1) ISENHARDT V. REAL, A.C. NO. 8254, 15 FEBRUARY 2012

This case stemmed from the verified complaint[1] filed with the Integrated Bar of the Philippines (IBP) on 9 September 2004 by Nesa G. Isenhardt (complainant), through her counsel Atty. Edgardo Golpeo, seeking the disbarment of respondent Atty. Leonardo M. Real (respondent) for allegedly notarizing a document even without the appearance of one of the parties.

The Antecedent Facts

Complainant alleged that on 14 September 2000 respondent notarized a Special Power Attorney (SPA)[2] supposedly executed by her. The SPA authorizes complainant’s brother to mortgage her real property located in Antipolo City. Complainant averred that she never appeared before respondent. She maintained that it was impossible for her to subscribe to the questioned document in the presence of respondent on 14 September 2000 since she was in Germany at that time.

To support her contention, complainant presented a certified true copy of her German passport[3] and a Certification from the Bureau of Immigration and Deportation (BID)[4] indicating that she arrived in the Philippines on 22 June 2000 and left the country on 4 August 2000. The passport further indicated that she arrived again in the Philippines only on 1 July 2001.

Complainant submitted that because of respondent’s act, the property subject of the SPA was mortgaged and later foreclosed by the Rural Bank of Antipolo City.

In his answer,[5] respondent denied the allegations in the complaint. He narrated that sometime in the middle of year 2000, spouses Wilfredo and Lorena Gusi approached him to seek advice regarding the computer business they were planning to put up. During one of their meetings, the spouses allegedly introduced to him a woman by the name of Nesa G. Isenhardt, sister of Wilfredo, as the financier of their proposed business.

Respondent further narrated that on 14 September 2000, spouses Gusi, together with the woman purporting to be the complainant, went to his office to have the subject SPA notarized. He maintained that the parties all signed in his presence, exhibiting to him their respective Community Tax Certificates (CTCs). He added that the complainant even presented to him the original copy of the Transfer Certificate of Title (TCT)[6] of the property subject of the SPA evidencing her ownership of the property.

Respondent noted that spouses Gusi even engaged his services as counsel in a civil case filed before the Regional Trial Court (RTC) of Antipolo City. The expenses incurred for the case, which was predicated on the closure of their computer business for non-payment of rentals, was allegedly financed by complainant. The professional engagement with the spouses was, however, discontinued in view of differences of opinion between lawyer and clients, as well as, non-payment of respondent’s professional fees.

Respondent concluded that complainant’s cause of action had already prescribed. He argued that under the Rules of Procedure of the Commission on Bar Discipline (CBD) of the Integrated Bar of the Philippines, a complaint for disbarment prescribes in two years from the date of professional misconduct. Since the document questioned was notarized in year 2000, the accusation of misconduct which was filed only in September 2004 had already prescribed. Moreover, respondent

noted that the SPA in question authorizing the grantee Wilfredo Gusi to mortgage the property of complainant was not used for any transaction with a third person prejudicial to the latter. The annotation at the back of the TCT[7] would show that the property subject of the SPA was instead sold by complainant to her brother Wilfredo for P500,000.00 on 12 January 2001. Thus, he submits that the SPA did not cause grave injury to the complainant.

The IBP Report and Recommendation

On 8 September 2006, the IBP Board of Governors issued Resolution No. XVII-2006-405,[8] which adopted and approved the Report and Recommendation[9] of the Investigating Commissioner. IBP Commissioner Dennis A. B. Funa, after due proceeding, found respondent guilty of gross negligence as a notary public and recommended that he be suspended from the practice of law for one year and disqualified from reappointment as notary public for two (2) years.

Aggrieved, respondent on 13 November 2006 filed a Motion for Reconsideration[10] of the aforesaid Resolution. This was, however, denied by the IBP Board of Governors in a Resolution dated 11 December 2009.

Our Ruling

we sustain the findings and recommendation of the IBP. As stated by the IBP Board of Governors, the findings of the Investigating Commissioner are supported by evidence on record, as well as applicable laws and rules.

Respondent violated his oath as a lawyer and the Code of Professional Responsibility[11] when he made it appear that complainant personally appeared before him and subscribed an SPA authorizing her brother to mortgage her property.

It cannot be overemphasized that a notary public should not notarize a document unless the person who signs it is the same person who executed it, personally appearing before him to attest to the contents and the truth of what are stated therein. This is to enable the notary public to verify the genuineness of the signature of the acknowledging party and to ascertain that the document is the party’s free act.[12]

Section 1, Public Act No. 2103, otherwise known as the Notarial Law states:

The acknowledgement shall be before a notary public or an officer duly authorized by law of the country to take acknowledgements of instruments or documents in the place where the act is done. The notary public or the officer taking the acknowledgement shall certify that the person acknowledging the instrument or document is known to him and that he is the same person who executed it, acknowledged that the same is his free act and deed. The certificate shall be made under the official seal, if he is required by law to keep a seal, and if not, his certificate shall so state.

Such requirement of affiant’s personal appearance was further emphasized in Section 2 (b) of Rule IV of the Rules on Notarial Practice of 2004 which provides that:

A person shall not perform a notarial act if the person involved as signatory to the instrument or document –

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(1) is not in the notary’s presence personally at the time of the notarization; and(2) is not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by these Rules.

Respondent insists that complainant appeared before him and subscribed to the SPA subject of the instant case. His contention, however, cannot prevail over the documentary evidence presented by complainant that she was not in the Philippines on 14 September 2000, the day the SPA was allegedly notarized. Respondent may have indeed met complainant in person during the period the latter was allegedly introduced to him by Spouses Gusi but that did not change the fact established by evidence that complainant was not in the personal presence of respondent at the time of notarization. It is well settled that entries in official records made in the performance of a duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated.[13] This principle aptly covers the Certification from the BID that complainant left the Philippines on 4 August 2000 and arrived back only on 1 July 2001.

Respondent’s contention was further negated when he claimed that complainant presented to him the original TCT of the property subject of the SPA. A perusal of the TCT would reveal that ownership of the property was transferred to complainant only on 10 January 2001. Thus, it could not have been presented to respondent by complainant on 14 September 2000.

The allegation of respondent that there were other documents subscribed by complainant during the interim of 4 August 2000 and 1 July 2001 or the time that she was supposed to be in Germany deserves scant consideration. Such allegation was refuted during the hearing before the Investigating Commissioner when counsel for complainant informed Commissioner Funa that those documents are subjects of criminal and civil cases pending before the Regional Trial Courts of Pasig, Antipolo and Quezon City,[14] where the documents are being contested for being spurious in character.

Anent respondent’s claim of prescription of the offense pursuant to Section 1, Rule VIII of the Rules of Procedure[15] of the Commission on Bar Discipline, we agree with the Investigating Commissioner that the rule should be construed to mean two years from the date of discovery of the professional misconduct. To rule otherwise would cause injustice to parties who may have discovered the wrong committed to them only at a much later date. In this case, the complaint was filed more than three years after the commission of the act because it was only after the property was foreclosed that complainant discovered the SPA.

The duties of a notary public is dictated by public policy and impressed with public interest.[16] It is not a meaningless ministerial act of acknowledging documents executed by parties who are willing to pay the fees for notarization. It is of no moment that the subject SPA was not utilized by the grantee for the purpose it was intended because the property was allegedly transferred from complainant to her brother by virtue of a deed of sale consummated between them. What is being penalized is respondent’s act of notarizing a document despite the absence of one of the parties. By notarizing the questioned document, he engaged in unlawful, dishonest, immoral or deceitful conduct.[17] A notarized document is by law entitled to full credit upon its face and it is for this reason that notaries public must observe the basic requirements in notarizing documents. Otherwise, the confidence of the public in notarized documents will be undermined.[18]

In a catena of cases,[19] we ruled that a lawyer commissioned as notary public having thus failed to discharge his duties as a notary public, the revocation of his notarial commission, disqualification from being commissioned as a notary public for a period of two years and suspension from the practice of law for one year, are in order.

WHEREFORE, the notarial commission of respondent Atty. Leonardo M. Real is hereby REVOKED. He is DISQUALIFIED from reappointment as notary public for a period of two (2) years and SUSPENDED from the practice of law for a period of one (1) year, effective immediately. He is WARNED that a repetition of the same or similar offense in the future shall be dealt with more severely. He is directed to report the date of receipt of this Decision in order to determine the date of effectivity of his suspension.

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2) LUSTESTICA V. BERNABE, A. C. NO. 6258, 24 AUGUST 2010

For consideration is the disbarment complaint filed by Luzviminda R. Lustestica (complainant) against Atty. Sergio E. Bernabe (respondent) for notarizing a falsified or forged Deed of Donation of real property despite the non-appearance of the donors, Benvenuto H. Lustestica (complainant’s father) and his first wife, Cornelia P. Rivero, both of whom were already dead at the time of execution of the said document.

In his Answer,1 the respondent admitted the fact of death of Benvenuto H. Lustestica and Cornelia P. Rivero, considering their death certificates attached to the complaint. The respondent claimed, however, that he had no knowledge that the real Benvenuto H. Lustestica and Cornelia P. Rivero were already dead at the time he notarized the Deed of Donation.2 He also claimed that he exerted efforts to ascertain the identities of the persons who appeared before him and represented themselves as the donors under the Deed of Donation.3

After the submission of the respondent’s Answer to the complaint, the Court referred the matter to the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP Commission on Bar Discipline) for investigation, evaluation and recommendation. The IBP Commission on Bar Discipline made the following findings:

The core issue is whether or not Respondent committed a falsehood in violation of his oath as a lawyer and his duties as Notary Public when he notarized the Deed of Donation purportedly executed by Benvenuto H. Lustestica and Cornelia P. Rivero as the donors and Cecilio R. Lustestica and Juliana Lustestica as the donees on 5 August 1994.

Section 1 of Public Act No. 2013, otherwise known as the Notarial Law, explicitly provides:

x x x The notary public or the officer taking the acknowledgment shall certify that the person acknowledging the instrument or document is known to him and that he is the same person who executed it acknowledged that the same is his free act and deed. x x x.

As correctly observed by Complainant, Respondent’s Acknowledgment is the best evidence that NO RESIDENCE CERTIFICATES were presented by the alleged donors and the donees. Had the parties presented their residence certificates to Respondent, it was his duty and responsibility under the Notarial Law to enter, as part of his certification, the number, place of issue and date of each residence certificate presented by the parties to the Deed of Donation. Respondent, however, failed to make the required entries. Respondent’s claim that the persons who allegedly appeared before him and represented themselves to be the parties to the Deed of Donation showed their residence certificates and that he instructed his secretary to indicate the details of the residence certificates of the parties is self-serving and not supported by the evidence on record.

x x x x

The fact that Respondent notarized a forged/falsified document is also undisputed not only by [the] strength of Complainant’s documentary evidence but more importantly, by Respondent’s own judicial admission. x x x. In view of Respondent’s judicial admission that the alleged donors, BENVENUTO H. LUSTESTICA and his first wife, CORNELIA P. RIVERO, died on 7 September 1987 and 24 September 1984, respectively, it is beyond reasonable doubt that said donors could not have personally appeared before him on 5 August 1994 to [acknowledge] to him that they freely and voluntary executed the Deed of Donation. Moreover, x x x quasi-judicial notice of the Decision of the Municipal Trial Court finding accused CECILIO LUSTESTICA and JULIANA LUSTESTICA GUILTY BEYOND REASONABLE DOUBT as principals of the crime of falsification of public document.4

In his Report dated August 15, 2005, IBP Commissioner Leland R. Villadolid, Jr. found the respondent grossly negligent in the performance of his duties as notary public and recommended that the respondent’s notarial commission be suspended for a period of one (1) year. The IBP Commissioner also recommended that a penalty ranging from reprimand to suspension be imposed against the respondent, with a warning that a similar conduct in the future will warrant an imposition of a more severe penalty.5

By Resolution No. XVII-2005-116 dated October 22, 2005, the Board of Governors of the IBP Commission on Bar Discipline adopted and approved the Report of the IBP Commissioner. The pertinent portion of this Resolution reads:

[C]onsidering Respondent’s gross negligence in the performance of his duties as Notary Public, Atty. Sergio E. Bernabe is hereby SUSPENDED from the practice of law for one (1) year and Respondent’s notarial commission is Revoked and Disqualified from reappointment as Notary Public for two (2) years with a notification that this suspension of one year must be served in succession to the initial recommendation of the IBP Board of Suspension of one year in CBD Case No. 04-1371.6

From these undisputed facts, supervening events occurred that must be taken into consideration of the present case.

First, CBD Case No. 04-1371, entitled Victorina Bautista, complainant, v. Atty. Sergio E. Bernabe, respondent, which was the case referred to in Resolution No. XVII-2005-116, was docketed as A.C. No. 69637 before the Court. In a decision dated February 9, 2006, the Court revoked the respondent’s notarial commission and disqualified him from reappointment as Notary Public for a period of two (2) years, for his failure to properly perform his duties as notary public when he notarized a document in the absence of one of the affiants. In addition, the Court suspended him from the practice of law for a period of one (1) year, with a warning that a repetition of the same or of similar acts shall be dealt with more severely.

Second, on January 6, 2006, the respondent filed a motion for reconsideration of Resolution No. XVII-2005-116 before the IBP Commission on Bar Discipline. The respondent moved to reconsider the IBP Resolution, claiming that the penalty imposed for the infraction committed was too harsh. The motion was denied in Resolution No. XVII-2006-81, dated January 28, 2006,8 for lack of jurisdiction of the IBP Commission on Bar Discipline, since the administrative matter had then been endorsed to the Court.

Third, on January 4, 2006, a motion for reconsideration (the same as the one filed with the IBP Commission on Bar Discipline) was filed by the respondent before the Court. In a Minute Resolution dated March 22, 2006, the Court noted the findings and recommendations in Resolution No. XVII-2005-116 and required the complainant to file her Comment to the respondent’s motion for reconsideration. On April 28, 2006, the complainant filed her Comment praying for the denial of the motion.

On July 5, 2006, the Court issued a Minute Resolution noting the denial of the respondent’s motion for reconsideration, by the IBP Commission on Bar Discipline, and the complainant’s Comment to the respondent’s motion before the Court.

Subsequently, on January 26, 2009, the Court declared the case closed and terminated after considering that no motion for reconsideration or petition for review, assailing both IBP resolutions, had been filed by the respondent.9

On October 8, 2009, the respondent, through a letter addressed to the Office of the Bar Confidant, requested that he be given clearance to resume the practice of law and to allow him to be

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commissioned as a notary public. In his letter, the respondent alleged that he has already served the penalties imposed against him in A.C. No. 6963 and the present case. He claimed that after the receipt of the IBP Resolutions in both cases, he did not practice his profession and had not been appointed or commissioned as a notary public.

The Office of the Bar Confidant

Acting on the respondent’s letter, the Office of the Bar Confidant submitted a Report and Recommendation, which states:

1. The EFFECTIVITY of the respondent’s suspension and disqualification should have been COMMENCED on the date of receipt of the Decision of the Court and not from the date of receipt of the Resolution of the IBP recommending the respondent’s suspension from the practice of law and disqualification from being commissioned as notary public, it being recommendatory in nature;

2. The prayer of the respondent to resume his practice of law in Adm. Case No. 6963 be denied;

3. The respondent be REQUIRED to submit certification from competent courts and IBP that he has fully served the entire period of suspension and disqualification in Adm. Case No. 6963;

4. The Court may now FINALLY RESOLVE the findings and recommendation of the IBP in its Resolution No. XVII-2005-16, dated October 2005, in Adm. Case No. 6258, for final disposition of the case and for proper determination whether the order of suspension and disqualification in Adm. Case No. 6963 should be lifted after the respondent has satisfactorily shown that he has fully served the suspension and disqualification.10

The Court’s Ruling

The findings of the Board of Governors of the IBP Commission on Bar Discipline are well-taken. We cannot overemphasize the important role a notary public performs. In Gonzales v. Ramos,11 we stressed that notarization is not an empty, meaningless routinary act but one invested with substantive public interest. The notarization by a notary public converts a private document into a public document, making it admissible in evidence without further proof of its authenticity.12 A notarized document is, by law, entitled to full faith and credit upon its face.13 It is for this reason that a notary public must observe with utmost care the basic requirements in the performance of his duties; otherwise, the public’s confidence in the integrity of a notarized document would be undermined.14

The records undeniably show the gross negligence exhibited by the respondent in discharging his duties as a notary public. He failed to ascertain the identities of the affiants before him and failed to comply with the most basic function that a notary public must do, i.e., to require the parties’ presentation of their residence certificates or any other document to prove their identities. Given the respondent’s admission in his pleading that the donors were already dead when he notarized the Deed of Donation, we have no doubt that he failed in his duty to ascertain the identities of the persons who appeared before him as donors in the Deed of Donation.

Under the circumstances, we find that the respondent should be made liable not only as a notary public but also as a lawyer. He not only violated the Notarial Law (Public Act No. 2103), but also Canon 1 and Rule 1.01 of the Code of Professional Responsibility.

Section 1 of Public Act No. 2103 (Old Notarial Law)15 states:

(a) The acknowledgment shall be made before a notary public or an officer duly authorized by law of the country to take acknowledgments of instruments or documents in the place where the act is done. The notary public or the officer taking the acknowledgment shall certify that the person acknowledging the instrument or document is known to him and that he is the same person who executed it, and acknowledged that the same is his free act and deed. The certificate shall be made under his official seal, if he is by law required to keep a seal, and if not, his certificate shall so state.

