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RULE 128




Accused-appellant Rodegelio Turco, Jr. (aka “Totong”) was charged with the rape of his
neighbor 13-year-old Escelea Tabada. Escelea was about to sleep when she heard a familiar voice
calling her from outside her house. She recognized appellant Turco immediately as she had known
him for 4 years and he is her second cousin. Unaware of the danger that was about to befall her,
Escelea opened the door. Turco, with the use of towel, covered Escelea’s face, placed his right
hand on the latter’s neck and bid her to walk. When they reached a grassy part, near the pig pen
which was about 12 meters away from the victim’s house, appellant lost no time in laying the
victim on the grass, laid on top of the victim and took off her short pants and panty and succeeded
in pursuing his evil design-by forcibly inserting his penis inside Escelea’s private part despite
Escelea’s resistance. Appellant then threatened her that he will kill her if she reports the incident
to anybody.

For almost 10 days, she just kept the incident to herself until she was able to muster enough
courage to tell her brother-in-law, Orlando Pioquinto, who in turn informed Alejandro, the victim’s
father, about the rape of his daughter. Alejandro did not waste time and immediately asked Escelea
to see a doctor for medical examination and eventually file a complaint after the issuance of the
medical certificate. Turco, meanwhile, alleged that he and Escelea were sweethearts.

The trial court found Turco guilty of the charge. In his appeal, Turco argues, among others,
that no actual proof was presented that the rape of the complainant actually happened considering
that although a medical certificate was presented, the medico-legal officer who prepared the same
was not presented in court to explain the same.


Whether the medical certificate issued by medico-legal officer cannot be admitted as

evidence since he was not presented.


In People vs. Bernaldez, the court a quo erred in giving weight to the medical certificate
issued by the examining physician despite the failure of the latter to testify. While the certificate
could be admitted as an exception to the hearsay rule since entries in official records constitute
exceptions to the hearsay evidence rule, since it involved an opinion of one who must first be
established as an expert witness, it could not be given weight or credit unless the doctor who issued,
it could not be given weight or credit unless the doctor who issued it is presented in court to show
his qualifications. We place emphasis on the distinction between admissibility by evidence and the
probative value thereof. Evidence is admissible when it is relevant to the issue and is not excluded
by the law or the law or the rules or is competent. Since admissibility of evidence us determined
by it’s by its relevance and competence, admissibility is, an affair of logic and law. On the other
hand, the weight to be given to such evidence, once admitted, depends on judicial evaluation within
the guidelines provided in Rule 133 and the jurisprudence laid down with the Court. Thus, while
evidence may be admissible, it may be entitled to or no weight at all. Conversely, evidence which
may have evidentiary weight may be inadmissible because a special rule forbids its reception.
In addition, although the medical certificate is an exception to the hearsay rule, hence
admissible as evidence, it has very little probative value due to the absence of the examining
physician. Nevertheless, it cannot be said that the prosecution relied solely on the medical
certificate stating that there was hymen rupture, secondary to penile insertion as well as “foul-
smelling discharges. The diagnosis was ruptured hymen secondary to rape. In fact, reliance was
made on the testimony of the victim herself which, standing alone even without medical
examination, is sufficient to convict. It is well-settled that a medical examination is not
indispensable in the prosecution of rape it is enough that the evidence on hand convinces the court
that conviction is proper. In the instant case, the victim’s testimony alone is credible and sufficient
to convict.

216 SCRA 25 (1993)


Juan Mendoza, the father of defendant Olympio, is the owner of Farm Lots Nos. 46 and
106, devoted to the production of palay. The lots are tenanted and cultivated by Julian de la Cruz,
the husband of plaintiff Eufrocina de la Cruz.
In her complaint, Eufrocina alleged that upon the death of her husband, she succeeded him
as bona fide tenant. However, Olympio in conspiracy with the other defendants prevented her
daughter Violeta and her workers from entering and working on the farm lots. Defendants likewise
refused to vacate and surrender the lots, which prompted Eufrocina to file a case for the recovery
of possession and damages with a writ of preliminary mandatory injunction in the meantime.
The petitioners in this case, the defendants Reyes, Parayao, Aguinaldo and Mananghaya,
are duly elected and appointed barangay officials of the locality, who denied their interference in
the tenancy relationship existing between Olympio and Eufrocina. Olympio, for his part, raised
abandonment, sublease and mortgage of the farm lots without his consent, and non-payment of
rentals as his defenses.
The Court of Appeals (CA) affirmed the agrarian court’s decision with modification, which
ordered the defendants to restore possession of the farm lots to plaintiff Eufrocina. The CA
likewise ruled that the petitioners are solidarily liable to pay to Eufrocina the value of cavans of
palay until they have vacated the area.
On appeal, the petitioners questioned the favorable consideration given to the affidavits of
Eufrocina and Efren Tecson, since the affiants were not presented and subjected to cross-
Whether or not the trial court erred when it considered the affidavits of plaintiff, even if
the affiant was not presented and subjected to cross-examination.
The trial court did not err when it favorable considered the affidavits of Eufrocina and
Efren Tecson although the affiants were not presented and subjected to cross-examination. Section
16 of P.D. No. 946 provides that the “Rules of Court shall not be applicable in agrarian cases even
in a suppletory character.” The same provision states that “In the hearing, investigation and
determination of any question or controversy, affidavits and counter-affidavits may be allowed
and are admissible in evidence,” Moreover, in agrarian cases, the quantum of evidence required is
no more than substantial evidence. Thus, this case is an application of the rule with regard the
scope of the Rules on Evidence which states that “The rules of evidence shall be the same in all
courts and in all trials and hearings except as otherwise provided by law (ex. Section 16 of P.D.
No. 946) or these rules.”
RULE 129


