Republic vs. Sandiganbayan

G.R. No. 112710. May 30, 2001

MAIN TOPIC – Rule 23


  • Petitioner Republic of the Philippines, represented by the Philippine Commission for Good Government, filed before the Sandiganbayan a complaint for “Reversion, Reconveyance, Restitution, Accounting and Damages”, against group of individuals ( Lucio C. Tan, Ferdinand E. Marcos, Imelda R. Marcos, Carmen Khao Tan, Florencio T. Santos et al).
  • Petitioner filed a “Motion for Leave to Amend and for Admission of Second Amended Complaint” and attached thereto a “Second Amended Complaint.” Petitioner sought to substitute defendant Ferdinand Marcos with his estate, President Marcos having died pendente lite, and include as additional defendants three (3) individuals  and (42) corporations who allegedly participated in the Marcoses’ accumulation of ill-gotten wealth.
  • A Resolution was issued by the Sandiganbayan granting the “Motion for Leave to Amend and for Admission of the Second Amended Complaint” and admitted the “Second Amended Complaint.” The court ordered the issuance of summonses to the newly-impleaded defendants.
  • Petitioner filed a “Motion for Leave To Take the Deposition of Rolando C. Gapud Upon Oral Examination in the Crown Colony of Hongkong.” Petitioner alleged that Mr. Rolando C. Gapud, former financial adviser of President Marcos and his wife, was willing to testify on matters relevant to the subject of the case. Petitioner prayed that the court allow the taking of the testimony by deposition upon oral examination of Mr. Gapud before the Philippine Consulate in Hongkong, or in any other Philippine Foreign Office
  • Sandiganbayan denied petitioner’s “Motion for Leave to Take Deposition of Rolando C. Gapud and held that the taking of deposition is premature because not all defendants have been summoned or have filed their answers to the complaint, and no special circumstances existed that warranted the taking of the deposition before service of answers.
  • Petitioner claims, however, that the taking of Mr. Gapud’s deposition does not require prior leave of court because Section 1, Rule 24 states that a deposition may be taken after jurisdiction has been obtained over ANY defendant, The provision does not state that jurisdiction should first be acquired over ALL the defendants. And since summons has been served on most of the defendants and some, particularly principal respondent Lucio Tan, have already filed their answers to the complaint, jurisdiction has already been acquired by respondent Sandiganbayan, and there is no need for leave to take Mr. Gapud’s deposition.


Whether or not Sandiganbayan seriously erred in denying the petitioner’s Motion for Leave to Take the Deposition of Rolando C. Gapud on the ground that: (1)  summons have not yet been served upon all the respondents and all the respondents have not yet filed their answer to the complaint. (2) in declaring that there is no showing of any special or unusual circumstances to warrant the necessity of taking the deposition of Rolando C. Gapud. And (3) the petitioner (plaintiff-movant) did not allege that Rolando C. Gapud will be unavailable as witness to testify during the trial.”


NO.  Depositions pending action may be conducted by oral examination or written interrogatories, and may be taken at the instance of any party, with or without leave of court. Leave of court is not necessary to take a deposition after an answer to the complaint has been served, It is only when an answer has not yet been filed (but jurisdiction has been obtained over any defendant or over property subject of the action) that prior leave of court is required. The reason for this is that before filing of the answer, the issues are not yet joined and the disputed facts are not clear.

There are instances, however, when a deposition is allowed to be taken before service of answer once jurisdiction has been acquired over the person or thing. Leave of court may be granted only in “exceptional” or “unusual” cases, and the decision is entirely within the discretion of the court. It should be granted only under “special circumstances” where conditions point to the necessity of presenting a strong case for allowance of the motion. There must be some “necessity” or “good reason” for taking the testimony immediately or that it would be prejudicial to the party seeking the order to be compelled to await joinder of issue. If the witness is aged or infirm, or about to leave the court’s jurisdiction, or is only temporarily in the jurisdiction, leave may be granted. A general examination by deposition before answer however is premature and ordinarily not allowed, neither is mere avoidance of delay a sufficient reason.

Petitioner’s reasons do not amount to an “exceptional” or “unusual” case for us to grant leave and reverse respondent court. Petitioner has not sufficiently shown the necessity for taking Mr. Gapud’s deposition at this point in time before the other defendants, particularly the individual defendants, have served their answers. Petitioner has not alleged that Mr. Gapud is old, sick or infirm as to necessitate the taking of his deposition. Indeed, no urgency has been cited and no ground given that would make it prejudicial for petitioner to await joinder of issues.

Notes based on Dean’s Book : 

With the requirement of ex-parte motion under 2019 amendments, is the ruling considered amended? The author is of the opinion that the ruling stands and remains relevant. As a discovery tool aimed to ferret out relevant and material facts early into aid in the preparation of trial ; the purpose of this rule is to authorize the taking of a deposition in a pending action either to make discovery in preparation for or the be used as evidence upon the trial of such action.


IN VIEW WHEREOF, the petition is DISMISSED, the Resolutions dated August 23, 1993 and October 22, 1993 of respondent court in SB Civil-Case No. 0005 are AFFIRMED.



A “deposition,” in its technical and appropriate sense, is the written testimony of a witness given in the course of a judicial proceeding, in advance of the trial or hearing upon oral examination or in response to written interrogatories and where an opportunity is given for cross-examination. 

A deposition may be taken at any time after the institution of any action, whenever necessary or convenient.

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