Friday, September 25, 2009

September 25 Comm Arb Lectures

    Review:

    Construction Arbitration

    so what body would have EOJ over construction dispute

    GR: CIAC

    X: but it would not preclude the parties from SUBMITTING DISPUTES IN ANOTHER ARBITRAL BODY [China Chiang Case]

    e.g. under ICC, FIDIC rules…

    Clarification in China Chiang case: in that case, it was held that the parties are only required to have an arbitration clause to vest jurisdiction to CIAC. However, the law does not preclude parties from stipulating a preferred forum or arbitral body but they may not divest the CIAC of jurisdiction as provided by law (in this case, ICC was chosen by the parties as the alternative arbitral body)

    What if the arbitration clause says that any dispute arising from the construction contract would be governed by ICC rules of Arbitration? One party files w/ CIAC, the other party files in ICC (at the same time), which Arbitral body would have jurisdiction over the dispute?

    -EO 1008 = law: therefore, as law confers jurisdiction, not the will of the parties, then CIAC which was given EOJ over construction disputes, should have jurisdiction and not ICC

    -however, China Chiang case, it was said that CIAC is only an alternative arbitral body + ADR law provides that party autonomy would govern, therefore, what the parties provided would govern - in this case ICC!!!

    What if the other party files ahead of the other:

    CIAC muna: How would you, as a foreign investor, minimize the bias of a home court advantage?

    -for CIAC: CIAC has EOJ, plus the foreign investor could opt to appoint another foreigner arbitrator

    -ISN'T IT FORUM SHOPPING: same parties, same COA, same subject matter

    -this isn't a problem on jurisdiction, but on venue! Both may acquire jurisdiction of the case, and submitting to one jurisdiction does not remove the jurisdiction of the other.

    -agreement to submit dispute to ICC, if subjected to NY Convention, under NY Convention, convention states are bound not only to enforce arbitral awards but also to recognize arbitral agreements

    BOTH CORRECT!

    If the arbitration clause provides that the arbitration would be governed by the UNCITRAL RULES, ad hoc or institutional arbitration?

    AD HOC. No institution under UNCITRAL

    SO what if CIAC vs. UNCITRAL ad hoc? (this is what happened with BF and Shangrila after it was said that the arbitration clause is binding)

    …dadadaa…!

    On new rules on arbitration [r19.7]: precludes R43 now!

    AC Enterprices iNc vs. CIAC 244 SCRA 55*

    ("Final and unappealable" vs. "final and executory")

    F: There was an arbitral award under CIAC for AC Enterprises. However, (I'm guessing) Dee Construction Corporation was not paying the award yet as they filed MR to SC.

    AC Enterprises now argues that as the award was already FINAL AND UNAPPEALABLE, it should bear the 12% interest rate imposed under the ruling in Eastern Shipping Lines case.

    H: "FINAL AND UNAPPEALABLE" different from "final and executory"

    A "final and inappealable (sic)" judgment is not the same as a "final and executory" one. The former becomes executory only as in the case of an award by the CIAC after the lapse of 30 days from receipt of notice thereof and no petition for review to the Supreme Court is made (Rules of Procedure Governing Construction Arbitration, Art. XVI, Sec. 1).

    While the petition for review does not automatically suspend the execution of the award of the CIAC, the Supreme Court may direct a stay of the execution. In the case at bench, the Court issued a temporary restraining order to stay the execution of the award (Resolution, October 14, 1991).

    The CIAC award did not become "final and executory" until after service of a copy of the Resolution dated April 8, 1992 of this Court, denying the motion for reconsideration. The award was fully paid to private respondent on May 6, 1992 (Rollo, p. 456). We consider the interest that accrued from April 8 to May 6, 1992, a period of less than a month, as de minimis as to warrant its charging against the award.

    High Precision Steel Center Inc. vs. Lim Kim Steel Builder 228 SCRA 397*

    (questions of fact are NOT APPEALEABLE - already final and executory)

    F: Hi-Precision entered a construction contract with Steel Builders where Steel Builders would complete a P21M construction project until Oct8, 1990. However, the project's completion date was moved to Nov1990.

    -Come Nov 1990, the construction was only almost 76% complete. Each party attributed delay to the other. Hi-Precision undertook the project and completed it February 1991.

    -Steel builders filed a REQUEST FOR ARBITRATION w/ CIAC

    -Steel builders filed a COMPLAINT FOR COLLECTION OF unpaid progress buildings

    -ANSWER: claimed actual and liquidated damages

    -CIAC: Hi-Precision ordered to pay Steel Builders

    -MRs filed by both parties. Net amount awarded reduced

    ON AWARD: based on mutual default (though they could not point out which of the two was the first infractor)

    -High Precision now goes to SC for review of the CIAC Arbitrator's award, claiming that there were errors of law and that if they do raise errors of facts, these should still be considered, there being GAD on the part of the CIAC

    H: For Lim Kim

    1. Should have impleaded the arbitrators of the CIAC, not CIAC, as the award sought ot be reviewed is that of the arbitrators and not of CIAC

    2. The matters raised by High Precision are really matters of fact which are not subject to review of the courts under Section 19 of eO 1008

    Precision is asking this Court to pass upon claims which are either clearly and directly factual in nature or require previous determination of factual issues. This upon the one hand. Upon the other hand, the Court considers that petitioner Hi-Precision has failed to show any serious errors of law amounting to grave abuse of discretion resulting in lack of jurisdiction on the part of the Arbitral Tribunal, in either the methods employed or the results reached by the Arbitral Tribunal, in disposing of the detailed claims of the respective parties.