Plaintiff City of Manila is owner of parcels of land, forming one compact area, bordering
Kansas, Vermont and Singalong streets in Malate, Manila. Shortly after liberation from 1945 to
1947, defendants entered upon these premises without plaintiff's knowledge and consent. They
built houses of second-class materials, again without plaintiff's knowledge and consent, and
without the necessary building permits from the city. There they lived thru the years to the present.

In November, 1947, the presence of defendants having previously been discovered were
given by Mayor Valeriano E. Fugoso written permits each labeled "lease contract” to occupy
specific areas in the property upon conditions therein set forth. Defendants Isabelo Obaob and
Gerardo Garcia (in the name of Marta A. Villanueva) received their permits from Mayor Manuel
de la Fuente on January 29 and March 18, respectively, both of 1948. The rest of the 23 defendants
exhibited none. For their occupancy, defendants were charged nominal rentals.

Epifanio de los Santos Elementary School, which was close, though not contiguous, to the
property had a pressing need to expand. The City Engineer gave the defendands 30 days each to
vacate the premises and to remove the constructions therein. This was followed by the City
Treasurer’s demand on each defendant for the payment of the amount due by reason of the
occupancy. The defendants refused, alleging that they have acquired the legal status of tenants by
reason of the written permits issued them.


Whether the defendants would benefit from the inadmissibility of the certificate as


The courts in Manila are required to take judicial notice of ordinances by the City of
The city's evidence on this point is Exhibit E, the certification of the Chairman, Committee
on Appropriations of the Municipal Board. That document recites that the amount of P100,000.00,
had been set aside in Ordinance 4566, the 1962-1963 Manila City Budget, for the construction of
an additional building of the Epifanio de los Santos Elementary School. It is indeed correct to say
that the court below, at the hearing, ruled out the admissibility of said document. But then, in the
decision under review, the trial judge obviously revised his views. He there declared that there was
need for defendants to vacate the premises for school expansion; he cited the very document,
Exhibit E, aforesaid.
It is beyond debate that a court of justice may alter its ruling while the case is within its
power, to make it formable to law and justice. Such was done here. Defendants' remedy was to
bring to the attention of the court its contradictory stance. Not having done so, this Court will not
reopen the case solely for this purpose.
Elimination of the certification, Exhibit E, as evidence, would not profit defendants. For,
in reversing his stand, the trial judge could well have taken-because he was duty bound to take-
judicial notice of Ordinance 4566. The reason being that the city charter of Manila requires all
courts sitting therein to take judicial notice of all ordinances passed by the municipal board of
Manila. And, Ordinance 4566 itself confirms the certification aforesaid that an appropriation of
P100, 000.00 was set aside for the "construction of additional building" of the Epifanio de los
Santos Elementary School.
Furthermore, defendants' position is vulnerable to assault from a third direction.
Defendants have absolutely no right to remain in the premises. The excuse that they have permits
from the mayor is at best flimsy. The permits to occupy are revocable on thirty days’ notice. They
have been asked to leave; they refused to heed. It is in this factual background that we say that the
city's need for the premises is unimportant. The city's right to throw defendants out of the area
cannot be gainsaid. The city's dominical right to possession is paramount. If error there was in the
finding that the city needs the land, such error is harmless and will not justify reversal of the
judgment below.



