Heirs of Pedro Pasag vs. Parocha 522 SCRA 410

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410 SUPREME COURT REPORTS ANNOTATED

Heirs of Pedro Pasag vs. Parocha

G.R. No. 155483. April 27, 2007.*

HEIRS OF PEDRO PASAG, represented by EUFREMIO

PASAG; HEIRS OF MARIA PASAG, represented by

EPIFANIA LUMAGUI; HEIRS OF JUANITA PASAG,

represented by ASUNCION ORTIOLA; HEIRS OF ISIDRO

PASAG, represented by VIRGINIA P. MENDOZA; HEIRS

OF BASILIO PASAG, represented by MILAGROSA P.

NABOR; and HEIRS OF FORTUNATA PASAG,

represented by FLORENTINA S. MEMBRERE,

petitioners, vs. Sps. LORENZO and FLORENTINA

PAROCHA, PRISCILLA P. ABELLERA, and MARIA

VILORIA PASAG, respondents.

Civil Procedure; Evidence; Formal Offer; Formal offer of

evidence is necessary because judges are mandated to rest their

findings of facts and their judgment only and strictly upon the

evidence offered by the parties at the trial.—The Rules of Court

provides that “the court shall consider no evidence which has not

been formally offered.” A formal offer is necessary because judges

are mandated to rest their findings of facts and their judgment

only and strictly upon the evidence offered by the parties at the

trial. Its function is to enable the trial judge to know the purpose

or purposes for which the proponent is presenting the evidence.

On the other hand, this allows opposing parties to examine the

evidence and object to its admissibility. Moreover, it facilitatesreview as the appellate court will not be required to review

documents not previously scrutinized by the trial court.

Same; Same; Same; The formal offer of one’s evidence is

deemed waived after failing to submit it within a considerable

period of time.—Strict adherence to the said rule is not a trivial

matter. The Court in Constantino v. Court of Appeals, 264 SCRA

59 (1996), ruled that the formal offer of one’s evidence is deemed

waived after failing to submit it within a considerable period of



time. It explained that the court cannot admit an offer of evidence

made after a lapse of three (3) months because to do so would

“condone an inexcusable laxity if not non-compliance with a court

order which, in effect,

_______________

* SECOND DIVISION.

411

VOL. 522, APRIL 27, 2007 411


would encourage needless delays and derail the speedy

administration of justice.”

Same; Same; Same; The party who terminated the

presentation of evidence must make an oral offer of evidence on the

very day the party presented the last witness.—The pre-trial

guidelines and Sec. 35 of Rule 132 jointly considered, it is made

clear that the party who terminated the presentation of evidence

must make an oral offer of evidence on the very day the party

presented the last witness. Otherwise, the court may consider the

party’s documentary or object evidence waived. While Sec. 35 of

Rule 132 says that the trial court may allow the offer to be done in

writing, this can only be tolerated in extreme cases where the

object evidence or documents are large in number––say from 100

and above, and only where there is unusual difficulty in preparing

the offer.

Same; Same; Same; Documents which may have been

identified and marked as exhibits during pre-trial or trial butwhich were not formally offered in evidence cannot in any manner

be treated as evidence.—The trial court is bound to consider only

the testimonial evidence presented and exclude the documents

not offered. Documents which may have been identified and

marked as exhibits during pre-trial or trial but which were not

formally offered in evidence cannot in any manner be treated as

evidence. Neither can such unrecognized proof be assigned any

evidentiary weight and value. It must be stressed that there is a



significant distinction between identification of documentary

evidence and its formal offer. The former is done in the course of

the pre-trial, and trial is accompanied by the marking of the

evidence as an exhibit; while the latter is done only when the

party rests its case. The mere fact that a particular document is

identified and marked as an exhibit does not mean that it has

already been offered as part of the evidence. It must be

emphasized that any evidence which a party desires to submit forthe consideration of the court must formally be offered by the

party; otherwise, it is excluded and rejected.

