SECOND DIVISION
[ G.R. NO. 162864, March 28, 2007 ]SPS. PEBLIA ALFARO v. CA +
SPS. PEBLIA ALFARO AND PROSPEROUS ALFARO, PETITIONERS, VS. HON. COURT OF APPEALS, SPS. OLEGARIO P. BAGANO AND CECILIA C. BAGANO RESPONDENTS.
D E C I S I O N
SPS. PEBLIA ALFARO v. CA +
SPS. PEBLIA ALFARO AND PROSPEROUS ALFARO, PETITIONERS, VS. HON. COURT OF APPEALS, SPS. OLEGARIO P. BAGANO AND CECILIA C. BAGANO RESPONDENTS.
D E C I S I O N
TINGA, J.:
There lies an inherent oxymoron to the term "duplicate originals" as applied to documents. Yet, even as two "duplicate originals" of the same document are not exactly identical, they may be considered as identical for all legal intents and purposes. Indeed,
each "duplicate original" may be considered as the best evidence of the transaction embodied therein.
Assailed in this Petition for Review on Certiorari is the Decision[1] of the Court of Appeals dated 17 November 2003 in CA-G.R. CV No. 72335, as well as the Resolution dated 3 March 2004, denying the motion for reconsideration.
First, the facts on record.
On 15 April 1996, Spouses Olegario and Cecilia Bagano (respondents) filed a complaint against Spouses Peblia and Prosperous Alfaro (petitioners) for Declaration of Nullity of Sale with Damages and Preliminary Injunction before the Regional Trial Court (RTC) of Cebu City. In the complaint, respondents as plaintiffs alleged the following: that they were the previous registered owners of a parcel of land known as Lot No. 1710, located at San Roque, Talisay, Cebu and covered by Transfer Certificate of Title (TCT) No. 78445; that on 22 June 1994, respondents executed a Real Estate Mortgage over the lot in favor of petitioners to secure payment of an obligation in the amount of P180,000.00; that upon payment of the mortgage debt, a Cancellation and Discharge of Mortgage[2] dated 20 June 1995 was executed; that when respondents demanded the return of their title, petitioners refused, prompting the former to check with the Register of Deeds; that upon verification, respondents learned that their title had already been cancelled and in lieu thereof TCT No. 92783[3] was
issued in the name of petitioners by virtue of a spurious Deed of Absolute Sale dated 14 June 1995 (Deed of Absolute Sale) purportedly executed by respondents. Thus, respondents sought the nullification of the deed of sale on the ground that their signatures thereon were forged.
In their answer, petitioners as defendants denied the alleged forgery. They insisted that respondents sold Lot No. 1710 to them in consideration of the amount of P534,000.00 sometime in June 1995.
Respondents' evidence tend to establish that they sent a letter-request to Romeo Varona (Varona), a handwriting expert from the Cebu City PNP Crime Laboratory, for the examination of the questioned signatures in the Deed of Absolute Sale. The request was accompanied by a set of documents consisting of the Deed of Conditional Sale dated 23 October 1989 (Exh. "H")[4] together with documents containing the specimen signatures of respondents, namely: five (5) receipts with corresponding dates (Exhs. "I," "I-1," "I-2," "I-3," "I-4"),[5] Community Tax Certificate dated 13 January 1995 (Exh. "J"),[6] Individual Taxpayer's ID (Exh. "K"),[7] Partido ng Masang Pilipino ID (Exh. "L"),[8] and a copy of the Deed of Sale
(Exh. "B").[9] After examining Exh. "B" and comparing the signatures thereon purporting to be those of respondents with the specimen signatures on the documents provided by respondents, Varona issued Report No. 006-96[10] dated 11 January 1996 containing his findings.
On 25 November 1998, respondents presented Varona as an expert witness on their behalf. Varona affirmed the conclusion embodied in his Report that the questioned signatures appearing on Exhibit "B" were forged.
On the same trial date, petitioners manifested their intention to have Varona examine another set of documents which according to them contain the genuine signatures of respondents. Hence, on 12 March 1999, petitioners sent a letter to Varona, requesting him to examine the signatures on the other set of documents, namely: Real Estate Mortgage dated 22 June 1994 (Ex. "2"),[11] Acknowledgement Receipt for the sum of P216,000.00 dated 14 June 1995 (Ex. "3"),[12] six (6) deeds of conditional sale (Exhs. "4" to "9"),[13] China Bank Check No. A-190308 dated 5 August 1994 for P52,000.00 (Exh. "10"),[14] and Community Tax Certificate (CTC) No. 19886842 dated
8 February 1995 (Exh. "11").[15] At the continuation of the cross-examination, Varona stated that the signatures on the documents provided him, which purport to be those of respondents, as well as the signatures on another copy of the Deed of Absolute Sale (Exh. "13"), which similarly purport to be those of respondents, were affixed by the same persons.[16]
According to petitioners' evidence, respondents had initially mortgaged Lot No. 1710 in their favor for P180,000.00 on 22 June 2004, as evidenced by a Real Estate Mortgage.[17] Two months later, respondents sold a different set of lots, i.e., Lot Nos. 809-C, 809-D, 809-J, 809-K, 809-T and 809-U, by virtue of six (6) deeds of conditional sale in favor of petitioners who paid the sum of P138,000.00 as downpayment. Thereafter, petitioners discovered that the lots subject of the conditional sale were also sold on installment basis to other parties. To placate petitioners, respondents sold to them the lot in question, Lot No. 1710, in consideration of P534,000.00, as evidenced by the Deed of Absolute Sale. Petitioners paid an additional P216,000.00 after being credited the amounts of P180,000.00 representing the debt secured by the Real Estate Mortgage and P138,000.00 representing the aggregate downpayments for the six (6) conditional deeds of sale.[18]
On 23 April 2001, the RTC rendered a Decision[19] dismissing the complaint and ordering respondents to pay P50,000.00 as moral damages, P20,000.00 as attorney's fees and P10,000.00 as litigation expenses, plus costs of suit.
