1 | P a g e

Homework Help

https://www.homeworkping.com/

Research Paper help

https://www.homeworkping.com/

Online Tutoring

https://www.homeworkping.com/SPS. EDGARDO AND NATIVIDAD FIDEL,

                                      Petitioners,   

- versus - 

  HONORABLE COURT OF APPEALS, HEIRS OF THE LATE PRIMITIVO ESPINELI, namely, JOSEFINA, PATRICIO and LEONARDO, all surnamed ESPINELI,                                       Respondents.

     G.R. No. 168263          Present:        QUISUMBING        YNARES-SANTIAGO,        CARPIO MORALES        TINGA,and       VELASCO, JR.,        Promulgated: 

    July 21, 2008 

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

DECISIONQUISUMBING, J.:

This petition for review seeks to reverse the Decision[1] dated November 22, 2004 and the Resolution[2] dated May 27, 2005of the Court of Appeals in CA-G.R. CV No. 71996.  The appellate court had affirmed with modification the Decision[3] datedFebruary 20, 2001 of the Regional Trial Court (RTC), Branch 15, Naic, Cavite in Civil Case No. NC-652-95, annulling the sale in favor of the petitioners Edgardo and Natividad

Fidel of a 150-square meter parcel of unregistered land located at San Miguel Street, Indang, Cavite and owned by the late Vicente Espineli.

The facts, culled from the records, are as follows:On February 21, 1995, respondents filed a Complaint[4] for

Annulment of Sale, Tax Declaration, Reconveyance with Damages against the petitioners Edgardo and Natividad Fidel and Guadalupe Espineli-Cruz before the RTC, Branch 15, Naic,Cavite.  In their complaint, respondents alleged that they are compulsory heirs of Primitivo Espineli, the only child of Vicente and his first wife, Juliana Asas.  Respondents further alleged that they discovered that the abovementioned parcel of land owned by the late Vicente was sold on October 7, 1994 to the petitioners despite the fact that Vicente died intestate on June 4, 1941. They argue that the sale is void and simulated because Vicente’s signature appearing on the deed of sale is a forgery.

In her Answer,[5] Guadalupe, the only surviving child of Vicente and his second wife, Pacencia Romea, denied any knowledge of the deed of sale allegedly signed by Vicente.  She, however, admitted selling the property but by virtue of another deed of sale signed by her as heir of Vicente and in representation of her nephews and nieces who are children of her deceased siblings, all children of Vicente and Pacencia.  She further denied knowledge of Vicente’s alleged first marriage with Juliana Asas.  She argues that the heirs of Primitivo must first establish their filiation from Vicente, prior to instituting the complaint for annulment of sale. Guadalupe further stresses that the petitioners Fidel have been able to register the sale of the property and to obtain Tax Declaration No. 16304[6] in their name.

On February 20, 2001, the RTC ruled in respondents’ favor. The dispositive portion of the decision reads:

WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the defendants as follows:

1.      Ordering the annulment of the sale in favor of the defendants spouses Edgardo and Natividad Fidel of the property in litigation;

2.      Ordering the Regis[ter] of Deeds and/or the Provincial Assessor of Cavite to cancel the registration and/or Tax Declaration No. 16304, Series of 1995;

3.      Ordering the defendants spouses Edgardo and Natividad Fidel to cause the reconveyance of the property to Vicente Espineli and/or his heirs for disposition subject to the laws of intestacy;

4.      Ordering the defendants jointly and severally, to pay the plaintiffs the amount of P50,000.00 as moral damages and P30,000.00 as exemplary damages;

5.      Ordering the defendants jointly and severally, to reimburse the plaintiffs their

2 | P a g e

expenses for litigation in the amount of P50,000.00 as attorney’s fees;

6.      And to pay costs of suit.            SO ORDERED.[7]

On November 22, 2004, the Court of Appeals affirmed with modification the RTC Decision as follows:

Accordingly, the subject property should be reconveyed to the Estate of the late Vicente Espineli but the proper proceedings should be instituted to determine the latter’s heirs, and if appropriate, to partition the subject property.

WHEREFORE, premises considered, the assailed DECISION is hereby AFFIRMED subject to the foregoing MODIFICATION.  No costs.

SO ORDERED.[8]

Thus, the instant petition by the spouses Edgardo and Natividad Fidel, alleging that the appellate court:

I.… ERRED IN UPHOLDING THE DECISION OF THE TRIAL COURT, CONSIDERING THAT PRIVATE RESPONDENTS HAVE NO LEGAL PERSONALITY TO INSTITUTE THE ACTION.  PRIVATE RESPONDENTS MUST FIRST ESTABLISH THE SAME IN PROPER ACTION TO PROVE THEIR FILIATION.  LACK OF SUCH DETERMINATION ON THE ISSUE OF FILIATION ON SEPARATE AND INDEPENDENT ACTION, PRIVATE RESPONDENTS HAVE NO LEGAL PERSONALITY TO INSTITUTE THE ACTION FOR ANNULMENT OF SALE, CONVEYANCE AND DAMAGES.

 II.

… LIKEWISE COMMITTED ERROR IN RECOGNIZING AND/OR ADMITTING THE BAPTISMAL CERTIFICATE OF PRIMITIVO ESPINELI AS PROOF OF FILIATION THAT [VICENTE ESPINELI IS HIS FATHER].

III.… ERRED IN AWARDING DAMAGES AND ATTORNEY’S FEES, CONSIDERING THAT PRIVATE RESPONDENTS MUST FIRST INSTITUTE A SEPARATE ACTION TO PROVE THEIR FILIATION.[9]

Respondents for their part raise the following issues:I.

WHETHER OR NOT PRIVATE RESPONDENTS ARE SUFFICIENTLY CLOTHED WITH LEGAL PERSONALITY TO FILE THE PRESENT ACTION FOR ANNULMENT OF SALE, RECONVEYANCE WITH DAMAGES WITHOUT PREJUDICE TO INSTITUTING A SEPARATE ACTION TO ESTABLISH FILIATION AND HEIRSHIP IN A SEPARATE [PROCEEDING].

II.ASSUMING PETITIONERS HAVE PERSONALITY TO RAISE THE ISSUE OF FILIATION, WHETHER OR NOT THE

BAPTISMAL CERTIFICATE OF PRIMITIVO ESPINELI IS VALID AND COMPETENT EVIDENCE OF HIS FILIATION AS CHILD OF VICENTE ESPINELI.

III.WHETHER OR NOT THE SALE OF SUBJECT PROPERTY BY GUADALUPE TO PETITIONERS FIDEL IS VALID UNDER THE PRINCIPLE OF BUYER IN GOOD FAITH.

IV.WHETHER OR NOT THE AWARD OF DAMAGES AND ATTORNEY’S FEES TO PRIVATE RESPONDENTS HAS NO BASIS SINCE A [SEPARATE] ACTION TO PROVE THEIR FILIATION SHOULD FIRST BE FILED.[10]

Briefly stated, the issues for our resolution are:  (1) Do respondents have the legal personality to file the complaint for annulment of title? (2)  Is the baptismal certificate of Primitivo valid and competent evidence to prove his filiation by Vicente? (3) Are petitioners buyers in good faith? and (4) Is the award of attorney’s fees and damages to respondents proper?

At the outset, we entertain no doubt that the first deed of sale, allegedly signed by Vicente, is void because his signature therein is a patent forgery.  Records show he died in 1941, but the deed of sale was allegedly signed on October 7, 1994.  Article 1409 of the Civil Code of the Philippines states:

Art. 1409.  The following contracts are inexistent and void from the beginning:

(1)     Those whose cause, object or purpose is contrary to law, morals,  good customs, public order, or public policy;

(2)     Those which are absolutely simulated or fictitious;

(3)     Those whose cause or object did not exist at the time of the transaction;

(4)     Those whose object is outside the commerce of men;

(5)     Those which contemplate an impossible service;

(6)     Those where the intention of the parties relative to the principal object of the contract cannot be ascertained;

(7)     Those expressly prohibited or declared void by law.

These contracts cannot be ratified.  Neither can the right to set up the defense of illegality be waived.  (Emphasis supplied.)As for the deed of sale signed by Guadalupe as heir of Vicente and

in representation of her nephews and nieces, petitioners insist that the sale is valid because respondents have no legal personality to file the complaint, the latter not having established their filiation by Vicente.  They argue that respondents first need to establish their filiation by Vicente prior to instituting a complaint in a separate action, and not in the present

3 | P a g e

action.  On the other hand, respondents contend that their filiation was established by the baptismal certificate of their father, Primitivo, showing that Primitivo is the son of Vicente.

On this point we rule in favor of respondents.While respondents’ principal action was for the annulment of the

sale and not an action to impugn one’s legitimacy and that one’s legitimacy can be questioned only in a direct action seasonably filed by the proper party, it is necessary to pass upon the relationship of respondents to the deceased Vicente for the purpose of determining what legal rights respondents have in the property.  In fact, the issue of whether or not respondents are heirs of Vicente was squarely raised by petitioners in their Pre-Trial Brief[11] filed on April 26, 1995, before the trial court, hence they are now estopped from assailing the trial court’s ruling on respondents’ status.  In the similar case of Fernandez v. Fernandez,[12] the Supreme Court held:

It must be noted that the respondents’ principal action was for the declaration of absolute nullity of two documents, namely:  deed of extra-judicial partition and deed of absolute sale, and not an action to impugn one’s legitimacy.  The respondent court ruled on the filiation of petitioner Rodolfo Fernandez in order to determine Rodolfo’s right to the deed of extra-judicial partition as the alleged legitimate heir of the spouses Fernandez.  While we are aware that one’s legitimacy can be questioned only in a direct action seasonably filed by the proper party, this doctrine has no application in the instant case considering that respondents’ claim was that petitioner Rodolfo was not born to the deceased spouses Jose and Generosa Fernandez; we do not have a situation wherein they (respondents) deny that Rodolfo was a child of their uncle’s wife. . . .

x x x xThus, it is necessary to pass upon the

relationship of petitioner Rodolfo Fernandez to the deceased spouses Fernandez for the purpose of determining what legal right Rodolfo has in the property subject of the extra-judicial partition.  In fact, the issue of whether or not Rodolfo Fernandez was the son of the deceased spouses Jose Fernandez and Generosa de Venecia was squarely raised by petitioners in their pre-trial brief filed before the trial court, hence they are now estopped from assailing the trial court’s ruling on Rodolfo’s status.[13]  (Emphasis supplied.)Petitioners nonetheless contend that Primitivo’s baptismal

certificate is neither a public document nor a conclusive proof of the legitimate filiation by Vicente of Primitivo, the respondents’ father.  We find petitioners’ contention lacking in merit, hence we reject it.

Records show that Primitivo was born in 1895.  At that time, the only records of birth are those which appear in parochial records.  This

Court has held that as to the nature and character of the entries contained in the parochial books and the certificates thereof issued by a parish priest, the same have not lost their character of being public documents for the purpose of proving acts referred to therein, inasmuch as from the time of the change of sovereignty in the Philippines to the present day, no law has been enacted abolishing the official and public character of parochial books and entries made therein.  Parish priests continue to be the legal custodians of the parochial books kept during the former sovereignty, and as such they may issue certified copies of the entries contained therein in the same manner as do keepers of archives.[14]

The baptismal certificate of Primitivo is, therefore, a valid and competent evidence to prove his filiation by Vicente.

Accordingly, we uphold the Court of Appeals ruling that the subject property should be reconveyed to the Estate of the late Vicente Espineli and proper proceedings be instituted to determine the latter’s heirs, and, if appropriate, to partition the subject property.

Anent the third issue, can petitioners be considered buyers in good faith?  Our ruling on this point is: no, they cannot be considered buyers in good faith. For we find that petitioners were only able to register the sale of the property and Tax Declaration No. 16304 in their name; they did not have a Torrens title.  Unlike a title registered under the Torrens System, a tax declaration does not constitute constructive notice to the whole world.  The issue of good faith or bad faith of a buyer is relevant only where the subject of the sale is a registered land but not where the property is an unregistered land.[15]

However, on the issue of actual and moral damages and attorney’s fees awarded by the trial court to respondents, we find the award bereft of factual basis.  A party is entitled to an adequate compensation for such pecuniary loss or losses actually suffered by him which he has duly proven.  Such damages, to be recoverable, must not only be capable of proof, but must actually be proved with a reasonable degree of certainty.  Courts cannot simply rely on speculation, conjecture or guesswork in determining the fact and amount of damages.  Attorney’s fees should therefore be deleted for lack of factual basis and legal justification.[16]  Moral damages should likewise not be awarded since respondents did not show proof of moral suffering, mental anguish, serious anxiety, besmirched reputation, nor wounded feelings and social humiliation.[17]

WHEREFORE, the petition is DENIED.  The assailed Decision dated November 22, 2004 and the Resolution dated May 27, 2005 of the Court of Appeals in CA-G.R. CV No. 71996 are AFFIRMED with the MODIFICATION that the award of moral and exemplary damages as well as attorney’s fees be DELETED.  No pronouncement as to costs.

SO ORDERED.______________________ERNESTO L. SALAS,                      G.R. No. 157766                                Petitioner,                                                                     Present:                                                                                                               PUNO, C.J., Chairperson,

4 | P a g e

                                                        SANDOVAL-GUTIERREZ,*

- v e r s u s -                            CORONA,                                                        AZCUNA and                                                        GARCIA, JJ. STA. MESA MARKETCORPORATION and the HEIRSOF PRIMITIVO E. DOMINGO,**

                                Respondents. Promulgated:                                                                                                               July 12, 2007 x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x D E C I S I O N  CORONA, J.:          This petition for review on certiorari[1] seeks to set aside the April 30, 2001 decision of the Court Appeals (CA) in CA-G.R. CV No. 50888[2] and its April 3, 2003 resolution denying reconsideration. In a letter-agreement[3] dated October 15, 1984, Primitivo E. Domingo handed the management of his estate, including the respondent corporation Sta. Mesa Market Corporation (SMMC), to petitioner Ernesto L. Salas.[4] As estate manager, petitioner was primarily tasked to ensure SMMC's continued viability and profitability by redeveloping the Sta. Mesa market and restructuring the corporation's finances.[5] Domingo, on the other hand, bound himself to transfer (on or before June 30, 1985)[6] 30% of SMMC's subscribed and paid-up capital stock to petitioner as part of his compensation.  But, if petitioner failed to achieve a monthly market revenue of at least P350,000, he would be obliged to return the shares of stock of SMMC to Domingo.[7]

         On December 28, 1984, Domingo, as chairman of SMMC, and petitioner, in his personal capacity and as chairman of Inter-Alia Management Corporation (Inter-Alia), formalized their agreement under a property and financial management contract (management contract).[8]            Shortly after the execution of the contract, SMMC, under petitioner's management, leased the Sta. Mesa market to Malaca Realty Corporation (Malaca).[9] But it became apparent soon thereafter that Malaca was financially incapable of improving and expanding the existing facilities of the Sta. Mesa market.[10] In fact, it was unable to pay the monthly rent.[11] Thus, SMMC terminated its lease contract with Malaca.[12] As a result, its board of directors became dissatisfied with petitioner's management of the

corporation. Thereafter, it ended its management contract with petitioner (and Inter-Alia).[13]

          On June 8, 1987, petitioner filed an action for specific performance and damages[14] against SMMC and Domingo[15]  in the Regional Trial Court (RTC) of Quezon City.[16]  He alleged that SMMC's monthly market revenue had surpassed P350,000 yet Domingo refused to comply with his obligation to deliver 30% of the subscribed and paid-up capital stock of SMMC to him.[17]

         In his answer,[18] Domingo argued that petitioner was not entitled to the shares of SMMC. On the contrary, the corporation suffered additional losses and incurred new liabilities (which respondents consistently itemized in their pleadings) amounting to P1,935,995.06 over the twenty-one (21) months petitioner was managing it.[19]

         On August 21, 1995, the RTC rendered a decision in favor of petitioner.[20] The trial court considered copies of SMMC's audited financial statements which showed an improvement in the corporation's monthly average gross income (from P251,790 in 1984 to P409,794 in 1985). It found that petitioner not only increased SMMC's monthly gross income but also exceeded the target monthly gross income of P350,000.[21] Hence, it ordered respondent heirs to deliver the shares of SMMC (equivalent to 30% of its total subscribed and paid-up capital stocks) to petitioner.[22]

         Respondent heirs appealed the judgment of the RTC to the CA. On April 30, 2001, the appellate court rendered its decision. It found that the trial court erred in admitting petitioner's documentary evidence. According to the CA, petitioner failed to prove the authenticity of the audited financial statements.  He did not present a representative of SMMC's external auditor, Bejarin Jimenez & Co., to testify on the genuineness and due execution of the audited financial statements of SMMC. Instead, petitioner presented a memorandum prepared by a member of his management team attesting to the increase in the corporation's monthly market revenue. For this reason, the appellate court ruled that the audited financial statements were not only self-serving but also hearsay.[23] Thus, the CA reversed the RTC decision and dismissed petitioner's complaint.         Petitioner moved for reconsideration but his motion was denied.[24] Thus, this petition.         Petitioner avers that Amado Domingo, a vice-president of SMMC and an heir of the deceased Primitivo E. Domingo, testified that the audited financial statements presented in court were copies of those submitted by SMMC to the Bureau of Internal Revenue (BIR) and the Securities and Exchange Commission (SEC) for purposes of tax payments and compliance with reportorial requirements, respectively.[25] Therefore, Amado Domingo, in effect, admitted the genuineness and due execution of the documents which made authentication unnecessary.