Same; Same; Demurrer to Evidence; A demurrer to evidence is

an instrument for the expeditious termination of an action thus,

abbreviating judicial proceedings; In passing upon the sufficiency

of the evidence raised in a demurrer, the court is merely required

to ascertain whether there is competent or sufficient proof to

sustain the

412



indictment or to support a verdict of guilt.—A demurrer to

evidence is an instrument for the expeditious termination of an

action; thus, abbreviating judicial proceedings. It is defined as “an

objection or exception by one of the parties in an action at law, to

the effect that the evidence which his adversary produced is

insufficient in point of law (whether true or not) to make out his

case or sustain the issue.” The demurrer challenges the

sufficiency of the plaintiff’s evidence to sustain a verdict. In

passing upon the sufficiency of the evidence raised in a demurrer,

the court is merely required to ascertain whether there is

competent or sufficient proof to sustain the indictment or tosupport a verdict of guilt.

PETITION for review on certiorari of the decision and

resolution of the Court of Appeals.

The facts are stated in the opinion of the Court.

Felipe V. Abenojar for petitioners.

David Briones for respondents.

VELASCO, JR., J.:



The rule on formal offer of evidence is not a trivial matter.

Failure to make a formal offer within a considerable period

of time shall be deemed a waiver to submit it.

Consequently, as in this case, any evidence that has not

been offered shall be excluded and rejected.

The Case

The present Petition for Review on Certiorari under Rule

45 seeks the annulment of the February 15, 2002 Decision1

of the Court of Appeals (CA) in CA-G.R. CV No. 68544, and

its September 6, 2002 Resolution2

denying petitioners’

Motion for

_______________

1 Rollo, pp. 23-31. The Decision was penned by Associate Justice

Delilah Vidallon-Magtolis and concurred in by Associate Justices Candido

Rivera and Juan Enriquez, Jr.

2 Id., at p. 33.

413

VOL. 522, APRIL 27, 2007 413


Reconsideration. In effect, petitioners entreat this Court to

nullify the February 24, 2000 Resolution of the Urdaneta

City Regional Trial Court (RTC), Branch 45 in Civil Case

No. U5743, granting the demurrer to evidence filed by

respondents and dismissing their Complaint, which ruling

was upheld by the CA.

The Facts

The instant case arose from a Complaint for Declaration of

Nullity of Documents and Titles, Recovery of Possession

and Ownership, Reconveyance, Partition and Damages

filed by petitioners at the Urdaneta City RTC of

Pangasinan against respondents. Petitioners alleged a

share over three (3) properties owned by respondents,

which formed part of the estate of petitioners’ deceased

grandparents, Benito and Florentina Pasag. They averred

that Benito and Florentina Pasag died intestate, thus,



leaving behind all their properties to their eight (8)

children––Pedro, Isidro, Basilio, Severino, Bonifacio,

Maria, Juanita, and Fortunata. However, Severino, the

predecessor of respondents, claimed in an affidavit of

selfadjudication that he is the sole, legal, and compulsory

heir of Benito and Florentina Pasag. Consequently, he was

able to appropriate to himself the properties covered by

Original Certificates of Title (OCT) Nos. 2983 and 1887.Thereafter, Severino executed a deed of absolute sale over

the said properties in favor of his daughter, respondent

Florentina Parocha. Moreover, petitioners alleged that

Severino used the same affidavit of self-adjudication to

secure a free patent over an agricultural land that had long

been under the possession of Benito and Florentina Pasag.

In denying the material allegations in the Complaint,

respondents averred in their Answer that the properties

left behind by the spouses Benito and Florentina Pasag had

already been partitioned among their eight (8) survivingchildren. They claimed that the parcels of land covered by

OCT Nos. 2983 and 1887 are Bonifacio’s share of which he

later on

414



renounced in a Quitclaim Deed in favor of his brother,

Severino. As regards the parcel of land covered by OCT No.

P20607, respondents asserted that the said land had been

in Severino’s possession and occupation since 1940, thus,

giving him the right to apply for and be granted a free

patent over it. Having complied with the requirements of

law, Severino’s title had now become indefeasible.

