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FERNANDO GO, Petitioner, |
G.R. No. 163745
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- versus - THE COURT
OF APPEALS, PILAR LIM
and HENRY LIM, Respondents. |
Present: Quisumbing,
J., Chairperson, Carpio, Carpio
Morales, Tinga, and VELASCO, JR., JJ. Promulgated: August 24, 2007 |
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QUISUMBING,
J.:
This is a petition for review on certiorari seeking to nullify the Resolutions
dated
On
On March 18, 1976, Original Certificate of Title (OCT) No. P-136 was
issued to Laureana. Fernando claimed
that Pilar received the title but did not turn it over to Laureana. Instead, Pilar made Laureana sign a Waiver of Rights
on
Fernando argued that the four documents were executed through deceit and
manipulations. Respondents had deceived
his siblings and him that Laureana’s application
could not be approved and the only way the property could be titled was to
transfer it to Henry. Fernando also claimed
that he learned of the issuance of OCT No. P-136 only on March 2, 1998 after the
City Treasurer of Cotabato City informed him of the tax arrears. On January 15,
2001, title to the property was transferred to Henry.
In their defense, Pilar claimed that she occupied the property with the
consent of Laureana and Fernando since 1957. She added that Fernando was fully aware of
Laureana’s application and even witnessed the execution of the Waiver of Rights
which was notarized by Atty. Edward P. David. Clearly, it was impossible that Fernando
learned of the issuance of OCT No. P-136 only in 1998. Respondents also presented Atty. David’s
affidavit where he affirmed the due execution of the Waiver of Rights, Waiver,
and Last Will and Testament, as well as the sound mental condition of Laureana then.
Respondents further asserted that
Laureana voluntarily executed the Last Will and Testament and the Deed of Sale
since she wanted Pilar and her family to have the property.[6]
After preliminary investigation, the City Prosecutor of Quezon City
charged respondents with estafa
through falsification of public document under Article 171, par. 3 of the
Revised Penal Code, as follows:
That
on or about March 2, 1998, in Quezon City Philippines, the said accused, both
private individuals, conspiring and confederating with one another, did then
and there willfully, unlawfully and feloniously defraud Fernando Go in the
manner following the said accused with intent to cause damage forged and
falsified a Waiver dated August 6, 1976 involving a parcel of land located in
Barrio Monday, Cotabato City more particularly described in OCT P-136 and
registered in the name of Laureana Lu mother of said Fernando Go and accused
Pilar Lim, said Waiver is notarized and entered in the Notarial Register of
Edward P. David, a Notary Public of Quezon City, as Doc. No. 9361, Page 92,
Book No. V, Series of 1976 and therefore a public document by then and there
attributing to said Fernando Go that he consents to the transfer of said title
in favor of accused Henry Lim when in truth and in fact as Pilar and Henry Lim
knew such was not the case in that the document was caused to be prepared only
to facilitate the processing of miscellaneous sales application numbered
V-57816 in the Bureau of Lands; that once the said document was prepared Pilar
and Henry Lim then falsely manifested and represented to the Register of Deeds
of Cotabato City that OCT P-136 be cancelled and a new TCT No. T-41312 was
issued in the name of accused Henry Lim who thereafter caused the property to
be subdivided and sold to the damage and prejudice of the said Fernando Go.[7]
The case was docketed as Criminal Case No. 03-118643 and raffled to the Regional
Trial Court of Quezon City, Branch 223. Respondents
filed an Urgent Motion for Reinvestigation with Motion to Suspend Proceedings
and to Hold the Issuance of Warrants of Arrests in Abeyance. The trial court denied the motion and found probable
cause to issue warrants for respondents’ arrest.
Respondents then moved for reconsideration of the City Prosecutor’s resolution.
As the motion remained unresolved, they appealed
to the DOJ contending that the crime had prescribed, and that the finding of probable
cause was contrary to law and the evidence on record.
On October 9, 2003, the DOJ ordered
the City Prosecutor to move for the withdrawal of the information before the
trial court.[8]
It ruled that: first,
the documents presented by respondents bore the presumption of genuineness and
due execution since they were notarized. The notary public[9]
affirmed their truthfulness and due execution while the National Bureau of
Investigation (NBI)[10]
confirmed that no alteration or intercalation was made thereon.