On appeal, the Court of Appeals promulgated the assailed Decision,[20] reversing and setting aside the Decision of the RTC. It declared the Deed of Absolute Sale null and void ab initio, reinstated TCT No. 78445 in the name of respondents, and ordered petitioners to pay the amount of P20,000.00 as moral damages and attorney's fee to respondents.
In the present petition, petitioners maintain that the Court of Appeals committed an error in reversing the judgment of the trial court. Issues were raised, concerning the following points, to wit: first, the selective reversal by the appellate court of the RTC's factual findings; second, the selective discussion of the elements of a contract of sale as basis for the invalidation of the Deed of Absolute Sale; third, the ruling that failure to offer in evidence the second questioned report proved fatal to petitioners' cause; fourth, the blanket denial of petitioners' motion for reconsideration; and fifth, the citing of respondent Olegario Bagano's testimony in the Decision despite its having been stricken off the records for his failure to be cross-examined.[21]
The first three (3) points raised obviously relate to the determinative issue'whether or not the questioned signatures of respondents on the Deed of Absolute Sale were forged, thereby rendering the document spurious. Such determination is evidently factual in nature, and the well-entrenched rule is that in the exercise of this Court's power of review, the findings of facts of the Court of Appeals are conclusive and binding on this Court.[22] However, there are recognized exceptions,[23] among which is when the factual findings of the trial court and the appellate court are conflicting.[24] This case falls under the exception. The disagreement between the trial court and the Court of Appeals in the factual conclusion, especially with regard to the alleged forgery of respondents' signatures on the Deed of Absolute Sale, has constrained us to minutely examine the evidence submitted by the parties.
On its face, the Deed of Absolute Sale was notarized; as such, it enjoys the presumption of regularity and carries the evidentiary weight conferred upon it with respect to its due execution.[25] Absent evidence that is clear, convincing, and more than merely preponderant, the presumption must be upheld.[26]
In their bid to establish "clear, convincing and more than merely preponderant evidence," respondents presented an expert witness, Varona, who attested that the Deed of Absolute Sale was indeed forged. Was the witness successful in that regard?
Respondents rely on Varona's testimony on direct examination, as well as his findings in the examination of the copy of the Deed of Absolute Sale as Exh. "B." On that basis, they claim forgery. In their effort to refute respondents' allegation, petitioners hinge on the testimony on cross-examination of the same expert and his findings in the examination of another original of the Deed of Absolute Sale, marked as Exh. "13." The two varying findings led the trial court to conclude that Varona had retracted his earlier finding of forgery, thus:
The Court of Appeals rejected the trial court's conclusion and proceeded from a different premise, i.e., that in the second examination which involves the standard and specimen signatures submitted by petitioners, Varona did not actually receive and examine the original of the Deed of Sale, Exh. "13." It explained, thus:
When a document in two or more copies is executed at or about the same time, with identical contents, all such copies are equally regarded as originals.[32] Original does not mean the first paper written, in contrast to a copy or transcript made later. The original depends upon the issue to be proved.[33] It is immaterial whether that document was written before or after another, was copied from another, or was itself used to copy from,[34] as long as its contents are the subject of inquiry.[35] Hence, one or some of these copies are still considered as originals, and they have equal claims to authenticity.
As a matter of practice, deeds of conveyance are prepared in several copies for notarization and record purposes. After notarization, the notary public retains copies pursuant to the Rules on Notarial Practice, one for his record and the other for transmittal to the court, through Clerk of Court concerned, where he secured his notarial commission.[36] When he gives all the other copies to the parties, the latter agree between themselves how many copies should be kept by each. The parties also agree which copies shall be presented to the Register of Deeds for registration, the city or municipal assessor in connection with the payment of transfer tax and other fees, and the Bureau of Internal Revenue in connection with the payment of the capital gains tax. All the notarized copies are originals. They are sometimes loosely referred to as "original copies" or "duplicate originals."
In the case at bar, presented in evidence were two copies of one and the same Deed of Absolute Sale dated 14 June 1995. These are respondents' Exh. "B"[37] and petitioners" Exh. "13"[38] which was also marked by respondents as their Exh. "O."[39] Exh. "B" appears to be a certified true copy of the original of the Deed of Absolute Sale presented to and kept as part of the records of the Register of Deeds.[40] Exhibit "13" is a copy of the original retained by petitioners.
Respondents had engaged Varona to determine the genuineness of the signatures purporting to be theirs on Exh. "B" by comparing them with the specimen signatures on the documents[41] which they also provided Varona. On the witness stand, Varona affirmed his finding in his Report[42] that the questioned signatures on Exh. "B" were not affixed by the same persons who affixed the specimen signatures and thus the questioned signatures were forged.[43]
However, after Varona testified on direct examination, petitioners manifested that they would engage him to examine a different set of documents which contain the signatures of respondents.[44] On cross-examination, Varona stated that he examined the signatures on Exh. "13" and the specimen signatures on the other documents furnished him and that after making the examination he arrived at the conclusion that the signatures on the documents, including Exh. "13," were affixed by the same persons.[45]
On the basis of the two findings of Varona, the first involving Exh. "B" and the second relating to Exh. "13," the trial court concluded that the questioned deed is genuine as the signatures thereon which purport to be those of respondents are really theirs. It ratiocinated that Varona had retracted his first opinion when he came out with his second opinion.