The trial of the case commenced on March 19, 1996. On

March 9, 1999, petitioners rested their case and weregranted ten (10) days within which to submit their formal

offer of documentary exhibits. However, petitioners failed

to submit the said pleading within the required period.

On April 19, 1999, petitioners asked the trial court to

give them until May 11, 1999 to submit their offer of

evidence; and it subsequently granted their motion.

However, on May 11, 1999, they again failed to submit

their offer of evidence and moved for another extension of

five (5) days.



Unfortunately, petitioners still failed to submit their

formal offer of evidence within the extended period.

Consequently, in its June 17, 1999 Order,3

the trial court

deemed waived petitioners’ right to make their formal offer

of evidence.

On July 27, 1999, petitioners moved for the admission of

their offer of evidence. On September 1, 1999, however, the

trial court issued an Order

4

denying petitioners’ formaloffer of evidence for their “consistent failure”

5

to submit it.

On October 28, 1999, respondents filed a Motion to

Dismiss on Demurrer to Evidence.

On February 24, 2000, in its Resolution,6

the trial court

granted respondents’ demurrer to evidence and ordered the

_______________

3 Records, p. 167.

4 Id., at pp. 188-190.5 Id., at p. 189.

6 Id., at pp. 211-216.

415

VOL. 522, APRIL 27, 2007 415


dismissal of the Complaint. Petitioners’ Motion for

Reconsideration was denied for lack of merit.

Petitioners appealed the case to the CA.

The Ruling of the Court of Appeals

Affirming the ruling of the trial court, the CA held that

petitioners failed to prove their claim by a preponderance

of evidence. It observed that “no concrete and substantial

evidence was adduced by [petitioners]”7

to substantiatetheir allegation that Severino, the predecessor of

respondents, fraudulently executed an affidavit of self-

adjudication in order to exclude petitioners from the

settlement of the estate of Benito and Florentina Pasag.

The Issues

Petitioners submit the following issues for our



consideration:

I.

The Hon. Court of Appeals committed reversible error in

affirming the Decision of the Court a quo despite the gross

negligence of their counsel thus depriving their rights to due

process.

II.

The Court of Appeals committed reversible error in affirming

the Decision of the trial court instead of remanding the case for

further proceedings to clearly establish their respective claims on

the subject properties.8

Simply stated, the issues revolve on the propriety of the

following: (1) waiver of petitioners’ offer of documentary

evidence; and (2) dismissal of the Complaint on a demurrerto evidence.

_______________

7 Supra note 1, at p. 30.

8 Rollo, p. 18; original in boldface.

416



The Court’s Ruling

The petition has no merit.

Waiver of the Offer of Evidence

The Rules of Court provides that “the court shall consider

no evidence which has not been formally offered.”9

A formal

offer is necessary because judges are mandated to rest their

findings of facts and their judgment only and strictly upon

the evidence offered by the parties at the trial.10

Its

function is to enable the trial judge to know the purpose or

purposes for which the proponent is presenting the

evidence.11

On the other hand, this allows opposing parties



to examine the evidence and object to its admissibility.

Moreover, it facilitates review as the appellate court will

not be required to review documents not previously

scrutinized by the trial court.12

Strict adherence to the said rule is not a trivial matter.

The Court in Constantino v. Court of Appeals13

ruled that

the formal offer of one’s evidence is deemed waived after

failing to submit it within a considerable period of time. Itexplained that the court cannot admit an offer of evidence

made after a lapse of three (3) months because to do so

would “condone an inexcusable laxity if not non-compliance

with a court order which, in effect, would encourage

needless delays and derail the speedy administration of

justice.”14

_______________

9 Rule 132, Sec. 34.10 Parel v. Prudencio, G.R. No. 146556, April 19, 2006, 487 SCRA 405;

Katigbak v. Sandiganbayan, G.R. No. 140183, July 10, 2003, 405 SCRA

558; Ong v. Court of Appeals, G.R. No. 117103, January 21, 1999, 301

SCRA 387.