5 | P a g e

          Respondents, on the other hand, insist that the audited financial statements were inadmissible in evidence due to lack of proper authentication.[26]

         We agree with the CA.  The documents in question were supposedly copies of the audited financial statements of SMMC. Financial statements (which include the balance sheet, income statement and statement of cash flow) show the fiscal condition of a particular entity within a specified period. The financial statements prepared by external auditors who are certified public accountants (like those presented by petitioner) are audited financial statements. Financial statements, whether audited or not, are, as general rule, private documents.[27]  However, once financial statements are filed with a government office pursuant to a provision of law,[28] they become public documents.[29]              Whether a document is public or private is relevant in determining its admissibility as evidence. Public documents are admissible in evidence even without further proof of their due execution and genuineness. [30] On the other hand, private documents are inadmissible in evidence unless they are properly authenticated.[31]  Section 20, Rule 132 of the Rules of Court provides: Section 20. Proof of private documents. Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either: a.      By anyone who saw the document executed or written; or b.      By evidence of the genuineness of the signature or handwriting of the maker.              Any other private document need only be identified as that which it is claimed to be.  Petitioner and respondents agree that the documents presented as evidence were mere copies of the audited financial statements submitted to the BIR and SEC. Neither party claimed that copies presented were certified true copies[32] of audited financial statements obtained or secured from the BIR or the SEC which under Section 19(c), Rule 132 would have been public documents. Thus, the statements presented were private documents. Consequently, authentication was a precondition to their admissibility in evidence.         During authentication in court, a witness positively testifies that a document presented as evidence is genuine and has been duly executed[33] or that the document is neither spurious nor counterfeit nor

executed by mistake or under duress.[34] In this case, petitioner merely presented a memorandum attesting to the increase in the corporation's monthly market revenue, prepared by a member of his management team.  While there is no fixed criterion as to what constitutes competent evidence to establish the authenticity of a private document, the best proof available must be presented.[35]  The best proof available, in this instance, would have been the testimony of a representative of SMMC's external auditor who prepared the audited financial statements. Inasmuch as there was none, the audited financial statements were never authenticated.         Nevertheless, petitioner insists on the application of an exception to this rule: authentication is not necessary where the adverse party has admitted the genuineness and due execution of a document.[36]The fact, however, was that nowhere in his testimony did Amado Domingo categorically admit the authenticity of the copies of the audited financial statements. He only testified that SMMC regularly submitted its audited financial statements to the BIR and SEC.[37] There was never any admission that the documents presented by petitioner were true or faithful copies of those submitted to the BIR and the SEC.[38]

         WHEREFORE, the petition is hereby DENIED. The April 30, 2001 decision and April 3, 2003 resolution of the Court of Appeals in CA-G.R. CV No. 50888 are hereby AFFIRMED.         Costs against the petitioner.           SO ORDERED. __________________OTHER CASES 19-40

PHILIP S. YU,                                   G.R. No. 154115                  Petitioner,                                                        Present:                                                            PUNO, J.,                                      Chairman,      -  versus  -                                    AUSTRIA-MARTINEZ,                                                           CALLEJO, SR.,                                                           TINGA,  and           CHICO-NAZARIO, JJ.HON. COURT OF APPEALS,                 Second Division, and VIVECALIM YU,                                            Promulgated:                   Respondents.                                                    November 29, 2005 x-------------------------------------------------------------------x  

6 | P a g e

D E C I S I O N TINGA, J.:          This treats of the petition for review on certiorari of the Court of Appeals’ Decision and Resolution in CA G.R. SP No. 66252 dated 30 April 2002[1] and 27 June 2002,[2] respectively,  which set aside theOrder of the Regional Trial Court (RTC) of Pasig City[3] dated  10 May 2001, declaring an  application for insurance and an insurance policy as inadmissible evidence.         The facts of the case are undisputed.  On 15 March 1994, Viveca Lim Yu (private respondent) brought against her husband, Philip Sy Yu (petitioner), an action for legal separation and dissolution of conjugal partnership on the grounds of marital infidelity and physical abuse. The case was filed before the RTC of Pasig and raffled to Branch 158, presided by Judge Jose R. Hernandez.         During trial, private respondent moved for the issuance of a subpoena duces tecum and ad testificandum[4] to certain officers of Insular Life Assurance Co. Ltd. to compel production of the insurance policy and application of a person suspected to be petitioner’s illegitimate child.[5]  The trial court denied the motion.[6] It ruled that the insurance contract is inadmissible evidence in view of Circular Letter No. 11-2000, issued by the Insurance Commission which presumably prevents insurance companies/agents from divulging confidential and privileged information pertaining to insurance policies.[7]  It added that the production of the application and insurance contract would violate Article 280[8] of the Civil Code and Section 5 of the Civil Registry Law,[9] both of which prohibit the unauthorized identification of the parents of an illegitimate child.[10]  Private respondent sought reconsideration of the Order, but the motion was denied by the trial court.[11]           Aggrieved, private respondent filed a petition for certiorari before the Court of Appeals, imputing grave abuse of discretion amounting to lack or excess of jurisdiction on the part of Judge Hernandez in issuing the 10 May 2001 Order.[12]  The Court of Appeals summarized the issues as follows: (i) whether or not an insurance policy and its corresponding application form can be admitted as evidence to prove a party’s extra-marital affairs in an action for legal separation; and (ii) whether or not a trial court has the discretion to deny a party’s motion to attach excluded evidence to the record under Section 40, Rule 132 of the Rules of Court.[13]

         According to the Court of Appeals, private  respondent  was merely seeking the production of the insurance application and contract, and was not yet offering the same as part of her evidence.  Thus, it declared that petitioner’s objection to the admission of the documents was premature, and the trial court’s pronouncement that the documents are inadmissible,  precipitate.[14]  The  contents of the insurance application and insurance documents cannot be considered as privileged information, the Court of

Appeals added, in view of the opinion of the Insurance Commissioner dated 4 April 2001 to the effect that Circular Letter No.11-2000 “was never intended to be a legal impediment in complying with lawful orders”.[15]  Lastly, the Court of Appeals ruled that a trial court does not have the discretion to deny a party’s privilege to tender excluded evidence, as this privilege allows said party to raise on appeal the exclusion of such evidence.[16]  Petitioner filed a motion for reconsideration but to no avail.        In the present petition, petitioner argues that the Court of Appeals blundered in delving into errors of judgment supposedly committed by the trial court as if the petition filed therein was an ordinary appeal and not a special civil action.  Further, he claims that  the Court of Appeals failed to show any specific instance of grave abuse of discretion on the part of the trial court in issuing the assailed Order.  Additionally, he posits that private respondent had already mooted her petition before the Court of Appeals when she filed her formal offer of rebuttal exhibits, with tender of excluded evidence before the trial court.[17]                For her part, private respondent  maintains that the details surrounding the insurance policy are crucial to the issue of petitioner’s infidelity and his financial capacity to provide support to her and their children. Further, she argues that she had no choice but to make a tender of excluded evidence considering that she was left to speculate on what the insurance application and policy ruled out by the trial court would contain.[18]

         A petition for certiorari under Rule 65 is the proper remedy to correct errors  of jurisdiction  and  grave abuse of discretion tantamount to lack or excess of jurisdiction committed by a lower court.[19]  Where a respondent does not have the legal power to determine the case and yet he does so, he acts without jurisdiction; where, “being clothed with  power to determine the case, oversteps his authority as determined by law, he is performing a function in excess of jurisdiction.”[20]           Petitioner claims that the Court of Appeals passed upon errors of judgment, not errors of jurisdiction, since it delved into the propriety of the denial of the subpoena duces tecum and subpoena ad testificandum.  The argument must fail. While trial courts have the discretion to admit or exclude evidence, such power is exercised only when the evidence has been formally offered.[21]  For a long time, the Court has recognized that during the early stages of the development of proof, it is impossible for a trial court judge to know with certainty whether evidence is relevant or not, and thus  the practice of excluding evidence on doubtful objections to its materiality should be avoided.[22] As  well elucidated in the case of Prats & Co. v. Phoenix Insurance Co.:[23]  Moreover, it must be remembered that in the heat of the battle over which he presides a judge of first instance may possibly fall into error in judging of the relevancy of proof where a fair and logical connection is in fact shown.

7 | P a g e

When such a mistake is made and the proof is erroneously ruled out, the Supreme Court, upon appeal, often finds itself embarrassed and possibly unable to correct the effects of the error without returning the case for a new trial, — a step which this court is always very loath to take. On the other hand, the admission of proof in a court of first instance, even if the question as to its form, materiality, or relevancy is doubtful, can never result in much harm to either litigant, because the trial judge is supposed to know the law; and it is its duty, upon final consideration of the case, to distinguish the relevant and material from the irrelevant and immaterial. If this course is followed and the cause is prosecuted to the Supreme Court upon appeal, this court then has all the material before it necessary to make a correct judgment.  In the instant case, the insurance application and the insurance policy were yet to be presented in court, much less formally offered before it.  In fact, private respondent was merely asking for the issuance of subpoena duces tecum and subpoena ad testificandum when the trial court issued the assailed Order.  Even assuming that the documents would eventually be declared inadmissible, the trial court was not then in a position to make a declaration to that effect at that point.  Thus, it barred the production of the subject documents prior to the assessment of its probable worth. As observed by petitioners, the  assailed Order was not a mere ruling on the admissibility of evidence; it was, more importantly, a ruling affecting the proper conduct of trial.[24]

 Excess of jurisdiction refers to any act which although falling within the general powers of the judge is not authorized and is consequently void with respect to the particular case because  the conditions under which  he was only authorized to  exercise his general power in that case did not exist and therefore, the judicial power was not legally exercised.[25]  Thus, in declaring that the documents are irrelevant and inadmissible even before they were formally offered, much less presented before it, the trial court  acted in excess of its discretion. Anent the issue of whether the information contained in the documents is privileged in nature, the same was clarified and settled by the Insurance Commissioner’s opinion that the circular on which the trial court based its ruling was not designed to obstruct lawful court orders.[26]  Hence, there is no more impediment to presenting the insurance application and policy.          Petitioner additionally claims that by virtue of private respondent’s tender of excluded evidence, she has rendered moot her petition before the Court of Appeals since the move evinced that she had another speedy and adequate remedy under the law. The Court holds otherwise.         Section 40, Rule 132 provides:         Sec.40. Tender of excluded evidence.—If documents or things offered in evidence are excluded by the court, the offeror may have the same

attached to or made part of the record.  If the evidence excluded is oral, the offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony.          It is thus apparent that before tender of excluded evidence is made, the evidence must have been formally offered before the court.   And before formal offer of evidence  is made, the evidence must have been identified and  presented before the court. While private respondent made a “Tender of Excluded Evidence,” such is not the tender contemplated by the above-quoted rule, for obviously, the insurance policy and application were not formally offered much less presented before the trial court.  At most, said “Tender of Excluded Evidence” was a

8 | P a g e

 manifestation of an undisputed fact that the subject documents were declared inadmissible by the trial court even before these were presented during trial.  It was not the kind of plain, speedy and adequate remedy which private respondent could have resorted to instead of the petition for certiorari she filed before the Court of Appeals. It did not in any way render the said petition moot.        WHEREFORE, premises considered, the petition is DENIED.  The Decision dated  30 April 2002  andResolution dated 27 June 2002 are  AFFIRMED. Costs against petitioner. SO ORDERED.______________G.R. No. 151944.  January 20, 2004]ENGR. ERNESTO T. MATUGAS, petitioner, vs. COMMISSION ON ELECTIONS and ROBERT LYNDON S. BARBERS, respondents.D E C I S I O NTINGA, J.:The Local Government Code of 1991[1] requires that an elective local official be a citizen of the Philippines.[2] Whether the incumbent Governor of Surigao del Norte is a citizen of the Philippines and, therefore, qualified to hold such office is the issue in this case.On February 28, 2001, private respondent Robert Lyndon S. Barbers filed his certificate of candidacy for the position of Governor of Surigao del Norte for the May 14, 2001 elections. On April 10, 2001, petitioner Ernesto T. Matugas, himself a candidate for the same post, filed with the Commission on Elections (COMELEC) a Petition to Disqualify private respondent as candidate. The Petition alleged, among other grounds, that private respondent is not a Filipino citizen.In support of this claim, petitioner offered in evidence a copy of a letter-request dated August 25, 2000 from a certain Jesus Agana, a “confidential agent” of the Bureau of Immigration, addressed to one George Clarke, purportedly of the United States Embassy.  Below the request was the reply of said George Clarke stating that the “subject” was naturalized as an American citizen on October 11, 1991 in Los Angeles, California.  The document[3] reads:Dear Mr. Clark [sic]:Per our phone conversation, may I request for [sic] a certification from your Embassy regarding the US citizenship of MR. ROBERT LYNDON S. BARBERS who was born on July 15, 1968.Kindly fax your reply, addressed to the undersigned at Tel. No. (02) 3384456.Thank you and regards.Very truly yours,(Sgd.)JESUS AGANAConfidential AgentJesus Agana:SUBJECT was naturalized on October 11, 1991 in Los Angeles, CA.