In turn, Canon 1 of the Code of Professional Responsibility provides that "[a] lawyer shall uphold the Constitution, obey the laws of the land and promote respect for law and legal processes." At the same time, Rule 1.01 of the Code of Professional Responsibility prohibits a lawyer from engaging in unlawful, dishonest, immoral or deceitful conduct.

In this regard, a reading of the respondent’s Acknowledgment in the Deed of Donation shows how these provisions were violated by the respondent:

BEFORE ME, Notary Public for and in Bulacan this AUG 05 1994 day of August, 1994, personally appeared:

BENVENUTO H. LUSTESTICA: C.T.C. # _______:________:________

CORNELIA RIVERO : C.T.C. # ________:________:________

CECILIO LUSTESTICA : C.T.C. # ________:________:________

JULIANA LUSTESTICA : C.T.C. # ________:________:________

known to me and to me known to be the same persons who executed the foregoing instrument and acknowledged to me that the same are their free act and voluntary deed.16

The respondent engaged in dishonest conduct because he falsely represented in his Acknowledgment that the persons who appeared before him were "known to him" to be the same persons who executed the Deed of Donation, despite the fact that he did not know them and did not ascertain their identities as he attested.17

Moreover, the respondent engaged in unlawful conduct when he did not observe the requirements under Section 1 of the Old Notarial Law that requires notaries public to certify that the party to the instrument has acknowledged and presented, before the notaries public, the proper residence certificate (or exemption from the residence certificate) and to enter the residence certificate’s number, place, and date of issue as part of the certification.18 The unfilled spaces in the Acknowledgment where the residence certificate numbers should have been clearly established that the respondent did not perform this legal duty.

With these considerations, we find that the imposition of administrative sanctions for the above infractions committed is in order.

The IBP Commission on Bar Discipline recommended the penalty of suspension, for a period of one (1) year, from the practice of law and disqualification from reappointment as Notary Public for a period of two (2) years. Considering that this is already Atty. Bernabe’s second infraction, we find the IBP’s recommendation to be very light; it is not commensurate with his demonstrated predisposition to undertake the duties of a notary public and a lawyer lightly.

In Maligsa v. Cabanting,19 we disbarred a lawyer for failing to subscribe to the sacred duties imposed upon a notary public. In imposing the penalty of disbarment, the Court considered the

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lawyer’s prior misconduct where he was suspended for a period of six (6) months and warned that a repetition of the same or similar act would be dealt with more severely.20

In Flores v. Chua,21 we disbarred the lawyer after finding that he deliberately made false representations that the vendor appeared before him when he notarized a forged deed of sale. We took into account that he was previously found administratively liable for violation of Rule 1.01 of the Code of Professional Responsibility (for bribing a judge) and sternly warned that a repetition of similar act or acts or violation committed by him in the future would be dealt with more severely.22

In Traya v. Villamor,23 we found the respondent notary public guilty of gross misconduct in his notarial practice for failing to observe the proper procedure in determining that the person appearing before him is the same person who executed the document presented for notarization. Taking into account that it was his second offense, he was perpetually disqualified from being commissioned as a notary public.24

In Social Security Commission v. Coral,25 we suspended indefinitely the notarial commission of the respondent lawyer who was found to have prepared, notarized and filed two complaints that were allegedly executed and verified by people who have long been dead. We also directed him to show cause why he should not be disbarred.26

Considering these established rulings, read in light of the circumstances in the present case, we find that Atty. Bernabe should be disbarred from the practice of law and perpetually disqualified from being commissioned as a notary public. We emphasize that this is respondent’s second offense and while he does not appear to have any participation in the falsification of the Deed of Donation, his contribution was his gross negligence for failing to ascertain the identity of the persons who appeared before him as the donors. This is highlighted by his admission27 in his Answer that he did not personally know the parties and was not acquainted with them. The blank spaces in the Acknowledgment indicate that he did not even require these parties to produce documents that would prove that they are the same persons they claim to be. As we emphasized in Maligsa:

A lawyer shall at all times uphold the integrity and dignity of the legal profession. The bar should maintain a high standard of legal proficiency as well as honesty and fair dealing. A lawyer brings honor to the legal profession by faithfully performing his duties to society, to the bar, to the courts and to his clients. To this end a member of the legal fraternity should refrain from doing any act which might lessen in any degree the confidence and trust reposed by the public in the fidelity, honesty and integrity of the legal profession.28

In light of the above findings and penalties, the respondent’s request to be given clearance to resume the practice of law and to apply for a notarial commission, after serving the administrative sanctions in A.C. No. 6963, is now moot and academic. We, accordingly, deny the request for clearance to practice law and to apply for notarial commission.

WHEREFORE, premises considered, the Court resolves to:

(1) NOTE the letter dated October 8, 2009 of respondent Atty. Sergio E. Bernabe to the Office of the Bar Confidant.

(2) ADOPT the findings and recommendations of the IBP Commission on Bar Discipline with MODIFICATION on the administrative penalty imposed.

(3) DECLARE respondent Atty. Sergio E. Bernabe liable for gross negligence, in the performance of his duties as notary public, and for his deceitful and dishonest attestation, in the course of administering the oath taken before him. Respondent Atty. Sergio E. Bernabe is hereby DISBARRED

from the practice of law and his name is ORDERED STRICKEN from the Roll of Attorneys. He is also PERPETUALLY DISQUALIFIED from being commissioned as a notary public.

(4) DENY the request for clearance to practice law and to apply for notarial commission of respondent Atty. Sergio E. Bernabe.

Let a copy of this Decision be attached to Atty. Sergio E. Bernabe’s record, as a member of the bar, and copies furnished to the Integrated Bar of the Philippines and the Office of the Court Administrator for circulation to all courts.

In view of the notarization of a falsified deed whose purported parties were already dead at the time of notarization, let a copy of this Decision be furnished the Office of the Prosecutor General, Department of Justice for whatever action, within its jurisdiction, it may deem appropriate to bring against Atty. Sergio E. Bernabe.

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3) DYCOCO V. ORINA, G.R. NO. 184843, 30 JULY 2010

On petition for review on certiorari is the November 29, 2007 Decision of the Court of Appeals1 affirming the dismissal of the action for annulment of real estate mortgage and transfer certificate of title with damages.

Virgilio Dycoco (Dycoco) is alleged to have executed on October 9, 1995 a "Real Estate Mortgage with Special Power to Sell Mortgaged Property without Judicial Proceedings" (REM) in favor of respondent Adelaida Orina (Adelaida), covering a parcel of land located in Sta. Cruz, Manila and registered under Transfer Certificate of Title (TCT) No. 105730 in Dycoco’s name. The REM was notarized on even date by Notary Public Arwin Juco Sinaguinan.

By Adelaida’s claim, Dycoco was indebted to her in the amount of P250,000.00, payable in six months, to bear monthly interest rate of five percent (5%), to secure which Dycoco executed the REM.

For Dycoco’s alleged failure to pay his obligation, Adelaida extrajudicially foreclosed the REM and as no redemption was made within the reglementary period, Dycoco’s TCT was cancelled and, in its stead, TCT No. 243525 was issued in her name.

Dycoco’s attorneys-in-fact-brothers-in-law Cristino, Jose and Adolfo, all surnamed Grafilo, who occupy the property covered by the REM as caretakers/tenants, did not turn-over its possession to Adelaida, hence, she, joined by her husband represented by her attorney-in-fact Evelyn Sagalongos (Evelyn), filed a complaint for ejectment against them before the Metropolitan Trial Court (MeTC) of Manila.

Upon receiving notice of the complaint, Dycoco, represented by his attorneys-in-fact, filed a complaint for annulment of the REM and transfer certificate of title with damages, docketed as Civil Case No. 01100522, against Adelaida and her husband German Orina represented by Evelyn before the Regional Trial Court (RTC) of Manila.

Dycoco’s attorneys-in-fact claimed that Dycoco’s signature on the REM was forged, to prove which they presented various documents that Dycoco was working in the United States of America as a licensed physician on the alleged date of execution of the REM. They also presented Dycoco’s U.S. Passport, personal checks, Special Power of Attorney and Affidavit; and a Certification from the Clerk of Court of RTC Manila that the office does not possess a copy of the REM, Notary Public Sinaguinan having not submitted her notarial report for October 1995.

Herein respondents Adelaida et al., maintaining the due execution of the REM, presented Evelyn who testified on a photocopy of the REM.

By Decision of May 23, 2005, Branch 15 of the Manila RTC dismissed Dycoco’s complaint, holding that:

Plaintiff, [Dycoco], through the testimony of their (sic) lone witness as well as their (sic) documentary exhibits tried to show that it was not . . . Dycoco who mortgaged the said property. Cristino Grafilo even testified that their brother Miguel, admitted to having stole (sic) the title and have (sic) it mortgaged. Plaintiffs (sic), however, failed to establish that the mortgagor, (sic) defendant Adelaida Orina, knew it was not Virgilio Dycoco who mortgaged the same.2 (underscoring supplied)

By the assailed Decision, the Court of Appeals affirmed the trial court’s dismissal of Dycoco’s complaint, it holding that albeit Dycoco’s questioned signature appearing on the REM and the

documentary evidence presented by his attorneys-in-fact bear "striking differences," since Dycoco was not presented on the witness stand to establish the genuineness, due execution and contents of the documentary evidence, no probative value can be ascribed thereto.

In not crediting evidentiary weight on Dycoco’s U.S. passport showing that he was not in the Philippines when the REM was executed, the appellate court held:

. . . [T]he existence, genuineness, due execution and contents of Exhibit "I" have not been properly established. Again, the identification made by plaintiff-appellant Cristino Grafilo (sic) will not suffice since he is not privy to its issuance and execution. The plaintiff-appellants (sic) should have presented a person competent to testify to establish the genuineness and contents of Exhibit "I" like an officer from the Bureau of Immigration. But the plaintiff-appellants (sic) failed to do so. Thus, this court finds the stance of plaintiff-appellants (sic) that Virgilio Dycoco was out of the country at the time of the execution of the questioned deed unsupported.3

The motion for reconsideration of Dycoco’s attorneys-in-fact having been denied by Resolution of October 3, 2008, the present petition for review was filed.

A perusal of the REM which is, as stated earlier, a merely photocopy, shows the incompleteness of the acknowledgment portion. It reads:

Republic of the Philippines )

City of Manila ) S.S.

BEFORE ME, a Notary Public for and in the City of Manila, this 9th day of October 1995, personally came and appeared ____________________ (sic) with Res. Cert. No. : 12262297 C issued on 27 July 95 at Manila and Tax Account No.: 110-783-724 known to me and to me known to be the same person who executed the foregoing instrument which he acknowledged before me as his free and voluntary act and deed.4

As the above-quoted acknowledgment shows, the name of the person who personally appeared before the notary public is not stated.

Documents acknowledged before a notary public, except last wills and testaments, are public documents.5 Since the subject REM was not properly notarized, its public character does not hold.

Since the REM is not a public document, it is subject to the requirement of proof for private documents under Section 20, Rule 132, which provides:

Section 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. (underscoring supplied)

It was thus incumbent upon Adelaida to prove that Dycoco’s signature is genuine. As stated earlier, a mere photocopy of the REM was presented. It is axiomatic that when the genuineness of signatures on a document is sought to be proved or disproved through comparison of standard signatures with

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the questioned signature, the original thereof must be presented.6 Why respondents did not present the original, they did not explain. Why they did not present Adelaida, who must have been present at the execution of the REM as her purported signature appears thereon, or the notary public, or any of the witnesses, neither did they explain. Sec. 5 of Rule 130 which reads:

SEC. 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 the 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.

Upon the other hand, Dycoco’s attorneys-in-fact presented his U.S. passport documenting when he entered and exited from the Philippines, as well as various documents showing his genuine signature. The appellate court, although upholding the admissibility of Dycoco’s documentary evidence, did not ascribe weight to it, however, upon the justification that "[e]ven if . . . Cristino Grafilo was empowered to appear for and on behalf of plaintiff-appellant Virgilio Dycoco in this case by virtue of a Special Power of Attorney, the powers couched in said document do not vest upon the former the power to testify on matters [of] which he has no personal knowledge."7

Contrary to the appellate court’s stance, there was no necessity to present Dycoco on the witness stand or to present the one who made the entries on his U.S. passport. In respondents’ Comment/Opposition to Dycoco’s formal offer of evidence, the passport was objected to as being "immaterial, irrelevant and impertinent."8 Such comment is a virtual admission of the authenticity of the entries in the passport.

But more important, one of the documents offered by Dycoco is a Special Power of Attorney executed on June 2, 2000 in Illinois, U.S.A. showing his signature, notarized and certified in accordance with Public Act No. 2103,9 which effectively dispenses with the requirement of presenting him on the witness stand.

Section 2. An instrument or document acknowledged and authenticated in a foreign country shall be considered authentic if the acknowledgment and authentication are made in accordance with the following requirements:

(a) The acknowledgment shall be made before (1) an ambassador, minister, secretary of legation, chargé d’affaires, consul, vice-consul, or consular agent of the United States, acting within the country or place to which he is accredited, or (2) a notary public or officer duly authorized by law of the country to take acknowledgments of instruments or documents in the place where the act is done.

(b) The person taking the acknowledgment shall certify that the person acknowledging the instrument or document is known to him, and that he is the same person who executed it, and acknowledged that the same is his free act and deed. The certificate shall be under his official seal, if he is by law required to keep a seal, and if not, his certificate shall so state. In case the acknowledgment is made before a notary public or an officer mentioned in subdivision (2) of the preceding paragraph, the certificate of the notary public or the officer taking the acknowledgment shall be authenticated by an ambassador, minister, secretary of legation, chargé d’affaires, consul, vice-consul, or consular agent of the United States, acting within the country or place to which he is accredited. The officer making the authentication shall certify under his official seal that the person who took the acknowledgment was at the time duly authorized to act as notary public or that he was duly exercising the functions of the office by virtue of which he assumed to act, and that as such he had authority under the law to take acknowledgment of instruments or documents in the place

where the acknowledgment was taken, and that his signature and seal, if any, are genuine. (emphasis and underscoring supplied)

Evelyn insisted that Dycoco was present during the signing of the REM on October 9, 1995:

ATTY. MERCADO:

Q: Madam Witness, when this document was prepared, were you present?

WITNESS:

A: Yes sir.Q: Are you a witness in the execution of this document?A: Yes sir.Q: On page 2 of this document, the (sic) appears a signature above the type-written name Adelaida Orina, will you please inform the Honorable Court whose signature is this?Q: Why do you know that it is the signature of Adelaida Orina?A: Because she is included there.Q: What do you mean by "kasama po siya"?A: There were four of us at the office of the Notary Public.Q: When you said four of you, whao (sic) are they?A: Adelaida, Virgilio, two other witness (sic) and me.Q: You are not four, you are five?A: Yes sir.10 (underscoring supplied)

Evelyn’s testimony not only contradicts the entries in Dycoco’s U.S. Passport, however, it appearing therein that Dycoco visited the Philippines on April 2, 1990 and arrived in the United States on April 9 of the same year. Contrary to her claim, the REM does not reflect here as one of the witnesses to its execution.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals dated November 29, 2007 is REVERSED and SET ASIDE.1avvphi1

Let a NEW judgment be entered declaring null and void the document entitled "Real Estate Mortgage with Special Power to Sell Mortgaged Property without Judicial Proceedings" purportedly signed by Virgilio Dycoco in favor of Adelaida Orina.

Let a copy of this Decision be furnished the Register of Deeds of Manila for proper disposition.

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4) LANDINGIN V. REPUBLIC, G.R. NO. 164948, 27 JUNE 2006

Assailed in this petition for review on certiorari under Rule 45 of the Rules of Court is the Decision1 of the Court of Appeals in CA-G.R. CV No. 77826 which reversed the Decision2 of the Regional Trial Court (RTC) of Tarlac City, Branch 63 in Civil Case No. 2733 granting the Petition for Adoption of the petitioner herein.

The Antecedents

On February 4, 2002, Diwata Ramos Landingin, a citizen of the United States of America (USA), of Filipino parentage and a resident of Guam, USA, filed a petition3 for the adoption of minors Elaine Dizon Ramos who was born on August 31, 1986;4 Elma Dizon Ramos, who was born on September 7, 1987;5 and Eugene Dizon Ramos who was born on August 5, 1989.6 The minors are the natural children of Manuel Ramos, petitioner’s brother, and Amelia Ramos.

Landingin, as petitioner, alleged in her petition that when Manuel died on May 19, 1990,7 the children were left to their paternal grandmother, Maria Taruc Ramos; their biological mother, Amelia, went to Italy, re-married there and now has two children by her second marriage and no longer communicated with her children by Manuel Ramos nor with her in-laws from the time she left up to the institution of the adoption; the minors are being financially supported by the petitioner and her children, and relatives abroad; as Maria passed away on November 23, 2000, petitioner desires to adopt the children; the minors have given their written consent8 to the adoption; she is qualified to adopt as shown by the fact that she is a 57-year-old widow, has children of her own who are already married, gainfully employed and have their respective families; she lives alone in her own home in Guam, USA, where she acquired citizenship, and works as a restaurant server. She came back to the Philippines to spend time with the minors; her children gave their written consent9 to the adoption of the minors. Petitioner’s brother, Mariano Ramos, who earns substantial income, signified his willingness and commitment to support the minors while in petitioner’s custody.

