Republic of the Philippines


G.R. No. 155483             April 27, 2007




The rule on formal offer of evidence is not a trivial matter. Failure to make a formal offer within a considerable period of time shall be deemed a waiver to submit it. Consequently, as in this case, any evidence that has not been offered shall be excluded and rejected.

The Case

The present Petition for Review on Certiorari under Rule 45 seeks the annulment of the February 15, 2002 Decision1 of the Court of Appeals (CA) in CA-G.R. CV No. 68544, and its September 6, 2002 Resolution2 denying petitioners’ Motion for Reconsideration. In effect, petitioners entreat this Court to nullify the February 24, 2000 Resolution of the Urdaneta City Regional Trial Court (RTC), Branch 45 in Civil Case No. U-5743, granting the demurrer to evidence filed by respondents and dismissing their Complaint, which ruling was upheld by the CA.

The Facts

The instant case arose from a Complaint for Declaration of Nullity of Documents and Titles, Recovery of Possession and Ownership, Reconveyance, Partition and Damages filed by petitioners at the Urdaneta City RTC of Pangasinan against respondents. Petitioners alleged a share over three (3) properties owned by respondents, which formed part of the estate of petitioners’ deceased grandparents, Benito and Florentina Pasag. They averred that Benito and Florentina Pasag died intestate, thus, leaving behind all their properties to their eight (8) children––Pedro, Isidro, Basilio, Severino, Bonifacio, Maria, Juanita, and Fortunata. However, Severino, the predecessor of respondents, claimed in an affidavit of self-adjudication that he is the sole, legal, and compulsory heir of Benito and Florentina Pasag. Consequently, he was able to appropriate to himself the properties covered by Original Certificates of Title (OCT) Nos. 2983 and 1887. Thereafter, Severino executed a deed of absolute sale over the said properties in favor of his daughter, respondent Florentina Parocha. Moreover, petitioners alleged that Severino used the same affidavit of self-adjudication to secure a free patent over an agricultural land that had long been under the possession of Benito and Florentina Pasag.

In denying the material allegations in the Complaint, respondents averred in their Answer that the properties left behind by the spouses Benito and Florentina Pasag had already been partitioned among their eight (8) surviving children. They claimed that the parcels of land covered by OCT Nos. 2983 and 1887 are Bonifacio’s share of which he later on renounced in a Quitclaim Deed in favor of his brother, Severino. As regards the parcel of land covered by OCT No. P-20607, respondents asserted that the said land had been in Severino’s possession and occupation since 1940, thus, giving him the right to apply for and be granted a free patent over it. Having complied with the requirements of law, Severino’s title had now become indefeasible.

The trial of the case commenced on March 19, 1996. On March 9, 1999, petitioners rested their case and were granted ten (10) days within which to submit their formal offer of documentary exhibits. However, petitioners failed to submit the said pleading within the required period.

On April 19, 1999, petitioners asked the trial court to give them until May 11, 1999 to submit their offer of evidence; and it subsequently granted their motion. However, on May 11, 1999, they again failed to submit their offer of evidence and moved for another extension of five (5) days.

Unfortunately, petitioners still failed to submit their formal offer of evidence within the extended period. Consequently, in its June 17, 1999 Order,3 the trial court deemed waived petitioners’ right to make their formal offer of evidence.

On July 27, 1999, petitioners moved for the admission of their offer of evidence. On September 1, 1999, however, the trial court issued an Order4 denying petitioners’ formal offer of evidence for their "consistent failure"5 to submit it.

On October 28, 1999, respondents filed a Motion to Dismiss on Demurrer to Evidence.

On February 24, 2000, in its Resolution,6 the trial court granted respondents’ demurrer to evidence and ordered the dismissal of the Complaint. Petitioners’ Motion for Reconsideration was denied for lack of merit.

Petitioners appealed the case to the CA.

The Ruling of the Court of Appeals

Affirming the ruling of the trial court, the CA held that petitioners failed to prove their claim by a preponderance of evidence. It observed that "no concrete and substantial evidence was adduced by [petitioners]"7 to substantiate their allegation that Severino, the predecessor of respondents, fraudulently executed an affidavit of self-adjudication in order to exclude petitioners from the settlement of the estate of Benito and Florentina Pasag.