(Sgd.)G.R. Clarke, INS/ManilaPetitioner also presented a Certification[4] issued by the Bureau of Immigration and Deportation (BID) dated 1 September 2000 containing Barbers’ travel records and indicating in certain entries that private respondent is an American citizen.  The Certification states:CERTIFICATIONTHIS IS TO CERTIFY THAT the name BARBERS, ROBERT LYNDON S, American, appears in our available Computer Database/Passenger manifest/IBM listing on file as of September 1, 2000 10:27 am with the following travel records:Date of Departure  : 01/28/1997Destination               : OSA-OsakaFlight No.                  : NWo26-Northwest AirlinesPassport No.            : 034354245Nationality                 : FilipinoDate of Birth             : 07/15/1968Phil. Address            : 6 Hercules St. Bel Air II MakatiImmig. Status           : RPImmig. Officer           : not statedDate of Arrival        : 02/12/1998Origin                        : LON-LondonFlight No.                  : PR731-Phil. AirlinesPassport No.            : 034354245Nationality                 : AmericanDate of Birth             : AmericanPhil. Address            : 6 Hercules St. Bel Air II MakatiImmig. Status           : BB365Immig. Officer           : REGALADate of Arrival        : 07/31/1998Origin                        : BKK-BangkokFlight No.                  : TG620-Thai AirwaysPassport No.            : OF006673Nationality                 : AmericanDate of Birth             : 07/15/1968Phil. Address            : 16 Hercules St. Bel Air II MakatiImmig. Status           : BB365Immig. Officer           : SORFURTHER, THIS IS TO CERTIFY THAT the name BARBERS, ROBERT LYNDON SMITH, American, appears in our Computer Database/Passenger manifest/IBM listing on file with the following travel records:Date of Departure  : 07/27/1998Destination               : not availableFlight No.                  : TG621-Thai AirwaysPassport No.            : not availableNationality                 : FilipinoDate of Birth             : 07/15/1968Phil. Address            : not availableImmig. Status           : not availableImmig. Officer           : RACHO

9 | P a g e

This certification is issued upon request of Mr. Bebot Pomoy for whatever legal purpose it may serve.Verified by                 : Edilberto Orbase Computer SectionDate & Time             : September 1, 2000 10:27 am(Sgd.)ATTY. FELINO C. QUIRANTE, JR.Acting Chief, Admin. DivisionIn addition, petitioner submitted a Certification[5] issued by the Special Committee on Naturalization of the Office of the Solicitor General stating that, based on their records, there is no pending petition by private respondent for repatriation.  Neither has one been granted in his favor.In the meantime, private respondent garnered the highest number of votes in the gubernatorial race. On May 17, 2001, petitioner filed aMotion for Suspension/Annulment of Proclamation of private respondent.  The Motion, however, was overtaken by subsequent events when, on the following day, May 18, 2001, private respondent was proclaimed the duly elected governor of Surigao del Norte.On July 5, 2001, the Second Division of the COMELEC issued a Resolution dismissing for lack of merit the Petition to Disqualify.  The COMELEC found “little or no probative value” in the notation of George Clarke to Agana’s letter-request.[6] While noting that the BID certification involving the travel records of Robert Lyndon S. Barbers stated that he was an American, the COMELEC held that “there is no other independent evidence... to justify petitioner’s claim that respondent has renounced his allegiance to the Philippines at any time.”[7]

Petitioner filed a Motion for Reconsideration with the COMELEC En Banc, which on January 8, 2002 dismissed the Motion and affirmed the Resolution of the Second Division.Petitioner thus instituted these proceedings for certiorari, claiming that the COMELEC committed grave abuse of discretion in denying hisPetition to Disqualify.[8] He maintains that private respondent was not a Filipino citizenship at the time of his election.Basic in the law of evidence is that one who alleges a fact has the burden of proving it.[9] In administrative cases, the quantum of proof required is substantial evidence.[10] Petitioner did not overcome his burden.  The documentary evidence he submitted fails to establish that private respondent is not a Filipino citizen.The document containing the notation of George Clarke does not prove that private respondent is indeed a naturalized American citizen. For the purpose of their presentation in evidence, documents are either public or private.  Public documents include the written official acts or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country.[11] The record of such public documents may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record. If the record is not kept in the Philippines, the attested copy should be accompanied by a certificate that such officer has custody thereof.[12]

The grant of United States citizenship by naturalization is an official act of the United States.  The document containing the record of this act is,

therefore, a public document and, following the rule cited above, this document can only be evidenced by its official publication or a copy duly attested by the officer having legal custody thereof.The notation in the letter-inquiry of Jesus Agana is neither an official publication of the document that contains the record of private respondent’s naturalization, nor a copy attested by the officer who has legal custody of the record.  Petitioner did not show if Clarke, the notation’s alleged author, is the officer charged with the custody of such record.Furthermore, Section 7, Rule 130 of the Rules of Court states that when the original of a document is in the custody of a public officer or is recorded in a public office, as in this case, the contents of said document may be proved by a certified copy issued by the public officer in custody thereof.  The subject letter-inquiry, which contains the notation, appears to be a mere photocopy, not a certified copy.The other document relied upon by petitioner is the Certification dated 1 September 2000 issued by the BID.  Petitioner submits that private respondent has declared that he is an American citizen as shown by said Certification and, under Section 26, Rule 130 of the Rules of Court, such declaration may be given in evidence against him.The rule cited by petitioner does not apply in this case because the rule pertains to the admissibility of evidence. There is no issue here as to the admissibility of the BID Certification; the COMELEC did not hold that the same was inadmissible. In any case, the BID Certification suffers from the same defect as the notation from the supposed US Embassy official. Said Certification is also a photocopy, not a certified copy.Moreover, the certification contains inconsistent entries regarding the “nationality” of private respondent.  While some entries indicate that he is “American,” other entries state that he is “Filipino.”Petitioner also attached in his Memorandum before this Court another document,[13] obviously a photocopy, which reads in full:UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIAU.S. COURTHOUSE312 NORTH SPRING STREET, SUITE 329LOS ANGELES, CALIFORNIA, 90012August 1, 2001The official Naturalization the United States District Court of California shows the following:Name:                       Robert Lyndon BarbersDate of Birth:            July 15, 1968Petition No.:              890573Alien No.:                  A40 460 660Certificate No.:          14738741Date ofNaturalization:           October 11, 1991(Sgd.)Deputy Clerk Abel MartinezThe above document was attached to an “Authentication,”[14] also a photocopy, stating:CONSULATE GENERAL OF THE PHILIPPINES)

10 | P a g e

CITY OF LOS ANGELES                                     )S.S.STATE OF CALIFORNIA, U.S.A.AUTHENTICATIONTO ALL WHOM THESE PRESENTS SHALL COME, GREETINGS:I, CRISTINA G. ORTEGA, CONSUL at Los Angeles, California, duly commissioned and qualified, do hereby certify that ABEL MARTINEZ whose seal/signature appears on the annexed certificate was, at the time he signed the annexed certificate, A Deputy Clerk of the United States District Court, Central District of California and verily believe that his seal/signature affixed thereto is genuine.For the contents of the annexed document, this Consulate General assumes no responsibility.IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Consulate General of the Republic of the Philippines at Los Angeles, California, U.S.A., to affixed this day of 30 August 2001.(Sgd.)CRISTINA G. ORTEGAConsulof the Republic of the PhilippinesThe annexed document is an Informationof Naturalization Re:  Robert LyndonBarbers executed by United States DistrictCourt, Central District of CaliforniaSubsequently, petitioner filed a Manifestation with Motion for Leave to Admit Original Documents, appending thereto the originals[15] of the above documents.These new documents likewise cannot be admitted in evidence.  To repeat, Section 24, Rule 132 of the Rules of Court requires that if the public document or the public record is not kept in the Philippines, its official publication or its copy duly attested by the officer in charge of the custody of the same must be accompanied by a certificate that such officer has the custody.  Said certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept and authenticated by the seal of his office.  In this case, the Authentication executed by Cristina G. Ortega, the Philippine Consul in Los Angeles, California merely states that Abel Martinez is the Deputy Clerk of the United States District Court, Central District of California.  It does not state that said Deputy Clerk has the custody of the above record.There is another cogent reason that precludes the admission of these documents.  Petitioner calls upon this Court to consider alleged newevidence not presented before the COMELEC, a course of action clearly beyond the courts’ certiorari powers.  In Lovina and Montila v. Moreno and Yonzon,[16] the Court of First Instance (CFI) conducted a trial de novo even though the Secretary of Public Works and Communications, in the exercise of his administrative powers, had made his own independent findings of fact.  This Court reversed the decision of the CFI because:The findings of the Secretary can not be enervated by new evidence not laid before him, for that would be tantamount to holding a new

investigation, and to substitute for the discretion and judgment of the Secretary the discretion and judgment of the court, to whom the statute had not entrusted the case.  It is immaterial that the present action should be one for prohibition or injunction and not one for certiorari; in either event the case must be resolved upon the evidence submitted to the Secretary, since a judicial review of executive decisions does not import a trial de novo, but only an ascertainment of whether the executive findings are not in violation of the Constitution or of the laws, and are free from fraud or imposition, and whether they find reasonable support in the evidence….Similarly, petitioner in this case cannot “enervate” the COMELEC’s findings by introducing new evidence before this Court, which in any case is not a trier of facts, and then ask it to substitute its own judgment and discretion for that of the COMELEC.The rule in appellate procedure is that a factual question may not be raised for the first time on appeal,[17] and documents forming no part of the proofs before the appellate court will not be considered in disposing of the issues of an action.[18] This is true whether the decision elevated for review originated from a regular court[19] or an administrative agency or quasi-judicial body,[20] and whether it was rendered in a civil case,[21]a special proceeding,[22] or a criminal case.[23] Piecemeal presentation of evidence is simply not in accord with orderly justice.[24]

The same rules apply with greater force in certiorari proceedings.  Indeed, it would be absurd to hold public respondent guilty of grave abuse of discretion for not considering evidence not presented before it. The patent unfairness of petitioner’s plea, prejudicing as it would public and private respondents alike, militates against the admission and consideration of the subject documents.Finally, petitioner in his Memorandum[25] invokes the case of Yu v. Defensor-Santiago,[26] holding that a naturalized Filipino citizen effectively renounces his Filipino citizenship when he applies for and is issued a Portuguese passport, and declares his nationality as a Portuguese in commercial documents he signed.  That case, however, has no relevance here because the documents submitted in this case, assuming that they constitute substantial evidence that private respondent indeed renounced his Filipino citizenship, are inadmissible.  In other words, there is no evidence in this case of any renunciation.There is grave abuse of discretion amounting to lack of jurisdiction when the respondent board, tribunal or officer exercising judicial functions exercised its judgment in a capricious, whimsical, arbitrary or despotic manner, as when the assailed order has no basis both in fact and in law.[27] In this case, the Petition to Disqualify is not supported by substantial evidence.  Hence, the COMELEC did not commit grave abuse of discretion in issuing the assailed Resolutions dismissing the Petition.WHEREFORE, the Petition is DISMISSED.SO ORDERED._________________G.R. No. 162886             August 11, 2008HEIRS OF THE DECEASED SPOUSES VICENTE S. ARCILLA and JOSEFA ASUNCION ARCILLA, namely: Aida Arcilla Alandan, Rene A. Arcilla,

11 | P a g e

Oscar A. Arcilla, Sarah A. Arcilla, and Nora A. Arcilla, now deceased and substituted by her son Sharmy Arcilla, represented by their attorney-in-fact, SARAH A. ARCILLA, petitioners, vs.MA. LOURDES A. TEODORO, respondent.D E C I S I O NAUSTRIA-MARTINEZ, J.:Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the September 12, 2003 Decision1 of the Court of Appeals (CA) and its Resolution2 dated March 24, 2004 in CA-G.R. SP No. 72032.The facts of the case are as follows:On December 19, 1995, Ma. Lourdes A. Teodoro (respondent) initially filed with the Regional Trial Court (RTC) of Virac, Catanduanes an application for land registration of two parcels of land located at Barangay San Pedro, Virac, Catanduanes. The lots, with an aggregate area of 284 square meters, are denominated as Lot Nos. 525-A and 525-B, Csd.-05-010483-D of the Virac Cadastre. Respondent alleged that, with the exception of the commercial building constructed thereon, she purchased the subject lots from her father, Pacifico Arcilla (Pacifico), as shown by a Deed of Sale3 dated December 9, 1966, and that, prior thereto, Pacifico acquired the said lots by virtue of the partition of the estate of his father, Jose Arcilla evidenced by a document entitled Extrajudicial Settlement of Estate.4 Respondent also presented as evidence an Affidavit of Quit-Claim5 in favor of Pacifico, executed by herein petitioners as Heirs of Vicente Arcilla (Vicente), brother of Pacifico.On February 7, 1996, the case was transferred to the Municipal Trial Court (MTC) of Virac, Catanduanes in view of the expanded jurisdiction of said court as provided under Republic Act No. 7691.6

In their Opposition dated August 19, 1996, petitioners contended that they are the owners pro-indiviso of the subject lots including the building and other improvements constructed thereon by virtue of inheritance from their deceased parents, spouses Vicente and Josefa Arcilla; contrary to the claim of respondent, the lots in question were owned by their father, Vicente, having purchased the same from a certain Manuel Sarmiento sometime in 1917; Vicente's ownership is evidenced by several tax declarations attached to the record; petitioners and their predecessors-in-interest had been in possession of the subject lots since 1906. Petitioners moved to dismiss the application of respondent and sought their declaration as the true and absolute owners pro-indiviso of the subject lots and the registration and issuance of the corresponding certificate of title in their names.Subsequently, trial of the case ensued.On March 20, 1998, herein respondent filed a Motion for Admission7 contending that through oversight and inadvertence she failed to include in her application, the verification and certificate against forum shopping required by Supreme Court (SC) Revised Circular No. 28-91 in relation to SC Administrative Circular No. 04-94.Petitioners filed a Motion to Dismiss Application8 on the ground that respondent should have filed the certificate against forum shopping

simultaneously with the petition for land registration which is a mandatory requirement of SC Administrative Circular No. 04-94 and that any violation of the said Circular shall be a cause for the dismissal of the application upon motion and after hearing.Opposing the motion to dismiss, respondents asserted that the petitioners' Motion to Dismiss Application was filed out of time; respondent's failure to comply with SC Administrative Circular No. 04-94 was not willful, deliberate or intentional; and the Motion to Dismiss was deemed waived for failure of petitioners to file the same during the earlier stages of the proceedings.On July 19, 1999, the MTC issued an Order9 denying petitioners' Motion to Dismiss Application.On June 25, 2001, the MTC rendered a Decision10 the dispositive portion of which reads as follows:NOW THEREFORE, and considering all the above premises, the Court finds and so holds that Applicant MA. LOURDES A. TEODORO, having sufficient title over this land applied for hereby renders judgment, which should be, as it is hereby CONFIRMED and REGISTERED in her name.IT IS SO ORDERED.11

Herein petitioners then filed an appeal with the Regional Trial Court of Virac, Catanduanes. In its Decision12 dated February 22, 2002, the RTC, Branch 43, of Virac, Catanduanes dismissed the appeal for lack of merit and affirmed in toto the Decision of the MTC. Petitioners filed a Motion for Reconsideration but it was denied by the RTC in its Order13 of July 22, 2002.Aggrieved by the RTC Decision, petitioners filed a Petition for Review14 with the CA. On September 12, 2003, the CA promulgated its presently assailed Decision dismissing the Petition. Petitioners filed a Motion for Reconsideration but the same was denied by the CA in its Resolution15 dated March 24, 2004.Hence, the herein petition based on the following grounds:A. The Honorable Court of Appeals did not rule in accordance with the prevailing rules and jurisprudence when it held that the belated filing, after more than two (2) years and three (3) months from the initial application for land registration, of a sworn certification against forum shopping in Respondent's application for land registration, constituted substantial compliance with SC Admin. Circular No. 04-94.B. The Honorable Court of Appeals did not rule in accordance with prevailing laws and jurisprudence when it held that the certification of non-forum shopping subsequently submitted by respondent does not require a certification from an officer of the foreign service of the Philippines as provided under Section 24, Rule 132 of the Rules of Court.C. The Honorable Court of Appeals did not rule in accordance with prevailing laws and jurisprudence when it upheld the decisions of the Regional Trial Court (RTC) and Municipal Trial Court (MTC) that the lots in question were not really owned by Petitioners' father Vicente S. Arcilla, contrary to the evidence presented by both parties.D. The Honorable Court of Appeals did not rule in accordance with prevailing laws and jurisprudence when it sustained the decision of the RTC which affirmed in toto the decision of the MTC and in not reversing the same and rendering judgment in favor of Petitioners.16

In their Memorandum, petitioners further raise the following issue:

12 | P a g e

Whether or not the Supreme Court may inquire into conclusions of facts made by the Honorable Court of Appeals in the instant Petition.17

The Court’s RulingThe petition is bereft of merit.The CA ruled correctly when it held that the belated filing of a sworn certification of non-forum shopping was substantial compliance with SC Administrative Circular No. 04-94.Under the attendant circumstances in the present case, the Court cannot uphold petitioners’ contention that respondent's delay of more than two years and three months in filing the required certificate of non-forum shopping may not be considered substantial compliance with the requirements of SC Administrative Circular No. 04-94 and Section 5, Rule 7 of the Rules of Court; that respondent's reasons of oversight and inadvertence do not constitute a justifiable circumstance that could excuse her non-compliance with the mandatory requirements of the above-mentioned Circular and Rule; that subsequent compliance with the requirement does not serve as an excuse for a party's failure to comply in the first instance.Section 5, Rule 7, of the Rules of Court provides:Sec. 5. Certification against forum shopping. – The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt as well as a cause for administrative sanctions.This Rule was preceded by Circular No. 28-91, which originally required the certification of non-forum shopping for petitions filed with this Court and the CA; and SC Administrative Circular No. 04-94, which extended the certification requirement for civil complaints and other initiatory pleadings filed in all courts and other agencies.In Gabionza v. Court of Appeals,18 this Court has held that Circular No. 28-91 was designed to serve as an instrument to promote and facilitate the orderly administration of justice and should not be interpreted with such absolute literalness as to subvert its own ultimate and legitimate objective

or the goal of all rules of procedure – which is to achieve substantial justice as expeditiously as possible.19 The same guideline still applies in interpreting what is now Section 5, Rule 7 of the 1997 Rules of Civil Procedure.20

