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SECOND DIVISION

PHILIP S. YU, G.R. No. 154115


Petitioner,
Present:

PUNO, J.,
Chairman,
- versus - AUSTRIA-MARTINEZ,
CALLEJO, SR.,
TINGA, and
CHICO-NAZARIO, JJ.
HON. COURT OF APPEALS,
Second Division, and VIVECA
LIM YU, Promulgated:
Respondents.
November 29, 2005

x-------------------------------------------------------------------x

DECISION

TINGA, J.:

This treats of the petition for review on certiorari of the Court


of Appeals’ Decision and Resolution in CA G.R. SP No. 66252 dated
30 April 2002[1] and 27 June 2002,[2] respectively, which set aside
theOrder of the Regional Trial Court (RTC) of Pasig City[3] dated 10
May 2001, declaring an application for insurance and an insurance
policy as inadmissible evidence.

The facts of the case are undisputed.

On 15 March 1994, Viveca Lim Yu (private respondent)


brought against her husband, Philip Sy Yu (petitioner), an action for
legal separation and dissolution of conjugal partnership on the
grounds of marital infidelity and physical abuse. The case was filed
before the RTC of Pasig and raffled to Branch 158, presided by
Judge Jose R. Hernandez.

During trial, private respondent moved for the issuance of


a subpoena duces tecum and ad testificandum[4] to certain officers of
Insular Life Assurance Co. Ltd. to compel production of the
insurance policy and application of a person suspected to be
petitioner’s illegitimate child.[5] The trial court denied the
motion.[6] It ruled that the insurance contract is inadmissible
evidence in view of Circular Letter No. 11-2000, issued by the
Insurance Commission which presumably prevents insurance
companies/agents from divulging confidential and privileged
information pertaining to insurance policies.[7] It added that the
production of the application and insurance contract would violate
Article 280[8] of the Civil Code and Section 5 of the Civil Registry
Law,[9] both of which prohibit the unauthorized identification of the
parents of an illegitimate child.[10] Private respondent sought
reconsideration of the Order, but the motion was denied by the trial
court.[11]

Aggrieved, private respondent filed a petition for certiorari


before the Court of Appeals, imputing grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of Judge
Hernandez in issuing the 10 May 2001 Order.[12] The Court of
Appeals summarized the issues as follows: (i) whether or not an
insurance policy and its corresponding application form can be
admitted as evidence to prove a party’s extra-marital affairs in an
action for legal separation; and (ii) whether or not a trial court has
the discretion to deny a party’s motion to attach excluded evidence
to the record under Section 40, Rule 132 of the Rules of Court.[13]

According to the Court of Appeals, private respondent was


merely seeking the production of the insurance application and
contract, and was not yet offering the same as part of her evidence.
Thus, it declared that petitioner’s objection to the admission of the
documents was premature, and the trial court’s pronouncement
that the documents are inadmissible, precipitate.[14] The contents
of the insurance application and insurance documents cannot be
considered as privileged information, the Court of Appeals added, in
view of the opinion of the Insurance Commissioner dated 4 April
2001 to the effect that Circular Letter No.11-2000 “was never
intended to be a legal impediment in complying with lawful
orders”.[15] Lastly, the Court of Appeals ruled that a trial court does
not have the discretion to deny a party’s privilege to tender excluded
evidence, as this privilege allows said party to raise on appeal the
exclusion of such evidence.[16] Petitioner filed a motion for
reconsideration but to no avail.
In the present petition, petitioner argues that the Court of
Appeals blundered in delving into errors of judgment supposedly
committed by the trial court as if the petition filed therein was an
ordinary appeal and not a special civil action. Further, he claims
that the Court of Appeals failed to show any specific instance of
grave abuse of discretion on the part of the trial court in issuing the
assailed Order. Additionally, he posits that private respondent had
already mooted her petition before the Court of Appeals when she
filed her formal offer of rebuttal exhibits, with tender of excluded
evidence before the trial court.[17]

For her part, private respondent maintains that the details


surrounding the insurance policy are crucial to the issue of
petitioner’s infidelity and his financial capacity to provide support to
her and their children. Further, she argues that she had no choice
but to make a tender of excluded evidence considering that she was
left to speculate on what the insurance application and policy ruled
out by the trial court would contain.[18]

A petition for certiorari under Rule 65 is the proper remedy to


correct errors of jurisdiction and grave abuse of discretion
tantamount to lack or excess of jurisdiction committed by a lower
court.[19] Where a respondent does not have the legal power to
determine the case and yet he does so, he acts without jurisdiction;
where, “being clothed with power to determine the case, oversteps
his authority as determined by law, he is performing a function in
excess of jurisdiction.”[20]

Petitioner claims that the Court of Appeals passed upon errors


of judgment, not errors of jurisdiction, since it delved into the
propriety of the denial of the subpoena duces tecum and subpoena
ad testificandum. The argument must fail.

While trial courts have the discretion to admit or exclude


evidence, such power is exercised only when the evidence has been
formally offered.[21] For a long time, the Court has recognized that
during the early stages of the development of proof, it is impossible
for a trial court judge to know with certainty whether evidence is
relevant or not, and thus the practice of excluding evidence on
doubtful objections to its materiality should be avoided.[22] As well
elucidated in the case of Prats & Co. v. Phoenix Insurance Co.:[23]

Moreover, it must be remembered that in the heat of the


battle over which he presides a judge of first instance may possibly
fall into error in judging of the relevancy of proof where a fair and
logical connection is in fact shown. When such a mistake is made
and the proof is erroneously ruled out, the Supreme Court, upon
appeal, often finds itself embarrassed and possibly unable to
correct the effects of the error without returning the case for a new
trial, — a step which this court is always very loath to take. On the
other hand, the admission of proof in a court of first instance, even
if the question as to its form, materiality, or relevancy is doubtful,
can never result in much harm to either litigant, because the trial
judge is supposed to know the law; and it is its duty, upon final
consideration of the case, to distinguish the relevant and material
from the irrelevant and immaterial. If this course is followed and
the cause is prosecuted to the Supreme Court upon appeal, this
court then has all the material before it necessary to make a
correct judgment.