Sy Kiat, a Chinese national, died intestate, leaving real and personal properties in the
Philippines. Aida Sy-Gonzales and the other children of Sy with Asuncion Gillego filed a petition
for the settlement of his estate. Yao Kee filed her opposition to the petition claiming that she is
the legitimate wife of Sy. The probate court sustained the validity of Yao’s marriage to Sy, but
the Court of Appeals reversed the lower court’s decision and held that the petitioner’s and Yao’s
children were all of illegitimate status. The CA ruled that the marriage between Yao and Sy was
not proven to be valid under the Chinese laws.
Hence, Yao filed a petition for review with the Supreme Court claiming that the CA erred
in holding that the validity of the foreign marriage between Yao and Sy had not been proven. To
support this contention, Yao claimed that the CA should have taken judicial notice of the Chinese
laws on marriage which show the validity of her marriage to Sy.

Whether or not the Court of Appeals should take judicial notice of foreign laws on marriage

Courts cannot take judicial notice of foreign laws. Under the Philippine jurisprudence, to
establish a valid foreign marriage two things must be proven: (1) the existence of the foreign law
as a question of fact; and (2) the alleged foreign marriage by convincing evidence. Though Yao
may have established the fact of marriage, she has failed to prove the Chinese laws on marriage
that would show the validity of her marriage to Sy.
Well-established is the rule that Philippine courts cannot take judicial notice of foreign
laws or customs. They must be alleged and proved as any other fact. On this point, Yao cannot
rely on the case of Sy Joc Lieng v. Sy Quia to prove her case. The ruling that case did not show
that the court took judicial notice of Chinese laws on marriages. Even assuming for the sake of
argument that the court did take judicial notice of Chinese laws or customs on foreign marriages
in that case, Yao still failed to show that the law assumed to recognized in Sy Joc Lieng case
(wherein the marriage was celebrated in 1847) was still applicable during the time of her marriage
to Sy, which took place 84 years later. Hence, the Court of Appeals was correct in considering that
the validity of the marriage between Yao and Sy has not been established.
RULE 130





Plaintiffs are the heirs of Maximo Alvarez Sr. while the defendants are the heirs of
Margarita Prodon. The plaintiffs filed a complaint for quieting of title with respect to a particular
land in which they alleged that their parents had been in possession of the land and the registered
owner thereof and they could not locate the owner's duplicate copy of TCT No. 84797, but the
original copy of TCT No. 84797 on file with the Register of Deeds of Manila was intact.
However, the original copy contained an entry stating that the property had been sold to
defendant Prodon subject to the right of repurchase; and that the entry had been maliciously done
by Prodon because the deed of sale with right to repurchase covering the property did not exist.
Prodon on the other hand contended that she had become absolute owner of the property
by reason of the failure of Maximo Alvarez to repurchase such.
The RTC opined that although the deed itself could not be presented as evidence in court
as the custodian of the records of the property attested that the copy of the deed of sale with right
to repurchase could not be found in the files of the Register of Deeds of Manila, its contents could
nevertheless be proved by secondary evidence.

The RTC concluded that the original copy of the deed of sale with right to
repurchase had been lost, and that earnest efforts had been exerted to produce it before the
court. It ruled in favor of Prodon.
On appeal to CA, the CA concluded differently, in that it held that Prodon had not
established the existence, execution, and loss of the original document as the pre-requisites
for the presentation of secondary evidence. Its application of the Best Evidence Rule
naturally led the CA to rule that secondary evidence should not have been admitted.

Whether or not the Best Evidence Rule applies in an action for quieting of title based on
the inexistence of a deed of sale with right to repurchase.


The Best Evidence Rule applies only when the terms of a written document are the subject
of the inquiry. In an action for quieting of title based on the inexistence of a deed of sale with right
to repurchase that purportedly cast a cloud on the title of a property, therefore, the Best Evidence
Rule does not apply, and the defendant is not precluded from presenting evidence other than the
original document. The CA and the RTC both misapplied the Best Evidence Rule to this case.

The Best Evidence Rule applies only when the terms of a writing are in issue. When the
evidence sought to be introduced concerns external facts, such as the existence, execution or
delivery of the writing, without reference to its terms, the Best Evidence Rule cannot be
invoked. In such a case, secondary evidence may be admitted even without accounting for the
original. This action does not involve the terms or contents of the deed of sale with right to
repurchase. The principal issue was whether or not the deed of sale with right to repurchase, duly
executed by the late Maximo Alvarez, Sr., had really existed.

The Best Evidence Rule was not applicable because the terms of the deed of sale with right
to repurchase were not the issue. The lower court should have simply addressed and determined
whether or not the "existence" and "execution" of the deed as the facts in issue had been proved
by preponderance of evidence. The presentation of evidence other than the original document, like
the testimonies of Prodon and Jose Camilon, the Notarial Register of Notary Eliseo Razon, and
the Primary Entry Book of the Register of Deeds, would have sufficed even without first proving
the loss or unavailability of the original of the deed.