The Court is fully aware that procedural rules are not to be belittled or simply disregarded, for these prescribed procedures insure an orderly and speedy administration of justice.21 However, it is equally settled that litigation is not merely a game of technicalities.22 Rules of procedure should be viewed as mere tools designed to facilitate the attainment of justice.23 Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be eschewed.24 Even the Rules of Court reflect this principle.25

Moreover, the emerging trend in our jurisprudence is to afford every party-litigant the amplest opportunity for the proper and just determination of his cause free from the constraints of technicalities.26

It must be kept in mind that while the requirement of the certificate of non-forum shopping is mandatory, nonetheless the requirement must not be interpreted too literally and thus defeat the objective of preventing the undesirable practice of forum shopping.27 In Uy v. Land Bank of the Philippines,28 the Court ruled, thus:The admission of the petition after the belated filing of the certification, therefore, is not unprecedented. In those cases where the Court excused non-compliance with the requirements, there were special circumstances or compelling reasons making the strict application of the rule clearly unjustified. In the case at bar, the apparent merits of the substantive aspects of the case should be deemed as a "special circumstance" or "compelling reason" for the reinstatement of the petition. x x x29

Citing De Guia v. De Guia30 the Court, in Estribillo v. Department of Agrarian Reform,31 held that even if there was complete non-compliance with the rule on certification against forum-shopping, the Court may still proceed to decide the case on the merits pursuant to its inherent power to suspend its own rules on grounds of substantial justice and apparent merit of the case.In the instant case, the Court finds that the lower courts did not commit any error in proceeding to decide the case on the merits, as herein respondent was able to submit a certification of non-forum shopping. More importantly, the apparent merit of the substantive aspect of the petition for land registration filed by respondent with the MTC coupled with the showing that she had no intention to violate the Rules with impunity, as she was the one who invited the attention of the court to the inadvertence committed by her counsel, should be deemed as special circumstances or compelling reasons to decide the case on the merits.In addition, considering that a dismissal contemplated under Rule 7, Section 5 of the Rules of Court is, as a rule, a dismissal without prejudice, and since there is no showing that respondent is guilty of forum shopping, to dismiss respondent's petition for registration would entail a tedious process of re-filing the petition, requiring the parties to re-submit the pleadings which they have already filed with the trial court, and conducting anew hearings which have already been done, not to mention the expenses that will be incurred by the parties in re-filing of pleadings and in the re-conduct of hearings. These would not be in keeping with the judicial policy

13 | P a g e

of just, speedy and inexpensive disposition of every action and proceeding.32

The certification of non-forum shopping executed in a foreign country is not covered by Section 24, Rule 132 of the Rules of Court.There is no merit to petitioners’ contentions that the verification and certification subsequently submitted by respondent did not state the country or city where the notary public exercised her notarial functions; and that the MTC simply concluded, without any basis, that said notary public was from Maryland, USA; that even granting that the verification and certification of non-forum shopping were notarized in the USA, the same may not be deemed admissible for any purpose in the Philippines for failure to comply with the requirement of Section 24, Rule 132 of the Rules of Court that the notarized document must be accompanied by a certificate issued by an officer in the foreign service of the Philippines who is stationed in the country in which a record of the subject document is kept, proving or authenticating that the person who notarized the document is indeed authorized to do so and has custody of the same.The Court agrees with the disquisition of the CA, to wit:From the foregoing provision [referring to Section 24, Rule 132, Rules of Court], it can be gathered that it does not include documents acknowledged before [a] notary public abroad. For foreign public documents to be admissible for any purpose here in our courts, the same must be certified by any officer of the Philippine legation stationed in the country where the documents could be found or had been executed. However, after judicious studies of the rule, Sec. 24, Rule 132 of the 1997 Rules of Court basically pertains to written official acts, or records of the official of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country. This is so, as Sec. 24, Rule 132 explicitly refers only to paragraph (a) of Sec. 19. If the rule comprehends to cover notarial documents, the rule could have included the same. Thus, petitioners-oppositors' contention that the certificate of forum shopping that was submitted was defective, as it did not bear the certification provided under Sec. 24, Rule 132 of the Rules of Court, is devoid of any merit. What is important is the fact that the respondent-applicant certified before a commissioned officer clothed with powers to administer oath that [s]he has not and will not commit forum shopping.33

The ruling of the Court in Lopez v. Court of Appeals,34 cited by petitioners, is inapplicable to the present case because the Rules of Evidence which were in effect at that time were the old Rules prior to their amendment in 1989. The rule applied in Lopez, which was decided prior to the effectivity of the amended Rules of Evidence,35 was Section 25, Rule 132, to wit:Sec. 25. Proof of public or official record – An official record or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of embassy or

legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. (Emphasis supplied)When the Rules of Evidence were amended in 1989, Section 25, Rule 132 became Section 24, Rule 132; and the amendment consisted in the deletion of the introductory phrase "An official record or an entry therein," which was substituted by the phrase "The record of public documents referred to in paragraph (a) of Section 19."Thus, Section 24, Rule 132 of the Rules of Court now reads as follows:Sec. 24. Proof of official record. - The record of public documents referred to in paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. (Emphasis supplied)Section 19(a) of the same Rule provides:Sec. 19. Classes of documents. - For the purpose of their presentation in evidence, documents are either public or private.Public documents are:(a) The written official acts or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines or of a foreign country;(b) Documents acknowledged before a notary public except last wills and testaments; and(c) Public records, kept in the Philippines, of private documents required by law to be entered therein.All other writings are private.It cannot be overemphasized that the required certification of an officer in the foreign service under Section 24 refers only to the documents enumerated in Section 19(a), to wit: written official acts or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers of the Philippines or of a foreign country. The Court agrees with the CA that had the Court intended to include notarial documents as one of the public documents contemplated by the provisions of Section 24, it should not have specified only the documents referred to under paragraph (a) of Section 19.In Lopez, the requirements of then Section 25, Rule 132 were made applicable to all public or official records without any distinction because the old rule did not distinguish. However, in the present rule, it is clear under Section 24, Rule 132 that its provisions shall be made applicable only to the documents referred to under paragraph (a), Section 19, Rule 132.The CA did not err in sustaining the findings of fact and conclusion of law of the MTC and the RTC.

14 | P a g e

Settled is the rule that the trial court’s findings of fact, especially when affirmed by the CA, are generally binding and conclusive upon this Court.36 There are recognized exceptions to this rule, among which are: (1) the conclusion is grounded on speculations, surmises or conjectures; (2) the inference is manifestly mistaken, absurd or impossible; (3) there is grave abuse of discretion; (4) the judgment is based on a misapprehension of facts; (5) the findings of fact are conflicting; (6) there is no citation of specific evidence on which the factual findings are based; (7) the finding of absence of facts is contradicted by the presence of evidence on record; (8) the findings of the CA are contrary to the findings of the trial court; (9) the CA manifestly overlooked certain relevant and undisputed facts that, if properly considered, would justify a different conclusion; (10) the findings of the CA are beyond the issues of the case; and (11) such findings are contrary to the admissions of both parties.37 However, petitioners failed to show that any of the exceptions is present in the instant case to warrant a review of the findings of fact of the lower courts.Petitioners insist that the documents which were presented in evidence by respondent to prove her ownership of the subject lot are rife with defects and inconsistencies. Petitioners contend that the subject lot should not have been included in the Extrajudicial Settlement of the Estate of Jose Arcilla, because he was no longer the owner of the said property at the time of said settlement; the Deed of Sale should be declared null and void because the seller, Pacifico Arcilla, was not the owner of the subject lands at the time the said Deed was executed; the Affidavit of Quitclaim is not valid and has no force and effect considering that the document indicates that the signatures of petitioners were affixed in different places, none of which is in Virac, Catanduanes where they supposedly acknowledged said document.The only evidence of petitioners to prove their claim that the disputed property was sold by Jose Arcilla to Manuel Sarmiento in 1908 is a single Tax Declaration in the name of the latter, with a notation that the property was acquired by purchase.The Court agrees with the CA in its finding that petitioners failed to present any substantial evidence, such as a deed of sale, to prove their claim that their predecessor, Vicente Arcilla, bought the disputed property from Sarmiento. Petitioners were only able to present tax declarations in Vicente's name to prove their allegation that Vicente became the owner of the subject property. The tax declarations presented in evidence by petitioners are not supported by any other substantial proofs.The Court has ruled time and again that tax declarations do not prove ownership but are at best anindicium of claims of ownership.38 Payment of taxes is not proof of ownership, any more than indicating possession in the concept of an owner.39 Neither a tax receipt nor a declaration of ownership for taxation purposes is evidence of ownership or of the right to possess realty when not supported by other effective proofs.40

In addition, the Court agrees with the CA when it held that if Vicente, in fact, owned the disputed properties, his widow, Josefa, would not have agreed to include said lots among those partitioned in the Extrajudicial Settlement of the Estate of Jose.

On the other hand, respondent's claim of ownership is not only backed up by tax declarations but also by other pieces of evidence such as the subject Extrajudicial Settlement, Affidavit of Quitclaim, and Deed of Sale.Petitioners question the validity of the above-mentioned documents. However, as the CA, RTC and MTC found, these documents are all notarized. It is settled that a notarized document is executed to lend truth to the statements contained therein and to the authenticity of the signatures.41 Notarized documents enjoy the presumption of regularity which can be overturned only by clear and convincing evidence.42

Petitioners' bare denials of the contents of the subject documents will not suffice to overcome the presumption of their regularity considering that they are all notarized. To overthrow such presumption of regularity, the countervailing evidence must be clear, convincing and more than merely preponderant, which petitioners failed to present.43

An examination of the subject Extrajudicial Settlement of Estate clearly shows that the disputed lot forms part of the properties adjudicated in favor of Pacifico Arcilla, respondent’s predecessor-in-interest.Moreover, petitioners themselves admit that the Extrajudicial Settlement being referred to in the Affidavit of Quitclaim executed by petitioner and her co-heirs is the Extrajudicial Settlement of the Estate of Jose Arcilla and not of Vicente Arcilla. An examination of the Affidavit of Quitclaim shows that the reference made therein with respect to the date of execution of the said Extrajudicial Settlement as well as the notary public who acknowledged the same and the Document Number, Page Number, Book Number and Series Number all coincide with those appearing in the document evidencing the Extrajudicial Settlement of the Estate of Jose Arcilla. Hence, what has been waived by petitioners is their right, if any, to the properties mentioned in the said Affidavit of Quitclaim, which includes the presently disputed lot.Petitioners posit that they are not bound by the subject Extrajudicial Settlement because they did not participate in nor did they sign the document evidencing such settlement and that their mother who signed on their behalf was not, in fact, authorized to do so. However, the Court agrees with the ruling of the RTC that the Extrajudicial Settlement is a public document, the same having been notarized; that such document is entitled to full faith and credit in the absence of competent evidence showing that its execution was tainted with defects and irregularities which would warrant a declaration of nullity; that in the absence of evidence showing that the person who signed in behalf of herein petitioners was, in fact, not authorized to do so, the presumption that she had the authority, as stated in the Extrajudicial Settlement, remains undisturbed.Moreover, petitioners' execution of the subject Affidavit of Quitclaim is proof that they have ratified the contents of the disputed Extrajudicial Settlement.Petitioners' claim that the Affidavit of Quitclaim is null and void on the ground that the signatories thereto are not residents of Virac, Catanduanes and that they affixed their signature in places other than Virac, Catanduanes where they supposedly acknowledged the said document, is not persuasive. The Court finds no error in the finding of the MTC, as affirmed by the CA, that the execution of the subject Affidavit of Quitclaim

15 | P a g e

or the signatures of the affiants appearing therein were never contested nor raised as an issue and that petitioner Sarah Arcilla herself acknowledged her own signature in the said Affidavit.In any event, the law does not require that parties to a document notarized by a notary public should be residents of the place where the said document is acknowledged or that they affix their signature in the presence of the notary public. What is necessary is that the persons who signed a notarized document are the very same persons who executed and personally appeared before the notary public in order to attest to the contents and truth of what are stated therein.44

In the instant case, it is established that, with the exception of petitioner Rene Arcilla, all of herein petitioners, including their now deceased mother Josefa and sister Nora, executed and personally acknowledged before the notary public the subject Affidavit of Quitclaim. Hence, aside from Rene, the said Affidavit of Quitclaim is valid and binding on all the petitioners.With respect to Rene, petitioner Oscar Arcilla, acting as his attorney-in-fact, signed the document on the former’s behalf. However, settled is the rule that:A member of the bar who performs an act as 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. The acts of the affiants cannot be delegated to anyone for what are stated therein are facts of which they have personal knowledge. They should swear to the document personally and not through any representative. Otherwise, their representative’s name should appear in the said documents as the one who executed the same. That is the only time the representative can affix his signature and personally appear before the notary public for notarization of the said document. Simply put, the party or parties who executed the instrument must be the ones to personally appear before the notary public to acknowledge the document.45

Thus, the herein subject Affidavit of Quitclaim may not be binding on Rene. Nonetheless, with or without Rene’s participation in the quitclaim, respondent’s ownership of the subject lots has been established by preponderance of evidence, as unanimously found by the MTC, the RTC and the CA.Finally, petitioners' physical occupation of the commercial building which they erected on the disputed property does not necessarily prove their ownership of the subject lots.This Court has held that:ownership and possession are two entirely different legal concepts. Just as possession is not a definite proof of ownership, neither is non-possession inconsistent with ownership. The first paragraph of Article 1498 of the Civil Code states that when the sale is made through a public instrument, the execution thereof shall be equivalent to the delivery of the thing which is the object of the contract, if from the deed the contrary does not appear or cannot clearly be inferred.Possession, along with ownership, is transferred to the vendee by virtue of the notarized deed of conveyance. Thus, in light of the circumstances of the present case, it is of no legal consequence that petitioner did not take actual possession or occupation of the disputed lot after the

execution of the deed of sale in her favor because she was already able to perfect and complete her ownership of and title over the subject property.46(Emphasis supplied)The Extrajudicial Settlement of Estate in favor of Pacifico, respondent’s predecessor-in-interest, the Affidavit of Quitclaim and the Deed of Sale in favor of respondent establish respondent’s ownership over the disputed property.WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated September 12, 2003 and its Resolution of March 24, 2004 in CA-G.R. SP No. 72032 are AFFIRMED.Costs against petitioners.SO ORDERED.______________G.R. No. 177505             November 27, 2008HEIRS OF GORGONIO MEDINA, namely: LEONOR T. MEDINA, RAMON T. MEDINA, ABIEL T. MEDINA, ILUDIVINA M. ROSARI, CONCEPCION DE LA CRUZ, LEONOR M. BAKKER, SAMUEL T. MEDINA, VICTOR T. MEDINA, TERESITA M. SABADO, JOSEFINA M. CANAS and VERONICA M. DE GUZMAN, petitioners, vs.BONIFACIO NATIVIDAD, represented by PHILIP M. NATIVIDAD, respondents.D E C I S I O NCHICO-NAZARIO, J.:Before Us is a Petition for Review on Certiorari under Rule 45 of the 1997 Rules of Civil Procedure which seeks to set aside the Decision1 of the Court of Appeals dated 20 November 2006 in CA-G.R. CV No. 82160 affirming with modification the Decision2 of Branch 33 of the Regional Trial Court (RTC) of Guimba, Nueva Ecija, in Civil Case No. 1165-G and its Resolution3 dated 16 April 2007 denying petitioners’ motion for reconsideration.The factual antecedents are as follows:On 16 May 1969, Tirso Medina, Pacifico M. Ruiz, Gorgonio D. Medina, Vivencio M. Ruiz, and Dominica Medina, co-owners of a parcel of land (Lot 1199, Cad-162, Guimba Cadastre, plan Ap-23418) situated in Poblacion, Municipality of Guimba, Province of Nueva Ecija, containing an area of two thousand three hundred thirty nine (2,339) square meters, agreed to divide and allot for themselves the said land. A sketch4 signed by the co-owners showed the respective portions of land allotted to each. Gorgonio D. Medina received two portions of said land. One portion was allotted to him alone, while the second portion was allotted to him together with Tirso Medina and Pacifico M. Ruiz. This second portion is labeled as "Gorgonio Medina, Tirso Medina and Pacifico M. Ruiz" which is adjacent to the portion labeled as "Dominica Medina."On 29 March 1972, Gorgonio D. Medina, predecessor-in-interest of petitioners, executed a Deed of Absolute Sale5 whereby he sold to respondent Bonifacio Natividad for P2,000.00 his share (1/3) in the second portion of land including the improvements found therein.Subsequently, a case for Partition with Damages, docketed as Civil Case No. 781-G, was filed before the RTC of Guimba, Nueva Ecija, Branch 33, by