The Issues

Petitioners submit the following issues for our consideration:


The Hon. Court of Appeals committed reversible error in affirming the Decision of the Court a quo despite the gross negligence of their counsel thus depriving their rights to due process.


The Court of Appeals committed reversible error in affirming the Decision of the trial court instead of remanding the case for further proceedings to clearly establish their respective claims on the subject properties.8

Simply stated, the issues revolve on the propriety of the following: (1) waiver of petitioners’ offer of documentary evidence; and (2) dismissal of the Complaint on a demurrer to evidence.

The Court’s Ruling

The petition has no merit.

Waiver of the Offer of Evidence

The Rules of Court provides that "the court shall consider no evidence which has not been formally offered."9 A formal offer is necessary because judges are mandated to rest their findings of facts and their judgment only and strictly upon the evidence offered by the parties at the trial.10 Its function is to enable the trial judge to know the purpose or purposes for which the proponent is presenting the evidence.11 On the other hand, this allows opposing parties to examine the evidence and object to its admissibility. Moreover, it facilitates review as the appellate court will not be required to review documents not previously scrutinized by the trial court.12

Strict adherence to the said rule is not a trivial matter. The Court in Constantino v. Court of Appeals13 ruled that the formal offer of one’s evidence is deemed waived after failing to submit it within a considerable period of time. It explained that the court cannot admit an offer of evidence made after a lapse of three (3) months because to do so would "condone an inexcusable laxity if not non-compliance with a court order which, in effect, would encourage needless delays and derail the speedy administration of justice."14

Applying the aforementioned principle in this case, we find that the trial court had reasonable ground to consider that petitioners had waived their right to make a formal offer of documentary or object evidence. Despite several extensions of time to make their formal offer, petitioners failed to comply with their commitment and allowed almost five months to lapse before finally submitting it. Petitioners’ failure to comply with the rule on admissibility of evidence is anathema to the efficient, effective, and expeditious dispensation of justice. Under the Rule on guidelines to be observed by trial court judges and clerks of court in the conduct of pre-trial and case of deposition and discovery measures,15 it is provided that:

On the last hearing day allotted for each party, he is required to make his formal offer of evidence after the presentation of his last witness and the opposing party is required to immediately interpose his objection thereto. Thereafter the judge shall make the ruling on the offer of evidence in open court. However, the judge has the discretion to allow the offer of evidence in writing in conformity with Section 35, Rule 132[.]

On the other hand, Section 35 of Rule 132 of the Rules of Court provides that "documentary and object evidence shall be offered after the presentation of a party’s testimonial evidence." It requires that "such offer shall be done orally unless allowed by the Court to be done in writing."

The pre-trial guidelines and Sec. 35 of Rule 132 jointly considered, it is made clear that the party who terminated the presentation of evidence must make an oral offer of evidence on the very day the party presented the last witness. Otherwise, the court may consider the party’s documentary or object evidence waived. While Sec. 35 of Rule 132 says that the trial court may allow the offer to be done in writing, this can only be tolerated in extreme cases where the object evidence or documents are large in number––say from 100 and above, and only where there is unusual difficulty in preparing the offer.

The party asking for such concession should however file a motion, pay the filing fee, set the date of the hearing not later than 10 days after the filing of the motion,16 and serve it on the address of the party at least three (3) days before the hearing.17 In short, it is a litigated motion and cannot be done ex parte. Counsels for parties should not however rely on the benevolence of the trial court as they are expected to have thoroughly and exhaustively prepared for all possible pieces of evidence to be presented and the purposes for which they will be utilized. As a matter of fact, the draft of the offer of evidence can already be prepared after the pre-trial order is issued, for, then, the counsel is already fully aware of the documentary or object evidence which can be put to use during trial. Remember that under the pre-trial guidelines, the trial court is ordered to integrate in the pre-trial order the following directive:

No evidence shall be allowed to be presented and offered during the trial in support of a party’s evidence-in-chief other than those that had been identified below and pre-marked during the pre-trial. Any other evidence not indicated or listed below shall be considered waived by the parties. However, the Court, in its discretion, may allow introduction of additional evidence in the following cases: (a) those to be used on cross-examination or re-cross-examination for impeachment purposes; (b) those presented on re-direct examination to explain or supplement the answers of a witness during the cross-examination; (c) those to be utilized for rebuttal or sur-rebuttal purposes; and (d) those not available during the pre-trial proceedings despite due diligence on the part of the party offering the same.18

