Arellano University School of Law

Menlo St. Cor. Taft Avenue, Pasay City

REVISED RULES ON EVIDENCE

(Sections 19-40, Rule 132)

In partial fulfillment of the requirements for the subject:

EVIDENCE (Thu 5:30 PM – 9:30 PM)
1st Semester S.Y. 2020 – 20201

Submitted to:
Judge Byron G. San Pedro

Submitted by:
GROUP 4 – 2nd Report

Members:
Itable, Michelle Joy M.
Luistro, Lorenz James C.
Medida, Flemarie Magne G.
Medina, Raymond John T.
Monilla, Fritzie D.
Ponce, Edward John Jr.

EVIDENCE RULE 132, Sections 19-40

Scope:
I. Authentication and Proof of Documents (Sections 19-33)
II. Offer and Objection (Sections 34-40)

I. Authentication and Proof of Documents (Sections 19-33)

Authentication and Proof of Documents (Rule 132)

Authentication

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  Authentication is the preliminary step in showing admissibility of an evidence (i.e. having
someone testify that a .38 revolver is the same weapon found in the crime scene for the evidence
to be authenticated)
 Evidence presented in court, may it be an object or document, is not presumed authentic. The
burden to prove its authenticity is incumbent upon the proponent of the evidence.
 There shall be no difference between sealed and unsealed private documents insofar as their
admissibility as evidence is concerned (Sec. 32, Rule 132, Rules of Court).
Document

 Deed, instrument or other duly authorized paper by which something is proved, evidenced or set
forth.
 Not every document is to be received as documentary evidence. To be considered documentary
evidence, it must be offered as proof of their contents (Sec. 2, Rule 130, Rules of Court).
Otherwise, the document is a mere object evidence which purpose is merely to prove its
existence.
Public and private documents

SEC. 19. Classes of documents. - For the purpose of their presentation in evidence, documents
are either public or private.
Public documents are:
(a) The written official acts, or records of the official acts of the sovereign authority, official
bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country;
(b) Documents acknowledged before a notary public except last wills and testaments; and
(c) Public records, kept in the Philippines, of private documents required by law to be entered
therein.
All other writings are private.

 The written official acts and records of the official acts of the sovereign country specified in Sec.
19 refers to both the Philippines and foreign countries.
 Assumed to be included in this class of public documents are those acknowledged before an
officer, other than a notary public, authorized to administer oaths.
 The rule does not provide a specific definition of a private document, it only refers to those that
do not fall under any enumerations in Sec. 19, Rule 132.
Proof of a private document
SEC. 20. Proof of private document. – Before any private document offered as authentic is
received in evidence, its due execution and authenticity must be proved either:
(a) By anyone who saw the document executed or written; or
(b) By evidence of the genuineness of the signature or handwriting of the maker.
Any other private document need only be identified as that which it is claimed to be.

 Sec. 20 only applies when a private document is offered as authentic – when offered to prove
that the document was truly executed by the person purported to have made it.

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  Sec. 20 relies on two ways of proving the due execution and genuineness of a private
instrument: a) relying on the personal knowledge of a witness; and b) the witness testifying or
showing evidence that the signature or handwriting of the maker is genuine.
When authentication of private documents is not required
(a) When the document is an ancient one (Sec. 21, Rule 132).
(b) When the genuineness and authenticity of an actionable document have not been specifically
denied under oath by the adverse party (Sec 8, Rule 8).
(c) When the genuineness and authenticity of the document have been admitted (Sec. 4, Rule
129)
(d) When the document is not being offered as authentic (Sec. 20, Rule 132).
A private document is considered ancient when: (Sec. 21, Rule 132)
a. it is more than thirty (30) years old
b. is produced from a custody in which it would naturally be found if genuine; and
c. is unblemished by any alterations or circumstances of suspicion
How to prove genuineness of a handwriting
SEC. 22. How genuineness of handwriting proved. - The handwriting of a person may be
proved by any witness who believes It to be the handwriting of such person because he has seen the
person write, or has seen writing purporting to be his upon which the witness has acted or been charged,
and has thus acquired knowledge of the handwriting of such person.
Evidence respecting the handwriting may also be-given by a comparison, made by the witness or
the court, with writings admitted or treated as genuine by the party against whom the evidence is offered,
or proved to be genuine to the satisfaction of the judge.

 Expert testimony is not required.

 Proven by any witness who believes it to be the handwriting of a person because: (1) he
has seen the person write; or (2) he has seen writing purporting to be his upon which the
witness has acted or been charged, and has thus acquired knowledge of the handwriting
of such person; or (3) by a comparison made by the witness or the court, with writings
admitted or treated as genuine by the party against whom the document is offered, or
proved to be genuine to the satisfaction of the judge
Public documents as evidence
SEC. 23. Public documents as evidence. – Documents consisting of entries in public records
made in the performance of a duty by a public officer are prima facie evidence of the facts therein stated.
All other public documents are evidence, even against a third person, of the fact which gave rise to their
execution and of the date of the latter.