The foregoing notwithstanding, good trial tactics still required Prodon to establish and
explain the loss of the original of the deed of sale with right to repurchase to establish the
genuineness and due execution of the deed. This was because the deed, although a collateral
document, was the foundation of her defense in this action for quieting of title. Her inability to
produce the original logically gave rise to the need for her to prove its existence and due execution
by other means that could only be secondary under the rules on evidence. Towards that end,
however, it was not required to subject the proof of the loss of the original to the same strict
standard to which it would be subjected had the loss or unavailability been a precondition for
presenting secondary evidence to prove the terms of a writing.

A review of the records reveals that Prodon did not adduce proof sufficient to show the
loss or explain the unavailability of the original as to justify the presentation of secondary evidence.
Camilon, one of her witnesses, testified that he had given the original to her lawyer, Atty. Anacleto
Lacanilao, but that he (Camilon) could not anymore retrieve the original because Atty. Lacanilao
had been recuperating from his heart ailment. Such evidence without showing the inability to
locate the original from among Atty. Lacanilao’s belongings by himself or by any of his assistants
or representatives was inadequate. Moreover, a duplicate original could have been secured from
Notary Public Razon, but no effort was shown to have been exerted in that direction.

In contrast, the records contained ample indicia of the improbability of the existence of the
deed. Camilon claimed that the late Maximo Alvarez, Sr. had twice gone to his residence in
Meycauayan, Bulacan, the first on September 5, 1975, to negotiate the sale of the property in
question, and the second on September 9, 1975, to execute the deed of sale with right to repurchase.



Meyers, an officer of the US army, organized a Corp. called the Aviation Electric Corp.
for the manufacture of parts & accessories for airplanes & paid into its treasury $500 to cover the
authorized capital stock. 224 shares went to June Ballabu and the remaining shares to David
Johnson & Robert Pine. It had orders worth $20,000 from the Signal Corps of the US
Army.Lamarre was made Secretary-treasurer and the 224 shares were transferred to him & he later
became President. At the end of the war, there was reduced demand and led to the dissolution of
the corp. The US Senate created an investigating committee to look into instances of waste, fraud,
corruption, excessive profits during the war. Meyers testified that: Meyers was not financially
interested/connected with Aviation Electric Corp, a cadillac automobile was purchased for the
corp. & for its use, and the sum of $10,000, paid by means of Aviation checks for furnishing
Meyer’s apartment was a gift from Lamarre

Based on this testimony, Meyers was charged and convicted of the charge of subordination
for perjury by the trial court. On appeal, he alleges that the trial court took on a bizarre procedure
when it accepted the testimony of William Rogers who examined his co-defendant Lamarre in the
Senate investigation and also allowed the introduction of a stenographic note transcript of
Lamarre’s testimony on the same hearing. This is based on the theory that the transcript itself was
the best evidence of Lamarre’s testimony before the Senate and there was no need for Roger’s


Whether or not the best evidence rule is applicable



The best evidence rule applies only when contents of writing are to be proved which does
not obtain in the case at bar. In prosecution for perjured testimony given before the Senate
committee, the testimony by chief counsel of the senatorial committee as to what witnesses had
sworn to was not barred under the best evidence rule, and it was not unfair or prejudicial to permit
transcript of testimony given before the subcommittee to be introduced after chief counsel had
testified, though counsel testified early in protracted trial and transcript was introduced near its
close, since both methods of proving the perjury were permissible, and prosecution could present
its proof in any order it chose.

Here, there was no attempt to prove the contents of a writing. The issue was what Lamarre
had said, not what the transcript contained. The transcript was evidence of what he had said but it
was not the only admissible evidence concerning it. The testimony of Rogers, chief counsel to the
committee, was equally competent and admissible whether given before or after the transcript was
received in evidence. Statements alleged to perjuries may be proved by any person who heard
them, as well as, by the reporter who recorded them in shorthand.





