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[G.R. No. 144728. March 7, 2001]

RICAFORT vs. HEIRS OF PASTOR ABELLANA

THIRD DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated MAR 7 2001 .

G.R. No. 144728 (Florentino Ricafort vs. Heirs of Pastor Abellana, namely, Inocenta Cusi, Melchora Canares, Manuel Abellana, Susan Abellana, Felicidad Abellana and Horace Abellana.)

Before this Court is a "petition for partial review" of the Decision dated April 12, 2000 of the Court of Appeals in CA-G.R. CV No. 59188 which affirmed with modification the decision of the Regional Trial Court of Toledo City.

From the petition and its annexes and the comment thereon, the following are the antecedent facts: Petitioner Florentino Ricafort filed an action for reconveyance, recovery of ownership, declaration of nullity, quieting of title, specific performance and damages against defendant Pastor Abellana before the Regional Trial Court of Toledo City, Branch 29 in Civil Case No. T-41 1. The case involved three (3) parcels of land identified as Lots 1736, 1617 and 1681 located at Balamban, Cebu. Petitioner alleges that with respect to Lot 1736, defendant managed to have an interest therein through forgery; that Lot 1681 was obtained by using a deed of sale referring to another lot; and that there is no document conveying any interest in defendant's favor over Lot 1617. The trial court rendered judgment on November 28, 1996 in favor of defendant affirming ownership of Lot 1736 and 2/3 of Lot 1617 but directing defendant to pay herein petitioner the value of the 1/3 share of Lot 1681. Both parties appealed. The Court of Appeals rendered a Decision dated April 12, 2000 affirming the trial court's decision with modification in that the 1/3 portion of Lot 1681 should be returned by defendant to petitioner. The motion for reconsideration therefrom was denied on August 9, 2000.

Hence the present petition, petitioner raising the sole issue of "whether the unrebutted testimony of handwriting expert coupled with the verified denial of the alleged signatory is strong, complete and conclusive proof of forgery."

Petitioner contends that no less than the alleged signatory (petitioner) declared under oath that he did not sign the deeds of sale. Petitioner posits the view that his testimony and that of his handwriting expert witness which remained unrebutted and uncontradicted by defendant should have been considered.

Respondents filed their Comment praying that the petition not be given due course for fatal procedural infirmities and for absence of merit. Respondents argue that since the Verification as well as the Certification of Non-Forum Shopping were signed not by petitioner himself but by his counsel, the same should be dismissed; that there is no proof appended to the petition showing that counsel has been authorized by petitioner to sign in the latter's behalf; that all the points raised in the petition have been well-considered by the Court of Appeals; that even disregarding the testimony of respondents' expert witness, the testimonial evidence furnished by petitioner's expert witness is by itself inadequate to dislodge the strong presumption of validity accorded' by law upon notarized documents as the ones questioned herein.

We find for the respondents.

As correctly observed by respondents, the Verification, which incorporates the Certification against Forum-Shopping, was signed by petitioner's counsel and not by petitioner himself. This is fatal. The certification of non-forum shopping must be by the plaintiff or any of the principal party and not the attorney (Escorpizo vs. University of Baguio, 306 SCRA 497). This procedural lapse on the part of petitioner is a cause for the dismissal of the petition.

The Court likewise notes that petitioner failed to submit such material portions of the record as would support the petition, which failure is a sufficient ground for the dismissal of the petition (Section 5, Rule 45). The petition mentioned the RTC-decision which was modified by the Court of Appeals, portions of the testimony of defendant's expert witness and some exhibits alleged to be forged documents, which support the petition but were not attached thereto.

Finally, petitioner raises the sole issue of "whether the unrebutted testimony of handwriting expert coupled with the verified denial of the alleged signatory is strong, complete and conclusive proof of forgery." Settled is the rule that the Court can no longer be tasked to go over the proofs presented by the parties and analyze, assess and weigh them to ascertain if the trial court and the appellate court were correct in according superior credit to this or that piece of evidence of one party or the other (Alicbusan vs. Court of Appeal, 269 SCRA 336). This being a petition for review on certiorari under Rule 45 of the 1997 Rules on Civil Procedure, this Court is empowered to review errors or questions of law committed by the Court of Appeals (Section 1, thereof). For a question to be one of law, it must not involve an examination of the probative value of the evidence presented by the litigants or any of them. To reiterate the distinction between the two types of questions: there is a question of law in a given case when the doubt or difference arises as to what the law is pertaining to a certain state of facts, and there is a question of fact when the doubt arises as to the truth or the falsity of alleged facts (Manila Bay Club Corporation vs. Court of Appeals, 245 SCRA 715 cited in Reyes vs. Court of Appeals, 258 SCRA 651). It is not the function of this Court to re-examine the evidence submitted by the parties. In the case bar, the issue of whether petitioner's testimony and that of his handwriting expert witness should be considered "strong, complete and conclusive proof of forgery" is a matter calling for a re-examination of evidence presented by the litigants.

WHEREFORE, in view of the foregoing, the petition is hereby DENIED.

SO ORDERED.

Very truly yours,

(Sgd.) JULIETA Y. CARREON

Clerk of Court


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