16 | P a g e

Tirso Medina against the co-owners of Lot 1199, among whom are Gorgonio Medina and Bonifacio Natividad. Bonifacio Natividad had likewise already bought the share of Dominica Medina in the land.The parties entered into a compromise agreement which they submitted to the Court. On 20 November 1989, the RTC approved the agreement and rendered its decision based on the same.6 The Compromise Agreement as quoted by the Court reads:COMPROMISE AGREEMENTCOME NOW the parties, assisted by their respective counsel(s), and unto this Honorable Court respectfully submit this Compromise Agreement in full and final settlement of their differences, to wit:1. The parties herein are the exclusive co-owners of that certain parcel of land located at the Poblacion, Guimba, Nueva Ecija, known as Lot 1199, Guimba Cadastre and more particularly described as follows:A parcel of land (Lot 1199, of the Cadastral Survey of Guimba Cad. 162, plan Ap-23418, L.R. Case No. G-51, L.R.C. Record No. N-40711), situated in the Poblacion, Municipality of Guimba, Province of Nueva Ecija. x x x containing an area of TWO THOUSAND THREE HUNDRED AND THIRTY NINE (2,339) SQUARE METERS, more or less. x x x.x x x x2. The herein parties recognize and acknowledge that their respective shares in the property aforementioned as appearing in the aforesaid Original Certificate of Title No. 130366 have been modified by agreement between them to allot a portion thereof to their co-owner, Vivencio M. Ruiz, to compensate for valuable services rendered to the parties vis-à-vis the said property, separate and apart from his rightful share therein as participating heir of Maria Medina;3. The plaintiff Tirso Medina hereby withdraws any/all statements appearing on record which he may have made in said case in the course of his testimony therein, and hereby asks the Honorable Court that said statements be expunged or withdrawn from the record;4. The foregoing considered, the parties have determined that it is to their mutual convenience and advantage, and in accord with their common desire to preserve and maintain the existing family harmony and solidarity to terminate their present community of ownership in the property aforementioned by mutual agreement and adjudication, in the manner appearing in the Sketch Plan of Partition attached as an integral part hereof as Annex "A" where the property is subdivided into Lot 1, 2, 3, 4, 5, and 6 and adjudicated, as follows:a. To Bonifacio Natividad, Lot No. 1, consisting of 480 square meters, more or less, representing the interests of Dominica Medina which was sold to him per document of "Sale of Rights, Waiver and Renunciation" appearing as Doc. No. 367; Page No. 75; Book No. 10; Series of 1968 in the Notarial Register of Atty.b. To VIVENCIO M. RUIZ, Lot No. 3 consisting of 370.21 square meters, more or less, as compensation for valuable services rendered; free and clear from any/all liens or encumbrances whatsoever or from the claims of any person whomsoever, except the present tenant/s thereon;

c. To the heirs of MARIA MEDINA, Lot No. 2 consisting of 370.21 square meters, more or less, without prejudice to sales and dispositions already made by the respective heirs of their interests and participations therein;d. To TIRSO MEDINA, Lot No. 4 consisting of 369.29 square meters, more or less;e. To the heirs of PACIFICO M. RUIZ, Lot No. 5 consisting of 369.29 square meters, more or less, andf. To GORGONIA MEDINA, Lot No. 6, consisting of 369.29 square meters, more or less.7

On 8 October 1991, the trial court issued an order supplementing its decision dated 20 November 1989 which reads in part:[T]hat the parties thereafter, engaged the services of one common geodetic engineer in the person of Rolly Francisco to conduct the survey and effect the subdivision of Lot 1199, which was subdivided into Lots A, B, C, D, E, and F, the area of which appears, thus:Lot 1199-A with an area of 371 sq. ms., which lot now corresponds to Lot No. 4 adjudicated to Tirso Medina;Lot 1199-B with an area of 371 sq. ms., which lot now corresponds to Lot No. 5 adjudicated to Pacifico Ruiz;Lot 1199-C with an area of 371 sq. ms., which lot now corresponds to Lot No. 6 adjudicated to Gorgonio Medina;Lot 1199-D with an area of 482 sq. ms., which lot now corresponds to Lot No. 1 adjudicated to Bonifacio Natividad;Lot 1199-E with an area of 372 sq. ms., which lot now corresponds to Lot No. 2 adjudicated to Heirs of Maria Medina; andLot 1199-F with an area of 372 sq. ms., which lot now corresponds to Lot No. 3 adjudicated to Vivencio M. Ruiz; that in this subdivision made by the geodetic engineer, there was no change in the designation of the particular places adjudicated to the parties, except the change in areas allotted after the actual survey made.WHEREFORE, finding the motion to be in order, the Court resolves to grant the same and hereby orders, that:Lot 1199-A with an area of 371 sq. ms. is Lot 4, decision, adjudicated to Tirso Medina;Lot 1199-B with an area of 371 sq. ms. is Lot 5, decision, adjudicated to Pacifico Ruiz;Lot 1199-C with an area of 371 sq. ms. is Lot 6, decision, adjudicated to Gorgonio Medina;Lot 1199-D with an area of 482 sq. ms. is Lot 1, decision, adjudicated to Bonifacio Natividad;Lot 1199-E with an area of 372 sq. ms. is Lot 2, decision, adjudicated to Heirs of Maria Medina;Lot 1199-F with an area of 372 sq. ms. is Lot 3, decision, adjudicated to Vivencio M. Ruiz.This Order supplements the Decision dated November 20, 1989.8

Pursuant to the court-approved partition, Lot 1199-C, measuring 371 square meters, was registered in the name of Gorgonio Median for which Transfer Certificate of Title (TCT) No. NT-230248 of the Registry of Deeds for the Province of Nueva Ecija was issued to him.9

17 | P a g e

On 11 June 2001, Bonifacio Natividad, thru his alleged Attorney-In-Fact, Philip M. Natividad, filed before the RTC of Guimba, Nueva Ecija, Branch 31, a Complaint for Annulment of TCT No. NT-230248 and Damages.10 It impleaded as respondents Abiel Medina and Veronica de Guzman who are occupying the said land. Bonifacio asks, among other things, that 1/3 of said land be surrendered to him because he had bought the same from Gorgonio Medina. In the Answer11 filed by Abiel Medina and Veronica de Guzman, they argued, inter alia, that Philip Natividad had no legal capacity to sue because the Special Power of Attorney annexed to the Complaint did not grant him such authority. They further added that the Complaint failed to implead all the parties-in-interest considering that the ownership of the land covered by TCT No. NT-230248 had already passed to eleven heirs of Gorgonio Medina.Bonifacio, thru Philip, filed a Motion for Bill of Particulars12 praying that an order be issued by the court directing Abiel Medina and Veronica de Guzman to give the names and present addresses of all the heirs of Gorgonio Medina. Said motion was opposed.13 In an order dated 15 October 2001, the trial court granted the motion.14 Defendants complied with the court’s order and submitted the names and addresses of all the heirs of Gorgonio Medina.15

On 7 January 2002, Bonifacio filed a Motion for Leave to Admit Amended Complaint with prayer that summons upon eight heirs be made through publication.16 The Amended Complaint impleaded all the heirs of Gorgonio Medina (petitioners herein). In said amended complaint, a special power of attorney17dated 21 September 2001 allegedly executed by Bonifacio Natividad in the State of Washington, United States of America, and acknowledged before Phyllis Perry, a Notary Public of the State of Washington, USA, was attached authorizing Philip Natividad to:1. To file all appropriate cases in court against the heirs of Gorgonio Medina for the recovery of the lot that I purchased from said Gorgonio Medina by virtue of Deed of Absolute Sale executed on March 29, 1972 and notarized by Atty. Inocencio B. Garampil under Doc. No. 435, Page No. 87, Book No. 1, Series of 1972, which lot is now titled in the name of Gorgonio Medina under Transfer Certificate of Title No. NT-230248;2. To institute all legal actions/cases in court for the annulment of said Transfer Certificate of Title No. NT -230248 which now covers the lot I bought from Gorgonio Medina;3. To represent me in all proceedings/hearings of the above-mentioned case/s up to its termination;4. To enter into a fair and reasonable compromise agreement and do all acts for the protection and preservation of my rights and interest over the above-mentioned lot;5. To negotiate/transact with all persons, secure and sign all necessary documents for the attainment of the above purposes.In an Order dated18 30 January 2002, the trial court approved the motion and admitted the Amended Complaint. It directed the issuance of the corresponding summons, the same to be published in a newspaper of general circulation for three consecutive weeks. As to plaintiff’s authority to sue, the trial court ruled that said issue had been settled by the special power of attorney attached to the Amended Complaint.

On 17 May 2002, the heirs of Gorgonio Medina filed a Motion to Dismiss19 which the trial court denied on 20 August 2002.20 On 10 September 2002, the heirs filed their Answer raising the following defenses: prescription, laches, lack of cause of action, lack of legal capacity to sue by Attorney-in-Fact, indefeasibility of TCT No. NT-230248 and lack of jurisdiction over the case for failure of the plaintiff to comply with the mandatory requirement of the Katarungang Pambarangay. Plaintiff filed his Reply dated 18 September 2002 specifically denying the allegations contained in the Answer with Compulsory Counterclaim.21

During the Pre-Trial, the parties stipulated the following facts and issues:a. TCT No. N-230248 in the name of Gorgonio Medina covers 371 square meters. This title was one of the titles issued as transfer from Original Certificate of Title No. 130366.22

b. TCT No. 230248 came into being by virtue of the decision in Civil Case No. 781-G, a case of partition among Gorgonio Medina and his co-heirs decided by RTC Branch 33.c. The late Gorgonio Medina executed a Deed of Absolute Sale over 1/3 portion of his share in a parcel of land (Lot 1199, CAD-162 Guimba Cadastre) owned in common by him and his co-heirs.d. The land subject of the deed of sale is not the one covered by TCT No. 230248.Issues:1. Whether the deed of sale of sale may be given effect notwithstanding the fact that the subject thereof is different from the portion covered by TCT No. 230248.2. Whether Mr. Philip Natividad is duly authorized to represent his father, Bonifacio Natividad in this case.23

The parties manifested that after they shall have filed their respective memoranda, the case shall be submitted for decision.In its decision dated 10 December 2003, the trial court ruled in favor of Bonifacio Natividad. The decretal portion of the decision reads:WHEREFORE, judgment is hereby rendered in favor of the plaintiff ordering the defendants to convey to the plaintiff 1/3 portion of the lot covered by TCT No. 230248 together with the improvements thereon and to account for, and deliver to the plaintiff the income derived therefrom from the institution of this case up to the execution of this decision.No pronouncement as to damages there being no reservation made by the plaintiff to present evidence thereof.24

On the issue of Philip Natividad’s authority to represent his father, the court ruled that it was convinced that Philip was authorized to represent his father by virtue of a notarized special power of attorney executed by Bonifacio attached to the amended complaint. It explained that the document was a public document as defined under Section 20, paragraph (a) of Rule 132 of the Rules of Court, the same having been notarized by a notary public for the State of Washington, USA. In the absence of any evidence to show that said special power of attorney was falsified, it was sufficient authority for Mr. Natividad to represent his father.The trial court likewise ruled that the deed of absolute sale executed by Gorgonio Medina in favor of Bonifacio Natividad may be given effect notwithstanding the fact that the portion of Lot 1199 specified as its object

18 | P a g e

was different from the portion adjudicated to Gorgonio Medina. It declared that the 1/3 portion of the land covered by TCT No. NT-230248 shall be deemed the object of the deed of sale. It agreed with Bonifacio that what was sold by Gorgonio Medina to him (Bonifacio) was his share, right and participation in the land known as Lot 1199. At the time of the sale, Lot 1199 was not yet divided. Gorgonio Medina specified a portion of Lot 1199, expecting that portion to be adjudicated to him, but his expectation did not materialize because a different portion was adjudicated to him during the partition. It added that justice demanded that a portion of what was adjudicated to him be considered as the object of the deed of sale.The trial court further ruled that prescription and laches did not set in. Since there was an express trust created between Gorgonio Medina and Bonifacio Natividad, the action to compel the defendants to convey the property to Bonifacio did not prescribe. It explained that it is only when the trustee repudiates the trust that the prescriptive period of 10 years commences to run. In the instant case, Gorgonio Medina (trustee) repudiated the trust on 5 July 1993 when TCT No. NT-230248 was issued in his name. Thus, the filing of the complaint on 11 June 2001 was well within the ten-year prescriptive period.On 22 December 2003, the petitioner-heirs of Gorgonio Medina filed a Notice of Appeal informing the trail court that they were appealing the decision to the Court of Appeals.25 A Notice of Appeal having been seasonably filed by the petitioners, the entire records of the case were forwarded to the Court of Appeals.26

On 13 January 2004, Bonifacio Natividad filed a Motion for Execution Pending Appeal27 which the trial court denied, it having lost jurisdiction over the case because the appeal was already perfected when the motion was filed.28

On 20 November 2006, the Court of Appeals rendered its decision affirming with modification the decision of the trial court. It disposed of the case as follows:WHEREFORE, the Decision of the RTC, Branch 33, Guimba, Nueva Ecija, dated December 10, 2003, is hereby AFFIRMED with the MODIFICATION ordering the defendants-appellants to convey to plaintiff-appellee an area equivalent to 90 square meters of the land covered by TCT No. NT-230248.29

The appellate court affirmed the findings of the trial court, but ruled that the trust established between the parties was an implied or constructive trust, and not an express trust. It added that what should be conveyed to Bonifacio Natividad was only 1/3 of 270 square meters or 90 square meters, and not 1/3 of 371 square meters since what was sold to him was only a part of one of the two portions owned by Gorgonio Medina in the entire lot. Finally, it declared that the contention that the Complaint should have been dismissed for lack of cause of action, considering that the Special Power of Attorney executed abroad by Bonifacio Natividad in favor of his son was not properly authenticated before a consular officer, put a premium on technicalities at the expense of substantial justice. Litigation, it said, should, as much as possible, be decided on the merits and not on technicalities.