Petitioner prayed that, after due hearing, judgment be rendered in her favor, as follows:

WHEREFORE, it is most respectfully prayed to this Honorable Court that after publication and hearing, judgment be rendered allowing the adoption of the minor children Elaine Dizon Ramos, Elma Dizon Ramos, and Eugene Dizon Ramos by the petitioner, and ordering that the minor children’s name follow the family name of petitioner.

Petitioner prays for such other reliefs, just and equitable under the premises.10

On March 5, 2002, the court ordered the Department of Social Welfare and Development (DSWD) to conduct a case study as mandated by Article 34 of Presidential Decree No. 603, as amended, and to submit a report thereon not later than April 4, 2002, the date set for the initial hearing of the petition.11 The Office of the Solicitor General (OSG) entered its appearance12 but deputized the City Prosecutor of Tarlac to appear in its behalf.13 Since her petition was unopposed, petitioner was allowed to present her evidence ex parte.14

The petitioner testified in her behalf. She also presented Elaine Ramos, the eldest of the adoptees, to testify on the written consent executed by her and her siblings.15 The petitioner marked in evidence the Affidavit of Consent purportedly executed by her children Ann, Errol, Dennis and Ricfel Branitley, all surnamed Landingin, and notarized by a notary public in Guam, USA, as proof of said consent.16

On May 24, 2002, Elizabeth Pagbilao, Social Welfare Officer II of the DSWD, Field Office III, Tarlac, submitted a Child Study Report, with the following recommendation:

In view of the foregoing, undersigned finds minors Elaine, Elma & Eugene all surnamed Ramos, eligible for adoption because of the following reasons:

1. Minors’ surviving parent, the mother has voluntarily consented to their adoption by the paternal aunt, Diwata Landingin this is in view of her inability to provide the parental care, guidance and support they need. An Affidavit of Consent was executed by the mother which is hereto attached.

2. The three minors subject for adoption have also expressed their willingness to be adopted and joins the petitioners in Guam, USA in the future. A joint Affidavit of consent is hereto attached. The minors developed close attachment to the petitioners and they regarded her as second parent.

3. The minors are present under the care of a temporary guardian who has also family to look after. As young adolescents they really need parental love, care, guidance and support to ensure their protection and well being.

In view of the foregoing, it is hereby respectfully recommended that minors Elaine D. Ramos, Elma D. Ramos and Eugene D. Ramos be adopted by their maternal aunt Diwata Landingin. Trial custody is hereby further recommended to be dispensed with considering that they are close relatives and that close attachments was already developed between the petitioner and the 3 minors.17

Pagbilao narrated what transpired during her interview, as follows:

The mother of minors came home together with her son John Mario, this May 2002 for 3 weeks vacation. This is to enable her appear for the personal interview concerning the adoption of her children.

The plan for the adoption of minors by their paternal aunt Diwata Landingin was conceived after the death of their paternal grandmother and guardian. The paternal relatives including the petitioner who attended the wake of their mother were very much concerned about the well-being of the three minors. While preparing for their adoption, they have asked a cousin who has a family to stay with minors and act as their temporary guardian.

The mother of minors was consulted about the adoption plan and after weighing the benefits of adoption to her children, she voluntarily consented. She realized that her children need parental love, guidance and support which she could not provide as she already has a second family & residing in Italy. Knowing also that the petitioners & her children have been supporting her children up to the present and truly care for them, she believes her children will be in good hands. She also finds petitioners in a better position to provide a secured and bright future to her children.18

However, petitioner failed to present Pagbilao as witness and offer in evidence the voluntary consent of Amelia Ramos to the adoption; petitioner, likewise, failed to present any documentary evidence to prove that Amelia assents to the adoption.

On November 23, 2002, the court, finding merit in the petition for adoption, rendered a decision granting said petition. The dispositive portion reads:

WHEREFORE, it is hereby ordered that henceforth, minors Elaine Dizon Ramos, Elma Dizon Ramos, Eugene Dizon Ramos be freed from all legal obligations obedience and maintenance from their natural parents and that they be declared for all legal intents and purposes the children of Diwata Ramos Landingin. Trial custody is dispensed with considering that parent-children relationship has

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long been established between the children and the adoptive parents. Let the surnames of the children be changed from "Dizon-Ramos" to "Ramos-Landingin."

Let a copy of this decision be furnished the Local Civil Registrar of Tarlac, Tarlac for him to effect the corresponding changes/amendment in the birth certificates of the above-mentioned minors.

SO ORDERED.19

The OSG appealed20 the decision to the Court of Appeals on December 2, 2002. In its brief21 for the oppositor-appellant, the OSG raised the following arguments:

ITHE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE THE LACK OF CONSENT OF THE PROPOSED ADOPTEES’ BIOLOGICAL MOTHER.IITHE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE THE LACK OF THE WRITTEN CONSENT OF THE PETITIONER’S CHILDREN AS REQUIRED BY LAW.IIITHE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE PETITIONER’S FAILURE TO ESTABLISH THAT SHE IS IN A POSITION TO SUPPORT THE PROPOSED ADOPTEES.

On April 29, 2004, the CA rendered a decision22 reversing the ruling of the RTC. It held that petitioner failed to adduce in evidence the voluntary consent of Amelia Ramos, the children’s natural mother. Moreover, the affidavit of consent of the petitioner’s children could not also be admitted in evidence as the same was executed in Guam, USA and was not authenticated or acknowledged before a Philippine consular office, and although petitioner has a job, she was not stable enough to support the children. The dispositive portion of the CA decision reads:

WHEREFORE, premises considered, the appealed decision dated November 25, 2002 of the Regional Trial Court, Branch 63, Tarlac City in Spec. Proc. No. 2733 is hereby REVERSED and SET ASIDE.

SO ORDERED.23

Petitioner filed a Motion for Reconsideration24 on May 21, 2004, which the CA denied in its Resolution dated August 12, 2004.25

Petitioner, thus, filed the instant petition for review on certiorari26 on September 7, 2004, assigning the following errors:

1. THAT THE HONORABLE LOWER COURT HAS OVERLOOKED AND MISAPPLIED SOME FACTS AND CIRCUMSTANCES WHICH ARE OF WEIGHT AND IMPORTANCE AND WHICH IF CONSIDERED WOULD HAVE AFFECTED THE RESULT OF THE CASE.

2. THAT THE HONORABLE LOWER COURT ERRED IN CONCLUDING THAT THE PETITIONER-APPELLEE IS NOT FINANCIALLY CAPABLE TO SUPPORT THE THREE CHILDREN.27

The issues raised by the parties in their pleadings are the following: (a) whether the petitioner is entitled to adopt the minors without the written consent of their biological mother, Amelia Ramos; (b) whether or not the affidavit of consent purportedly executed by the petitioner-adopter’s children sufficiently complies with the law; and (c) whether or not petitioner is financially capable of supporting the adoptees.

The Court’s Ruling

The petition is denied for lack of merit.

It has been the policy of the Court to adhere to the liberal concept, as stated in Malkinson v. Agrava,28 that adoption statutes, being humane and salutary, hold the interest and welfare of the child to be of paramount consideration and are designed to provide homes, parental care and education for unfortunate, needy or orphaned children and give them the protection of society and family in the person of the adopter as well as to allow childless couples or persons to experience the joys of parenthood and give them legally a child in the person of the adopted for the manifestation of their natural parental instincts. Every reasonable intendment should thus be sustained to promote and fulfill these noble and compassionate objectives of the law.29

However, in Cang v. Court of Appeals,30 the Court also ruled that the liberality with which this Court treats matters leading to adoption insofar as it carries out the beneficent purposes of the law to ensure the rights and privileges of the adopted child arising therefrom, ever mindful that the paramount consideration is the overall benefit and interest of the adopted child, should be understood in its proper context and perspective. The Court’s position should not be misconstrued or misinterpreted as to extend to inferences beyond the contemplation of law and jurisprudence. Thus, the discretion to approve adoption proceedings is not to be anchored solely on best interests of the child but likewise, with due regard to the natural rights of the parents over the child.31

Section 9 of Republic Act No. 8552, otherwise known as the Domestic Adoption Act of 1998, provides:

Sec. 9. Whose Consent is Necessary to the Adoption. - After being properly counseled and informed of his/her right to give or withhold his/her approval of the adoption, the written consent of the following to the adoption is hereby required:

(a) The adoptee, if ten (10) years of age or over;(b) The biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality which has legal custody of the child;(c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s) and adoptee, if any;(d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter, if living with said adopter and the latter’s souse, if any;(e) The spouse, if any, of the person adopting or to be adopted.

The general requirement of consent and notice to the natural parents is intended to protect the natural parental relationship from unwarranted interference by interlopers, and to insure the opportunity to safeguard the best interests of the child in the manner of the proposed adoption.32

Clearly, the written consent of the biological parents is indispensable for the validity of a decree of adoption. Indeed, the natural right of a parent to his child requires that his consent must be obtained before his parental rights and duties may be terminated and re-established in adoptive parents. In this case, petitioner failed to submit the written consent of Amelia Ramos to the adoption.

We note that in her Report, Pagbilao declared that she was able to interview Amelia Ramos who arrived in the Philippines with her son, John Mario in May 2002. If said Amelia Ramos was in the Philippines and Pagbilao was able to interview her, it is incredible that the latter would not require Amelia Ramos to execute a Written Consent to the adoption of her minor children. Neither did the petitioner bother to present Amelia Ramos as witness in support of the petition.

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Petitioner, nonetheless, argues that the written consent of the biological mother is no longer necessary because when Amelia’s husband died in 1990, she left for Italy and never came back. The children were then left to the guidance and care of their paternal grandmother. It is the paternal relatives, including petitioner, who provided for the children’s financial needs. Hence, Amelia, the biological mother, had effectively abandoned the children. Petitioner further contends that it was by twist of fate that after 12 years, when the petition for adoption was pending with the RTC that Amelia and her child by her second marriage were on vacation in the Philippines. Pagbilao, the DSWD social worker, was able to meet her, and during the meeting, Amelia intimated to the social worker that she conformed to the adoption of her three children by the petitioner.

Petitioner’s contention must be rejected. When she filed her petition with the trial court, Rep. Act No. 8552 was already in effect. Section 9 thereof provides that if the written consent of the biological parents cannot be obtained, the written consent of the legal guardian of the minors will suffice. If, as claimed by petitioner, that the biological mother of the minors had indeed abandoned them, she should, thus have adduced the written consent of their legal guardian.

Ordinarily, abandonment by a parent to justify the adoption of his child without his consent, is a conduct which evinces a settled purpose to forego all parental duties.33 The term means neglect and refusal to perform the filial and legal obligations of love and support. If a parent withholds presence, love, care, the opportunity to display filial affection, and neglects to lend support and maintenance, the parent, in effect, abandons the child.34

Merely permitting the child to remain for a time undisturbed in the care of others is not such an abandonment.35 To dispense with the requirement of consent, the abandonment must be shown to have existed at the time of adoption.36

In this case, petitioner relied solely on her testimony and that of Elaine Ramos to prove her claim that Amelia Ramos had abandoned her children. Petitioner’s testimony on that matter follows:

Q Where is the mother of these three children now?A She left for Italy on November 20, 1990, sir.Q At the time when Amelia Ramos left for Italy, was there an instance where she communicated with the family?A None, sir.Q How about with her children?A None, sir.Q Do you know what place in Italy did she reside?A I do not know, sir.Q Did you receive any news about Amelia Ramos?A What I know, sir, was that she was already married with another man.Q From whom did you learn that?A From others who came from Italy, sir.Q Did you come to know whether she has children by her second marriage?

A Yes, sir, she got two kids.37

Elaine, the eldest of the minors, testified, thus:

Q Where is your mother now?A In Italy, sir.Q When did your mother left for Italy?A After my father died, sir.Q How old were you when your mother left for Italy in 1990?

A Two years old, sir.Q At the time when your mother left for Italy, did your mother communicate with you?A No, sir.38

However, the Home Study Report of the DSWD Social Worker also stated the following:

IV. Background of the Case:

x x x xSince the mother left for Italy, minors siblings had been under the care and custody of their maternal grandmother. However, she died in Nov. 2001 and an uncle, cousin of their deceased father now serves as their guardian. The petitioner, together with her children and other relatives abroad have been supporting the minor children financially, even during the time that they were still living with their natural parents. Their mother also sends financial support but very minimal.39

x x x xV. Background Information about the Minors Being Sought for Adoption:

x x x xAs the eldest she tries her best to be a role model to her younger siblings. She helps them in their lessons, works and has fun with them. She also encourages openness on their problems and concerns and provides petty counseling. In serious problems she already consult (sic) her mother and petitioner-aunt.40

x x x xIn their 5 years of married life, they begot 3 children, herein minors, Amelia recalled that they had a happy and comfortable life. After the death of her husband, her in-laws which include the petitioner had continued providing support for them. However being ashamed of just depending on the support of her husband’s relatives, she decided to work abroad. Her parents are also in need of financial help as they are undergoing maintenance medication. Her parents mortgaged their farm land which she used in going to Italy and worked as domestic helper.

When she left for Italy in November 1990, she entrusted her 3 children to the care & custody of her mother-in-law who returned home for good, however she died on November 2000.

While working in Italy, she met Jun Tayag, a married man from Tarlac. They became live-in partners since 1995 and have a son John Mario who is now 2 years old. The three of them are considered Italian residents. Amelia claimed that Mr. Tayag is planning to file an annulment of his marriage and his wife is amenable to it. He is providing his legitimate family regular support.

Amelia also sends financial support ranging from P10,000-P15,000 a month through her parents who share minimal amount of P3,000-P5,000 a month to his (sic) children. The petitioner and other paternal relatives are continuously providing support for most of the needs & education of minors up to present.41

Thus, when Amelia left for Italy, she had not intended to abandon her children, or to permanently sever their mother-child relationship. She was merely impelled to leave the country by financial constraints. Yet, even while abroad, she did not surrender or relinquish entirely her motherly obligations of rearing the children to her now deceased mother-in-law, for, as claimed by Elaine herself, she consulted her mother, Amelia, for serious personal problems. Likewise, Amelia continues to send financial support to the children, though in minimal amounts as compared to what her affluent in-laws provide.

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Let it be emphasized, nevertheless, that the adoption of the minors herein will have the effect of severing all legal ties between the biological mother, Amelia, and the adoptees, and that the same shall then be vested on the adopter.42 It would thus be against the spirit of the law if financial consideration were to be the paramount consideration in deciding whether to deprive a person of parental authority over his/her children. More proof has to be adduced that Amelia has emotionally abandoned the children, and that the latter will not miss her guidance and counsel if they are given to an adopting parent.43 Again, it is the best interest of the child that takes precedence in adoption.

Section 34, Rule 132 of the Rules of Court provides that the Court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. 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. Mere identification of documents and the markings thereof as exhibits do not confer any evidentiary weight on documents unless formally offered.44

Petitioner failed to offer in evidence Pagbilao’s Report and of the Joint Affidavit of Consent purportedly executed by her children; the authenticity of which she, likewise, failed to prove. The joint written consent of petitioner’s children45 was notarized on January 16, 2002 in Guam, USA; for it to be treated by the Rules of Court in the same way as a document notarized in this country it needs to comply with Section 2 of Act No. 2103,46 which states:

Section 2. An instrument or document acknowledged and authenticated in a foreign country shall be considered authentic if the acknowledgment and authentication are made in accordance with the following requirements:

(a) The acknowledgment shall be made before (1) an ambassador, minister, secretary of legation, chargé d affaires, consul, vice-consul, or consular agent of the Republic of the Philippines, acting within the country or place to which he is accredited, or (2) a notary public or officer duly authorized by law of the country to take acknowledgments of instruments or documents in the place where the act is done.

(b) The person taking the acknowledgment shall certify that the person acknowledging the instrument or document is known to him, and that he is the same person who executed it, and acknowledged that the same is his free act and deed. The certificate shall be under his official seal, if he is by law required to keep a seal, and if not, his certificate shall so state. In case the acknowledgment is made before a notary public or an officer mentioned in subdivision (2) of the preceding paragraph, the certificate of the notary public or the officer taking the acknowledgment shall be authenticated by an ambassador, minister, secretary of legation, chargé de affaires, consul, vice-consul, or consular agent of the Republic of the Philippines, acting within the country or place to which he is accredited. The officer making the authentication shall certify under his official seal that the person who took the acknowledgment was at the time duly authorized to act as notary public or that he was duly exercising the functions of the office by virtue of which he assumed to act, and that as such he had authority under the law to take acknowledgment of instruments or documents in the place where the acknowledgment was taken, and that his signature and seal, if any, are genuine.

As the alleged written consent of petitioner’s legitimate children did not comply with the afore-cited law, the same can at best be treated by the Rules as a private document whose authenticity must be proved either by anyone who saw the document executed or written; or by evidence of the genuineness of the signature or handwriting of the makers.47

Since, in the instant case, no further proof was introduced by petitioner to authenticate the written consent of her legitimate children, the same is inadmissible in evidence.