The trial court erred in using the supposed retraction as basis for its ruling. It cannot properly speak of retraction of one finding by the other because the examinations conducted by Varona covered two different standard signatures and two different sets of specimen signatures. It would have been a retraction or repudiation of the first conclusion if the standard signatures analyzed and compared with the specimen signatures were one and the same in the two examinations, even if the specimen signatures were contained in two different sets of documents which is not even the case here.
Yet clearly, Varona came out with inconsistent findings. On one hand, he concluded that Exh. "B" is spurious because the questioned signatures thereon were forged. On the other, he issued a different determination as regards Exh. "13," finding that the signatures thereon which purport to be those of respondents and the counterpart specimen signatures were affixed by the same persons. Since Exhs. "B" and "13" are copies of two originals of one and the same deed, his conclusions with respect to the two exhibits should be common, i.e., either the questioned signatures thereon were both affixed by the same persons or they were affixed by different persons.
The disharmonious findings render Varona's testimony unconvincing. Thus, the presumption of validity of the Deed of Absolute Sale as a notarized document is left unscathed.
Respondents seek to downplay the determinations made by Varona concerning Exh. "13" by impugning the authenticity of the specimen signatures, specifically the signature of Olegario Bagano on the CTC, Exh. "11." They claim in particular that the issuance date of the CTC was altered. Respondents, however, did not present any tangible proof to support their allegation. On the other hand, petitioners procured a certification from Cebu City Treasurer Eustaquio B. Cesa to the effect that the subject CTC belonged to Olegario Bagano.[46] As regards the other documents which contain the specimen signatures, namely: the Real Estate Mortgage (Exh. "2"), the Acknowledgment Receipt (Exh. "3"), the six deeds of conditional sale (Exhs. "4" to "9") and the China Bank check (Exh. "10"), respondent failed to adduce countervailing evidence of spuriousness. It is noteworthy that the parties to the deeds of sale were also petitioners and respondents themselves. Also, the amount covered by the Acknowledgment Receipt was the additional cash payment of petitioners to respondents.
On the part of the Court of Appeals, it chose to disregard Varona's conclusions on Exh. "13" on the premise that the written report which contained the conclusions was not presented in evidence.
However, as borne out by the record, Varona repeated his findings in open court in the course of his testimony on cross-examination and even was asked on re-direct examination by respondents' counsel thereon.[47]
Generally, it has been held that handwriting experts, while probably useful, are not indispensable in examining or comparing handwriting.[48] Yet without Varona's testimony, the Court is hard-pressed to find any other basis on the record to establish the forgery. One who alleges forgery has the burden to establish his case by a preponderance of evidence, or evidence which is of greater weight or more convincing than that which is offered in opposition to it.[49] Aside from the opinion of the handwriting expert which this Court finds inconsequential, the bare assertions on the part of respondent Cecilia Bagano that the signature appearing on the Deed of Absolute Sale is not that of her husband is not enough. No additional witnesses were presented.
We reassert that forgery is not presumed; it must be proven by clear, positive and convincing evidence. Those who make the allegation of forgery have the burden of proving it.[50] Respondents failed to substantiate with sufficient evidence their claim that their signatures appearing on the deed of sale were forged.
We are moreover influenced in our ultimate finding by the fact that there is also sufficient evidence on record to bolster the presumption that the notarized Deed of Absolute Sale was genuine. Ultimately worthy of consideration is petitioner Plebia Alfaro's positive testimony that she actually saw respondent Olegario Bagano affix his signature on the questioned document.[51] However self-serving that allegation may seem, it corroborates the other evidence that respondents did affix their signatures on the deed. Equally relevant in this supposition is the comparison of the standard signatures on Exh. "13" with the signatures of respondents found in the Real Estate Mortgage, Exh. "2," a document which was duly notarized and thus bears prima facie proof as to its due execution and the validity of the contents therein. Even respondent Cecilia Bagano admitted the genuineness of said document in her testimony.[52] No specific objection was raised by respondents as to the validity of the Deed of Real Estate Mortgage, their blanket objection thereto being confined to an overarching allegation against its materiality and relevancy, which is not sufficient to rebut the presumption of authenticity of the notarized deed.
And it must be said that our own comparison of the signatures on the Deed of Absolute Sale to the specimen signatures submitted by the parties reveals no substantial variance to warrant the conclusion
that there was forgery. Mere variance of the signatures cannot be considered as conclusive proof that the same were forged.[53]
What could respondents have done in order to fortify their claim of forgery following the manifest indecisiveness of the expert witness they had relied on? Considering that the burden was upon respondents to establish the alleged forgery, they should have presented evidence on rebuttal, which they did not do, or even another expert witness to attest to their claim of forgery, which again they failed to do. Disingenuous as petitioners' tactic may have seemed, in using their opponent's expert witness to advocate the contrary cause, respondents were not without remedy to mitigate the damage wrought by said witness. That they failed to introduce rebuttal evidence finally led to the collapse of their cause of action.
With the foregoing disquisition, discussion of the other issues raised by petitioners is unnecessary.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals is SET ASIDE. The Decision of the Regional Trial Court of Cebu, Branch 12, is REINSTATED.
SO ORDERED.
Quisumbing, (Chairperson), Carpio, Carpio Morales and Velasco, Jr., JJ., concur.
[1] Penned by Associate Justice Remedios A. Salazar-Fernando and concurred in by Associate Justices Eubolo G. Verzola and Edgardo F. Sundiam. Rollo, pp. 46-63.
[2] Id. at 71.
[3] Id. at 73.
[4] Folder of Exhibits, pp. 9-10.
