490 Phil. 193
CARPIO, J.:
Defendant, represented by the Office of the Solicitor General, proceeded to present as its first witness, Ricardo Nicolas, 78 years old, widower, housekeeper and residing at [K]aypombo, Sta. Maria, Bulacan, since 1953 up to the present. He testified that during the duration of his residency in [K]aypombo, he came across a public elementary school (KPPS); that as far as he knows, the land occupied by the primary school was formerly owned by Isaias del Rosario who donated said land to the people of Sta. Maria, Bulacan in 1959; that the act of donating said land was made during a political meeting in his residence by Isaias del Rosario and in the presence of the then incumbent mayor; he actually saw Isaias del Rosario and Mayor Ramos sign a document which is a deed of donation in favor of the Municipality of Sta. Maria; that the signing was made in the presence of Judge Natividad who was then a municipal councilor; that Isaias del Rosario is now dead but his death occurred long after the construction of the KPPS and that Isaias del Rosario even witnessed the construction of the primary school.Respondents presented two witnesses: Eugenia R. Ignacio and Maria Del Rosario-Esteban, daughters of the late Isaias. The trial court summarized their testimonies, as follows:
Vidal de Jesus, the second witness for the defense, 65 years old, married, a barangay councilman of Kaypombo, Sta. Maria, Bulacan, and presently residing at No. 437 Kaypombo, Sta. Maria, Bulacan, testified that as barangay councilman, he was aware of the land problem of KPPS; that in 1991, the barangay council and the children of Isaias del Rosario had a meeting in the presence of Judge Natividad, during which, the latter told the children of Isaias del Rosario that the land had been donated by their father. The children agreed but requested that the school be renamed after their father’s name; that the barangay council tried to secure a copy of the deed of donation from the Municipality of Sta. Maria, but according to the people at the municipal hall, when they transferred to the new municipal building, the deed got lost, only they were able to get a copy of the tax declaration in the name of the municipality of Sta. Maria, Bulacan (Exh. “2”), a certification to that effect was issued by the municipal mayor (Exh. “3”). They went to the DECS office in Malolos, but could not likewise find a copy of the deed.
The last witness for the defense was Judge Eli Natividad, 63 years old, widower, resident of Kaypombo, Sta. Maria, Bulacan. He testified that KPPS is very near his house; that the land occupied by said school is formerly owned by Isaias del Rosario, a close relative; that as far as he knows, the municipality of Sta. Maria is now the owner of the land; that when he was still one of the incumbent municipal councilors of Sta. Maria in 1961, his relative Isaias del Rosario went to his house and told him that he wanted to have a primary school in their place as he saw the plight of small pupils in their place; that the elementary school then existing was very far from their place and Isaias del Rosario wanted to have a primary school to help these pupils; that Isaias del Rosario was willing to donate a portion of the questioned lot for school site, so that said matter was relayed to the municipal council; he also testified that he prepared the deed of donation which was signed by Isaias del Rosario in his residence which was accepted by the municipality of Sta. Maria, Bulacan through a resolution signed in the office of the secretary and the municipal mayor; that a copy of said resolution could not be found due to the transfer of the municipal hall from the old to the new building.[5]
For the plaintiffs, Eugenia R. Ignacio, 59, residing at Kaypombo, Sta. Maria, Bulacan testified that she knows the plaintiffs as they are her brothers/sisters; that their father Isaias del Rosario died on April 18, 1966 long after the construction of the school and that she does not know everything about the donation because her father never informed them of his dealings and she did not inquire from him about the occupancy of the lot by the school.On 7 July 1993, the trial court rendered judgment dismissing respondents’ complaint for recovery of possession as follows:
