REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION

REGIONAL TRIAL COURT
PASAY CITY, BRANCH 119

ROMUEL BRIONES JOVES,

Plaintiff,

-versus- CIVIL CASE NO. PSY-08-04289-CV

THELMA CODILLA a.k.a.

THELMA JOVES, CROMWELL
JOVES AND PHILIP JOVES,
Defendants.
x------------------------------------------x

COMMENT TO DEMURRER TO EVIDENCE

Co-defendant, Cromwell Joves, through undersigned counsel,

respectfully files this Comment to Demurrer to Evidence and states:

1. In paragraph 1 of Co-defendant Thelma Joves Demurrer to

Evidence, it was stated that the main thrust of plaintiff Romuel
Briones Joves complaint is to participate in the inheritance of his late
father, decedent Romeo Ausejo Joves. Further, it was argued that the
plaintiff as an heir appears to be doubtful based on the pieces of
evidence presented as the documents are contradictory with each
other. It is respectfully submitted that Co-defendant Cromwell Joves
agrees upon the said matter.

2. The plaintiff, in his Comment/Opposition to the Demurrer to

Evidence argued that a birth certificate, being a public document,
offers prima facie evidence of filiation and a high degree of proof is
needed to overthrow the presumption. The case of Crisologo v.
Macadaeg is in point regarding this matter:

It [the certificate of birth] is a document, filed with the Local

Civil Register of Iloilo, and signed by "Clarita Gustillo,
informant" on March 4, 1948, stating that Maria Erlinda Crisolo
had been born in Iloilo on February 5, 1945, the legitimate
daughter of Marieta Villa and Pedro Crisolo. Under article 410
of the new Civil Code this would be prima facie proof that
Erlinda was the legitimate daughter of the persons mentioned.

1
 But having alleged and admitted that Maria Erlinda was not a
legitimate daughter, plaintiff completely destroyed the
certificate's worth as evidence. (Crisologo v. Macadaeg,
G.R. No. L-7071, April 29, 1954)

3. It is stressed that the plaintiff has admitted in open court and

even presented documentary evidence to point out that Romeo Joves
never married anyone1, thus, never married his mother, Ludy Briones.
Despite the fact that the Birth Certificate in question states that
Romeo Joves and Ludy Briones was married on July 14, 1980 in the
City of Manila2. Furthermore, the plaintiff himself admitted that his
alleged fathers signature in his birth certificate differs from the
signature that his alleged father used in the Information Sheet for
badge dispatch marked as Exhibit Q3.

4. Even assuming arguendo that the plaintiffs birth certificate is

a prima facie evidence of its contents despite the discrepancies of its
contents with other documents, thus, is a prima facie evidence of
filiation with Romeo Joves, it fails to hold water as Ludy Briones, the
plaintiffs mother has been previously married to a certain Pablo
Catarining on March 28, 1978. Such marriage is evidenced by a
Marriage Contract which has been marked during pre-trial as Exhibit
7.

1
TSN June 6, 2011 p.11.
LI COLUMNA
Q: : Mr. Witness, you said that your parents, Mr. Romeo Joves, was never
married?
A: Yes, sir.
Q: And as proof, you presented the CNOMAR? Certificate of no marriage.
A: Yes, sir.
Q: And you also said that your mother did not marry?
A: Yes, sir
Q: You presented a Cnomar?
A: Yes, sir
Q: May I see the CNOMAR. So, based on this document, Exhibit E, which is the
CNOMAR of Ludith T. Briones, it alleged that she never married?
A: Yes, sir.
2
Exhibit A
3
TSN June 6, 2011, p. 5-6
LI COLUMNA:
Q: Mr. Witness, so you have presented your birth certificate and you have
identified that this signature under your birth certificate, you are not familiar
with the signature of your father, but Mr. Witness, you also presented PNP
personal data, personal card, which is you said that is the signature?
A: I am not familiar with the signature of my father. I am not also familiar with
the signature indicated in the personal data.
Q: But you said a while ago, Mr. Witness, when I asked you that if there is any
other signature of your father, you said, this is the one.
A: The record is 1993. He signed that in 1993. I am not familiar with his
signature.
Q: So, Mr. Witness, based on this birth certificate and PNP Personal card, under
the signature of Romeo Joves, between the two, would you agree with me,
there is the difference with the signature?
A: Yes, sir.
ATTY. DEFANTE: Objection, your Honor.
LI COLUMNA: Already answered, your Honor.

2
 5. Although it may be noted that the plaintiff has presented the
Certificate of No Marriage of Ludy Briones as Exhibit EE, it is
respectfully submitted that Ludy Briones herself admitted that before
the 2006 certification of the NSO given, that is, her own birth
certificate in which she herself was the informant, she has no
documentary evidence that she goes by the name Ludy Briones
before such filing of her Certificate of Live Birth. Thus, Exhibit EE is
only prima facie evidence of record as unmarried after such
registration as Ludy Briones.

6. This point is emphasized because the Marriage Contract

marked as Exhibit 7 bears the name Lourdes Briones instead of
Ludy Briones. Such Marriage Contract also refers to the same
parents of the wife, Emiliano and Benedicta Briones, as the plaintiffs
mothers parents indicated in her own Birth Certificate. The Birth
Certificate and the Marriage Contract both indicate that the wife and
Ludy Briones reside in Timbanga, Bacong in Negros Oriental.
Furthermore, Ludy Briones was born on October 5, 1947, the
marriage date was March 28, 1978, and Lourdes Briones was thirty
(30) years old at the time of marriage. Bearing these information in
mind, the only logical conclusion could be that Ludy Briones and
Lourdes Briones, wife of Pedro Catarining is one and the same.

