by the
court. They shall remain adrift in judicial limbo, in manner of speaking.
Indeed, even if a certain evidence could or has already surmounted the test of
relevancy, competency, and the exclusionary provisions under the rules and the
law, it shall still be for naught if not formally offered. In this case under annotation,
Sps. Renato Ong & Francia Ong vs. Court of Appeals, et al., G.R. No. 117103
promulgated on January 21, 1999, a Police Report on the accident which was relied
upon by the trial court in ruling against one of the defendants was excluded by the
Court of Appeals and the Supreme Court after finding that it was not formally
offered in evidence before the court a quo. In light of this decision, let us revisit this
rule on offer of evidence and see whether it admits of exceptions as in American
jurisdiction. Then this will also be a fitting occasion to study the legal tenability of
the complaint (which the plaintiffs filed in this case) that joined two (2) disparate
causes of action, a) for quasi-delict and b) for breach of contract of carriage against
two (2) separate defendants.
II. Offer of Evidence Defined
1. Legal basis and meaning of formal
The legal anchor of offer of evidence is presently Rule 132, Sec. 34 of the Revised
Rules on Evidence of July 1, 1989. Under the Rules of Court of 1964, it was
numbered Rule 132, Sec. 35 and in the much earlier Rules of Court of 1940 it was
numbered Rule 123, Sec. 72. While there have been changes in the numbering
during all these years, this provision has not been changed at allnot a word of it.
Thus we reproduce:
Offer of evidenceThe court shall consider no evidence which has not been
formally offered. The purpose for which the evidence is offered must be specified.
What is the meaning of formally offered under the above provision? Formal offer
is sometimes understood as written offer like a formal contract which refers to a
written contract (Ballentines Law Dictionary, Third Edition, p. 491). The use of the
word formally which is based on the word formal in Rule 132, Sec. 34, pertains
to its ordinary meaning which is following or according with established form,
custom or rule (Websters Third International Dictionary, Vol. 1, p. 893). Hence,
the use of the words formally offered refers not necessarily to written, but to one
organized, in accordance with established form or orderly submission of evidence.
Even legal writers in reference to this provision, have not interpreted the use of the
word formal to meanoffer in writing. In practice, offer of evidence is either done
orally or in writing at the end of the hearing on the presentation of evidence of a
party. Usually, when the documents or exhibits are voluminous and the case
complicated, the parties upon motion are usually allowed to submit their individual
written Formal Offer of Evidence/Exhibits.
So how do we define Offer of Evidence under Rule 132, Sec. 34 of the Rules of
Court? This question should be clarified or divided into two (2): (a) What is offer of
documentary or object (real) evidence? and, (2) What is offer of testimonial
evidence? Offer of documentary or object (real) evidence is the submission, when a
party is about to rest his case, either orally or in writing, for admission by the court
documents and/or objects previously identified and numbered as exhibits by stating
their nature and the purpose or purposes for which they are being submitted. On
the other hand, offer of testimonial evidence is the submission of the testimony of a
witness for admission by making a brief recital of the nature of his testimony at the
time he is called to testify.
2. Offer of documentary/object (real) evidence and offer of testimonial evidence
Rule 132, Sec. 34 covers both kinds of evidence------documentary/object (real) or
testimonial evidence. Note that the provision used the word evidence without
making any qualification as to whether it refers to documentary/object (real) and
testimonial evidence. The basic rule in statutory construction is that when the law
does not distinguish, we should not distinguish. Documentary/object (real) evidence
should be offered after the testimonies of the party and his witness or witnesses, if
any,when such party rests his case. As to testimonial evidence, it is now directed
that the same should be offered at the time the witness is called to testify. This is a
new provision introduced in the Revised Rules on Evidence of 1989:
SEC. 35. When to make offer.As regards the testimony of a witness, the offer
must be made at the time the witness is to testify.
Documentary and object evidence shall be offered after the presentation of a
partys testimonial evidence. Such offer shall be done orally unless allowed by the
court to be done in writing. (Rule 132)
With this provision, it is now required for counsel to preface his direct examination,
after the witness has been sworn, with the manifestation on the nature of the
latters testimony: If your Honor please, we offer the testimony of the witness
which will pertain to the facts and circumstances of the accident, etc. (as the case
may be). There is no specific rule on the extent of the manifestation describing the
nature of testimony. What would suffice is a statement of the gist of the testimony
which would give the opposing party and the court an idea of the nature of the
proposed testimony to be able to test its relevancy, witnesss competency or
coverage under the requisites of admissibility under the rules or other pertinent
laws. Some lawyers find it a little odd that at the stage when no testimony has yet
been given, the parties would already dispute the admissibility of a proffered
testimony on the mere description thereof of counsel. Would it not have been more
logical if the witness were allowed to testify and objections raised as the grounds
thereof become apparent?