Maria del Rosario-Esteban, 66, residing at Pulang-lupa, Pandi, one of the plaintiffs herein, testified that she knows the property in question and that they own it by virtue of succession and that she cannot recall how the school was constructed on the land; that her parents never donated any property because that is their only property. Also, she stated that their father told them that he just lent the property temporarily to the municipality and she never found any document conveying the lot in question to the municipality of Sta. Maria, Bulacan.[6]
WHEREFORE, based on the foregoing premises, and for a much greater cause, the instituted complaint, for recovery of possession of 1,181 square meters of land in Kaypombo, Sta. Maria, Bulacan, covered by TCT No. T-222432 against the defendant is hereby DISMISSED without costs.[7]The trial court explained its decision in this wise:
After a careful consideration of the facts at hand, taking into account the credibility and reasonableness of the testimonies of the witnesses, the court is of the opinion that the defense was able to prove the due execution of the deed of donation and its acceptance, as well as the loss of the same, in accordance with Rule 130[,] Sec. 4. It is recalled that Judge Eli Natividad, then a municipal councilor of Sta. Maria, testified that he was the person who prepared the deed of donation and later notarized the same, and that said deed was duly executed and signed before him and in his presence. Likewise, he affirmed that the municipal board of Sta. Maria, Bulacan, passed a resolution accepting the deed of donation in favor of the said municipality. Noteworthy is the rule that a recantation/recollection of witness is a form of secondary evidence to prove the existence/content of a document. Since the loss of the deed subject matter of this case was likewise duly proved by the defense, exerting the best possible efforts to locate or secure a copy of the same and without bad faith on its part, this Court is bent to give a greater weight to the secondary evidence adduced by the defense vis-à-vis the title in the name of the plaintiff[s], most particularly in this case, where the plaintiffs failed to make it appear that other and more secondary evidence is known to the defendant and can be produced by them.Respondents appealed to the Court of Appeals. On 25 September 2000, the Court of Appeals rendered judgment as follows:
Further judging on the consistency, credibility and personality of the witnesses of the defense, notably Judge Eli Natividad who was then a municipal councilor of Sta. Maria at the time of the execution of the deed of donation and who is thus in a best position to testify on the matter, not to mention the fact that their testimonies were all under oath, the Court cannot avoid but give weight to their statements and declarations. The defense witnesses were not induced by ill motive to testify in favor of the DECS, considering that they will not derive any personal benefit, material or otherwise, from such an act. On the contrary, such act may be considered heroic, as it is a manifestation of a moral compulsion to help shed light to the truth.
On the part of the plaintiffs, it was testified to by Eugenia Ignacio that their father (donor) died on April 18, 1966, long after the school was constructed on the subject land with the occupation of the land by the school which continued up to the present, and even after the land was allegedly transferred by succession to the plaintiffs in 1976, it was only now that it comes to the mind of the plaintiffs to seek recovery of the possession of the same. This, among other things, may be taken to favor the stand of the defense that the land occupied by the school was in truth, donated to the municipality of Sta. Maria.[8]
WHEREFORE, premises considered, the appealed decision is REVERSED and another one entered ordering the defendant to vacate the subject premises.[9]The appellate court denied DECS’ motion for reconsideration in the Resolution dated 29 December 2000. Hence, this petition.
It is unfortunate that the Deed of Donation and the Resolution were not produced during the trial. The defendant alleged that these were lost when the Municipality transferred to a new building. The defendant resorted to proving the documents’ existence through Sec. 5 of Rule 130 (B) of the Revised Rules on Evidence by relying on the testimony of the witnesses who were present during the execution of the lost documents. xxx.
xxx
The Court disagrees with the ruling of the lower court to the effect that the defendant was able to satisfy the foregoing requisites. The defense was not able to prove the due execution or existence of the deed of donation and the resolution, as well as the loss of these documents as the cause of their unavailability.