  1. PNOC vs. CA 512 SCRA 684*
  2. (on question of law: test)

    F: PNCC entered into a MOA w/ Toll Regulatory Board, Citra Metro and MWSS for the relocation of MWSS utilities along SLEX affected by construction of the Skyway. PNCC subcontracted CMS for the relocation. Even before the signing of the contract, CMS proceeded to carry out the project upon request of PNCC
    -PNCC subsequently entered contract with CMS, agreeing that the contract price of almost P8M would be inclusive of taxes and was merely an estimate - the final price still to be computed based on actual accomplishments

    -also informed CMS that they would provide the necessary equipment, manpower and materials.

    -However, upon reaching the 75 calendar days deadline, the relocation project was still not finished. The project was finished after more than 1 year

    -PNCC deducted an estimated P1B from CMS's billings as "accomodations", then the two parties subsequently entered into an amended subcontract agreement where the final contract price agreed upon by the parties was almost P9M inclusive of taxes which was agreed to have superseded the price in the original contract.

    -CMS filed a complaint for collection of the rest of the amount in the AMENDED SUBCONTRACT AGREEMENT, saying that PNCC made deductions based on the "Accommodations" which CMS said must be disallowed.

    AWARD (by Lazatin, sole arbiter): for CMS

    -basically, Lazatin ruled that the Accommodations should be disallowed because it was agreed under the AMENDED COMPROMISE AGREEMENT that the price already includes any other commitment or agreement on the price pertaining to works covered therein.

    CA: Affirmed Lazatin's decision

    -PNCC failed to prove that it did undertake the rest of the work that should have been done by CMS after delay.

    MR Denied

    H:

    1. WON the issue involved is a question of law

    YES

    Ratio.To be sure, questions of law are those that involve doubts or controversies on what the law is on certain state of facts; and questions of fact, on the other hand, are those in which there is doubt or difference as to the truth or falsehood of the alleged facts. One test, it has been held, is whether the appellate court can determine the issue raised without reviewing or evaluating the evidence, in which case it is a question of law, otherwise it will be a question of fact

    --here, the controversy is WON the "accommodations" claimed by PNCC may be properly deducted from the contract price stipulated in the AMENDED SUBCONTRACT AGREEMENT which would entail interpretation of the true agreement between the parties

    b. WON there was GAD on the part of Lazatin

    NO

    -no showing of GAD

    -It is clear from a reading of said provision of the Contract Amendment executed after the completion of said project and after PNCC had determined the alleged deductions it was to charge against CMS’s account that Annex "A" thereof reflects the scope of work undertaken by CMS. Said Bill of Quantities therefore enumerates the costs borne by CMS as subcontractor in the accomplishment of the project.

    A careful perusal of Annex "A" of the Contract Amendment will show that the final Bill of Quantities for the scope of works undertaken by CMS for the project amounts to P8,872,593.74. There is no mention, either in the body of said Contract Amendment nor in the annex attached thereto, regarding the alleged "accommodations" which PNCC shall deduct from the amount payable to CMS. It would only be logical, therefore, to conclude that the Contract Amendment and Annex "A" attached thereto already reflect the actual amount to be paid to CMS for the scope of work it rendered regarding the relocation of the 450 mm pipe along the East Service Road of the South Luzon Tollway, said amendment having been executed after PNCC had already determined the necessary deductions to be made against the account of CMS.

    Who was the claimant here?

    CMS

    Under what arbitral panel?

    CIAC

    ABS-CBN Broadcasting Corp vs. World Interactive*

    (WON a petition to vacate award required before a party could file a petition for review before CA)

    F: ABSCBN entered into a licensing agreement with WINS for the latter to have exclusive license to distribute in Japan and sublicense TFC.

    DISPUTE: ABSCBN alleged that WINS inserted WINS WEEKLY into the TFC programming, an "UNAUTHORIZED INSERTION" which constituted a material breach of the agreement. ABSCBN thus wanted to terminate the agreement

    -WINS filed an arbitration suit pursuant to the arbitration clause of its agreement w/ ABSCBN: WINS claimed that ABSCBN only wanted to terminate the contract because it wanted to demand a higher fee and that it was undertaking to contract with NHK

    -Prof. Tadiar appointed as sole arbitrator, with the ff issues:

    1. Was the broadcast of WINS WEEKLY by the claimant duly authorized by the respondent [herein petitioner]?

    2. Did such broadcast constitute a material breach of the agreement that is a ground for termination of the agreement in accordance with Section 13 (a) thereof?

    3. If so, was the breach seasonably cured under the same contractual provision of Section 13 (a)?

    4. Which party is entitled to the payment of damages they claim and to the other reliefs prayed for?

    AWARD: for WINS

    -ABSCBN gave its approval for airing WINS WEEKLY as shown in the written exchanges between the parties

    -agreed with WINS that ABS only wanted to preterminate the contract to demand for higher fees

    -awarded damages in favor of WINS

    ABS filed petition for review under R43 with CA or R65 Petition for certiorari in the alternative

    WINS filed petition for confirmation of arbitral award before RTC QC; thus, ABSCBN filed a supplemental petition w/ CA to enjoin the RTC QC from further proceeding with petition for confirmation (granted). WIN's MR not resolved.

    CA: Affirmed Prof. Tadiar's decision

    -TOR itself provided that the decision should be final and unappealable, and as no MR filed, petition for review must fail.