In reversing the ruling of the RTC, the CA ruled that petitioner was not stable enough to support the children and is only relying on the financial backing, support and commitment of her children and her siblings.48 Petitioner contradicts this by claiming that she is financially capable as she has worked in Guam for 14 years, has savings, a house, and currently earns $5.15 an hour with tips of not less than $1,000.00 a month. Her children and siblings have likewise committed themselves to provide financial backing should the need arise. The OSG, again in its comment, banks on the statement in the Home Study Report that "petitioner has limited income." Accordingly, it appears that she will rely on the financial backing of her children and siblings in order to support the minor adoptees. The law, however, states that it is the adopter who should be in a position to provide support in keeping with the means of the family.

Since the primary consideration in adoption is the best interest of the child, it follows that the financial capacity of prospective parents should also be carefully evaluated and considered. Certainly, the adopter should be in a position to support the would-be adopted child or children, in keeping with the means of the family.

According to the Adoption Home Study Report49 forwarded by the Department of Public Health & Social Services of the Government of Guam to the DSWD, petitioner is no longer supporting her legitimate children, as the latter are already adults, have individual lives and families. At the time of the filing of the petition, petitioner was 57 years old, employed on a part-time basis as a waitress, earning $5.15 an hour and tips of around $1,000 a month. Petitioner’s main intention in adopting the children is to bring the latter to Guam, USA. She has a house at Quitugua Subdivision in Yigo, Guam, but the same is still being amortized. Petitioner likewise knows that the limited income might be a hindrance to the adoption proceedings.

Given these limited facts, it is indeed doubtful whether petitioner will be able to sufficiently handle the financial aspect of rearing the three children in the US. She only has a part-time job, and she is rather of age. While petitioner claims that she has the financial support and backing of her children and siblings, the OSG is correct in stating that the ability to support the adoptees is personal to the adopter, as adoption only creates a legal relation between the former and the latter. Moreover, the records do not prove nor support petitioner’s allegation that her siblings and her children are financially able and that they are willing to support the minors herein. The Court, therefore, again sustains the ruling of the CA on this issue.

While the Court recognizes that petitioner has only the best of intentions for her nieces and nephew, there are legal infirmities that militate against reversing the ruling of the CA. In any case, petitioner is not prevented from filing a new petition for adoption of the herein minors.

WHEREFORE, premises considered, the petition is hereby DENIED.

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5) YLAYA V. GACOTT, A.C. NO. 6475, 30 JANUARY 2013

For the Court's consideration is the disbarment complaint1 tiled by Fe A. Ylaya (complainant) against Atty. Glenn Carlos Gacott (respondent) who allegedly deceived the complainant and her late husband, Laurentino L. Ylaya, into signing a "preparatory" Deed of Sale that the respondent converted into a Deed of Absolute Sale in favor of his relatives.

After the submission of the respondent's comment to the complaint, the Court referred the complaint to the Commission on Bar Discipline ofthe Integrated Bar of the Philippines (IBP) for investigation, evaluation and recommendation.

The complainant alleged that she and her late husband are the registered owners of two (2) parcels of land covered by Transfer Certificate of Title ( TCT) Nos. 162632 and 162633 located at Barangay Sta. Lourdes, Puerto Princesa City. Prior to the acquisition of these properties, TCT No. 162632 (property) was already the subject of expropriation proceedings filed by the City Government of Puerto Princesa (City Government) on May 23, 1996 against its former registered owner, Cirilo Arellano. The expropriation case was filed with the Regional Trial Court (RTC) of Palawan and Puerto Princesa, Branch 95, and was docketed as Civil Case No. 2902. The RTC already fixed the price and issued an order for the City Government to deposit P6,000,000.00 as just compensation for the property.2

The respondent briefly represented the complainant and her late husband in the expropriation case as intervenors for being the new registered owners of the property. The complainant alleged that the respondent convinced them to sign a "preparatory deed of sale" for the sale of the property, but he left blank the space for the name of the buyer and for the amount of consideration. The respondent further alleged that the deed would be used in the sale to the City Government when the RTC issues the order to transfer the titles.3 The respondent then fraudulently – without their knowledge and consent, and contrary to their understanding – converted the "preparatory deed of sale" into a Deed of Absolute Sale dated June 4, 2001,4 selling the subject property to Reynold So and Sylvia Carlos So for P200,000.00.5

The complainant denied that she and Laurentino were paid the P200,000.00 purchase price or that they would sell the property "for such a measly sum" when they stood to get at least P6,000,000.00 as just compensation.6

The complainant also claimed that the respondent notarized the Deed of Absolute Sale dated June 4, 2001 even though Reynold and Sylvia (his mother’s sister) are his uncle and his aunt, respectively.7

The respondent denied all the allegations in the complaint.8

The respondent argued that the complainant’s greed to get the just Compensation9 caused her to file this "baseless, unfounded and malicious" disbarment case.10 He claimed that the sale was their voluntary transaction and that he "simply ratified the document."11 He also claimed that Reynold and Laurentino had originally jointly purchased the properties from Cirilo Arellano on July 10, 2000; that they were co-owners for some time; and that Laurentino subsequently sold his share to Reynold under a Deed of Absolute Sale dated June 4, 2001.12

The respondent specifically denied asking the complainant and her late husband to execute any "preparatory deed of sale" in favor of the City Government.13 He also denied that the Deed of Absolute Sale contained blanks when they signed it.14 That he filed for the spouses Ylaya and Reynold an opposition to the just compensation the RTC fixed proved that there was no agreement to use the document for the expropriation case.15 He also argued that it was clear from the document that the intended buyer was a natural person, not a juridical person, because there were

spaces for the buyer’s legal age, marital status, and citizenship,16 and he was even constrained to file a subsequent Motion to Intervene on behalf of Reynold because the complainant "maliciously retained" the TCTs to the subject properties after borrowing them from his office.17 Lastly, he denied violating the Rules on Notarial Practice.18

On September 4, 2006, the respondent filed a Motion to Resolve or Decide the Case dated August 24, 2006 praying for the early resolution of the complaint.19

On December 5, 2006, the complainant filed an Ex Parte Motion to Withdraw the Verified Complaint and To Dismiss the Case dated November 14, 2006.20

On February 28, 2008, the complainant executed an Affidavit21 affirming and confirming the existence, genuineness and due execution of the Deed of Absolute Sale notarized on March 6, 2000;22 the Memorandum of Agreement (MOA) dated April 19, 2000;23 and the Deed of Absolute Sale notarized in 2001.24 The respondent submitted this Affidavit to the IBP as an attachment to his Motion for Reconsideration of April 21, 2008.25

The IBP’s Findings

In her Report and Recommendation dated November 19, 2007, IBP Commissioner Anna Caridad Sazon-Dupaya found the respondent administratively liable for violating Canon 1, Rule 1.01 (A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct) and Canon 16 ("A lawyer shall hold in trust all moneys and properties of his client that may come into his possession) of the Code of Professional Responsibility, and Section 3(c), Rule IV of A.M. No. 02-8-13-SC (2004 Rules on Notarial Practice).26 She recommended his suspension from the practice of law for a period of six (6) months.27

In its Resolution No. XVIII-2007-30228 dated December 14, 2007, the IBP Board of Governors adopted the IBP Commissioner’s finding, but increased the penalty imposed to two (2) years suspension and a warning:

RESOLVED to ADOPT and APPROVE, as it is hereby unanimously ADOPTED and APPROVED, with modification, the Report and Recommendation of the Investigating Commissioner [in] the above-entitled case, herein made part of this Resolution as Annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering respondent’s violations of Canon 1, [Rule] 1.01 and Canon 16 of the Code of Professional Responsibility and Rule IV, Sec. 39(c) of A.M. No. 02-8-13-SC (2004 Rules on Notarial Practice), Atty. Glenn Carlos Gacott is hereby SUSPENDED from practice of law for two (2) years with a Warning that commission of a similar offense will be dealt with more severely. [emphases supplied]

On May 8, 2008, the respondent filed a Motion for Reconsideration dated April 21, 2008, attaching, among others, a copy of the complainant’s Affidavit dated February 27, 2008, admitting the existence, genuineness and due execution of the Deed of Absolute Sale between Cirilo and Laurentino; the MOA between Laurentino and Reynold; the Deed of Absolute Sale between Laurentino and Reynold; and the Compromise Agreement between Reynold and the complainant dated November 14, 2006 for the expropriation case.29

On September 4, 2008, the respondent filed a Manifestation with the Supreme Court, requesting that the IBP be directed to resolve his Motion for Reconsideration.30

By Resolution No. XIX-2010-545 dated October 8, 2010,31 the IBP Board of Governors denied the respondent’s Motion for Reconsideration for failing to raise any new substantial matter or any cogent reason to warrant a reversal or even a modification of its Resolution No. XVIII-2007-302.32

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On March 14, 2012, the respondent filed a Petition for Review (on appeal) assailing the IBP’s findings, as follows:33

a) In conveniently concluding that the Deed of Absolute Sale was pre-signed and fraudulently notarized without requiring Fe Ylaya to adduce evidence in a formal hearing thus, violated the respondent’s right to due process as he was not able to cross-examine her. This is not to mention that the complainant failed to offer corroborative proof to prove her bare allegations;

b) In sweepingly and arbitrarily disregarded/skirted (sic) the public documents (MOA and 2 other DOAS) duly executed by the parties therein and notarized by the respondent;

c) In totally ignoring the complainant’s Affidavit admitting the genuineness and due execution of the Deed of Absolute Sale in issue;

d) In arbitrarily concluding the absence of co-ownership by Reynold So and Fe Ylaya of the subject lots despite the existence of a notarized MOA clearly showing the co-ownership of Ylaya and So; and

e) In finding the respondent/appellant’s act of notarizing the DOAS as contrary to the notarial rules.

The Issues

From the assigned errors, the complainant poses the following issues:

(1) whether the IBP violated the respondent’s right to due process; and

(2) whether the evidence presented supports a finding that the respondent is administratively liable for violating Canon 1, Rule 1.01 and Canon 16 of the Code of Professional Responsibility, and Section 3(c), Rule IV of A.M. No. 02-8-13-SC.

The Court’s Ruling

We set aside the findings and recommendations of the IBP Commissioner and those of the IBP Board of Governors finding the respondent liable for violating Canon 1, Rules 1.01 and Section 3(c), Rule IV of A.M. No. 02-8-13-SC.34

We however hold the respondent liable for violating Canon 16 of the Code of Professional Responsibility for being remiss in his obligation to hold in trust his client’s properties. We likewise find him liable for violation of (1) Canon 15, Rule 15.03 for representing conflicting interests without the written consent of the represented parties, thus, violating the rule on conflict of interests; and (2) Canon 18, Rule 18.03 for neglecting a legal matter entrusted to him.

a. Due process violation

The most basic tenet of due process is the right to be heard. Denial of due process means the total lack of opportunity to be heard or to have one’s day in court. As a rule, no denial of due process takes place where a party has been given an opportunity to be heard and to present his case;35 what is prohibited is the absolute lack of opportunity to be heard.

The respondent claims that the IBP violated his right to due process because he was not given the "amplest opportunity to defend himself, to cross examine the witness complainant, to object to the admissibility of documents or present controverting evidence"36 when the IBP rendered its conclusion without requiring the complainant to adduce evidence in a formal hearing and despite

the absence of corroborative proof. He insists that these defects rendered the complainant’s allegations as hearsay, and the IBP’s report, recommendation or resolution null and void.

Although the respondent failed to have a face-to-face confrontation with the complainant when she failed to appear at the required mandatory conference on October 6, 2005,37 the records reveal that the respondent fully participated during the entire proceedings and submitted numerous pleadings, including evidence, before the IBP. He was even allowed to file a motion for reconsideration supported by his submitted evidence, which motion the IBP considered and ruled upon in its Resolution No. XIX-2010-545 dated October 8, 2010.38

In Alliance of Democratic Free Labor Organization v. Laguesma,39 we held that due process, as applied to administrative proceedings, is the opportunity to explain one’s side. In Samalio v. Court of Appeals,40 due process in an administrative context does not require trial-type proceedings similar to those in courts of justice. Where the opportunity to be heard, either through oral arguments or through pleadings, is accorded, no denial of procedural due process takes place. The requirements of due process are satisfied where the parties are afforded a fair and reasonable opportunity to explain their side of the controversy at hand.

Similarly, in A.Z. Arnaiz Realty, Inc. v. Office of the President,41 we held that "due process, as a constitutional precept, does not always, and in all situations, require a trial-type proceeding. Litigants may be heard through pleadings, written explanations, position papers, memoranda or oral arguments. The standard of due process that must be met in administrative tribunals allows a certain degree of latitude[, provided that] fairness is not ignored. It is, therefore, not legally objectionable for being violative of due process, for an administrative agency to resolve a case based solely on position papers, affidavits or documentary evidence submitted by the parties."42

In this case, the respondent’s failure to cross-examine the complainant is not a sufficient ground to support the claim that he had not been afforded due process. The respondent was heard through his pleadings, his submission of alleged controverting evidence, and his oral testimony during the October 6, 2005 mandatory conference. These pleadings, evidence and testimony were received and considered by the IBP Commissioner when she arrived at her findings and recommendation, and were the bases for the IBP Board’s Resolution.

Moreover, "any seeming defect in the observance of due process is cured by the filing of a motion for reconsideration. A denia of due process cannot be successfully invoked by a party who has had the opportunity to be heard on his motion for reconsideration. Undoubtedly in this case, the requirement of the law was afforded to the respondent."43

We also note that the respondent, on a Motion to Resolve or Decide the Case dated August 24, 2006, submitted his case to the IBP for its resolution without any further hearings. The motion, filed almost one year after the mandatory conference on October 6, 2005, significantly did not contain any statement regarding a denial of due process. In effect, the respondent himself waived his cross-examination of the complainant when he asked the IBP Board of Governors to resolve the case based on the pleadings and the evidence on record. To quote his own submission:

1. On June 30, 2004, a complaint was filed in this case;

2. On October 19, 2004, the respondent filed his comment with all its attachments denying all the allegations in the complaint;

3. On June 23, 2005, the respondent filed his position paper. On April 28, 2006, the respondent also filed his supplemental position paper. By contrast, up to this date, the complainant/petitioner has not filed her verified position paper thus, waived her right to file the same;

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4. There being no other genuine issues to be heard in this case as all the defenses and counter-arguments are supported by documentary evidence, it is most respectfully prayed that the instant case be resolved on its merits or be ordered dismissed for lack of merit without further hearing;

5. Further, considering that there is an on-going case in Branch 52 of the Regional Trial Court of Palawan in Civil Case No. 2902 for Expropriation involving the same property, and such fact was deliberately omitted by the complainant in her Verified Complaint as shown in the certification of non-forum shopping, the outright dismissal of this case is warranted, hence, this motion; and

6. This is meant to expedite the termination of this case.44 (underscore ours; italics supplied)

Finally, we note Section 11, Rule 139-B of the Rules of Court which provides that:

No defect in a complaint, notice, answer, or in the proceeding or the Investigator’s Report shall be considered as substantial unless the Board of Governors, upon considering the whole record, finds that such defect has resulted or may result in a miscarriage of justice, in which event the

Board shall take such remedial action as the circumstances may warrant, including invalidation of the entire proceedings.

In this case, the IBP Commissioner’s findings were twice reviewed by the IBP Board of Governors – the first review resulted in Resolution No. XVIII-2007-30245 dated December 14, 2007, affirming the IBP Commissioner’s findings, but modifying the penalty; the second review resulted in Resolution No. XIX-2010-545 dated October 8, 2010,46 denying the respondent’s motion for reconsideration. In both instances, the IBP Board of Governors found no defect or miscarriage of justice warranting a remedial action or the invalidation of the proceedings.

We emphasize that disciplinary proceedings against lawyers are sui generis in that they are neither purely civil nor purely criminal; they involve investigations by the Court into the conduct of one of its officers,47 not the trial of an action or a suit.

Disciplinary proceedings against lawyers are sui generis. Neither purely civil nor purely criminal, they do not involve a trial of an action or a suit, but is rather an investigation by the Court into the conduct of one of its officers. Not being intended to inflict punishment, it is in no sense a criminal prosecution. Accordingly, there is neither a plaintiff nor a prosecutor therein. It may be initiated by the Court motu proprio. Public interest is its primary objective, and the real question for determination is whether or not the attorney is still a fit person to be allowed the privileges as such. Hence, in the exercise of its disciplinary powers, the Court merely calls upon a member of the Bar to account for his actuations as an officer of the Court with the end in view of preserving the purity of the legal profession and the proper and honest administration of justice by purging the profession of members who by their misconduct have proved themselves no longer worthy to be entrusted with the duties and responsibilities pertaining to the office of an attorney. In such posture, there can thus be no occasion to speak of a complainant or a prosecutor. [emphases deleted]

The complainant in disbarment cases is not a direct party to the case but a witness who brought the matter to the attention of the Court.48 Flowing from its sui generis character, it is not mandatory to have a formal hearing in which the complainant must adduce evidence.

From all these, we find it clear that the complainant is not indispensable to the disciplinary proceedings and her failure to appear for cross-examination or to provide corroborative evidence of her allegations is of no merit. What is important is whether, upon due investigation, the IBP

Board of Governors finds sufficient evidence of the respondent’s misconduct to warrant the exercise of its disciplinary powers.

b. Merits of the Complaint

"In administrative cases against lawyers, the quantum of proof required is preponderance of evidence which the complainant has the burden to discharge."49 Preponderance of evidence means that the evidence adduced by one side is, as a whole, superior to or has a greater weight than that of the other. It means evidence which is more convincing to the court as worthy of belief compared to the presented contrary evidence.