[5] Id. at 11-15.
[6] Id. at 16.
[7] Id. at 17.
[8] Id. at 18.
[9] Id. at 2.
[10] Exh. "E" id. at 6.
[11] Supra note 4.
[12] Records, p. 209.
[13] Id. at 210-215.
[14] Id. at 216.
[15] Id. at 217.
[16] TSN, 19 May 1999, p. 8.
[17] Records, p. 208.
[18] TSN, 24 November 1999, pp. 4-10.
[19] Presided by Judge Aproniano B. Taypin; Records, pp. 262-268.
[20] Supra note 1.
[21] Rollo, pp. 22-23.
[22] Apex Mining Co. Inc. v. Southeast Mindanao Gold Mining Corp., G.R. Nos. 152613 & 152628, 23 June 2006, 492 SCRA 355.
[23] (1) when the findings are grounded entirely on speculation, surmises or conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on misapprehension of facts; (5) when the findings of facts are conflicting; (6) when in making its findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondent; (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; and (11) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion. Id. at 376.
[24] PNB v. Heirs of Militar, G.R. No. 164801, 30 June 2006, 494 SCRA 308.
[25] De Jesus v. CA, et. al., G.R. No. 57092, 21 January 1993; Penson v. Maranan, G.R. No. 148630, 20 June 2006, 491 SCRA 396.
[26] Cirelos v. Hernandez, G.R. No. 146523, 15 June 2006, 490 SCRA 625; Bravo-Guerrero v. Bravo, G.R. No. 152658, 29 July 2005, 465 SCRA 244.
[27] Records, pp. 266.
[28] Rules of Court, Rule 132, Sec. 24.
[29] Records, p. 267.
[30] Id. at 268.
[31]Rollo, pp. 57-61.
[32] Rules of Court, Rule 130, Sec. 4(b).
[33] Herrera, Oscar M., Remedial Law (1999 ed.), p. 179, citing 5 Moran 84 (1980 ed.), citing Fiscal of Pampanga v. Reyes and Guevara, 55 Phil. 905, 908.
[34] Wigmore on Evidence, Vol. IV (3rd. ed.), p. 442.
[35] Rules of Court, Rule 130, Sec. 4(a).
[36] 2004 Rules on Notarial Practice, Rule VI, Sec. 2.
[37] Records, p. 153.
[38] TSN, 16 June 1999, p. 2.
[39] Id. at 8.
[40] The copy of the original Deed of Absolute Sale marked as Exh. "B" was procured by respondents from the Register of Deeds of Cebu City, which copy bears a certification by Deputy Register of Deeds III, Ma. Vilma B. Sato.
[41] TSN, 25 November 1998, p. 9.
[42] Folder of Exhibits, p. 6.
[43] Id. at 4.
[44] Id. at 12.
[45] TSN, 19 May 1999, p. 5.
[46] Records, p. 217.
[47] People v. Libnao, 443 Phil. 506 (2003).
[48] China Banking Corp. v. Lagon, G.R. No. 160843, 11 July 2006, 494 SCRA 560.
[49] Delfin v. Billones, G.R. No. 146550, 17 March 2006, 485 SCRA 38.
[50] Herbon v. Palad, G.R. No. 149542, 20 July 2006; Pan Pacific Industrial Sales Co., Inc. v. Court of Appeals, G.R. No. 125283, 10 February 2006, 482 SCRA 164; R.F. Navarro & Co., Inc. v. Hon. Vailoces, 413 Phil. 432 (2001).
[51] TSN, 24 November 1999, p. 7.
[52] TSN, 27 July 1998, p. 3.
[53] JN Development Corporation v. Philippine Export and Foreign Loan Guarantee Corporation, G.R. No. 151060, 31 August 2005, 468 SCRA 555.
Assailed in this Petition for Review on Certiorari is the Decision[1] of the Court of Appeals dated 17 November 2003 in CA-G.R. CV No. 72335, as well as the Resolution dated 3 March 2004, denying the motion for reconsideration.
First, the facts on record.
On 15 April 1996, Spouses Olegario and Cecilia Bagano (respondents) filed a complaint against Spouses Peblia and Prosperous Alfaro (petitioners) for Declaration of Nullity of Sale with Damages and Preliminary Injunction before the Regional Trial Court (RTC) of Cebu City. In the complaint, respondents as plaintiffs alleged the following: that they were the previous registered owners of a parcel of land known as Lot No. 1710, located at San Roque, Talisay, Cebu and covered by Transfer Certificate of Title (TCT) No. 78445; that on 22 June 1994, respondents executed a Real Estate Mortgage over the lot in favor of petitioners to secure payment of an obligation in the amount of P180,000.00; that upon payment of the mortgage debt, a Cancellation and Discharge of Mortgage[2] dated 20 June 1995 was executed; that when respondents demanded the return of their title, petitioners refused, prompting the former to check with the Register of Deeds; that upon verification, respondents learned that their title had already been cancelled and in lieu thereof TCT No. 92783[3] was
issued in the name of petitioners by virtue of a spurious Deed of Absolute Sale dated 14 June 1995 (Deed of Absolute Sale) purportedly executed by respondents. Thus, respondents sought the nullification of the deed of sale on the ground that their signatures thereon were forged.
In their answer, petitioners as defendants denied the alleged forgery. They insisted that respondents sold Lot No. 1710 to them in consideration of the amount of P534,000.00 sometime in June 1995.
