Petitioner filed a case in RTC for an action of to remove a cloud on their respective titles caused by the inscription thereon of a notice of lis pendens, which came about as a result of an incident in Special Proceeding of the RTC of Oroquieta City, a proceeding for guardianship over the person and properties of Carmen Ozamiz, the original owner of the said land. The respondents objected removal of the cloud in the title as they alleged that the deed of sale of the property of Carme to the petitioner was simulated as Carmen allegedly was already incapacitated due to her advanced aged. RTC ruled in favor of the petitioner, hence respondent elevated the said case to the CA to which the appellate court reverse the decision of the RTC.
Petitioners filed a motion for reconsideration of the decision of the appellate court. Subsequent thereto, the petitioners filed a motion for a new trial and/or for reception of evidence. They contended, among other things, that the appellate court totally ignored the testimony of Judge Teodorico Durias regarding the mental condition of Carmen Ozamiz a month before the execution of the Deed of Absolute Sale in question. The said testimony was taken in the Special Proceeding in the Regional Trial Court of Oroquieta City. However, Judge Durias was not presented as a witness in Civil Case No. CEB-10766 in the Regional Trial Court of Cebu City. Petitioners alleged that Judge Durias’s testimony is newly-discovered evidence which could not have been discovered prior to the trial in the court below by the exercise of due diligence. The appellate court denied both motions. Hence the elevation of this case to the SC.
whether to CA erred in not considering the testimony of Judge Durias as newly discovered evidence as grounds for new trial.
No, A motion for new trial upon the ground of newly discovered evidence is properly granted only where there is concurrence of the following requisites, namely: (a) the evidence had been discovered after trial; (b) the evidence could not have been discovered and produced during trial even with the exercise of reasonable diligence; and (c) the evidence is material and not merely corroborative, cumulative or impeaching and is of such weight that if admitted, would probably alter the result. All three (3) requisites must characterize the evidence sought to be introduced at the new trial.
We find that the requirement of reasonable diligence has not been met by the petitioners. It has been held that a lack of diligence is exhibited where the newly discovered evidence was necessary or proper under the pleadings, and its existence must have occurred to the party in the course of the preparation of the case, but no effort was made to secure it; there is a failure to make inquiry of persons who were likely to know the facts in question, especially where information was not sought from co-parties; there is a failure to seek evidence available through public records; there is a failure to discover evidence that is within the control of the complaining party; there is a failure to follow leads contained in other evidence; and, there is a failure to utilize available discovery procedures. Thus, the testimony of Judge Durias cannot be considered as newly discovered evidence to warrant a new trial.