3. Tenor of oral and written offers of evidence
Thus, prior to the introduction of the present provision numbered Sec. 35, Rule 132,
counsel usually manifests when making an oral offer of evidence/exhibits:
If your Honor please, plaintiff (or defendant) will now be resting his case and is
offering the following:
Exh. A(if plaintiff is making the offer) or Exh. 1 (if defendant is making the
offer) which is . . . . . . . (describing the document or object). This exhibit is being
offered for the purpose of ..or for the following purposes: . . . . . . . . (if there
are more than one purpose);
Exh. B (for plaintiff) or Exh. 2 (for defendant) etc.
The same procedure down the line until the last exhibit.
After this oral offer, opposing counsel is usually given the opportunity to object to
this offer or request for admission of the exhibits possibly on grounds of relevancy,
competency and/or failure to comply with other requisites of admissibility under the
rules on evidence, the Constitution and other related laws.
The court will then rule on the offer and objection. After the ruling, counsel offering
would usually declare: With the admission of the exhibits offered, and the
testimony of the witness . . . . (name of witness) or the testimonies of witnesses (so
and so), plaintiff or defendant is respectfully resting his case. The admissibility of
testimonial evidence has already been ruled upon during the trial proper, and need
not be referred to anew, but there is no harm in doing so.
Written offer of Evidence/exhibits is similar to oral offer which is presented in the
pleading form. The usual form is as follows:
(Heading)
A,
Plaintiff.
- versus -

Case No.______
B,
Defendant.
FORMAL OFFER OF EVIDENCE OR EXHIBITS
COMES NOW, Plaintiff (or Defendant) through counsel and unto the Honorable Court
most respectfully Offers the following:
EXHIBITS

NATURE
A (if Plaintiff) ( 1 if Defendant) - ________________________
Purposes:
B
________2____________

Purpose/s:
xxx xxx xxx
WHEREFORE, with the admission of the above-described exhibits and the testimony
of witness, . . . (name of witness, or witnesses, so and so), plaintiff (or defendant)
most respectfully rests his case.
Place and Date.
____________________
Counsel for the Plaintiff (or
Defendant
Copy furnished:
(opposing counsel address)

4. Rejected or excluded evidence


As to the rejected or excluded evidence or exhibits, the party concerned may make
an offer of proof. After the offer of
416

416
SUPREME COURT REPORTS ANNOTATED
Failure to Make An Offer of Evidence: A Fatal Omission?
proof, counsel may request that the excluded evidence or exhibit be attached or
united with the recordsfor the appellate court to further rule on their admissibility
in case their rejection would be raised as an error. The Supreme Court as early as
1917 already gave the advice that it is the better practice to unite with the record
exhibits of this character which have been rejected. (US vs. Cabaraban, 36 Phil.
251 [1917])
The practical wisdom of attaching rejected evidence to the record when appeal is
made by a party, is to accord the appellate court the opportunity to determine for
itself whether such evidence is really inadmissible. Afterall, if the rejected or
excluded evidence is still rejected by the appellate court, nobody would be
prejudiced thereby. It will remain excluded in the making of the decision of the
appellate court. But if the appellate court finds that the evidence should have been
admitted by the lower court, the latter may then admit the same and consider it in
its decision. Thus Justice Perfecto argued in a case involving the issue of inclusion of
documents in the record on appeal, (a requirement then in appeals) that if the
evidence excluded in the record on appeal were also found superfluous, the
appellate court may just continue to exclude the same in the consideration of the
case. On the other hand if such evidence turned out as not superfluous, the
exclusion thereof will prejudice the substantial rights of the appellant or will affect
the merits of the case, impairing, therefore, the administration of justice.
(Dissenting Opinion, De Castro vs. CA, 75 Phil. 824 [1946])
III. Offer of Evidence Distinguished From Offer of Proof
Offer of Evidence in our jurisdiction is different from Offer of Proof or with what is
also referred to as Offer of Evidence in American jurisdiction. As defined earlier,
Offer of Evidence in our jurisdiction is an organized and sequential submission of
evidence or documentary and object (real) exhibits when a party is about to rest his
case and submission for admission of a testimony of a witness at the time he is
called to testify. On the other hand, Offer of Proof or Offer of Evidence in
American jurisdiction pertains to the resort taken by a party through counsel when
during the trial a witness is not allowed to testify or while testifying is not allowed to
answer certain questions pursuant to the objections interposed by the opposing
party through counsel. Accordingly, counsel presenting the witness may manifest:
If your Honor please, I would like to make an offer of proof. I would like to state for
the record that if the witness were allowed to testify, he would declare that: (nature
of the testimony). When the introduction of a document in the course of the
testimony of a witness is objected to, for certain exclusionary grounds, an offer of
proof may also be made. Some lawyers suggest that an offer of proof may be made
by describing the document and what it will prove. Then when the party rests his
case, said document may be given a marking as an exhibit if not previously marked
and attached or united with the records as mentioned earlier. It should seem that
offer of proof may also be made for rejected documents after formal offer at the
time a party is about to rest his case.