Nelson Santos (Santos) applied for a license with the National Food Authority (NFA) to
engage in the business of storing not more than 30,000 sacks of palay in his warehouse
at Barangay Malacampa, Camiling, Tarlac. Under Act No. 3893 or the General Bonded
Warehouse Act, as amended, the approval for said license was conditioned upon posting of a cash
bond, a bond secured by real estate, or a bond signed by a duly authorized bonding company, the
amount of which shall be fixed by the NFA Administrator at not less than thirty-three and one third
percent (33 1/3%) of the market value of the maximum quantity of rice to be received.
Country Bankers Insurance Corporation issued Warehouse Bond through its agent,
Antonio Lagman. Santos was the bond principal, Lagman was the surety and the Republic of the
Philippines, through the NFA was the obligee. In consideration of these issuances, corresponding
Indemnity Agreements were executed by Santos, as bond principal, together with Ban Lee Lim
Santos (Ban Lee Lim), Rhosemelita Reguine (Reguine) and Lagman, as co-signors. The latter
bound themselves jointly and severally liable to Country Bankers for any damages, prejudice,
losses, costs, payments, advances and expenses of whatever kind and nature, including attorney’s
fees and legal costs, which it may sustain as a consequence of the said bondSantos then secured a
loan using his warehouse receipts as collateral. When the loan matured, Santos defaulted in his
payment. The sacks of palay covered by the warehouse receipts were no longer found in the
bonded warehouse. By virtue of the surety bonds, Country Bankers was compelled to pay
Consequently, Country Bankers filed a complaint for a sum of money before the Regional
Trial Court (RTC) of Manila. In his Answer, Lagman alleged that the 1989 Bonds were valid only
for 1 year from the date of their issuance, as evidenced by receipts; that the bonds were never
renewed and revived by payment of premiums; that on November 5, 1990, Country Bankers issued
Warehouse Bond No. 03515 (1990 Bond) which was also valid for one year and that no Indemnity
Agreement was executed for the purpose; and that the 1990 Bond supersedes, cancels, and renders
no force and effect the 1989 Bonds. The trial court rendered judgment declaring Reguine and
Lagman jointly and severally liable to pay Country Bankers.
Lagman filed an appeal to the Court of Appeals. He insisted that the lifetime of the 1989
Bonds, as well as the corresponding Indemnity Agreements was only 12 months. According to
Lagman, the 1990 Bond was not pleaded in the complaint because it was not covered by an
Indemnity Agreement and it superseded the two prior bonds. The appellate court held that the 1990
Bond superseded the 1989 Bonds. The appellate court rejected the argument of Country Bankers
that the 1989 bonds were continuing, finding, as reason therefor, that the receipts issued for the
bonds indicate that they were effective for only one-year.
Country Bankers questions the existence of a third bond, the 1990 Bond, which
allegedly cancelled the 1989 Bonds on the following grounds: First, Lagman failed to produce the
original of the 1990 Bond and no basis has been laid for the presentation of secondary evidence;
Second, the issuance of the 1990 Bond was not approved and processed by Country Bankers;
Third, the NFA as bond obligee was not in possession of the 1990 Bond. Country Bankers stresses
that the cancellation of the 1989 Bonds requires the participation of the bond obligee. Ergo, the
bonds remain subsisting until cancelled by the bond obligee. Country Bankers further assert that
Lagman also failed to prove that the NFA accepted the 1990 Bond in replacement of the 1989

Whether or not mere photocopy of the 1990 Bond is admissible in evidence.

The Supreme Court rule as inadmissible such copy.
Under the best evidence rule, the original document must be produced whenever its
contents are the subject of inquiry. The rule is encapsulated in Section 3, Rule 130 of the Rules of
Court, as follow:

Sec. 3. Original document must be produced; exceptions. When the subject of inquiry is
the contents of a documents, no evidence shall be admissible other than the original document itself,
except in the following cases:

(a) When the original has been lost or destroyed, or cannot be produced in court, without
bad faith on the part of the offeror;
(b) When the original is in the custody or under the control of the party against whom the
evidence is offered, and the latter fails to produce it after reasonable notice;
(c) When the original consists of numerous accounts or other documents which cannot be
examined in court without great loss of time and the fact sought to be established from them is only
the general result of the whole; and
(d) When the original is a public record in the custody of a public officer or is recorded in
a public office.

A photocopy, being a mere secondary evidence, is not admissible unless it is shown that
the original is unavailable. Section 5, Rule 130 of the Rules of Court states:

SEC.5 When original document is unavailable. When the original document has been lost
or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence
and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or
by a recital of its contents in some authentic document, or by the testimony of witnesses in the order

Before a party is allowed to adduce secondary evidence to prove the contents of the
original, the offeror must prove the following: (1) the existence or due execution of the original;
(2) the loss and destruction of the original or the reason for its non-production in court; and (3) on
the part of the offeror, the absence of bad faith to which the unavailability of the original can be
attributed. The correct order of proof is as follows: existence, execution, loss, and contents.