Respondents' evidence tend to establish that they sent a letter-request to Romeo Varona (Varona), a handwriting expert from the Cebu City PNP Crime Laboratory, for the examination of the questioned signatures in the Deed of Absolute Sale. The request was accompanied by a set of documents consisting of the Deed of Conditional Sale dated 23 October 1989 (Exh. "H")[4] together with documents containing the specimen signatures of respondents, namely: five (5) receipts with corresponding dates (Exhs. "I," "I-1," "I-2," "I-3," "I-4"),[5] Community Tax Certificate dated 13 January 1995 (Exh. "J"),[6] Individual Taxpayer's ID (Exh. "K"),[7] Partido ng Masang Pilipino ID (Exh. "L"),[8] and a copy of the Deed of Sale
(Exh. "B").[9] After examining Exh. "B" and comparing the signatures thereon purporting to be those of respondents with the specimen signatures on the documents provided by respondents, Varona issued Report No. 006-96[10] dated 11 January 1996 containing his findings.
On 25 November 1998, respondents presented Varona as an expert witness on their behalf. Varona affirmed the conclusion embodied in his Report that the questioned signatures appearing on Exhibit "B" were forged.
On the same trial date, petitioners manifested their intention to have Varona examine another set of documents which according to them contain the genuine signatures of respondents. Hence, on 12 March 1999, petitioners sent a letter to Varona, requesting him to examine the signatures on the other set of documents, namely: Real Estate Mortgage dated 22 June 1994 (Ex. "2"),[11] Acknowledgement Receipt for the sum of P216,000.00 dated 14 June 1995 (Ex. "3"),[12] six (6) deeds of conditional sale (Exhs. "4" to "9"),[13] China Bank Check No. A-190308 dated 5 August 1994 for P52,000.00 (Exh. "10"),[14] and Community Tax Certificate (CTC) No. 19886842 dated
8 February 1995 (Exh. "11").[15] At the continuation of the cross-examination, Varona stated that the signatures on the documents provided him, which purport to be those of respondents, as well as the signatures on another copy of the Deed of Absolute Sale (Exh. "13"), which similarly purport to be those of respondents, were affixed by the same persons.[16]
According to petitioners' evidence, respondents had initially mortgaged Lot No. 1710 in their favor for P180,000.00 on 22 June 2004, as evidenced by a Real Estate Mortgage.[17] Two months later, respondents sold a different set of lots, i.e., Lot Nos. 809-C, 809-D, 809-J, 809-K, 809-T and 809-U, by virtue of six (6) deeds of conditional sale in favor of petitioners who paid the sum of P138,000.00 as downpayment. Thereafter, petitioners discovered that the lots subject of the conditional sale were also sold on installment basis to other parties. To placate petitioners, respondents sold to them the lot in question, Lot No. 1710, in consideration of P534,000.00, as evidenced by the Deed of Absolute Sale. Petitioners paid an additional P216,000.00 after being credited the amounts of P180,000.00 representing the debt secured by the Real Estate Mortgage and P138,000.00 representing the aggregate downpayments for the six (6) conditional deeds of sale.[18]
On 23 April 2001, the RTC rendered a Decision[19] dismissing the complaint and ordering respondents to pay P50,000.00 as moral damages, P20,000.00 as attorney's fees and P10,000.00 as litigation expenses, plus costs of suit.
On appeal, the Court of Appeals promulgated the assailed Decision,[20] reversing and setting aside the Decision of the RTC. It declared the Deed of Absolute Sale null and void ab initio, reinstated TCT No. 78445 in the name of respondents, and ordered petitioners to pay the amount of P20,000.00 as moral damages and attorney's fee to respondents.
In the present petition, petitioners maintain that the Court of Appeals committed an error in reversing the judgment of the trial court. Issues were raised, concerning the following points, to wit: first, the selective reversal by the appellate court of the RTC's factual findings; second, the selective discussion of the elements of a contract of sale as basis for the invalidation of the Deed of Absolute Sale; third, the ruling that failure to offer in evidence the second questioned report proved fatal to petitioners' cause; fourth, the blanket denial of petitioners' motion for reconsideration; and fifth, the citing of respondent Olegario Bagano's testimony in the Decision despite its having been stricken off the records for his failure to be cross-examined.[21]
The first three (3) points raised obviously relate to the determinative issue'whether or not the questioned signatures of respondents on the Deed of Absolute Sale were forged, thereby rendering the document spurious. Such determination is evidently factual in nature, and the well-entrenched rule is that in the exercise of this Court's power of review, the findings of facts of the Court of Appeals are conclusive and binding on this Court.[22] However, there are recognized exceptions,[23] among which is when the factual findings of the trial court and the appellate court are conflicting.[24] This case falls under the exception. The disagreement between the trial court and the Court of Appeals in the factual conclusion, especially with regard to the alleged forgery of respondents' signatures on the Deed of Absolute Sale, has constrained us to minutely examine the evidence submitted by the parties.
On its face, the Deed of Absolute Sale was notarized; as such, it enjoys the presumption of regularity and carries the evidentiary weight conferred upon it with respect to its due execution.[25] Absent evidence that is clear, convincing, and more than merely preponderant, the presumption must be upheld.[26]
In their bid to establish "clear, convincing and more than merely preponderant evidence," respondents presented an expert witness, Varona, who attested that the Deed of Absolute Sale was indeed forged. Was the witness successful in that regard?