 As a general rule, documents consisting of entries in public records made by a public

officer in the performance of duty are prima facie evidence.
 The exception to this rule is documents transformed into public document by being
notarized (i.e. deed of sale). In such cases, it is not evidence of the facts state in the
document but merely evidence of the facts that gave rise to it.
CASES:

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 Iwasawa vs. Gangan
G.R. No. 204169, September 11, 2013

FACTS:
Petitioner Iwasawa, a Japanese national, met respondent Felisa Gangan sometime in 2002 where she
introduced herself as single and “has never married before”. Later that year, he married her in the
Philippines. After the wedding, the couple resided in Japan.
In 2009, Gangan confessed to him that she received news her previous husband passed away. After
confirming that Gangan was married in 1994, Iwasa filed a petition for the declaration of his marriage as
null and void on the ground that their marriage is a bigamous one.
During trial, petitioner offered the following pieces of documentary evidence issued by the National
Statistics Office (NSO):
(1) Certificate of marriage between Iwasawa and Gangan
(2) Certificate of marriage between Gangan and Arambulo
(3) Certificate of Death of Arambulo
(4) Certification from NSO to the effect that there are 2 entries of marriage recorded by the office
pertaining to Gangan.
The prosecutor appearing on behalf of the Office of the Solicitor General (OSG) admitted the authenticity
and due execution of the documentary exhibits during pre-trial.
RTC ruled that there was insufficient evidence to prove Gangan’s prior existing valid marriage to another
man because only Iwasawa testified about the marriage of Gangan to Arambulo. RTC said it is unreliable
because he has no personal knowledge of the prior marriage and death of Arambulo. Petitioner’s
testimony about the NSO certification is also deemed unreliable by the RTC since he is a stranger to the
preparation of the document.
ISSUE:
Whether or not the testimony of the NSO records custodian certifying the authenticity and due execution
of the public document was necessary to be given evidentiary weight.
RULING:
No, it is unnecessary. The documentary evidence submitted by petitioner are all public documents. As
provided in the Civil Code:
ART. 410. The books making up the civil register and all documents relating thereto shall be considered
public documents and shall be prima facie evidence of the facts therein contained.
As public documents, they are admissible in evidence even without further proof of their due execution
and genuineness. Moreover, not only are said documents admissible, they deserve to be given evidentiary
weight because they constitute prima facie evidence of the facts stated therein.
Hence, the petition was granted. The evidence was admitted, and the marriage was declared null and void.

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 G.R. No. 181163, July 24, 2013
ASIAN TERMINALS, INC. vs. PHILAM INSURANCE CO., INC.
DOCTRINE:
The requirement of authentication of a private document is excused only in four instances, specifically:
(a) when the document is an ancient one within the context of Section 21, Rule 132 of the Rules; (b) when
the genuineness and authenticity of the actionable document have not been specifically denied under oath
by the adverse party; (c) when the genuineness and authenticity of the document have been admitted; or
(d) when the document is not being offered as genuine.
FACTS:
Nichimen Corporation shipped to consignee Universal Motors Corporation 219 packages containing 120
units of brand-new Nissan Pickup Truck Double Cab 4×2 model, without engine, tires, and batteries, on
board the vessel S/S Calayan Iris from Japan to Manila. The shipment, which had a declared value of
US$81,368 or P29,400,000, was insured with Philam against all risks under the marine Policy no. 708-
8006717-4. Upon delivery, it was found that the package marked as 03-245-42K/1 was in bad order
identifying two packages, labelled 03-245-42K/1 and 03/237/7CK/2, as being dented and broken.
Universal Motors filed a formal claim for damages in the amount of P643,963.84 against Westwind,
Asian Terminals, Inc. (ATI) and R.F. Revilla Customs Brokerage, Inc. When Universal Motors’ demands
remained unheeded, it sought reparation from and was compensated in the sum of P633,957.15 by Philam
Insurance Co., Inc. Accordingly, Universal Motors issued a Subrogation Receipt dated November 15,
1995 in favor of Philam. Philam, as subrogee of Universal Motors, filed a Complaint for damages against
Westwind, ATI and R.F. Revilla Customs Brokerage, Inc. before the Regional Trial Court of Makati City
for reparation of the compensated amount given to Universal Motors.

The trial court rendered judgment in favor of Philam and ordered Westwind and ATI to pay Philam,
jointly and severally, the sum of ₱633,957.15 with interest at the rate of 12% per annum, ₱158,989.28 by
way of attorney’s fees and expenses of litigation.which ruling was affirmed by the Court of Appeals
modifying the amount to be paid by Westwind and ATI.

ISSUE: Whether or not the Subrogation Receipt and Marine Certificate may be admitted in evidence
without being properly authenticated.

RULING:

No. Supreme Court held that Marine Certificate No. 708-8006717-4 and the Subrogation Receipt
are private documents which Philam and the consignee, respectively, issue in the pursuit of their business.
Since none of the exceptions to the requirement of authentication of a private document obtains in these
cases, said documents may not be admitted in evidence for Philam without being properly
authenticated.
The nature of documents as either public or private determines how the documents may be presented as
evidence in court. Public documents, as enumerated under Section 19,33 Rule 132 of the Rules of Court,
are self-authenticating and require no further authentication in order to be presented as evidence in court.
In contrast, a private document is any other writing, deed or instrument executed by a private person
without the intervention of a notary or other person legally authorized by which some disposition or
agreement is proved or set forth. Lacking the official or sovereign character of a public document, or the
solemnities prescribed by law, a private document requires authentication35 in the manner prescribed
under Section 20, Rule 132 of the Rules:

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SEC. 20. Proof of private document. – Before any private document offered as authentic is received in
evidence, its due execution and authenticity must be proved either:
(a) By anyone who saw the document executed or written; or
(b) By evidence of the genuineness of the signature or handwriting of the maker.
Any other private document need only be identified as that which it is claimed to be.