In Velez vs. Chaves, 50 Phil. 676 (1927), the Supreme Court long before the war,
saw the value of the offer of proof. This was a suit for collection of sum of money
also filed against the father for indebtedness incurred by his son. He was absolved
from any liability in the first trial. After the second trial which also absolved him,
appellant claimed on appeal that the trial court erred in refusing the introduction of
proofs apart from those already presented. The High Court in affirming the trial
court decision observed that: What the proof is that the attorneys wanted to
introduce is not brought before us; and although the court may have made a
theoretical mistake, yet His Honor cannot be put in error without there being before
us the proof which was desired to be introduced, for without an offer of proof
intended to be submitted, we are unable to say that it would have been material.
(Italics supplied)
IV. Rationale of Offer of Evidence
Why are parties-litigants required to submit their Formal Offers of
Evidence/Exhibits? The ultimate goal of a trial is proof or non-proof of the respective
causes of parties-litigants. A trial is a battle for persuasion. Each party has to
marshal his arguments and evidence to convince the court of the validity of his
cause of action or defense. And this is better done with the organized and logical
presentation or submission of evidence through oral or written offer. Thus the
rationale of formal offer of exhibits or evidence is to enable a party to consolidate
and present his evidence in an orderly manner for easier and better appreciation by
the court and to accord the opposing party an opportunity to object to their
admissibility.
In the treatise on Rules on Evidence of Don Vicente J. Francisco, he explained that a
formal offer of evidence/exhibits is necessary because the judge must base his
decision on the evidence offered by the parties:
Such formal offer is necessary because it is the duty of the judge to rest his
findings of facts and his judgment only and strictly upon the evidence offered by the
parties at the trial. The offer may be made in any form sufficient to show that the
party is ready and willing to submit the evidence to the court. (The Revised Rules
of Court of the Philippines, Vol. VII, p. 393, 1997).
V. Pertinent Cases on Offer of Evidence
a) In De Castro vs. CA, 75 Phil. 824 (1946) the High Court sustained the Court of
Appeals in the exclusion of a document in the Record on Appeal for not having been
formally offered before the trial court. A lessor filed a complaint for ejectment and
for collection of rental of P140 monthly for a property in the City of Manila. This
complaint was dismissed by the Municipal Court and defendant appealed to the
Court of First Instance. While appeal was pending defendant filed a pleading entitled
constancia attaching thereto the order issued by the Mayor of Manila pursuant to EO
No. 117 fixing the rentals of such premises, to only P100. The CFI ruled against
defendant who appealed to the Court of Appeals and included in the Record on
Appeal this constancia. This inclusion was opposed by plaintiff. The CFI ordered the
exclusion of the constancia in the Record on Appeal. Defendant filed a Petition for
Mandamus to compel the trial court to accept the same. This petition was denied by
the Court of Appeals for which a Petition for Certiorari was brought to the Supreme
Court. The issue was whether the trial court erred in excluding the constancia in the
Record on Appeal.
Held: Decision affirmed by a divided court. It ruled that:
Said documents were never formally offered as evidence at the hearing and
therefore cannot be considered as such (Section 72, Rule 123, Rules of Court). The
petitioner did not even follow the procedure outlined in Rule 37 of the Rules of
Court. He simply filed them after the trial of the case and while the case was
already pending decision of the court a quo. They cannot even be considered as
evidence that had been offered and rejected during the hearing so that they may be
included in the record on appeal. (Ayala de Roxas vs. Valencia, 5 Phil. 182 [1905])
Several Justices dissented, among them Justice Perfecto who pointed out that the
inclusion of the constancia would not do any harm to the parties. If it was
superfluous, then it would not be taken into consideration by the court. But if it
turned out not superfluous, as we have quoted earlier, the exclusion thereof will
prejudice the substantial rights of the appellant or will affect the merits of the case,
impairing therefore, the administration of justice.
b) In Alcaraz vs. Racimo, 125 SCRA 328 (1983), the High Court held that exhibits
which counsel for a party refused to offer cannot be considered as evidence. This
case began with the filing of a complaint for partition among cousins of the property
left by their grandparents. In one of the hearings for the reception of the evidence
of the defendants, counsel asked for postponement since he was not ready despite
receipt of notice long before the hearing. The trial court denied the request and
ordered the case considered submitted. During the hearing on the motion for
reconsideration counsel when asked by the court if he was going to offer his
evidence, declared that he would not do so. Thereafter a decision against
defendants was rendered for which they appealed. They claimed that the trial court
erred in asking them to submit their exhibits.
Held: Decision affirmed. The High Court ruled that:
The case having been submitted for decision, the counsel for the defendants-
appellants should have offered the exhibits he had presented during the trial
especially Exhibit 1 which was the alleged deed of sale conferring title to the
original defendant. Instead of doing so, the counsel blatantly refused to offer any of
the exhibits for unknown reason. It is settled that the court shall consider no
evidence which has not been formally offered. (Rule 132, Section 35)
c) In Veran vs. CA, 157 SCRA 438 (1988) the High Court sustained the refusal of the
Court of Appeals to consider the proceedings in the Bureau of Lands in a recovery of
possession case. This case began with a complaint for recovery of possession of a
parcel of land in Atimonan, Quezon. After hearings, the trial court decided in favor of
the plaintiffs but on appeal said decision was reversed by the Court of Appeals.
