This is a sample Rejoinder prepared by our law office in a case undergoing preliminary investigation for reckless imprudence resulting in damage to property. The issues involved were: legal capacity, intervention, hearsay, negligence, and others. For legal research purposes of our readers.
“x
x x.
REJOINDER-AFFIDAVIT FOR AND IN BEHALF OF
RESPONDENT xxx
- AND -
SUPPLEMENTAL AFFIDAVIT BY UNDERSIGNED
AFFIANT xxx AS A CO-COMPLAINANT/ CROSSCLAIMANT AGAINST xxx
(Respondent in NPS Docket No. xxx;
Complainant in NPS Docket xxx)
WITH
MOTION FOR ISSUANCE OF SUBPOENA AD
TESTIFICANDUM
I, xxx (“xxx”),
xxx years old, Filipino, married to XXXA.
XXX (“XXX”, the respondent in NPS Docket No. XXX), and
residing at xxx, xxx Homes - xxx Subd., Xxx,
Xxx City, under oath, respectfully state:
I.
INTRODUCTION.
1.
The subject
matter of this pleading is the REPLY AND
COUNTER-AFFIDAVIT, dated March 17, 2016, of xxx (“xxx”), the respondent in NPS Docket No. XXX
and the complainant in NPS Docket No. xxx.
2.
This pleading
reiterates the allegations, arguments and citations of the undersigned affiant
contained in her previous pleading filed with this Office, to wit:
“AFFIDAVIT OF XXX XXX IN HER CAPACITY AS
CO-COMPLAINING WITNESS IN NPS DOCKET NO. XXX IN SUPPORT OF HER HUSBAND XXXA. XXX;
AND AS CORROBORATING WITNESS FOR HER RESPONDEN XXXT HUSBAND XXX IN NPS DOCKET
No. XXX; WITH “MOTION TO INTERVENE” AS CO-COMPLAINANT OF HER HUSBAND XXXXXX IN
CASE NO. xxx BEING THE REGISTERED OWNER OF THE DAMAGED TOYOTA xxx WITH PLATE NO
xxx”, dated 20 February 2016.
3.
It will be noted
that, in her aforecited “AFFIDAVIT…”, dated 20 February 2016,
the undersigned affiant expressly alleged that she was executing the same in multiple legal capacities, to wit:
(a)
As an “Affiant” (i.e., ordinary witness);
(b)
As a “Co-Complaining Witness against Xxx”
(being the registered owner of the subject XXX family vehicle, i.e., Toyota Xxx, Plate No. XXX);
(c)
As the “Attorney-in-Fact and Wife of the Lead
Complaining Witness XxxA. Xxx”; and
(d)
As a “Collaborating Witness for Her Husband Xxx”.
4.
In executing this
Rejoinder-Affidavit the undersigned affiant continues to act pursuant to the aforecited multiple legal
capacities.
5.
As earlier stated in the previous pleading
filed by the undersigned affiant with this Honorable Office, her representative capacity in this case is
evidenced by the Special Power of
Attorney (SPA) executed by XXX which expressly empowered the undersigned
affiant to perform any and all of the following powers:
“x x x.
