JUDICIAL AFFIDAVIT RULE (1) The judicial affidavits of their witnesses, which

shall take the place of such witnesses' direct

testimonies; and
A.M. No. 12-8-8-SC

JUDICIAL AFFIDAVIT RULE (2) The parties' docun1entary or object evidence, if

any, which shall be attached to the judicial affidavits
and marked as Exhibits A, B, C, and so on in the case
Section 1. Scope. - (a) This Rule shall apply to all of the complainant or the plaintiff, and as Exhibits 1,
actions, proceedings, and incidents requiring the 2, 3, and so on in the case of the respondent or the
reception of evidence before: defendant.

(1) The Metropolitan Trial Courts, the Municipal Trial (b) Should a party or a witness desire to keep the
Courts in Cities, the Municipal Trial Courts, the original document or object evidence in his
Municipal Circuit Trial Courts, and the Shari' a Circuit possession, he may, after the same has been
Courts but shall not apply to small claims cases under identified, marked as exhibit, and authenticated,
A.M. 08-8-7-SC; warrant in his judicial affidavit that the copy or
reproduction attached to such affidavit is a faithful
copy or reproduction of that original. In addition, the
(2) The Regional Trial Courts and the Shari'a District party or witness shall bring the original document or
Courts; object evidence for comparison during the
preliminary conference with the attached copy,
reproduction, or pictures, failing which the latter
shall not be admitted.
(3) The Sandiganbayan, the Court of Tax Appeals, the
Court of Appeals, and the Shari'a Appellate Courts;

This is without prejudice to the introduction of

secondary evidence in place of the original when
(4) The investigating officers and bodies authorized allowed by existing rules.
by the Supreme Court to receive evidence, including
the Integrated Bar of the Philippine (IBP); and

Section 3. Contents of judicial Affidavit. - A judicial

affidavit shall be prepared in the language known to
(5) The special courts and quasi-judicial bodies, the witness and, if not in English or Filipino,
whose rules of procedure are subject to disapproval accompanied by a translation in English or Filipino,
of the Supreme Court, insofar as their existing rules and shall contain the following:
of procedure contravene the provisions of this Rule.1

(a) The name, age, residence or business address, and

(b) For the purpose of brevity, the above courts, occupation of the witness;
quasi-judicial bodies, or investigating officers shall be
uniformly referred to here as the "court."

(b) The name and address of the lawyer who

conducts or supervises the examination of the
Section 2. Submission of Judicial Affidavits and witness and the place where the examination is being
Exhibits in lieu of direct testimonies. - (a) The parties held;
shall file with the court and serve on the adverse
party, personally or by licensed courier service, not
later than five days before pre-trial or preliminary
conference or the scheduled hearing with respect to (c) A statement that the witness is answering the
motions and incidents, the following: questions asked of him, fully conscious that he does
so under oath, and that he may face criminal liability
for false testimony or perjury;
(d) Questions asked of the witness and his available for copying, authentication, and eventual
corresponding answers, consecutively numbered, production in court, the requesting party may avail
that: himself of the issuance of a subpoena ad
testificandum or duces tecum under Rule 21 of the
Rules of Court. The rules governing the issuance of a
(1) Show the circumstances under which the witness subpoena to the witness in this case shall be the
acquired the facts upon which he testifies; same as when taking his deposition except that the
taking of a judicial affidavit shal1 be understood to be
ex parte.

(2) Elicit from him those facts which are relevant to

the issues that the case presents; and
Section 6. Offer of and objections to testimony in
judicial affidavit. - The party presenting the judicial
affidavit of his witness in place of direct testimony
(3) Identify the attached documentary and object shall state the purpose of such testimony at the start
evidence and establish their authenticity in of the presentation of the witness. The adverse party
accordance with the Rules of Court; may move to disqualify the witness or to strike out
his affidavit or any of the answers found in it on
ground of inadmissibility. The court shall promptly
(e) The signature of the witness over his printed rule on the motion and, if granted, shall cause the
name; and marking of any excluded answer by placing it in
brackets under the initials of an authorized court
personnel, without prejudice to a tender of excluded
evidence under Section 40 of Rule 132 of the Rules of
(f) A jurat with the signature of the notary public who
Court.
administers the oath or an officer who is authorized
by law to administer the same.