Here, Philam presented its claims officer, Ricardo Ongchangco, Jr. to testify on the execution of the
Subrogation Receipt. Indeed, all that the Rules require to establish the authenticity of a document is the
testimony of a person who saw the document executed or written. Thus, the trial court did not err in
admitting the Subrogation Receipt in evidence despite petitioners ATI and Westwind’s objections that it
was not authenticated by the person who signed it.
However, the same cannot be said about Marine Certificate No. 708-8006717-4 which Ongchangcho, Jr.
merely identified in court. There is nothing in Ongchangco, Jr.’s testimony which indicates that he saw
Philam’s authorized representative sign said document.

PROOF OF PUBLIC DOCUMENTS

Section 24. Proof of official record

Old Provision
Sec. 24 Rule 132
The record of public documents referred to in
paragraph (a) of Section 19, when admissible for
any purpose, may be evidenced by an official
publication thereof or by a copy attested by the
officer having the legal custody of the record, or
by his deputy, and accompanied, if the record is
not kept in
the Philippines, with a certificate that such officer
has the custody.
If the office in which the record is kept is in a
foreign country, the certificate may be made by a
secretary of the embassy or legation,
consul general, consul, vice consul, or
consular agent or by any officer in the
foreign service of the Philippines stationed in the
foreign country in which the record is kept and
authenticated by the seal of his office.
New Provision
Sec. 24 Rule 132
The record of public documents referred to in
paragraph (a) of Section 19, when admissible for
any purpose, may be evidenced by an official
publication thereof or by a copy attested by the
officer having the legal custody of the record, or
by his or her deputy, and accompanied, if the
record is not kept in the Philippines, with a
certificate that such officer has the custody.
If the office in which the record is kept is in a
foreign country, which is a contracting party to a
treaty or convention to which the Philippines is
also a party or considered a public document
under such treaty or convention pursuant to
paragraph (c) of Section 19 hereof, the certificate
or its equivalent shall be in the form prescribed by
such treaty or convention subject to reciprocity
granted to public documents originating from the
Philippines.
For documents originating from a foreign country
which is not a contracting party to a treaty or
convention referred to in the next preceding
sentence, the certificate may be made by a
secretary of the embassy or legation, consul
general, consul, vice-consul, or consular agent or
by any officer in
the foreign service of the Philippines stationed in
the foreign country in which the record is kept and
authenticated by the seal of his [or her] office.

A document that is accompanied by a certificate

or its equivalent may be presented in evidence

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 without further proof, the certificate or its
equivalent being prima facie evidence of the due
execution and
genuineness of the document involved. The
certificate shall not be required when a treaty or
convention between a foreign country and the
Philippines has abolished the requirement or has
exempted the document itself from this formality.

 While public documents are presumed to be genuine, authentic, and duly executed, they still need
to be presented and proved in accordance with the Revised Rules on Evidence.

 While a public document does not require the authentication imposed upon a private document,
there is a necessity for showing to the court that indeed a record of the official acts of official
bodies, tribunals or of public officers exists.

The record of a public document may be evidenced by:

1. official publication thereof

2. by a copy attested (Certified true copy) by the officer having the legal custody of the record, or by
his or her deputy, and accompanied, if the record is not kept in the Philippines, with a certificate
that such officer has the custody.
Such attestation must:
a. State, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the
case may be.
b. Be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court
having a seal, under the seal of such court” (Sec. 25, Rule 132)

What if the record is not kept in the Philippines?

a. Contracting party to a treaty or convention:

 If the office where the record is kept in a foreign country which is a contracting party to a treaty
or convention to which the Philippines is also a party or considered a public document under
such treaty or convention pursuant to par. (c) of Section 19, Rule 132, then such certificate or its
equivalent shall be in the form prescribed by such treaty or convention subject to reciprocity
granted to public documents originating from the Philippines. (Sec. 24, Rule 132)

Example: The Hague Apostille Convention consisting of 117 countries including the Philippines as its
members. The Apostille Convention is an international treaty developed by the Hague Conference. An
Apostille is a certificate issued under the Apostille Convention authenticating the origin of a public
document. It is issued by a country that is party to the Apostille Convention to be used in another country
which is also a party to the Convention. And after authentication through Apostillization by the
competent authorities, there is no more need for authentication legalization by the Foreign embassies or
Consulates except for non-Apostille countries.

Example: A, an OFW, needs to authenticate his birth certificate as one of his work requirements to Italy.
Since Italy and Philippines are members of the Apostille Convention, the birth certificate does not need to
be authenticated by the Foreign Embassies or Consulates of Italy in the Philippines rather A then will just
have to get an Apostille certificate instead.

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b. Documents originating from a foreign country which is not a contracting party to a treaty or
convention:

The attestation must be:

1. Accompanied by a certificate that such officer has the custody, by a secretary of the embassy or
legation, consul- general, consul, vice-consul, or consular agent or by any officer in the foreign
service of the Philippines stationed in the foreign country in which the record is kept,
2. Authenticated by the seal of his office (Sec. 24, Rule 132)

 This rule applies to authentication of foreign judgments. Such is given presumptive evidentiary
value, but the document must first be presented and admitted in evidence.

‣Example: A divorce obtained abroad is proven by the divorce decree itself.

‣ Indeed, the best evidence of a judgment is the judgment itself. The decree purports to be a written act or
record of an act of an official body or tribunal of a foreign country.