7. In Philippine law and jurisprudence, there is a heavy

presumption of legitimacy over illegitimacy of a child:

[Family Code] Article 167. The children shall be considered

legitimate although the mother may have declared against its
legitimacy or may have been sentenced as an adulteress.

A child born to a husband and wife during a valid marriage is

presumed legitimate (Ong v. Diaz, G.R. No. 171713,
December 17, 2007)

8. Although such presumption is not conclusive and may be

overthrown by evidence to the contrary, plaintiff miserably failed to do
so.

9. Co-defendant Thelma Joves also argued that the plaintiff

failed to include the Extrajudicial Settlement as part of their evidence,
thus, there is no basis to uphold the plaintiffs plea in the instant case.
The plaintiff opposed and argued that TCT 126592 marked as Exhibit
E provides for the Deed of Sale and Extrajudicial Statement of
Estate with Waiver of Rights as Annotated in the said Title. It is
respectfully submitted that Co-defendant Cromwell Joves agrees with
Co-defendant Thelma Joves upon this matter.

3
 10. Rule 33 Sec. 1 and Rule 8 Sec. 7 and Sec. 8 of the Rules of
Court sate that:

Section 1. Demurrer to evidence. After the plaintiff has

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

Section 7. Action or defense based on document. Whenever

an action or defense is based upon a written instrument or
document, the substance of such instrument or document
shall be set forth in the pleading, and the original or a copy
thereof shall be attached to the pleading as an exhibit,
which shall be deemed to be a part of the pleading, or said
copy may with like effect be set forth in the pleading.

11. It should be noted that the plaintiff has never presented the
document he wishes to be annulled, that is the Extrajudicial
Settlement of Estate with Waiver of Rights. It was not attached to the
complaint filed on February 28, 2008, nor was it included in the
Formal Offer of Evidence submitted by the plaintiff to this Honorable
Court on July 14, 2014.

12. Since the plaintiffs prayer is to annul the Extrajudicial

Settlement of Estate with Waiver of Rights and the TCTs that was
issued pursuant to it, the main subject of inquiry is none other than
the contents of such Extrajudicial Settlement of Estate itself and not
those annotated in the TCT as argued by the plaintiff. The Best
Evidence Rule or Rules of Court, Rule 130, Sec. 3 provides:

Section 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:

(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) When the original is in the custody or under the control

of the party against whom the evidence is offered, and the
latter fails to produce it after reasonable notice;

(c) When the original consists of numerous accounts or

other documents which cannot be examined in court
without great loss of time and the fact sought to be

4
 established from them is only the general result of the
whole; and

(d) When the original is a public record in the custody of a

public officer or is recorded in a public office.

13. Absent any proof that the document is part of any exception
to the rule stated above, the original of the document must be
produced. Secondary evidence through a recital of its contents in
some authentic document, as what the plaintiff is trying to do in this
case should only be allowed if the original document is unavailable or
when it is in adverse partys custody or control as provided for in in
Rule 132 Sec. 5 and Sec. 6:

Section 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.

Section 6. When original document is in adverse party's

custody or control. If the document is in the custody or under
the control of adverse party, he must have reasonable notice to
produce it. If after such notice and after satisfactory proof of its
existence, he fails to produce the document, secondary
evidence may be presented as in the case of its loss.

14. It is respectfully submitted, however, that the plaintiff has

never presented the Extrajudicial Settlement in question to this
Honorable Court whether as an annex to his complaint or evidence
offered. The plaintiff also miserably failed to show and in fact, never
showed any proof that his non-production of the original or actual
document is excused due to circumstances allowed in the Rules of
Court.

WHEREFORE, it is respectfully prayed that the Demurrer to

Evidence submitted by Co-defendant Thelma Joves be granted.

RESPECTFULLY SUBMITTED

Quezon City for the City of Pasay, 27 August 2015.

UP OFFICE OF LEGAL AID

5
Counsel for the Petitioner
Room 107, 1/F Malcolm Hall
College of Law
University of the Philippines
Diliman, Quezon City
Tel. No. 9276260

By:

ROWENA E.V. DAROY-MORALES

Director, Office of Legal Aid
Roll of Attorneys No. 39129
IBP No. LPN-04130/Lifetime Member/Quezon
City
PTR No. 710110/ 20-Jan-15/Quezon City
MCLE No. Exemption/15-Feb-13/Pasig City

MELAMARISA L. MAURICIO-PANOTES
Supervising Lawyer
Roll of Attorneys No. 45192
IBP No.02323/Lifetime Member/08-Mar-01/
Quezon City
PTR No. CN-0414652/6-Jan-15/Camarines
Norte
MCLE Compliance No. IV-0018696/26-Apr-
13/Pasig City

Jeric Anne A. Azores

Law Intern

6
Copy furnished:

Atty. Cepriano Ruel T. Cadelina

Counsel for the Co-defendants
113-C Baco St., Brgy. San Isidro Labrador,
Sta. Mesa Heights, Quezon City

Atty. Divi Bless Gabat Defante

Public Attorneys Office
4th Floor, Hall of Justice, FB Harrison
Pasay City