Under Section 1, Rule 133 of the Rules of Court, in determining whether preponderance of evidence exists, the court may consider the following: (a) all the facts and circumstances of the case; (b) the witnesses’ manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, and the probability or improbability of their testimony; (c) the witnesses’ interest or want of interest, and also their personal credibility so far as the same may ultimately appear in the trial; and (d) the number of witnesses, although it does not mean that preponderance is necessarily with the greater number.50 By law, a lawyer enjoys the legal presumption that he is innocent of the charges against him until the contrary is proven, and that as an officer of the court, he is presumed to have performed his duties in accordance with his oath.51

The IBP Commissioner set out her findings as follows:

The undersigned, after a careful evaluation of the evidence presented by both parties, finds that the charges of the complainant against the respondent are worthy of belief based on the following:

First, the allegation of the respondent that Reynold So was actually co-owner of spouses Ylanas (sic) in the properties subject of the Deed of Sale between Felix Arellano and Spouses Ylanas (sic) is hard to believe despite the presentation of the Memorandum of Agreement.

It is elementary in Rules of Evidence that when the contents of a written document are put in issue, the best evidence would be the document itself. In the Deed of Sale between Felix Arellano and Spouses Ylanas (sic), the buyer of the subject properties is only Laurentino L. Ylaya married to Fe A. Ylaya. The document does not state that Reynold So was likewise a buyer together with Laurentino Ylaya, or that the former paid half of the purchase price.

Also, it is hard for this Commission to believe that Reynold So, assisted by a lawyer at that and who allegedly paid half of the purchase price, would not insist for the inclusion of his name in the Deed of Sale as well as the Transfer Certificate of Title subsequently issued.

The Memorandum of Agreement between the spouses Ylaya and Reynold So produced by the respondent cannot overturn the belief of this Commission considering that the Memorandum of Agreement was executed more than a month AFTER the Deed of Sale between Felix Arellano and the Ylayas was notarized. This is not to mention the fact that the complainant denied ever having executed the Memorandum of Agreement. A close examination of the signatories in the said Memorandum of Agreement would reveal that indeed, the alleged signatures of the complainant and her husband are not the same with their signatures in other documents.

Assuming, for the sake of argument, that the Memorandum of Agreement is valid, thereby making Laurentino Ylaya and co-owner Reynold So co-owners of the subject properties (Please see Annex "B" of respondent’s Comment), this Commission finds it hard to believe Laurentino Ylaya would sell it to Reynold So for P200,000 x x x when his minimum expenses for the purchase thereof is already

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P225,000.00 and he was expecting to receive P7,000,000.00, more or less. That would mean that if Reynold So and the complainant were co-owners, the P7,000,000.00 would then be equally divided among them at P3,500,000.00 each, far above the P200,000.00 selling price reflected in the pre-signed Deed of Sale.

As to the second issue, this Commission believes that the respondent committed serious error in notarizing the Deed of Sale and the Memorandum of Agreement between his uncle Reynold So and Laurentino Ylaya based on Rule IV, Section 3 (c) of A.M. No. 02-8-13-SC which provides as follows:

"Sec. 3. Disqualifications – a notary public is disqualified from performing a notarial act if he:

(a) x x x.

(b) x x x.

(c) is a spouse, common-law partner, ancestor, descendant, or relative by affinity or consanguinity of the principal within the fourth civil degree."

The defense therefore of the respondent that he did not violate the aforementioned Rule becausehis uncle Reynold So, the buyer is not the principal in the Subject Deed of Sale but the seller Laurentino Ylaya (please see page 3 of the respondent’s Supplemental Position Paper) is misplaced. Clearly, both the buyer and the seller in the instant case are considered principals in the contract entered into.

Furthermore, if we are to consider the argument of the respondent that his uncle was not a principal so as to apply the afore-quoted provision of the Rules, the respondent still violated the Rules when he notarized the subject Memorandum of Agreement between Laurentino Ylaya and his uncle Reynold So. Clearly, both complainant and Reynold So were principal parties in the said Memorandum of Agreement.52

The respondent argues that the IBP Commissioner’s findings are contrary to the presented evidence, specifically to the MOA executed by Laurentino and Reynold acknowledging the existence of a co-ownership;53 to the complainant’s Ex Parte Motion to Withdraw the Verified Complaint and To Dismiss the Case dated November 14, 2006 where she stated that the parties have entered into a compromise agreement in Civil Case No. 2902, and that the disbarment complaint arose from a misunderstanding, miscommunication and improper appreciation of facts;54 to her Affidavit dated February 27, 200855 affirming and confirming the existence, genuineness and due execution of the Deed of Absolute Sale notarized on March 6, 2000;56 and to the Deed of Absolute Sale notarized in 2001.57

In all, the respondent claims that these cited pieces of evidence prove that this administrative complaint against him is fabricated, false and untrue. He also points to Atty. Robert Peneyra, the complainant’s counsel in this administrative case, as the hand behind the complaint.58 According to the respondent, Atty. Peneyra harbors ill-will against him and his family after his father filed several administrative cases against Atty. Peneyra, one of which resulted in the imposition of a warning and a reprimand on Atty. Peneyra.59

Reynold, in his Affidavit dated October 11, 2004, confirms that there was a co-ownership between him and Laurentino; that Laurentino decided to sell his half of the property to Reynold because he (Laurentino) had been sickly and in dire need of money to pay for his medical bills; that Laurentino agreed to the price of P200,000.00 as this was almost the same value of his investment when he and Reynold jointly acquired the property; and that the sale to Reynold was with the agreement and consent of the complainant who voluntarily signed the Deed of Sale.60

After examining the whole record of the case, we agree with the respondent and find the evidence insufficient to prove the charge that he violated Canon 1, Rule 1.01 of the Code of Professional Responsibility and Section 3(c), Rule IV of A.M. No. 02-8-13-SC. Specifically, (1) the evidence against the respondent fails to show the alleged fraudulent and deceitful acts he has taken to mislead the complainant and her husband into signing a "preparatory deed of sale" and the conversion into a Deed of Absolute Sale dated June 4, 2001 in favor of Reynold; and (2) no prohibition exists against the notarization of a document in which any of the parties interested is the notary’s relative within the 4th civil degree, by affinity or consanguinity, at that time the respondent notarized the documents.

In her Report and Recommendation,61 the IBP Commissioner concluded that the respondent is liable for deceit and fraud because he failed to prove the existence of a co-ownership between Laurentino and Reynold; in her opinion, the signatures of the complainant and of her husband on the MOA "are not the same with their signatures in other documents."62

We do not agree with this finding. While the facts of this case may raise some questions regarding the respondent’s legal practice, we nevertheless found nothing constituting clear evidence of the respondent’s specific acts of fraud and deceit. His failure to prove the existence of a co-ownership does not lead us to the conclusion that the MOA and the Deed of Absolute Sale dated June 4, 2001 are spurious and that the respondent was responsible for creating these spurious documents. We are further persuaded, after noting that in disregarding the MOA, the IBP Commissioner failed to specify what differences she observed in the spouses Ylaya’s signatures in the MOA and what documents were used in comparison.

Apart from her allegations, the complainant’s pieces of evidence consist of TCT Nos. 162632 and 162633;63 her Motion for Leave to Intervene in Civil Case No. 2902 dated May 17, 2000;64 the RTC order in Civil Case No. 2902 dated November 6, 2000 fixing the price of just compensation;65 the Deed of Absolute Sale dated June 4, 2001;66 the spouses Ylaya’s Verified Manifestation dated September 2, 2002, filed with the RTC in Civil Case No. 2902, assailing the Motion to Deposit Just Compensation filed by the respondent on behalf of Reynold and manifesting the sale between Laurentino and Reynold;67 the Provincial Prosecutor’s Subpoena to the complainant in connection with the respondent’s complaint for libel;68 the respondent’s complaint for libel against the complainant dated August 27, 2003;69 the complainant’s Counter Affidavit dated March 26, 2004 against the charge of libel;70 and the respondent’s letter to the Provincial Attorney of Palawan dated April 5, 2004, requesting for "official information regarding the actual attendance of Atty. ROBERT Y. PENEYRA" at an MCLE seminar.71

We do not see these documentary pieces of evidence as proof of specific acts constituting deceit or fraud on the respondent’s part. The documents by themselves are neutral and, at the most, show the breakdown of the attorney-client relationship between the respondent and the complainant. It is one thing to allege deceit and misconduct, and it is another to demonstrate by evidence the specific acts constituting these allegations.72

We reiterate that in disbarment proceedings, the burden of proof is on the complainant; the Court exercises its disciplinary power only if the complainant establishes her case by clear, convincing, and satisfactory evidence.73 Preponderance of evidence means that the evidence adduced by one side is, as a whole, superior to or has a greater weight than that of the other party. When the pieces of evidence of the parties are evenly balanced or when doubt exists on the preponderance of evidence, the equipoise rule dictates that the decision be against the party carrying the burden of proof.74

In this case, we find that the complainant’s evidence and the records of the case do not show the respondent’s deliberate fraudulent and deceitful acts. In the absence of such proof, the complaint for

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fraud and deceit under Canon 1, Rule 1.01 of the Code of Professional Responsibility must perforce be dismissed.

We note that the respondent has not squarely addressed the issue of his relationship with Reynold, whom the complainant alleges to be the respondent’s uncle because Reynold is married to the respondent’s maternal aunt.75 However, this is of no moment as the respondent cannot be held liable for violating Section 3(c), Rule IV of A.M. No. 02-8-13-SC because the Deed of Absolute Sale dated June 4, 200176 and the MOA dated April 19, 200077 were notarized by the respondent prior to the effectivity of A.M. No. 02-8-13-SC on July 6, 2004. The notarial law in force in the years 2000 - 2001 was Chapter 11 of Act No. 2711 (the Revised Administrative Code of 1917) which did not contain the present prohibition against notarizing documents where the parties are related to the notary public within the 4th civil degree, by affinity or consanguinity. Thus, we must likewise dismiss the charge for violation of A.M. No. 02-8-13-SC.

c. Liability under Canons 15, 16 and 18 We find the respondent liable under Canon 15, Rule 15.03 for representing conflicting interests without the written consent of all concerned, particularly the complainant; under Canon 16 for being remiss in his obligation to hold in trust his client’s properties; and under Canon 18, Rule 18.03 for neglecting a legal matter entrusted to him.

Canon 15, Rule 15.03 states:

A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts. [emphasis ours]

The relationship between a lawyer and his client should ideally be imbued with the highest level of trust and confidence. Necessity and public interest require that this be so. Part of the lawyer’s duty to his client is to avoid representing conflicting interests. He is duty bound to decline professional employment, no matter how attractive the fee offered may be, if its acceptance involves a violation of the proscription against conflict of interest, or any of the rules of professional conduct. Thus, a lawyer may not accept a retainer from a defendant after he has given professional advice to the plaintiff concerning his claim; nor can he accept employment from another in a matter adversely affecting any interest of his former client. It is his duty to decline employment in any of these and similar circumstances in view of the rule prohibiting representation of conflicting interests.78

The proscription against representation of conflicting interest applies "even if the lawyer would not be called upon to contend for one client that which the lawyer has to oppose for the other, or that there would be no occasion to use the confidential information acquired from one to the disadvantage of the other as the two actions are wholly unrelated."79 The sole exception is provided in Canon 15, Rule 15.03 of the Code of Professional Responsibility – if there is a written consent from all the parties after full disclosure.

Based on the records, we find substantial evidence to hold the respondent liable for violating Canon 15, Rule 15.03 of the Code of Professional Responsibility. The facts of this case show that the respondent retained clients who had close dealings with each other. The respondent admits to acting as legal counsel for Cirilo Arellano, the spouses Ylaya and Reynold at one point during the proceedings in Civil Case No. 2902.80 Subsequently, he represented only Reynold in the same proceedings,81 asserting Reynold’s ownership over the property against all other claims, including that of the spouses Ylaya.82

We find no record of any written consent from any of the parties involved and we cannot give the respondent the benefit of the doubt in this regard. We find it clear from the facts of this case that the respondent retained Reynold as his client and actively opposed the interests of his former client, the complainant. He thus violated Canon 15, Rule 15.03 of the Code of Professional Responsibility.

We affirm the IBP Commissioner’s finding that the respondent violated Canon 16. The respondent admits to losing certificates of land titles that were entrusted to his care by Reynold.83 According to the respondent, the complainant "maliciously retained" the TCTs over the properties sold by Laurentino to Reynold after she borrowed them from his office.84 Reynold confirms that the TCTs were taken by the complainant from the respondent’s law office.85

The respondent is reminded that his duty under Canon 16 is to "hold in trust all moneys and properties of his client that may come into his possession." Allowing a party to take the original TCTs of properties owned by another – an act that could result in damage – should merit a finding of legal malpractice. While we note that it was his legal staff who allowed the complainant to borrow the TCTs and it does not appear that the respondent was aware or present when the complainant borrowed the TCTs,86 we nevertheless hold the respondent liable, as the TCTs were entrusted to his care and custody; he failed to exercise due diligence in caring for his client’s properties that were in his custody.

We likewise find the respondent liable for violating Canon 18, Rule 18.03 for neglecting a legal matter entrusted to him. Despite the respondent’s admission that he represented the complainant and her late husband in Civil Case No. 2902 and that he purportedly filed a Motion for Leave to Intervene in their behalf, the records show that he never filed such a motion for the spouses Ylaya. The complainant herself states that she and her late husband were forced to file the Motion for Leave to Intervene on their own behalf. The records of the case, which include the Motion for Leave to Intervene filed by the spouses Ylaya, support this conclusion.87

Canon 18, Rule 18.03 requires that a lawyer "shall not neglect a legal matter entrusted to him, and his negligence in connection [therewith] shall render him liable." What amounts to carelessness or negligence in a lawyer’s discharge of his duty to his client is incapable of an exact formulation, but the Court has consistently held that the mere failure of a lawyer to perform the obligations due his client is per se a violation.88

In Canoy v. Ortiz,89 we held that a lawyer’s failure to file a position paper was per se a violation of Rule 18.03 of the Code of Professional Responsibility. Similar to Canoy, the respondent clearly failed in this case in his duty to his client when, without any explanation, he failed to file the Motion for Leave to Intervene on behalf of the spouses Ylaya. Under the circumstances, we find that there was want of diligence; without sufficient justification, this is sufficient to hold the respondent liable for violating Canon 18, Rule 18.03 of the Code of Professional Responsibility.

d. The Complainant’s Ex Parte Motion to Withdraw the Verified Complaint and to Dismiss the Case and her Affidavit

We are aware of the complainant’s Ex Parte Motion to Withdraw the Verified Complaint and To Dismiss the Case dated November 14, 200690 and her Affidavit91 affirming and confirming the existence, genuineness and due execution of the Deed of Absolute Sale notarized on March 6, 2000.92 The complainant explains that the parties have entered into a compromise agreement in Civil Case No. 2902, and that this disbarment complaint was filed because of a "misunderstanding, miscommunication and improper appreciation of facts";93 she erroneously accused the respondent of ill motives and bad intentions, but after being enlightened, she is convinced that he has no personal or pecuniary interests over the properties in Civil Case No. 2902; that such misunderstanding was due to her unfamiliarity with the transactions of her late husband during his lifetime.94 The complainant now pleads for the respondent’s forgiveness, stating that he has been her and her late husband’s lawyer for over a decade and affirms her trust and confidence in him.95 We take note that under their Compromise Agreement dated November 14, 2006 for the

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expropriation case,96 the complainant and Reynold equally share the just compensation, which have since increased to P10,000,000.00.

While the submitted Ex Parte Motion to Withdraw the Verified Complaint and to Dismiss the Case and the Affidavit appear to exonerate the respondent, complete exoneration is not the necessary legal effect as the submitted motion and affidavit are immaterial for purposes of the present proceedings. Section 5, Rule 139-B of the Rules of Court states that, "No investigation shall be interrupted or terminated by reason of the desistance, settlement, compromise, restitution, withdrawal of charges, or failure of the complainant to prosecute the same."