Example: The Supreme Court ruled that the mere presentation of the divorce decree of respondent’s
marriage to Samson is insufficient. Before a foreign divorce decree can be recognized by our courts, the
party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law
allowing it. Furthermore, the divorce decree between respondent and Editha Samson appears to be an
authentic one issued by an Australian family court. However, appearance is not sufficient; compliance
with the aforementioned rules on evidence must be demonstrated. It is well-settled in our jurisdiction that
our courts cannot take judicial notice of foreign laws. Like any other facts, they must be alleged and
proved. Australian marital laws are not among those matters that judges are supposed to know by reason
of their judicial function. (Garcia vs. Recio, G.R. No. 138322, 2 October 2001)
Example: In relation to Apostille Convention, China is not one of the contracting parties, therefore if A,
an OFW needs to authenticate his birth certificate for his work requirements to China, he cannot get an
Apostille certificate, instead he will have to authenticate such public document to the consul or Foreign
embassies and then it must be authenticated as well by the foreign embassy of China.

Section 25. What attestation of copy must state. – Whenever a copy of a document or record is attested
or the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the
original, or a specific part thereof, as the case may be. The attestation must be under the official seal of
the attesting officer, if there be any, or if he or she be the clerk of a court having a seal, under the seal of
such court.

In relation to Section 24, a record of a public document may be evidenced by a copy attested (a certified
true copy) where such attestation must:
a. State, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the
case may be.
b. Be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court
having a seal, under the seal of such court” (Sec. 25, Rule 132)
 The certificate and attestation are required because of the general rule on the “irremovability of
public records”.

Section 26. Irremovability of public record. – Any public record, an official copy of which is admissible
in evidence, must not be removed from the office in which it is kept, except upon order of a court where
the inspection of the record is essential to the just determination of a pending case.

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Proof of Foreign Laws; Doctrine of Processual Presumption

 To prove a foreign law, the party invoking it must present a copy thereof and comply with
Sections 24 & 25, Rule 132.
 The certificate and attestation are required because of the general rule on the “irremovability of
public records”

Doctrine of Processual Presumption- where a foreign law is not pleaded, or even if pleaded is not
proven, the presumption is that the foreign law is the same as the Philippine law.

Section 27: Public record of a private document. – An authorized public record of a private document
may be proved by the original record, or by a copy thereof, attested by the legal custodian of the record,
with an appropriate certificate that such officer has the custody.

 Section 27, along with Sec. 23 & 28 are public records, kept in the Philippines, of private
documents required by law to be entered therein.

A public record of a private document may be proved by any of the following:

a. The original record; or

b. A copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such
officer has the custody (Sec. 27, Rule 132)

Section 28. Proof of lack of record. – A written statement signed by an officer having the custody of an
official record or by his or her deputy, that after diligent search, no record or entry of a specified tenor is
found to exist in the records of his or her office, accompanied by a certificate as above provided, is
admissible as evidence that the records of his or her office contain no such record or entry.

How to prove the absence of a record?

‣ The lack of record of a document must be proved by the following documents:

1. Written statement signed by the officer having custody of an official record or by his
deputy; and

‣ It must contain the following matters:

a. There has been a diligent search of the record;
b. That despite the diligent search, no record of entry of a specified tenor is found to exist in the records
of his office. (Sec. 28, Rule 132)

2. Certificate that such officer has the custody of official records. (Sec. 28, Rule 132)

 Proof of the document’s lack of record consists of a written statement signed by the officer
having custody of an official record or by his deputy. (Riano, 2019, p.205)

Church Registries are NOT public registries:

 It is well-settled that church registries of births, marriages, and deaths made subsequent to the
promulgation of General Orders No. 68, promulgated on December 18, 1889, and the passage of
Act No. 190, enacted on August 7, 1901, are no longer public writings, nor are they kept by duly
authorized public officials. They are private writings, and their authenticity must therefore be

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 proved, as are all other private writings in accordance with the Rules of Evidence (Llemos v.
Llemos)

Certifications alone without the copies are NOT sufficient

 The documents presented by respondents were mere certifications and not the certified copies or
duly authenticated reproductions of the purported death certificates. While duly registered death
certificate is considered a public document and the entries found therein are presumed correct, the
certifications are not the public documents referred to by the Rules of Court, nor even records of
public documents; thus, they do not enjoy the presumption granted by the Rules. (Delfin v.
Billones 2006)

How a Judicial Record is impeached

Establish:
1. Want of jurisdiction in the court or judicial officer
2. Collusion between the parties; or
3. Fraud in the party offering the record, with respect to the proceedings.
[Sec. 29, Rule 132]

Proof of Notarial Documents

Notarial Documents
Every instrument duly acknowledged or proved and certified as provided by law which may be
presented in evidence without further proof, the certificate of acknowledgement being prima facie
evidence of the execution of the instrument or document involved [Sec. 30, Rule 132]

Such notarized documents are evidence, even against 3 rd persons, of the facts which gave rise to
their execution and of the date of execution. [Sec. 23, Rule 132]

Alterations in a Document

When applicable and Whose Burden of Proof

The party producing a document as genuine which has been altered and appears to have been
altered after its execution, in a party material ot the question in dispute, must account for the alteration. If
he or she fails to do that, the document shall not be admissible in evidence [Sec. 31, Rule 132]

How to account for alteration

Party producing the document may show that the alteration
1. Was made by another, without his/her concurrence;
2. Was made with the consent of the parties affected by it;
3. Was otherwise properly or innocently made; or
4. Did not change the meaning or language of the instrument.
[Sec. 31, Rule 132]

Documentary evidence in an Unofficial Language

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 Not admissible unless accompanied by a translation into English or Filipino. Parties or their
attorneys are directed to have the translation prepared before trial [Sec. 33, Rule 132]

Where such a document not so accompanied with a translation in English or Filipino, is offered in
evidence and not objected to, either by the parties or the court, it must be presumed that the language in
which the document is written is understood by all and the document is admissible in evidence [ Heirs of
Doronio v. Heirs of Doronio G.R. No. 169454 (2007)]

II. Offer and Objection (Sections 34-40)

Offer of Evidence
Section 34. Offer of evidence. — The court shall consider no evidence which has not been formally
offered. The purpose for which the evidence is offered must be specified.