Second, the crime had prescribed. Petitioner’s purported discovery of the deceit
only in 1998 was unlikely since he participated in the execution of the
documents. The DOJ also noted that the
crime charged was punishable by reclusion temporal so that at the most,
the prescriptive period is twenty years. The waivers and the title were executed in
1976; thus, the filing of the complaint-affidavits in 2002 was beyond the
prescriptive period. Further, since Laureana passed away only in 1983, there was the possibility
that she informed her children about the transfer of title while she was still
alive.
The trial court allowed the withdrawal of the information on
As
filed, the present petition for certiorari is infirmed with deficiencies, to
wit:
1. Copies
of the assailed Resolutions of the Department of Justice dated
2. The
verification and certification of non-forum shopping attached to the petition
does not fully comply with Section 4 as amended by A.M. No. 00-2-10-SC, Rule 7,
ibid., because it does not give the assurance that the allegations of
the petition are true and correct based on authentic records.
3. No
copy of the petition has been served on the Office of the Solicitor General
which represents the Secretary of Justice on appeal.
WHEREFORE,
the petition is hereby DISMISSED.
SO
ORDERED.[12]
Hence, this petition where petitioner alleges that the Court of Appeals erred when it:
I
… ILLEGALLY AMENDED, WITHOUT
AUTHORITY, THE RULES OF COURT BY CHANGING THE WORD “OR” TO “AND” IN A.M. NO.
00-02-10-SC, SUBSTANTIALLY DEFEATING THE RIGHT OF HEREIN PETITIONER;
II
… ILLEGALLY AMENDED, WITHOUT
AUTHORITY, SEC. 3, RULE 46 IN RELATION TO RULE 65, BY INSERTING ANOTHER
REQUIREMENT NOT FOUND THEREIN;
III
… DISREGARDED JURISPRUDENCE WHEN
IT DISMISSED PETITIONER’S PETITION;
IV
… DISREGARDED THE REQUIREMENT OF
THE CONSTITUTION BY NOT STATING THE FACT AND THE LAW FROM WHICH THE DISMISSAL
OF THE CASE IS BASED;
V
… CLOSED ITS EYES TO THE FACT THAT
THE FINDING AND CONCLUSION OF THE QUEZON CITY PROSECUTOR’S OFFICE AND DOJ ARE
CONTRADICTORY, WHICH REQUIRE A LITTLE MORE SCRUTINY;
VI
… DISREGARDED THE EVIDENCE ON
RECORD.[13]
Simply stated, petitioner raises these
issues: (1) Did
the Court of Appeals err in dismissing his petition for certiorari on technical grounds? and (2) Is there probable cause
to hold respondents liable for estafa
through falsification of public document?
Petitioner maintains that the verification
and certification of non-forum shopping is sufficient if it states that the
allegations in the petition are true and correct of petitioner’s personal
knowledge or based on authentic records. He thus concludes that the Court of Appeals
erred when it required the verification to state that the allegations were true
and correct based on authentic records. He
also contends that the appellate court erred when it required service of the petition
on the Office of the Solicitor General (OSG). Petitioner insists that service is required
only on the respondent and not upon his or its counsel. Petitioner finally argues that the appellate
court should have liberally construed the Rules of Court since his failure to
attach the certified true copies of the DOJ resolutions and trial court order was
due to mere inadvertence. He admits that
the certified true copies were attached instead to a duplicate copy that was
never filed.
Petitioner’s submissions are untenable. Petitioner signed the verification alleging
that the contents of the petition were true and correct of his own personal
knowledge and belief.[14]
Under Section 4, Rule 7 of the Rules of
Court, a pleading is verified by an affidavit that the affiant has read the
pleading and that the allegations therein are true and correct of his personal
knowledge or based on authentic records.[15]
Mere belief is insufficient basis and
negates the verification which should be on the basis of personal knowledge or
authentic records. Verification is
required to secure an assurance that the allegations of the petition have been
made in good faith, or are true and correct and not merely speculative.[16]
While this Court has exercised leniency
in cases where the lapse in observing the rules was committed when the rules
have just recently taken effect, we cannot do so in this case. Petitioner’s counsel admitted that until the
petition was filed on
On the matter of service, Section 1, Rule 65 in relation to Section 3,
Rule 46 of the Rules of Court, clearly states that in a petition filed
originally in the Court of Appeals, the petitioner is required to serve a copy of
the petition on the adverse party before its filing.[18] If the adverse
party appears by counsel, service shall be made on such counsel pursuant to Section
2, Rule 13. Since the OSG represents the
Republic of the
Finally, we cannot accept petitioner’s explanation that it was by mere
inadvertence that he failed to attach the certified true copies of the DOJ resolutions
and the trial court order. We have ruled
that the requirement of providing appellate courts with certified true copies
of the judgments or final orders that are the subjects of review is necessary
to aid them in resolving whether or not to give due course to petitions.[20] Hence, this
requirement cannot be perfunctorily ignored, much less violated.[21]
On the merits, petitioner submits that the Court of
Appeals erred when it did not scrutinize the evidence on record although the
findings and conclusions of the City Prosecutor and the DOJ on the presence of
probable cause were contradictory. While
this question is essentially factual, we shall resolve the same since the absence
of probable cause is evident from the records.