Petitioners filed a Motion for Reconsideration30 which the Court of Appeals denied in a resolution dated 16 April 2007.31

Hence, the instant petition raising the following issues:WHETHER OR NOT THE COMPROMISE AGREEMENT THAT THE TRIAL COURT APPROVED IN CIVIL CASE NO. 781-G NOVATED THE DEED OF ABSOLUTE SALE DATED 29 MARCH 1972 BETWEEN GORGONIO MEDINA AND BONIFACIO NATIVIDAD.WHETHER OR NOT BONIFACIO NATIVIDAD IS ESTOPPED BY LACHES.WHETHER OR NOT THE REGISTRATION OF LOT NO. 1199-C IN THE NAME OF GORGONIO MEDINA WAS IN FRAUD OF BONIFACIO NATIVIDAD.WHETHER OR NOT A CONSTRUCTIVE TRUST WAS CREATED BETWEEN GORGONIO MEDINA AND BONIFACIO NATIVIDAD.WHETHER OR NOT BONIFACIO NATIVIDAD’S CAUSE OF ACTION HAS ALREADY PRESCRIBED.WHETHER OR NOT THE COMPLAINT STATES A CAUSE OF ACTION.Among the issues raised by petitioners the last is what we shall first tackle. Petitioners contend that the Court of Appeals committed a very grave error in not finding that the respondent was without any cause of action. Petitioners argue:The Complaint in this case was instituted by Philip M. Natividad in the name of Bonifacio Natividad upon the strength of a Special Power of Attorney executed by the latter in Washington, U.S.A. While the document appears to have been acknowledged before Phyllis Perry, a Notary Public for the jurisdiction of the State of Washington, U.S.A., it was not presented before a Philippine Consular Officer for the requisite authentication.The Revised Rules on Evidence require that a document acknowledged before a notary public being a public document, such record if kept in a foreign country, should be accompanied with a certificate that such officer has the custody thereof made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by an officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, authenticated by the seal of his office. In the absence of the requisite certification and authentication of the public document, the same cannot be proved and, therefore, inadmissible as evidence.Bonifacio Natividad’s Special Power of Attorney not having been duly certified and authenticated, it cannot be duly proved. It is, therefore, deemed as not having been executed for purposes of instituting an action on his behalf. Without any valid authority to institute the action on behalf of his father, Philip Natividad is deemed to have instituted it on his own. Philip Natividad not being a party to the Deed of Absolute Sale between Gorgonio Medina and Bonifacio Natividad, he is undoubtedly not the real party in interest because he does not have any material interest in the contract which is the source of Bonifacio Natividad’s cause of action. He does not stand to be benefited or injured by a judgment in the suit and neither is he entitled to the avails of the suit.Not being the real party in interest, and being deemed to have brought the action on his own, Philip M. Natividad has no cause of action.32

The trial court was convinced that Philip Natividad was authorized by his father (Bonifacio) in this case by virtue of the special power of attorney that the latter issued. The special power of attorney, it claims, is a public

19 | P a g e

document, the same having been notarized by a notary public of the State of Washington, USA. It said that there being no evidence showing that said document had been falsified, the same was sufficient authority for Philip to represent his father. The Court of Appeals considered the fact that the special power of attorney was not properly authenticated before a consular office to be a mere technicality and could not be the basis for the dismissal of the complaint for lack of cause of action.On his part, respondent said the notarized special power of attorney which he appended to the complaint is a public document. It carries with it the presumption of regularity and any suspicion on the authenticity and due execution thereof cannot stand against said presumption absent evidence which is clear and convincing.The question to be answered is: Is the Special Power of Attorney supposedly authorizing Philip Natividad to file the instant case in behalf of his father admissible in evidence?In Lopez v. Court of Appeals,33 we have ruled that a special power of attorney executed in a foreign country is, generally, not admissible in evidence as a public document in our courts. In said case, we said:Is the special power of attorney relied upon by Mrs. Ty a public document? We find that it is. It has been notarized by a notary public or by a competent public official with all the solemnities required by law of a public document. When executed and acknowledged in the Philippines, such a public document or a certified true copy thereof is admissible in evidence. Its due execution and authentication need not be proven unlike a private writing.Section 25,34 Rule 132 of the Rules of Court provides –Sec. 25. Proof of public or official record. – An official record or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office.From the foregoing provision, when the special power of attorney is executed and acknowledged before a notary public or other competent official in a foreign country, it cannot be admitted in evidence unless it is certified as such in accordance with the foregoing provision of the rules by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept of said public document and authenticated by the seal of his office. A city judge-notary who notarized the document, as in this case, cannot issue such certification.Considering that the record of the case does not disclose any compliance with the provisions of Section 25, Rule 132 of the Rules of Court on the part of the petitioner, the special power of attorney in question is not admissible

in evidence. As such, Mrs. Priscilla L. Ty cannot lawfully prosecute the case against the private respondents in the name of her principal as her authority through a special power of attorney had not been duly established in evidence. The litigation was not commenced by the real party-in-interest or by one duly authorized by the said party.This being so, the Metropolitan Trial Court, the Regional Trial Court and the Court of Appeals never acquired jurisdiction over the person of the real party-in-interest – Angelita Lopez. For lack of the requisite jurisdiction, all the proceedings in the said courts are null and void ab initio. All proceedings therein should be and are hereby set aside.Accordingly, it is Our considered opinion, and We so hold, that a special power of attorney executed before a city judge-public notary in a foreign country, without the certification or authentication required under Section 25, Rule 132 of the Rules of Court, is not admissible in evidence in Philippine courts. (Emphasis supplied.)In the case under consideration, the supposed special power of attorney involved was executed and acknowledged before Phyllis Perry, a Notary Public of the State of Washington, USA. This being the case, a certification or authentication, as required by Section 25 (now Section 24), Rules of Court, by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any other officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office, is required. A notary public in a foreign country is not one of those who can issue the required certificate.The records are bereft of evidence showing that there was compliance with Section 25 (now Section 24). Non-compliance therewith will render the special power of attorney not admissible in evidence. Not being duly established in evidence, the special power of attorney cannot be used by Philip Natividad to represent his father, Bonifacio Natividad, in this legal action against the petitioners. It is thus clear that this case was not filed by the real party-in-interest (Bonifacio) or by one duly authorized by said party. Not being a real party-in-interest and sans the authority to pursue the case, Philip Natividad could not have validly commenced this case. The special power of attorney executed before a notary public in a foreign country without the requirements mentioned in Section 25 (now Section 24) of the Rules of Court cannot be admitted in evidence before Philippine courts.Both lower courts and respondent’s contention that the lack of consular authentication is a mere technicality that can be brushed aside in order to uphold substantial justice, is untenable. The failure to have the special power of attorney authenticated is not merely a technicality -- it is a question of jurisdiction. In Lopez, we pronounced that jurisdiction over the person of the real party-in-interest was never acquired by the courts. As a result, all proceedings in the lower courts were declared null and voidab initio and thus set aside.In the case before us, the Regional Trial Court and the Court of Appeals did not acquire jurisdiction over the person of Bonifacio Natividad. Following our pronouncement in Lopez, all proceedings before these courts are

20 | P a g e

voided and set aside. In light of this, we find no need to discuss the other issues raised.WHEREFORE, premises considered, the instant petition is GRANTED. All the proceedings before the Regional Trial Court of Guimba, Nueva Ecija, Branch 33 (Civil Case No. 1165-G) and the Court of Appeals (CA-G.R. CV No. 82160) are hereby declared void, and the case is hereby DISMISSED. No costs.SO ORDERED._____________G.R. No. 129416.  November 25, 2004]ZENAIDA B. TIGNO, IMELDA B. TIGNO and ARMI B. TIGNO, petitioners, vs. SPOUSES ESTAFINO AQUINO and FLORENTINA AQUINO and the HONORABLE COURT OF APPEALS, respondents.D E C I S I O NTINGA, J.:The controversy in the present petition hinges on the admissibility of a single document, a deed of sale involving interest over real property, notarized by a person of questionable capacity. The assailed ruling of the Court of Appeals, which overturned the findings of fact of the Regional Trial Court, relied primarily on the presumption of regularity attaching to notarized documents with respect to its due execution. We conclude instead that the document has not been duly notarized and accordingly reverse the Court of Appeals.The facts are as follow:On 11 January 1980, respondent spouses Estafino and Florentina Aquino (the Aquinos) filed a complaint for enforcement of contract and damages against Isidro Bustria (Bustria).[1] The complaint sought to enforce an alleged sale by Bustria to the Aquinos of a one hundred twenty thousand (120,000) square meter fishpond located in Dasci, Pangasinan. The property was not registered either under the Land Registration Act or under the Spanish Mortgage Law, though registrable under Act No. 3344.[2] The conveyance was covered by a Deed of Sale dated 2 September 1978.Eventually, Bustria and the Aquinos entered into a compromise agreement, whereby Bustria agreed to recognize the validity of the sale, and the Aquinos in turn agreed to grant to Bustria the right to repurchase the same property after the lapse of seven (7) years.Upon submission, the Court of First Instance of Pangasinan, Branch VII, approved and incorporated the compromise agreement in aDecision which it rendered on 7 September 1981.Bustria died in October of 1986.[3] On 1 December 1989, petitioner Zenaida B. Tigno (Tigno), in substitution of her deceased father Isidro Bustria,[4] attempted to repurchase the property by filing a Motion for Consignation. She deposited the amount of Two Hundred Thirty Thousand Pesos (P200,000.00)  with the trial court, now Regional Trial Court (RTC), Branch 55 at Alaminos, Pangasinan. On 18 December 1989, the Aquinos filed an opposition, arguing that the right to repurchase was not yet demandable and that Tigno had failed to make a tender of payment. In an Order dated 10 October 1999, the RTC denied the Motion for Consignation.[5]

In June of 1991, Tigno filed a Motion for a Writ of Execution, which was likewise opposed by the Aquinos, and denied by the RTC. Then, on 6 September 1991, Tigno filed an action for Revival of Judgment,[6] seeking the revival of the decision in Civil Case No. A-1257, so that it could be executed accordingly.[7] The Aquinos filed an answer, wherein they alleged that Bustria had sold his right to repurchase the property to them in a deed of sale dated 17 October 1985.[8]

Among the witnesses presented by the Aquinos during trial were Jesus De Francia (De Francia), the instrumental witness to the deed of sale, and former Judge Franklin Cariño (Judge Cariño), who notarized the same. These two witnesses testified as to the occasion of the execution and signing of the deed of sale by Bustria. Thereafter, in their Formal Offer of Documentary Evidence, the Aquinos offered for admission as their Exhibit No. “8,” the deed of sale (Deed of Sale)[9] purportedly executed by Bustria. The admission of the Deed of Sale was objected to by Tigno on the ground that it was a false and fraudulent document which had not been acknowledged by Bustria as his own; and that its existence was suspicious, considering that it had been previously unknown, and not even presented by the Aquinos when they opposed Tigno’s previous Motion for Consignation.[10]

In an Order dated 6 April 1994, the RTC refused to admit the Deed of Sale in evidence.[11] A Motion for Reconsideration praying for the admission of said exhibit was denied in an Order dated 27 April 1994.[12]

Then, on 18 August 1994, a Decision was rendered by the RTC in favor of Tigno. The RTC therein expressed doubts as to the authenticity of the Deed of Sale, characterizing the testimonies of De Francia and Cariño as conflicting.[13] The RTC likewise observed that nowhere in the alleged deed of sale was there any statement that it was acknowledged by Bustria;[14] that it was suspicious that Bustria was not assisted or represented by his counsel in connection with the preparation and execution of the deed of sale[15] or that Aquino had raised the matter of the deed of sale in his previous Opposition to the Motion for Consignation.[16] The RTC then stressed that the previous Motion for Execution lodged by Tigno had to be denied since more than five (5) years had elapsed from the date the judgment in Civil Case No. A-1257 had become final and executory; but the judgment could be revived by action such as the instant complaint. Accordingly, the RTC ordered the revival of the judgment dated 7 September 1981 in Civil Case No. A-1257.[17]

The Aquinos interposed an appeal to the Court of Appeals.[18] In the meantime, the RTC allowed the execution pending appeal of itsDecision.[19] On 23 December 1996, the Court of Appeals Tenth Division promulgated a Decision[20] reversing and setting aside the RTCDecision. The appellate court ratiocinated that there were no material or substantial inconsistencies between the testimonies of Cariño and De Francia that would taint the document with doubtful authenticity; that the absence of the acknowledgment and substitution instead of a jurat did not render the instrument invalid; and that the non-assistance or representation of Bustria by counsel did not render the document null and ineffective.[21] It was noted that a notarized document carried in its favor the presumption of regularity with respect to its due execution, and that there must be clear, convincing

21 | P a g e

and more than merely preponderant evidence to contradict the same. Accordingly, the Court of Appeals held that the RTC erred in refusing to admit the Deed of Sale, and that the document extinguished the right of Bustria’s heirs to repurchase the property.After the Court of Appeals denied Tigno’s Motion for Reconsideration,[22] the present petition was filed before this Court. Tigno imputes grave abuse of discretion and misappreciation of facts to the Court of Appeals when it admitted the Deed of Sale.  He also argues that the appellate court should have declared the Deed of Sale as a false, fraudulent and unreliable document not supported by any consideration at all.The general thrusts of the arguments posed by Tigno are factually based.  As such, they could normally lead to the dismissal of this Petition for Review. However, while this Court is not ordinarily a trier of facts,[23] factual review may be warranted in instances when the findings of the trial court and the intermediate appellate court are contrary to each other.[24] Moreover, petitioner raises a substantial argument regarding the capacity of the notary public, Judge Cariño, to notarize the document. The Court of Appeals was unfortunately silent on that matter, but this Court will take it up with definitiveness.The notarial certification of the Deed of Sale reads as follows:ACKNOWLEDGMENTREPUBLIC OF THE PHILIPPINES)PROVINCE OF PANGASINAN    ) S.S.MUNICIPALITY OF ALAMINOS    )SUBSCRIBED AND SWORN TO before me this 17th day of October 1985 at Alaminos, Pangasinan both parties known to me to be the same parties who executed the foregoing instrument.FRANKLIN CARIÑOEx-Officio Notary PublicJudge, M.T.C.Alaminos, PangasinanThere are palpable errors in this certification. Most glaringly, the document is certified by way of a jurat instead of an acknowledgment. Ajurat is a distinct creature from an acknowledgment. An acknowledgment is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed; while a jurat is that part of an affidavit where the officer certifies that the same was sworn before him.[25] Under Section 127 of the Land Registration Act,[26] which has been replicated in Section 112 of Presidential Decree No. 1529,[27] the Deed of Sale should have been acknowledged before a notary public.[28]

But there is an even more substantial defect in the notarization, one which is determinative of this petition. This pertains to the authority of Judge Franklin Cariño to notarize the Deed of Sale.It is undisputed that Franklin Cariño at the time of the notarization of the Deed of Sale, was a sitting judge of the Metropolitan Trial Court of Alaminos.[29] Petitioners point out, citing Tabao v. Asis,[30] that municipal judges may not undertake the preparation and acknowledgment of private documents, contracts, and other acts of conveyance which bear no relation to the performance of their functions as judges.[31] In response, respondents claim that the prohibition imposed on municipal court judges from

notarizing documents took effect only in December of 1989, or four years after the Deed of Sale was notarized by Cariño.[32]

Respondent’s contention is erroneous. Municipal Trial Court (MTC) and Municipal Circuit Trial Court (MCTC) judges are empowered to perform the functions of notaries public ex officio under Section 76 of Republic Act No. 296, as amended (otherwise known as the Judiciary Act of 1948) and Section 242 of the Revised Administrative Code.[33] However, as far back as 1980 in Borre v. Moya,[34] the Court explicitly declared that municipal court judges such as Cariño may notarize only documents connected with the exercise of their official duties.[35] TheDeed of Sale was not connected with any official duties of Judge Cariño, and there was no reason for him to notarize it. Our observations as to the errant judge in Borre are pertinent in this case, considering that Judge Cariño identified himself in the Deed of Sale as “Ex-Officio Notary Public, Judge, MTC:”[A notary ex officio] should not compete with private law practitioners or regular notaries in transacting legal conveyancing business.In the instant case, it was not proper that a city judge should notarize documents involving private transactions and sign the document in this wise: "GUMERSINDO ARCILLA, Notary Public Ex-Officio, City Judge" (p. 16, Rollo, Annex D of Complaint). In doing so, he obliterated the distinction between a regular notary and a notary ex officio.[36]