It is apparent from the foregoing provision that both parties should obtain, gather, collate, and list all their respective pieces of evidence–– whether testimonial, documentary, or object––even prior to the preliminary conference before the clerk of court or at the latest before the scheduled pre-trial conference. Otherwise, pieces of evidence not identified or marked during the pre-trial proceedings are deemed waived and rendered inutile. The parties should strictly adhere to the principle of "laying one’s cards on the table." In the light of these issuances and in order to obviate interminable delay in case processing, the parties and lawyers should closely conform to the requirement that the offer of evidence must be done orally on the day scheduled for the presentation of the last witness.

Thus, the trial court is bound to consider only the testimonial evidence presented and exclude the documents not offered. Documents which may have been identified and marked as exhibits during pre-trial or trial but which were not formally offered in evidence cannot in any manner be treated as evidence. Neither can such unrecognized proof be assigned any evidentiary weight and value. It must be stressed that there is a significant distinction between identification of documentary evidence and its formal offer. The former is done in the course of the pre-trial, and trial is accompanied by the marking of the evidence as an exhibit; while the latter is done only when the party rests its case.19 The mere fact that a particular document is identified and marked as an exhibit does not mean that it has already been offered as part of the evidence.20 It must be emphasized that any evidence which a party desires to submit for the consideration of the court must formally be offered by the party; otherwise, it is excluded and rejected.21

Dismissal of the Complaint on a Demurrer to Evidence

Having established that the documentary evidence of petitioners is inadmissible, this Court is now tasked to determine the propriety of the dismissal of the Complaint on a demurrer to evidence.

A demurrer to evidence is an instrument for the expeditious termination of an action;22 thus, abbreviating judicial proceedings.23 It is defined as "an objection or exception by one of the parties in an action at law, to the effect that the evidence which his adversary produced is insufficient in point of law (whether true or not) to make out his case or sustain the issue."24 The demurrer challenges the sufficiency of the plaintiff’s evidence to sustain a verdict.25 In passing upon the sufficiency of the evidence raised in a demurrer, the court is merely required to ascertain whether there is competent or sufficient proof to sustain the indictment or to support a verdict of guilt.26

In the present case, we have thoroughly reviewed the records and are convinced that petitioners have failed to sufficiently prove their allegations. It is a basic rule in evidence that the burden of proof lies on the party who makes the allegations.27 However, petitioners did not substantiate their allegations and merely argued that the Complaint should be "threshed out in a full blown trial in order to establish their respective positions on issues [which are] a matter of judicial appreciation."28

Regardless of the bare argument of petitioners, however, we find that the trial and appellate courts were correct in dismissing the Complaint. The allegation that Severino fraudulently excluded the other heirs of Benito and Florentina Pasag in the settlement of the latter’s estate was not supported by concrete evidence. While petitioners maintain that the estate of Benito and Florentina was never partitioned among their heirs, the testimony of their witness, Eufemio Pasag, proves otherwise. Significantly, during cross-examination, Eufemio admitted that the children of Benito and Florentina, including the father of petitioners, had received properties as inheritance from the said spouses. He testified, thus:

Q Are you aware that there are eight (8) children of the spouses Benito and Faustina Pasag?

A Yes, sir.

Q And one of whom is Bonifacio Pasag?

A Yes, sir.

Q And one of whom is Severino Pasag?

A Yes, sir.

Q Are you likewise aware, Mr. Witness, that after the death of the spouses Benito and Faustina Pasag, there was no last will and testament?

A Yes, sir.

Q And of course, you are aware that there are properties left by the said spouses, is that right?

A Yes, sir.

Q And in fact, your father Pedro Pasag has already a title in his name of the properties left by the spouses to Pedro Pasag, is that right?

A Yes, sir.

Q And in fact, it is where your house was situated or erected among those properties that was given to your father, is that right?

A Yes, sir.