    -RTC, not CA, has jurisdiction over the arbitral award

    -R65 petition only proper if the courts refuse or neglect to inquire into the facts of an arb award

    MR DENIED

    WON the aggrieved party in a voluntary arbitration dispute may avail of, directly in CA, a petition for review under R43 or R65 instead of filing for a petition to vacate the award in RTC under RA876

    Pede under either pero dapat 1 lang!

    WEIRD...

    *At first it said that only RTC could take jurisdiction and only under the grounds enumerated therein. "..the law itself clearly provides that the RTC must issue an order vacating an arbitral award only "in any one of the . . . cases" enumerated therein. Under the legal maxim in statutory construction expressio unius est exclusio alterius, the explicit mention of one thing in a statute means the elimination of others not specifically mentioned. As RA 876 did not expressly provide for errors of fact and/or law and grave abuse of discretion (proper grounds for a petition for review under Rule 43 and a petition for certiorari under Rule 65, respectively) as grounds for maintaining a petition to vacate an arbitral award in the RTC, it necessarily follows that a party may not avail of the latter remedy on the grounds of errors of fact and/or law or grave abuse of discretion to overturn an arbitral award."

    *then proceeded on saying that voluntary arbitrators may be classified as QJA and thus are subject to review by CA under R43

    *it also proceeded by saying that courts could also take cognizance of the petition for certiorari under R65 if there's GAD.

    *Cited Insular Savings Bank case: several judicial remedies an aggrieved party to an arbitral award may undertake:

    (1) a petition in the proper RTC to issue an order to vacate the award on the grounds provided for in Section 24 of RA 876;

    (2) a petition for review in the CA under Rule 43 of the Rules of Court on questions of fact, of law, or mixed questions of fact and law; and

    (3) a petition for certiorari under Rule 65 of the Rules of Court should the arbitrator have acted without or in excess of his jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction.

    Pero sabi ng court di pede pareho. Dapat:

    Time and again, we have ruled that the remedies of appeal and certiorari are mutually exclusive and not alternative or successive.

    So petition denied!

    Metrobank vs. CA GR 166260 18 February*

    F: Metrobank received a check which was drawn against the account of Bienvenido C. Tan with United Overseas Bank. However, AFTER METROBANK had already paid the amount, it found a material alteration (date and amount) so it wanted to refund the money it paid. UOB refused.

    -METROBANK filed COMPLAINT before PCHC Arbitration Committee: UOB had duty to examine the deposited check for any material alteration but since UOB failed to do so, UOB should bear the loss (thus, isoli nyo pera namin!)

    -UOB filed answer with counterclaim: Metrobank failed to comply w/ 24-h clearing house rule + cleared the check with gross neglighence

    -1 year after, Metrobank moved for postponements on the ground that PNP Crime Lab document results were not yet available. Metrobank did the same for two more times.

    -on the last reset date, Metrobank's counsel failed to appear, thus UOB moved for the dismissal of the case. ARB granted: DISMISSED COMPLAINT

    -MR w/ Med cert of Metrobank's counsel (Counsel was afflicted w/ influenza) and the PNP Crime Lab Doc Exam Report: check was indeed altered

    -UOB opposed motion; ARB DENIED MR

    -2nd MR filed: DENIED AGAIN. MR again for 3rd time.

    -PCHC sent Metrobank a communication saying that the proper remedy should be to file for a NOTICE OF APPEAL w/ PCHC and PETITION FOR REVIEW w/ RTC w/n 15d from receipt of PCHC resolution

    -so METROBANK filed Petition for Review w/ RTC

    RTC: Dismissed petition

    -no jurisdiction: filed out of time

    -Arb Committee correctly dismissed case: (a)Failure to prosecute; (b) under prevailing jurispurdence, it is the drawee-bank which should bear the loss for a forged or altered check

    CA: affirmed RTC on the point of failure to prosecute + violation of 24h clearing house rule

    BUT ruled that petition for review before RTC was filed on time in accordance w/ PCHC rules

    H: DISMISSED

    METROBANK should not have followed the PCHC Rules as it was already held in Insular Savings bank case that the PCHC cannot confer jurisdiction on the RTC to review arbitral awards

    -mentioned remedies under Insular Savings vs. FEBTC

    (1) a petition in the proper RTC to issue an order to vacate the award on the grounds provided for in Section 24 of RA 876;

    (2) a petition for review in the CA under Rule 43 of the Rules of Court on questions of fact, of law, or mixed questions of fact and law; and

    (3) a petition for certiorari under Rule 65 of the Rules of Court should the arbitrator have acted without or in excess of his jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction.

    Federal Builders Inc vs. Daiichi Properties and*

    (arbitrators should access all means to ascertain the facts of the case)

    F: Federal Builders and Daiichi Properties entered into a construction contract wherein Federal would construct the Orient Plaza for Daiichi. They had an original construction contract containing the contract price of the materials. However, when Daiichi reduced the concrete strength from 8k to 6k, it resulted into the decrease in the required quantities of cement, steel bars, and other construction materials.

    DISPUTE: Dispute arose on how the computation of the deductive cost would be derived.

    Daiichi

    Federal

    difference between the quantities/peso value of steel bars, cement, labor and materials required under the original plan w/ the quantities/peso value of the same items required under the revised plan

    comparing the quantities/peso value of steel bars, cement, labor and materials required under the construction agreement (or guaranteed maximum) with the quantity of materials required under the revised plan

    -Daiichi procured the services of a surveyor (Davis Langdo and Seah Philippines, Inc. (DLS)) who arrived at a cost near the amount estimated by Daiichi. Feeling aggrieved, Federal filed a petition to arbitrate under CIAC.