To file, prosecute and defend my
said problem or case until its finality, including with any other forum, with
power to make counterclaims, avail of discovery procedures, any and all
provisional and extraordinary remedies, and to file the proper action in court;
to appear in any hearings or proceedings or action in any forum, including with
the courts, quasi-judicial bodies and government agencies, and out-of-court,
especially for my said pending case; to attend any hearing, pre- trial hearing
or conference or mediation , with power to make admissions and stipulations of
facts and documents, to submit and/or approve compromise proposals; to attend
subsequent hearings or conferences after the pre- trial or preliminary
conference; to implement and execute any compromise proposals or agreements; to
sue and be sued under any action or proceeding; to sign VERIFICATION AND
CERTIFICATION OF NON- FORUM SHOPPING on any petition/complaint, amended or
supplemental petition/complaint, motion, manifestation, compliance or any
paper, writing or document; to waive any procedure in the Rules of Court or
other rules, including to waive any PLEADING, PRE-TRIAL OR TRIAL PROCEDURE or
any other PROCEDURE in any forum; to sign, seal and execute any affidavit of
whatever kind and nature, or any document, contract, agreement, compromises,
receipts, or any other paper or writing in relation thereto; and to sign, seal
and execute all necessary documents, contracts, agreements, affidavits,
compromises, receipts, petitions, complaints, answers, motions, verifications,
certificates against non-forum shopping and other pleadings, including
amendments and supplements thereto; to cause the signing, sealing, execution of
any complaint, motion, affidavit of whatever kind and nature, or any document,
contract, agreement, compromises, receipts, complaint-affidavit,
counter-affidavit, reply-affidavit, rejoinder-affidavit, letter or any other
paper or writing in relation thereto; to hire and pay lawyer of counsel, to make
payments as are considered acts of strict dominion; to testify in any forum
under the limits allowed by law; to secure witnesses, witnesses’ affidavits and
all evidences; all pertaining to all the powers expressly and impliedly herein
granted or those bye necessary implication thereto.
X x x.”
II.
SPECIFIC REBUTTAL OF THE ALLEGATIONS AND ARGUMENTS STATED
IN THE REPLY AND COUNTER-AFFIDAVIT DATED MARCH 17, 2016, OF xxx (the respondent
in NPS Docket No. xxx and the complainant in NPS Docket No. xxx.
6.
In re: Par. 1 of
the abovementioned “Reply and Counter-Affidavit…”, dated 17 March 2016, of XXX,
the undersigned vehemently DENIES that the HEARSAY RULE under Sec. 36 of Rule
130 of the Rules of Evidence “completely and absolutely” applies
against her insofar as (a) the “entire incident” and (b) its “relevant
and material peripheral aspects” are concerned, the truth of the
matter being that:
6.1.
During the time
of the subject incident my husband XXX urgently called up my mobile phone to
inform me that our family car was hit by XXX.
At
that time, my husband had just brought our child to her school inside xxx Homes
in xxx (xxx).
Within
a few minutes from the said telephone call, I arrived at the scene of the
incident, the reason being that our home is also located inside Xxx (i.e., the
nearby xxx).
At
the time of my arrival, XXX was still seated inside his own car.
I
saw the damage to our car and to the car of XXX.
The
first thing I checked, when I arrived at the scene, was the health condition of
my husband.
After
3o minutes from my arrival, a xxx security guard told XXX to come out of his
car to talk with us.
That
was the only time; he went out of his car.
I
saw a passing police officer, whose name I failed to get.
I
requested him to follow up with the Xxx police headquarters our need for an
official xxx traffic police investigator to come to the scene of the incident,
which he did.
(The
xxx security guard had also earlier contacted the Xxx police/traffic bureau
about the incident).
When
the traffic investigators arrived at the scene, he investigated the vehicles
involved and talked to XXX and XXX, in my presence.
We
all went to the Xxx traffic bureau office on xxx Road, Xxx City, where we all
gave our sworn statements (as parties and witnesses) using the official Sworn
Statement Form of the said bureau.
Then,
we all went back to the scene of the incident, with the traffic investigators,
as requested by the investigators for further investigation of the scene.
Therefore,
I had direct and personal knowledge of the incident and its relevant and
material peripheral or immediate aspects from the time I arrived at the scene (which
was less than 20 minutes from the happening of the incident), which included
the following acts and events:
(a)
Execution by XXX, myself, and the Xxx Homes (XXX) security guard in the person
of xxx of our respective sworn statements, as witnesses, before the
Office of the City Prosecutor, as borne by the Referral forwarded to this
Honorable Office by the Xxx City Police/Traffic Bureau;
(b)
The taking by xxx and the undersigned affiant of the photos of the
incident and the damage to the vehicles;
(c) The personal coordination by xxx and
the undersigned affiant with xxx,
caretaker of the nearby xxx Bldg., who is the source of the digital record
of the incident taken by the CCTV camera of the said building; and
(d) Other relevant and material
activities, acts and events related to the incident.