Q And of course you are aware that likewise Severino Pasag, after the death of the spouses Benito and Faustina Pasag, acquired some properties as inheritance, is that right?

A Yes, sir.

x x x x

Q And you also agree with me that Isidro Pasag, Juanito Bustillo, Fortunata Savellano, Basilio Pasag, and Maria Lumague and the other brothers and sisters of your father likewise received property of their own as a result of the death of your grandfather, is that right?

A Yes, sir.29

It must be stressed that fraud is not presumed; and it must be proved by clear and convincing evidence,30 and not by mere conjectures or speculations.31 No such evidence was presented in this case to sustain petitioners’ allegations.

WHEREFORE, we DENY the petition and AFFIRM the assailed February 15, 2002 Decision and September 6, 2002 Resolution of the CA, with costs against petitioners.


Associate Justice


Associate Justice

Associate Justice
Asscociate Justice

Associate Justice


I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

Associate Justice


Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

Chief Justice


1 Rollo, pp. 23-31. The Decision was penned by Associate Justice Delilah Vidallon-Magtolis and concurred in by Associate Justices Candido Rivera and Juan Enriquez, Jr.

2 Id. at 33.

3 Records, p. 167.

4 Id. at 188-190.

5 Id. at 189.

6 Id. at 211-216.

7 Supra note 1, at 30.

8 Rollo, p. 18; original in boldface.

9 Rule 132, Sec. 34.

10 Parel v. Prudencio, G.R. No. 146556, April 19, 2006, 487 SCRA 405; Katigbak v. Sandiganbayan, G.R. No. 140183, July 10, 2003, 405 SCRA 558; Ong v. Court of Appeals, G.R. No. 117103, January 21, 1999, 301 SCRA 387.

11 People of the Philippines v. Alicante, G.R. Nos. 127026-27, May 31, 2000, 332 SCRA 440.

12 Ong v. Court of Appeals, supra.

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

14 Id. at 65.

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

16 Rules of Court, Rule 15, Sec. 5.

17 Id. at Sec. 4.

18 Supra note 15.

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

20 Republic of the Philippines v. Wee, G.R. No. 147212, March 24, 2006, 485 SCRA 308; Villaluz v. Ligon, G.R. No. 143721, August 31, 2005, 468 SCRA 486; Macasiray v. People of the Philippines, G.R. No. 94736, June 26, 1998, 291 SCRA 154.

21 Landingin v. Republic, G.R. No. 164948, June 27, 2006, 493 SCRA 415; Pigao v. Rabanillo, G.R. No. 150712, May 2, 2006, 488 SCRA 546; Katigbak v. Sandiganbayan, supra note 10.

22 Sec. 1 of Rule 33 of the Rules of Court provides:

[A]fter the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. x x x

23 Consolidated Bank and Trust Corporation (SOLIDBANK) v. Del Monte Motor Works, Inc., G.R. No. 143338, July 29, 2005, 465 SCRA 117.

24 H. Black, Black’s Law Dictionary 433 (6th ed., 1990).

25 Ong v. Court of Appeals, G.R. No. 140904, October 9, 2000, 342 SCRA 372; Gutib v. Court of Appeals, G.R. No. 131209, August 13, 1999, 312 SCRA 365.

26 Id.

27 Acabal v. Acabal, G.R. No. 148376, March 31, 2005, 454 SCRA 555; Saguid v. Court of Appeals, G.R. No. 150611, June 10, 2003, 403 SCRA 678; Pimentel v. Court of Appeals, G.R. No. 117422, May 12, 1999, 307 SCRA 38; Luxuria Homes, Inc. v. Court of Appeals, G.R. No. 125986, January 28, 1999, 302 SCRA 315.

28 Rollo, p. 59; petitioners’ Memorandum.

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

30 Morandarte v. Court of Appeals, G.R. No. 123586, August 12, 2004, 436 SCRA 213; Maestrado v. Roa, G.R. No. 133324, March 9, 2000, 327 SCRA 678; Mangahas v. Court of Appeals, G.R. No. 95815, March 10, 1999, 304 SCRA 375; Sanchez v. Court of Appeals, G.R. No. 108947, September 29, 1997, 279 SCRA 647.

31 Sanchez v. Court of Appeals, supra.

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