    -During arbitration, Daiichi filed a motion to commission an independent quantity surveyor

    -CIAC arbitrator: (1) not necessary; (2) it should be agreed upon by both parties

    -MR denied, Daiichi appealed to CA

    CA: reversed Arbitrator, ordered that the motion of CIAC be granted

    H: FOR DAIICHI (affirm CA)

    1. Should have filed Petition for Review based on R43, not Petition for Certiorari based on R65. And even if valid R65 petition, it should still be dismissed because there is no GAD

    2. CA decision valid: Arbitrators should have allowed the commissioning of an independent expert to employ all reasonable means to ascertain the facts in each case

    -Daiichi was deprived of the opportunity to present evidence for its case when it's motion was denied.

    3. It is not required that both parties should agree to the engagement of an independent surveyor, under SECTION 5, Chapter XV of Rules of Procedure Governing Construction Arbitration

    *Article 1, Section 3 of rules of procedure governing construction arbitration: “use every and all reasonable means to ascertain facts in each case speedily and objectively and without regard to technicalities of law or procedure.”

    4. The initial survey initiated by Daiichi was not independent because it was done through the behest of Daiichi.

    Insular Savings vs. FEBTC

    (remedies available for aggrieved party in an award made by PCHC; PCHC rules cannot confer jurisdiction on RTC as it is not created by Congress)

    F: HBTC (insular?) sent 3 checks totalling P25B to FEBTC for clearing by operation of the PCHC clearing system. However (late nga lang) FEBTC dishonored checks for insufficiency of funds and returned checks to HBTC. HBTC REFUSED TO ACCEPT DISHONORED CHECKS because it was returned after the reglementary regional clearing period

    -FEBTC commenced arbitration proceedings against HBTC under PCHC. HOWEVER, pending arbitration, FEBTC filed another case before RTC for COLLECTION FOR A SUM OF MONEY AND DAMAGES.

    As there was a pending arbitration proceeding, RTC suspended the proceedings in the case (later on suspending the proceedings against HBTC only, not as to the individual defendants).

    -PCHC AWARD: for FEBTC. MR DENIED

    -HBTC appealed to the RTC which suspended the collection suit - filed PETITION FOR REVIEW W/ RTC, which the latter took cognizance of, even ordering that the parties submit their respective memoranda

    RTC: DISMISSED petition for review on the theory that it should have been filed as a separate and distinct case and not with same proceedings

    Petition for Review on Certiorari

    INSULAR/HBTC: Civil case merely suspended, thus any petition questioning the decision of the Arbitration Committee must be filed w/ the same court and should not be docketed as a separate action

    FEBTC: correctly dismissed. No statutory basis for the appeal.

    H: DISMISS PETITION

    Remedies available:
    1. PCHC rules still governed by RA 876 - so can file a PETITION for vacating an award under Section 24, using the 4 grounds enumerated therein

    2. Petition for review under R43 to CA on questions of fact, of law, or mixed questions of fact and law

    3. Petition for certiorari under R6: GADALEJ to ca

    *as HBTC failed to avail of the said remedies (it filed a petition for review with RTC), wrong remedy

    *on PCHC Rules: cannot confer jurisdiction as it was not created by Congress but by banks!

    ASIAKONSTRUCT vs. CIAC, ROMARC

    F: ASIAKONSTRUCT and ROMARC entered into a Subcontracting agreement wherein Romarc was subcontracted to undertake the paint and garnishing work at the Clarion Electronics Factory in Cavite.

    However, even if ROMARC allegedly finished the job on time, ASIAKONSTRUKT did not pay them so ROMARC instituted an arbitration case with CIAC.

    -ANSWER: ROMARC was in delay, so numerous expenses were even chargeable to ROMARC


    AWARD: FOR ROMARC: it completed work on time and in accordance with the subcontract agreement

    Aggrieved, ASIAKONSTRUKT filed petition for review on certiorari

    H: This involves a question of fact (WON ROMARC finished the obligation in accordance with the subcontract agreement) thus is not subject to review: the decision of the arbitrator was supported by evidence on record

    -as questions of fact are not subject to Petitions for certiorari under R65, DISMISS petition!!!

    UNCITRAL ARBITRATION RULES

    Procedure:

  3. Notice of arbitration
  4. (note contents)

  5. (the notice contains the proposal on the number of arbitrators) Should choose the arbitrator/s:
  6. UNCITRAL (default): 3

    ICC (default): 1

    What's the difference? ICC: institutional:: UNCITRAL: Ad hoc

  7. Agree on the number: so appoint the arbitrators
  8. If 3 arbitrator: parties each would appoint 1 arbitrator. The 2 appointed arbitrators should choose the 3rd. If no one chosen:

    1. Appointing authority chooses
    2. Party may request the SecGen of the Permanent Court of Arbitration at the Hague to designate an appointing authority who would appoint the 3rd arbitrator

    e.g. Arbitration Institutions

    SIAC (singapore international arbitration commission)

    PDRCI (Philippine Dispute Resolution Commission Inc)

    HK

    KCAB (Korea Commercial Arbitration Board)

    List procedure: appointing authority would appoint the 3rd arbitrator from a list submitted by the parties (with ranking)

  9. The appointed arbitrator would then disclose circumstances to give rise to justifiable doubts as to his impartiality or independence.
  10. File statement of Claims
  11. File statement of defense
  12. -the filing is not simultaneous