7.
It should
likewise be noted that that the following facts and documents referred to in
the previous pleading of the undersigned affiant simply quoted in toto, for
emphasis, the sworn statements of XXX, the witness-security guard xxx, and herself, which are already part of the Record of this case
before this Honorable Office, as forwarded thereto by the formal Investigation
Report and Referral of the Traffic Bureau investigator.
7.1.
It is a matter of record that in the MALAYANG SINUMPAANG SALAYSAY, dated January
8, 2016, of XXX, which was sworn to by him before Senior Assistant City Prosecutor xxx, and which was submitted by
him to xxx to form part of the latter’s formal Investigation Report and Referral which the said police officer had
filed with this Honorable Office for preliminary investigation, XXX stated,
thus:
“Papalabas ako sa Xxx Home Subd. Nagtratrapik ang village security in between xxx
at Xxx Home (Intersection). Pinastop
ng village security ang isang Montero para padaanin ako, habang paliko
na ako at pinagbigyan na ako ng
Montero biglang sumulpot ang isang izusu D Max. Mabilis ang takbo ng D Max na sumulpot
sa likod ng Montero”.
7.2.
It is a matter of record that in the MALAYANG SINUMPAANG SALAYSAY, dated January
8, 2016, of XXX, the eye-witness Security Guard of Xxx Homes assigned to the
entry-exit gate of the said village on the date and time of the subject
incident, which was sworn to by him before Senior Assistant City Prosecutor xxx, and submitted by him to the XXX to form part of his formal
Investigation Report and Referral to this Honorable Office for preliminary
investigation, the said affiant-witness XXX stated, thus:
“Isang banngaan naganap sa tapat ng XXXBuilding dakung alas seyete nag
umaga or 7:00 am sa may Xxx Xxx corner Xxx Homes. Ang Toyota Xxx XXX ay palabas nga galing sa loob nag xxx homes at eto
ay tatawid sa kabilang kalsada, inasis
ko ang Toyota Xxx upamg madali siyang makatawid at nung nakalabas na yung
harapan (ng) Toyota isang sasakyan ang bumangga sa Toyota Xxx. Ito ay xxx. Mabilis ang takbo nang Isuzu kaya
nabangga niya ang papatawid na Toyota Xxx. Dahil sa bilis nag takbo nag
Isuzu nawasak ang harapan nag Toyota Xxx
sa sobrang lakas nag impak na tumama sa harapan nag Toyota Xxx kaya wasak na
wasak ang harap. Traffic ang isang linya papunta ng Casimiro kaya pinahinto ko ang Montero sa kabilang linya na sinusundan nya (XXX)
para makadaan ang Toyota Xxx,
Nang nasa kabilang linya na ang
Toyota Xxx nabangga na ng Isuzu ang Toyota Xxx.”
7.3.
It is a matter of record that in the MALAYANG SINUMPAANG SALAYSAY, dated January
8, 2016, of the undersigned affiant, as a witness, as the registered owner of
the subject Toyota Xxx, with Plate No. xxx and as the attorney-in-fact of XXX,
which was sworn to by the undersigned affiant before Senior Assistant City Prosecutor Xxx, and which was submitted by
her to XXX to form part of his
formal Investigation Report and Referral to this Honorable Office for
preliminary investigation, the
undersigned affiant stated, thus:
“Nasa bahay ako tumawag ang aking
asawa (XxxXxx). Sinabi na sya ay
binangga ng isang Isuzu D-Max XXX na minamaneho ni xxx Xxx. Pagdating
ko sa xxx (St.) kung saan nagyari ang aksidente, tinanong ko ang aking asawa sa
nangyari at napaliwanag nya sa akin ang
buong detalye. Nagpunta kame sa Traffic (Bureau) office sa xxx (Ave.) para mag
ayos, subalit walang nangyari. Kaya nagsampa kame ng reklamo laban Mr. Xxx”.
7.4.