11 People v. Alicante, G.R. Nos. 127026-27, May 31, 2000, 332 SCRA

440.

12 Ong v. Court of Appeals, supra.

13 G.R. No. 116018, November 13, 1996, 264 SCRA 59.

14 Id., at p. 65.

417

VOL. 522, APRIL 27, 2007 417


Applying the aforementioned principle in this case, we find

that the trial court had reasonable ground to consider that

petitioners had waived their right to make a formal offer of documentary or object evidence. Despite several extensions

of time to make their formal offer, petitioners failed to

comply with their commitment and allowed almost five

months to lapse before finally submitting it. Petitioners’

failure to comply with the rule on admissibility of evidence

is anathema to the efficient, effective, and expeditious

dispensation of justice. Under the Rule on guidelines to be

observed by trial court judges and clerks of court in the

conduct of pre-trial and case of deposition and discovery



measures,15

it is provided that:

On the last hearing day allotted for each party, he is required to

make his formal offer of evidence after the presentation of his last

witness and the opposing party is required to immediately

interpose his objection thereto. Thereafter the judge shall make

the ruling on the offer of evidence in open court. However, the

judge has the discretion to allow the offer of evidence in writing inconformity with Section 35, Rule 132[.]

On the other hand, Section 35 of Rule 132 of the Rules of

Court provides that “documentary and object evidence shall

be offered after the presentation of a party’s testimonial

evidence.” It requires that “such offer shall be done orally

unless allowed by the Court to be done in writing.”

The pre-trial guidelines and Sec. 35 of Rule 132 jointly

considered, it is made clear that the party who terminated

the presentation of evidence must make an oral offer of evidence on the very day the party presented the last

witness. Otherwise, the court may consider the party’s

documentary or object evidence waived. While Sec. 35 of

Rule 132 says that the trial court may allow the offer to be

done in writing, this can only be tolerated in extreme cases

where the object evidence or documents are large in

number––say from 100 and above,

_______________

15 June 8, 2004 En Banc Resolution in A.M. No. 03-1-09-SC.

418



and only where there is unusual difficulty in preparing the

offer.

The party asking for such concession should however file

a motion, pay the filing fee, set the date of the hearing not

later than 10 days after the filing of the motion,16

and serve

it on the address of the party at least three (3) days before

the hearing.17

In short, it is a litigated motion and cannot

be done ex parte. Counsels for parties should not however

rely on the benevolence of the trial court as they are

expected to have thoroughly and exhaustively prepared for



all possible pieces of evidence to be presented and the

purposes for which they will be utilized. As a matter of fact,

the draft of the offer of evidence can already be prepared

after the pre-trial order is issued, for, then, the counsel is

already fully aware of the documentary or object evidence

which can be put to use during trial. Remember that under

the pre-trial guidelines, the trial court is ordered to

integrate in the pre-trial order the following directive:

“No evidence shall be allowed to be presented and offered during

the trial in support of a party’s evidence-in-chief other than those

that had been identified below and pre-marked during the pre-

trial. Any other evidence not indicated or listed below shall be

considered waived by the parties. However, the Court, in its

discretion, may allow introduction of additional evidence in the

following cases: (a) those to be used on cross-examination or re-

cross-examination for impeachment purposes; (b) those presented

on re-direct examination to explain or supplement the answers of a witness during the crossexamination; (c) those to be utilized for

rebuttal or sur-rebuttal purposes; and (d) those not available

during the pre-trial proceedings despite due diligence on the part

of the party offering the same.”18

_______________

16 RULES OF COURT, Rule 15, Sec. 5.

17 Id., at Sec. 4.

18 Supra note 15.

419

VOL. 522, APRIL 27, 2007 419


It is apparent from the foregoing provision that both

parties should obtain, gather, collate, and list all their

respective pieces of evidence––whether testimonial,

documentary, or object––even prior to the preliminary

conference before the clerk of court or at the latest before

the scheduled pre-trial conference. Otherwise, pieces of

evidence not identified or marked during the pre-trial

proceedings are deemed waived and rendered inutile. The

parties should strictly adhere to the principle of “laying

one’s cards on the table.” In the light of these issuances and

in order to obviate interminable delay in case processing,



the parties and lawyers should closely conform to the

requirement that the offer of evidence must be done orally

on the day scheduled for the presentation of the last

witness.