    -both are filed with arbitral tribunal and with the parties

    -can include a statement of counter-claim (which would use the rules applicable to the statement of claims)

  13. Hearing
  14. Where: venue agreed upon by the parties, language agreed upon by the parties (default: arbitral tribunal would choose)

    Witnesses

    -GR: in camera

    Interim Measures should not be deemed to be incompatible with arbitration agreement

  15. Closing of hearings
  16. Render Award
  17. Enforce/Correct award
  18. *note: no provision in UNCITRAL Arbitration Rules for appeal, only for correction

Thursday, September 24, 2009

Evidence Lecture: September 24

Evidence Lecture: September 24

Thursday, September 24, 2009

6:07 PM

Section 45 and 46: Review

*both published

*both Multiple hearsay

*should include industries, trades

Are journals included under Section 45?

-Section 46:

*it's treatise

*plus subject includes SCIENCE (scholarly: plus only History, law, science or art)

-Sectuib 45: commercial

*very volatile because it is used in trade

*What about electronic data banks shared by banks:

VAA: it is used by the industry of banking, but is it published under section 45?

VAA ulit: REE should not apply to Section 45, as REE specially applies to certain sections.

Testimony or Deposition at a Former Proceeding

Section 47 - TESTIMONY OR DEPOSITION AT A FORMER PROCEEDING

The testimony or deposition of a witness deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him.

  • Requisites:
    1. Witness is dead or unable to testify
    2. His testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those representing the same interests
    3. The former case involved the same subject as that in the present case, although on different causes of action
    4. The issues testified to by the witness in the former trial is the same issue involved in the present case
    5. The adverse party had an opportunity to cross-examine the witness in the former case
  • Subsequent failure or refusal to appear at the second trial, or hostility since testifying at the first trial ≠ inability to testify
    • Inability should proceed from a grave cause almost amounting to death

Formerly presented: idea of separateness, no requirement that the previous proceeding already ended

On appeal: continuing

Is R23 (deposition in perpetuam): separate or same proceeding?

Separate!

Contempt: separate: special civil action!

Opinion Rule

GR: opinion of a witness not admissible

--why: R128.1: only matters of fact are admissible!

X:

  1. Expert witness
  2. Ordinary witness, under exceptional circumstances (4)

*identity of a person

*Handwriting

*Mental sanity of a person

(impression on EBCA)

If handwriting: what should the proponent make W show? That the W is familiar with the handwriting (show facts why W is familiar with the handwriting)

e.g. W is familiar with the handwriting because he has seen the handwriting many times

What if the NBI agent = W?

*if expertise used: under 49

*if personal knowledge used: under 50

QUALIFICATION:

-the process of establishing the expertise of the witness to be able to present him as an expert

Is it true that medical conditions always require expert witness under Sec49?

No. Res Ipsa Loquitur.

What about mental condition? Why also under Section 50?

Section 50 talks about the general kind of insanity which is observable by other persons

Section 49: if medical condition that is not readily observable by ordinary persons (e.g. ADHD, dementia, psychosis…)

If W presented to show emotional ties, would mental insanity be relavant?

NO. MENTAL, not psychological, not emotional sanity.

EBCA: why opinion allowed in this situations?

e.g. if a person is under the influence of alcohol, and you're asked about his appearance or behavior?

His speech is blurred, he walks in swaying, he smells of alcohol, he's red in the face…

---but these details are not explained that the person is under alcohol, the W maybe just describing a person under stupor of drugs…

BUT you can only give your opinion if you're competent to give it

e.g. A vs. B. Doctor examined A, found that he was cuckoo. Doctor left, cannot be found. Could B testify on what Doctor found?

---NO. hearsay. B doesnot have personal knowledge of the findings of the doctor + it's an out of court declaration presented for the truth (irrelevant if it's an opinion or a fact)

Character evidence

Section 51. Character evidence not generally admissible; exceptions: —

(a) In Criminal Cases:

(1) The accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged.

(2) Unless in rebuttal, the prosecution may not prove his bad moral character which is pertinent to the moral trait involved in the offense charged.

(3) The good or bad moral character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged.

(b) In Civil Cases:

Evidence of the moral character of a party in civil case is admissible only when pertinent to the issue of character involved in the case.

(c) In the case provided for in Rule 132, Section 14, (46a, 47a)

If witness presented Good Morale Character, would it boomerang against him?

NO. Baligtad. Only present Good Morale Character if his character as a witness is impeached. (R132,14)

On presentation of character evidence of the victim (criminal case)

e.g. rape

Defense present that the woman raped was lascivious. Would it prove that she consented?

e.g. libel

If the defense shows that the offended party has a loose mouth. The accused was only provoked to say the libelous statement

MORAL CHARACTER

-presumption: to do good or bad

-VAA: not philosophy, characterbeing moral or not, depending on the situation

…there are some offenses which do not refer to moral traits (because when we understand it in the general sense, all offenses are bad!)

-refer to R132.11 (it has to do with honesty, truth, integrity)

Back to slander: does it have something to do with moral character? If the slander or libel contains falsity, it would reflect on your character

e.g. sa libel

A says, "malandi si B, sumasama sa kung sino-sinong lalaki!"

B, knowing that it was not true, would say, "Chismosa ka! (blahblahblah, which would be slanderous)"

A sued B

B would show that A was the one who started it! She said something which is not true.