Respondents were charged with estafa
through falsification of public document under Article 171, par. 3 of the Revised
Penal Code.[22]
They allegedly falsified the Waiver
dated
Contrary to petitioner’s claim that he was induced to sign the Waiver on
respondents’ representations that Laureana’s application could not be approved
and the Waiver would facilitate its approval, the records show that he knew exactly
what he was waiving.
First, petitioner admitted in his complaint-affidavit
that Pilar informed him on
Second, the words and meaning of the Waiver are clear –
petitioner and his siblings were waiving their rights to OCT No. P-136. Since petitioner knew that the application had
already been approved in 1970, it is clear, as the document itself shows, that
what he and his siblings intended to waive were their rights to the title and
nothing else. Assuming they intended the
Waiver to facilitate Laureana’s application, then
petitioner or any of his siblings could have changed the document’s language or
designation to accurately reflect such intent.
Third, as properly observed by the DOJ, the Waiver was
notarized. It therefore carried with it
the presumption of genuineness and due execution. In fact, no less than the notary public and
the NBI affirmed its truthfulness and due execution as well as confirmed that
no alteration or intercalation was made thereon.
Consequently, the Court of Appeals correctly held that the DOJ did not
err in ordering the City Prosecutor to move for the withdrawal of the
information before the trial court. The
complaint-affidavits as well as the supporting documents do not show that
respondents attributed
to petitioner statements other than those in fact made by him in the Waiver
dated August 6, 1976, as to constitute a prima facie case for estafa through falsification of public
document under Article 171, par. 3 of the Revised Penal Code. Although it is true that a finding of probable
cause needs only to rest on evidence showing that more likely than not, a crime
has been committed and was committed by the accused, no such evidence exists in
the present case that would engender a well-founded belief that estafa through falsification of a public document was in
fact committed by respondents.[23]
Courts are not empowered to substitute their judgment for that of the
Secretary of Justice, save only when the same was rendered with grave abuse of
discretion amounting to lack or excess of jurisdiction. In the instant case, we find no such abuse,
much less grave abuse of discretion, on the part of the Secretary of Justice,
as to warrant a reversal of the Court of Appeals’ resolutions.[24]
WHEREFORE,
the instant petition is DENIED. The Resolutions dated
Costs against the petitioner.
SO ORDERED.
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LEONARDO A. QUISUMBING Associate Justice |
WE CONCUR:
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ANTONIO T. CARPIO Associate Justice |
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CONCHITA CARPIO MORALES Associate Justice |
DANTE O. TINGA Associate Justice |
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PRESBITERO J. VELASCO, JR. Associate Justice |
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A T T E S T A T I O N
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.
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LEONARDO A. QUISUMBING Associate Justice Chairperson |
C E R T I F I C A T I O N
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.
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REYNATO S. PUNO Chief Justice |
[1] Rollo, p. 7.
[2] Id. at 9-10.
[3] Id. at 48-52 and 54-57.
[4]
[5] Id. at 271-272.
[6]
[7]
[8]
[9] Id. at 371.
[10] Id. at 380-382.
[11] Id. at 246-247.
[12]
[13] Id. at 20-21.
[14] Id. at 223.
[15] LDP
Marketing, Inc. v. Monter, G.R. No. 159653,
[16]
[17] Rollo, p. 228.
[18] New Ever Marketing, Inc. v. Court of
Appeals, G.R. No. 140555, July 14, 2005, 463 SCRA 284, 294.
[19] Metropolitan Bank and Trust Company v.
Tonda, G.R. No. 134436,
[20] Barcenas v. Tomas, G.R. No. 150321,
[21]
[22] ART. 171. Falsification by public officer, employee or notary or ecclesiastic minister. – x x x
3. Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them;
x x x x
[23] RCL
Feeders PTE., Ltd. v. Perez, G.R. No. 162126,
[24]