Thus, the trial court is bound to consider only the

testimonial evidence presented and exclude the documents

not offered. Documents which may have been identified

and marked as exhibits during pre-trial or trial but whichwere not formally offered in evidence cannot in any manner

be treated as evidence. Neither can such unrecognized

proof be assigned any evidentiary weight and value. It

must be stressed that there is a significant distinction

between identification of documentary evidence and its

formal offer. The former is done in the course of the pre-

trial, and trial is accompanied by the marking of the

evidence as an exhibit; while the latter is done only when

the party rests its case.19

The mere fact that a particular

document is identified and marked as an exhibit does notmean that it has already been offered as part of the

evidence.20

It must be emphasized that any evidence which

a party desires to submit for the consid-

_______________

19 People v. Franco, G.R. No. 118607, March 4, 1997, 269 SCRA 211.

20 Republic v. Wee, G.R. No. 147212, March 24, 2006, 485 SCRA 308;

Villaluz v. Ligon, G.R. No. 143721, August 31, 2005, 468 SCRA 486;

Macasiray v. People, G.R. No. 94736, June 26, 1998, 291 SCRA 154.

420



eration of the court must formally be offered by the party;

otherwise, it is excluded and rejected.

21

Dismissal of the Complaint on a Demurrer to Evidence

Having established that the documentary evidence of

petitioners is inadmissible, this Court is now tasked to

determine the propriety of the dismissal of the Complaint

on a demurrer to evidence.

A demurrer to evidence is an instrument for the

expeditious termination of an action;22

thus, abbreviating



judicial proceedings.23

It is defined as “an objection or

exception by one of the parties in an action at law, to the

effect that the evidence which his adversary produced is

insufficient in point of law (whether true or not) to make

out his case or sustain the issue.”24

The demurrer

challenges the sufficiency of the plaintiff’s evidence to

sustain a verdict.25

In passing upon the sufficiency of the

evidence raised in a demurrer, the court is merely requiredto ascertain whether there is competent or sufficient proof

to sustain the indictment or to support a verdict of guilt.26

_______________

21 Landingin v. Republic, G.R. No. 164948, June 27, 2006, 493 SCRA

415; Pigao v. Rabanillo, G.R. No. 150712, May 2, 2006, 488 SCRA 546;

Katigbak v. Sandiganbayan, supra note 10.

22 Sec. 1 of Rule 33 of the Rules of Court provides: [A]fter the plaintiff

has completed the presentation of his evidence, the defendant may move

for dismissal on the ground that upon the facts and the law the plaintiff

has shown no right to relief. x x x

23 Consolidated Bank and Trust Corporation (SOLIDBANK) v. Del

Monte Motor Works, Inc., G.R. No. 143338, July 29, 2005, 465 SCRA 117.

24 H. Black, BLACK’S LAW DICTIONARY 433 (6th ed., 1990).

25 Ong v. Court of Appeals, G.R. No. 140904, October 9, 2000, 342 SCRA

372; Gutib v. Court of Appeals, G.R. No. 131209, August 13, 1999, 312

SCRA 365.

26

Id.