VAA: B's testimony/evidence is admissible as it would prove the probability or probability that B really committed slander/libel

Examples of offenses which does NOT involve a moral trait:

*offenses mala prohibita

*rape: no

*physical injuries

*VAWC: depends

*rebellion: no

*plunder: yes

---wherein character evidence not admissible

PRESUMPTIONS

RULE 131

Burden of Proof and Presumptions

RULE 131

Burden of Proof and Presumptions

Section 1. Burden of proof. — Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law. (1a, 2a)

Burden of proof

Burden of evidence

Does not shift, remains throughout the trial

(on COA)

Shifts from party to party depending upon the exigencies of the case

Generally determined by the pleading filed by the party

Determined

*by the developments at the trial

*by the provisions of the substantive law

or procedural rules: admissions, presumptions, judicial notice

e.g.

CRIMINAL: guilt beyond reasonable doubt

CIVIL: preponderance of evidence

ADMIN: substantial evidence

WHY there's burden of proof: for the court to determine WON the person who has the burden establishing the burden of proof has done so.

e.g. defense filed demurrer to evidence. Denied. Who has burden of evidence?

Defendant. He has now to present evidence to prove that he is not guilty.

Section 2. Conclusive presumptions. — The following are instances of conclusive presumptions:

(a) Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led to another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it:

(b) The tenant is not permitted to deny the title of his landlord at the time of commencement of the relation of landlord and tenant between them. (3a)

Conclusive presumption:

-the law does not allow to be contradicted

-if the other party presents evidence to contradict it, the evidence would be inadmissible!!!

On (b)

e.g. A (landlord) files a collection suit against B (tenant). B presents as defense that A is not his landlord, it's C, so he does not have to pay A.

His defense is not admissible...

Estopped!

Section 3. Disputable presumptions. — The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence:

(a) That a person is innocent of crime or wrong;

-presumption of innocents

(b) That an unlawful act was done with an unlawful intent;

-baligtad ng (a): pag may ginawa kang masama, intended un

(c) That a person intends the ordinary consequences of his voluntary act;

(d) That a person takes ordinary care of his concerns;

(e) That evidence willfully suppressed would be adverse if produced;

Requisites:

  1. Material: not merely

*corroborative

*cumulative

*unnecessary

  1. Party had opportunity to produce it
  2. Party who had opportunity to produce it is the only party who has access to it: not available to both parties
  3. Privilege not to produce it

(f) That money paid by one to another was due to the latter;

(g) That a thing delivered by one to another belonged to the latter;

(h) That an obligation delivered up to the debtor has been paid;

Obligation: it's the evidence of the obligation

e.g. PN, IOU

…debtor usually makes the PN, and the creditor keeps it as proof of the obligation of the debtor to him (so that he would be authorized to collect/demand action). If the PN is with the debtor na, it is presumed that the debtor already paid or completed the obligation for the creditor not be able to demand once again

(i) That prior rents or installments had been paid when a receipt for the later one is produced;

-VAA: presumption is that you're not dyslexic. Pay chronologically. It is normal that you don't want to be confused, so pay chronologically! You don't want to pay for December then September…

(j) That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act; otherwise, that things which a person possess, or exercises acts of ownership over, are owned by him;

e.g. Robbery with homicide. Took wallet. Then A found to have the wallet. A is presumed to be the thief and the killer.

(k) That a person in possession of an order on himself for the payment of the money, or the delivery of anything, has paid the money or delivered the thing accordingly;

e.g. Negotiable Instrument, Bill of lading

Somebody drawn the instrument, you are the drawee. When the thing has already been presented to the drawee, it is presumed that the drawee complied with it

(l) That a person acting in a public office was regularly appointed or elected to it;

(m) That official duty has been regularly performed;

(regular performance of duties)

(n) That a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction;

(presumption of proper jurisdiction)

(o) That all the matters within an issue raised in a case were laid before the court and passed upon by it; and in like manner that all matters within an issue raised in a dispute submitted for arbitration were laid before the arbitrators and passed upon by them;

(p) That private transactions have been fair and regular;

(q) That the ordinary course of business has been followed;

(r) That there was a sufficient consideration for a contract;

(s) That a negotiable instrument was given or indorsed for a sufficient consideration;

(t) That an endorsement of negotiable instrument was made before the instrument was overdue and at the place where the instrument is dated;

(u) That a writing is truly dated;

(v) That a letter duly directed and mailed was received in the regular course of the mail;

(w) That after an absence of seven years, it being unknown whether or not the absentee still lives, he is considered dead for all purposes, except for those of succession.

e.g. For insurance purposes.

For marriage: applicable - maximum!

The absentee shall not be considered dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened.

The following shall be considered dead for all purposes including the division of the estate among the heirs:

(1) A person on board a vessel lost during a sea voyage, or an aircraft with is missing, who has not been heard of for four years since the loss of the vessel or aircraft;

(2) A member of the armed forces who has taken part in armed hostilities, and has been missing for four years;

(3) A person who has been in danger of death under other circumstances and whose existence has not been known for four years;

(4) If a married person has been absent for four consecutive years, the spouse present may contract a subsequent marriage if he or she has well-founded belief that the absent spouse is already death. In case of disappearance, where there is a danger of death the circumstances hereinabove provided, an absence of only two years shall be sufficient for the purpose of contracting a subsequent marriage. However, in any case, before marrying again, the spouse present must institute a summary proceedings as provided in the Family Code and in the rules for declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.

E.g. there is a small tugboat which has to deliver some persons to Batangas during a storm. Only found tugboat afterwards, without the passengers. 4 years already passed.

