Republic of the Philippines
SUPREME COURT
Manila
 
SECOND DIVISION
 
 
HEIRS OF PEDRO PASAG, G.R. No. 155483
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, Present:
Petitioners,
QUISUMBING, J., Chairperson,
CARPIO,
- versus - CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.
Sps. LORENZO and
FLORENTINA PAROCHA,
PRISCILLA P. ABELLERA,
and MARIA VILORIA PASAG,
Respondents. Promulgated:
April 27, 2007
x---------------------------------------------------------------------------------------
--x
 
 
DECISION
 
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 Decision[1] of the Court of Appeals
(CA) in CA-G.R. CV No. 68544, and its September 6, 2002
Resolution[2] denying petitioners Motion for 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. U-5743, 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) childrenPedro, Isidro,
Basilio, Severino, Bonifacio, Maria, Juanita, and Fortunata. However,
Severino, the predecessor of respondents, claimed in an affidavit of self-
adjudication 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) surviving children. They claimed that the parcels of land
covered by OCT Nos. 2983 and 1887 are Bonifacios share of which he
later on renounced in a Quitclaim Deed in favor of his brother,
Severino. As regards the parcel of land covered by OCT No. P-20607,
respondents asserted that the said land had been in Severinos 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, Severinos title had now become indefeasible.
 
The trial of the case commenced on March 19, 1996. On March 9,
1999, petitioners rested their case and were granted 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 formal offer 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 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 substantiate their 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 demurrer to evidence.
 
The Courts 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 Appeals[13] ruled that the formal offer of ones
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, would encourage needless delays and derail the speedy
administration of justice.[14]
 
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 in conformity 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 partys 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 partys
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 numbersay from 100 and above, 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 partys 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 cross-
examination; (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]
 
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 objecteven 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 ones
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
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.[19] 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.[20] It must be
emphasized that any evidence which a party desires to submit for the
consideration 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
plaintiffs evidence to sustain a verdict.[25] 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 to support a verdict of guilt.[26]
 
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 in evidence 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 latters 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 cross-examination, 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.
 
Q And one of whom is Severino Pasag?
A Yes, sir.
 
Q Are you likewise aware, Mr. Witness, that after the death 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 Severino Pasag, after the
death of the spouses Benito and Faustina Pasag, acquired some
properties as inheritance, is that right?
A Yes, sir.
 
xxxx
 
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 father likewise received
property of their own as a result of the death of your
grandfather, is that right?
A Yes, sir.[29]
 
 
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.
 
 
PRESBITERO J. VELASCO, JR.
Associate Justice
 
WE CONCUR:
 
 
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
 
 
 
 
ANTONIO T. CARPIO CONCHITA CARPIO MORALES
Associate Justice Associate Justice
 
 
 
 
 
DANTE O. TINGA
Associate Justice
 
 
 
ATTESTATION
 
I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of
the Courts Division.
 
 
 
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
 
 
 
 
CERTIFICATION
 
Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons Attestation, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned
to the writer of the opinion of the Courts Division.
 
 
 
 
REYNATO S. PUNO
Chief Justice

[1]
 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 33.
[3]
 Records, p. 167.
[4]
 Id. at 188-190.
[5]
 Id. at 189.
[6]
 Id. at 211-216.
[7]
 Supra note 1, at 30.
[8]
 Rollo, p. 18; original in boldface.
[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 of the Philippines 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 65.
[15]
 June 8, 2004 En Banc Resolution in A.M. No. 03-1-09-SC.
[16]
 RULES OF COURT, Rule 15, Sec. 5.
[17]
 Id. at Sec. 4.
[18]
 Supra note 15.
[19]
 People of the Philippines v. Franco, G.R. No. 118607, March 4, 1997, 269 SCRA 211.
[20]
 Republic of the Philippines 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 of
the Philippines, G.R. No. 94736, June 26, 1998, 291 SCRA 154.
[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, BLACKS 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.
[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.
[29]
 TSN, March 9, 1999, pp. 5-7.
[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.