Before the Supreme Court on a Petition for Review on Certiorari, appellants raised
several errors, one of which was the refusal of the Court of Appeals to consider the
proceedings before the Bureau of Lands.
Held: Petition dismissed. The Court of Appeals did not err in finding that no
evidentiary worth can be attached to what transpired in the administrative case
before the Bureau of Lands. The case was still pending appeal and the decision of
the Bureau of Lands was never offered in evidence, but was merely attached to
petitioners Urgent Ex-Parte Petition to Render the Much Awaited and Long Overdue
Judgment. Section 35 of Rule 132 of the Revised Rules of Court is quite clear that
the court shall consider no evidence which has not been formally offered.
d) In People vs. Villapaa, 161 SCRA 72 (1988) the High Court also refused to
consider a medico-legal report which was not formally offered. This case was a
prosecution for rape for which the accused was found guilty. On appeal accused
contended that his guilt was not proven beyond reasonable doubt. To support the
judgment of conviction, the Solicitor General cited a medico-legal report which
showed that force was employed against complainant. But the doctor who
examined complainant and submitted the report was not presented during the
hearing to identify and testify on it. Hence, this report was not offered in evidence.
Held: Accused acquitted on ground of reasonable doubt. As to the medico-legal
report, the Court declared that:
No evidentiary value can be given the alleged medico-legal report as it was not
offered in evidence. The court shall consider no evidence which has not been
formally offered. (Rule 132, Section 35).
VI. Failure to Offer is Fatal; Exceptions
It seems indisputable that failure to offer evidence is fatal to the cause of a party. In
the first place, the provision of Sec. 34, Rule 132 is unequivocal: The court shall
consider no evidence which has not been formally offered. Thus the court is left
with hardly any discretion to consider any documentary/object (real) exhibit which
has not been submitted to the court for admission. In the absence of such offer the
court cannot consider any documentary or object real exhibit as part of the pool of
evidence upon which it may base its decisioneven as it has been identified,
testified to and witness cross-examined on it. This holds true with testimonial
evidence. The present Sec. 35, Rule 132 directs that offer of testimonial evidence
should be made at the time the witness is about to testify and failure to do so may
be a ground for the striking off or exclusion of such testimony.
In the second place, due process requires that a party should be made aware of the
evidence that his opponent finally decides to offer in support of his cause. And in
the third place, it would accord the court the opportunity to know the supporting
evidence of a party so that it can rule on their admissibility. Allowing the court to
rule on admissibility will effect order and prevent the cluttering of the records with
unnecessary, repetitious and irrelevant evidence. As the High Court argued in
rejecting the plea for liberal interpretation of the provision on the inclusion of
documents in the record on appeal in the case of De Castro vs. CA, suprathere
will be no limit as to the kind of documents, pleadings and evidence which may be
included in the record on appeal.
1. Exceptions in American jurisdiction
Does this seemingly iron-clad rule allow exceptions? There are cases decided by our
Supreme Court which somewhat relaxed the application of the rule. In American
jurisdiction, the rule also enjoins that evidence to be admissible must be offered in
court except under the following circumstances:
a. where the matter naturally comes to the attention of the tribunal in the ordinary
course of the trial, such as the demeanor of the witness or the inconsistencies in his
testimony;
b. where the judge of his own motion orders the production of the evidence. For
example, the judge may order, under some circumstances, the calling of a witness
not called by either party; or may himself put additional questions to a witness
called and examined by a party;
c. where judicial notice may be taken on a matter under the principle of judicial
notice;
d. where an offer of an entire class of evidence has already been made and rejected
as inadmissible; in which case, the offer need not be renewed for any evidence of
that class. (Wigmores Code of Evidence, p. 23, cited in Jovito Salonga, Philippine
Law on Evidence, 1965 ed., p. 762)
As to exceptions under par. a.demeanor of a witness, etc. In our jurisdiction, we
afterall do not make an offer of evidence of the demeanor of a witness or the
inconsistencies in his testimonies. Opposing counsel may manifest during the
hearing to make of record the demeanor of the witness (that he is smiling, crying or
taking an unusually long time to answer).Inconsistencies may be brought to
judicial attention through cross-examination or after trial in the memorandum. As to
exception under par. b.evidence produced through the initiative of the judge: This
may be objected to by an adversely affected party if they are not admissible or are
excluded by the rules. But this is a rare scenario in Philippine courts that a judge
would initiate the introduction of additional evidence given the numerous cases he
has to hear and decide. Besides, judges are a little squeamish at the idea of taking
such active part in the gathering and presentation of evidence for fear of being
accused of bias or partiality.
As to exception under par. c.evidence which may be taken judicial notice of: This
is already assumed as a matter which the court may take cognizance of without
introducing the same as evidence. There is actually no need to offer this in
evidence. This is justified by expediency and practicality. Otherwise, trials may not
be finished at all if every matter pertinent to a cause even that of public knowledge
has to be proved and offered every time.