Not under (1) because the vessel is not lost. But may be presumed under (3): show that the waves would be 20ft high and the tugboat found upturned

E.g. what about journalists and medical staff who are also in armed hostilities. Under (2)?

No. Under (3). There's a danger of death here!

In respect of marriage, the spouse present MUST HAVE A WELL-FOUNDED BELIEF, not a well-founded desire.

*the rules were old. Examples: entries in the course of business and the definition of the original of the document. During that time, there was no photocopier nor printer.

(x) That acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact;

(y) That things have happened according to the ordinary course of nature and ordinary nature habits of life;

VAA: but laws of nature are also subject to judicial notice. Pano ngayon yan?

e.g. laws of nature that the court could take JN:

*gravity

*when there's smoke, there's fire

*when you boil water, it would evaporate

e.g. presumption: that when a land widens

September 22 Evidence LEcture

    Review

    Falls under R130.44

    Lao: blotter vs. police report

    Wallem: collation of entries vs. logbook (which is under specific duty of captain to record)

    Manalo: Sheriff's return

    2 lang case sa R130.43

    Canque

    Aznar

    Aznar vs. Citibank

    F: Aznar presented a printout given by the Ingtan Traveling Agency wherein it was indicated that the credit card of Aznar was declared over limit.

    -It is a COMPUTER PRINTOUT

    -as to the source of printout

    *Is this a hearsay situation or a RIAA situation?

    Elements of RIAA

    (a) Act/declaration/omission

    (b) there's an admission

    (c) the admission is against the rights of a party

    Here: Is there an admission which will prejudice the rights of another party?

    Sabi ni Ma'am Oo.

    Could Aznar have sued Ingtan instead?

    Yes. Pero mahal so sa Manila sha nag-sue

    If it was not Citibank who declared that Aznar was declared overlimit, why is he suing Citibank?

    Ingtan could have only known (and could have gotten the COMPUTER PRINTOUT) only from Citibank. (from inference). In essence, it was CITIBANK who said that Aznar was already overlimit.

    VAA: ONLINE transaction so kahit gaano kalayo ang Indonesia, instantaneous agad ung result.

    The statement was from Ingtan but Aznar was saying that it was really Citibank's. RIAA!

    How does a credit card work?

    Aznar goes to Ingtan, wanting to make utang, for a plane ticket. If Ingtan honors the request, Ingtan would use its own funds to buy the ticket. Ingtan would then ask Citibank to reimburse. Citibank would then pay Ingtan (with interest) then collect with interest from Aznar. SO NOT JOINTLY INTERESTED.

    DOES NOT FALL INTO ANY EXEMPTION UNDER RIAA! So inadmissibe under RIAA.

    WHAT ABOUT HEARSAY EVIDENCE? IS IT ADMISSIBLE UNDER HEARSAY EVIDENCE RULE?

    When the document was alleged to be hearsay: Aznar was presenting a COMPUTER PRINTOUT. CITIBANK objected, hearsay! Nubi, who gave the printout, is not in the court and the contents are only showing the contents.

    How do you make a computer document?

    DIGITIZE: convert it from what to a digital file…

    SCAN: you get

    RECORDING

    EMAILING

    "it doesn't follow that the one who printed the printout was the one who made it."

    How did the printout became questionable under hearsay?

    Aznar presumed that Nubi given the document because Nubi signed it. However, as the paper had two signatures, it is doubtful who really made the computer printout. BUT IRRELEVANT RE: HEARSAY BECAUSE WHOEVER SIGNED IT, HE OR SHE IS OUT OF COURT!!!

    VAA: "Don't ever say 'Official course of business'. Nakakalito un!"

    -Not under R130.43

    1. the person who made the entry must be dead, or unable to testify;

    2. the entries were made at or near the time of the transactions to which they refer;

    3. the entrant was in a position to know the facts stated in the entries;

    4. the entries were made in his professional capacity or in the performance of a duty, whether legal, contractual, moral or religious; and

    5. the entries were made in the ordinary or regular course of business or duty.

    --the entrant was not identified . So how would the SC know if 3-5 were complied with


    E.g. OLD BUSINESS DOCUMENTS OF A COMPANY. You want to trace it, and there's an official of the company to testify that these documents were kept by the custodian, and the custodian would be describe…and he performs it in the regular course of business. But the witness FORGOT THE CUSTODIAN'S NAME.

    Would it be admissible under rule 130.43?

    YES. IDENTITY not a requisite for R130.43 as long as it was established that the entrant was in the position, made the entries in the regular course of business or duty

    VAA: IT IS DANGEROUS FOR THE SC TO RULE THAT THE IDENTITY OF THE ENTRANT MUST BE ESTABLISHED. DO NOT TAKE IT LITERALLY. BASTA AS LONG AS IT IS ESTABLISHED THAT THE ENTRANT MADE THE ENTRIES IN THE REGULAR COURSE OF BUSINESS AND THAT THE ENTRANT WAS IN THE POSITION TO KNOW THE FACTS STATED THEREIN, PEDE R130.43.

    So if nasa ibang lugar ka, how would you acquire an entry which may be admissible under 43 and 44?

    Dapat yung 4 requisites hindi hearsay…

    *Deposition OR

    *let the entrant go to court in RP to witness

    What other COA should have Aznar adopted here?

    *NEGLIGENCE OF CITIBANK: It doesn't necessarily follow that if you're not listed in the black list you're not necessarily declared under limit

    *SUE INGTAN

    *The Black List bulletin is not conclusive as to the fact of WON Aznar was blacklisted

    SO AS THE LAWYER OF AZNAR, how would you go about it?