Nothing in the previous pleading filed by the
undersigned affiant misrepresented that she had personally witnessed the actual
happening of the subject incident.
But that does not render her an incompetent witness insofar as the
“relevant and material peripheral and surrounding facts/circumstances”
that occurred “immediately after the incident up to the time of the completion
of the police investigation records” (e.g.,
sworn statements of XXX, herself, XXX, and even XXX himself, photos of the
damages to the vehicles, CCTV digital record of the incident, etc.) are
concerned.
8.
In re: Par. 2 of
the abovementioned “Reply and Counter-Affidavit…”, dated 17 March 2016, of XXX,
in re: the alleged lack of legal right/capacity of the undersigned affiant to intervene at the preliminary
investigation stage of the instant case (a) as the registered owner of their
family car and (b) as the legal representative of XXX, the same is DENIED
for lack of merit, the truth of the matter being that:
8.1.
Nothing in
Sec. 1, Rule 111 of the Rules of Court expressly
and absolutely prohibits the timely intervention by the undersigned affiant -- as an indispensable party in-interest, being the registered owner of their damaged family/conjugal car of the
Spouses XXX -- at the “preliminary
investigation phase” of this case for the “initial purpose” of
(a) Establishing “probable cause”,
(b) Determining the “amount of damages claimed” by the
Spouses XXX,
(c) Determining the “legal ownership” of the family/conjugal
vehicle of the Spouses XXX, and
(d) Other facts and aspects of this case
as may be deemed relevant and material by the Investigating Prosecutor in
writing his Resolution and in preparing the allegations to be included in the
Information to be filed by him.
8.2.
Sec. 1, Rule 111 -- which speaks of the “implied institution of
the civil action”, the “reservation of
the civil action”, prohibition against the filing by the parties of a
“counterclaim, crossclaim, or third-party complaint”, and the enforcement of the
civil claim ex delicto -- refers to AN ACTUAL CASE
ALREADY FILED IN THE TRIAL COURT, that is, it refers to the actual phase of the criminal prosecution
process (a) when the Information has “actually been filed in the trial court” and
(b) will soon be “litigated on the merits” by the Office of the City Prosecutor
in the trial court.
8.3.
The undersigned affiant quoted Secs. 1 and 2, Rule 19 (Intervention)[1]
of the Rules of Court in her previous pleading, ONLY BY ANALOGY,
simply to stress the fact that she has
the right to directly participate/intervene in this case -- as an ordinary
witness, as the registered owner of their family/conjugal vehicle, and as the
attorney-in-fact of XXX -- even at the preliminary investigation phase thereof, solely for the purpose of proving the presence of her legal and pecuniary interest in the subject matter thereof, which
participation/intervention of hers will greatly aid the Investigating
Prosecutor in the DETERMINATION OF PROBABLE CAUSE and the various facets and
aspects thereof as he writes his Resolution in this case.
8.4.
It should be
noted that the undersigned would be unjustly deprived of the locus
standi of a claimant of civil damages[2]
in the criminal case to be later filed in the trial court if and when she is
not allowed by the Investigating Prosecutor to intervene and present evidence
in support of her legal interest and her locus
standi as soon as possible, that is, during the mandatory preliminary
investigation phase of this case.
Her
early intervention at the preliminary
investigation phase of this case will give the Investigating Prosecutor
the early opportunity to allege in the
Information to be filed with the trial court the name and locus standi of the undersigned affiant in the criminal
case vis-Ã -vis the civil aspect thereof, so that her name could be “listed” in the Information “as a witness and as a co-private complainant” for purposes
of the issuance of the subpoenas/notices of hearings by the trial court during
the trial phase of the case to complete the details to be stated in the Information.
9.