In Angalan v. Delante,97 despite the Affidavit of Desistance, we disbarred the respondent therein for taking advantage of his clients and for transferring the title of their property to his name. In Bautista v. Bernabe,98 we revoked the lawyer’s notarial commission, disqualified him from reappointment as a notary public for two years, and suspended him from the practice of law for one year for notarizing a document without requiring the affiant to personally appear before him. In this cited case, we said:

Complainant’s desistance or withdrawal of the complaint does not exonerate respondent or put an end to the administrative proceedings. A case of suspension or disbarment may proceed regardless of interest or lack of interest of the complainant. What matters is whether, on the basis of the facts borne out by the record, the charge of deceit and grossly immoral conduct has been proven. This rule is premised on the nature of disciplinary proceedings. A proceeding for suspension or disbarment is not a civil action where the complainant is a plaintiff and the respondent lawyer is a defendant. Disciplinary proceedings involve no private interest and afford no redress for private grievance. They are undertaken and prosecuted solely for the public welfare. They are undertaken for the purpose of preserving courts of justice from the official ministration of persons unfit to practice in them. The attorney is called to answer to the court for his conduct as an officer of the court. The complainant or the person who called the attention of the court to the attorney’s alleged misconduct is in no sense a party, and has generally no interest in the outcome except as all good citizens may have in the proper administration of justice.99

In sum, in administrative proceedings against lawyers, the complainant’s desistance or withdrawal does not terminate the proceedings. This is particularly true in the present case where pecuniary consideration has been given to the complainant as a consideration for her desistance. We note in this regard that she would receive P5,000,000.00, or half of the just compensation under the Compromise Agreement,100 and thus agreed to withdraw all charges against the respondent.101 From this perspective, we consider the complainant’s desistance to be suspect; it is not grounded on the fact that the respondent did not commit any actual misconduct; rather, because of the consideration, the complainant is now amenable to the position of the respondent and/or Reynold.

e. Procedural aspect

We remind all parties that resolutions from the IBP Board of Governors are merely recommendatory and do not attain finality without a final action from this Court. Section 12, Rule 139-B is clear on this point that:

Section 12. Review and decision by the Board of Governors. –

x x x x

(b) If the Board, by the vote of a majority of its total membership, determines that the respondent should be suspended from the practice of law or disbarred, it shall issue a resolution setting forth its

findings and recommendations which, together with the whole record of the case, shall forthwith be transmitted to the Supreme Court for final action.1âwphi1

The Supreme Court exercises exclusive jurisdiction to regulate the practice of law.102 It exercises such disciplinary functions through the IBP, but it does not relinquish its duty to form its own judgment. Disbarment proceedings are exercised under the sole jurisdiction of the Supreme Court, and the IBP’s recommendations imposing the penalty of suspension from the practice of law or disbarment are always subject to this Court’s review and approval.

The Penalty

In Solidon v. Macalalad,103 we imposed the penalty of suspension of six ( 6) months from the practice of law on the respondent therein for his violation of Canon 18, Rule 18.03 and Canon 16, Rule 16.01 of the Code of Professional Responsibility. In Josefina M. Aniñon v. Atty. Clemencio Sabitsana, Jr.,104 we suspended the respondent therein from the practice of law for one (1) year, for violating Canon 15, Rule 15.03 of the Code of Professional Responsibility. Under the circumstances, we find a one (1) year suspension to be a sufficient and appropriate sanction against the respondent.

WHEREFORE, premises considered, we set aside Resolution No. XVIII-.2007-302 dated December 14, 2007 and Resolution No. XIX-2010-545 dated October 8, 2010 of the IBP Board of Governors, and find respondent Atty. Glenn Carlos Gacott GUILTY of violating Rule 15.03 of Canon 15, Canon 16, and Rule 18.03 of Canon 18 of the Code of Professional Responsibility. As a penalty, he is SUSPENDED from the practice of law for one (1) year, with a WARNING that a repetition of the same or similar act will be dealt with more severely.

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6) JANDOQUILE V. REVILLA, A.C. NO. 9514, 10 APRIL 2013

Before us is a complaint1 for disbarment filed by complainant Bernard N. Jandoquile against respondent Atty. Quirino P. Revilla, Jr.

The Facts of the case are not disputed.

Atty. Revilla, Jr. notarized a complaint-affidavit2 signed by Heneraline L. Brosas, Herizalyn Brosas Pedrosa and Elmer L. Alvarado. Heneraline Brosas is a sister of Heizel Wynda Brosas Revilla, Atty. Revilla, Jr.'s wife. Jandoquile complains that Atty. Revilla, Jr. is disqualified to perform the notarial act3 per Section 3( c), Rule IV of the 2004 Rules on Notarial Practice which reads as follows:

SEC. 3. Disqualifications. – A notary public is disqualified from performing a notarial act if he:

x x x x

(c) is a spouse, common-law partner, ancestor, descendant, or relative by affinity or consanguinity of the principal4 within the fourth civil degree.

Jandoquile also complains that Atty. Revilla, Jr. did not require the three affiants in the complaint-affidavit to show their valid identification cards.

In his comment5 to the disbarment complaint, Atty. Revilla, Jr. did not deny but admitted Jandoquile’s material allegations. The issue, according to Atty. Revilla, Jr., is whether the single act of notarizing the complaint-affidavit of relatives within the fourth civil degree of affinity and, at the same time, not requiring them to present valid identification cards is a ground for disbarment. Atty. Revilla, Jr. submits that his act is not a ground for disbarment. He also says that he acts as counsel of the three affiants; thus, he should be considered more as counsel than as a notary public when he notarized their complaint-affidavit. He did not require the affiants to present valid identification cards since he knows them personally. Heneraline Brosas and Herizalyn Brosas Pedrosa are sisters-in-law while Elmer Alvarado is the live-in houseboy of the Brosas family.

Since the facts are not contested, the Court deems it more prudent to resolve the case instead of referring it to the Integrated Bar of the Philippines for investigation.

Indeed, Atty. Revilla, Jr. violated the disqualification rule under Section 3(c), Rule IV of the 2004 Rules on Notarial Practice. We agree with him, however, that his violation is not a sufficient ground for disbarment.

Atty. Revilla, Jr.’s violation of the aforesaid disqualification rule is beyond dispute. Atty. Revilla, Jr. readily admitted that he notarized the complaint-affidavit signed by his relatives within the fourth civil degree of affinity. Section 3(c), Rule IV of the 2004 Rules on Notarial Practice clearly disqualifies him from notarizing the complaint-affidavit, from performing the notarial act, since two of the affiants or principals are his relatives within the fourth civil degree of affinity. Given the clear provision of the disqualification rule, it behooved upon Atty. Revilla, Jr. to act with prudence and refuse notarizing the document. We cannot agree with his proposition that we consider him to have acted more as counsel of the affiants, not as notary public, when he notarized the complaint-affidavit. The notarial certificate6 at the bottom of the complaint-affidavit shows his signature as a notary public, with a notarial commission valid until December 31, 2012.

He cannot therefore claim that he signed it as counsel of the three affiants.

On the second charge, we agree with Atty. Revilla, Jr. that he cannot be held liable. If the notary public knows the affiants personally, he need not require them to show their valid identification cards. This rule is supported by the definition of a "jurat" under Section 6, Rule II of the 2004 Rules on Notarial Practice. A "jurat" refers to an act in which an individual on a single occasion: (a) appears in person before the notary public and presents an instrument or document; (b) is personally known to the notary public or identified by the notary public through competent evidence of identity; (c) signs the instrument or document in the presence of the notary; and (d) takes an oath or affirmation before the notary public as to such instrument or document. In this case, Heneraline Brosas is a sister of Atty. Revilla, Jr.’s wife; Herizalyn Brosas Pedrosa is his wife’s sister-in-law; and Elmer Alvarado is the live-in houseboy of the Brosas family. Atty. Revilla, Jr. knows the three affiants personally. Thus, he was justified in no longer requiring them to show valid identification cards. But Atty. Revilla, Jr. is not without fault for failing to indicate such fact in the "jurat" of the complaint-affidavit. No statement was included therein that he knows the three affiants personally.7 Let it be impressed that Atty. Revilla, Jr. was clearly disqualified to notarize the complaint-affidavit of his relatives within the fourth civil degree of affinity. While he has a valid defense as to the second charge, it does not exempt him from liability for violating the disqualification rule.

As we said, Atty. Revilla, Jr.’s violation of the disqualification rule under Section 3(c), Rule IV of the 2004 Rules on Notarial Practice is not a sufficient ground to disbar him. To our mind, Atty. Revilla, Jr. did not commit any deceit, malpractice, gross misconduct or gross immoral conduct, or any other serious ground for disbarment under Section 27,8 Rule 138 of the Rules of Court. We recall the case of Maria v. Cortez9 where we reprimanded Cortez and disqualified him from being commissioned as notary public for six months. We were convinced that said punishment, which is less severe than disbarment, would already suffice as sanction for Cortez’s violation. In Cortez, we noted the prohibition in Section 2(b), Rule IV of the 2004 Rules on Notarial Practice that a person shall not perform a notarial act if the person involved as signatory to the instrument or document (1) is not in the notary’s presence personally at the time of the notarization and (2) is not personally known to the notary public or otherwise identified by the notary public through a competent evidence of identity. Cortez had notarized a special power of attorney without having the alleged signatories appear before him. In imposing the less severe punishment, we were mindful that removal from the Bar should not really be decreed when any punishment less severe such as reprimand, temporary suspension or fine would accomplish the end desired.1âwphi1

Considering the attendant circumstances and the single violation committed by Atty. Revilla, Jr., we are in agreement that a punishment less severe than disbarment would suffice.

WHEREFORE, respondent Atty. Quirino P. Revilla, Jr., is REPRIMANDED and DISQUALIFIED from being commissioned as a notary public, or from performing any notarial act if he is presently commissioned as a notary public, for a period of three (3) months. Atty. Revilla, Jr. is further DIRECTED to INFORM the Court, through an affidavit, once the period of his disqualification has lapsed.

LEGFORMS 3C1415 | 18

7) LINGAN V. CALUBAQUIB, A.C. NO. 5377, 15 JUNE 2006

This is a complaint for disbarment1 filed by Victor Lingan against Attys. Romeo Calubaquib and Jimmy Baliga on November 16, 2000. Complainant alleged that respondents, both notaries public, falsified certain public documents.

The case has its roots in a complaint for annulment of title with damages2 filed by Isaac Villegas against complainant with the Regional Trial Court of Tuguegarao, Cagayan, docketed as Civil Case No. 5036. Respondent Calubaquib signed the verification and certification of non-forum shopping3 of the complaint as notary public and entered the same as Doc. No. 182; Page No. 38; Book No. CLXXII; Series of 1996. Complainant alleges that this document was falsified because according to the records of the National Archives, the document entered as Doc. No. 182; Page 38; Book No. CLXXII; Series of 1996 in respondent Calubaquib’s notarial register was an affidavit of one Daniel Malayao.4

The trial court decided Civil Case No. 5036 in favor of complainant5 and, as a result, the plaintiff there, through respondent Calubaquib, appealed it to the Court of Appeals, where it was docketed as CA-G.R. CV No. 55837.

On file with the records of this case is a special power of attorney6 dated September 10, 1996 executed by Isaac Villegas appointing respondent Calubaquib as his attorney-in-fact to "enter into a compromise agreement under such terms and conditions acceptable to him" which was notarized by respondent Baliga and entered as Doc. No. 548, Page No. 110; Book No. VIII; Series of 1996.7 Complainant alleged that this special power of attorney was also falsified because, according to respondent Baliga’s notarial register, Doc. No. 548; Page No. 110; Book No. VIII; Series of 1996 pertains to an affidavit of loss of one Pedro Telan,8 dated August 26, 1996.

In addition, on January 2, 1995, respondent Baliga filed a petition for reappointment as notary public for and in Tuguegarao, Cagayan, which was notarized by respondent Calubaquib and entered in his notarial register as Doc. No. 31, Page No. 08, Book No. CXXX, Series of 1995. However, Notarial Register Book No. CXXX was for the year 1996 and entered there as Doc. No. 31, Page No. 08 was a cancellation of real estate mortgage dated January 11, 1996.

In his answer,9 respondent Baliga admitted the incorrectness of the entries and simply attributed them to the inadvertence in good faith of his secretary to whom he had left the task of entering all his notarial documents.

Respondent Calubaquib’s comment,10 however, contained a much lengthier account of the alleged events leading up to this case, the bulk of which was meant to cast complainant and his motives in a sinister light. In a nutshell, he made it appear that the reason for the complaint was that he (respondent) thwarted a fraudulent attempt by complainant to grab a parcel of land. He also stated that complainant had filed a case for falsification of documents against him with the Ombudsman but it was dismissed.

In the end, however, he (like his co-respondent Baliga) admitted to the mistaken entries and also ascribed the same to his "legal assistants." Similarly, by way of defense, he pointed out that the Notarial Law "provides that only contracts need to have their copies included in the notarial records. It does not require affidavits, verifications or subscriptions of petitions which are mere allegations of facts to be entered in the Notarial Register, despite widespread practice to the contrary."

Upon receipt of respondents’ comments, we referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.

In the course of the proceedings before the IBP, complainant alleged that respondent Calubaquib, with the help of respondent Baliga and several other persons, was trying to deprive him (complainant) of a parcel of land he had bought from Isaac Villegas’ mother-in-law. According to complainant, respondent impersonated Villegas, who was in hiding due to several civil and criminal cases pending against him, by forging his signature in all documents and pleadings related to the civil case filed against him (complainant). He pointed to the incorrect notarial entries as proof of this falsification.

He presented in evidence a motion for withdrawal11 filed in the Court of Appeals, apparently by Villegas, disavowing any involvement in the case filed by respondent Calubaquib.

To further buttress his allegations of falsification, complainant pointed out that respondent Calubaquib seemed unable to physically produce Villegas. For example, when the Ombudsman ordered him to produce Villegas, respondent Calubaquib merely presented an affidavit12 supposedly executed by Villegas and sworn to before a "highly regarded [Department of Justice] official."

In the IBP’s report and recommendation,13 dated December 7, 2001, Commissioner Rebecca Villanueva-Maala found respondents "liable for inexcusable negligence" and recommended the revocation of the commission of respondents Calubaquib and Baliga as notaries public for two years from receipt of the final decision. Commissioner Maala’s report did not touch on complainant’s allegations of forgery.

When the IBP resolved14 to adopt Commissioner Maala’s report and recommendation, both complainant15 and respondent Baliga16 filed motions for reconsideration17 with this Court. Respondent Calubaquib opposed18 complainant’s motion for reconsideration.

In his motion for reconsideration, complainant assailed the penalty recommended by the IBP as grossly inadequate. Reiterating his allegation of forgery, he attached documents bearing Villegas’ allegedly forged signature as well as documents with his supposed real signature19 for comparison.

In his opposition/comment, respondent Calubaquib refuted complainant’s scathing accusations of fraud and abuse of his public position, and prayed for the dismissal of the complaint. In his motion for reconsideration, respondent Baliga decried the penalty imposed as disproportionate to the infraction he had committed.

The respondents having admitted responsibility for the notarial entries, the question now is whether these were the product of a mere mistake or evidence of larger scheme to defraud complainant whose allegations, if true, are serious enough to merit the disbarment of both respondents.

The missing link, as it were, between the admitted infractions of respondents and the nefarious machinations alleged by complainant is whether or not the latter was able to prove that Villegas’ signature on the documents notarized by respondents was in fact forged.

Forgery cannot be presumed. It must be proved by clear, positive and convincing evidence. Mere allegation thereof is not evidence.20 One who alleges forgery has the burden of proving the same.21 We find that complainant failed to discharge this burden.

Complainant alleged mainly that Villegas could not possibly have signed the documents in question because he was a fugitive from justice, with "several civil and criminal cases pending against him." Assuming this allegation to be true, it proved nothing. The mere fact that Villegas was a fugitive

LEGFORMS 3C1415 | 19

from justice did not preclude the possibility that he might have secretly met with his lawyer for purposes of filing a suit. It would have been different had complainant presented evidence that Villegas was, at the time the questioned documents were executed, definitely somewhere else. But the bare argument that Villegas’ being a fugitive rendered it impossible for him to sign some documents was simply too nebulous to inspire belief.

As additional evidence, complainant presented, as attachments to his motion for reconsideration, a number of documents purportedly bearing Villegas’ real signature, the latest of which was the motion to withdraw allegedly filed by Villegas himself. However, the veracity of the last of those documents was vigorously contested by an affidavit also purportedly filed by Villegas. The two documents, both notarized, effectively cancelled each other out, absent some other credible proof.

It is true that there were dissimilarities between the signatures purportedly belonging to Villegas and his genuine signature on the conforme of the general power of attorney22 executed by his wife in favor of his mother-in-law. However, the fact of forgery cannot be presumed simply because there are dissimilarities between the standard and the questioned signatures.23 If complainant was so sure the signatures were fake, he should have submitted them for expert analysis to the National Bureau of Investigation, the Philippine National Police or some other handwriting expert. The records are bereft of any such analysis or even any attempt to have the signatures examined.

Furthermore, all the documents on which the contested signature appeared were notarized. Notarial documents carry the presumption of regularity. To contradict them, the evidence presented must be clear, convincing and more than merely preponderant.24 Complainant’s uncorroborated theory of an entire conspiracy of lawyers and government officials beholden to respondent Calubaquib did not constitute such evidence.

The forgery of Villegas’ signature having remained unproven, we can only hold respondents liable for their omissions that have actually been proved.

In this respect, we find that the recommendations of IBP Commissioner Maala adopted by the IBP were supported by the evidence on record, particularly the documents themselves as well as the respondents’ own admission.