Respondents rely on Varona's testimony on direct examination, as well as his findings in the examination of the copy of the Deed of Absolute Sale as Exh. "B." On that basis, they claim forgery. In their effort to refute respondents' allegation, petitioners hinge on the testimony on cross-examination of the same expert and his findings in the examination of another original of the Deed of Absolute Sale, marked as Exh. "13." The two varying findings led the trial court to conclude that Varona had retracted his earlier finding of forgery, thus:
When Mr. Romeo Varona was presented by the defendants to identify and give his expert opinion about the signatures appearing in the documents marked as annexes 1 to 13, he categorically told the Honorable Court that the signatures of Olegario Bagano and Cecilia Bagano appearing in the said documents are genuine, thus belying the claim of the plaintiff that said signatures are forged.The trial court further sustained the validity of the Deed of Absolute Sale by citing the rule that instruments are evidence, even against third persons, of the fact which gave rise to their execution and of the date of the latter.[28] The trial court also emphasized the character of the questioned deed as a notarial document, which cannot be disproved by mere denial of the alleged signatory, and bears the presumption of regularity.[29] Moreover, the RTC noted that respondents filed the case in bad faith to appease their buyers and cover up their wrongdoings in subdividing the lot and selling the resulting lots to different parties.[30]
It should be noted[,] however, that in an earlier testimony, Mr. Romeo Varona testified that the deed of sale in question is a forgery, but he later on retracted his earlier testimony after he conducted an examination of the documents sent to him by the defendants.[27]
The Court of Appeals rejected the trial court's conclusion and proceeded from a different premise, i.e., that in the second examination which involves the standard and specimen signatures submitted by petitioners, Varona did not actually receive and examine the original of the Deed of Sale, Exh. "13." It explained, thus:
Records show that the signatures of Spouses Bagano appearing in the Deed of Sale dated June 14, 1995 were forged. Witness Romeo O. Varona, a document examiner of the PNP Crime Laboratory came out with his Questioned Document Report No. 006-96 dated January 11, 1995 which states that after a careful examination of the questioned document submitted by Spouses Bagano, he found out that the signatures of Spouses Bagano appearing in the questioned Deed of Sale dated June 14, 1995 were forged. x x xThe disparate conclusions reached by the courts below are such because they originated from different but similarly erroneous basic premises.
x x x x
Likewise, he confirmed on the witness stand on November 25, 1998 that indeed the signatures of Spouses Bagano appearing in the questioned Deed of Absolute Sale are forgeries. However, on cross-examination conducted on February 10, 1999, counsel for Spouses Alfaro manifested that they would submit for examination the subject documents and that she would cross-examine Mr. Varona after the latter's examination of the submitted documents. On February 28, 1999[,] counsel for the Spouses Alfaro, Atty. Montesclaros, submitted other documents for examination, except the Deed of Absolute Sale dated June 14, 1995. On May 19, 1999, during Mr. Varona's cross-examination, he testified that his findings and conclusions, as stated in the Questioned Document Report No. 039-39 dated March 12, 1999, were that the signatures appearing thereon were written by one and same person. On May 28, 1999, Atty. Montesclaros again requested Mr. Varona to examine the Deed of Absolute Sale dated June 14, 1995. On June 16, 1999, Mr. Varona categorically testified that he had examined the said deed of sale and when asked if he prepared a report on the said examination he answered in the affirmative. But when again asked where that report was, Mr. Varona referred to Questioned Document Report No. 039-39 dated March 12. 1999, which was the same report that he prepared previously on the basis of the first request of Atty. Montesclaros dated February 28, 1999, where it did not include for examination the questioned Deed of Absolute Sale dated June 14, 1995.
Such a testimony cannot be taken as a retraction of his previous testimony. What the lower court failed to realize was that Romeo Varona did not actually receive and examine the original copy of the questioned Deed of Absolute Sale, as testified to by him. x x x
x x x x
Such a statement categorically means that Romeo Varona did not actually receive any copy of the questioned deed of absolute sale during his first examination upon the request of Atty. Montesclaros. This Court observed that during Mr. Varona's cross-examination on June 16, 1999, defendants-appellees' counsel, Atty. Juanita Montesclaros, tried to make it appear that Mr. Varona examined the Deed of Absolute Sale, when in truth and in fact, he did not. x x x
x x x x
It is very clear that Atty. Montesclaros tried to make it appear that the questioned document which was the Deed of Absolute Sale dated June 14, 1995 was indeed examined. However, this was not the case because Mr. Varona's alleged report on the second request for examination still refers to the previous report, Questioned Document Report No. 039-39 dated March 12, 1999, which was the same report that he prepared previously on the basis of the first request of Atty. Montesclaros dated February 28, 1999, wherein it did not include for examination the questioned Deed of Absolute Sale dated June 14, 1995, and which he had already identified on May 19, 1999. This only means that the Deed of Absolute Sale was not received and examined by Mr. Varona and yet his testimony on cross, dated June 16, 1999[,] still referred to the same report. There was[,] therefore no report made on the second request for examination dated May 28, 1999 on the Deed of Absolute Sale dated June 14, 1995 as Mr. Varona merely referred to his previous report as his alleged second report on the Deed of Absolute Sale. Moreover, the date of the second Written Request for examination is May 28, 1999 and the date of the Questioned Document Report No. 039-39 is March 12, 1999, and Mr. Varona's testimony of June 16, 1999 referred to the said report of March 12, 1999 which report was made on the basis of the first written request for examination.[31]
When a document in two or more copies is executed at or about the same time, with identical contents, all such copies are equally regarded as originals.[32] Original does not mean the first paper written, in contrast to a copy or transcript made later. The original depends upon the issue to be proved.[33] It is immaterial whether that document was written before or after another, was copied from another, or was itself used to copy from,[34] as long as its contents are the subject of inquiry.[35] Hence, one or some of these copies are still considered as originals, and they have equal claims to authenticity.