As to exception under par. d.a class of evidence previously offered and rejected:
There seems to be no point in offering the same. In case of rejection, the offer need
not be renewed for evidence belonging to this class. It seems hard to visualize this
exception, because if this class of evidence has been previously rejected, its reoffer
would likely not render it admissible. Then too, its non-re-offer leaves it like the rest
of the classoutside the pale of judicial cognizance.
Hence, it would seem that the above exceptions in American jurisdiction are
pseudo-exceptions.
2.Exceptions in Philippine jurisdiction
Our Supreme Court has promulgated certain decisions which may be interpreted as
exceptions, if not a relaxation of this mandatory rule on formal offer of evidence.
a) In People vs. De Roxas, 6 SCRA 666 (1962) certain exhibits which appeared to
have not been formally offered did not render consideration thereof as reversible
error on appeal. This was a prosecution for robbery and rape for which the accused
were sentenced to death. They appealed and questioned the admission by the trial
court of the confessions which were marked as Exhs. D and E on the ground that
they were coerced and obtained through torture. Held: Decision affirmed but only
life imprisonment was imposed due to lack of necessary votes. The High Court
noted the incomplete records that reached it. It however declared that:
The absence of any record of the formal presentation of these Exhibits D, E and
F in our opinion, does not render consideration thereof a reversible error, because
repeated references to said exhibits in the course of the trial by the counsel for the
accused, as well as the courts order of 26 September 1956, convincingly show that
the documents were part of the prosecutions evidence.
b) In People vs. Tanjutco, 23 SCRA 361 (1968) the High Court reiterated the ruling in
People vs. De Roxas, supra. This was a prosecution for qualified theft of the
accused who was then a private secretary of Roman Santos, owner of Roman Santos
Bldg., at Sta. Cruz, Manila. The accused used to deposit the money of Mr. Roman
Santos in the latters various accounts in the bank. He falsified the deposit slips by
depositing less amounts than the money actually given to him for deposit. Found
guilty and sentenced to life imprisonment, he appealed. Apart from raising certain
grounds for appeal, he seemed to have questioned the failure to identify the deposit
slips one by one before the same were considered against him. Held: Judgment
affirmed. As to these deposit slips, the High Court noted:
Contrary to appellants contention, there is even no necessity for all these
duplicate deposit slips to be identified one by one, before they may properly be
considered against the accused. These slips were not only bundled into a bunch and
formally presented as Exhibit Q; they had also been consistently referred to as one
of the bases of the prosecutions claim that the misappropriated amount totaled
P400,086.19. As ruled by this Court in another criminal case, the absence of any
record of the formal presentation of certain exhibit does not render their
consideration reversible error if repeated references thereto in the course of the trial
by counsel for the accused and of the court convincingly show that the documents
were part of the prosecutions evidence. No error was therefore committed by the
trial court in giving due credence and weight to the deposit slips. (Exh. Q).
c) In Bravo, Jr. vs. Borja, 134 SCRA 466 (1985) the High Court saw no need for the
accused to formally offer in evidence his birth certificate to prove his minority in his
plea for bail. The accused was charged with murder. Since he was detained after his
arrest, he asked for bail claiming that he was 16 years old at the time of the
commission of this offense. He argued that being a minor he was entitled to a
privileged mitigating circumstance which would make the murder charge against
him non-capital. The trial judge denied bail on the ground that the evidence of the
guilt of the accused was strong and that he had not proved his minority. Accused
filed a Petition for Certiorari and Mandamus. Held: Order denying bail set-aside.
But respondent judge claims that petitioner has not proved his minority. This is
inaccurate. In his motion for bail, petitioner alleged that he was a minor of 16 and
this averment was never challenged by the prosecution. Subsequently, in his
memorandum in support of the motion for bail, petitioner attached a copy of his
birth certificate. And finally, after the respondent judge had denied the motion for
bail, petitioner filed motion for reconsideration, attaching thereto a certified true
copy of his birth certificate. Respondent judge however refused to take cognizance
of petitioners unchallenged minority allegedly because the certificate of birth was
not offered in evidence. This was error because evidence of petitioners minority
was already a part of the record of the case. It was properly filed in support of a
motion. It would be needless formality to offer it in evidence. Respondent Judge
therefore acted with grave abuse of discretion in disregarding it.
VII. Failure to Offer Before Administrative Bodies
Will the strict application of Section 34, Rule 132 excluding from consideration
evidence not formally offered, be also applied in administrative or quasi-judicial
bodies? While some administrative or quasi-judicial bodies conduct proceedings like
ordinary courts of law, other bodies are not very strict in the reception of evidence.
Sometimes, without hearing for the purpose of receiving the evidence of the parties,
and/or upon agreement of the parties, they are directed to file their respective
position papers with formal offers of exhibits. If the parties so desire, they may file
their comments/objections to the papers filed by their respective opponents.