In the case at bar, Lagman mentioned during the direct examination that there are actually
four (4) duplicate originals of the 1990 Bond: the first is kept by the NFA, the second is with the
Loan Officer of the NFA in Tarlac, the third is with Country Bankers and the fourth was in his
possession. A party must first present to the court proof of loss or other satisfactory explanation
for the non-production of the original instrument. When more than one original copy exists, it must
appear that all of them have been lost, destroyed, or cannot be produced in court before secondary
evidence can be given of any one. A photocopy may not be used without accounting for the other

Despite knowledge of the existence and whereabouts of these duplicate originals, Lagman
merely presented a photocopy. He admitted that he kept a copy of the 1990 Bond but he could no
longer produce it because he had already severed his ties with Country Bankers. However, he did
not explain why severance of ties is by itself reason enough for the non-availability of his copy of
the bond considering that, as it appears from the 1989 Bonds, Lagman himself is a
bondsman. Neither did Lagman explain why he failed to secure the original from any of the three
other custodians he mentioned in his testimony. While he apparently was able to find the original
with the NFA Loan Officer, he was merely contented with producing its photocopy. Clearly,
Lagman failed to exert diligent efforts to produce the original.


The petitioners De Vera and respondent Leona, married to respondent Aguilar, are the
children and heirs of the late MarcosaBernabe. During her lifetime, she owned the disputed parcel
of land in Camalig, Maycauayan, Bulacan. Two of the petitioners, Basilio and Felipe, mortgaged
said land to Atty. Bordador. When the mortgage matured, the Aguilar spouses redeemed it from
Atty. Bordador and were in turn sold to them by Marcosa, evidenced by a deed of absolute sale.
Thereafter, an OCT was issued in their name. Three years later, the De Veras wrote to the Aguilar
spouses demanding for partition of the disputed land claiming that as children of Marcosa, they
were co.owners of the property. They further claimed that the Aguilar spouses had resold the
property to Marcosa. The Aguilar spouses denied all these allegations by the De Veras. The De
Veras filed a suit for reconveyance of the lot and the trial court ruled in favor of the petitioners
after admitting, over the objection of the Aguilar spouses, a photocopy of an alleged deed of
finding that the loss or destruction of the original deed of sale has not been duly proven by the
petitioners rendering the photocopy of the deed of sale as inadmissible in evidence.

Whether or not the petitioners have satisfactorily proven the loss of the original deed of
sale so as to allow the photocopy of the same.


Secondary evidence is admissible when the original documents were actually lost or
destroyed. But prior to the introduction of such secondary evidence, the proponent must establish
the former existence of the instrument. The correct order of proof is as follows: (1) existence, (2)
execution, (3) loss, (4) contents, although this order may be changed in the discretion of the court.
The sufficiency of proof offered as a predicate for the admission of an alleged lost deed lies within
the judicial discretion of the trial court under all the circumstances of the particular case. A reading
of the decision of the trial court shows that it merely ruled on the existence and due execution of
the alleged deed of sale dated April 28, 1959. It failed to look into the facts and circumstances
surrounding the loss or destruction of the original copies of the alleged deed of sale.
In establishing the execution of a document, the same may be established by the person or
persons who executed it, by the person before whom its execution was acknowledged, or by any
person who was present and saw it executed or who, after its execution saw it and recognized the
signatures or by a person to whom the parties to the instrument had previously confessed the
execution thereof. The Court agreed with the findings of the trial court that the petitioners have
sufficiently established the due execution of the alleged deed of sale through the testimony of the
notary public. The destruction of the instrument may be proved by any person knowing the fact.
The loss may be shown by any person who knew the fact of its loss, or by anyone who made, in
the judgment of the court, a sufficient examination in the place or places where the document or
papers of similar character are usually kept by the person in whose custody the document lost was,
and has been unable to find it or who has made any other investigation which is sufficient to satisfy
the court that the instrument is indeed lost.





Petitioner-spouses Guillermo Agbada and Maxima Agbada borrowed money from

respondent Inter-Urban Developers, Inc. To secure the loan, the parties concurrently executed
a deed of real estate mortgage over a parcel of land and the improvements owned by the spouses.
The spouses failed to pay the loan within the six-month period despite several out-of-court
demands made by respondent Inter-Urban Developers, Inc.

Inter-Urban Developers, Inc. filed with the Regional Trial Court of Quezon City, Branch
105, a complaint for foreclosure of real estate mortgage On 2 March 1994, without assistance of
counsel, the spouses filed their unverified answer admitting that they had borrowed the amount
of P1, 500,000.00 from respondent and had executed the real estate mortgage to secure the loan
but denying that it was payable within six (6) months and at three percent (3%) interest per month.

With the assistance of counsel, petitioner-spouses Agbada moved to amend their answer to
allege that the mortgage contract was not reflective of the true intention of the parties since in
reality the loan was interest-free and would mature only after five (5) years from execution thereof
and that consequently they were denying under oath the due execution and authenticity of the
mortgage document, although the proposed answer was still not verified by them. Interestingly,
the amended answer departed from the allegation in the original answer that the loan would earn
interest at the legal rate. The trial court denied the amendment of the answer holding that the
change would substantially alter the gist of the defense.