Section 7. Examination of the witness on his judicial

affidavit. - The adverse party shall have the right to
Section 4. Sworn attestation of the lawyer. - (a) The
cross-examine the witness on his judicial affidavit and
judicial affidavit shall contain a sworn attestation at
on the exhibits attached to the same. The party who
the end, executed by the lawyer who conducted or
presents the witness may also examine him as on
supervised the examination of the witness, to the
re-direct. In every case, the court shall take active
effect that:
part in examining the witness to determine his
credibility as well as the truth of his testimony and to
elicit the answers that it needs for resolving the
(1) He faithfully recorded or caused to be recorded issues.
the questions he asked and the corresponding
answers that the witness gave; and

Section 8. Oral offer of and objections to exhibits. - (a)

Upon the termination of the testimony of his last
(2) Neither he nor any other person then present or witness, a party shall immediately make an oral offer
assisting him coached the witness regarding the of evidence of his documentary or object exhibits,
latter's answers. piece by piece, in their chronological order, stating
the purpose or purposes for which he offers the
particular exhibit.
(b) A false attestation shall subject the lawyer
mentioned to disciplinary action, including
disbarment. (b) After each piece of exhibit is offered, the adverse
party shall state the legal ground for his objection, if
any, to its admission, and the court shall immediately
Section 5. Subpoena. - If the government employee make its ruling respecting that exhibit.
or official, or the requested witness, who is neither
the witness of the adverse party nor a hostile witness,
unjustifiably declines to execute a judicial affidavit or (c) Since the documentary or object exhibits form
refuses without just cause to make the relevant part of the judicial affidavits that describe and
books, documents, or other things under his control authenticate them, it is sufficient that such exhibits
are simply cited by their markings during the offers, (b) The court shall not consider the affidavit of any
the objections, and the rulings, dispensing with the witness who fails to appear at the scheduled hearing
description of each exhibit. of the case as required. Counsel who fails to appear
without valid cause despite notice shall be deemed to
have waived his client's right to confront by
Section 9. Application of rule to criminal actions. - (a) cross-examination the witnesses there present.
This rule shall apply to all criminal actions:

(c) The court shall not admit as evidence judicial

(1) Where the maximum of the imposable penalty affidavits that do not conform to the content
does not exceed six years; requirements of Section 3 and the attestation
requirement of Section 4 above. The court may,
however, allow only once the subsequent submission
of the compliant replacement affidavits before the
(2) Where the accused agrees to the use of judicial hearing or trial provided the delay is for a valid
affidavits, irrespective of the penalty involved; or reason and would not unduly prejudice the opposing
party and provided further, that public or private
counsel responsible for their preparation and
(3) With respect to the civil aspect of the actions, submission pays a fine of not less than P 1,000.00 nor
whatever the penalties involved are. more than P 5,000.00, at the discretion of the court.

(b) The prosecution shall submit the judicial affidavits Section 11. Repeal or modification of inconsistent
of its witnesses not later than five days before the rules. - The provisions of the Rules of Court and the
pre-trial, serving copies if the same upon the accused. rules of procedure governing investigating officers
The complainant or public prosecutor shall attach to and bodies authorized by the Supreme Court to
the affidavits such documentary or object evidence receive evidence are repealed or modified insofar as
as he may have, marking them as Exhibits A, B, C, and these are inconsistent with the provisions of this
so on. No further judicial affidavit, documentary, or Rule.1âwphi1
object evidence shall be admitted at the trial.