Thereafter, the case is deemed submitted for resolution. Pursuant to its task as a
fact-finding body, it would seem that all evidence that may shed light on the matter
under inquiry are accorded cognizance upon the filing of position papers. The oft-
cited dictum is that administrative or quasi-judicial bodies are not bound by the
strict or technical rules of evidence. Is this a justification to be liberal in the
reception and consideration of evidence which have not been identified, but merely
included in the offer, or even those not formally offered or those which are not even
part of the records?
At this juncture let us ask what is quasi-judicial power. It has been defined as a
power or function which pertains more to the administrative than to the judicial, yet
partakes of the judicial (1 Am. Jur. 2d., 954). It has also been defined: Where the
function of an officer or body is primarily administrative and the power to hear and
determine controversies is granted as an incident to the administrative duty, the
power is administrative or quasi-judicial. (42 Am. Jur., p. 369, Laurel,
Administrative Law and Practice, p. 8 cited in Gonzales, Administrative Law: A
Text, 1979 ed., p. 72). Actually, according to Justice Laurel, quasi-judicial power is
nothing more but judicial power being exercised by an administrative agency.
Examples of these agencies or bodies which exercise quasi-judicial powers are the
Land Transportation Franchising & Regulatory Board (LTFRB), the National
Telecommunications Commission (NTC), Maritime Industry Authority (MARINA),
National Labor Relations Commission (NLRC), Securities and Exchange Commission
(SEC) and the like.
Thus quasi-judicial bodies, like judicial bodies must comply with the requirements of
due process in the conduct of their proceedings. So what is the legal effect of
evidence not previously identified, not formally offered or otherwise incompetent or
inadmissible evidence in administrative proceedings in light of due process and the
rule on the reception of evidence for administrative bodies? We reproduce an
American authority:
Accordingly, the mere admission before an administrative tribunal of matter which
would be deemed incompetent in judicial proceedings will not invalidate the
administrative order and will not constitute ground for reversal where it is merely
cumulative, or it is not shown that the administrative agency relied upon such
evidence. Administrative tribunals are given great leeway in hearing and
considering a variety of materials as evidence, and the receipt and consideration of
incompetent evidence is not a denial of due process of law. However, the rule that
administrative agencies are not bound by the strict or technical rules of evidence
applicable in court proceedings is more a recognition that administrative agencies
may relax such rules than an approval of their utter disregard where private rights
are involved. The more liberal the practice in admitting testimony, the more
imperative the obligation to preserve the essential rules of evidence by which rights
are asserted or defended in adjudicatory proceedings. The exemption from strict
legal rules of evidence does not empower an administrative agency to act
arbitrarily. (2 Am. Jur. 2d., p. 185; Italics supplied)
Thus when it involves substantive rights of parties, the rule that administrative
bodies are not bound by the strict and technical rules of evidence, has to give way.
As the Supreme Court clarified in a case, even if the Commission (in this case the
Public Service Commission or any administrative body, for that matter) is not bound
by the rules in judicial proceedings, it must bow its head to the constitutional
mandate that no person shall be deprived of a right without due process of law.
(Halili vs. Public Service Commission, 92 Phil. 1036 [1953]. In other words, when
evidence not formally offered but duly considered by an administrative body affects
the substantive rights of a party, this may be challenged by the latter. In this case,
the doctrine that administrative bodies shall not be bound by the strict or technical
rules of evidence may not apply.
VIII. The Case Under AnnotationSps. Renato Ong and Francia N. Ong vs. CA,
supra
In this case under annotation, Sps. Renato Ong and Francia N. Ong vs. Court of
Appeals, supra, the High Court ruled on two (2) important issues which in its words,
are: Requirement of Formal Offer of Evidence and Damages Require Evidence.
What is pertinent to this annotation is the issue of Formal Offer of Evidence. This
case arose from a vehicular accident in Quezon Province involving two (2)
passenger provincial buses. The Sps. Renato Ong and Francia N. Ong were then on
board an Inland Trailways bus cruising along the highway of Tiaong, Quezon, when it
slowed down due to a stalled truck ahead. At that instance, the Inland Trailways bus
was bumped from behind by a Philtranco bus. The spouses were injured along with
other passengers. They filed a complaint for damages against the two (2) bus
companies with the Regional Trial Court. It may be inferred that said complaint
raised two (2) distinct causes of action against the defendants, 1) culpa contractual
or breach of contract of carriage against Inland Trailways, and 2) culpa aquiliana or
quasi-delict against Philtranco.
In the hearing of July 5, 1989, after the plaintiffs (spouses) had testified, the trial
court issued an order in open court directing them to submit their formal offer of
exhibits and the defendants to comment thereon. After which the case shall be
deemed submitted for resolution. Plaintiffs submitted their formal offer but it did not
include the Police Report as an exhibit which only came to the attention of the court
when it was attached to the Answer of Inland Trailways. Thereafter, the trial court
decided in favor of Inland Trailways and against Philtranco. The decision was
allegedly based on the Police Report which found that the Philtranco bus was at
fault for the accident. But on appeal to the Court of Appeals, it reversed the trial
court decision by holding that Philtranco could not be declared liable on the basis of
the Police Report which was not offered in evidence. In other words, the Police
Report was excluded as evidence. Instead, the Court of Appeals found Inland
Trailways liable under culpa contractual or breach of contract of carriage for failure
to exercise extraordinary diligence in the care of its passengers. The spouses
appealed to the High Court arguing therein that as to the Police Report, they
assumed that all documentary evidence, including the Complaint and its Annexes,
as well as those in the respective Answers of the private respondents, were deemed
admitted.