In response, on the other hand, to respondents’ feeble attempts to deflect the blame from themselves and onto their staff, we call their attention to Sections 245, 246 and 249(b) of the Notarial Law.25

Sections 245 and 246 of the Notarial Law provided:

SEC. 245. Notarial Register. ― Every notary public shall keep a register to be known as the notarial register, wherein record shall be made of all his official acts as notary; and he shall supply a certified copy of such record, or any part thereof, to any person applying for it and paying the legal fees therefore. (emphasis supplied)xxx xxx xxxSEC. 246. Matters to be entered therein. — The notary public shall enter in such register, in chronological order, the nature of each instrument executed, sworn to, or acknowledged before him, the person executing, swearing to, or acknowledging the instrument, the witnesses, if any, to the signature, the date of execution, oath, or acknowledgment of the instrument, the fees collected by him for his services as notary in connection therewith, and, when the instrument is a contract, he shall keep a correct copy thereof as part of his records, and shall likewise enter in said records a brief description of the substance thereof and shall give to each entry a consecutive number, beginning with number one in each calendar year. The notary shall give to each instrument executed, sworn to, or acknowledged before him a number corresponding to the one in his register,

and shall also state on the instrument the page or pages of his register on which the same is recorded. No blank line shall be left between entries.xxx xxx xxxIn this connection, Section 249(b) stated:SEC. 249. Grounds for revocation of commission.—The following derelictions of duty on the part of a notary public shall, in the discretion of the proper judge of first instance, be sufficient ground for the revocation of his commission:xxx xxx xxx(b) The failure of the notary to make the proper entry or entries in his notarial register touching his notarial acts in the manner required by law.xxx xxx xxxFrom the language of the subsection, it is abundantly clear that the notary public is personally accountable for all entries in his notarial register. Respondents cannot be relieved of responsibility for the violation of the aforesaid sections by passing the buck to their secretaries, a reprehensible practice which to this day persists despite our open condemnation.26 Respondents, especially Calubaquib, a self-proclaimed "prominent legal practitioner," should have known better than to give us such a simple-minded excuse.

We likewise remind respondents that notarization is not an empty, meaningless or routinary act but one invested with substantive public interest, such that only those who are qualified or authorized to do so may act as notaries public. The protection of that interest necessarily requires that those not qualified or authorized to act must be prevented from inflicting themselves upon the public, the courts and the administrative offices in general.27

Notarization by a notary public converts a private document into a public one and makes it admissible in evidence without further proof of its authenticity.28 Notaries public must therefore observe utmost care with respect to the basic requirements of their duties.29

Being not only lawyers but also public officers, respondents should have been acutely aware of their responsibilities. Respondents’ acts did not amount to mere simple and excusable negligence. Having failed to perform their sworn duty, respondents were squarely in violation of Rule 1.01 of Canon 1 of the Code of Professional Responsibility30 and Section 27, Rule 138 of the Rules of Court which provides:

SEC. 27. Disbarment or suspension of attorneys by Supreme Court; grounds therefore.—A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice or other gross misconduct in such office, grossly immoral conduct or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which is required to take before admission to practice, or for a willful disobedience of any lawful order of a superior court, or for corruptly and willfully appearing as an attorney for a party to a case without authority to do so. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice.

WHEREFORE, in view of the foregoing, respondents Atty. Romeo I. Calubaquib and Atty. Jimmy P. Baliga are hereby found guilty of violation of Rule 1.01, Canon 1 of the Code of Professional Responsibility and of their lawyer’s oath. They are both ordered SUSPENDED from the practice of law for ONE YEAR effective immediately, with a warning that another infraction shall be dealt with more severely.

Their present commissions as notaries public, if any, are hereby REVOKED, with DISQUALIFICATION from reappointment as notaries public for a period of two years.

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8) VDA. DE ROSALES V. RAMOS, A. C. NO. 5645, 2 JULY 2002

This complaint for disbarment was filed in behalf of complainant Rosalinda Bernardo Vda. de Rosales by the National Bureau of Investigation (NBI) against respondent Atty. Mario G. Ramos for violation of Act No. 2711 of the Revised Administrative Code of 1917, Title IV, Ch. 11, otherwise know as the Notarial Law, particularly Secs. 245 and 246 thereof.

In September 1990 Manuel A. Bernardo, brother of complainant Rosalinda Bernardo Vda. de Rosales, borrowed from Rosalinda the Original Transfer Certificate of Title No. 194464 covering Lot No. 1-B-4-H in her name. The lot measures 112 square meters and is located at the back of Manuel's house on Fabie Street, Paco, Metro Manila. On 25 November 1990 Rosalinda sold this lot to one Alfredo P. Castro. When she asked her brother Manuel to return her title he refused.

On 22 October 1990 Rosalinda executed an Affidavit of Loss of her title and presented the affidavit to the Register of Deeds of Manila.

On 3 September 1991 the Register of Deeds informed Rosalinda that her title to the property was already transferred to Manuel by virtue of a Deed of Absolute Sale she purportedly executed in favor of Manuel on 5 September 1990. The document was notarized by respondent Atty. Mario G. Ramos on 1 October 1990 and entered in his Notarial Register as Doc. No. 388, Page No. 718, Book No. 10, Series of 1990. Rosalinda however denied having signed any deed of sale over her property in favor of Manuel.

On 3 September 1991 Rosalinda filed with the NBI a complaint for falsification of public document against her brother Manuel. The NBI invited respondent Atty. Ramos for questioning. The complaint alleged among others that on 12 September 1991 Atty. Mario G. Ramos executed an affidavit before the NBI admitting that when Manuel presented the purported Deed of Absolute Sale to him for notarization, he (Atty. Ramos) found some defects in the document and that complainant Rosalinda was not around. The NBI Questioned Documents Division also compared Rosalinda's signature appearing in the Deed of Absolute Sale with samples of her genuine signature, and found that the signature in the purported Deed of Absolute Sale and her genuine signatures were not written by one and the same person.

On 5 October 1992 the NBI transmitted its findings to the Office of the City Prosecutor of Manila with the recommendation that Manuel and Atty. Ramos be prosecuted for Falsification of Public Document under Art. 172 in relation to Art. 171 of The Revised Penal Code, and that Atty. Ramos be additionally charged with violation of the Notarial Law.

The NBI also transmitted to the Integrated Bar of the Philippines (IBP) Commission on Bar Discipline (CBD) photocopies of the NBI investigation report and its annexes, and a verified complaint1 for disbarment signed by Rosalinda. The CBD received the records on 5 October 1992. On the same date, the CBD through Commissioner Victor C. Fernandez directed respondent to submit an answer to the complaint within fifteen (15) days from notice.

Respondent admitted in his Answer2 that he had affixed his signature on the purported Deed of Absolute Sale but failed to enter the document in his Notarial Registry Book. He also admitted executing before the NBI on 12 September 1991 an affidavit regarding the matter. Respondent prayed for the dismissal of the complaint since according to him he only inadvertently signed the purported Deed of Absolute Sale and/or that his signature was procured through mistake, fraud, undue influence or excusable negligence, claiming that he simply relied on the assurances of Manuel that the document would not be used for purposes other than a loan between brother and sister, and that he affixed his signature thereon with utmost good faith and without intending to obtain personal gain or to cause damage or injury to another.

The CBD set the case for hearing on 3 March 2000, 28 April 2000, 16 June 2000 and 5 October 2000. Complainant never appeared. The records show that the notices sent to her address at 1497 Fabie Street, Paco, Manila, were returned unclaimed.3

On 26 January 2002 the IBP Board of Governors approved the report and recommendation of the CBD through Commissioner Fernandez that the case against respondent be dismissed in view of complainant's failure to prosecute and for lack of evidence on record to substantiate the complaint.4 The Investigating Commissioner found that the notices sent to complainant were returned unclaimed with the annotation "moved out," and that she did not leave any forwarding address, and neither did she come to the CBD to inquire about the status of her case. From these actuations, he concluded that complainant had lost interest in the further prosecution of this case,5 and so recommended its dismissal.

We cannot wholly agree with the findings and recommendation of the Investigating Commissioner. It is clear from the pleadings before us that respondent violated the Notarial Law in failing to register in his notarial book the deed of absolute sale he notarized, which fact respondent readily admitted.

The Notarial Law is explicit on the obligations and duties of a notary public. It requires him to keep a notarial register where he shall record all his official acts as notary,6 and specifies what information with regard to the notarized document should be entered therein.7 Failure to perform this duty results in the revocation of his commission as notary public.8

The importance attached to the act of notarization cannot be overemphasized. Notarization is not an empty, meaningless, routinary act. It is invested with substantive public interest, such that only those who are qualified or authorized may act as notaries public.9 Notarization converts a private document into a public document thus making that document admissible in evidence without further proof of its authenticity.10 A notarial document is by law entitled to full faith and credit upon its face. Courts, administrative agencies and the public at large must be able to rely upon the acknowledgment executed by a notary public and appended to a private instrument.11

For this reason notaries public must observe with utmost care the basic requirements in the performance of their duties.12 Otherwise, the confidence of the public in the integrity of this form of conveyance would be undermined.13 Hence a notary public should not notarize a document unless the persons who signed the same are the very same persons who executed and personally appeared before him to attest to the contents and truth of what are stated therein.14 The purpose of this requirement is to enable the notary public to verify the genuineness of the signature of the acknowledging party and to ascertain that the document is the party's free act and deed.15

The notary public is further enjoined to record in his notarial registry the necessary information regarding the document or instrument notarized and retain a copy of the document presented to him for acknowledgment and certification especially when it is a contract.16 The notarial registry is a record of the notary public's official acts. Acknowledged documents and instruments recorded in it are considered public documents. If the document or instrument does not appear in the notarial records and there is no copy of it therein, doubt is engendered that the document or instrument was not really notarized, so that it is not a public document and cannot bolster any claim made based on this document. Considering the evidentiary value given to notarized documents, the failure of the notary public to record the document in his notarial registry is tantamount to falsely making it appear that the document was notarized when in fact it was not.

LEGFORMS 3C1415 | 21

We take note of respondent's admission in his Answer that he had affixed his signature in the purported Deed of Absolute Sale but he did not enter it in his notarial registry. This is clearly in violation of the Notarial Law for which he must be disciplined.

Respondent alleges that he merely signed the Deed of Absolute Sale inadvertently and that his signature was procured through mistake, fraud, undue influence or excusable negligence as he relied on the assurances of Manuel A. Bernardo, a kababayan from Pampanga, that the document would not be used for any illegal purpose.

We cannot honor, much less give credit to this allegation. That respondent notarized the document out of sympathy for his kababayan is not a legitimate excuse. It is appalling that respondent did away with the basics of notarial procedure in order to accommodate the alleged need of a friend and client. In doing so, he displayed a decided lack of respect for the solemnity of an oath in a notarial document. He also exhibited his clear ignorance of the importance of the office of a notary public. Not only did he violate the Notarial Law, he also did so without thinking of the possible damage that might result from its non-observance.

The principal function of a notary public is to authenticate documents. When a notary public certifies to the due execution and delivery of the document under his hand and seal he gives the document the force of evidence. Indeed, one of the purposes of requiring documents to be acknowledged before a notary public, in addition to the solemnity which should surround the execution and delivery of documents, is to authorize such documents to be given without further proof of their execution and delivery.17 Where the notary public is a lawyer, a graver responsibility is placed upon him by reason of his solemn oath to obey the laws and to do no falsehood or consent to the doing of any.18 Failing in this, he must accept the consequences of his unwarranted actions.

From his admissions we find that Atty. Mario G. Ramos failed to exercise the due diligence required of him in the performance of the duties of notary public. We do not agree however that his negligence should merit disbarment, which is the most severe form of disciplinary sanction. Disbarment should never be imposed unless it is evidently clear that the lawyer, by his serious misconduct, should no longer remain a member of the bar. Removal from the bar should not really be decreed when any punishment less severe - reprimand, temporary suspension or fine - would accomplish the end desired.19 Under the circumstances, imposing sanctions decreed under the Notarial Law and suspension from the practice of law would suffice.

WHEREFORE, for lack of diligence in the observance of the Notarial Law, the commission of respondent Atty. Mario G. Ramos as Notary Public, if still existing, is REVOKED and thereafter Atty. Ramos should be DISQUALIFIED from reappointment to the office of Notary Public.

Respondent Atty. Mario G. Ramos is also SUSPENDED from the practice of law for a period of six (6) months effective immediately. He is DIRECTED to report to this Court his receipt of this Decision to enable it to determine when his suspension shall have taken effect.

The Clerk of Court of this Court is DIRECTED to immediately circularize this Decision for the proper guidance of all concerned.

Let copies of this Decision be furnished the Office of the Bar Confidant and the Integrated Bar of the Philippines.

LEGFORMS 3C1415 | 22

9) AGADAN V. KILAAN, A.C. NO. 9385, 11 NOVEMBER 2013

On September 12, 2005, complainants Mariano Agadan, Eden Mollejon, Arsenio Igme, Jose Numbar, Cecilia Langawan, Pablo Palma, Joselito Claveria, Miguel Flores and Albert Gaydowen filed before the Integrated Bar of the Philippines – Baguio Benguet Chapter (IBP-Baguio-Benguet Chapter) a Complaint1 against respondent Atty. Richard Baltazar Kilaan (Atty. Kilaan) for falsification of documents, dishonesty and deceit. They alleged that Atty. Kilaan intercalated certain entries in the application for issuance of Certificate of Public Convenience (CPC) to operate public utility jeepney filed before the Land Transportation Franchising and Regulatory Board – Cordillera Administrative Region (LTFRB-CAR) and docketed as Case No. 2003-CAR-688 by substituting the name of the applicant from Gary Adasing (Adasing)2 to that of Joseph Batingwed (Batingwed);3 that Atty. Kilaan submitted false and/or insufficient documentary requirements in support of Batingwed s application for CPC; that Atty. Kilaan prepared a Decision based on the Resolution of the LTFRB Central Office which dismissed the Opposition filed by the complainants; and that the said Decision granted the application of Batingwed which was adopted by the LTFRB-CAR.

On February 27, 2006, the IBP-Baguio-Benguet Chapter formally endorsed the Complaint to the IBP Commission on Bar Discipline (CBD) for appropriate action.4 Acting on the Complaint, the IBP-CBD directed Atty. Kilaan to submit his Answer.5

In his Answer6 dated April 8, 2006, Atty. Kilaan denied violating the Lawyer s Oath and the Code of Professional Responsibility. He disclaimed any pat1icipation in the preparation of the Decision with respect to the application of Batingwed for CPC. He explained that it is the Regional Director of the Department of Transportation and Communication (DOTC)-CAR who approves the application and who drafts the Decision after the LTFRB-CAR signifies its favorable recommendation. He denied exercising any influence over the DOTC-CAR or the LTFRB. He claimed that Batingwed had decided to abandon his application hence he no longer submitted the necessary requirements therefor. He also disavowed any knowledge that Batingwed s application had been forwarded to the LTFRB Central Office for approval. Atty. Kilaan claimed that he knew about the favorable Decision only when Batingwed showed him the same. He narratted that considering the incomplete documents, the LTFRB mistakenly approved Batingwed s application. Thus, when it discovered its error, the LTFRB immediately revoked the grant of CPC to Batingwed.

He denied intercalating the entries in the application for CPC of Batingwed. He averred that once an application has been filed, the application and all accompanying records remain with the LTFRB and could no longer be retrieved by the applicant or his counsel; as such, it is highly improbable for him to intercalate the entries therein. Atty. Kilaan further explained that it was Adasing who paid the filing fee in behalf of Batingwed but the cashier erroneously indicated Adasing instead of Batingwed as payor. Atty. Kilaan lamented that Adasing who is not in the Philippines could not corroborate his explanation. Finaliy, Atty. Kilaan noted that complainants filed the instant suit in retaliation for the dismissal of their Opposition to the application for CPCs which he filed on behalf of his other clients.

The case was set for mandatory conference7 after which the parties submitted their respective Position Papers.8 In their Position Paper, complainants further alleged that the Verification in Batingwed's application for CPC was notarized by Atty. Kilaan as Doc. No: 253, Page No. 51, Book No. VIII, Series of 2003. However, upon verification of Atty. Kilaan's Notarial Registry submitted to the Regional Trial Court Clerk of Court in Baguio City, the said notarial entry actually refers to a Deed of Sale and not the Verification of Batingwed's application. Also, complainants belied Atty. Kilaan's allegation that Adasing is 'presently abroad by presenting the Affidavit of Adasing claiming that he never left the country.

In his Report and Recommendation, the Investigating Commissioner9 found complainants to have miserably failed to prove that Atty. Kilaan intercalated the entries in the application for CPC of Batingwed. Their allegation was based on mere suspicion devoid of any credible proof, viz:

At the onset, it is very difficult to prove that it was respondent himself who was responsible for any intercalation, particularly the substitution of Joseph Batingwed's application folder in lieu of Gary Odasing's. Indeed, that is a grave charge, and based on the evidence presented by complainants, all that they can muster is a suspicion that cannot be confirmed. Of course, this has to be pointed out - anyone who had access to the case folder could have possibly been responsible for whatever intercalation that may have occurred. That being said, this Office is not prepared to make that leap into conjecture and conclude that it was respondent's doing.

Besides, the Certification of the Receiving Clerk of the DOTC CAR dated 18 October 2006 -which notably was submitted by complainants -stated that the application of Gary Odasing was continued by Joseph Batingwed. Complainants have not alleged that the same constitutes a violation of the rules and procedures of LTFRB. Thus, it may be presumed to have been done in the regular course of business.10

However, the Investigating Commissioner did not totally absolve Atty. Kilaan as he found him liable for violating the Notarial Law considering that the Verification of Batingwed's application which he notarized and denominated as Doc. No. 253, Page No. 51, Book No. VIII, Series of 2003 was actually recorded as a Deed of Sale in his Notarial Register. In addition, the Investigating Commissioner noted that Atty. Kilaan lied under oath when he alleged that Adasing was abroad as this was squarely belied by Adasing in his Affidavit. The Investigating Commissioner held thus:

Respondent must be punished for making it appear that he notarized a document the Verification-when in truth and in fact, the entry in his Notatial Registry shows a different document. Thus, it is but proper to suspend respondent s privilege of being commissioned as a Notary Public.

