DIGEST/IMMANUEL GRANADA/NG MENG TAM v. CHINA BANKING CORPORATION/2015

 

NG MENG TAM v. CHINA BANKING CORPORATION

 

FACTS

 

Petitioner served interrogatories to parties to respondent requiring Mr. Yap, Account Officer of the Account Management Group, to answer. Yap answered.


            Petitioner found Yap’s answers evasive and unresponsive, hence, petitioner applied for the issuance of a subpoena duces tecum and ad testificandum against Yap.

 

When Yap was called as witness, respondent objected citing Section 5 of the Judicial Affidavit Rule (JAR) arguing that Yap cannot be compelled to testify in court because petitioner did not obtain and present Yap’s judicial affidavit. 

 

Petitioner contended that Section 5 does not apply to Yap because it specifically excludes adverse party witnesses and hostile witnesses from its application. 

 

ISSUE

 

Does Section 5 of JAR apply to an adverse party witness or to a hostile witness like Yap?

 

RULING

 

No. Section 5 of the JAR states that:

 

Sec. 5. Subpoena. – If the government employee 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 refuses without just cause to make the relevant books, documents, or other things under his control available for copying, authentication, and eventual production in court, the requesting party may avail himself of the issuance of a subpoena ad testificandum or duces tecum under Rule 21 of the Rules of Court.


           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 witness nor (2) a hostile witness.  If this person either (a) unjustifiably declines to execute a judicial 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 Rules of Court.  Thus, adverse party witnesses and hostile witnesses being excluded they are not covered by Section 5.  Expressio unius est exclusion alterius: the express mention of one person, thing, or consequence implies the exclusion of all others.

 

Here, Yap is a requested witness who is the adverse party’s witness.  Regardless of whether he unjustifiably declines to execute a judicial affidavit or refuses without just cause to present the 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 application.


 

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