Formal Offer of
Evidence

Objection: Grounds
General: Immaterial
or Relevant

Sustained: Overruled:
If testimony, the witness is not If the testimony, the witness is allowed
allowed under. to answer
If document/object: it will not be If document/object: it will not be
admitted admitted

Remedy of Offerror
Tender of excluded Presentation of Evidence
evidence Offered

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Exceptions: Evidence not formally offered can be considered by the court as long as they have been:

 the same must have been duly identified by testimony duly recorded and

 the same must have been incorporated in the records of the case

When Formal Offer is NOT Required

 In a summary proceeding because it is a proceeding where there is no full-blown trial;

 Documents judicially admitted or taken judicial notice of; @

 Documents, affidavits, and depositions used in rendering a summary judgment;

 Documents or affidavits used in deciding quasi-judicial or administrative cases [

 Lost objects previously marked, identified, described in the record, and testified to by witness
who had been subjects of cross- examination in respect to said objects [

 When duly identified in a testimony duly recorded and it was incorporated in the records of the
case

Waiver of Right to Make Formal Offer

It is deemed waived by a party if it fails to submit within a considerable period of time its formal offer

Why the purpose of offer must be specified:

 To determine whether that piece of evidence should be admitted or not. Because such evidence
may be admissible for several purposes under the doctrine of multiple admissibility or another,
otherwise the adverse party cannot interpose the proper objection. Evidence submitted for one
purpose may not be considered for any other purpose by the judge.

 Opposition Parties will be deprived of their chance to examine the document and to object to its
admissibility. On the other hand, the appellate court will have difficulty reviewing documents not
previously scrutinized by the court.

Function of Offer

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The introduction of evidence is intended to inform the court what the party making the offer intends to
prove, so that the court may have rule intelligently upon the objections to ask questions which have been
asked, and may be necessary to preserve an exception to a ruling of the trial court excluding evidence/

Waiver of Right to Make Formal Offer

It is deemed waived by a party if it fails to submit within a considerable period of time its formal offer

CASES:
LOMISES ALUDOS, deceased, substituted by FLORA ALUDOS vs. JOHNNY M. SUERTE G.R.
No. 165285, June 18, 2012

FACTS: Lomises acquired from the Baguio City Government the right to occupy two stalls in the Hangar
Market in Baguio City. Lomises entered into an agreement with respondent Johnny M. Suerte for the
transfer of all improvements and rights over the two market stalls. Before full payment could be made,
however, Lomises backed out of the agreement and returned the P68,000.00.Thus, Johnny filed a
complaint against Lomises for specific performance with damages. RTC nullified the agreement between
Johnny and Lomises for failure to secure the consent of the Baguio City Government to the agreement.
The RTC found that Lomises was a mere lessee of the market stalls, and the Baguio City Government
was the owner-lessor of the stalls. On appeal, CA agreed with the RTC that the assignment of the
leasehold rights was void for lack of consent of the lessor, the Baguio City Government. The sale of the
improvements, however, was valid because these were Lomises’ private properties. Lomises, however,
objects to the CA ruling upholding the validity of the agreement insofar as it involved the sale of
improvements on the stalls. Lomises alleges that the sale of the improvements should similarly be voided
because it was made without the consent of the Baguio City Government, the owner of the improvements,
pursuant to the May 1, 1985 lease contract.

ISSUE: Whether or not a document repeatedly mentioned in the pleadings of the parties which was
presented only on appeal may be considered for purposes of adjudicating the case.

HELD: The answer is in the negative. The CA has already rejected the evidentiary value of the May 1,
1985 lease contract between the Baguio City Government and Lomises, as it was not formally offered in
evidence before the RTC; in fact, the CA admonished Lomises’ lawyer, Atty. Lockey, for making it
appear that it was part of the records of the case. Under Section 34, Rule 132 of the Rules of Court, the
court shall consider no evidence which has not been formally offered. "The offer of evidence is necessary
because it is the duty of the court to rest its findings of fact and its judgment only and strictly upon the
evidence offered by the parties. Unless and until admitted by the court in evidence for the purpose or
purposes for which such document is offered, the same is merely a scrap of paper barren of probative
weight." Although the contract was referred to in Lomises’ answer to Johnny’s complaint and marked as
Exhibit "2" in his pre- trial brief, a copy of it was never attached. In fact, a copy of the May 1, 1985 lease
contract "surfaced" only after Lomises filed a motion for reconsideration of the CA decision.

WESTMONT INVESTMENT CORPORATION, vs. AMOS P. FRANCIA, JR., CECILIA

ZAMORA, BENJAMIN FRANCIA, and PEARLBANK SECURITIES, INC.