As a matter of practice, deeds of conveyance are prepared in several copies for notarization and record purposes. After notarization, the notary public retains copies pursuant to the Rules on Notarial Practice, one for his record and the other for transmittal to the court, through Clerk of Court concerned, where he secured his notarial commission.[36] When he gives all the other copies to the parties, the latter agree between themselves how many copies should be kept by each. The parties also agree which copies shall be presented to the Register of Deeds for registration, the city or municipal assessor in connection with the payment of transfer tax and other fees, and the Bureau of Internal Revenue in connection with the payment of the capital gains tax. All the notarized copies are originals. They are sometimes loosely referred to as "original copies" or "duplicate originals."
In the case at bar, presented in evidence were two copies of one and the same Deed of Absolute Sale dated 14 June 1995. These are respondents' Exh. "B"[37] and petitioners" Exh. "13"[38] which was also marked by respondents as their Exh. "O."[39] Exh. "B" appears to be a certified true copy of the original of the Deed of Absolute Sale presented to and kept as part of the records of the Register of Deeds.[40] Exhibit "13" is a copy of the original retained by petitioners.
Respondents had engaged Varona to determine the genuineness of the signatures purporting to be theirs on Exh. "B" by comparing them with the specimen signatures on the documents[41] which they also provided Varona. On the witness stand, Varona affirmed his finding in his Report[42] that the questioned signatures on Exh. "B" were not affixed by the same persons who affixed the specimen signatures and thus the questioned signatures were forged.[43]
However, after Varona testified on direct examination, petitioners manifested that they would engage him to examine a different set of documents which contain the signatures of respondents.[44] On cross-examination, Varona stated that he examined the signatures on Exh. "13" and the specimen signatures on the other documents furnished him and that after making the examination he arrived at the conclusion that the signatures on the documents, including Exh. "13," were affixed by the same persons.[45]
On the basis of the two findings of Varona, the first involving Exh. "B" and the second relating to Exh. "13," the trial court concluded that the questioned deed is genuine as the signatures thereon which purport to be those of respondents are really theirs. It ratiocinated that Varona had retracted his first opinion when he came out with his second opinion.
The trial court erred in using the supposed retraction as basis for its ruling. It cannot properly speak of retraction of one finding by the other because the examinations conducted by Varona covered two different standard signatures and two different sets of specimen signatures. It would have been a retraction or repudiation of the first conclusion if the standard signatures analyzed and compared with the specimen signatures were one and the same in the two examinations, even if the specimen signatures were contained in two different sets of documents which is not even the case here.
Yet clearly, Varona came out with inconsistent findings. On one hand, he concluded that Exh. "B" is spurious because the questioned signatures thereon were forged. On the other, he issued a different determination as regards Exh. "13," finding that the signatures thereon which purport to be those of respondents and the counterpart specimen signatures were affixed by the same persons. Since Exhs. "B" and "13" are copies of two originals of one and the same deed, his conclusions with respect to the two exhibits should be common, i.e., either the questioned signatures thereon were both affixed by the same persons or they were affixed by different persons.
The disharmonious findings render Varona's testimony unconvincing. Thus, the presumption of validity of the Deed of Absolute Sale as a notarized document is left unscathed.
Respondents seek to downplay the determinations made by Varona concerning Exh. "13" by impugning the authenticity of the specimen signatures, specifically the signature of Olegario Bagano on the CTC, Exh. "11." They claim in particular that the issuance date of the CTC was altered. Respondents, however, did not present any tangible proof to support their allegation. On the other hand, petitioners procured a certification from Cebu City Treasurer Eustaquio B. Cesa to the effect that the subject CTC belonged to Olegario Bagano.[46] As regards the other documents which contain the specimen signatures, namely: the Real Estate Mortgage (Exh. "2"), the Acknowledgment Receipt (Exh. "3"), the six deeds of conditional sale (Exhs. "4" to "9") and the China Bank check (Exh. "10"), respondent failed to adduce countervailing evidence of spuriousness. It is noteworthy that the parties to the deeds of sale were also petitioners and respondents themselves. Also, the amount covered by the Acknowledgment Receipt was the additional cash payment of petitioners to respondents.
On the part of the Court of Appeals, it chose to disregard Varona's conclusions on Exh. "13" on the premise that the written report which contained the conclusions was not presented in evidence.
However, as borne out by the record, Varona repeated his findings in open court in the course of his testimony on cross-examination and even was asked on re-direct examination by respondents' counsel thereon.[47]
Generally, it has been held that handwriting experts, while probably useful, are not indispensable in examining or comparing handwriting.[48] Yet without Varona's testimony, the Court is hard-pressed to find any other basis on the record to establish the forgery. One who alleges forgery has the burden to establish his case by a preponderance of evidence, or evidence which is of greater weight or more convincing than that which is offered in opposition to it.[49] Aside from the opinion of the handwriting expert which this Court finds inconsequential, the bare assertions on the part of respondent Cecilia Bagano that the signature appearing on the Deed of Absolute Sale is not that of her husband is not enough. No additional witnesses were presented.
We reassert that forgery is not presumed; it must be proven by clear, positive and convincing evidence. Those who make the allegation of forgery have the burden of proving it.[50] Respondents failed to substantiate with sufficient evidence their claim that their signatures appearing on the deed of sale were forged.
We are moreover influenced in our ultimate finding by the fact that there is also sufficient evidence on record to bolster the presumption that the notarized Deed of Absolute Sale was genuine. Ultimately worthy of consideration is petitioner Plebia Alfaro's positive testimony that she actually saw respondent Olegario Bagano affix his signature on the questioned document.[51] However self-serving that allegation may seem, it corroborates the other evidence that respondents did affix their signatures on the deed. Equally relevant in this supposition is the comparison of the standard signatures on Exh. "13" with the signatures of respondents found in the Real Estate Mortgage, Exh. "2," a document which was duly notarized and thus bears prima facie proof as to its due execution and the validity of the contents therein. Even respondent Cecilia Bagano admitted the genuineness of said document in her testimony.[52] No specific objection was raised by respondents as to the validity of the Deed of Real Estate Mortgage, their blanket objection thereto being confined to an overarching allegation against its materiality and relevancy, which is not sufficient to rebut the presumption of authenticity of the notarized deed.