In re: Pars. 3 to
3.4 of the abovementioned “Reply and Counter-Affidavit…”, dated 17 March 2016,
of XXX, the same is DENIED, the truth of the matter being that the CRIMINAL
NEGLIGENCE and the DELICTOUS RECKLESSNESS AND LACK OF CARE AND FORESIGHT of XXX
are shown by the following facts, as earlier discussed in the previous pleading
of the undersigned affiant and as shown in the documents attached and forwarded
to this Honorable Office by the Police Report and Referral of the traffic investigator:
(a)
The MONTERO
traversing xxx St. westward to Xxx Xxx St. of Xxx was already ON
FULL STOP, as commanded/guided by XXX, the security guard of Xxx
Homes, to give priority to the slow exit
of the car being driven by XXX.
(b)
XXX did not stop.
(c)
As alleged by XXX
and security guard /witness XXXin their sworn statements, instead of stopping behind or at the side of the stopped MONTERO, XXX,
in an overspeeding manner, overtook
the MONTERO, which, as earlier stated, was already on
full stop.
(d)
XXX knew fully
well that his vision of the space ahead of him was totally obstructed by the
stopped MONTERO.
(e)
Thus, XXX
recklessly hit and damaged the right frontal part of the car being
driven by XXX.
(XXX damaged the left frontal part of his
own car up to almost the second door thereof).
(f)
The speed limit
in XXX is 30 KPH only.
This fact is not rebutted by XXX
in his own pleadings.
In fact, in Xxx Homes, where the undersigned affiant and XXX live, the speed
limit is much lower at 15 KPH only.
(g)
XXX does not deny
the fact that in front of the scene of the incident is the xxx SCHOOL located along xxx St. near and
alongside the gate of Xxx Homes.
In such a school zone, a
driver must slow down below the maximum speed limit for the
protection of the school children.
XXX did not slow down, per the sworn
statements of XXX and XXX.
Instead, he overtook the stopped MONTERO
at the
right, that is, he made an illegal overtake on the right
side of the stopped MONTERO.
(h)
It is a judicial
notice that the width of xxx St. can hardly accommodate two (2) big vehicles at
the same time.
If a vehicle would overtake from the right
on the said street, as XXX did, he would be forced to eat up a part of the
canal lane on the right side of the said street.
(i)
The photos of the
incident that the damage to the car of XXX was located at its frontal left part
(including its frontal left tire,
which was flattened by his impact up to almost the second door of his car).
The flat tire in his car caused by the
impact was not rebutted by XXX.
If XXX was not in a hurry, he would not
sustained such a huge and long self-inflicted line of damage to his car
(ranging from the left frontal part of the car up to almost the second door
thereof).
(j)
If XXX was in a
hurry or was reckless, the right front and middle part of his own car would
have been hit by XXX.
But it was not so.
XXX was moving slowly, while being guided
by the security guard XXX, as xxx slowly exited the gate of Xxx Homes, tuning
left westward to xxx St.
9.1.
To repeat: XXX
had the legal duty under the Land Transportation and Traffic Code to
slow down and give way to the exiting vehicle of XXX, considering that at that
time, the MONTERO in front to him had already been on FULL STOP.
XXX cannot validly argue that he had the
legal right of way because he was coming from the right of XXX and because he
was traversing a main road (xxx St.), the reasons being that at the time of the
impact the car drive by XXX was already in the middle of the main road
and that the MONTERO in front of XXX had already been put of FULL STOP by the
security guard XXX.
A driver who has the theoretical legal right of way must give way to the
other vehicle which was already in the middle of the intersection
to make a turn, as provided in the aforecited Code, more so
(a) when
the car [Montero] in front of such driver [Xxx] was already
on full stop as ordered by a security guard;
(b) when the location of the incident
is a SCHOOL ZONE; and
(c) when the involved road is not
very wide as to accommodate an illegal overtake by a second vehicle on the
right side of the first/stopped vehicle Montero).
This is the doctrine
of LAST CLEAR CHANCE in Torts and Damages Jurisprudence.
III.
URGENT EX PARTE MOTION FOR ISSUANCE OF SUBPOENA AD TESTIFICANDUM TO “XXX”, with address at: “XXX Bldg., Block xxx, Lot xxx, xxx St., Xxx,
, Xxx City” to AUTHENTICATE the digital recording of the subject
incident captured by the CCTV camera of the said building, being the CARETAKER of the said building
and its CCTV camera and being THE
SOURCE thereof.