Facts: The Francias invested their money in Wincorp for 11% interest for 43 days. They failed to collect
upon maturity and their investment were rolled over for another 34 days for which Confirmation Advices
were issued by Wincorp indicating Pearlbank as the actual borrower of the funds invested. Failing again

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to collect, the Francias filed a collection suit against Wincorp and respondent Pearlbank before the RTC.
Wincorp did not object or comment to the evidence offered by the Francias and filed a motion to
postpone hearing 3 days before the scheduled hearing for presentation of Wincorp’s defense evidence
which was denied. RTC considered Wincorp to have waive its right to present evidence. It held Wincorp
solely liable to the Francias and dismissed the case against Pearlbank. CA affirmed. Hence, this petition.
Issue: Whether or not the court is correct in not admitting the documents attached to the pleadings.

Ruling: YES. The offer of evidence is necessary because it is the duty of the court to rest its findings of
fact and its judgment only and strictly upon the evidence offered by the parties. It bears stressing too that
all the documents attached by Wincorp to its pleadings before the CA cannot be given any weight or
evidentiary value for the sole reason that, as correctly observed by the CA, these documents
were not formally offered as evidence in the trial court. To consider them now would deny the other
parties the right to examine and rebut them. “The offer of evidence is necessary because it is the duty of
the court to rest its findings of fact and its judgment only and strictly upon the evidence offered by the
parties. Unless and until admitted by the court in evidence for the purpose or purposes for which such
document is offered, the same is merely a scrap of paper barren of probative weight.” The Court cannot,
likewise, disturb the findings of the RTC and the CA as to the evidence presented by the Francias. It is
elementary that objection to evidence must be made after evidence is formally offered. It appears that
Wincorp was given ample opportunity to file its Comment/Objection to the formal offer of evidence of
the Francias but it chose not to file any.

Sec. 35 When to make offer. – All evidence must be offered orally. The offer of the testimony of a
witness in evidence must be made at the time the witness is called to testify the offer of documentary and
objective evidence shall be made after the presentation of a party’s testimonial evidence.

The amended provision should be read in relation to the revised Rule 30, Section 6, which provides that
after presentation of evidence, the offer of exhibits shall be made orally and thereupon, the objections
thereto shall be made, and the court shall also orally rule on the same. This is also consistent with the
rules on continuous trial for criminal cases. While the timing when the offer of evidence for testimonial,
object and documentary evidence remain the same, the revised rules require that the same shall be made
orally. Under the old rules, it shall be done orally unless allowed by the court to be in writing.
Admissibility of evidence is determined at the time it is offered to the court.

Sec. 36. Objection. - Objection to offer of evidence must be made orally immediately after the offer is
made. Objection to the testimony of a witness for lack of a formal offer must be made as soon as the
witness begins to testify. Objection to a question propounded in the course of the oral examination of a
witness must be made as soon as the grounds there become reasonably apparent. The grounds for the
objections must be specified.

Classification of Objections

1. General Objection – does not go beyond declaring evidence as immaterial, irrelevant or

inadmissible. It does not specify the grounds for objection. A general objection is sufficient
where the ground therefore is so manifest that the trial court could not fall to understand it, as
when the evidence offered is clearly irrelevant or incompetent.

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 2. Specific Objection – States why or how the evidence is irrelevant or incompetent

3. Formal Objection – one directed against the alleged defect in the formulation of the question

4. Substantive Objection – objection made and directed against the very nature of the evidence.

The old rule was revised so that there is no more distinction between an oral and written offer of
evidence. Thus, the first sentence now states objection to offer of evidence, without distinction as to
whether the evidence was offered orally or not, unlike under the old rule. The revised rule also provides
that in case a witness begins to testify without the offer of testimony being made prior to said testimony,
the objection to such lack of formal offer must be made as soon as the witness begins to testify. The
provision on when an objection to written offer of evidence was deleted. It appears that unlike the old
rule, the court no longer has discretion to allow the formal offer of evidence in writing.

Section 37. When repetition of objection unnecessary . – When it becomes reasonably apparent in the
course of the examination of a witness that the questions being propounded are of the same class as those
to which objection has been made, whether such objection was sustained or overruled, it shall not be
necessary to repeat the objection, it being sufficient for the adverse party to record his or her continuing
objection to such class of questions.

Continuing or Running Objection

- Sec 37, Rule 132 is also known as Continuing/Running Objection. It means a single objection to
all the questions in a given line of questioning.
- A Judge may allow a lawyer to make a continuing objection when the judge has overruled an
objection applicable to many questions and the lawyer wants to preserve the objection for the
appellate record.
-
Timeliness of Objections

- The rules requires for timely objections. If a question is improper, an objection should be made
with reasonable promptness – perhaps, the term immediately is a more accurate description of
this requirement.
- With documentary evidence, the objection should be made when the document is proffered as an
exhibit. The reason for this rule is that counsel should not be permitted to wait and see whether
the answer is favorable before raising an objection.

Motion to suppress

- For some purposes, timeliness requires that an objection be made prior to trial. For example,
objections in criminal cases based on violations of constitutional rights must often be made in the
form of pretrial motions to suppress.

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Section 38. Ruling. – The ruling of the court must be given immediately after the objection is made,
unless the court desires to take a reasonable time to inform itself on the question presented; but the ruling
shall always be made during the trial and at such time as will give the party against whom it is made an
opportunity to meet the situation presented by the ruling.