There are possible grounds for leniency in connection with this matter, as Supreme Court Circular No. I-90 permits notaries public ex officioto perform any act within the competency of a regular notary public provided that certification be made in the notarized documents attesting to the lack of any lawyer or notary public in such municipality or circuit. Indeed, it is only when there are no lawyers or notaries public that the exception applies.[37] The facts of this case do not warrant a relaxed attitude towards Judge Cariño’s improper notarial activity. There was no such certification in the Deed of Sale. Even if one was produced, we would be hard put to accept the veracity of its contents, considering that Alaminos, Pangasinan, now a city,[38] was even then not an isolated backwater town and had its fair share of practicing lawyers.There may be sufficient ground to call to task Judge Cariño, who ceased being a judge in 1986, for his improper notarial activity. Perhaps though, formal sanction may no longer be appropriate considering Judge Cariño’s advanced age, assuming he is still alive.[39] However, thisDecision should again serve as an affirmation of the rule prohibiting municipal judges from notarizing documents not connected with the exercise of their official duties, subject to the exceptions laid down in Circular No. 1-90.Most crucially for this case, we should deem the Deed of Sale as not having been notarized at all. The validity of a notarial certification necessarily derives from the authority of the notarial officer.  If the notary public does not have the capacity to notarize a document, but does so anyway, then the document should be treated as unnotarized.  The rule may strike as rather harsh, and perhaps may prove to be prejudicial to parties in good faith relying on the proferred authority of the notary public or the person pretending to be one. Still, to admit otherwise would render merely officious the elaborate process devised by this Court in order that a lawyer may receive a notarial commission. Without such a rule, the notarization of

22 | P a g e

a document by a duly appointed notary public will have the same legal effect as one accomplished by a non-lawyer engaged in pretense.The notarization of a document carries considerable legal effect.  Notarization of a private document converts such document into a public one, and renders it admissible in court without further proof of its authenticity.[40] Thus, notarization is not an empty routine; to the contrary, it engages public interest in a substantial degree and the protection of that interest requires preventing those who are not qualified or authorized to act as notaries public from imposing upon the public and the courts and administrative offices generally.[41]

On the other hand, what then is the effect on the Deed of Sale if it was not notarized? True enough, from a civil law perspective, the absence of  notarization of the Deed of Sale would not necessarily invalidate the transaction evidenced therein. Article 1358 of the Civil Code requires that the form of a contract that transmits or extinguishes real rights over immovable property should be in a public document, yet it is also an accepted  rule that the failure to observe the proper form does not render the transaction invalid. Thus, it has been uniformly held that the form required in Article 1358 is not essential to the validity or enforceability of the transaction, but required merely for convenience.[42] We have even affirmed that a sale of real property though not consigned in a public instrument or formal writing, is nevertheless valid and binding among the parties, for the time-honored rule is that even a verbal contract of sale or real estate produces legal effects between the parties.[43]

Still, the Court has to reckon with the implications of the lack of valid notarization of the Deed of Sale from the perspective of the law on evidence. After all, the case rests on the admissibility of the Deed of Sale.Clearly, the presumption of regularity relied upon by the Court of Appeals no longer holds true since the Deed of Sale is not a notarized document. Its proper probative value is governed by the Rules of Court. Section 19, Rule 132 states:Section 19. Classes of documents.—For the purpose of their presentation in evidence, documents are either public or private.Public documents are:(a)    The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country;(b)    Documents acknowledged before a notary public except last wills and testaments; and(c)    Public records, kept in the Philippines, of private documents required by law to be entered therein.All other writings are private. (Emphasis supplied.)The Deed of Sale, invalidly notarized as it was, does not fall under the enumeration of public documents; hence, it must be considered a private document. The nullity of the alleged or attempted notarization performed by Judge Cariño is sufficient to exclude the document in question from the class of public documents.  Even assuming that the Deed of Sale was validly notarized, it would still be classified as a private document, since it was not properly acknowledged, but merely subscribed and sworn to by way of jurat.

Being a private document, the Deed of Sale is now subject to the requirement of proof under Section 20, Rule 132, which states:Section 20. Proof of private document.—Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either:(a)    By anyone who saw the document executed or written; or(b)    By evidence of the genuineness of the signature or handwriting of the maker.Any other private document need only be identified as that which is claimed to be.The Deed of Sale was offered in evidence as authentic by the Aquinos, who likewise insist that its enforceability militates against Tigno’s claim.  Correspondingly, the burden falls upon the Aquinos to prove its authenticity and due execution.  The Court of Appeals clearly erred in not appreciating the Deed of Sale as a private document and in applying the presumption of regularity that attaches only to duly notarized documents, as distinguished from private documents.Did the RTC err then in refusing to admit the Deed of Sale? We hold that it did not. Section 20, Rule 132 provides ample discretion on the trier of fact before it may choose to receive the private document in evidence. The RTC wisely refused to admit the Deed of Sale, taking great lengths as it did to explain its doubts as to its veracity. The RTC was not convinced of the proffered proof by the Aquinos, and the exercise of its sound discretion as the primary trier of fact warrants due respect.The most telling observation of the RTC relates to the fact that for the very first time respondents alleged the existence of the Deed of Salewhen they filed their answer to petitioner’s current action to revive judgment.[44] Prior to the initiation of the present action, Tigno had tried to operationalize and implement the Compromise Agreement through two judicial means: consignation and execution of judgment. The Aquinos duly opposed these prior attempts of the petitioner to exercise the right to repurchase, but they did not raise then the claim that such right to repurchase was already extinguished by the Deed of Sale. Tigno attempted to exercise the right to repurchase only a few years after the execution of the Deed of Sale to which respondents themselves were signatories. Thus, it is incredulous that the Aquinos did not invoke theDeed of Sale when they opposed in court petitioner’s successive attempts at consignation and execution of judgment. The Deed of Sale, if in existence and valid, would have already precluded Tigno’s causes of action for either consignation or execution of judgment. The only believable conclusion, as drawn by the RTC, was that the Deed of Sale had yet to be created when petitioner moved in 1990 for consignation and execution of judgment—an existential anomaly if we were to agree with the respondents that such document had been signed and notarized back in 1985.The dubiousness in origin of the Deed of Sale is not alleviated by the other observations of the RTC. It also pointed to certain incredible aspects in the Aquinos’ tale of events.  It noted that no receipts were ever presented by the respondents to evidence actual payment of consideration by them to Bustria, despite the allegation of the respondents that the amount was covered by seven (7) receipts.[45] The Aquinos claimed that Bustria kept all

23 | P a g e

the receipts, an assertion which the RTC found as unbelievable, citing ordinary human nature to ask for receipts for significant amounts given and to keep the same.[46] In itself, the absence of receipts, or any proof of consideration, would not be conclusive since consideration is always presumed.  However, given the totality of the circumstances surrounding this case, the absence of such proof further militates against the claims of the Aquinos.We can appreciate in a similar vein the observation of the Court of Appeals that Bustria did not bother to seek his lawyer’s assistance as regards the execution of the Deed of Sale, considering that the subject property had previously been fiercely litigated. Although the Court of Appeals was correct in ruling that the document would not be rendered null or ineffective due to the lack of assistance of counsel, the implausibility of the scenario strikes as odd and therefore reinforces the version found by the RTC as credible.The Court likewise has its own observations on the record that affirm the doubts raised by the Court of Appeals.  Isidro Bustria, who would die in 1986, was already ninety-three (93) years old when he allegedly signed the Deed of Sale in 1985. Still, the Aquinos asserted before the RTC that Bustria traveled unaccompanied from his home in Dasol, Pangasinan, passing through two towns to Alaminos, to execute the Deed of Sale. Without discrediting the accomplishments of nonagenarians capable of great physical feats, it should be acknowledged as a matter of general assumption that persons of Bustria’s age are typically sedentary and rarely so foolhardy as to insist on traveling significant distances alone.Also of note is the fact that there are glaring differences as to the alleged signature of Bustria on the Deed of Sale and as it otherwise appears on the judicial record.  Bustria’s signature in the 1981 Compromise Agreement is noticeably shaky which is not surprising, considering that it was subscribed when Bustria was eighty-nine (89) years old. However, Bustria’s signature on the Deed of Sale, which if genuine was affixed when he was already ninety-three (93) years old, is remarkably steady in its strokes. There are also other evident differences between Bustria’s signature on the Deed of Sale and on other documents on the record.Admittedly, these doubts cast above arise in chief from an appreciation of circumstantial evidence.  These have to be weighed against the findings of the Court of Appeals that the fact that Bustria signed the Deed of Sale was established by the respective testimonies of witnesses De Francia and Judge Cariño. In its own appreciation of these testimonies, the RTC alluded to notable inconsistencies in their testimonies.  As a final measure of analysis, the Court shall now examine whether the appellate court was in error in reversing the conclusion of the RTC on these testimonies.The inconsistencies cited by the RTC were that De Francia testified that Judge Cariño himself prepared and typed the Deed of Sale in his office, where the document was signed,[47] while Judge Cariño testified that he did not type the Deed of Sale since it was already prepared when the parties arrived at his office for the signing.[48] On this point, the Court of Appeals stated with utter nonchalance that a perusal of the record revealed no material or substantial inconsistencies between the testimonies of Judge Cariño and De Francia.

Strangely, the appellate court made no comment as to the inconsistency pointed out by the RTC as to who prepared the Deed of Sale. If the only point of consideration was the due execution of the Deed of Sale, then the Court of Appeals should have properly come out with its finding. Other variances aside, there are no contradictions in the testimonies of Judge Cariño and De Francia on the question of whether or not Bustria signed the Deed of Sale.However, as earlier established, the Deed of Sale is a private document. Thus, not only the due execution of the document must be proven but also its authenticity. This factor was not duly considered by the Court of Appeals. The testimonies of Judge Cariño and De Francia now become material not only to establish due execution, but also the authenticity of the Deed of Sale. And on this point, the inconsistencies pointed out by the RTC become crucial.The matter of authenticity of the Deed of Sale being disputed, the identity of the progenitor of this all-important document is a material evidentiary point. It is disconcerting that the very two witnesses of the respondent offered to prove the Deed of Sale, flatly contradict each other on the basis of their own personal and sensory knowledge. Worse, the purported author of the Deed of Sale disavowed having drafted the document, notwithstanding the contrary testimony grounded on personal knowledge by the documentary witness.Establishing the identity of the person who wrote the Deed of Sale would not ordinarily be necessary to establish the validity of the transaction it covers. However, since it is the authenticity of the document itself that is disputed, then the opposing testimonies on that point by the material witnesses properly raises questions about the due execution of the document itself. The inconsistencies in the testimonies of Judge Cariño and De Francia are irreconcilable. It is not possible to affirm the testimony of either without denigrating the competence and credibility of the other as a witness. If Judge Cariño was truthful in testifying that he did not write the Deed of Sale, then doubt can be cast as to the reliability of the notarial witness De Francia. It takes a leap of imagination, a high level of gumption, and perverse deliberation for one to erroneously assert, under oath and with particularities, that a person drafted a particular document in his presence.However, if we were to instead believe De Francia, then the integrity of the notary public, Judge Cariño, would be obviously compromised.  Assuming that Judge Cariño had indeed authored the Deed of Sale, it would indeed be odd that he would not remember having written the document himself yet sufficiently recall notarizing the same. If his testimony as to authorship of the document is deemed as dubious, then there is all the reason to make a similar assumption as to his testimony on the notarization of the Deed of Sale.These inconsistencies are not of consequence because there is need to indubitably establish the author of the Deed of Sale. They are important because they cast doubt on the credibility of those witnesses of the Aquinos, presented as they were to attest to the due execution and authenticity of the Deed of Sale. The Court of Appeals was clearly in error in peremptorily disregarding this observation of the RTC.

24 | P a g e

As a result, we are less willing than the Court of Appeals to impute conclusive value to the testimonies of de Francia and Judge Cariño. The totality of the picture leads us to agree with the trial court that the Deed of Sale is ineluctably dubious in origin and in execution. The Court deems as correct the refusal of the RTC to admit the Deed of Sale, since its due execution and authenticity have not been proven. The evidence pointing to the non-existence of such a transaction is so clear and convincing that it is sufficient even to rebut the typical presumption of regularity arising from the due execution of notarial documents.  However, for the reasons stated earlier, the Deed of Sale is ineluctably an unnotarized document. And the lower court had more than sufficient basis to conclude that it is a spurious document.Since the validity of the Deed of Sale has been successfully assailed, Tigno’s right to repurchase was not extinguished at the time of the filing of the Petition for revival of judgment, as correctly concluded by the RTC. The Court of Appeals being in error when it concluded otherwise, the reinstatement of the RTC Decision is warranted.WHEREFORE, the Petition is GRANTED.  The assailed Decision dated 23 December 1996 and Resolution dated 9 June 1997 of the Court of Appeals in CA-G.R. CV No. 49879 is REVERSED, and the Decision dated 18 August 1994 of the Regional Trial Court of Alaminos, Pangasinan, Branch 55, in Civil Case No. A-1918 is REINSTATED. Costs against respondents.SO ORDERED._______________PAN PACIFIC INDUSTRIAL G.R. No.  125283SALES CO., INC.,                                                          Petitioner,                  Present:                                                                       QUISUMBING, J.,                                            Chairman,             - versus  -                                         CARPIO,                                                                      CARPIO-MORALES, and             TINGA,  JJ.                      COURT OF APPEALS and    NICOLAS CAPISTRANO,               Promulgated:                    Respondents.                                                                       February 10, 2006 x---------------------------------------------------------------------------x  D E C I S I O N TINGA, J.:           Petitioner Pan Pacific Industrial Sales Co., Inc. (Pan Pacific) filed the instant Petition for Review on Certiorari[1] assailing theDecision[2] dated 4 June 1996 of the Court of Appeals Fourteenth Division in C.A. G.R. No. CV-41112. The challenged Decisionaffirmed in toto the Decision[3]  dated 24

April 1992 of the Regional Trial Court (RTC) of Manila, Branch 18 in Civil Case No. 88-46720.            The case arose when on 22 December 1988, private respondent Nicolas Capistrano (Capistrano) filed an Amended Complaint[4] before the RTC of Manila against Severo C. Cruz III (Cruz), his spouse Lourdes Yap Miranda, and Atty. Alicia Guanzon,[5] pleading two causes of action.[6]

           The first cause of action is for the nullification, or alternatively, for the “rescission,” of a Deed of Absolute Sale[7] covering a parcel of land  that Capistrano owned, located at 1821 (Int.), Otis Street (now Paz Guanzon Street), Paco, Manila, and covered by Transfer Certificate of Title  (TCT) No. 143599 to Cruz.[8] This is the subject lot. Capistrano denied having executed the deed.           The second cause of action is for the rescission of another agreement with an alternative prayer for specific performance. Capistrano alleged that he agreed to sell another parcel of land in the same vicinity to Cruz. According to Capistrano, Cruz only paidP100,000.00 of the stipulated purchase price, thereby leaving P250,000.00 still unpaid.[9]

           The operative facts follow.           On 10 September 1982, Capistrano executed a Special Power of Attorney[10] authorizing Cruz to mortgage the subject lot in favor of Associated Bank (the Bank) as security for the latter’s loan accommodation.[11]

 Shortly, by virtue of the Special Power of Attorney, Cruz obtained a loan in the amount of P500,000.00 from the Bank. Thus, he executed a Real Estate Mortgage[12] over the subject lot in favor of the Bank.[13]

           Capistrano and Cruz then executed a letter-agreement dated 23 September 1982 whereby Cruz agreed to buy the subject lot for the price of P350,000.00, of which P200,000.00 would be paid out of the loan secured by Cruz, and the balance of P150,000.00 in eight (8) quarterly payments of P18,750.00 within two (2) years from 30 October 1982, without need of demand and with interest at 18% in case of default.[14]

                   On 15 March 1983, Capistrano executed the Deed of Absolute Sale[15] over the subject lot in favor of Cruz. Two (2) days later, on 17 March 1983, Notary Public Vicente J. Benedicto (Benedicto) notarized the deed. However, it was earlier or on 9 March 1983 that Capistrano’s wife, Josefa Borromeo Capistrano, signed the Marital Consent[16] evidencing her conformity in advance to the sale. The Marital Consent was also sworn to before Benedicto.           Following the execution of the deed of sale, Cruz continued payments to Capistrano for the subject lot. Sometime in October 1985, Capistrano delivered to Cruz a Statement of Account[17] signed by

25 | P a g e

Capistrano, showing that as of 30 October 1985, Cruz’s balance stood at P19,561.00 as principal, and P3,520.98 as interest, or a total of P23,081.98.           Thus, in May 1987, with the mortgage on the subject lot then being in danger of foreclosure by the Bank, Cruz filed a case with the RTC of Manila, Branch 11, docketed as Civil Case No. 87-40647, to enjoin the foreclosure. Cruz impleaded Capistrano and his spouse Josefa Borromeo Capistrano as defendants, the title to the subject lot not having been transferred yet to his name.[18]