The rules of procedure governing quasi-judicial

(c) If the accused desires to be heard on his defense bodies inconsistent herewith are hereby disapproved.
after receipt of the judicial affidavits of the
prosecution, he shall have the option to submit his
judicial affidavit as well as those of his witnesses to Section 12. Effectivity. - This rule shall take effect on
the court within ten days from receipt of such January 1, 2013 following its publication in two
affidavits and serve a copy of each on the public and newspapers of general circulation not later than
private prosecutor, including his documentary and September 15, 2012. It shall also apply to existing
object evidence previously marked as Exhibits 1, 2, 3, cases.
and so on. These affidavits shall serve as direct
testimonies of the accused and his witnesses when
they appear before the court to testify.
NG ME TAM CASE

Section 10. Effect of non-compliance with the judicial

Affidavit Rule. - (a) A party who fails to submit the RULING:
required judicial affidavits and exhibits on time shall
be deemed to have waived their submission. The
court may, however, allow only once the late We grant the petition.
submission of the same provided, the delay is for a
valid reason, would not unduly prejudice the
opposing party, and the defaulting party pays a fine THE JUDICIAL AFFIDAVIT RULE
of not less than P 1,000.00 nor more than P 5,000.00
at the discretion of the court. APPLIES TO PENDING CASES
On September 4, 2012, the JAR was promulgated to (2) The parties’ documentary or object evidence, if
address case congestion and delays in courts. To any, which shall be attached to the judicial affidavits
this end, it seeks to reduce the time needed to take and marked as Exhibits A, B, C, and so on in the case
witnesses’ testimonies. The JAR took effect on of the complainant or the plaintiff, and as Exhibits 1,
January 1, 2013 and would also apply to pending 2, 3, and so on in the case of the respondent or the
cases pursuant to Section 12 to wit: defendant.

Sec. 12. Effectivity. – This rule shall take effect on xxxx

January 1, 2013 following its publication in two
newspapers of general circulation not later than
September 15, 2012. It shall also apply to existing Section 324 of the JAR enumerates the content of a
cases. (Emphasis supplied) judicial affidavit.

The Court En Banc gave public prosecutors in first Under Section 10,25 parties are to be penalized if
and second level courts one year of modified they do not conform to the provisions of the JAR.
compliance.23 The JAR thus took full effect on Parties are however allowed to resort to the
January 1, 2014. application of a subpoena pursuant to Rule 21 of the
Rules of Court in Section 5 of the JAR in certain
situations. Section 5 provides:
Here, parties were presenting their evidence for the
RTC’s consideration when the JAR took effect.
Therefore, pursuant to Section 12 the JAR applies to ***Sec. 5. Subpoena. – If the government employee
the present collection suit. or official, or the requested witness, who is neither
the witness of the adverse party nor a hostile
witness, unjustifiably declines to execute a judicial
SECTION 5 OF THE JAR DOES NOT affidavit or refuses without just cause to make the
relevant books, documents, or other things under
APPLY TO ADVERSE PARTY WITNESSES his control available for copying, authentication, and
eventual production in court, the requesting party
may avail himself of the issuance of a subpoena ad
The JAR primarily affects the manner by which testificandum or duces tecum under Rule 21 of the
evidence is presented in court. Section 2(a) of the Rules of Court. The rules governing the issuance of a
JAR provides that judicial affidavits are mandatorily subpoena to the witness in this case shall be the
filed by parties to a case except in small claims cases. same as when taking his deposition except that the
These judicial affidavits take the place of direct taking of a judicial affidavit shal1 be understood to
testimony in court. It provides: be ex parte.