And it must be said that our own comparison of the signatures on the Deed of Absolute Sale to the specimen signatures submitted by the parties reveals no substantial variance to warrant the conclusion
that there was forgery. Mere variance of the signatures cannot be considered as conclusive proof that the same were forged.[53]
What could respondents have done in order to fortify their claim of forgery following the manifest indecisiveness of the expert witness they had relied on? Considering that the burden was upon respondents to establish the alleged forgery, they should have presented evidence on rebuttal, which they did not do, or even another expert witness to attest to their claim of forgery, which again they failed to do. Disingenuous as petitioners' tactic may have seemed, in using their opponent's expert witness to advocate the contrary cause, respondents were not without remedy to mitigate the damage wrought by said witness. That they failed to introduce rebuttal evidence finally led to the collapse of their cause of action.
With the foregoing disquisition, discussion of the other issues raised by petitioners is unnecessary.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals is SET ASIDE. The Decision of the Regional Trial Court of Cebu, Branch 12, is REINSTATED.
SO ORDERED.
Quisumbing, (Chairperson), Carpio, Carpio Morales and Velasco, Jr., JJ., concur.
[1] Penned by Associate Justice Remedios A. Salazar-Fernando and concurred in by Associate Justices Eubolo G. Verzola and Edgardo F. Sundiam. Rollo, pp. 46-63.
[2] Id. at 71.
[3] Id. at 73.
[4] Folder of Exhibits, pp. 9-10.
[5] Id. at 11-15.
[6] Id. at 16.
[7] Id. at 17.
[8] Id. at 18.
[9] Id. at 2.
[10] Exh. "E" id. at 6.
[11] Supra note 4.
[12] Records, p. 209.
[13] Id. at 210-215.
[14] Id. at 216.
[15] Id. at 217.
[16] TSN, 19 May 1999, p. 8.
[17] Records, p. 208.
[18] TSN, 24 November 1999, pp. 4-10.
[19] Presided by Judge Aproniano B. Taypin; Records, pp. 262-268.
[20] Supra note 1.
[21] Rollo, pp. 22-23.
[22] Apex Mining Co. Inc. v. Southeast Mindanao Gold Mining Corp., G.R. Nos. 152613 & 152628, 23 June 2006, 492 SCRA 355.
[23] (1) when the findings are grounded entirely on speculation, surmises or conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on misapprehension of facts; (5) when the findings of facts are conflicting; (6) when in making its findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondent; (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; and (11) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion. Id. at 376.
[24] PNB v. Heirs of Militar, G.R. No. 164801, 30 June 2006, 494 SCRA 308.
[25] De Jesus v. CA, et. al., G.R. No. 57092, 21 January 1993; Penson v. Maranan, G.R. No. 148630, 20 June 2006, 491 SCRA 396.
[26] Cirelos v. Hernandez, G.R. No. 146523, 15 June 2006, 490 SCRA 625; Bravo-Guerrero v. Bravo, G.R. No. 152658, 29 July 2005, 465 SCRA 244.
[27] Records, pp. 266.
[28] Rules of Court, Rule 132, Sec. 24.
[29] Records, p. 267.
[30] Id. at 268.
[31]Rollo, pp. 57-61.
[32] Rules of Court, Rule 130, Sec. 4(b).
[33] Herrera, Oscar M., Remedial Law (1999 ed.), p. 179, citing 5 Moran 84 (1980 ed.), citing Fiscal of Pampanga v. Reyes and Guevara, 55 Phil. 905, 908.
[34] Wigmore on Evidence, Vol. IV (3rd. ed.), p. 442.
[35] Rules of Court, Rule 130, Sec. 4(a).
[36] 2004 Rules on Notarial Practice, Rule VI, Sec. 2.
[37] Records, p. 153.
[38] TSN, 16 June 1999, p. 2.
[39] Id. at 8.
[40] The copy of the original Deed of Absolute Sale marked as Exh. "B" was procured by respondents from the Register of Deeds of Cebu City, which copy bears a certification by Deputy Register of Deeds III, Ma. Vilma B. Sato.
[41] TSN, 25 November 1998, p. 9.
[42] Folder of Exhibits, p. 6.
[43] Id. at 4.
[44] Id. at 12.
[45] TSN, 19 May 1999, p. 5.
[46] Records, p. 217.
[47] People v. Libnao, 443 Phil. 506 (2003).
[48] China Banking Corp. v. Lagon, G.R. No. 160843, 11 July 2006, 494 SCRA 560.
[49] Delfin v. Billones, G.R. No. 146550, 17 March 2006, 485 SCRA 38.
[50] Herbon v. Palad, G.R. No. 149542, 20 July 2006; Pan Pacific Industrial Sales Co., Inc. v. Court of Appeals, G.R. No. 125283, 10 February 2006, 482 SCRA 164; R.F. Navarro & Co., Inc. v. Hon. Vailoces, 413 Phil. 432 (2001).
[51] TSN, 24 November 1999, p. 7.
[52] TSN, 27 July 1998, p. 3.
[53] JN Development Corporation v. Philippine Export and Foreign Loan Guarantee Corporation, G.R. No. 151060, 31 August 2005, 468 SCRA 555.