SECOND DIVISION

[A.M. No. MTJ-05-1581. February 28, 2005]

PETER L. SESBREO, complainant, vs. JUDGE GLORIA B. AGLUGUB,

Metropolitan Trial Court, Branch 2, San Pedro,
Laguna, respondent.

RESOLUTION
TINGA, J.:

Peter L. Sesbreo filed a Verified Complaint dated March 2, 2004 against

[1]

respondent judge, Hon. Gloria B. Aglugub, charging the latter with Gross Ignorance of
the Law, Neglect of Duty and Conduct Prejudicial to the Best Interest of the Service
relative to Criminal Case No. 39806 entitled People v. Enrique Marcelino, et al.
It appears that complainant filed three (3) separate complaints against Enrique
Marcelino (Marcelino), Susan Nuez (Nuez), Edna Tabazon (Tabazon) and Fely
Carunungan (Carunungan), all from the Traffic Management Unit of San Pedro, Laguna,
for Falsification, Grave Threats and Usurpation of Authority. The three (3) cases were
assigned to respondent judges branch and subsequently consolidated for disposition.
After conducting a preliminary examination, respondent issued a Consolidated
Resolution dated May 6, 2003, dismissing the cases for Falsification and Grave
[2]

Threats for lack of probable cause, and setting for arraignment the case for Usurpation
of Authority. Except for Marcelino who failed to appear during the arraignment, all of the
accused were arraigned. Respondent judge issued a warrant for Marcelinos arrest.
Subsequently, complainant filed a Private Complainants Urgent
Manifestation dated February 6, 2004 alleging that the accused were also charged with
[3]

violation of Republic Act No. 10 (R.A. 10) and praying that warrants of arrest be
[4]

likewise issued against all of the accused.

Acting upon this manifestation, respondent judge issued an Order dated February
[5]

12, 2004 stating that a charge for violation of R.A. 10 was indeed alleged in the
complaint for Usurpation of Authority but was not resolved due to oversight. However,
since the statute only applies to members of seditious organizations engaged in
subversive activities pursuant to People v. Lidres, and considering that the complaint
[6]

failed to allege this element, respondent judge found no probable cause and dismissed
the charge for violation of R.A. 10. Further, citing Sec. 6(b), Rule 112 of the Revised
Rules of Criminal Procedure (Rules), respondent judge denied complainants prayer for
the issuance of warrants of arrest against the accused and ordered the records
forwarded to the Provincial Prosecutors Office (PPO) for review.
 Thereafter, complainants counsel, Atty. Raul Sesbreo (Atty. Sesbreo), filed a Motion
for Reconsideration and Urgent Ex-Parte Motion for Issuance of Warrant of Arrest
Against Non-Appearing Accused. Respondent judge, however, did not act on these
motions allegedly because the court had already lost jurisdiction over the case by then.
The PPO affirmed respondents order and remanded the case to the court for further
proceedings on the charge of Usurpation of Authority.
During the hearing of the case on February 14, 2004, Tabazon, Carunungan and
Nuez did not appear. Atty. Sesbreo, however, did not move for the issuance of warrants
of arrest against them. Neither did he object to the cancellation of the scheduled
hearing.
The foregoing circumstances brought about the filing of the instant administrative
complaint.
Complainant contends that respondent judge violated Sec. 6(b), Rule 112 of the
Rules when she refused to issue warrants of arrest against the accused. Complainant
also faults respondent judge for allegedly motu proprio reconsidering her Consolidated
Resolution dated May 6, 2003 and failing to order its transmittal to the Office of the
Ombudsman within ten (10) days.
In her Comment With Motion To Dismiss The Administrative Complaint dated [7]

March 26, 2004, respondent judge counters that the issuance of a warrant of arrest is
discretionary upon the judge. Since she found no indication that the accused would
abscond, she found it unnecessary to issue the warrant. Moreover, under Republic Act
No. 6770, otherwise known as the Ombudsman Act of 1989, the PPO has been
designated as the Deputized Ombudsman Prosecutor. The PPO can take action on
similar cases for review and appropriate action. Thus, she acted in accordance with law
when she forwarded the records of the case to the PPO for review and not to the Office
of the Ombudsman as complainant insists.
Respondent judge further accuses complainant and Atty. Sesbreo of falsification,
and the latter of violation of Rule 1.01 and Rule 10.01 of the Code of Professional
Responsibility. Allegedly, the affidavit which was attached to the instant verified
complaint was not notarized by Atty. Raul Corro as indicated therein. Further, Atty.
Sesbreo was allegedly convicted of Homicide and may have been suspended from the
practice of law.
Complainant reiterates his allegations in his Complainants Reply To Respondents
Comment Dated March 26, 2004 dated May 11, 2004. He further contends that there is
[8]

no provision in the Ombudsman Act of 1989 specifically deputizing the PPO to be the
Deputized Ombudsman Prosecutor as respondent judge contends. He adds that
respondent judge failed to comply with Administrative Order No. 8 since she has yet to
forward her resolution to the Deputy Ombudsman.
Moreover, complainant points out that the affidavit attached to his complaint was
notarized by Atty. Corro as certified by a member of the latters staff. Complainant also
disproves respondent judges allegation that Atty. Sesbreo is in the habit of filing
administrative complaints against judges, explaining that the latter merely acted as
counsel for litigants who filed administrative complaints against certain judges.
In another Verified Complaint filed on March 18, 2004, complainant further charges
[9]

respondent with violating Sec. 9(b), Rule 112 of the Rules.

Respondent Judge filed a Comment With Motion To Dismiss Administrative
Complaint dated May 7, 2004 clarifying that contrary to complainants allegation, she
[10]

did not conduct a preliminary investigation in the case for Usurpation of Authority. What
was submitted for preliminary investigation was the charge for violation of R.A. 10. It
was her resolution dismissing the charge for violation of R.A. 10 which was transmitted
to the PPO for appropriate action. However, since the charges for violation of R.A. 10
and Usurpation of Authority were contained in a single complaint, respondent judge
deemed it proper to forward the entire records to the PPO.
Complainant filed a Complainants Reply To Respondents Comment Dated May 7,
2004 dated May 20, 2004 substantially reiterating his allegations.
[11]

The Verified Complaint filed on March 18, 2004 was treated as a supplemental
complaint per the notation in the Memorandum dated June 25, 2004.
[12]

In sum, complainant asserts that respondent judge erred in conducting a preliminary

investigation for the charge of Usurpation of Authority; in not issuing warrants of arrest
for failure of the accused to appear during trial; in issuing her Order dated February 12,
2004 dismissing the complaint for violation of R.A. 10; and in transmitting the records of
the case to the PPO instead of the Office of the Ombudsman.
The Office of the Court Administrator recommends that the instant complaint be
dismissed for lack of merit but that respondent judge should be reminded to be more
circumspect in the performance of her duties. It made the following findings:
[13]

A careful consideration of the records as well as the pertinent rules reveals that there
is nothing in the Rules of Criminal Procedure which requires a judge to issue a
warrant of arrest for the non-appearance of the accused during the trial. Hence, its
issuance rests on the sound discretion of the presiding judge. More so in this case, the
private prosecutor did not move for the issuance of such warrant.

As regards the next issue, Rep. Act No. 10 penalizes a person who, with or without
pretense of official position, shall perform any act pertaining to the Government, or to
any person in authority or public officer, without being lawfully entitled to do so, shall
be punished with imprisonment of not less than two (2) years nor more than ten (10)
years. Violation thereof is cognizable by the Regional Trial Court but subject to
preliminary investigation.

Respondent judge admitted that she overlooked the charge when she conducted the
preliminary examination of the complaints. Nonetheless, after reviewing the case,
respondent Judge found no probable cause and ordered the dismissal of the case.
Therefore, when respondent Judge motu proprio ordered the dismissal of the case for
lack of probable cause, she was acting in accordance with the procedure on
preliminary investigation laid down in Sec. 3, Rule 112 of the Rules on Criminal
Procedure.

Respondent Judge also directed that the records of the case be forwarded to the
Provincial Prosecutors Office on review. Sec. 5 of Rule 112 provides that the
resolution of the Investigating Judge is subject to review by the provincial or city
prosecutor, or the Ombudsman or his deputy, as the case may be.

It is respondent Judges contention that the resolution shall be reviewed by the

Provincial Prosecutor. She explained that pursuant to the Ombudsman Act of 1989,
the Provincial Prosecutor has jurisdiction to take cognizance of the charge of
Violation of R.A. No. 10.

However, Sec. 31 of Rep. Act No. 6770 or The Ombudsman Act of 1989 provides that
prosecutors can (be) deputized by the Ombudsman to act as special investigator or
prosecutor only on certain cases. Such provision is not applicable to the issue at hand.
Therefore, respondent Judge erred when she forwarded the case for review to the
Provincial Prosecutors Office. Nonetheless, complainant failed to show that
respondent Judge was motivated by bad faith when she issued the assailed order. At
most, she is guilty of judicial error for which she could not be held administratively
accountable absent any proof of fraud or other evil motive. [14]

A preliminary investigation is required before the filing of a complaint or information

for an offense where the penalty prescribed by law is at least four (4) years, two (2)
months and one (1) day without regard to the fine. Thus, a preliminary investigation is
[15]

not required nor was one conducted for the charge of violation of Art. 177 of the Revised
Penal Code which is punishable by prision correccional in its minimum and medium
periods or from six (6) months and one (1) day to four (4) years and two (2) months. [16]

This being so, Sec. 9, Rule 112 of the Rules is applicable. Said section provides:

Sec. 9. Cases not requiring a preliminary investigation nor covered by the Rule on
Summary Procedure.

(b) If filed with the Municipal Trial Court.If the complaint or information is filed with
the Municipal Trial Court or Municipal Circuit Trial Court for an offense covered by
this section, the procedure in section 3(a) of this Rule shall be observed. If within ten
(10) days after the filing of the complaint or information, the judge finds no probable
cause after personally evaluating the evidence, or after personally examining in
writing and under oath the complainant and his witnesses in the form of searching
questions and answers, he shall dismiss the same. He may, however, require the
submission of additional evidence, within ten (10) days from notice, to determine
further the existence of probable cause. If the judge still finds no probable cause
despite the additional evidence, he shall, within ten (10) days from its submission or
expiration of said period, dismiss the case. When he finds probable cause, he shall
issue a warrant of arrest, or a commitment order if the accused had already been
arrested, and hold him for trial. However, if the judge is satisfied that there is no
necessity for placing the accused under custody, he may issue summons instead of a
warrant of arrest.

Under the foregoing section, if a complaint or information is filed directly with the
Municipal Trial Court, the procedure laid down in Sec. 3(a), Rule 112 of the Rules shall
be observed. If the judge finds no sufficient ground to hold the respondent for trial, he
shall dismiss the complaint or information. Otherwise, he shall issue a warrant of arrest,
or a commitment order if the accused had already been arrested, and hold the latter for
trial. However, the judge is given the discretion to merely issue summons instead of a
warrant of arrest if he does not find it necessary to place the accused under custody.
It is thus not obligatory but merely discretionary upon the investigating judge to
issue a warrant for the arrest of the accused even after having personally examined the
complainant and his witnesses in the form of searching questions for the determination
of whether probable cause exists. Whether it is necessary to place the accused in
custody in order not to frustrate the ends of justice is left to the judges sound judgment.
[17]

Moreover, the judge is not required to transmit the records of the case to the
prosecutor for review.
In this case, respondent judge, following the foregoing procedure, found probable
cause to hold the accused for trial for the charge of Usurpation of Authority and forthwith
set their arraignment and the pre-trial. There is nothing irregular in the course of action
taken by respondent judge.
Neither is there merit in complainants contention that respondent judge should have
issued a warrant of arrest against the accused for their failure to appear during the initial
presentation of evidence for the prosecution for the charge of Usurpation of Authority.
The issuance of a warrant of arrest for non-appearance of the accused during trial is
discretionary upon the judge. Indeed, there is nothing in the Rules which requires a
judge to issue a warrant of arrest for non-appearance of the accused during trial.
Respondent judge concedes, however, that due to oversight, she failed to rule on
the charge of violation of R.A. 10 in her Consolidated Resolution dated May 6, 2003.
Nonetheless, she asserts in her Comment With Motion To Dismiss Administrative
Complaint dated May 7, 2004 that she conducted a preliminary investigation for the
[18]

charge of violation of R.A. 10 and dismissed the charge after taking into consideration
the affidavits and evidence presented. Complainant does not dispute the fact that
indeed a preliminary investigation was conducted for this charge. Thus, when [19]

respondent judge dismissed the complaint for violation of R.A. 10, she merely did so to
correct an oversight.
 Furthermore, as the Order dated February 12, 2004 confirms, it was the dismissal of
the charge for violation of R.A. 10 that was elevated to the PPO for review. It was
imprudent, however, for respondent judge to transmit the entire records of the case to
the PPO knowing that the charge for Usurpation of Authority was included in the records
of the case. Respondent judge should have ensured that at least one complete set of
the records remained in her sala so that the prosecution for Usurpation of Authority
would not be held up. Injudicious though her actuation was, we do not agree with
complainant that respondent judge was motivated by an evil intent to delay the case.
This brings us to the issue of whether respondent should have transmitted
her Order dated February 12, 2004 dismissing the charge of violation of R.A. 10 to the
Office of the Ombudsman instead of the PPO. Complainant asserts that since the
charge of violation of R.A. 10 is cognizable by the Sandiganbayan, the Office of the
Ombudsman has the primary jurisdiction to review the resolution of dismissal.
This issue is answered by Administrative Order No. 8 entitled Clarifying and
[20]