The Rule requires that the defendant must “prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of the witnesses in the order stated”. However, the defendant proceeded with the last resort-testimony of the witnesses, without even showing any diligent effort to secure a copy of the deed of donation and the resolution. Note that Atty. Eli Natividad, then a municipal councilor of Sta. Maria, testified that he was the person who prepared the deed of donation and later notarized the same. He also affirmed that the municipal board of Sta. Maria, Bulacan passed a Resolution as he was a municipal councilor at that time such resolution was passed. He testified that he furnished the municipal government, the Division Office of Education in Bulacan, the court of Sta. Maria a copy of the deed. However, the defendant only submitted an affidavit showing that the deed can no longer be located in the municipal government. There was no evidence to show that the defendant looked for a copy from the Clerk of Court of Sta. Maria, Bulacan. If it is true that Atty. Natividad notarized the deed, he should have a copy of it. In fact, such act of notarizing the deed should have been in his notarial register. This notarial register was supposed to be forwarded to the Clerk of Court of the Court of First Instance of the province and later, to the Chief of the National Library.“Before secondary evidence of a writing may be introduced on the ground that the instrument has been lost there must be proof that a diligent search has been made in the place where it is most likely to be found and that the search has not been successful.”In the case at bar, this Court is not fully satisfied that a search was made or that there was diligence in the search. The lower court erred in hastily concluding that the loss of the document was sufficiently established when in fact, the defendant did not look for it in the office of the Clerk of Court and the National Library. Since there was no diligent search, this Court finds it hard to believe the defendant’s theory that such documents existed because, for sure, if there really was a notarized deed or a resolution, there must be a copy.“Secondary evidence of the contents of writings is admitted upon the theory that the original cannot be produced by the party by whom the evidence is offered within a reasonable time by the exercise of reasonable diligence. Until, however, the non-production of the primary evidence has been sufficiently accounted for, secondary evidence is not ordinarily admissible.”For this Court to affirm the ruling of the lower court based on testimonies alone will work injustice to the plaintiffs.[10]
WHETHER THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT PETITIONER FAILED TO PROVE THE DUE EXECUTION OR EXISTENCE OF THE DEED OF DONATION AND THE RESOLUTION OF THE MUNICIPAL COUNCIL ACCEPTING THE DONATION, AS WELL AS THE LOSS OF THE DOCUMENTS AS THE CAUSE OF THEIR UNAVAILABILITY.[11]The Solicitor General contends that DECS had satisfactorily proven by secondary evidence the fact of donation, the existence and due execution of the deed of donation as well as the municipal council Resolution accepting the donation. DECS had also adequately proven the loss of these documents. According to the Solicitor General, based on the evidence presented in the trial court, DECS established that Isaias donated a parcel of land to the Municipality as the site of a school. Isaias executed a deed of donation, which then Atty. Eli Natividad notarized. There was a municipal council Resolution accepting the donation and expressing gratitude to Isaias. There was notice of this acceptance as DECS constructed the school on the Donated Site during the lifetime of the donor, without objection on his part. Since all the essential formalities had been followed, the donation made by Isaias long after the death of his wife Nieves Gumatay is valid and proven by secondary evidence.
Art. 749. In order that the donation of an immovable may be valid, it must be made in a public document, specifying therein the property donated and the value of the charges which the donee must satisfy.Article 749 of the Civil Code requires that the donation of real property must be made in a public instrument. Otherwise, the donation is void. A deed of donation acknowledged before a notary public is a public document.[12] The notary public shall certify that he knows the person acknowledging the instrument and that such person is the same person who executed the instrument, acknowledging that the instrument is his free act and deed. The acceptance may be made in the same deed of donation or in a separate instrument. An acceptance made in a separate instrument must also be in a public document. If the acceptance is in a separate public instrument, the donor shall be notified in writing of such fact. Both instruments must state the fact of such notification.[13]
The acceptance may be made in the same deed of donation or in a separate public document, but it shall not take effect unless it is done during the lifetime of the donor.
If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and this step shall be noted in both instruments.
SEC. 3. Original document must be produced; exceptions. – When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases:In relation to this, Section 5 of Rule 130 reads:
(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) xxx;
(c) xxx;
(d) xxx.