As per decision under annotation, the Supreme Court rejected this argument as it
reaffirmed anew the settled provision of Section 34, Rule 132, that: The court shall
consider no evidence which has not been formally offered.
IX. Some Observations
a. Supreme court is consistent with settled rule
As to the exclusion of the Police Report for failure to formally offer the same, the
High Court is merely being consistent with the settled rule. Since even the gists of
the testimonies of the spouses were not set forth in the decision, we could merely
wonder whether they had testified somehow on the possible liability of Philtranco. If
there was no such evidence at all, then there was not much for the appellate court
to rely on.
Besides, what is the probative value of this Police Report even if it was duly
admitted? It is a pile of hearsay information anyway. The police are not usually
eyewitnesses to the accident. They often arrive at the scene long after the accident
occurred and they merely gather second hand accounts from the lips of those who
may have seen or heard what others who saw or also heard (double or triple
hearsay) about the accident. Perhaps, the trial court should have based its ruling on
a more reliable evidence.
b) Could the appellate courts still hold Inland Trailways liable even if it did not
appeal the trial court decision?
Did Inland Trailways appeal the Regional Trial Court decision absolving it from blame
for the accident? It is very likely that it did not. So why should the Court of Appeals
find it liable, after absolving Philtranco? If only Philtranco appealed, only the aspect
of the decision finding it liable should be subject of review. And if after review the
Court of Appeals finds it still liable, then the decision of the trial court against it
would be affirmed. On the other hand, if the Court of Appeals finds that Philtranco is
not liable, as it did find in this case, then the complaint should be accordingly
dismissed against it, as it had ruled.
However, can the Court of Appeals and the Supreme Court still validly hold Inland
Trailways liable after Philtranco was absolved from blame? Is it not possible that the
decision in favor of Inland has already become final and executory and may not be
disturbed anymore, since it did not appeal? And it would also seem that the
plaintiffs did not appeal such decision absolving Inland Trailways. So, assuming that
Inland Trailways did not appeal the decision of the trial court (as it very likely did
not, since it won or was absolved of any liability), is there a valid reason to also
review its case on appeal and render it liable thereafter?
The following are pertinent pronouncements from the Supreme Court:
x x x failure to perfect an appeal as required by the rules has the effect of
rendering judgment final and executory. (Quiqui vs. Boncaros, 151 SCRA 416
[1987]
An appeal shall not affect those who did not appeal, except insofar as the judgment
of the appellate court is favorable and applicable to the latter. (People vs.
Fernandez, 186 SCRA 830 [1990]) In the case at bar, while petitioner interposed
her appeal from the adverse decision rendered by the trial court dismissing her
counterclaim, private respondent inexplicably failed to appeal from the same
decision which dismissed his complaint as well. It was therefore, grave error on the
part of respondent appellate court, in reversing the trial courts decision, to grant
private respondent affirmative relief other than that found in the appealed
judgment. (Lumibao vs. IAC, 189 SCRA 469 [1990]).
We need not concern ourselves at this time with the validity of Resolution No. 9
and the implementing agreement because the issue has not been raised in this
petition as an assigned error of the respondent court. The measures have been
sustained in the challenged decision, from which the respondent did not appeal. The
decision is final and binding as to him. (Tuzon vs. CA, 212 SCRA 739 [1992])
Hence, as a rule, in criminal cases, appeal shall not affect an accused that did not
appeal (See also Sec. 11 (a), Rule 122 of the Rules of Court). In civil cases, the rule
is that no affirmative relief can be granted to a party who did not appeal, because
the decision insofar as he is concerned has gained finality and may not be altered
anymore even to favor him. For the same reason, such decision cannot also be
altered anymore to prejudice a party who did not appeal.
c) Was there a misjoinder of causes of action in the complaint filed by the plaintiffs?
This case is also interesting for a legal point which was not even discussed in the
decision. This pertains to the procedural strategy undertaken by the plaintiffs before
the trial court by including in one complaint two (2) disparate causes of action
against two (2) different defendants with expected different defenses. Defendant
Inland Trailways was sued under culpa contractual or breach of contract of carriage,
whereas Philtranco was sued under culpa aquiliana or quasi-delict. Was this a legally
tenable course? At the end of the day, so to speak, the plaintiffs will have to make
up their minds on whom to pin liability. If they wanted to hold the bus in which they
boarded liable, they would have to concentrate on establishing their cause of action
to warrant the presumption of negligence under a breach of contract of carriage. On
the other hand, if they wanted to pin liability on the bus which bumped their bus,
they would have to prove that the proximate cause of the accident was the
negligent act of the other bus. Some lawyers suggested that the plaintiffs should
have filed a complaint for breach of contract of carriage or culpa contractual against
Inland Trailways. This is easier to pursue since there is the presumption of
negligence on the part of Inland Trailways. Then it is up to Inland Trailways to
implead Philtranco by filing a third party complaint for culpa aquiliana or quasidelict
against the latter.