Modifying Certain Rules of Procedure of the Ombudsman, which provides that all
prosecutors are now deputized Ombudsman prosecutors. Moreover, [R]esolutions in
Ombudsman cases against public officers and employees prepared by a deputized
[21]

assistant prosecutor shall be submitted to the Provincial or City Prosecutor concerned

who shall, in turn, forward the same to the Deputy Ombudsman of the area with his
recommendation for the approval or disapproval thereof. The Deputy Ombudsman shall
take appropriate final action thereon, including the approval of its filing in the proper
regular court or the dismissal of the complaint, if the crime charged is punishable
by prision correccional or lower, or fine of not more than P6,000.00 or both. Resolutions
involving offenses falling within the jurisdiction of the Sandiganbayan shall be forwarded
by the Deputy Ombudsman with his recommendation thereon to the Office of the
Ombudsman.
Thus, respondent judge did not err and was, in fact, merely acting in accordance
with law when she forwarded the case for violation of R.A. 10 to the PPO. The fact that
the PPO remanded the case to the court for further proceedings instead of forwarding
the same to the Deputy Ombudsman as required by Administrative Order No. 8 is quite
another matter. In any event, respondent judge should have taken the necessary steps
to remedy the lapse in order to preclude delay in the disposition of the case.
In sum, for liability to attach for ignorance of the law, the assailed order, decision or
actuation of the judge in the performance of official duties must not only be found to be
erroneous but, most importantly, it must be established that he was moved by bad faith,
dishonesty or some other like motive. Respondent judges actuations are hardly
indicative of bad faith or any motive to delay the case which characterizes the offense of
gross ignorance of the law. [22]

IN VIEW OF THE FOREGOING, the instant complaint is DISMISSED for lack of

merit. Respondent Judge Gloria B. Aglugub is ADMONISHED to be more circumspect in
the performance of her duties in the future.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Chico-Nazario, JJ., concur.
[1]
Rollo, pp. 1-5.
[2]
Id. at 15.
[3]
Id. at 66-68.
[4]
The pertinent provision reads:
Sec. 1. Any person who with or without pretense of official position, shall perform any act
pertaining to the Government, or to any person in authority or public officer, without being lawfully
entitled to do so, shall be punished with imprisonment for not less than two years, nor more than
ten years.
[5]
Supra, note 1 at 36-38.
[6]
108 Phil. 995 (1960).
[7]
Supra note 1 at 51-59.
[8]
Id. at 95-104.
[9]
Id. at 113-117.
[10]
Id. at 127-131.
[11]
Id. at 163-174.
[12]
Id. at 109-112.
[13]
The OCA further recommends that the complaint of respondent judge against Atty. Raul H. Sesbreo be
referred to the Office of the Bar Confidant for proper disposition. Memorandum dated January 6,
2005.
[14]
Id. at 181-182.
[15]
Sec. 1, Rule 112, Rules.
[16]
See Arts. 177 and 76, Revised Penal Code.
[17]
P/Supt. Severino Cruz and Francisco Monedero v. Judge Areola, 428 Phil. 373 (2002).
[18]
Id. at 127-131.
[19]
Complainant avers:
Simply stated: (1) Despite the fact that violation of Art. 177, Rev. Penal Code is NOT to
be subjected to preliminary investigation, respondent subjected it to preliminary investigation,
together with the complaint for violation of Section 1, Republic Act No. 10
Id. at 166.
[20]
November 12, 1990.
[21]
An Ombudsman Case is defined as a complaint filed in or taken cognizance of by the Office of the
Ombudsman charging any public officer or employee including those in government owned or
controlled corporations, with an act or omission alleged to be illegal, unjust, improper or
inefficient.
[22]
Pesayco v. Layague, A.M. No. RTJ-04-1889, December 22, 2004.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 110662 August 4, 1994

TERESITA SALCEDO-ORTANEZ, petitioner,

vs.
COURT OF APPEALS, HON. ROMEO F. ZAMORA, Presiding Judge, Br. 94, Regional Trial
Court of Quezon City and RAFAEL S. ORTANEZ, respondents.

Oscar A. Inocentes & Associates Law Office for petitioner.

Efren A. Santos for private respondent.

PADILLA, J.:

This is a petition for review under Rule 45 of the Rules of Court which seeks to reverse the
decision * of respondent Court of Appeals in CA-G. R. SP No. 28545 entitled "Teresita Salcedo-Ortanez versus Hon. Romeo F. Zamora,
Presiding Judge, Br. 94, Regional Trial Court of Quezon City and Rafael S. Ortanez".

The relevant facts of the case are as follows:

On 2 May 1990, private respondent Rafael S. Ortanez filed with the Regional Trial Court of Quezon
City a complaint for annulment of marriage with damages against petitioner Teresita Salcedo-
Ortanez, on grounds of lack of marriage license and/or psychological incapacity of the petitioner. The
complaint was docketed as Civil Case No. Q-90-5360 and raffled to Branch 94, RTC of Quezon City
presided over by respondent Judge Romeo F. Zamora.

Private respondent, after presenting his evidence, orally formally offered in evidence Exhibits "A" to
"M".

Among the exhibits offered by private respondent were three (3) cassette tapes of alleged telephone
conversations between petitioner and unidentified persons.

Petitioner submitted her Objection/Comment to private respondent's oral offer of evidence on 9 June
1992; on the same day, the trial court admitted all of private respondent's offered evidence.

A motion for reconsideration from petitioner was denied on 23 June 1992.

A petition for certiorari was then filed by petitioner in the Court of Appeals assailing the admission in
evidence of the aforementioned cassette tapes.

On 10 June 1993, the Court of Appeals rendered judgment which is the subject of the present
petition, which in part reads:
 It is much too obvious that the petition will have to fail, for two basic reasons:

(1) Tape recordings are not inadmissible per se. They and any other variant thereof
can be admitted in evidence for certain purposes, depending on how they are
presented and offered and on how the trial judge utilizes them in the interest of truth
and fairness and the even handed administration of justice.

(2) A petition for certiorari is notoriously inappropriate to rectify a supposed error in

admitting evidence adduced during trial. The ruling on admissibility is interlocutory;
neither does it impinge on jurisdiction. If it is erroneous, the ruling should be
questioned in the appeal from the judgment on the merits and not through the special
civil action of certiorari. The error, assuming gratuitously that it exists, cannot be
anymore than an error of law, properly correctible by appeal and not
by certiorari.Otherwise, we will have the sorry spectacle of a case being subject of a
counterproductive "ping-pong" to and from the appellate court as often as a trial court
is perceived to have made an error in any of its rulings with respect to evidentiary
matters in the course of trial. This we cannot sanction.

WHEREFORE, the petition for certiorari being devoid of merit, is hereby

DISMISSED. 1

From this adverse judgment, petitioner filed the present petition for review, stating:

Grounds for Allowance of the Petition

10. The decision of respondent [Court of Appeals] has no basis in law nor previous
decision of the Supreme Court.

10.1 In affirming the questioned order of respondent judge, the Court

of Appeals has decided a question of substance not theretofore
determined by the Supreme Court as the question of admissibility in
evidence of tape recordings has not, thus far, been addressed and
decided squarely by the Supreme Court.

11. In affirming the questioned order of respondent judge, the Court of Appeals has
likewise rendered a decision in a way not in accord with law and with applicable
decisions of the Supreme Court.

11.1 Although the questioned order is interlocutory in nature, the

same can still be [the] subject of a petition for certiorari. 2

The main issue to be resolved is whether or not the remedy of certiorari under Rule 65 of the Rules
of Court was properly availed of by the petitioner in the Court of Appeals.

The extraordinary writ of certiorari is generally not available to challenge an interlocutory order of a
trial court. The proper remedy in such cases is an ordinary appeal from an adverse judgment,
incorporating in said appeal the grounds for assailing the interlocutory order.

However, where the assailed interlocutory order is patently erroneous and the remedy of appeal
would not afford adequate and expeditious relief, the Court may allow certiorari as a mode of
redress. 3
In the present case, the trial court issued the assailed order admitting all of the evidence offered by
private respondent, including tape recordings of telephone conversations of petitioner with
unidentified persons. These tape recordings were made and obtained when private respondent
allowed his friends from the military to wire tap his home telephone. 4

Rep. Act No. 4200 entitled "An Act to Prohibit and Penalize Wire Tapping and Other Related
Violations of the Privacy of Communication, and for other purposes" expressly makes such tape
recordings inadmissible in evidence. The relevant provisions of Rep. Act No. 4200 are as follows:

Sec. 1. It shall be unlawful for any person, not being authorized by all the
parties to any private communication or spoken word, to tap any wire or
cable, or by using any other device or arrangement, to secretly overhear,
intercept, or record such communication or spoken word by using a device
commonly known as a dictaphone or dictagraph or detectaphone or walkie-
talkie or tape-recorder, or however otherwise described. . . .

Sec. 4. Any communication or spoken word, or the existence, contents,

substance, purport, or meaning of the same or any part thereof, or any
information therein contained, obtained or secured by any person in violation
of the preceding sections of this Act shall not be admissible in evidence in
any judicial, quasi-judicial, legislative or administrative hearing or
investigation.

Clearly, respondents trial court and Court of Appeals failed to consider the afore-quoted provisions of
the law in admitting in evidence the cassette tapes in question. Absent a clear showing that both
parties to the telephone conversations allowed the recording of the same, the inadmissibility of the
subject tapes is mandatory under Rep. Act No. 4200.

Additionally, it should be mentioned that the above-mentioned Republic Act in Section 2 thereof
imposes a penalty of imprisonment of not less than six (6) months and up to six (6) years for
violation of said Act. 5

We need not address the other arguments raised by the parties, involving the applicability of
American jurisprudence, having arrived at the conclusion that the subject cassette tapes are
inadmissible in evidence under Philippine law.

WHEREFORE, the decision of the Court of Appeals in CA-G. R. SP No. 28545 is hereby SET
ASIDE. The subject cassette tapes are declared inadmissible in evidence.

SO ORDERED.

Narvasa, C.J., Regalado, Puno and Mendoza, JJ., concur.

#Footnotes

* Penned by Justice Emeterio C. Cui with Justices Jainal D. Rasul and Alfredo G.
Lagamon concurring.

1 Rollo, pp. 24-25.

 2 Rollo, p. 11.

3 Marcelo v. de Guzman, G. R. No. L-29077, 29 June 1982, 114 SCRA 657.

4 TSN, 9 December 1992, p. 4.

5 "Sec. 2. Any person who wilfully or knowingly does or who shall aid, permit, or
cause to be done any of the acts declared to be unlawful in the preceding section or
who violates the provisions of the following section or of any order issued thereunder,
or aids, permits, or causes such violation shall, upon conviction thereof, be punished
by imprisonment for not less than six months or more than six years and with
accessory penalty of perpetual absolute disqualification from public office if the
offender be a public official at the time of the commission of the offense, and, if the
offender is an alien he shall be subject to deportation proceedings."

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-54886 September 10, 1981

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
THE HONORABLE COURT OF APPEALS (Special Second Division), COURT OF FIRST
INSTANCE OF BULACAN, TURANDOT, TRAVIATA, MARCELITA, MARLENE, PACITA,
MATTHEW, VICTORIA and ROSARY, all surnamed ALDABA, respondents.

MAKASIAR, J.:

Petitioner, through this petition for review by certiorari, seeks to annul and set aside the respondent
Court of Appeals' April 29, 1980 decision and August 15, 1980 resolution in CA G.R. No. 10081-SP,
entitled "Republic of the Philippines versus Hon. Roque Tamayo, et al. " a special action for
certiorari, prohibition and mandamus sustaining the lower court's action in dismissing petitioner's
appeal as not having been perfected on time.

The root case is an expropriation proceedings initiated by the petitioner over a 15,000 square meter
lot of private respondents situated in Barrio Tikay, Malolos, Bulacan, docketed in the lower court as
Civil Case No. 525, entitled " Republic of the Philippines vs. Turandot Aldaba, et al. " The subject
parcel of land is needed by the petitioner to set up a permanent site for the Bulacan Area Shop,
Bureau of Equipment, Department of Public Highways, a public purpose authorized by law to be
undertaken by the Ministry of Public Highways. On March 2, 1978, the lower court issued a writ of
possession placing the petitioner in possession of the land in question, upon its deposit of the
amount of P7,200.00 as provisional value. On March 31, 1978, counsel for private respondents filed
a motion praying for the creation of a three (3)- man committee in accordance with Section 5, Rule
67 of the Rules of Court, to study and submit a report as to the just and reasonable compensation
for the parcel of land subject of expropriation. On July 31, 1978, the lower court issued an order
naming the chairman and members of the committee of three. On November 17. 1978, the three-
man committee submitted a joint report to the lower court, recommending that the just compensation
of the expropriated land be fixed at P50.00 per square meter. In this petition, the Solicitor General
claims that he was not served copies of the aforementioned March 31, 1978 motion of private
respondents, July 31, 1978 order of the respondent lower court and the November 17, 1978 report of
the three-man committee. The records reveal that the Solicitor General authorized the provincial
fiscal of Bulacan to represent him in that proceedings (pp. 11-12, C.A. rec.). Parenthetically, private
respondents in their comment to this petition, alleged "that the Provincial Fiscal, being duly
authorized by the office of the Solicitor General to represent the latter in this case, the court merely
furnished the office of the Provincial Fiscal with all the pleadings and other papers of the case,, (p.
53, rec.).

On December 18, 1978, the Solicitor General received a copy of the lower court's order dated
December 8, 1978. The order reads in part:

The joint report filed by the three-man committee charged with the determination of
the just compensation of the property herein sought to be condemned is hereby
APPROVED, such that the just compensation of the land described in Paragraph 11
of the Complaint is fixed at Thirty Pesos (P30.00) per square meter.

The defendant may now withdraw from the Philippine National Bank, Malolos,
Branch, the sum of P7,200.00 deposited by the Third Regional Equipment Services,
Department of Public Highways under Account No, 35109, said sum to be part of the
total amount of P450,000.00 (15,000 square meters at P30.00 per square meter),
which the Department of Public Highways, Third Regional Equipment Services,
Malolos, Bulacan, shall, and is hereby ordered, to pay to the herein defendants as
just compensation for the subject property.

On December 22, 1978, the Solicitor General filed through the mail a notice of appeal as well as
a first motion for extension of time of 30 days from January 17, 1979 within which to file record on
appeal. The extension sought for was granted by the lower court in its order dated January 17, 1979.