The reason for sustaining or overruling an objection need not be stated. However, if the objection is
based on two [(2)] or more grounds, a ruling sustaining the objection on one [(1)] or some of them must
specify the ground or grounds relied upon. (38)

Courts shall make a ruling to the objection raised by the party IMMEDIATELY.
Courts are required to immediately issue a ruling to resolve the objection to the admissibility of evidence
offered or within a reasonable time. It must be made during the trial and at such time as will give the
other party an opportunity to meet the situation presented by the ruling. Courts are further mandated to
state the reason/s for their ruling if there are two or more objections by the other party.
Parties who offer objections to questions on whatever ground are entitled to a ruling at the time the
objection is made unless they present a question with regard to which the court desires to inform itself
before making its ruling.

In that event, it is perfectly proper for the court to take a reasonable time to study the question presented
by the objection’ but a ruling should always be made during the trial and at such time as will give the
party against whom the ruling is made an opportunity to meet the situation presented by the ruling.

Effect of ruling on objections

1. When an objection to a question is sustained: the court declares the question improper, and the
witness ought not to answer it.
2. When the objection is overruled: the court declares the question proper and the witness must
answer it (Francisco, vol.2, p.417).

The court may take a reasonable time to study the questions raised by the objection, but a ruling should
always be made during the trial. If no ruling is made during the course of the trial, counsel would have no
means of knowing whether or not he would be compelled to meet any evidence at all, hence it would
prejudice the substantial rights of his client

Section 39. Striking out [ of ] answer. – Should a witness answer the question before the adverse party
had the opportunity to voice fully its objection to the same, or where a question is not objectionable, but
the answer is not responsive, or where a witness testifies without a question being posed or testifi es
beyond limits set by the court, or when the witness does a narration instead of answering the question,
and such objection is found to be meritorious, the court shall sustain the objection and order such
answer, testimony or narration to be stricken off the record.

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On proper motion, the court may also order the striking out of answers which are incompetent,
irrelevant, or otherwise improper. (39a)
Motion to strike
-In some instances, a witness may answer before counsel can object, or a question’s tendency to elicit
objectionable response will not become apparent until the response is given.

For example: If the prosecutor asks a witness in a homicide prosecution whether the witness
knows the accused (a typical preliminary question) and the witness replies: “Sure, I know the
killer”, a motion to strike should be made. If that motion is granted, the court should disregard the
evidence. It is better to ask the judge to strike the response because the ruling precludes the
opposing counsel from referring to the stricken material. If the objectionable material is so
prejudicial (as in the above example), counsel may also ask for a mistral.

Connecting up
Sometimes evidence is admitted conditionally, typically when several witnesses are needed to lay a
proper foundation for admissibility. Obviously, only one witness can testify at a time. If a trial court
conditionally admits evidence subject to its being “connected up” later in the trial, a motion to strike is
required to remove the evidence from consideration in the event the “connecting up” evidence is never
introduced.
Modes of excluding inadmissible evidence
1. Objection: when the evidence is offered.
2. Motion to strike out or Expunge: proper in the following cases:
a. When the witness answers prematurely before there is reasonable opportunity for the party to object
(Sec. 39);
b. Unresponsive answers;
c. Answers that are incompetent, irrelevant, or improper (Sec. 39);
d. Uncompleted testimonies where there was no opportunity for the other party to cross-examine;
e. Conditionally admitted evidence not later substantiated.

Note: There must be objection before motion to strike.

Time of making motions to strike: A counsel is not allowed to gamble upon the possibility of a
favorable answer, but must object to the admission of evidence as soon as the ground for objection
becomes apparent.
Failure to cross-examine: A motion to strike is also the remedy in case a witness dies or becomes
incapacitated to testify when the other party has not been given the opportunity to cross-examine the
witness.
QUESTION: What is the effect if the Testimony of the Witness is ordered stricken off from the record
by the court?
ANSWER: A fact elicited from a witness cannot be considered in the disposition of the case if it has been
ordered stricken out, unless it is established by any other evidence on record. (MBTC vs. Custodio)

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Section 40. Tender of excluded evidence. – If documents or things offered in evidence are excluded by
the court, the offeror may have the same attached to or made part of the record. If the evidence excluded
is oral, the offeror may state for the record the name and other personal circumstances of the witness and
the substance of the proposed testimony. (40)
Offer of Proof
When evidence has been excluded by the trial court ruling, it requires an offer of proof to preserve the
issue for appeal. Without an offer of proof in the trial record, an appellate court cannot determine whether
or not the action of the trial court is erroneous.
Motion in Limene

- Means at the threshold.

- It is typically a pre-trial request for a preliminary decision on an objection of offer of proof.

Tender of Evidence Explained

- A tender of evidence is an offer of evidence, whether in argument or in motion for admission in court.
Purposes:
1. To inform the court what is expected to be proved; and
2. So that the appellate court may determine from the record whether the proposed evidence is competent.

If a party’s offered documentary or object evidence is excluded, he may move or request that it be
attached to form part of the records of the case.
It has been repeatedly ruled that where documentary evidence was rejected by the lower court and the
offeror did not move that the same be attached to the record, the same cannot be considered by the
appellate court, as documents forming no part of proofs before the appellate court cannot be considered in
disposing the case.

How made:
1. As to documentary or object evidence: It may have the same attached to or made part of the
record.
2. As to oral evidence: It may state for the record the name and other personal circumstances of
the witness and the substance of the proposed testimony

If the excluded evidence is ORAL, he may state for the record the name and other personal circumstances
of the witness and the substance of the proposed testimony. These procedures are known as offer of proof
or tender of excluded evidence and are made for purposes of appeal. If an adverse judgment is eventually
rendered against the offeror, he may in his appeal assign as error the rejection of the excluded evidence.