The plaintiffs cannot hold both bus companies liable for the same accident. They
cannot have the best of both worlds, so to speak. If one is liable, the other cannot
be so, because proving one cause of action will not result in proof of the other.
Hence, was there a misjoinder of causes of action in this complaint for damages
against two (2) defendants under two (2) distinct causes of action, a) for breach of
contract against one, and b) for quasi-delict against another? Under (a) there is a
contractual relation between plaintiffs and defendant Inland Trailways; whereas
under (b) there is no contractual relation between the plaintiffs and defendant
Philtranco. Atty. Vicente J. Francisco, in his treatise on the Rules of Court citing
American authorities noted that:
Joinder of claims is permissible in three ways: (1) between the same plaintiff and
the same defendant; (2) between different plaintiffs and the same defendant; or (3)
between the same plaintiff and different defendants. Specifically where the parties
are different, any joinder is permitted in cases which arise out of the same
transaction or occurrence, or series of transactions or occurrences, and involved a
common question of law or fact. There should be some unity in the problems
presented. If the claims arise out of the same transaction or occurrence, or series of
transactions or occurrences, involving a common question of law and fact, the
requisite unity is present. (The Revised Rules of Court in the Philippines, Vol. 1,
1968 ed., p. 109)
Based on the above, is there a common question of law in breach of contract and
quasi-delict? It would seem that they pertain to different questions of law. Breach of
contract would have to address the question of whether there has been a breach or
violation of a contractual commitments between the parties. On the other hand,
quasi-delict would have to address the question of whether independent of contract
there was fault or negligence on the part of defendant which resulted in damage to
plaintiff. The question of fact in breach of contract may tend to vary at a certain
point from the question of fact in a quasi-delict as each must prove a different
factual development to fix liability under their corresponding causes of action.
X. Conclusion
The Supreme Court chose not to deviate from the wellentrenched teachings in our
jurisprudence and the clear provision of the Rules on Evidence regarding the need
for formal offer of evidence at the end of the trial. Coupled with that is the directive
that the purpose for which the evidence is offered must be specified so that the
opposing party could object and the court could rule on their relevance. The holding
of the High Court on the need to prove damages suffered by the plaintiffs in this suit
for damages is also consistent with settled rulings of the Supreme Court in a host of
earlier cases.
However, unlike in American jurisdiction, the High Court has been less generous in
awarding damages. The plaintiffs suffered considerable injuries and prevented the
scheduled departure of the husband to work abroad. The complaint was filed in
1987 and after years of litigation, the couple were awarded in 1991 by the trial
court close to P200,000 in damages and attorneys feesonly to be whittled down
to a mere P88,000 inclusive of attorneys fees in this 1999 decision. Considering the
havoc of inflation on the value of money, time and energy spent, physical and
emotional pain, frustrations, heartaches, and other unrecorded expenses related to
the case, the final award (from which the lawyers fee may still have to be
deducted) does not seem to amount too much. Then too, collecting from the liable
defendant could be a problem since the case took years to decide and there may
have been a reversal of fortune on the part of said defendant.
This scenario is in sharp contrast to tort awards in American jurisdiction. In 1997, a
Brooklyn, New York jury imposed damages of $5.9 million against a keyboard
manufacturer for repeated stress injuries suffered by office workers. It found that:
The injured women had experienced wrist and spinal ailments after using the
product. Madden v. Digital Equipment Corp., No. 94-CV 1427 (E.D.N.Y.). (American
Bar Association Journal, February, 1977, p. 22). In this jurisdiction, our office workers
could have severed their hands while pounding on those keyboards and the courts
couldnt care less.
A similar complaint for damages for repeated stress injuries allegedly inflicted
by a computer keyboard would be immediately thrown out by our courts.
It is also hoped that this case under annotation would elicit interest in further study
of a complaint against two (2) defendants from a single occurrence or incident
which joined two (2) distinct and contrary causes of action.
Finally, the holding in this case is a reaffirmation of the basic goals of the rules on
evidenceorder and system. If there were no order and system in the presentation
or submission of evidence, there would be no telling what and how much evidence
parties-litigants may submit. A party may dump into the court truckloads of
evidence, to exaggerate a little, to confuse and muddle the case. Also, fair play
and due process are the overriding considerations when the rules had to impose
certain restrictions in the submission of evidence. A formal offer of evidence stating
the purpose thereof with the opposing party accorded opportunity to object will not
only avoid surprises but will effectively prevent bloating the records with
unnecessary exhibits and thus sparing the already overburdened courts from the
drudgery of sifting through voluminous documents and numerous object (real)
evidence. FAILURE TO MAKE AN OFFER OF EVIDENCE: A FATAL OMISSION?, 301 SCRA
408,