On February 13, 1979, the lower court, acting upon petitioner's manifestation filed on January 9,
1979 and motion filed on February 8, 1979, allowed the Solicitor General to borrow the records of
the expropriation case "under proper receipt, the Clerk of Court taking the necessary steps to index
and number the pages thereof and to ensure its integrity; and granted a second extension of thirty
(30) days from February 17, 1979, within which to file the record on appeal of the Republic of the
Philippines" (p. 79, C.A. rec.).

Again, on March 22, 1979, the lower court granted petitioner's third motion for an extension of thirty
(30) days from March 19, 1979 within which to file its record on appeal (p. 80, C.A. rec.).

Subsequently, the lower court, in an order dated April 24, 1980, acted favorably upon petitioner's
motion for a fourth extension of thirty (30) days from April 19, 1979 within which to file its record on
appeal and petitioner's request that the records of the expropriation case be forwarded to the
Solicitor General (p. 81, C.A. rec.).
In a motion dated May 17, 1979, the petitioner, invoking heavy pressure of work, asked for a fifth
extension of thirty (30) days from May 18, 1979 or until June 17, 1979, within which to file its record
on appeal (pp. 82-83, C.A. rec.).

On June 7, 1979, when its motion for a fifth extension has not yet been acted upon by the lower
court, petitioner filed its record on appeal (p. 13, rec.).

On June 15, 1979, eight (8) days after petitioner had filed its record on appeal, private respondents
filed an opposition to the aforesaid fifth motion for extension (pp. 85-87, C.A. rec.), and an objection
to petitioner's record on appeal (pp. 88-89, C.A. rec.), on the ground that the same was filed beyond
the reglementary period, because petitioner's motion dated May 17, 1979 for extension to file record
on appeal was mailed only on May 21, 1979 (pp. 13-14, rec.).

On June 27, 1979, petitioner filed its opposition to the aforesaid objection to its record on appeal,
contending that the said May 17, 1979 motion for extension of time was actually mailed on May 18,
1979, which was the last day of the extended period allowed by the lower court's order of April 24,
1979 (p. 14, rec.).

In an order dated August 13, 1979 but received by the Solicitor General only on September 10,
1979, the lower court dismissed the appeal of petitioner on the ground that the fifth motion for
extension of time dated May 17,1979 within which to file the record on appeal and the record on
appeal were filed out of time. The lower court found that the said fifth motion for extension of time
was actually mailed on May 21, 1979 and not on May 18, 1979 as claimed by petitioner (pp. 14, 34-
35, rec.). The order of dismissal reads:

Upon consideration of the approval of the record on appeal filed by the Republic and
acting on the manifestation filed on July 25, 1979 by the defendants thru counsel, the
Court finds no merit in the same.

The last motion of the Office of the Solicitor General for extension of time to file
record on appeal was on May 17, 1979, seeking for an additional extension of thirty
(30) days from April 18, 1979.

The thirty-day period requested by the Solicitor General from May 18, 1979 therefore
expired on June 17, 1979. But this last request for extension was not acted upon by
the court. The Republic of the Philippines had therefore only up to May 17, 1979,
within which to file record on appeal. The record on appeal was filed only on June 11,
1979 (should be June 7), which is well beyond the period to file record on appeal
Moreover, the last motion for extension which was not acted upon by the Court had
only been filed on May 21, 1979 as shown by the stamp of the Manila Post Office,
the date of the mailing which should be reckoned with in computing periods of mailed
pleadings, and received by the Court on June 22, 1979. Both the motion for
extension filed on May 21, 1979 and the record on appeal filed on June 11, 1979
(should be June 7), have therefore been filed beyond the reglementary period of 30
days from April 18, 1979, or up to May 18,1979.

xxx xxx xxx

(pp. 34-35, rec.).

On October 4, 1979, petitioner filed a motion for reconsideration claiming that "l) there is merit in
plaintiff's appeal from tills Honorable Court's order of December 8, 1978, a copy of which was
received on December 18, 1978; 2) plaintiff's May 17, 1979 motion for 30 days extension from May
17, 1979 to file Record on Appeal, was actually filed on May 18, 1919; and 3) the Honorable Court
denied plaintiff's appeal without first resolving plaintiff's motion for a 30-day extension, from May 18,
1979 to file Record on Appeal" (pp. 14-15, rec.; pp. 52-66, C.A. rec.). Relative to the timeliness of the
filing of its fifth motion for extension of time, petitioner submitted a certification of the Postmaster of
the Central Office of the Bureau of Posts, Manila, that registered letter No. 3273 containing the
aforesaid motion addressed to the Clerk of Court of the Court of First Instance of Malolos,
Bulacan ... was received by this Office late Friday afternoon, May 18, 1979. The letter was not
included in the only morning dispatch of May 19 to Bulacan and was dispatched May 21, 1979,
Monday (May 20, being a Sunday) under the Manila Malolos Bill No. 202, page 1, line 15" (p. 66,
C.A. rec.).

On the merits of the dismissed appeal, petitioner stressed that the creation of a three-man
committee to fix the just compensation of the expropriated lot was without legal basis, because
Section 5, Rule 6 of the Rules of Court upon which the same was anchored had already been
repealed by the provisions of Presidential Decree No. 76 which took effect on December 6, 1972
under which the court has no alternative but to base the just compensation of expropriated property
upon the current and fair market value declared by the owner or administrator. or such market value
as determined by the assessor, whichever is lower.

On October 31, 1979, the lower court denied petitioner's motion for reconsideration for lack of merit
(pp. 36-40, rec.; pp. 2832, C.A. rec.), thus:

The grounds advanced by the plaintiff Republic of the Philippines have been fully
taken into account by the Court in its order of August 13, 1979, particularly the late
filing of the record on appeal. Plaintiff's counsel should not have assumed that the
motion for extension of the period for filing of the record on appeal would be granted.

The plaintiff's counsel's belief that their May 17, 1979 motion would be granted
cannot be the basis for the plaintiff to be absolved of the effect of late filing of the
record on appeal considering that the Court had liberally extended for five times *, each
for thirty (30) days, the filing of said record. This Court considers said extensions as sufficient time for the counsel for
plaintiff to prepare its record on appeal. Plaintiff's counsel, with all the resources it has to protect its client's interests,
should have been vigilant enough not to assume and should not expect that their motion for extension would be
granted. It is not correct therefore that only three days had elapsed after the reglementary period to perfect appeal
because the reglementary period ended not on June 17, 1979, but on May 17, 1979, because the last motion for
extension was not granted by the Court.

The Court deplores the insinuation of plaintiff's counsel that it took hook, line and
sinker, defendant's allegation about the fact of mailing. I t has carefully gone over the
record and found that the date of mailing of the motion for extension is May 21, 1979,
as shown by the stamp 'Registered, Manila, Philippines, May 1, 1979 appearing on
the covering envelope containing the motion for extension. Therefore, the
explanation contained in Annex B of the motion for reconsideration to the effect that
registered Letter No. 3273, addressed to the Clerk of Court, Court of First Instance of
Malolos, Bulacan, was received by the Manila Post Office late Friday afternoon, May
18, 1979, but was not included in the "only" morning dispatch of May 19 to Bulacan
and was dispatched May 21, 1979, Monday (May 20 being a Sunday), under the
ManilaMalolos Bill No. 202, page 1, line 15', can not overturn the fact of date of
actual mailing which is May 21, 1979, because it is of judicial knowledge that a
registered letter when posted is immediately stamped with the date of its receipt,
indicating therein the number of the registry, both on the covering envelope itself and
on the receipt delivered to the person who delivered the letter to the post office. The
letter Annex B of the motion therefore lacks sufficient weight and persuasiveness to
prove the fact that the letter asking for another extension was actually filed on May
18, 1979, and not May 21, 1979.

Regarding the creation of a three-man committee which according to plaintiff the

Court sorely lacked the prerogative to create pursuant to Sec. 5, Rule 67 of the Rules
of Court because it has been superseded by the provisions of PD 76 which definitely
fixed the guidelines for the determination of just compensation of private property
acquired by the State for public use, the Court had to resort to this old method of
determining fair market value, which is defined as:

The "current and fair market value" shall be understood to mean the
"price of which a willing seller would sell and a willing buyer would
buy neither being under abnormal pressure", because, firstly; the
plaintiff failed to show evidence thereof as declared by the owner or
administrator of the property under the provisions of PD 76, or the
valuation or assessment of the value as determined by the assessor,
whichever is lower. Hence, for all intents and purposes, the findings
of the three-man committee have become the basis of the evaluation,
Paragraph Ill of the complaint notwithstanding, because allegation in
the complaint, unless proved, are not binding as evidence.

Presidential Decree No. 42, from its very caption, which reads:

PRESIDENTIAL DECREE NO. 42 AUTHORIZING THE PLAINTIFF

IN EMINENT DOMAIN PROCEEDINGS TO TAKE POSSESSION OF
THE PROPERTY INVOLVED UPON DEPOSITING THE ASSESSED
VALUE FOR PURPOSES OF TAXATION

does not fix the value of the property to be expropriated, but rather for the purpose of
taking possession of the property involved, the assessed value for purposes of
taxation is required to be deposited in the Philippine National Bank or any of its
branches or agencies. This is borne out by the first Whereas of the decree which
finds the existing procedure for the exercise of the right of eminent domain not
expeditious enough to enable the plaintiff to take or enter upon the possession of the
real property involved, when needed for public purposes. The
second Whereas states that the measure is in the national interest in order to effect
the desired changes and reforms to create a new society and economic order for the
benefit of the country and its people.

The body of the law does not specify the valuation of the property, but rather the
method by which seizure of the property could be done immediately, and that is by
the act of depositing with the Philippine National Bank, in its main office or any of its
branches or agencies, an amount equivalent to the assessed value of the property
for purposes of taxation, to be held by said bank subject to the orders and final
disposition of the Court.

Only in this respect are the provisions of Rule 67 of the Rules of Court and or any
other existing law contrary to or inconsistent therewith repealed. If at an, the decree,
PD 42, fixes only a provisional value of the property which does not necessarily
represent the true and correct value of the land as defined in PD 76. It is only
 provisional or tentative to serve as the basis for the immediate occupancy of the
property being expropriated by the condemnor. This is in line with the recent decision
of the Honorable Supreme Court promulgated on October 18, 1979, in the case of
the Municipality of Daet, Petitioner, vs. Court of Appeals and Li Seng Giap & Co.,
Inc., Respondents, G.R. No. L-45861, which states in part:

..., it can already be gleaned that said decree fixes only the
provisional value of the property. As a provisional value, it does not
necessarily represent the true and correct value of the land. The
value is only "provisional" or "tentative" to serve as the basis for the
immediate occupancy of the property being expropriated by the
condemnor.

xxx xxx xxx

(pp. 28-32, rec.).

Dissatisfied with the aforesaid orders of the lower court, petitioner on December 3, 1979 filed with
the respondent Court of Appeals a petition for certiorari, prohibition and mandamus with preliminary
injunction in CA-G.R. No. 10081-Sp, entitled: Republic of the Philippines versus Court of First
Instance of Bulacan, Branch VI, presided over by Hon. Roque Tamayo, et al., whereby it prayed that:
1) This petition be given due course; 2) A writ of preliminary injunction and/or temporary retraining
order be issued ex-parte restraining respondent court from executing, enforcing and/or implementing
its Order dated December 8, 1978, ... and its orders dated August 13, 1979 and October 31, 1979 ...;
3) After hearing on the merits, judgment be rendered: [a] annulling and setting aside respondent
court's Orders of August 13, 1979 ... : [b] Directing and compelling respondent court to allow and
approve petitioner's record on appeal and to certify and elevate the same to this Honorable Court; [c]
Declaring the writ of preliminary injunction and/or restraining order herein prayed for to be made
permanent and perpetual" and for such other relief as the Court may deem just and equitable in the
premises.

On December 14, 1979, respondent Court of Appeals issued a temporary restraining order to
maintain the status quo, and required private respondents to file their comment (pp. 67-68, C.A.
rec.).

On January 2, 1980, private respondents filed the required comment (pp. 69-91, C.A. rec.).

On April 29, 1980, respondent Court of Appeals dismissed petitioner's action and set aside its
December 14, 1979 restraining order. The respondent Court of Appeals ruled that "A review of the
whole record convinces Us that the challenged orders are not a capricious and whimsical exercise of
judgment as to constitute a grave abuse of discretion ..." (pp. 44-45, rec.). The Solicitor General
received a copy of the aforesaid decision on May 19, 1980.

On May 30, 1980, the Solicitor General sought a thirty-day extension from June 3, 1980 within which
to file a motion for reconsideration (pp. 106-107, C.A. rec.).

On June 20, 1980, the respondent Court of Appeals granted the extension sought (p. 108, C.A. rec.).

On June 23, 1980, the Solicitor General filed his motion for reconsideration on the ground that, "The
Honorable Court of Appeals was misled by private respondents' counsel in holding that petitioner's
motion for extension of time to file record on appeal dated May 17, 1979 ... was filed on May 21,
1979, not on May 18, 1979 (which was the last day within which to file petitioner's record on appeal);
hence, this Honorable Court was not correct in ARRIVING AT THE CONCLUSION THAT
PETITIONER'S AFORESAID MOTION FOR EXTENSION was filed beyond the reglementary period"
(pp. 109-118, C.A. rec.). Petitioner also moved to set the case for oral argument (p. 119, C.A. rec.).
Petitioner vehemently insisted as it did in the main action (pp. 10-12, C.A. rec.), that it is erroneous
to conclude that its

... motion for extension dated May 17, 1979 ... was filed on May 21, 1979 and not on
May 18, 1979 which is the last day of the extended period fixed by respondent court
for petitioner to file its record on appeal. It is submitted that the motion for extension
dated May 17, 1979 ... was actually filed on May 18,1979 as there is incontrovertible
proof that the same was in fact mailed on May 18, 1979 via registered mail (Registry
Letter 3273) at the Manila Central Office of the Bureau of Posts. A letter dated
September 26, 1979 of Delfin Celis, postmaster of Central Post Office, Manila, to the
Chief of the Records Section of the Office of the Solicitor General shows that the
envelope containing the May 17, 1979 motion was received by the Post Office of
Manila on May 17, 1979. Said letter states:

In compliance to your request in your letter dated September 20,

1979 in connection with registered letter No. 3273 addressed to the
Clerk of Court, Court of First Instance Malolos, Bulacan, please be
informed that it was received by this Office late Friday afternoon, May
18, 1979. The letter was not included in the only morning dispatch of
May 19 to Bulacan and was dispatched May 21, 19719, Monday
(May 20, being a Sunday) under the Manila- Malolos Bill No. 202,
page 1, line 15.