The trial court promulgated its Summary Judgment in favor of respondent Inter-Urban
Developers, Inc. It held that Simeon Ong Tiam, compadre of petitioner-spouses and then president
of Inter-Urban Developers, Inc. could not have obligated his principal by contemporaneous
agreement amending the maturity of the loan from six (6) months tofive (5) years and the interest
rate from three percent (3%) per month to the default or statutory rate, much less interest-free,
since the undertaking was contrary to the express provisions of the duly executed loan and
mortgage contract.
Petitioner-spouses did not appeal the Summary Judgment nor did they pay the judgment
debt. Inter-Urban Developers, Inc. moved for a decree of foreclosure which the spouses did not
oppose nor did they attend the hearing on the motion. The mortgaged real estate was sold at public
auction to respondent Inter-Urban Developers, Inc. as highest bidder for P4, 637,092.74 which
was supposed to be in full satisfaction of the judgment debt.
Upon motion of Inter-Urban Developers, Inc. and despite petitioner-spouses' opposition
thereto on the ground that the purchase price of the mortgaged property was below its appraised
value according to an appraisal report, the trial court confirmed the sale in favor of Inter-Urban
Developers, Inc. The trial court ruled that it could not have given weight to the appraisal report
since this report was not authenticated nor was the appraiser presented as witness during the
hearing of the motion to allow Inter-Urban Developers, Inc. an opportunity to cross-examine on
the appraised value of the property.
Petitioner-spouses Guillermo Agbada and Maxima Agbada filed with the Court of Appeals a
petition for annulment of judgment with prayer for preliminary injunction.The petition sought the
annulment of the Summary Judgment for alleged violation of their right to due process arising
from the absence of a full-blown trial on a genuine issue of fact that the loan and mortgage would
mature only on the fifth year following its execution on February 21, 1991. The petition did not
question compliance with legal requirements of the foreclosure proceedings or any part thereof.
Petitioner-spouses argue that they were deprived of due process when their defense, i.e., that the
real estate mortgage carries a default interest rate and matures only on the fifth year following its
execution on February 21, 1991.
On the other hand, respondent Inter-Urban Developers, Inc. claims that petitioner-spouses did
not deny under oath the authenticity and due execution of the real estate mortgage document,
hence, were barred from setting up the defense that the interest rate and maturity provisions of the
loan and mortgage contract were different from those stipulated in the written agreement.
Respondent further argues that the alleged promise made by Simeon Ong Tiam even if true cannot
be enforced against Inter-Urban Developers, Inc. since there is nothing to show that he was
authorized to enter into the alleged contemporaneous agreement. Finally, respondent asserts that
there were other remedies available to petitioners which they failed to exhaust by their own
negligence, thus rendering the petition for annulment of judgment clearly unavailing and that they
voluntarily submitted to the jurisdiction of the trial court by seeking affirmative relief from the
effects of the assailed Summary Judgment.
Whether or not contemporaneous agreement by the parties is an exception to the parole
evidence rule