    Establish that declared overlimit = blacklisted: BUT THIS IS NOT THE ISSUE, the issue is WON CITIBANK ordered Ingtan not to pay for Aznar!!!! Aznar should show that being blacklisted is not a defense by citibank because it is IRRELEVANT! IF blacklisted, it may mean Aznar did not pay premiums etc.

    HERCE vs. MUNICIPALITY OF CABUYAO, LAGUNA

    F: Ordinary registry book shows that Cabuyao was given the DECREE 4244 over lot in 1911, map, ….

    Solinap vs. LOCSIN

    F: On the certificate of live birth (two presented: one from the local civil registrar vs. central registry)

    H:

    Local (Exhibit D)

    General (Exhibit 8)

    *In a form printed in 1958 (NPO prints it) but the entries made in it were allegedly made in 1957

    *The entry was merely pasted on the book, when the rest were sawn

    *No important particulars

    *The space which call for an entry of the legitimacy of the child is blank

    *photocopy

    *back of volume torn

    *No signature of the late Juan C. Locsin

    "From Batanes, to Aparri…(*pause*)di ba pareho yun?"


    Fernandez vs. CA

    H: Canonical documents not prima facie, not official records…

    On the Baptismal Certificates

    The baptismal certificates of petitioner Claro naming private respondent as his father has scant evidentiary value. There is no showing that private respondent participated in its preparation.

    The rule is that although the baptismal record of a natural child describes her as a child of the decedent, yet, if it in the preparation of record the decedent had no intervention, the baptismal record cannot be held to be a voluntary recognition of parentage.The reason for this rule that canonical records do not constitute the authentic document prescribed by Arts. 115 and 117 to prove the legitimate filiation of a child is that such canonical record is simply proof of the only act to which the priest may certify by reason of his personal knowledge, an act done by himself or in his presence, like the administration of the sacrament upon a day stated; it is no proof of the declarations in the record with respect to the parentage of the child baptized, or of prior and distinct facts which require separate and concrete evidence.

    While baptismal certificates may be considered public documents, they can only serve as evidence of the administration of the sacraments on the dates so specified. They are not necessarily competent evidence of the veracity of entries therein with respect to the child's paternity.

    On the Certificates of Live Birth

    The certificates of live birth of the petitioners identifying private respondent as their father are not also competent evidence on the issue of their paternity. Again, the records do no show that private respondent had a hand in the preparation of said certificates. In rejecting these certificates.

    Section 5 of Act No. 3793 and Article 280 of the Civil Code of the Philippines explicity prohibited, not only the naming of the father or the child born outside wedlock, when the birth certificates, or the recognition, is not filed or made by him, but, also, the statement of any information or circumstances by which he could be identified. Accordingly, the Local Civil Registrar had no authority to make or record the paternity of an illegitimate child upon the information of a third person and the certificate of birth of an illegitimate child, when signed only by the mother of the latter, is incompetent evidence of fathership of said child. A birth certificate not signed by the alleged father therein indicated is not competent evidence of paternity.

    Rule 130.47

    Section 47 - TESTIMONY OR DEPOSITION AT A FORMER PROCEEDING

    The testimony or deposition of a witness deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him.

  1. Requisites:
    1. Witness is dead or unable to testify
    2. His testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those representing the same interests
    3. The former case involved the same subject as that in the present case, although on different causes of action
    4. The issues testified to by the witness in the former trial is the same issue involved in the present case
    5. The adverse party had an opportunity to cross-examine the witness in the former case

    does it refer to res judicata?

    NO. Not to COA

    A vs. B. Witness is C. C was cross-examed. Case was still pending. C went abroad, can no longer be located. Subsequent case between A and B but different COA. Admissible? KELANGAN BA TAPOS NA YUNG UNANG CASE?

    VAA (and ANTON :) ): NO. The rationale for this rule is that the witness is not available anymore and the previous parties over the same subject matter would want to use the testimony.

    If one case labor, yung isa civil case: ADMISSIBLE?

    - Administrative…

    What about impeachment, then used in a subsequent criminal case?

    INADMISSIBLE. Impeachment is not administrative in character - it's political!

    COMELEC CASE?

    ?

    Commercial Lists

    Section 45 - COMMERCIAL LISTS AND THE LIKE

    Evidence of statements of matters of interest to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible as tending to prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein.

  2. Examples: Carlisle or Wigglesworth Tables and accepted actuarial and annuity tables
  3. "Therein" - in the occupation

    Who publishes these publication? Persons engaged in the occupation

    ESTRADA v. NOBLE: Ballantyne Scale of Values

    Sabungeros present a magazine of their kristos etch… ?

    List of cargoes allowable etc…? Is it rellied upon by them? YES.

    Mining Prospectus

    Trade Circulars...

    Learned Treatises

    Section 46 - LEARNED TREATISES

    A published treatise, periodical or pamphlet on a subject of history, law, science, or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject.

  4. Requisites:
    1. The court takes judicial notice thereof
    2. The same is testified to by a witness expert in the subject

    *ON PUBLICATION: BOTH ARE PUBLISHED! SO MULTIPLE HEARSAY!!!

    The Verdict: Code Blue, referred to the book of the expert doctor, it was a published book. Any statement in that book admissible?

    YES. Provided

  5. The court takes judicial notice
  6. Under Section 1/2/3? SECTION 3

    Of what? VAA: of the fact stated therein...