Savory v.
Lakas (Short title) PROVISION
GR # L-38964 | January 31, 1975
Petitioner: Savory Luncheonette
Respondent: Lakas ng Manggagawang Pilipino et. al
(Rule 132, Section 6)
FACTS
1. Savory through a Court Prosecutor of the Court of Industrial
Relations filed a complaint against Lakas for unfair labor practice by
declaring a strike in violation of a no-strike clause of an existing
CBA without prior resort to the grievance procedure and without
having observed the 30-day cooling off period prescribed by law.
2. Savory presented as its key witness Atty. Morabe, its legal counsel,
in-charge of the labor-management problems of Savory and thus
have first-hand knowledge of the facts of the labor dispute.
3. Savory's counsel conducted the direct examination of Atty. Morabe.
Atty. Amante, counsel of Lakas, was called to cross-examine Atty.
Morabe, but he moved for a postponement on the ground that he
was not in a position to cross-examine the witness so, the cross-
examination of Atty. Morabe was re-schedule. The failure of Atty.
Amante was repeated for five more times citing different reasons
for each failure.
4. For the fifth failure, the cross-examination was postponed with the
reservation made by Atty. Morabe challenging the granting of
another postponement.
5. Subsequently, Atty. Morabe succumbed to a heart attack and
Lakas filed a motion to strike out his direct testimony from the
records on the ground that cross-examination was no longer
possible for such direct testimony could no longer be rebutted.
6. Savory opposed stating that because of Lakas' repeated failure to
cross-examine they are deemed to have waived the same.
7. Lakas filed another motion seeking the recall of Savory's witness
Bienvenida Ting for further cross-examination to which savory also
opposed claiming that the witness was already cross-examined
more than two months after her direct testimony and that the
motion failed to state the points that were not taken up during the
previous cross-examination giving rise to the conclusion that such
was to delay and to harass and inconvenience the witness.
8. The motion was granted and Savory's MR was denied.
ISSUE/S
1. W/N Court of Industrial Relations acted with grave abuse of discretion
when the latter ordered the direct testimony of Atty. Morabe be stricken
off the record.
Rule 132 Section 6. Cross-examination; its purpose and extent. — Upon the
termination of the direct examination, the witness may be cross-examined by
the adverse party as to many matters stated in the direct examination, or
connected therewith, with sufficient fullness and freedom to test his accuracy
and truthfulness and freedom from interest or bias, or the reverse, and to
elicit all important facts bearing upon the issue.
RULING & RATIO
1. Yes.
1. The right of a party to confront and cross-examine opposing
witnesses in a judicial litigation is a fundamental right which is
part of due process however, the right is a personal one which
may be waived expressly or impliedly by conduct amounting
to a renunciation of the right of cross-examination.
2. The conduct of a party which may be construed as an implied
waiver of the right to cross-examine may take various forms.
3. The basic principle underlying the application of the rule on implied
waiver is that the party was given the opportunity to cross-examine
and failed to do so for reasons attributable to himself alone.
4. The present case of Savory falls within the confines of the
jurisprudence available.
5. Lakas through Atty. Amante, were given not only one but five
opportunities to cross-examine and despite the warnings given,
counsel still failed or refused such so the right was deemed waived.
6. The fact that the witness died is no ground in itself for excluding his
from the record so long as the adverse party was afforded an
adequate opportunity for cross-examination.
7. With regard to the order concerning Bienvenida Ting, such is
unwarranted. As claimed by Savory, the motion was intended
merely to delay the proceedings and to harass and inconvenience
the witness sought to he recalled.
8. The instant petition presents a clear case of grave abuse of
discretion which justifies the Court's intervention at this stage of the
proceedings in the court below.
DISPOSITION
PREMISES CONSIDERED, the writ of certiorari prayed for is granted and
the Orders of respondent Court of May 3, 1974, and July 5, 1974, under
review are hereby set aside. With costs against private respondents.
So Ordered.