Tender of a witness
-To tender of witness, or the tender of a witness, is for an attorney to yield to another attorney the right to
examine the witness then under oath.

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QUESTION: What is the remedy of a party if the trial court erroneously rejected the introduction of a
certain document as evidence?
ANSWER: If an exhibit sought to be presented in evidence is rejected, the party producing it should ask
the court’s permission to have the exhibit attached to the record. The party can avail the remedy provided
for in Section 40, Rule 132 of the Rules of Court. (Catacutan vs. People)
The trial court cannot consider the excluded evidence to resolve the issues, such evidence may still be
admitted on appeal provided there has been tender of the excluded evidence under Section 40 of Rule 132
of the Rules of Court. (Gumabon vs. PNB)
QUESTION: Does a court’s denial of further presentation of evidence constitute denial of due
process?
ANSWER: No.
Due process simply demands an opportunity to be heard. Due process is satisfied when the parties are
afforded a fair and reasonable opportunity to explain their respective sides of the controversy. Where an
opportunity to be heard either through oral arguments or through pleadings is accorded, there is no denial
of procedural due process. (Equitable PCI Banking Corp. vs. RCBC)

There is no denial of due process when the trial court did not allow the party to introduce as evidence. It
is well within the court’s discretion to reject the presentation of evidence which it judiciously believes
irrelevant and impertinent to the processing on hand. This is especially true when the evidence sought to
be presented in a criminal proceeding, concerns an administrative matter. (Catacutan vs. People)

Tender of Excluded evidence apply during testimonial presentation of evidence

Example:
A, accused was originally charged and convicted of Murder by the RTC. It was later
modified to Homicide. A raised as an issue the non-presentation of 2 witnesses by the prosecution
on its appeal.
Issue: can A fault the prosecution for the non-presentation of the witnesses?
Held: No. The prosecution has discretion to decide on who to call as witness during trial and its
failure to do so do not give rise to the presumption that evidence willfully suppressed would be
adverse if produced since the evidence was at the disposal of both parties.
If A believed that the testimony of witness 1 was important to its case, he should have insisted on
presenting her as a witness, or as the appellee points out, made a tender of excluded evidence of
the witness in question under Section 40, Rule 132 of the Rules of Court.
(People vs. Cruz, G.R. No. 127573)

Case

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FORTUNE TOBACCO CORPORATION vs. CIR

FACTS:
Fortune Tobacco is a manufacturer and producer of some cigarette brands. Prior to January 1, 1997, its
cigarette brands were subject to ad valorem tax but on January 1, 1997, R.A. No. 8240 took effect
whereby a shift from the ad valorem tax (AVT) system to the specific tax system was made and
subjecting its cigarette brands to specific tax. In the said system, rates of excise tax on cigars and
cigarettes, shall be increased bytwelve percent (12%) on January 1, 2000.

To implement the provisions for a twelve percent (12%) increase of excise tax on cigars and cigarettes
packed by machines by January 1, 2000, CIR issued RR No. 17-99 providing that the new specific tax
rate for any existing brand of cigars, cigarettes packed by machine, distilled spirits, wines and fermented
liquor shall not be lower than the excise tax that is actually being paid prior to January 1, 2000."

On 31 March 2005, petitioner filed a claim for tax credit or refund under Section 229 of the
1997 NIRC for erroneously or illegally collected specific taxes covering the period June to December 31,
2004 in the total amount of Php219,566,450.00. Respondent, in his answer alleged that the claim of the
petitioner is not properly documented.

Although both the CTA Division and the CTA En Banc provisionally admitted petitioner’s Exhibit
"C,"13 the above-mentioned documents, as well as the other documentary evidence submitted by
petitioner were refused admission for being merely photocopies. Petitioner in appealing did not provide
for a tender of exclusive evidence.

ISSUE: WON petitioner is at fault for failing to offer any proof or tender of excluded evidence.

RULING: Yes.
At any rate, even if the Court should find fault in the ruling of the CTA Division in denying the admission
of petitioner’s evidence, the result would be the same because petitioner failed to offer any proof or
tender of excluded evidence.
As aptly discussed by the CTA En Banc : Petitioner posits that if their exhibits, specifically Exhibits "G",
"G-1" to "G-7" and Exhibit "H", are admitted together with the testimony of their witness, the same
would sufficiently prove their claim. A closer scrutiny of the records shows that petitioner did not file any
offer of proof or tender of excluded evidence.
Section 40, Rule 132 of the Rules of Court provides:
Sec. 40. Tender of excluded evidence. – If documents or things offered in evidence are excluded
by the court, the offeror may have the same attached to or made part of the record. If the
evidence excluded is oral, the offeror may state for the record the name and other personal
circumstances of the witness and the substance of the proposed testimony.

The rule is that evidence formally offered by a party may be admitted or excluded by the court. If a party's
offered documentary or object evidence is excluded, he may move or request that it be attached to form
part of the records of the case. If the excluded evidence is oral, he may state for the record the name and
other personal circumstances of the witness and the substance of the proposed testimony. These
procedures are known as offer of proof or tender of excluded evidence and are made for purposes of

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appeal. If an adverse judgment is eventually rendered against the offeror, he may in his appeal assign as
error the rejection of the excluded evidence

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