Sec. 2. Submission of Judicial Affidavits and Exhibits in While we agree with the RTC that Section 5 has no
lieu of direct testimonies. – (a) The parties shall file application to Yap as he was presented as a hostile
with the court and serve on the adverse party, witness we cannot agree that there is need for a
personally or by licensed courier service, not later finding that witness unjustifiably refused to execute a
than five days before pre-trial or preliminary judicial affidavit.
conference or the scheduled hearing with respect to
motions and incidents, the
following:LawlibraryofCRAlaw Section 5 of the JAR contemplates a situation where
there is a (a) government employee or official or (b)
requested witness who is not the (1) adverse party’s
(1) The judicial affidavits of their witnesses, which witness nor (2) a hostile witness. If this person
shall take the place of such witnesses’ direct either (a) unjustifiably declines to execute a judicial
testimonies; and affidavit or (b) refuses without just cause to make
the relevant documents available to the other party
and its presentation to court, Section 5 allows the
requesting party to avail of issuance of subpoena ad
testificandum or duces tecum under Rule 21 of the the adverse party witness must comply with Section
Rules of Court. Thus, adverse party witnesses and 6, Rule 25 of the Rules of Court which
hostile witnesses being excluded they are not provides:LawlibraryofCRAlaw
covered by Section 5. Expressio unius est exclusion
alterius: the express mention of one person, thing,
or consequence implies the exclusion of all others. SEC. 6. Effect of failure to serve written
interrogatories. – Unless thereafter allowed by the
court for good cause shown and to prevent a failure
Here, Yap is a requested witness who is the adverse of justice, a party not served with written
party’s witness. Regardless of whether he interrogatories may not be compelled by the adverse
unjustifiably declines to execute a judicial affidavit party to give testimony in open court, or to give a
or refuses without just cause to present the deposition pending appeal.
documents, Section 5 cannot be made to apply to
him for the reason that he is included in a group of
individuals expressly exempt from the provision’s In Afulugencia v. Metropolitan Bank & Trust Co.,27
application. this Court stated that “in civil cases, the procedure of
calling the adverse party to the witness stand is not
allowed, unless written interrogatories are first
The situation created before us begs the question: if served upon the latter.”28 There petitioners
the requested witness is the adverse party’s witness Spouses Afulugencia sought the issuance of a
or a hostile witness, what procedure should be subpoena duces tecum and ad testificandum to
followed? compel the officers of the bank to testify and bring
documents pertaining to the extrajudicial foreclosure
and sale of a certain parcel of land. Metrobank
The JAR being silent on this point, we turn to the moved to quash the issuance of the subpoenas on
provisions governing the rules on evidence covering the ground of non-compliance with Section 6, Rule 25
hostile witnesses specially Section 12, Rule 132 of the of the Rules of Court. In quashing the issuance of
Rules of Court which provides: the subpoena, the Court reminded litigants that the
depositions are a mechanism by which fishing
expeditions and delays may be avoided. Further
written interrogatories aid the court in limiting
SEC. 12. Party may not impeach his own witness. – harassment and to focus on what is essential to a
Except with respect to witnesses referred to in case. The Court stated:LawlibraryofCRAlaw
paragraphs (d) and (e) of Section 10, the party
producing a witness is not allowed to impeach his
credibility.
One of the purposes of the above rule is to prevent
fishing expeditions and needless delays; it is there to
maintain order and facilitate the conduct of trial. It
A witness may be considered as unwilling or hostile will be presumed that a party who does not serve
only if so declared by the court upon adequate written interrogatories on the adverse party
showing of his adverse interest, unjustified beforehand will most likely be unable to elicit facts
reluctance to testify, or his having misled the party useful to its case if it later opts to call the adverse
into calling him to the witness stand. party to the witness stand as its witness. Instead, the
process could be treated as a fishing expedition or an
attempt at delaying the proceedings; it produces no
The unwilling or hostile witness so declared, or the significant result that a prior written interrogatories
witness who is an adverse party, may be impeached might bring.
by the party presenting him in all respects as if he
had been called by the adverse party, except by
evidence of his bad character. He may also be Besides, since the calling party is deemed bound by
impeached and cross-examined by the adverse party, the adverse party’s testimony, compelling the
but such cross-examination must only be on the adverse party to take the witness stand may result in
subject matter of his examination-in-chief. the calling party damaging its own case. Otherwise
stated, if a party cannot elicit facts or information
useful to its case through the facility of written
Before a party may be qualified under Section 12, interrogatories or other mode of discovery, then the
Rule 132 of the Rules of Court, the party presenting calling of the adverse party to the witness stand
could only serve to weaken its own case as a result of This case stemmed from a collection suit filed by
the calling party’s being bound by the adverse party’s China Banking Corporation (China Bank) against Ever
testimony, which may only be worthless and instead Electrical Manufacturing Company Inc. (Ever), the
detrimental to the calling party’s cause. heirs of Go Tong, Vicente Go, George Go and
petitioner Ng Meng Tam sometime in December
2008. China Bank alleged that it granted Ever a loan
Another reason for the rule is that by requiring prior amounting to P5,532,331.63. The loan was
written interrogatories, the court may limit the allegedly backed by two surety agreements executed
inquiry to what is relevant, and thus prevent the by Vicente, George and petitioner in its favor, each
calling party from straying or harassing the adverse for P5,000,000.00, and dated December 9, 1993 and
party when it takes the latter to the stand. May 3, 1995, respectively. When Ever defaulted in
its payment, China Bank sent demand letters
collectively addressed to George, Vicente and
petitioner. The demands were unanswered. China
Thus, the rule not only protects the adverse party Bank filed the complaint for collection docketed as
from unwarranted surprises or harassment; it Civil Case No. 08-1028, which was raffled off to RTC
likewise prevents the calling party from conducting a Branch 62, Makati City.
fishing expedition or bungling its own case. Using its
own judgment and discretion, the court can hold its
own in resolving a dispute, and need not bear witness
to the parties perpetrating unfair court practices such In his Answer, petitioner alleged that the surety
as fishing for evidence, badgering, or altogether agreements were null and void since these were
ruining their own cases. Ultimately, such unnecessary executed before the loan was granted in 2004.
processes can only constitute a waste of the court’s Petitioner posited that the surety agreements were
precious time, if not pointless entertainment.29 contracts of adhesion to be construed against the
(Citation omitted) entity which drafted the same. Petitioner also
alleged that he did not receive any demand letter.