421

VOL. 522, APRIL 27, 2007 421


In the present case, we have thoroughly reviewed the

records and are convinced that petitioners have failed to

sufficiently prove their allegations. It is a basic rule inevidence that the burden of proof lies on the party who

makes the allegations.27

However, petitioners did not

substantiate their allegations and merely argued that the

Complaint should be “threshed out in a full blown trial in

order to establish their respective positions on issues

[which are] a matter of judicial appreciation.”28

Regardless of the bare argument of petitioners, however,

we find that the trial and appellate courts were correct in

dismissing the Complaint. The allegation that Severino



fraudulently excluded the other heirs of Benito and

Florentina Pasag in the settlement of the latter’s estate

was not supported by concrete evidence. While petitioners

maintain that the estate of Benito and Florentina was

never partitioned among their heirs, the testimony of their

witness, Eufemio Pasag, proves otherwise. Significantly,

during crossexamination, Eufemio admitted that the

children of Benito and Florentina, including the father of petitioners, had received properties as inheritance from the

said spouses. He testified, thus:

Q Are you aware that there are eight (8) children of the

spouses Benito and Faustina Pasag?

A Yes, sir.

Q And one of whom is Bonifacio Pasag?

A Yes, sir.

_______________

27 Acabal v. Acabal, G.R. No. 148376, March 31, 2005, 454 SCRA 555;

Saguid v. Court of Appeals, G.R. No. 150611, June 10, 2003, 403 SCRA

678; Pimentel v. Court of Appeals, G.R. No. 117422, May 12, 1999, 307

SCRA 38; Luxuria Homes, Inc. v. Court of Appeals, G.R. No. 125986,

January 28, 1999, 302 SCRA 315.

28 Rollo, p. 59; petitioners’ Memorandum.

422



Q And one of whom is Severino Pasag?

A Yes, sir.

Q Are you likewise aware, Mr. Witness, that after thedeath of the spouses Benito and Faustina Pasag, there

was no last will and testament?

A Yes, sir.

Q And of course, you are aware that there are properties

left by the said spouses, is that right?

A Yes, sir.

Q And in fact, your father Pedro Pasag has already a title

in his name of the properties left by the spouses to



Pedro Pasag, is that right?

A Yes, sir.

Q And in fact, it is where your house was situated or

erected among those properties that was given to your

father, is that right?

A Yes, sir.

Q And of course you are aware that likewise SeverinoPasag, after the death of the spouses Benito and

Faustina Pasag, acquired some properties as

inheritance, is that right?

A Yes, sir.

x x x x

Q And you also agree with me that Isidro Pasag, Juanito

Bustillo, Fortunata Savellano, Basilio Pasag, and Maria

Lumague and the other brothers and sisters of your fat

her likewise received property of their own as a result of the death of your grandfather, is that right?

A Yes, sir.29

_______________

29 TSN, March 9, 1999, pp. 5-7.

423

VOL. 522, APRIL 27, 2007 423


It must be stressed that fraud is not presumed; and it must

be proved by clear and convincing evidence,30

and not by

mere conjectures or speculations.31

No such evidence was

presented in this case to sustain petitioners’ allegations.

WHEREFORE, we DENY the petition and AFFIRM the

assailed February 15, 2002 Decision and September 6, 2002

Resolution of the CA, with costs against petitioners.

SO ORDERED.

Quisumbing (Chairperson), Carpio, Carpio-Morales

and Tinga, JJ ., concur.

Petition denied, assailed decision and resolution

affirmed.



Note.—Neither the rules of procedure nor jurisprudence

would sanction the admission of evidence that has not been

formally offered during the trial. But this evidentiary rule

is applicable only to ordinary trials not to cases covered by

the rule on summary procedure—cases in which no full

blown trial is held. (Heirs of Lourdes Saez Sabanpan vs.

Comorposa, 408 SCRA 692 [2003])

——o0o——

_______________

30 Morandarte v. Court of Appeals, G.R. No. 123586, August 12, 2004,

436 SCRA 213; Maestrado v. Roa, G.R. No. 133324, March 9, 2000, 327

SCRA 678; Mangahas v. Court of Appeals, G.R. No. 95815, March 10,

1999, 304 SCRA 375; Sanchez v. Court of Appeals, G.R. No. 108947,

September 29, 1997, 279 SCRA 647.

31 Sanchez v. Court of Appeals, supra.

424

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