Thus, it is conceded that the envelope containing the registered letter of petitioner's
motion for extension to file record on appeal dated May 17, 1979 has on its face the
date May 21, 1979 stamped thereon ... . If the aforesaid proof of mailing presented
by private respondent is taken into account solely without taking into consideration
the letter of postmaster Delfin Celis dated September 25, 1979 ... , then it could be
said that petitioner's motion for extension to file record on appeal dated May 17,
1979 was filed out of time. However, the certification of the Postmaster stating that
the letter was actually received in the Post Office on May 18, 1979 conclusively
shows that such date is the date of mailing, and the date May 21, was thus wrongly
stamped thereon by an employee of the Post Office. Petitioner should not be blamed
for the mistake committed by the personnel of the Post Office of stamping May 21,
1979 on the envelope of said Registered Letter No. 3273. Petitioner's counsel had
nothing to do with the aforesaid mistake that had been committed by the personnel of
the Post Office.

In resume it can be said with certainty that the records of the Office of the Solicitor
General and the Post Office of Manila clearly show that the petitioner's motion for
extension dated May 17, 1979 was seasonably filed on May 18, 1979 as the latter
was actually the date of its mailing and therefore said date should be deemed as the
actual date of its filing before respondent court.

At this juncture, it may be stated that undersigned counsel were constrained to seek
extension to file record on appeal because of the pressure of work and their need to
borrow the records of the case from the trial court. Thus, as early as January 9, 19-i
9, they were borrowing the expediente of the case so as to enable them to prepare
 an accurate record on appeal. Petitioner in its motion and manifestation of January 9,
1979 stated why it wanted to borrow the expediente of the case at bar, as follows:

3. The records of the undersigned counsel may not be complete as it

had authorized the Provincial Fiscal of Bulacan to appear in the
hearings before this honorable Court, thus it is possible that the
Office of the Solicitor General may not have been furnished copies of
Orders of this honorable Court, as well as pleadings that may have
been furnished the provincial Fiscal of Bulacan.

4. This being the case, undersigned counsel can not prepare an

accurate and concise record on appeal, hence it is necessary that the
records of the case be lent to the undersigned counsel pursuant to
Sec. 14, Rule 1:36, of the Revised Rules of Court' (pp. 6-7 Motion for
Reconsideration [in the CFI of Bulacan]; see pp. 52, 57-58, C.A. rec.),

On April 10, 1979, undersigned counsel reiterated their desire to borrow

said expediente but it was not until May 3, 1979 that the expediente of the case
consisting of 164 pages were received by the Docket Section of the Office of the
Solicitor General. It was only on May 16, 1979 that saidexpediente were delivered to
undersigned Solicitor, thus compelling him to prepare the May 17, 1979 motion. And
for the same reasons, it was only on June 7, 1979 that the record on appeal was
filed, which was well within the 30 days extension from May 18, 1979 prayed for in
petitioner's motion of May 17, 1979.

xxx xxx xxx

(pp. 109-113, C.A. rec.).

On July 14, 1980, respondent Court of Appeals resolved to require private respondents to comment
on the motion for reconsideration within ten (10) days from receipt of the resolution (p. 12 1, C.A.
rec.).

Earlier, however, or on July 8, 1980, private respondents mailed their opposition to the motion for
reconsideration and their waiver to appear for oral argument (pp. 122-123, C.A. rec.), Both were
received by the Court of Appeals on July 14, 1980, the very day the resolution requiring private
respondents to comment on the motion for reconsideration, was released by the Court of Appeals. In
the petition before this Court, the Solicitor General laments the fact that no copies of the aforesaid
pleadings of the private respondents were ever served on and received by him (p. 18, rec.). Indeed,
said pleadings of the private respondents do not show nor indicate that copies thereof were served
on the Solicitor General (pp. 121-123, C.A. rec.).

In the aforesaid opposition of private respondents, they claimed that

The undersigned counsel merely stated that the date of filing the fifth motion for
extension to file record on appeal by the office of the Solicitor General was on May
21, 1979, as shown on the envelope bearing the stamp of the Manila Post Office,
which clearly reads 'May 21, 1979 and the undersigned counsel brought to the
attention of the lower court that the date of filing of this fifth extension was the date
shown when the mailing was made as stamped on the envelope. That there can be
no other date than the date stamped on the envelope made by the Manila Post Office
 when the fifth request for extension of filing the record on appeal was mailed. This
fact of the date of mailing, May 21, 1979, was stamped on the envelope.

The office of the Solicitor General further alleged:

If ... taken into account solely without taking into consideration the
letter of the Post Master Delfin Cells, dated September 25, 1979 x x,
then it could be said that petitioner's motion for extension to file
record on appeal, dated May 17, 1979, was filed out of time.

From the above statement of the Office of the Solicitor General there can never be
any abuse in the exercise of judgment as to constitute a grave abuse of discretion.
the lower court chose to rely on the date stamped on the envelope by the Manila
Post Office rather than considering as paramount a mere letter from the Manila Post
Office employee, Delfin Cells.

xxx xxx xxx

If we are to believe that the stamped date, May 21, 1979, was wrongly stamped by
an employee of the Manila Post Office, then thousands of mails received and or
mailed on that date were all wrongly stamped. How can the lower court believe that
the date May 21, 1979, was merely erroneously stamped on the envelope? The
lower court's finding of facts on this regard, must also be sustained.

The other reason given by the Office of the Solicitor General was that they have
asked for the complete record of the case but that it was only forwarded to their office
sometime on May 3, 1979.

The record of the case cannot be easily forwarded to the Solicitor General because
there was the case of motion for intervention filed in connection with the case.

The failure on the part of the court to immediately comply with the request of the
office of the Solicitor General cannot be a justifying reason for failure to comply with
the rules of court and of the order of filing the record on appeal within the
reglementary period, or time given by the court.

The office of the Solicitor General gave the Provincial Fiscal of Bulacan the power to
handle the case for (them) and the office of the Provincial Fiscal was furnished with
all pleadings, orders and other papers of the case. The record therefore of the Office
of the Provincial Fiscal can easily be available to them. Besides no less than five (5)
extensions of time had been requested and the last one was not acted upon by the
Court and yet the Office of the Solicitor General filed the Record on Appeal only on
June 17, 1979 should be June 7, 1979), which is far beyond the reglementary period
which was May 17, 1979 (should be May 18, 1979).

xxx xxx xxx

(pp. 123-125, C.A. rec.).

On August 15, 1980, respondent Court of Appeals issued a resolution denying the motion for
reconsideration, thus:
 Acting on the Motion for Reconsideration dated June 23, 1980 filed by the Solicitor
General and the opposition thereto filed on July 8, 1980 by the respondents and
considering that the said motion does not cite new matters which have not been
considered in the decision promulgated on April 29, 1980, the said motion is hereby
denied.

Petitioner's Motion to Set Case for Oral Argument' dated June 23, 1980 is likewise
DENIED.

Aforesaid resolution was received by the Solicitor General on August 20, 1980.

Hence, this recourse.

Petition was filed on October 24, 1980; two extensions of time of thirty (30) days each having been
previously asked by and granted to petitioner Republic of the Philippines.

On October 29, 1980, WE resolved to require respondents to comment on the petition within ten (10)
days from notice of the resolution and at the same time issued a temporary restraining order
enjoining respondents from executing, enforcing and/or implementing the decision dated April 28,
1980 issued in CA G.R. No. SP-10081, entitled "Republic of the Philippines, Petitioner, versus Hon.
Roque Tamayo, etc., et al., Respondents" of the Court of Appeals, and the Order dated December 8,
1978 issued in Civil Case No. 5257-M, entitled "Republic of the Philippines. Plaintiff, versus Turandot
Aldaba, et al., Defendants" of the Court of First Instance of Bulacan, Branch VI at Malolos, Bulacan,
(pp. 49-51, rec.).

On November 14, 1980, private respondents filed their comment to the petition contending that no
abuse of discretion or act in excess of jurisdiction exists as to require a review by this honorable
Court (pp. 52-64, rec.).

On November 24, 1980, WE resolved to give due course to the petition and to declare the case
submitted for decision (p. 65, rec.).

But on December 22, 1980, private respondent filed a motion, praying for the outright dismissal of
the instant petition on the main ground that the decision of the respondent Court of Appeals sought
to be reviewed has already become final and executors hence, unappealable, because this petition
was filed out of time as the petitioner's motion for reconsideration iii the Court of Appeals was pro
forma (pp. 66-67, rec.).

The main issue to be resolved in this case is whether or not respondent Court of Appeals itself
committed a grave abuse of discretion in not finding that the respondent trial court committed a
grave abuse of discretion in dismissing petitioner's appeal. The questioned orders should be set
aside.

I. It must be underscored that the basic provisions of the Rules of Court basis of the dismissal of the
petitioner's appeal by the Court of First Instance of Bulacan as sustained by the respondent Court of
Appeals are Section 13, Rule 41; Where the notice of appeal, appeal bond or record on appeal are
not filed within the period of time herein provided, the appeal shall be dismissed; and Section 14,
Rule 41; A motion to dismiss an appeal on any of the grounds mentioned in the preceding section
may be filed in the Court of First Instance prior to the transmittal of the record to the appellate court.
The Court of First Instance of Bulacan dismissed herein petitioner's appeal on the bases of the
foregoing provision upon its finding that the record on appeal of petitioner was filed out of time as it
was filed only on June 7, 1979 or twenty (20) days after May 18, 1979, the last day of the appeal
period s extended petitioner fifth extension of time of thirty days from May 18, 1979, not having been
favorably acted upon by the Court of First Instance of Bulacan upon its finding that the same was
also filed late or three days after the last day of the extended appeal period. The implication of the
questioned orders of the Court of First Instance is that since the fifth extension of time was filed out
of time, no action may be taken thereon by it; hence, petitioner Republic had only up to May 18,
1979 within which to file the record on appeal. Consequently, the filing thereof only on June 7, 1979
was too late.

The petitioner, however, herein contends as it did before the Court of First Instance of Bulacan and
before the respondent Court of Appeals, that its fifth extension of time was actually filed on May 18,
1979, not on May 21, 1979 as found out by the Court of First Instance and Court of Appeals and in
support thereof, pointed to the certification of the postmaster of the Central Office of the Bureau of
Posts, dated September 25, 1949 (P. 47, rec.) to the effect that the said motion for extension of time
as contained in registered mail No. 3273 addressed to the Clerk of Court of First Instance of Bulacan
(Malolos) ... was received by this office late Friday afternoon, May 8, 1979. The letter was not
included in the only morning dispatch of May 19, to Bulacan and was dispatched May 21, 1979,
Monday (May 20 being a Sunday) under the Manila-Malolos Bill No. 202 page 1, line 15."

But the Court of First Instance of Bulacan opined that said certification cannot override the prevailing
practice in post offices "that a registered letter when posted is immediately stamped with the date of
its receipt, indicating therein the number of the registry, both on the covering envelope itself and on
the receipt delivered to the person who delivered the letter to the office" of which it took judicial
notice.

WE entertain grave doubts that the aforesaid post office practice is a proper subject of judicial notice.

Section 1 of Rule 129 on judicial notice provides that "The existence and territorial extent of states,
their forms of government and symbols of nationality, the law of nations, the admiralty and maritime
courts of the world and their seals, the political constitution and history of the Philippines, the official
acts of the legislative, executive, and judicial departments of the Philippines, the laws of nature, the
measure of time, the geographical divisions and political history of the world and all similar matters
which are of public knowledge, or are capable of unquestionable demonstration, or ought to be
known to judges because of their judicial functions, shall be judicially recognized by the court without
the introduction of proof; but the court may receive evidence upon any of the subjects in this section
stated, when it shag find it necessary for its own information, and may resort for its aid to appropriate
books or documents or reference."

Undoubtedly, the post office practice of which the Court of First Instance took judicial notice is not
covered by any of the specific instances cited above. Neither can it be classified under "matters
which are of public knowledge, or are capable of unquestionable demonstration, or ought to be
known to judges because of their judicial functions ... . " For a matter to be taken judicial notice of by
the courts of law, it must be a subject of common and general knowledge. In other words, Judicial
notice of facts is measured by general knowledge of the same facts. A fact is said to be generally
recognized or known when its existence or operation is accepted by the public without qualification
or contention. The test is whether the 'act involved is so notoriously known as to make it proper to
assume its existence without proof. The fact that a belief is not universal, however, is not controlling
for it is very seldom that any belief is accepted by everyone. It is enough that the matters are
familiarly known to the majority of mankind or those persons f with the particular matter in question
(20 Am Jur 49-50; Martin, Rules of Court 37, Second Edition). Furthermore, a matter may be
personally known to the judge and yet tot be a matter of judicial knowledge and vice versa, a matter
may not be actually known to an individual judge, and nevertheless be a proper subject of judicial
cognizance.

The post office practice herein involved is not tested by the aforestated considerations, a proper
matter of judicial notice. Moreover, the certification issued by the very postmaster of the post office
where the letter containing the questioned motion for extension of time was posted, is a very clear
manifestation that the said post office practice is not of unquestionable demonstration. Indeed, the
doctrine of judicial notice rests on the wisdom and discretion of the courts. The power to take judicial
notice is to be exercised by the courts with caution; care must be taken that the requisite notoriety
exists; and every reasonable doubts upon the subject should be promptly resolved in the negative
(31 CJS 522; Martin, Rules of Court 38, Second Edition).