In the instant case, the insurance application and the


insurance policy were yet to be presented in court, much less
formally offered before it. In fact, private respondent was merely
asking for the issuance of subpoena duces tecum and subpoena ad
testificandum when the trial court issued the assailed Order. Even
assuming that the documents would eventually be declared
inadmissible, the trial court was not then in a position to make a
declaration to that effect at that point. Thus, it barred the
production of the subject documents prior to the assessment of its
probable worth. As observed by petitioners, the assailed Order was
not a mere ruling on the admissibility of evidence; it was, more
importantly, a ruling affecting the proper conduct of trial.[24]

Excess of jurisdiction refers to any act which although falling


within the general powers of the judge is not authorized and is
consequently void with respect to the particular case because the
conditions under which he was only authorized to exercise his
general power in that case did not exist and therefore, the judicial
power was not legally exercised.[25] Thus, in declaring that the
documents are irrelevant and inadmissible even before they were
formally offered, much less presented before it, the trial court acted
in excess of its discretion.

Anent the issue of whether the information contained in the


documents is privileged in nature, the same was clarified and
settled by the Insurance Commissioner’s opinion that the circular
on which the trial court based its ruling was not designed to
obstruct lawful court orders.[26] Hence, there is no more
impediment to presenting the insurance application and policy.

Petitioner additionally claims that by virtue of private


respondent’s tender of excluded evidence, she has rendered moot
her petition before the Court of Appeals since the move evinced that
she had another speedy and adequate remedy under the law. The
Court holds otherwise.

Section 40, Rule 132 provides:


Sec.40. Tender of excluded evidence.—If documents or
things offered in evidence are excluded by the court, the offeror
may have the same attached to or made part of the record. If the
evidence excluded is oral, the offeror may state for the record the
name and other personal circumstances of the witness and the
substance of the proposed testimony.

It is thus apparent that before tender of excluded evidence is


made, the evidence must have been formally offered before the
court. And before formal offer of evidence is made, the evidence
must have been identified and presented before the court. While
private respondent made a “Tender of Excluded Evidence,” such is
not the tender contemplated by the above-quoted rule, for
obviously, the insurance policy and application were not formally
offered much less presented before the trial court. At most, said
“Tender of Excluded Evidence” was a
manifestation of an undisputed fact that the subject documents
were declared inadmissible by the trial court even before these were
presented during trial. It was not the kind of plain, speedy and
adequate remedy which private respondent could have resorted to
instead of the petition for certiorari she filed before the Court of
Appeals. It did not in any way render the said petition moot.

WHEREFORE, premises considered, the petition is DENIED.


The Decision dated 30 April 2002 andResolution dated 27 June
2002 are AFFIRMED. Costs against petitioner.

SO ORDERED.

DANTE O.
TINGA Associate Justice

WE CONCUR:

REYNATO S. PUNO
Associate Justice
Chairman

MA. ALICIA AUSTRIA-MARTINEZ ROMEO J. CALLEJO, SR.


Associate Justice Associate Justice
(On Leave)
MINITA V. CHICO-NAZARIO
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been


in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.

REYNATO S. PUNO
Associate Justice
Chairman, Second Division
CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and


the Division Chairman’s Attestation, it is hereby certified that the
conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the
Court’s Division.

HILARIO G. DAVIDE, JR.


Chief Justice

[1]Rollo, pp. 36-45.

[2] Id at 48-50.

[3] Id. at 108-111.

[4]CA Rollo, p. 47.

[5]Rollo, p. 171.

[6]Order dated 10 May 2001, id. 108-111.

[7]Rollo, p. 109.

[8]Art.280. When the father or the mother makes the recognition separately, he
or she shall not reveal the name or the person with whom he or she had the
child; neither shall he or she state any circumstance whereby the other person
may be identified.

[9]Act No. 3753, Section 5, fourth paragraph reads:

In case of an illegitimate child, the birth certificate shall be signed and


sworn to jointly by the parents of the infant or only the mother if the father
refuses. In the latter case, it shall not be permissible to state or reveal in the
document the name of the father who refuses to acknowledge the child or to give
therein any information by which such father could be identified.

[10]Rollo, p. 109.

[11]Id. at 128.

[12]Id. at 62-75.

[13]Id. at 36.

[14]Id. at 43 citing Rules 34- to 36 of the Revised Rules on Evidence.

[15]CA Rollo, p. 58.

[16]Rollo, p. 45.

[17]Id. at 30.

[18]Id. at 262-264.

[19]Sec. 1, Rule 65, Revised Rules on Civil Procedure.

[20]Punzalan v. Dela Peña, G.R. No. 158543, 21 July 2004, 434 SCRA 601, 609.

[21]Sec. 34, Rule 132, Revised Rules on Evidence:

Sec. 34. Offer of evidence.- The court shall consider no evidence which
has not been formally offered. The purpose for which the evidence is offered
must be specified.

[22]People
v. Yatco, et al. ,97 Phil. 940, 946 (1955) citing Prats & Co. v. Phoenix
Insurance Co., 52 Phil. 807 (1929).

[23]52 Phil. 807, 816-817 (1929).

[24]
Rollo, p. 316.

[25]Broom v. Douglas, 175 Ala. 268, 57 S 860; Tengco v. Jocson, 43 Phil 716 (1922).

[26]CA Rollo, p. 58.

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