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 stated.Secondary evidence of the contents of a document refers to evidence other than the original document itself.[14] A party may introduce secondary evidence of the contents of a written instrument not only when the original is lost or destroyed, but also when it cannot be produced in court, provided there is no bad faith on the part of the offeror. However, a party must first satisfactorily explain the loss of the best or primary evidence before he can resort to secondary evidence. A party must first present to the court proof of loss or other satisfactory explanation for non-production of the original instrument. The correct order of proof is as follows: existence, execution, loss, contents, although the court in its discretion may change this order if necessary.[15]
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 any one who had made, on 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.[19]Here, DECS allegedly made a search in the municipal building and in the DECS Division Office in Bulacan. The copies of the deed of donation furnished these offices were purportedly “lost” when these offices transferred to new locations. However, as the Court of Appeals correctly pointed out, Judge Natividad who claimed to have notarized the deed of donation failed to account for other copies of the deed, which the law strictly enjoins him to record, and furnish to other designated government offices.
SECTION 245. Notarial register. - Every notary public shall keep a register to be known as the notarial register, wherein record shall be made of all his official acts as notary; and he shall supply a certified copy of such record, or any part thereof, to any person applying for it and paying the legal fees therefor.The Notarial Law mandates a notary public to record in his notarial register the necessary information regarding the instrument acknowledged before him. The Notarial Law also mandates the notary public to retain a copy of the instrument acknowledged before him when it is a contract.[20] The notarial register is a record of the notary public’s official acts. Acknowledged instruments recorded in the notarial register are public documents.[21] If the instrument is not recorded in the notarial register and there is no copy in the notarial records, the presumption arises that the document was not notarized and is not a public document.[22]
Such register shall be kept in books to be furnished by the Attorney-General (Solicitor-General) to any notary public upon request and upon payment of the actual cost thereof, but officers exercising the functions of notaries public ex officio shall be supplied with the register at government expense. The register shall be duly paged, and on the first page, the Attorney-General (Solicitor-General) shall certify the number of pages of which the book consist[s].
SECTION 246. Matters to be entered therein. - The notary public shall enter in such register, in chronological order, the nature of each instrument executed, sworn to, or acknowledged before him, the person executing, swearing to, or acknowledging the instrument, the witnesses, if any, to the signature, the date of the execution, oath, or acknowledgment or the instrument, the fees collected by him for his services as notary in connection therewith, and; when the instrument is contract, he shall keep a correct copy thereof as part of his records, and shall likewise enter in said records a brief description of the substance thereof, and shall give to each entry a consecutive number, beginning with number one in each calendar year. The notary shall give to each instrument executed, sworn to, or acknowledged before him a number corresponding to the one in his register, and shall also state on the instrument the page or pages of his register on which the same is recorded. No blank line shall be left between entries.
x x x
At the end of each week the notary shall certify in his register the number of instruments executed, sworn to, acknowledged, or protested before him; or if none, such certificate shall show this fact.
A certified copy of each month’s entries as described in this section and a certified copy of any instrument acknowledged before them shall within the first ten days of the month next following be forwarded by the notaries public to the clerk of the Court of First Instance of the province and shall be filed under the responsibility of such officer; Provided, that if there is no entry to certify for the month, the notary shall forward a statement to this effect in lieu of the certified copies herein required. (As amended by C.A. 72, Sec. 1.)
SECTION 247. Disposition of notarial register. - Immediately upon his notarial register being filled, and also within fifteen days after the expiration of his commission, unless reappointed, the notary public shall forward his notarial register to the clerk of the Court of First Instance of the province or of the City of Manila, as the case may be, wherein he exercises his office, who shall examine the same and report thereon to the judge of the Court of First Instance. If the judge finds that no irregularity has been committed in the keeping of the register, he shall forward the same to the chief of the division of archives, patents, copyrights, and trade-marks. In case the judge finds that irregularities have been committed in the keeping of the register, he shall refer the matter to the fiscal of the province - and in the City of Manila, to the fiscal of the city -for action and the sending of the register to the chief of the division of archives, patents, copyrights, and trade-marks shall be deferred until the termination of the case against the notary public. (Emphasis and underscoring supplied)