                   Cruz also devised a way to save the subject lot from foreclosure by seeking a buyer for it and eventually arranging for the buyer to pay the mortgage debt. Towards this end, Cruz succeeded in engaging Pan Pacific. Thus, on 22 September 1988, Pan Pacific paid off Cruz’s debt in the amount of P1,180,000.00.[19] Consequently, on 23 September

26 | P a g e

 1988, the Bank executed a Cancellation of Real Estate Mortgage.[20] On even date, Cruz executed a Deed of Absolute Sale[21] over the subject lot in favor of Pan Pacific, attaching thereto the previous Deed of Absolute Sale executed by Capistrano in favor of Cruz.           Surprisingly, on 20 October 1988, Capistrano filed a Revocation of Special Power of Attorney[22] with the Register of Deeds of Manila. Less than a week later, Capistrano sent the Register of Deeds another letter informing said officer of his having come to know of the sale of the subject lot by Cruz to Pan Pacific and requesting the officer to withhold any action on the transaction.[23]

           Before long, in November 1988, Capistrano filed the precursory complaint before the Manila RTC in Civil Case No. 88-46720.                   Pan Pacific, which bought the subject lot from the Cruz spouses, was allowed to intervene in the proceedings and joined Cruz,et al. in resisting the complaint insofar as the first cause of action on the subject lot is concerned.[24]

           Then on 24 April 1992, a Decision was rendered by the trial court in favor of Capistrano on both causes of action, the dispositive portion of which reads as follows:             WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendant, Severo E. (sic) Cruz III, his spouse, Lourdes Miranda Cruz, and the intervenor, Pan Pacific Industrial Sales Co., Inc., as follows:             1. Declaring the Letter-Agreement, dated September 23, 1982, Exhibit “C”, as resolved and/or rescinded;             2. Declaring both the Deed of Absolute Sale, Exhibit “H”, and the document entitled, “Marital Consent”, Exhibit “K”, null and void;             3. Declaring the Deed of Absolute Sale executed by the spouses Severo C. Cruz, III and Lourdes Miranda Cruz in favor of the intervenor, Pan Pacific Industrial Sales, Co., Inc., Exhibit “8”, null and void;             4. Making the writ of preliminary injunction issued by this Court on November 23, 1988, permanent;             5. Ordering the intervenor, thru its legal counsel and corporate secretary, Atty. Senen S. Burgos, who has possession of the owner’s copy of TCT No. 143599 of the Register of Deeds of Manila, in the name of the plaintiff, to surrender the same to this Court within ten days from finality of the decision for turn over to the plaintiff;             6. Ordering Defendant Register of Deeds of Manila to reject and not give due course to the documents submitted to it, which have for their

purpose the transfer of the real estate property covered by TCT No. 143599 from the name of the plaintiff to Defendant Cruz and/or to the intervenor; and             7.  Ordering the spouses Severo C. Cruz, III and Lourdes Miranda Cruz to pay the plaintiff the sum of P69,561.00 as net amount due to the latter as per the computation in the end-part of this decision.             The counterclaims of both Severo C. Cruz, III and spouse, and of the intervenor, Pan Pacific Industrial Sales Co., Inc., are both dismissed, for lack of merit.             Double costs against the defendants-Cruz spouses.             SO ORDERED.[25]

             To arrive at the conclusion that the first Deed of Absolute Sale and the Marital Consent are spurious, the trial court mainly relied on Capistrano’s disavowal of his signature and that of his wife’s, together with extrinsic factors which in its opinion evinced the spuriousness.            Pan Pacific and the Cruz spouses interposed separate appeals to the Court of Appeals, their common concern being the trial court’s finding that the Deed of Absolute Sale and the Marital Consent were spurious.[26]

           In assailing this finding, Pan Pacific and the Cruz spouses contended that Capistrano failed to present clear and convincing evidence to overturn the presumption of regularity of public documents like the documents in question.[27]

           The Court of Appeals affirmed the RTC Decision. Concerning the subject lot, it held that while a notarial document cannot be disproved by the mere denial of the signer, the denial in this case should be taken together with the other circumstances of the case which in sum constitute clear and convincing evidence sufficient to overcome the presumption of regularity of the documents.[28]

           The Cruz spouses did not elevate the Court of Appeals’ Decision to this Court. Thus, the RTC Decision became final as to them.           Pan Pacific, however, filed the instant Petition solely concerning the first cause of action in the Amended Complaint. Pan Pacific contends that the genuineness and due execution of the Deed of Absolute Sale and Marital Consent cannot be overridden by the self-serving testimony of Capistrano. It stresses that the trial court cannot rely on irrelevant extrinsic factors to rule against the genuineness of the deed.

27 | P a g e

[29] Finally, it points out that Capistrano cannot contest the sale of the subject lot to Cruz, as the sale had already been consummated.[30]

           For his part, Capistrano posits in his Memorandum[31] that Pan Pacific is not an innocent purchaser for value and in good faith as Cruz was never the registered owner of the subject lot. Pan Pacific was bound at its peril to investigate the right of Cruz to transfer the property to it. Moreover, Capistrano asserts that the legal presumption of regularity of public documents does not obtain in this case as the documents in question were not properly notarized. He adds that the parties never appeared before the notary public as in fact the deed had only been delivered by Capistrano to the house of Cruz’s mother.           Furthermore, Capistrano maintains that his spouse’s signature on the Marital Consent is a forgery as it was virtually impossible for her to have signed the same. Lastly, Capistrano disputes Cruz’s assertion that the sale had been consummated, pointing out that the Amended Complaint consisted of two (2) causes of action pertaining to two (2) separate lots, and Cruz had only paidP100,000.00 of the total price of the lot subject of the second cause of action.           The petition is imbued with merit.           Pan Pacific disputes the common conclusion reached by the courts below that the presumption of regularity of the Deed of Absolute Sale and the Marital Consent, which in its estimation are both public documents, has been rebutted by Capistrano’s countervailing evidence. The correctness of the conclusions on the alleged spuriousness of the documents in question drawn by the courts below from the facts on record is before this Court. The issue is a question of law cognizable by the Court.[32]

           Deeply embedded in our jurisprudence is the rule that notarial documents celebrated with all the legal requisites under the safeguard of a notarial certificate is evidence of a high character and to overcome its recitals, it is incumbent upon the party challenging it to prove his claim with clear, convincing and more than merely preponderant evidence.[33]

            A notarized document carries the evidentiary weight conferred upon it with respect to its due execution, and it has in its favor the presumption of regularity which may only be rebutted by evidence so clear, strong and convincing as to exclude all controversy as to the falsity of the certificate. Absent such, the presumption must be upheld. The burden of proof to overcome the presumption of due execution of a notarial document lies on the one contesting the same. Furthermore, an allegation of forgery must be proved by clear and convincing evidence, and whoever alleges it has the burden of proving the same.[34]

           Evidently, as he impugns the genuineness of the documents, Capistrano has the burden of making out a clear-cut case that the documents are bogus. The courts below both concluded that Capistrano

had  discharged this burden. However, this Court does not share the conclusion. Indeed, Capistrano failed to present evidence of the forgery that is enough to overcome the presumption of authenticity.           To support the allegation of the spuriousness of his signature on the Deed of Absolute Sale and that of his wife on the Marital Consent, Capistrano relied heavily on his bare denial, at the same time taking sanctuary behind other circumstances which supposedly cast doubt on the  authenticity of the documents. Capistrano did not bother to present corroborating witnesses much less an independent expert witness who could declare with authority and objectivity that the challenged signatures are forged. It befuddles the Court why both the courts below did not find this irregular considering that the Court has previously declared in Sy Tiangco v. Pablo and Apao,,[35] “that the execution of a document that has been ratified before a notary public cannot be disproved by the mere denial of the alleged signer.”           The case of Chilianchin v. Coquinco[36] also finds application in this regard wherein we stated that:                   As the lower court correctly said, the plaintiff did not even present a sample of his authentic signature to support his contention that it is not his the (sic) signature appearing in said document. He did not call a handwriting expert to prove his assertion. His attorney, at the beginning of the trial, made it of record that if the defendant present an expert in hand-writing to show that the signature in question is genuine, the plaintiff will also present an expert to the contrary, as if it were incumbent upon the defendant to show that the signature of the plaintiff in Exhibit A is genuine . . . .[37]

              Corollarily, he who disavows the authenticity of his signature on a public document bears the responsibility to present evidence to that effect. Mere disclaimer is not sufficient. At the very least, he should present corroborating witnesses to prove his assertion. At best, he should present an expert witness.           On the other hand, the Court cannot understand why an unfavorable inference arose not from Capistrano’s but from Cruz’s failure to have the documents examined by an expert witness of the National Bureau Investigation (NBI) and to present the notary public as witness. Specifically, the courts below took Cruz’s inability to obtain the NBI examination of the documents as he had somehow undertaken as an indication that the documents are counterfeit.[38]

           The courts below may have forgotten that on Capistrano lies the burden to prove with clear and convincing evidence that the notarized documents are spurious. Nothing in law or jurisprudence reposes on Cruz the obligation to prove that the documents are genuine and duly executed.

28 | P a g e

Hence it is not incumbent upon Cruz to call the notary public or an expert witness. In contrast, Capistrano should have called the expert witness, the notary public himself or the witnesses to the document to prove his contention that he never signed the deed of sale, that its subscribing witnesses never saw him sign the same, and that he never appeared before the notary public before whom the acknowledgment was made.             In fact, there is no evidence that the notarization of the documents did not take place. All that Capistrano could say on this matter was that he had not seen Benedicto, the notary public.[39] The assertion that the parties to the deed never appeared before the notary public is not supported by evidence either. The courts below drew an inference to that effect from Cruz’s testimony that the deed of sale was dropped or delivered to his mother’s house.[40] That is not a reasonable deduction to make as it is plainly conjectural. No conclusion can be derived therefrom which could destroy the genuineness of the deed. The testimony means what it declares: that  the copy of the deed was dropped at the house of Cruz’s mother. That is all.           Nor can the Court lend credence to the thinking of the courts below that since Cruz had a balance of P132,061.00 owing to Capistrano as of the date of the deed of sale, the latter could not have possibly executed the deed. This is plain guesswork. From the existence of Cruz’s outstanding balance, the non-existence of the deed of sale does not necessarily follow.           Indeed, a vendor may agree to a deed of absolute sale even before full payment of the purchase price.  Article 1478 of the Civil Code states that “the parties may stipulate that ownership in the thing shall not pass to the purchaser until he has fully paid the price.” A sensu contrario, the parties may likewise stipulate that the ownership of the property may pass even if the purchaser has not fully paid the price.           The courts below also assigned an adverse connotation to Cruz’s impleading of the Capistrano spouses as party-defendants in the action against the Bank to enjoin the foreclosure of the mortgage on the subject lot. Cruz’s move is congruent with both his strong desire to protect his interest in the subject lot and the reality that there was an existing deed of sale in his favor. Precisely, his interest in the lot is borne out and had arisen from the deed of sale. As purchaser of the lot, he had to avert the foreclosure of the mortgage thereon. And to ensure against the dismissal of the action for failure to join a real party-in-interest, he had to implead Capistrano in whose name the title to the subject lot was registered still.                   Apart from Capistrano’s abject failure to overcome the presumption of regularity and genuineness with which the Deed of Absolute Sale is impressed as a public document, Capistrano’s cause is eviscerated by his own acts in writing before and after the execution of the deed. Said written

acts constitute indelible recognition of the existence and genuineness of the Deed of Absolute Sale.           First is the letter-agreement[41] dated 23 September 1982 made and signed by Capistrano in favor of Cruz, which the latter also signed subsequently, stating that Cruz will, as he did, purchase the subject lot for P350,000.00 to be paid according to the terms provided therein.           Second is the Statement of Account[42] signed by Capistrano, which he delivered to Cruz, showing that as of 30 October 1985, Cruz’s balance of the stipulated purchase price consisted of P19,561.00 as principal and P3,520.98 as interest, or a total ofP23,081.98.           Third is Capistrano’s Amended Complaint itself which illustrates his own manifest uncertainty as to the relief he was seeking in court. He demanded that the Deed of Absolute Sale be nullified yet he prayed in the same breath for the “rescission” of the same[43]—evidently, a self-defeating recognition of the contract.  In asking for “rescission,” Capistrano obviously was invoking Article 1191 of the Civil Code which provides that the “power to rescind,” which really means to resolve or cancel, is implied in reciprocal obligations “in case one of the obligors should not comply with what is incumbent upon him.”  When a party asks for the resolution or cancellation of a contract it is implied that he recognizes its existence.  A non-existent contract need not be cancelled.           These are unmistakable written admissions of  Capistrano that he really intended to sell the subject lot to Cruz and that he received payments for it from the latter as late as the year 1985. It is thus a little baffling why in 1988, he decided to disown the Deed of Absolute Sale. The most plausible explanation for his sudden change of mind would be his belated realization that he parted with the subject lot for too small an amount (P350,000.00), compared to the price pegged by Cruz (P1,800,000.00) in the sale to Pan Pacific.           Now, to the Marital Consent.  The fact that the document contains a jurat, not an acknowledgment, should not affect its genuineness or that of the related document of conveyance itself, the Deed of Absolute Sale. In this instance, a jurat suffices as the document only embodies the manifestation of the spouse’s consent,[44] a mere appendage to the main document.           The use of a jurat, instead of an acknowledgement does not elevate the Marital Consent to the level of a public document but instead consigns it to the status of a private writing.[45] The lack of acknowledgment, however, does not render a deed invalid. The necessity of a public document for contracts which transmit or extinguish real rights over immovable property, as mandated by Article 1358 of the Civil Code, is only for convenience; it is not essential for validity or enforceability.[46]

  

29 | P a g e

             From the perspective of the law on evidence, however, the presumption of regularity does not hold true with respect to theMarital Consent which is a private writing. It is subject to the requirement of proof under Section 20, Rule 132 of the Rules of Court which states:             Section 20. Proof of private document.- Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either: (a) By anyone who saw the document executed or written; or (b) By evidence of the genuineness of the signature        or          handwriting of the maker. Any other private document need only be identified       as that which is claimed to be.            The requirement of proof of the authenticity of the Marital Consent was adequately met, in this case, through the testimony of Cruz to the effect that, together with the other witnesses to the document, he was present when Capistrano’s wife affixed her signature thereon before notary public Benedicto.[47] Viewed against this positive declaration, Capistrano’s negative and self-serving assertions that his wife’s signature on the document was forged because “(i)t is too beautiful” and that his wife could not have executed the Marital Consent because it was executed on her natal day and she was somewhere else, crumble and become unworthy of belief.           That the Marital Consent was executed prior to the Deed of Absolute Sale also does not indicate that it is phoney. A fair assumption is that it was executed in anticipation of the Deed of Absolute Sale which was accomplished a scant six (6) days later.                           With respect to whatever balance Cruz may still owe to Capistrano, the Court believes that this is not a concern of Pan Pacific as the latter is not a party to the Deed of Absolute Sale between Capistrano and Cruz. But of course, Pan Pacific should enjoy full entitlement to the subject lot as it was sold to him by Cruz who earlier had acquired title thereto absolutely and unconditionally by virtue of the Deed of Absolute Sale.  Otherwise laid down, Cruz had the right to sell the subject lot to Pan Pacific in 1988, as he in fact did. Thus, the  question of whether or not Pan Pacific is a purchaser in good faith should be deemed irrelevant.           WHEREFORE, the Petition is GRANTED. The Decision dated 4 June 1996 of the Court of Appeals in CA-G.R. CV No. 41112 is  REVERSED and SET ASIDE. Respondent Nicolas Capistrano is ordered to surrender the

owner’s duplicate certificate of Transfer of Certificate of Title No. 143599 to the Register of Deeds of Manila to enable the issuance of a new title over the subject lot in the name of petitioner Pan Pacific Industrial Sales, Inc.  Costs against respondent Nicolas Capistrano. SO ORDERED._________________