In the instant case, while petitioner-spouses appear to tender a material issue of fact, i.e.,
demandability and interest rate of the loan, summary judgment would nonetheless be proper where
it is shown that issues tendered are sham, fictitious, contrived, set up in bad faith, or patently
unsubstantial. To forestall summary judgment, it is essential for the non-moving party to confirm
the existence of genuine issues where he has substantial, plausible and fairly arguable defense, i.e.,
issues of fact calling for the presentation of evidence upon which a reasonable findings of fact
could return a verdict for the non-moving party although mere scintilla of evidence in support of
the party opposing summary judgment will be insufficient to preclude entry thereof. The proper
inquiry would therefore be whether the affirmative defense offered by petitioner-spouses
constitutes genuine issue of fact requiring a full-blown trial.
We rule that the affirmative defense sets up a sham issue which justifies summary
judgment. For one, petitioner-spouses have not explained how their affirmative defense, since it
attempts to vary a written agreement, could be proved by admissible evidence. It would be useless
to avail of a complete trial where the issue proposed by petitioner-spouses could not be resolved
in any manner other than by referring to the explicit terms of the loan and mortgage agreement. To
be sure, where the parties have reduced their agreement in writing, it is presumed that they have
made the writing the only repository and memorial of the truth and whatever is not found in the
writing must be understood to have been waived and abandoned.Specifically, under Sec. 9, Rule
130, Revised Rules of Evidence, the trial court is barred from admitting evidence which proves or
tends to prove the alleged concurrent agreement with Simeon Ong Tiam which alters or varies the
terms of the deed between the parties.
While it is true that contracting parties may establish stipulations, clauses, terms and
conditions as they may deem convenient provided they are not contrary to law, morals, good
customs, public order, or public policy, the parol evidence rule forbids any addition to or
contradiction of the terms of an agreement reduced into writing by testimony purporting to show
that, at or before the signing of the document, other or different terms were orally agreed upon by
the parties. As applied herein, the alleged terms of the contemporaneous agreement between
petitioner-spouses and Simeon Ong Tiam cannot be proved for they are not embodied in the
mortgage deed but exist only in their faint recollection. Only the terms of the loan and mortgage
agreement providing for six (6) months maturity from date of execution thereof and the interest
rate of three percent (3%) per month are worth considering and implementing.
The instant case is not unprecedented. In Tarnate v. Court of Appeals involving a case of
foreclosure of real estate mortgage that was resolved by means of summary judgment where
neither the existence of the loans and the mortgage deeds nor the fact of default on the due
repayments was disputed, we rejected as genuine issue the contention of petitioners therein that
they were misled by respondent bank to believe that the loans were long-term accommodations
since the loan documents admittedly executed by the parties clearly contradicted petitioners
asseverations and the parties must have realized that when the terms of the agreement were
unequivocally reduced in writing, they could hardly be controverted by oral evidence to the
contrary. Similarly, in Heirs of Amparo del Rosario v. Santos, where we rejected the alteration of
the conditions imposed in the deed of sale, this Court ruled that appellants therein could not be
allowed to introduce evidence of conditions allegedly agreed upon by them other than those
stipulated in the deed of sale because when they reduced their agreement in writing, it is presumed
that they have made the writing the only repository and memorial of truth, and whatever is not
found in the writing must be understood to have been waived and abandoned.
Petitioner-spouses cannot invoke any of the exceptions to the parol evidence rule, more
particularly, the alleged failure of the writing to express the true intent and agreement of the
parties. The exception obtains only where the written contract is so ambiguous or obscure in terms
that the contractual intention of the parties cannot be understood from a mere reading of the
instrument, thus necessitating the reception of relevant extrinsic evidence of the contractual
provision in dispute to enable the court to make a proper interpretation of the instrument. However,
in the case at bar, the loan and mortgage deed is clear and without ambiguity, mistake or
imperfection in specifying the maturity of the loan exactly after six (6) months from date of
execution thereof at interest rate of three percent (3%) per month, and certainly these unmistakable
terms forbid petitioner-spouses from introducing evidence aliunde of the alleged contemporaneous
agreement in violation of the parol evidence rule.





On March 13, 1948, Seeto presented to PNB at Surigao a P5,000 check, payable to cash or
bearer, and drawn by one Gan Yek Kiao against the Cebu branch of the Philippine National Bank
of Communications. After consultation with the bank employees, Seeto made a general and
unqualified endorsement of the check, which was accepted by PNB’s agency, which paid Seeto
the value of the check therefore. Upon being presented to the drawee bank for payment, however,
the check was dishonored for insufficient funds. PNB deemanded refund from Seeto. Seeto,
however, refused, claiming that at the time of the negotiation of the check, the drawer had
sufficient funds in the drawee bank, and had not PNB delayed in forwarding the check until the
drawer’s fund was exhausted, the same would have been paid. PNB alleged that Seeto gave
assurances that the drawer of the check had sufficient funds with the bank, and that Seeto had made
a general and unqualified indorsement thereon. As evidence, PNB presented two witnesses at the
trial, who testified that the check was cashed due to assurances given by Seeto and the promise
that he would refund the amount paid by PNB should the check be dishonored.


Whether or not parol evidence with respect to the verbal assurances made by Seeto be
admitted as evidence.



Any prior or contemporaneous conversation in connection with a note or its indorsement

may be proved by parol evidence. An extrinsic agreement between endorser and endorsee which
cannot be embodied in the instrument without impairing its credit is provable by parol evidence.
If, therefore, the supposed assurances that the drawer had funds and that the Seeto would refund
the amount of the check if the drawer had no funds, were the considerations or reasons that induced
the branch agency of PNB to go out of its ordinary practice of not cashing out of town checks and
accept the check and to pay its face value, the may be proved by parol evidence, provided, of
course, that the assurances or inducements offered would not vary, alter, or destroy the obligations
attached by law to the indorsement. In this case, however, there was no express obligation assumed
by Seeto that the drawer would always have funds, or that he would refund the amount of the check
even if there was delay in its presentation. Therefore, such assurances were discharged by the
unreasonable delay in the presentation of the check for payment.