It is therefore manifest from the foregoing that the Court of First Instance of Bulacan committed a
palpable error amounting to a grave abuse of discretion in relying on the alleged post office practice
aforementioned over the uncontroverted certification of the postmaster earlier referred to. That being
so, the dismissal of petitioner's appeal therefore lacks factual basis. It should have acted on
petitioner's fifth motion for extension of time which WE find to have been filed on time.

The records reveal that a favorable action on the aforesaid fifth motion for extension of time is
warranted by the following circumstances: (1) the record on appeal was filed by petitioner even
before the lower court could consider the questioned motion for extension of time; and private
respondents objected to the said motion only after petitioner had filed the record on appeal; (2) the
order of the lower court granting the fourth extension of time did not contain any caveat that no
further extension shall be allowed; (3) the fact that the CFI records of the case were sent to the
Solicitor General only on May 3, 1979 and ostensibly handed to the Solicitor assigned to the case
only on May .16, 1979 or barely two (2) days before the expiration of the extended appeal period;
and (4) pressure of work in the undermanned Office of the Solicitor General who is the counsel of
the National Government and all other governmental agencies and instrumentalities; and (5) and the
unconscionable amount of P450,000.00 for a parcel of 1.5 hectares situated in a barrio of Malolos,
Bulacan, with only a provisional value of P7,200.00 obviously based upon its assessed value
appearing on its tax declaration. No sugar, rice or coconut land of only 15,000 square meters could
command such a fabulous price.

WE therefore rule that the respondent Court of Appeals gravely abused its discretion in affirming the
disputed orders of the Court of First Instance of Bulacan.

II. But even assuming that the motion for extension to file record on appeal dated May 17, 1979 was
filed not on May 18, 1979 but on May 21, 1979 as claimed by private respondents, which is a delay
of only one (1) working day, May 19 and 20 being Saturday and Sunday, respectively, that
circumstance alone would not justify the outright dismissal of the appeal of petitioner Republic of the
Philippines, especially so in the light of the undisputed fact that petitioner had already filed with the
lower court the record on appeal at the time the questioned dismissal order was issued by the lower
court. For, as ruled in one case, "... the delay of four days in filing a notice of appeal and a motion for
an extension of time to file a record on appeal can be excused on the basis of equity and
considering that the record on appeal is now with the respondent judge. ( Ramos vs. Bagasao, et al.,
G.R. No. 51552, February 28, 1980, Second Division; emphasis supplied). Moreover, WE have
already liberalized in a number of cases the jurisprudence on the matter of perfection of appeals. For
one, in De Las Alas vs. Court of Appeals (83 SCRA 200-216 [19781), WE ruled that:
 ... litigation should, as much as possible, be decided on their merits and not on
technicality, and under the circumstances obtaining in this case, We said in the case
of Gregorio vs. Court of Appeals (L-4351 1, July 23, 1976, 72 SCRA 120, 126), thus:

... Dismissal of appeals purely on technical grounds is frowned upon

where the policy of the courts is to encourage hearing of appeals on
their merits. The rules of procedure ought not to be applied in a very
rigid, technical sense; rules of procedure are used only to help
secure, not override, substantial justice. If a technical and rigid
enforcement of the rules is made, their aim would be defeated.

xxx xxx xxx

III. Moreover, a special circumstance which is the subject of one of the main issues raised by
petitioner in its appeal warrants US to exercise once more OUR exclusive prerogative to suspend
OUR own rules or to exempt a particular case from its operation as in the recent case of Republic of
the Philippines vs. Court of Appeals, et al. (83 SCRA 459, 478-480 119781), thus: ... The Rules have
been drafted with the primary objective of enhancing fair trials and expediting justice. As a corollary,
if their application and operation tend to subvert and defeat instead of promote and enhance it, their
suspension is justified. In the words of Justice Antonio P. Barredo in his concurring opinion in
Estrada vs. Sto. Domingo, '(T)his Court, through the revered and eminent Mr. Justice Abad Santos,
found occasion in the case of C. Viuda de Ordoverza v. Raymundo, to lay down for recognition in
holding that ' "it is always in the power of the court (Supreme Court) to suspend its own rules or to
except a particular case from its operation whenever the purposes of justice require it . . . . .' "
(Emphasis supplied). As emphasized by the Solicitor General, if the questioned orders are not
annulled and set aside, its enforcement and implementation will result to the prejudice of, and
irreparable injury to, public interest." This is so because the Government would lose its opportunity to
assail the order of the lower court dated December 8, 1978, the dispositive portion of which reads,
as follows:

xxx xxx xxx

The joint report filed by the three-man committee charged with the determination of
the just compensation of the property herein sought to be condemned is hereby
approved, such that the just compensation of the land described in Paragraph 11 of
the Complaint is fixed at Thirty Pesos (P30.00) per square meter.

The defendant may now withdraw from the Philippine National Bank, Malolos
Branch, the sum of P7,200.00 deposited by the Third Regional Equipment Services,
Department of Public Highways under Account No. 35109, said sum to be part of the
total amount of P450,000.00 (15,000 square meters at P30.00 per square meter),
which the Department of Public Highways, Third Regional Equipment Services,
Malolos, Bulacan, shall, and is hereby ordered, to pay to the herein defendants as
just compensation for the subject property.

SO ORDERED (pp. 3-4, Order dated December 8, 1978).

It must be stressed at this stage that the Government would lose no less than
P425,000.00 if the lower court's order of December 8, 1978 is not scrutinized on
appeal. It must be stated that the lower court was without jurisdiction to create a
three-man committee because Sec. 5, Rule 67 of the Revised Rules of Court was
 repealed by P.D. 76 which took effect on December 6, 1972, the salient features of
which read, as follows:

The "current and fair market value" shall be understood to mean the
price of which a willing seller would sell and a willing buyer would buy
neither being under abnormal pressure.

For purposes of just compensation in cases of private property

acquired by the government for public use, the basis shall be the
current and fair market value declared by the owner or administrator
or such market value as determined by the assessor, whichever is
lower.

Thus, from December 6, 1972, the effectivity date of PD 76, the just compensation to
be paid for private property acquired by the government for public use is the current
and fair market value declared by the owner or administrator or such market value as
determined by the Assessor whichever is lower. Pursuant to said Decree, the
government's obligation to private respondent would only be P24,376.00. The lower
court thus had no jurisdiction to fix an amount of just compensation higher than
P24,376.00. It follows therefore that the joint report submitted by the three-man
committee created by the lower court could not serve as a legal basis for the
determination of the just compensation of the property sought to be condemned.

xxx xxx xxx

(pp. 19-21, rec.).

IV. With respect to the motion to dismiss filed on December 22, 1980 by private respondents, WE
find no merit therein. The contention of private respondents that the June 23, 1980 motion for
reconsideration of petitioner with the Court of Appeals was pro forma is belied by the results
obtained in this petition before US.

WHEREFORE, PETITION IS HEREBY GRANTED; THE DECISION DATED APRIL 29, 1980 AND
THE RESOLUTION DATED AUGUST 15, 1980 OF THE RESPONDENT COURT OF APPEALS ARE
HEREBY ANNULLED AND SET ASIDE; AND THE RESPONDENT COURT OF FIRST INSTANCE
OF BULACAN IS HEREBY DIRECTED TO APPROVE PETITIONER'S RECORD ON APPEAL AND
TO ELEVATE THE SAME TO THE HONORABLE COURT OF APPEALS. NO COST.

SO ORDERED.

Teehankee (Chairman), Fernandez and Guerrero, JJ., concur.

Melencio-Herrera, J., concur in the result.

Footnotes

* four (4) times only; 5th extension was not acted upon by the Court.
The Lawphil Project - Arellano Law Foundation

Republic of the Philippines

Supreme Court
Baguio City

THIRD DIVISION

G.R. No. 152364

ALEJANDRA S. LAZARO, assisted by
her husband, ISAURO M. LAZARO;
LEONCIO D. SANTOS; ADOLFO Present:
SANTOS; NENITA S. LACAR;
ANGELINA S. SAGLES, assisted by
her husband, ALBERTO SANTOS, JR.; CORONA, J., Chairperson,
REGINA SANTOS and FABIAN VELASCO, JR.,
SANTOS, NACHURA,
Petitioners, PERALTA, and
MENDOZA, JJ.
- versus -

Promulgated:
MODESTA AGUSTIN, FILEMON
AGUSTIN, VENANCIA AGUSTIN, April 15, 2010
MARCELINA AGUSTIN, PAUL A.
DALALO, NOEL A. DALALO,
GREGORIO AGUSTIN and
BIENVENIDO AGUSTIN,
Respondents.
x-----------------------------------------------------------------------------------------x

DECISION

PERALTA, J.:
Assailed in the present petition for review on certiorari is the
Decision[1] dated February 21, 2002 of the Court of Appeals (CA) in CA-G.R. SP
No. 63321. The CA had affirmed, with modification, the Decision [2] dated February
6, 2001 of the Regional Trial Court (RTC) of Laoag City, Branch 13, in Civil Case
No. 11951-13, which also affirmed, with modification, the
[3]
Decision dated January 6, 2000 of the Municipal Trial Court in Cities (MTCC)
of Laoag City, Branch 1, in Civil Case No. 2834.

The factual and procedural antecedents of the case are as follows:

On November 4, 1998, herein petitioners filed against herein respondents a

Complaint[4] for partition with the MTCC of Laoag City, alleging as follows:

xxxx

II
That the plaintiffs and the defendants are the descendants of the late Simeon C.
Santos, married to Trinidad Duldulao, who died intestate leaving a parcel of land
situated in the Barrio of Natividad Nstra. Sra., Municipality of Laoag, designated
as Lot No. 10675 of the Cadastral Survey of Laoag;

III
That Simeon C. Santos during his lifetime, married to Trinidad Duldulao, begot
four (4) legitimate children, namely: Basilisa D. Santos, Alberto D. Santos,
Leoncio D. Santos and Alejandra D. Santos. Basilisa D. Santos, [who] was
married to Petronilo Agustin, is now deceased; Alberto Santos, married to
Rizalina Guerrero, is now deceased, while Leoncio D. Santos, married to Dictinia
Tabeta, and Alejandra D. Santos married to Isauro M. Lazaro, are still living;

IV
That in the desire of the children of Simeon C. Santos from whom the parcel of
land originated as owner, his children, namely[:] Alberto, Leoncio and Alejandra,
all surnamed Santos, consented that the parcel of land mentioned in paragraph II
of this complaint be titled in the name of Basilisa, the latter being the eldest and
so Original Certificate of Title No. 20742 in the name of Basilisa Santos was
obtained although it was agreed among them that it did not and does not
necessarily mean that Basilisa Santos is the sole and exclusive owner of this
parcel of land, and as embodied in the Title obtained in the name of Basilisa
Santos, the parcel of land is particularly described as follows:

A parcel of land (Lot No. 10676 of the Cadastral survey of Laoag),

with the improvements thereon, situated in the Barrio of Natividad
Nstra. Sra., Municipality ofLaoag. Bounded on the NE. by Lot No.
10677; on the SE. by Panganiban Street; on the SW. by Lot No.
10672; and on NW. by Lot No. 1065, containing an area of three
hundred and one (301) square meters, more or less, covered by Tax
Declaration No. 010-00224 for the year 1994 in the names of
Modesta Agustin, et al. with a market value of P96,320.00 and an
assessed value of P14,450.00.

V
That there is a residential house constructed on the lot described in paragraph IV
of this complaint and in the construction of which plaintiff Alejandra Santos, then
still single, spent the amount of P68,308.60, while Basilisa Santos and her
children spent the amount of P3,495.00. Afterwards, Alejandra Santos got married
to Isauro M. Lazaro who was employed in a private company and when he retired
from the service, some additional constructions were made on the residential
house and lot such as a bedroom, azotea, two (2) toilets, two (2) kitchens, a car
garage, the money spent for these additional constructions came from the earnings
of the spouses Alejandra Santos-Lazaro and Isauro M. Lazaro. The said residential
house is now covered by Tax Declaration No. 010-00225 in the names of Basilio
Agustin (should be Basilisa Agustin) and Alejandra Santos for the year 1994 with
a market value of P93,920.00 and an assessed value of zero;

VI
That without the knowledge and consent of the plaintiffs, the title of the lot
described in paragraph IV of the complaint was transferred into another title
which is now Transfer Certificate of Title No. T-20695 in the names of Modesta
Agustin, Filemon Agustin, Venancia Agustin, Marcelina Agustin, Monica Agustin,
Gregorio Agustin and Bienvenido Agustin who are the children of the late Basilisa
Santos-Agustin who are herein named as defendants with Monica Agustin now
deceased represented by her children Paul A. Dalalo and Noel A. Dalalo as
defendants;

VII
That during the lifetime of Basilisa Santos-Agustin, plaintiff Alejandra Santos-
Lazaro informed the former, who are sisters, that the transfer of the title covering
the lot described in paragraph IV of this complaint in the name of Basilisa Santos
into the names of her children would erroneously imply that the lot is solely and
exclusively owned by Basilisa Santos-Agustin's children, but Basilisa Santos-
 Agustin replied [to] plaintiff Alejandra Santos-Lazaro not to worry because an
affidavit was already executed by her recognizing and specifying that her brothers
Alberto Santos and Leoncio Santos, and her sister Alejandra Santos-Lazaro would
each get one fourth () share of the lot;

VIII

That in a move to determine if the children and the heirs of Basilisa Santos-
Agustin, namely: Modesta Agustin, Filemon Agustin, Venancia Agustin,
Marcelina Agustin, Paul Dalalo and Noel Dalalo who are the successors of their
mother the late Monica Agustin, Gregorio Agustin and Bienvenido Agustin would
follow the line of thinking of their mother and grandmother of Paul A. Dalalo and
Noel A. Dalalo on the shares of the lot and residential house erected on it, the
plaintiffs initiated a partition in the barangay court where the lot is situated
described in paragraph IV of this complaint, but that the children of Basilisa
Santos-Agustin and her grandchildren Paul A. Dalalo and Noel A. Dalalo refused
and opposed the partition claiming that they are the sole and exclusive owners of
the lot being that the lot is now titled in their names, and hence there was no
settlement as shown by the certification of the barangay court hereto attached as
annex A;

IX

That plaintiffs now invoke the intervention of the court to partition the lot in
accordance with the law on intestate succession and to partition the residential
house as specified below. x x x

x x x x[5]
Petitioners also prayed for the grant of attorney's fees, moral and exemplary
damages, and costs of suit.

Herein respondents filed their Answer with Counterclaim, [6] raising the following
as their Special/Affirmative Defenses:

1. The subject parcel of land is owned exclusively by the defendants as heirs of

the late Basilisa Santos, wife of Petronilo Agustin, who was the original registered
owner of the property evidenced by OCT No. 20742; the plaintiffs never became
owners of said land. There was never any agreement between the ascendants of
the plaintiffs and defendants, neither is there any agreement between the plaintiffs
and defendants themselves that in the ownership, the plaintiffs have a share over
the lot;
2. The defendants are the ones paying for the real estate taxes of said land;
 3. Some of the plaintiffs were able to stay on the subject house because
defendants' mother Basilisa Santos was the eldest sibling and she had to take care
of her brother Leoncio and sister Alejandra when these siblings were not yet
employed and Basilisa allowed them to reside in the house constructed within the
lot; Alejandra Santos stayed in the house up to the present with the agreement that
she will spend for the renovation of the house in lieu of monthly rentals that she
has to pay when she already became financially able;

4. Prior to 1962, subject property was mortgaged by Basilisa Santos Agustin to

the Philippine National Bank and the property was foreclosed by PNB when the
loan was not paid, hence, TCT No. (T-9522)-4495, under the name of the
Philippine National Bank was issued (Annex A). Thereafter, Basilisa Santos-
Agustin, purchased it from the PNB and TCT No. T-5662 was issued under her
name (Annex B); the property was later on transferred to her direct descendants,
the defendants herein as evidenced by TCT No. T-20695 (Annex C);

x x x x[7]

Respondents then prayed that petitioners' complaint be dismissed. In their

Counterclaim, respondents asked the court to direct petitioners to pay reasonable
compensation for the latter's use of the disputed property, exemplary and moral
damages, attorney's fees, and costs of suit.

After the issues were joined and the pre-trial was terminated, trial on the merits
ensued.

On January 6, 2000, the MTCC rendered its Decision [8] dismissing the complaint
and denying petitioners' prayer for partition.

The MTCC ruled, among others, that no evidentiary value could be given to the
affidavit allegedly executed by Basilisa, wherein she purportedly acknowledged
her co-ownership of the subject property with her siblings Alberto, Leoncio and
Alejandra, because the affiant was not presented on the witness stand, such that all
the statements made in her affidavit were hearsay. Moreover, the MTCC held that
two credible witnesses testified in plain, simple and straightforward manner that at
the time the affidavit was supposed to have been signed and sworn to before the
notary public, Basilisa was already bedridden and an invalid who could not even
raise her hand to feed herself. In addition, the MTCC also gave credence to the
testimony of the notary public, before whom the document was supposedly signed
and sworn to, that the said affidavit was already complete and thumbmarked when
the same was presented to him by a person who claimed to be Basilisa.

Petitioners filed an appeal with the RTC of Laoag City.

On February 6, 2001 the RTC issued a Decision[9] affirming, with modification, the
judgment of the MTCC. The RTC found that the house erected on the disputed lot
was built and renovated by petitioners in good faith. As a consequence, the RTC
held that petitioners were entitled to indemnity representing the costs of the
construction and renovation of the said house. The dispositive portion of the RTC
Decision, thus, reads:

WHEREFORE, the decision of the lower court is hereby affirmed with the
modification directing the appellees [herein respondents] to indemnify the
appellants [herein petitioners] in the amount of P68,308.60 as proved by them.

Considering the apparent error of the lower court in quoting the questioned lot as
Lot No. 10675, the same is hereby corrected so as to reflect the correct lot number
as Lot No. 10676 to conform to the evidence presented.

SO ORDERED.[10]

Aggrieved by the RTC Decision, petitioners filed a petition for review with the
CA.

On February 21, 2002, the CA issued its presently assailed Decision disposing as
follows:

WHEREFORE, the decision dated February 6, 2001 rendered in Civil

Case No. 11951-13 is hereby AFFIRMED subject to the MODIFICATION that
appellees [herein respondents] pay the amount of P68,308.60 in indemnity solely
to appellant Alejandra Santos-Lazaro.

SO ORDERED.[11]

Hence, the instant petition based on the following grounds:

 I. THE SWORN STATEMENT OF BASILISA S. AGUSTIN IS
A DECLARATION AGAINST INTEREST WHICH ESTABLISHES THE CO-
OWNERSHIP OF LOT NO. 10676 BY AND AMONG THE PETITIONERS
AND RESPONDENTS AS HEIRS OF THE LATE SIMEON C. SANTOS.[12]

II. THE CO-OWNERSHIP OF LOT NO. 10676 BY AND AMONG BASILISA S.

AGUSTIN, ALBERTO D. SANTOS, ALEJANDRA S. LAZARO AND
LEONCIO D. SANTOS DID NOT TERMINATE AS A RESULT OF THE
TRANSFER OF THE LOT'S OWNERSHIP PRECIPITATED BY ACTS OF
BASILISA S. AGUSTIN WITH RESPECT TO THE SUBJECT PROPERTY.[13]

III. PETITIONER ALEJANDRA S. LAZARO IS A CO-OWNER OF THE

RESIDENTIAL HOUSE ON LOT NO. 10676 NOT MERELY A BUILDER IN
GOOD FAITH WITH RESPECT THERETO AND AS SUCH, IS ENTITLED TO
A PARTITION OF THE SUBJECT HOUSE.[14]

In their first assigned error, petitioners contend that Basilisa's sworn statement
which recognizes her siblings' share in the disputed property is a declaration
against interest which is one of the recognized exceptions to the hearsay rule.
Petitioners argue that since the sworn statement was duly notarized, it should be
admitted in court without further proof of its due execution and authenticity; that
the testimonies of Basilisa's nurse and physician cannot qualify as clear and
convincing evidence which could overthrow such notarized document; that the
notary public cannot impugn the same document which he notarized for to do so
would render notarized documents worthless and unreliable resulting in prejudice
to the public.
As to the second assigned error, petitioners aver that their co-ownership of the
questioned property with Basilisa did not cease to exist when the Philippine
National Bank (PNB) consolidated its ownership over the said parcel of land.
Petitioners assert that they did not lose their share in the property co-owned when
their share was mortgaged by Basilisa without their knowledge and consent; that
the mortgage was limited only to the portion that may be allotted to Basilisa upon
termination of their co-ownership; that PNB acquired ownership only of the share
pertaining to Basilisa; that when Basilisa bought back the property from PNB, she
simply re-acquired the portion pertaining to her and simply resumed co-ownership
of the property with her siblings. Petitioners also contend that Basilisa's children
did not acquire ownership of the subject lot by prescription, and that neither
Basilisa nor respondents repudiated their co-ownership.
Anent the third assignment of error, petitioners argue that Alejandra Lazaro, being
a co-owner of the disputed parcel of land and not simply a builder in good faith, is
entitled to a partition of the subject residential house.

At the outset, it bears to point out that it is wrong for petitioners to argue that
Basilisa's alleged sworn statement is a declaration against interest. It is not a
declaration against interest. Instead, it is an admission against interest.

Indeed, there is a vital distinction between admissions against interest and

declarations against interest. Admissions against interest are those made by a party
to a litigation or by one in privity with or identified in legal interest with such party,
and are admissible whether or not the declarant is available as a witness.
[15]
Declarations against interest are those made by a person who is neither a party
nor in privity with a party to the suit, are secondary evidence, and constitute an
exception to the hearsay rule. They are admissible only when the declarant is
unavailable as a witness.[16] In the present case, since Basilisa is respondents'
predecessor-in-interest and is, thus, in privity with the latter's legal interest, the
former's sworn statement, if proven genuine and duly executed, should be
considered as an admission against interest.

A cursory reading of the subject sworn statement also reveals that it refers to a
parcel of land denominated as Lot No. 10678 while the property being disputed is
Lot No. 10676.[17] On this basis, it cannot be concluded with certainty that the
property being referred to in the sworn statement is the same property claimed by
petitioners.

Having made the foregoing observations and discussions, the question that arises is
whether the subject sworn statement, granting that it refers to the property being
disputed in the present case, can be given full faith and credence in view of the
issues raised regarding its genuineness and due execution.

The Court rules in the negative.

Settled is the rule that generally, a notarized document carries the evidentiary
weight conferred upon it with respect to its due execution, and documents
acknowledged before a notary public have in their favor the presumption of
regularity.[18] However, this presumption is not absolute and may be rebutted by
clear and convincing evidence to the contrary.[19]

Moreover, not all notarized documents are exempted from the rule on
authentication.[20] Thus, an affidavit does not automatically become a public
document just because it contains a notarial jurat.[21] The presumptions that attach
to notarized documents can be affirmed only so long as it is beyond dispute that the
notarization was regular.[22]

However, a question involving the regularity of notarization as well as the due

execution of the subject sworn statement of Basilisa would require an inquiry into
the appreciation of evidence by the trial court. It is not the function of this Court to
review, examine and evaluate or weigh the probative value of the evidence
presented. A question of fact would arise in such event. Settled is the rule that
questions of fact cannot be raised in an appeal via certiorari before the Supreme
Court and are not proper for its consideration. [23] The rationale behind this doctrine
is that a review of the findings of fact of the trial courts and the appellate tribunal is
not a function this Court normally undertakes.[24] The Court will not weigh the
evidence all over again unless there is a showing that the findings of the lower
courts are totally devoid of support or are clearly erroneous so as to constitute
serious abuse of discretion.[25] Although there are recognized exceptions[26] to this
rule, none exists in the present case to justify a departure therefrom.

Petitioners rely heavily on the presumption of regularity accorded by law to

notarized documents. While indeed, a notarized document enjoys this presumption,
the fact that a deed is notarized is not a guarantee of the validity of its contents.
[27]
As earlier discussed, the presumption is not absolute and may be rebutted by
clear and convincing evidence to the contrary.[28] The presumption cannot be made
to apply to the present case because the regularity in the execution of the sworn
statement was challenged in the proceedings below where its prima facie validity
was overthrown by the highly questionable circumstances under which it was
supposedly executed, as well as the testimonies of witnesses who testified on the
improbability of execution of the sworn statement, as well as on the physical
condition of the signatory, at the time the questioned document was supposedly
executed. The trial and appellate courts were unanimous in giving credence to the
testimonies of these witnesses. The Court has repeatedly held that it will not
interfere with the trial court's determination of the credibility of witnesses, unless
there appears on record some fact or circumstance of weight and influence which
has been overlooked or the significance of which has been misinterpreted. [29] The
reason for this is that the trial court was in a better position to do so, because it
heard the witnesses testify before it and had every opportunity to observe their
demeanor and deportment on the witness stand.[30]

Considering the foregoing, the Court finds no reason to reverse the rulings of the
MTCC, the RTC and the CA. Although the questioned sworn statement is a public
document having in its favor the presumption of regularity, such presumption was
adequately refuted by competent witnesses.

The Court further agrees with the ruling of the RTC that:

The testimony of [the notary public] Atty. Angel Respicio did not suffice to rebut
the evidence of the appellees considering his admission that the affidavit was
already thumbmarked when presented to him by one who claimed to be Basilisa
Santos and whom, the witness said he did not know personally. Further, what
makes the documents suspect is the fact that it was subscribed on the same date as
the financial statement of Alejandra Santos.

It may not be amiss to point out, at this juncture, that the principal function of a
notary public is to authenticate documents. [31] When a notary public certifies to the
due execution and delivery of a document under his hand and seal, he gives the
document the force of evidence.[32] Indeed, one of the purposes of requiring
documents to be acknowledged before a notary public, in addition to the solemnity
which should surround the execution and delivery of documents, is to authorize
such documents to be given without further proof of their execution and delivery.
[33]
A notarial document is by law entitled to full faith and credit upon its face.
Courts, administrative agencies and the public at large must be able to rely upon
the acknowledgment executed before a notary public and appended to a private
instrument.[34] Hence, a notary public must discharge his powers and duties, which
are impressed with public interest, with accuracy and fidelity.[35] A notary public
should not notarize a document unless the persons who signed the same are the
very same persons who executed and personally appeared before him to attest to
the contents and truth of what are stated therein.[36]

In the instant case, the notary public should have exercised utmost diligence in
ascertaining the true identity of the person executing the said sworn statement.
However, the notary public did not comply with this requirement. He simply relied
on the affirmative answers of the person appearing before him attesting that she
was Basilisa Santos; that the contents of the sworn statement are true; and that the
thumbmark appearing on the said document was hers. However, this would not
suffice. He could have further asked the person who appeared before him to
produce any identification to prove that she was indeed Basilisa Santos,
considering that the said person was not personally known to him, and that the
thumbmark appearing on the document sought to be notarized was not affixed in
his presence. But he did not. Thus, the lower courts did not commit any error in not
giving evidentiary weight to the subject sworn statement.

The second and third assigned errors proceed on the presumption that petitioners
are co-owners of the disputed property. Since the Court has already ruled that the
lower courts did not err in finding that petitioners failed to prove their claim that
they were co-owners of the said property, there is no longer any need to discuss the
other assigned errors.

WHEREFORE, the petition is DENIED. The February 21, 2002 Decision of the
Court of Appeals in CA-G.R. SP No. 63321 is AFFIRMED.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:
 RENATO C. CORONA
Associate Justice
Chairperson

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

ATTESTATION

I attest 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 Courts Division.

RENATO C. CORONA
Associate Justice
Third Division, Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division
Chairpersons Attestation, I certify 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 Courts Division.

REYNATO S. PUNO
Chief Justice

[1]
Penned by Associate Justice Oswaldo D. Agcaoili, with Associate Justices Jose L. Sabio, Jr. and Sergio L. Pestao,
concurring; rollo, pp. 62-72.
[2]
Records, pp. 301-305.
[3]
Id. at 266-269.
[4]
Id. at 1-7.
[5]
Id. at 2-4.
[6]
Id. at 20-23.
[7]
Id. at 21-22.
[8]
Rollo, pp. 53-56.
[9]
Id. at 57-61.
[10]
Id. at 61.
[11]
Id. at 72.
[12]
Id. at 21.
[13]
Id. at 26.
[14]
Id. at 29.
[15]
Unchuan v. Lozada, G.R. No. 172671, April 16, 2009, 585 SCRA 421, 435.
[16]
Id.
[17]
See Exhibit C, records, p. 85.
[18]
De Jesus v. Court of Appeals, G.R. No. 127857, June 20, 2006, 491 SCRA 325, 334; Pan Pacific Industrial Sales
Co., Inc. v. Court of Appeals, G.R. No. 125283, February 10, 2006, 482 SCRA 164, 174.
[19]
Potenciano v. Reynoso, 449 Phil. 396, 406 (2003).
[20]
Cequea v. Bolante, 386 Phil. 419, 427 (2000).
[21]
Id.
[22]
Dela Rama v. Papa, G.R. No. 142309, January 30, 2009, 577 SCRA 233, 244.
[23]
Cabang v. Basay, G.R. No. 180587, March 20, 2009, 582 SCRA 172, 186.
[24]
Id.
[25]
Id. at 186-187.
[26]
These recognized exceptions are: (1) when the findings are grounded entirely on speculation, surmises or
conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when there is grave
abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of fact are
conflicting; (6) when in making its findings, the Court of Appeals went beyond the issues of the case, or its findings
are contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to those of
the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based;
(9) when the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the
respondent; (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by
the evidence on record (Bernaldo v. The Ombudsman and the Department of Public Works and Highways, G.R. No.
156286, August 13, 2008, 562 SCRA 60); and (11) when the Court of Appeals manifestly overlooked certain
relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion
(Superlines Transportation Co., Inc. v. Philippine National Coordinating Council, G.R. No. 169596, March 28,
2007, 519 SCRA 432, 441, citing Insular Life Assurance Co., Ltd. v. Court of Appeals, 428 SCRA 79, 85-86 [2004];
see also Grand Placement and General Services Corporation v. Court of Appeals, G.R. No. 142358, January 31,
2006, 481 SCRA 189, 202, citing Mayon Hotel & Restaurant v. Adana, 458 SCRA 609, 624 [2005]; Castillo v.
NLRC, 367 Phil. 603, 619 [1999] and Insular Life Assurance Co. Ltd. v. CA, supra; Sampayan v. Court of Appeals,
G.R. No. 156360, January 14, 2005, 448 SCRA 220, 229, citing Insular Life Assurance Co. Ltd. v. Court of
Appeals,, supra, citing Langkaan Realty Development, Inc. v. United Coconut Planters Bank, 400 Phil. 1349, 1356
[2000]; Nokom v. National Labor Relations Commission, 390 Phil. 1228, 1242-1243 [2000] and Sta. Maria v. Court
of Appeals, 349 Phil. 275, 282-283 [2000]; Aguirre v. Court of Appeals, 421 SCRA 310, 319 [2004]; C & S
Fishfarm Corporation v. Court of Appeals, 442 Phil. 279, 288 [2002]).
[27]
San Juan v. Offril, G.R. No. 154609, April 24, 2009, 586 SCRA 439, 445-446.
[28]
China Banking Corporation, Inc. v. Court of Appeals, G.R. No. 155299, July 24, 2007, 528 SCRA 103, 110.
[29]
San Juan v. Offril, supra note 27.
[30]
Id. at 446-447.
[31]
Vda. de Bernardo v. Restauro, 452 Phil. 745, 751 (2003).
[32]
Id.
[33]
Id.
[34]
Id.
[35]
Id.
[36]
Bautista v. Bernabe, A.C. No. 6963, February 9, 2006, 482 SCRA 1, 6.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 140472 June 10, 2002

NORA T. JIMENEZ, JOSEFINA T. GAVINO, LIBRADA T. DINO and SUSAN T. JOVEN, petitioners,
vs.
COMMISSION ON ECUMENICAL MISSION AND RELATIONS OF THE UNITED PRESBYTERIAN
CHURCH IN THE UNITED STATES OF AMERICA, UNITED CHURCH OF CHRIST IN THE
PHILIPPINES and POLICARPIO CARUNGIN, respondents.

PANGANIBAN, J.:

The well-settled rule that factual findings of trial courts deserve respect, sometimes even finality, is
based on the postulate that they had the distinct opportunity, not available to the reviewing courts, to
hear the testimonies of witnesses and to observe their conduct and demeanor on the stand. But
where the factual assessments refer to documents that are available to the scrutiny of appellate
courts in the same manner that they were to the lower courts, this reliance does not apply. In the
present case, the controversy revolves around the allegedly forged signatures on documents that
could be examined by the Court of Appeals (CA). In any event, since there was a conflict in the
factual assessments made by the trial and the appellate courts, we have opted to pass upon the
issue as an exception to the general rule.

The Case

Before us is a Petition for Review on Certiorari under Rule 45, challenging the January 29, 1999
Decision and the September 7, 1999 Resolution the Court of Appeals 1 in CA-GR CV No. 48877. The
assailed Decision disposed as follows:
 "WHEREFORE, the appealed Decision dated September 20, 1994 is REVERSED and SET
ASIDE, and another is entered sustaining the validity of the Deed of Sale dated July 7, 1936
and of TCT No. 90689 issued in the name of UCCP as owner thereof, and DISMISSING the
Complaint."2

The assailed Resolution denied reconsideration.3

The Facts

The facts of the case are summarized by the CA in this wise:

"The [petitioners] are sisters and the children of x x x Nicanor Teodoro and Francisca Ciriaco.
They filed their complaint in 1982 alleging that their mother was the owner of the subject
property which was titled in her name under OCT No. 11757. Said property is now covered
by TCT No. 90689 in the name of [respondent] United Church of Christ in the Philippines (or
UCCP) for this was donated to it by the Commission on Ecumenical Mission in that Deed of
Donation dated July 1, 1977. [Petitioners] claim that their parents never sold the lot to the
Board of Foreign Missions nor any one else, and that their purported signatures on the
impugned Deed of Sale have been found to be forgeries by government handwriting experts.
Relying on this [respondents] filed this suit [imputing] the fraudulent act upon [respondents]
and thus asked for the declaration of nullity of the subject deed and of TCT No. 90689 issued
in the name of UCCP, the reconveyance of the subject property in their favor, and for the
award of damages.

"In their answer, [respondents] denied that there was forgery and insisted that the said
spouses legally conveyed their property under a valid deed of sale. They likewise averred
that the action was already barred by prescription and/or laches for [petitioners] filed this suit
after sleeping on their alleged rights for forty-five (45) years.

"At the trial [petitioners] submitted various exhibits as documentary evidences and presented
five (5) witnesses, namely: [petitioners] Susan T. Joven and Nora T. Jimenez, handwriting
experts Arcadio Ramos of the National Bureau of Investigation and Francisco Cruz, Jr., of
PC Crime Laboratory, and [respondent] pastor Policarpio Carungin. On the other hand,
[respondents] proffered as their evidences four (4) documents and the testimonies of
[Respondent] Pastor Policarpio Carungin and that of his wife Felicula.

"According to [petitioners], their father and mother died respectively on September 30, 1979
and April 3, 1943, and they were then only minors when their mother died. In 1975 they
learned for the first time about the subject property from Irene Cruz, their aunt and the
caretaker of their mothers said property. They had no copy of the original title to the property
and the only documents they possessed proving their mothers ownership were the
Application for Registration of Title filed by their mother in 1929 docketed as G.L.R.O. Rec.
No. 35469 and the Court Order for the issuance of Decree No. 381166 in 1930 commanding
the registration of the subject property in their mothers name. With these papers on hand,
[petitioners] then filed a petition for reconstitution of original certificate of title in 1977. This
was opposed by UCCP arguing that it owned the property by virtue of a valid deed of sale
signed by their parents. [Petitioners] also discovered that a petition for reconstitution of
transfer of certificate of title involving the same property had been filed way back in 1975 by
the UCCP, and in fact, in 1979 this petition of UCCP was granted and TCT No. 90689 was
issued in its name. Entertaining doubts as to the truthfulness of the deed of sale, [petitioners]
secured a copy of it and showed it to their father who denied having signed the deed.
Consequently they asked for signature verification of the said deed of sale by the NBI and
the PC. In its Questioned Document Report No. 241-780 the NBI made the finding that the
sample and questioned signatures of Francisca were not written by the same person, while
no definite opinion was given as to Nicanors signatures because of the insufficiency in
numbers of his sample signatures. The PC Crime Laboratory examination came to the
conclusion that the signatures of both Francisca and Nicanor were written by persons other
than the said spouses.

"On the other hand, the evidence of [respondents] shows that the Board of Foreign Missions
(now the Commission on Ecumenical Mission) bought the subject property from the Teodoro
spouses in 1936. A church building was constructed on it that same year by the Presbyterian
Protestant Church which was then under the ecclesiastical auspices of the Board of Foreign
Missions. From then on, the church has remained on the property and has been regularly
used for religious worship by its members. Sometime in 1947, several protestant church
bodies, including the Presbyterian Church, were merged into a one incorporated union - the
UCCP. In order that the title to the subject property would be transferred in the name of
UCCP, a deed of donation was executed by the Board of Foreign Missions in its favor in
1977. Way back in 1975, UCCP filed a petition for reconstitution of Transfer of Certificate of
Title No. T-14785 of the subject lot in the name of the Board of Foreign Missions, which was
granted in 1979. In 1980, the UCCP registered the lot in its name and TCT No. T-90689 was
issued canceling TCT No. T-14785.

"On March 17, 1989, the court a quo rendered its first decision of the case dismissing the
complaint of [petitioners] on the grounds of prescription and laches, and as such it did not
anymore see it fit [to] resolve the other issues of the case, The pertinent portion of the
judgment reads as follows:

[Petitioners] claim being barred by prescription and laches, the other issues need
no longer be discussed.

WHEREFORE, this case is hereby ordered DISMISSED.

"Dissatisfied [petitioners] challenged the ruling by filing an appeal with this Court docketed as
CA-G.R. No. 21704. On October 31, 1991, this Court rendered its decision reversing the
lower courts judgment holding that the case had not been barred by laches or prescription,
and thereupon:

PREMISES CONSIDERED, this Court hereby resolves to remand the instant action
to the court a quo for the said court to dispose of the undisposed issues specified in
its Order dated January 4, 1983, such disposition to be made on the basis of the
evidence on record.

The said undisposed issues were (a) the validity of the subject deed of sale, (b) the nature of
the subject property, whether it be conjugal or paraphernal, and (c) the liability for damages.

"This ruling was not appealed to the Supreme Court. Upon remand, the court a quo required
the parties to submit their respective memoranda concerning the three unresolved issues,
and on September 20, 1994 rendered the herein assailed judgment in favor of [petitioners]
declaring the nullity of the deed of sale and the TCT No. 90689 due to forgery but finding
[respondents] builders in good faith so no damages was awarded. x x x.

WHEREFORE, PREMISED ON THE FOREGOING CONSIDERATIONS, Judgment

is hereby rendered in the following manner:
 1. Declaring the nullity of the Deed of Sale dated July 7, 1936 and supposedly
executed by Spouses Nicanor Teodoro and Francisca Ciriaco over the lot in question
in favor of the defendant Church;

2. Declaring the nullity of TCT No. 90689 in the name of [respondent] Church;

3. Declaring [petitioners] to be the rightful owners of the lot in question as the legal
heirs of Francisca Ciriaco who is hereby declared to be the previous owner of said
Lot as her paraphernal property;

4. Declaring [respondents] to be a builder in good faith whose rights and obligations

over the Church and improvements it had constructed on the lot in question should
be governed by the provisions of Art. 448 of the Civil Code.

5. No pronouncements as to damages and costs."

xxx xxx x x x4 (Citations omitted)

Ruling of the Court of Appeals

The CA reversed the RTC, which had "placed unquestioning faith and reliance on the findings of the
National Bureau of Investigation (NBI) and the Philippine Constabulary (PC) Crime Laboratory
Service."5 The appellate court held that the trial court had misconstrued the formers Decision in CA-
GR CV No. 21704. The CA denied having ever made a finding that the alleged forgery in the
questioned Deed of Sale had never been rebutted by respondents when they failed to raise the
matter in their Brief or Memorandum. Rather, the appellate court supposedly confined itself to
determining whether petitioners Complaint was barred by prescription and laches. "The case would
not have been remanded to the court a quo if there ha[d] been a finding that [respondents] had
indeed admitted the fact of forgery." 6

The appellate court doubted the findings of the NBI and the PC handwriting experts, because "the
documents from which the sample signatures were taken were either mere photocopies, or dated
years away from the questioned Deed of Sale of 1936." 7 The police findings were not conclusive
upon the courts, which could totally disregard them and make their own separate finding for
themselves. After examining and analyzing the subject signatures, the CA concluded: "We x x x
found no substantial indicia or reason to suspect their authenticity. Contrary to the findings of the NBI
and the PC, x x x we find resemblances but no stark and distinguishing difference. The slight
dissimilarities do not indicate forgery for these are natural, expected and inevitable variations in
genuine signatures made by one and the same person. x x x." 8

The CA relied on the validity of the Deed of Sale, because it was notarized. Moreover, Francisca
Ciriaco, during her lifetime, never protested the building of the church in 1936. Her nonchalant
attitude towards the "intrusion" on the subject property was likewise displayed by her husband and
her sister who was the administrator/caretaker of her properties.

Hence, this recourse.9

The Issues

In their Memorandum,10 petitioners raise the following issues:

 "Whether in reversing the new Decision of the RTC dated September 20, 1994 and in
rendering the questioned Decision dated January 29, 1999 and the questioned Resolution
dated September 7, 1999, the Court of Appeals departed from the usual and accepted
course of judicial proceedings and disregarded precedents and rulings of the Supreme
Court, particularly - -

"I. Whether the Court of Appeals defied the rule that findings of the trial court are conclusive
on the appellate court when the Court of Appeals overturned the trial courts finding of
forgery despite the fact that the trial court was in a better position to resolve the issue of
forgery and despite the fact that the evidence showing forgery is unrebutted, overwhelming
and preponderant.

"II. Whether the Court of Appeals disregarded the rule of preponderance of evidence
applicable in civil cases."11

This Courts Ruling

The Petition is not meritorious.

First Issue:
No Finding of Forgery

Petitioners claim that the CA erred when it disregarded the factual findings of the RTC which had
given weight, credibility and reliability to the handwriting experts from both the NBI and the PC.
These experts had declared the signatures of Francisca Ciriaco and Nicanor Teodoro in the 1936
Deed of Sale as forgeries.

We clarify. As a rule, this Court accords great weight and respect, sometimes even finality, to
findings of fact of trial courts, especially when affirmed by the CA. However, where the factual
findings of the courts a quo are contrary to each other, this Court may intervene to resolve the
conflict.12

The reliance of appellate tribunals on the factual findings of the trial court is based on the postulate
that the latter had firsthand opportunity to hear the witnesses and to observe their conduct and
demeanor during the proceedings. However, when such findings are not anchored on their credibility
and their testimonies, but on the assessment of documents that are available to appellate
magistrates and subject to their scrutiny, reliance on trial courts finds no application. In the present
case, the CA had the same opportunity as the RTC in examining and analyzing the questioned
signatures.

In any event, since the CA reversed the RTC primarily because of their conflicting findings of fact, we
now opt to pass upon the factual antecedents.13 After a review of the records and the pleadings of
the parties, we hold that the CA did not err in overturning the RTC.

It is also hornbook doctrine that the opinions of handwriting experts, even those from the NBI and
the PC, are not binding upon courts. This principle holds true especially when the question involved
is mere handwriting similarity or dissimilarity, which can be determined by a visual comparison of
specimens of the questioned signatures with those of the currently existing ones. 14

Handwriting experts are usually helpful in the examination of forged documents because of the
technical procedure involved in analyzing them. But resort to these experts is not mandatory or
indispensable to the examination or the comparison of handwriting. 15 A finding of forgery does not
depend entirely on the testimonies of handwriting experts, because the judge must conduct an
independent examination of the questioned signature in order to arrive at a reasonable conclusion
as to its authenticity. In an earlier case, this Court explained as follows:

"x x x. A finding of forgery does not depend entirely on the testimony of handwriting experts.
Although such testimony may be useful, the judge still exercises independent judgment on
the issue of authenticity of the signatures under scrutiny. The judge cannot rely on the mere
testimony of the handwriting expert. In the case of Gamido vs. Court of Appeals (citing the
case of Alcon vs. Intermediate Appellate Court, 162 SCRA 833), the Court held that the
authenticity of signatures

x x x is not a highly technical issue in the same sense that questions

concerning, e.g., quantum physics or topology or molecular biology, would constitute
matters of a highly technical nature. The opinion of a handwriting expert on the
genuineness of a questioned signature is certainly much less compelling upon a
judge than an opinion rendered by a specialist on a highly technical issue.

"A judge must therefore conduct an independent examination of the signature itself in order
to arrive at a reasonable conclusion as to its authenticity x x x." 16

Moreover, Section 22 of Rule 132 of the Rules of Court explicitly authorizes the court, by itself, to
make a comparison of the disputed handwriting "with writings admitted or treated as genuine by the
party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge."

In Lorenzo v. Diaz, 17 the factors involved in examining handwritings were identified and explained in
these words:

"x x x [T]he authenticity of a questioned signature cannot be determined solely upon its
general characteristics, similarities or dissimilarities with the genuine signature.
Dissimilarities as regards spontaneity, rhythm, pressure of the pen, loops in the strokes,
signs of stops, shades, etc., that may be found between the questioned signature and the
genuine one are not decisive on the question of the formers authenticity. The result of
examinations of questioned handwriting, even with the benefit of aid of experts and scientific
instruments, is, at best, inconclusive. There are other factors that must be taken into
consideration. The position of the writer, the condition of the surface on which the paper
where the questioned signature is written is placed, his state of mind, feelings and nerves,
and the kind of pen and/or paper used, play an important role on the general appearance of
the signature. Unless, therefore, there is, in a given case, absolute absence, or manifest
dearth, of direct or circumstantial competent evidence on the character of a questioned
handwriting, much weight should not be given to characteristic similarities, or dissimilarities,
between that questioned handwriting and an authentic one."

Forgery cannot be presumed. It must be proved by clear, positive and convincing evidence. The
burden of proof lies in the party alleging forgery. Did petitioners succeed in proving that the
signatures of Francisca Ciriaco and Nicanor Teodoro had been forged?

After comparing the questioned signatures, the CA concluded that they were not forged. We affirm
its finding. Indeed, the best evidence of a forged signature in an instrument is the instrument itself
showing the alleged forgeries. The fact of forgery can be established by comparing the allegedly
false signature with the authentic or genuine one.
This was exactly what the appellate court did. After comparing the allegedly forged signature of
Francisca on the 1936 Deed of Sale with her authentic or genuine specimen, the CA made its
independent conclusion that there was nothing irregular in the signature on the questioned
document. This right -- nay, duty -- of the RTC judge was exercised by the justices of the appellate
court when they overturned the formers findings. In the words of the CA:

"The findings of the handwriting experts from the NBI and PC are of doubtful correctness
because the documents from which the sample signatures were taken were either mere
photocopies, or dated years away form the questioned deed of sale of 1936. In its
Questioned Document Report No. 241-780 (Exh. E), the NBI concluded that the
questioned signatures and sample ones of Francisca were NOT WRITTENby one and the
same person, but made no conclusion as to the signature of Nicanor due to the need for
additional sample signatures as the sample signatures submitted are in different style, which
cannot be used as basis for a scientific analysis. The questioned signatures on the deed of
sale were compared by NBI with the sample/standard signatures on three documents, to wit:
1) Exhibit F (Kasulatan ng Bileng Mabibileng Muli dated April 15, 1932), 2) Exhibit G
(Kasulatan ng Bileng Mabibileng Muli dated April 23, 1933), and 3) Exhibit H (Marriage
Contract dated January 12, 1930). On the other hand, the PC Crime Laboratory in its
Questioned Document Report No. 196-84 (Exh. S) found that the sample and questioned
signatures of both spouses were written by two different persons. In its examination it used
the standard signatures of Francisca on three documents, namely: Exhibits F, G, and R-2
(Contract of Surety dated March 16, 1933), while the sample signatures of Nicanor came
from eight (8) documents, to wit: Exhibits F, G, R-2, T (consisting of two pages from a
book entitled Yearbook of Agriculture, 1936), U (consisting of two pages from a book
entitled An Enumeration of Philippine Fungi, printed in 1937), V (Secondary Report Card
for the school year 1946-1947), W (An Order Blank of E.R. Moore Company dated February
11, 1949). In sum there were actually nine (9) documents (Exhs. F, G, H, R-2, T, U, V.
W, and X) from which the standard signatures of both spouses came from. Three of these
(Exhs. R-2, T and U) however were but machine copies, and neither the originals nor the
certified true copies were offered as evidence. As such no probative value should be
accorded to them and they should be disregarded in the appreciation of signatures. While
the remaining six (6) documents cannot be a good basis for accurate examination and
comparison of signatures because these standard signatures were not close in point of time
to the questioned signatures. Some of these documents were executed in 1930, 1932 and
1933 and the others in 1946 and 1949, apparently several years apart from the 1936 subject
deed of sale. The passage of time and a persons increase in age may have decisive
influences in ones (his) writing characteristics. Thus, authorities are of the opinion that in
order to bring about an accurate comparison and analysis, the standards of comparison
must be as close as possible in point of time to the suspected signature. (Causapin vs CA
233 SCRA 615)

"The findings of the handwriting experts are not conclusive upon the court. On the contrary,
courts can totally disregard them and make their own separate independent finding for
themselves on the matter. As this Court has once observed, the authenticity of signatures is
not a highly technical issue in the same sense that questions concerning, e.g., quantum
physics or topology or molecular biology, would constitute matters of a highly technical
nature. The opinion of a handwriting expert is certainly much less compelling upon a judge
than an opinion rendered by a specialist of a highly technical issue. The signatures on a
questioned document can be sighted by a judge who can and should exercise independent
judgment on the issue of authenticity of such signatures (Gamido vs. CA 251 SCRA 101).
And this exactly what we have done here. We have examined and analyzed the subject
signatures, and have found no substantial indicia or reason to suspect their authenticity.
Contrary to the findings of the NBI and PC, upon comparison of the questioned signature of
 Francisca with her sample signatures on Exh. "F, G and H we find resemblances but no
stark and distinguishing difference. The slight dissimilarities do not indicate forgery for these
are natural, expected and inevitable variations in genuine signatures made by one and the
same person. Even the sample signatures of Nicanor submitted by the appellees show clear
variations in structure, flourish, and style. Those found in Exhibits F, G, H, V and W are
markedly different from that in Exhibit X. It must be pointed out that the crux of the matter
here is forgery and any positive assertion of it can not just be accepted blandly. Forgery
cannot be presumed; it must be proved by clear and convincing evidence. Those who make
the allegation of forgery have the burden of proving it since a mere allegation is not
evidence (Tenio-Obsequio vs. CA 230 SCRA 550). The evidence of the appellees failed to
prove the forgery they claim."18

Second Issue:
Disregard of Evidence

Petitioners contend that the CA disregarded the doctrine in civil cases regarding preponderance of
evidence, which allegedly weighed heavily in their favor. Supposedly, such inference can be drawn
from the testimonies of their father and of the handwriting experts from both the NBI and the PC as
well as from reports of their respective laboratories -- all of which far outweigh the testimonies of
Respondent Carungin and his wife.

We are not persuaded. First, the 1936 Deed of Sale -- a notarized document -- carries the
evidentiary weight conferred upon duly executed instruments provided by law.19 As discussed earlier,
petitioners did not succeed in assailing the authenticity of the signatures of their parents on the
notarized Deed.

Second, the CA, which had the same opportunity as the RTC to decipher the signatures, found no
reason to doubt their authenticity.

Third, it is the quality, not the number, of witnesses that will tilt the scale of evidence. Although the
number of witnesses may be considered a factor in the appreciation of evidence, preponderance
does not necessarily lie in the greatest number.20

Fourth, after reviewing the evidence on record, we hold that it sufficiently supports the CA Decision.

Finally, the fact that petitioners waited until 1982 to file their Complaint assailing the validity of the
1936 Deed of Sale detracts from their credibility. To repeat, petitioners mother, father or aunt (who
was the administrator/caretaker of their mothers properties) had not done anything to protest the
building of the church on the subject property.

WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED. Costs against
petitioners.

SO ORDERED.

Sandoval-Gutierrez, and Carpio, JJ., concur.

Puno, J., (Chairman), abroad, on official leave.
Footnotes

1
First Division. Penned by Justice Roberto A. Barrios with the concurrence of Justices Jorge
S. Imperial (Division chairman) and Godardo A. Jacinto (member).

2
Assailed Decision, p. 9; rollo, p. 86.

3
Rollo, pp. 87-88.

4
CA Decision, pp. 1-5; rollo, pp. 78-82.

5
Ibid., pp. 5 & 82.

6
Id., pp. 6 & 83.

7
Id.

8
Id., pp. 8 & 85.

9
The case was deemed submitted for decision on September 29, 2000, upon the Court's
receipt of both the Memorandum for Respondents, which was signed by Atty. Emilio C.
Capulong Jr.; and that for the Petitioners, which was signed by Atty. Austreverto A. Navales.

10
Rollo, pp. 118-145.

11
Pages 7-8; rollo, pp. 124-125. Original in upper case.

12
Fontanilla v. People, 258 SCRA 460, July 5, 1996.

13
Republic v. Court of Appeals, 258 SCRA 223, July 5, 1996; People v. Tadeje, 310 SCRA
426, July 19, 1999.

Punzalan v. COMELEC, 289 SCRA 702, April 27, 1998, citing People v. Agamata [CA], 64
14

OG 2735, which was cited in Regalado, Remedial Law, Vol. 2, 1989 ed., p. 506.

15
Heirs of Severa P. Gregorio v. Court of Appeals, 300 SCRA 565, December 29, 1998.

16
Ibid., p. 575, per Purisima, J.

17
53 OG, 4107, 4110-4111, July 15, 1957, per Natividad, J. Cited in Punzalan v.
Comelec, supra, per Kapunan, J.; and in Francisco, Evidence, Vol. VII, Part I, 1997 ed., p.
674.

18
CA Decision, pp. 6-8; rollo, pp. 83-85.

19
30, Rule 132 of the Rules of Court, reads: "SEC. 30. Proof of notarial documents. - Every
instrument duly acknowledged or proved and certified as provided by law, may be presented
in evidence without further proof, the certificate of acknowledgment being prima
facie evidence of the execution of the instrument or document involved."
 20
People v. Cabote, GR No. 136143, November 15, 2001; People v. Barellano, 319 SCRA
567, December 2, 1999; People v. Mallari, 310 SCRA 621, July 20, 1999; People v.
Hillado, 307 SCRA 535, May 24, 1999;People v. Tulop, 289 SCRA 316, April 21, 1998.

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