In this case, parties, with the approval of the Court,

furnished and answered interrogatories to parties In the course of the proceedings, petitioner moved
pursuant to Rule 25 of the Rules of Court. They that his affirmative defenses be heard by the RTC on
therefore complied with Section 6 of Rule 25 of the the ground that the suit is barred by the statute of
Rules of Court. Before the present controversy arose, limitations and laches.5 The motion was denied by
the RTC had already issued subpoenas for Yap to the court.6 On appeal, the Court of Appeals (CA) in its
testify and produce documents. He was called to December 22, 2010 Decision7 ruled that a
the witness stand when China Bank interposed its preliminary hearing was proper pursuant to Section
objection for non-compliance with Section 5 of the 6,8 Rule 16 of the Rules of Court due to the grounds
JAR. Having established that Yap, as an adverse cited by petitioner. There being no appeal, the
party witness, is not within Section 5 of the JAR’s decision became final and executory on August 28,
scope, the rules in presentation of adverse party 2011.9redarclaw
witnesses as provided for under the Rules of Court
shall apply. In keeping with this Court’s decision in
Afulugencia, there is no reason for the RTC not to On March 15, 2011, petitioner served interrogatories
proceed with the presentation of Yap as a witness. to parties10 pursuant to Sections 111 and 6,12 Rule
25 of the Rules of Court to China Bank and required
Mr. George C. Yap, Account Officer of the Account
In sum, Section 5 of the JAR expressly excludes from Management Group, to answer.
its application adverse party and hostile witnesses.
For the presentation of these types of witnesses, the
provisions on the Rules of Court under the Revised
Rules of Evidence and all other correlative rules
including the modes of deposition and discovery rules
shall apply.

FACTS: