G.R. No. 61570 February 12, 1990.
RUPERTO FULGADO, substituted by his heirs, JULIANA, JOSE, MAXIMO, PACITA and SEVERO all surnamed FULGADO, petitioners, vs. HON. COURT OF APPEALS, RUFINO CUSTODIO, SIMPLICIA CUSTODIO, ARSENIO PIGUING, ISMAEL PORCIUNCULA and DOMINGA MACARULAY, respondents.

FACTS

Petitioner Ruperto Fulgado filed an action for annulment of contracts and partition. Private respondents were declared in default for failing to appear on time at the pre-trial. The trial court allowed Fulgado to present evidence ex parte. Respondents’ motions to lift the default order were denied, and a decision was rendered in Fulgado’s favor. On appeal, the Court of Appeals set aside the decision and remanded the case for trial on the merits. The appellate court’s decision, which became final in 1974, specifically preserved the evidence already presented but granted respondents the right to cross-examine the witnesses.
Upon remand, the case experienced several postponements. In the interim, plaintiff Ruperto Fulgado died, and his witness, Jose Fulgado, had migrated abroad. When the case was finally heard, petitioners stated they had no additional evidence. Respondents then moved to strike the testimonies of the two witnesses, arguing they were deprived of their right to cross-examine them as they were now unavailable. The trial court granted the motion and subsequently dismissed the complaint for lack of evidence. The Court of Appeals affirmed this dismissal.

ISSUE

Whether the trial court and the Court of Appeals erred in striking out the ex parte testimonies of the witnesses and dismissing the complaint due to the alleged deprivation of the right to cross-examine.

RULING

Yes. The Supreme Court reversed the decisions of the lower courts. The legal logic centers on the principle that the right to cross-examine, while fundamental, can be waived or forfeited by a party’s own inaction or neglect. The Court of Appeals’ remand order explicitly granted respondents the opportunity to cross-examine. However, from the finality of that order in June 1974 until Ruperto Fulgado’s death in November 1975, respondents took no diligent steps to exercise this right. They filed a motion to set the case for hearing only in July 1975, over a year later. This delay, despite knowledge of the witness’s advanced age, constituted laches.
The Court emphasized that the loss of cross-examination due to a witness’s death does not automatically mandate the exclusion of the direct testimony, especially when the opposing party had a reasonable opportunity to conduct it but failed to do so through their own fault. The proper remedy was not the wholesale exclusion of the evidence but its admission, with the trial court considering the lack of cross-examination in assessing the testimony’s weight. Regarding the witness abroad, respondents could have utilized modes of discovery but did not. Consequently, respondents forfeited their right to cross-examine, and the dismissal based on the exclusion of the testimonies was a grave error. The case was ordered reinstated with the direct testimonies remaining on record.