10. In the interest of justice, and invoking the broad
powers of the Investigating Prosecutor to subpoena any witness who might be
able to aid him in his preliminary investigation of a case, the undersigned
affiant, as the legal representative of XXX, hereby moves that a SUBPOENA AD TESTIFICANDUM be issued to “XXX”, with address at: “XXX Bldg., Block xxx, Lot xxx, xxx St., Xxx,
Xxx City” to AUTHENTICATE the digital recording of the subject incident
captured by the CCTV camera of the said building, being the CARETAKER of the said building
and its CCTV camera and being THE
SOURCE thereof.
The
said evidence was previously submitted to this Honorable Office as part of the
previous pleading of the undersigned affiant in behalf of her husband/principal
XXX.
For
this purpose, the undersigned affiant submits to the preference of the
Investigating Prosecutor whether or not he would deem it proper and necessary
(a) to subpoena Mr. xxx and (b) to hold a special hearing for such purpose.
IV.
RELIEF.
WHEREFORE, in the interest of justice, it is respectfully
prayed that XXX be INDICTED for the
felony of RECKLESS IMPRUDENCE RESULTING IN DAMAGE TO PROPERTY.
FURTHER, the undersigned affiant respectfully prays
that her INTERVENTION, as a
CO-COMPLAINANT of her husband XXXXXX in re: Case No. xxx, supra, be GRANTED and that her previous pleading
be deemed as her Complaint-In-Intervention.
FURTHERMORE, it is respectfully prayed that the SPECIAL POWER OF ATTORNEY executed by XXXXXX
in favor of the undersigned Affiant as his Attorney-In-Fact and Legal
Representative for purposes of the litigation of the abovecaptioned two (2)
consolidated cases be duly NOTED.
FURTHERMORE, that a SUBPOENA be issued to XXX, with
address at: XXX Bldg., Block xxx, Lot xxx, xxx St., Xxx, Xxx City to authenticate the digital recording of the
subject incident captured by the CCTV camera of the said building, being
the caretaker of the said building and its CCTV camera and being the source
thereof.
FINALLY, the undersigned respectfully prays for such
and other reliefs as may be deemed just and equitable in the premises.
Xxx City, 28 March 2016.
XXX XXXXXX
Affiant
SUBSCRIBED and
sworn to before me in Xxx City on 29 March 2016.
Xxx
Investigating
Assistant City Prosecutor
Copy Furnished:
XXX
Respondent in NPS
Docket No.
XXX;
Complainant in NPS
Docket No.
XXX
(Represented by Atty xxx)
File Copy
[1] “SECTION 1.
Who may intervene.—A person who has a legal
interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or
is so situated as to be adversely affected by a distribution or other
disposition of property in the custody of the court or of an officer thereof
may, with leave of court, be allowed to intervene in the action. The court
shall consider whether or not the intervention will unduly delay or prejudice
the adjudication of the rights of the original parties, and whether or not the
intervenor’s rights may be fully protected in a separate proceeding. (2[a],
[b]a, R12).”
“SEC. 2. Time to intervene.–The motion to intervene may be filed at any time before rendition of judgment by the trial court.
A copy of the pleading-in-intervention shall be attached to the motion and
served on the original parties. (n).”
[2] By analogy, see the doctrine in RICAZARTE vs. CA, et. al., GR 160451,
February 9, 2007 -
“x
x x.
Under
Section 16, Rule 110 of the Rules of Criminal Procedure, the offended party may
intervene in the criminal action personally or by counsel, who will act as
private prosecutor for the protection
of his interests and in the interest of the speedy and inexpensive administration
of justice.
A
separate action for the purpose would only prove to be costly, burdensome and time-consuming for both parties and
further delay the final disposition of the case.
The multiplicity of suits must be
avoided.
With
the implied institution of the civil action in the criminal action, the two
actions are merged into one composite proceeding, with the criminal action
predominating the civil.
X
x x.”