Not only that. Despite knowing that the Verification was not properly notarized, respondent, as counsel for the applicant, proceeded to file the defectively verified Petition with the LTFRB-Baguio City. Clearly, there was falsehood committed by him, as there can be no other conclusion except that respondent antedated the Verification.

x x x x

Lastly, this cannot end without this being said. Respondent made matters worse by alleging in his Answer to the instant administrative complaint that Gary Odasing was abroad -which seemingly was drawn up more out of convenience than for truth. Now, that allegation had been completely rebuffed and found to be untrue by the execution of an Affidavit by Gary Odasing himself. x x x It is therefore an affront to this Office that respondent would attempt to defend himself by pleading allegations, which were seemingly made deliberately, and which were later found to be untrue. Clearly, respondent tried, albeit vainly, to deceive even this Office.11

The Investigating Commissioner recommended, viz:

WHEREFORE, it is the recommendation of the undersigned that respondent s notarial commission, if still existing, be REVOKED immediately and that he be further PROHIBITED from being commissioned as a notary public for TWO (2) YEARS.

Moreover, it is likewise recommended that respondent be SUSPENDED from the practice of law for a period of TWO (2) MONTHS.12

LEGFORMS 3C1415 | 23

In its September 19, 2007 Resolution No. XVIII-2007-82, the IBP Board of Governors adopted and approved the Report and Recommendation of the Investigating Commissioner with modification that Atty. Kilaan’s Notarial Commission be revoked and that he be disqualified from being appointed as Notary Public for two years, thereby deleting the penalty of suspension from the practice of law. Respondent moved for reconsideration but it was denied by the IBP Board of Governors in its Resolution No. XX-2012-41 dated January 15, 2012.

After a careful review of the records, we find that Atty. Kilaan committed the following infractions: 1) violation of the Notarial Law; 2) violation of the Lawyer s Oath; and 3) violation of the Code of Professional Responsibility.

In his Motion for Reconsideration tiled before the IBP Board of Governors, Atty. Kilaan passed on the blame to his secretary for the inaccuracies in the entries in his Notarial Register. He asserted that being a private practitioner, he is burdened with cases thus he delegated to his secretary the job of recording the documents which he notarized in his Notarial Register. He argued that the revocation of his notarial commission and disqualification for two years is too harsh. a penalty considering that he is a first-time offender; he prayed for leniency considering that his family depended on his income for their collective needs.

It is settled that it is the notary public who is personally accountable for the accuracy of the entries in his Notarial Register. The Court is not persuaded by respondent s explanation that he is burdened with cases thus he was constrained to delegate the recording of his notarial acts in his Notarial Register to his secretary. In tact, this argument has already been rebuffed by this Court in Lingan v. Attys. Calubaquib and Baliga,13 viz:

Sections 245 and 246 of the Notarial Law provided:

SEC. 245. Notarial Register.--Every notary public shall keep a register to be known as the notarial register, wherein record shall be made of all his official acts as notary; and he shall supply a ce1tified copy of such record, or any part thereof: to any person applying for it and paying the legal fees therefore. (emphasis supplied)

x x x x x x x x x

SEC. 246. Matters to be entered therein. - The notary public shall enter in such register, in chronological order, the nature of each instrument executed, sworn to, or acknowledged before him, the person executing, swearing to or acknowledging the instrument, the witnesses, if any to the signature, the date of execution, oath, or acknowledgment of the instrument, the fees collected by him for his services as notary in connection therewith, and, when the instrument is a contract, he shall keep a connect copy thereof as part of his records, and shall likewise enter in said records a brief description of the substance thereof and shall give to each entry a consecutive number, beginning with number one in each calendar year. The notary shall give to each instrument executed, sworn to, or acknowledged before him a number corresponding to the one in his register, and shall also state on the instrument the page or pages of his register on which the same is recorded. No blank line shall be left between entries.

x x x x x x x x x

In this connection, Section 249(b) stated:

SEC. 249. Grounds fix revocation of commission. – The following derelictions of duty on the part of a notary public shall, in the discretion of the proper judge of first instance, be sufficient ground for the revocation of his commission:

x x x x x x x x x

(b) The failure of the notary to make the proper entry or entries in his notarial register touching his notatial acts in the manner required by law.

x x x x x x x x x

From the language of the subsection, it is abundantly clear that the notary public is personally accountable for all entries in his notarial register. Respondents cannot be relieved of responsibility for the violation of the aforesaid sections by passing the buck to their secretaries, a reprehensible practice which to this day persists despite our open condemnation. Respondents. especially Calubaquib. a self-proclaimed "prominent legal practitioner should have known better than to give us such a simple-minded excuse.

We likewise remind respondents that notarization is not an empty, meaningless or routinary act but one invested with substantive public interest such that only those who are qualified or authorized to do so may act as notaries public. The protection of that interest necessarily requires that those not qualified or authorized to act must be prevented from inflicting themselves upon the public the courts and the administrative offices in general.

Notarization by a notary public converts a private document into a public one and makes it admissible in evidence without further proof of its authenticity. Notaries public must therefore observe utmost care with respect to the basic requirements of their duties.

In Gemina v. Atty. Madamba,14 we have also ruled that –

x x x The inaccuracies in his Notarial Register entitles and his failure to enter the documents that he admittedly notarized constitute dereliction of duty as a notary public. He cannot escape liability by putting the blame on his secretary. The lawyer himself, not merely his secretary, should be held accountable for these misdeeds.

A notary public is empowered to perform a variety of notarial acts, most common of which are the acknowledgement and affirmation of documents or instruments. In the performance of these notarial acts, the notary public must be mindful of the significance of the notarial seal affixed on documents. The notarial seal converts a document from a private to a public instrument, after which it may be presented as evidence without need for proof of its genuineness and due execution.1âwphi1 Thus, notarization should not be treated as an empty, meaningless or routinary act. A notary public exercises duties calling for caretl1lness and faithfulness. Notaries must inform themselves of the facts they certify to; most importantly, they should not take pmt or allow themselves to be pmt of illegal transactions.

Canon 1 of the Code of Professional Responsibility requires every lawyer to uphold the Constitution, obey the laws of the land, and promote respect for the law and legal processes.

The Notarial Law and the 2004 Rules on Notarial Practice, moreover, require a duly commissioned notary public to make the proper entries in his Notarial Register and to refrain from committing any dereliction or any act which may serve as cause for the revocation of his commission or the imposition of administrative sanctions.

Under the 2004 Rules on Notarial Practice, the respondent s failure to make the proper entry or entries in his Notarial Register of his notarial acts, his failure to require the presence of a principal at the time of the notarial acts, and his failure to identify a principal on the basis of personal

LEGFORMS 3C1415 | 24

knowledge by competent evidence are grounds for the revocation of a lawyer s commission as a notary public.

Indeed, Rule VI, Sections I and 2 of the 2004 Rules of Notarial Practice require a notary public to keep and maintain a Notarial Register wherein he will record his every notarial act. His failure to make the proper entry or entries in his notarial register concerning his notarial acts is a ground for revocation of his notarial commission.15 As mentioned, respondent failed to make the proper entries in his Notarial Register; as such, his notarial commission may be properly revoked.

Aside from violating the Notarial Law, respondent also violated his Lawyer’s Oath and the Code of Professional Responsibility by committing falsehood in the pleadings he submitted before the IBP. His claim that Adasing was abroad hence could not corroborate the explanation made by Batingwed was proved to be untruthful when complainants submitted the Affidavit of Adasing insisting that he never left the country. Canon 10,

Rule 10.0 of the Code of Professional Responsibility expressly provides that a lawyer shall not do any falsehood, nor consent to the doing of any in Court; nor shall he mislead, or allow the Court to be misled by any artifice. In the same vein, Canon 1, Rule 1.01 mandates that a lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. Respondent failed to observe these Rules and hence must be sanctioned.

Under the circumstances, we find Atty. Kilaan s suspension from the practice of law for three (3) months and the revocation and disqualification of his notarial commission for a period of one (1) year appropriate.

IN VIEW WHEREOF, the notarial commission of Atty. Richard Baltazar Kilaan, if still existing, is hereby REVOKED, and he is DISQUALIFIED from being commissioned as notary public for a period of one (1) year. He is also SUSPENDED from the practice of law for three (3) months effective immediately, with a WARNING that the repetition of a similar violation will be dealt with more severely. He is DIRECTED to report the date of his receipt of this Resolution to enable this Court to determine when his suspension shall take effect.

Let a copy of this Resolution be entered in the personal records of respondent as a member of the Bar, and copies furnished the Office of the Bar Confidant, the Integrated Bar of the Philippines, and the Office of the Court Administrator for circulation to all courts in the country.

LEGFORMS 3C1415 | 25

10) PEÑA V. PATERNO, A.C. NO. 4191, 10 JUNE 2013

This is an administrative case filed against respondent Atty. Christina C. Paterno for acts violative of the Code of Professional Responsibility and the Notarial Law.

On February 14, 1994, complainant Anita C. Peña, former head of the Records Department of the Government Service Insurance System (GSIS), filed an Affidavit-Complaint1 against respondent Atty. Christina C. Paterno. Complainant alleged that she was the owner of a parcel of land known as Lot 7-C, Psd-74200, located in Bayanbayanan, Parang, Marikina, Metro Manila, covered by Transfer Certificate of Title (TCT) No. N-61244,2 Register of Deeds of Marikina, with an eight-door apartment constructed thereon. She personally knew respondent Atty. Christina C. Paterno, as respondent was her lawyer in a legal separation case, which she filed against her husband in 1974, and the aforementioned property was her share in their property settlement. Complainant stated that she also knew personally one Estrella D. Kraus, as she was respondent's trusted employee who did secretarial work for respondent. Estrella Kraus was always there whenever she visited respondent in connection with her cases.

Moreover, complainant stated that, sometime in 1986, respondent suggested that she (complainant) apply for a loan from a bank to construct townhouses on her property for sale to interested buyers, and that her property be offered as collateral. Respondent assured complainant that she would work out the speedy processing and release of the loan. Complainant agreed, but since she had a balance on her loan with the GSIS, respondent lent her the sum of P27,000.00, without any interest, to pay the said loan. When her title was released by the GSIS, complainant entrusted it to respondent who would handle the preparation of documents for the loan and follow-up the same, and complainant gave respondent the authority for this purpose. From time to time, complainant inquired about the application for the loan, but respondent always assured her that she was still preparing the documents required by the bank. Because of her assurances, complainant did not bother to check on her property, relying on respondent's words that she would handle speedily the preparation of her application.

Further, complainant narrated that when she visited her property, she discovered that her apartment was already demolished, and in its place, four residential houses were constructed on her property, which she later learned was already owned by one Ernesto D. Lampa, who bought her property from Estrella D. Kraus. Complainant immediately confronted respondent about what she discovered, but respondent just brushed her aside and ignored her. After verification, complainant learned that her property was sold on November 11, 1986 to Krisbuilt Traders Company, Ltd., and respondent was the Notary Public before whom the sale was acknowledged.3 Krisbuilt Traders Company, Ltd., through its Managing Partner, Estrella D. Kraus, sold the same to one Ernesto D. Lampa on April 13, 1989.4

Complainant stated in her Complaint that she did not sell her property to Krisbuilt Traders Company, Ltd., and that she neither signed any deed of sale in its favor nor appeared before respondent to acknowledge the sale. She alleged that respondent manipulated the sale of her property to Krisbuilt Traders Company, Ltd. using her trusted employee, Estrella D. Kraus, as the instrument in the sale, and that her signature was forged, as she did not sign any deed selling her property to anyone.

In her Answer,5 respondent alleged that Estrella D. Kraus never worked in any capacity in her law office, and that Estrella and her husband, Karl Kraus (Spouses Kraus), were her clients. Respondent denied that she suggested that complainant should apply for a loan from a bank to construct townhouses. She said that it was the complainant, on the contrary, who requested her (respondent) to look for somebody who could help her raise the money she needed to complete the amortization of her property, which was mortgaged with the GSIS and was about to be foreclosed. Respondent

stated that she was the one who introduced complainant to the Spouses Kraus when they were both in her office. In the course of their conversation, complainant offered the property, subject matter of this case, to the Spouses Kraus. The Spouses Kraus were interested, and got the telephone number of complainant. Thereafter, complainant told respondent that she accompanied the Spouses Kraus to the site of her property and the Office of the Register of Deeds. After about three weeks, the Spouses Kraus called up respondent to tell her that they had reached an agreement with complainant, and they requested respondent to prepare the deed of sale in favor of their company, Krisbuilt Traders Company, Ltd. Thereafter, complainant and the Spouses Kraus went to respondent's office where complainant signed the Deed of Sale after she received Sixty-Seven Thousand Pesos (P67,000.00) from the Spouses Kraus. Respondent alleged that complainant took hold of the Deed of Sale, as the understanding was that the complainant would, in the meantime, work for the release of the mortgage, and, thereafter, she would deliver her certificate of title, together with the Deed of Sale, to the Spouses Kraus who would then pay complainant the balance of the agreed price. Complainant allegedly told respondent that she would inform respondent when the transaction was completed so that the Deed of Sale could be recorded in the Notarial Book. Thereafter, respondent claimed that she had no knowledge of what transpired between complainant and the Spouses Kraus. Respondent stated that she was never entrusted with complainant's certificate of title to her property in Marikina (TCT No. N-61244). Moreover, it was only complainant who negotiated the sale of her property in favor of Krisbuilt Traders Company, Ltd. According to respondent, complainant's inaction for eight years to verify what happened to her property only meant that she had actually sold the same, and that she concocted her story when she saw the prospect of her property had she held on to it. Respondent prayed for the dismissal of the case.

On February 28, 1995, complainant filed a Reply,6 belying respondent's allegations and affirming the veracity of her complaint.

On March 20, 1995, this case was referred to the Integrated Bar of the Philippines (IBP) for investigation and recommendation.7 On April 18, 1996, complainant moved that hearings be scheduled by the Commission on Bar Discipline. On November 8, 1999, the case was set for its initial hearing, and hearings were conducted from March 21, 2000 to July 19, 2000.

On August 3, 2000, complainant filed her Formal Offer of Evidence. Thereafter, hearings for the reception of respondent's evidence were set, but supervening events caused their postponement.

On July 4, 2001, respondent filed a Demurrer to Evidence,8 which was opposed by complainant. The Investigating Commissioner denied respondent's prayer for the outright dismissal of the complaint, and directed respondent to present her evidence on October 24, 2001.9

The Register of Deeds of Marikina City was subpoenaed to testify and bring the Deed of Absolute Sale dated November 11, 1986, which caused the cancellation of TCT No. 61244 in the name of complainant and the issuance of a new title to Krisbuilt Traders Company, Ltd. However, the Register of Deeds failed to appear on March 1, 2002. During the hearing held on July 29, 2003, respondent's counsel presented a certification10 from Records Officer Ma. Corazon Gaspar of the Register of Deeds of Marikina City, which certification stated that a copy of the Deed of Sale executed by Anita C. Peña in favor of Krisbuilt Traders Company, Ltd., covering a parcel of land in Marikina, could not be located from the general file of the registry and that the same may be considered lost. Hearings continued until 2005. On February 17, 2005, respondent was directed by the Investigating Commissioner to formally offer her evidence and to submit her memorandum.

Before the resolution of the case by the IBP, respondent filed a Motion to Dismiss before the IBP on the ground that the criminal case of estafa filed against her before the RTC of Manila, Branch 36, which estafa case was anchored on the same facts as the administrative case, had been dismissed in

LEGFORMS 3C1415 | 26

a Decision11 dated August 20, 2007 in Criminal Case No. 94-138567. The RTC held that the case for estafa could not prosper against the accused Atty. Christina C. Paterno, respondent herein, for insufficiency of evidence to secure conviction beyond reasonable doubt, considering the absence of the Deed of Sale and/or any competent proof that would show that Anita Peña's signature therein was forged and the transfer of the land was made through fraudulent documents.

The issue resolved by the Investigating Commissioner was whether or not there was clear and preponderant evidence showing that respondent violated the Canons of Professional Responsibility by (a) deceiving complainant Anita C. Peña; (b) conspiring with Estrella Kraus and Engr. Ernesto Lampa to enable the latter to register the subject property in his name; and (c) knowingly notarizing a falsified contract of sale.

On January 6, 2009, Atty. Albert R. Sordan, the Investigating Commissioner of the IBP, submitted his Report and Recommendation finding that respondent betrayed the trust reposed upon her by complainant by executing a bogus deed of sale while she was entrusted with complainant's certificate of title, and that respondent also notarized the spurious deed of sale. Commissioner Sordan stated that there was no evidence showing that respondent actively conspired with any party or actively participated in the forgery of the signature of complainant. Nevertheless, Commissioner Sordan stated that complainant's evidence supports the conclusion that her signature on the said Deed of Sale dated November 11, 1986 was forged.

Although no copy of the said Deed of Sale could be produced notwithstanding diligent search in the National Archives and the Notarial Section of the Regional Trial Court (RTC) of Manila, Commissioner Sordan stated that the interlocking testimonies of the complainant and her witness, Maura Orosco, proved that the original copy of the owner's duplicate certificate of title was delivered to respondent.12 Commissioner Sordan did not give credence to respondent's denial that complainant handed to her the owner's duplicate of TCT No. N-61244 in November 1986 at the GSIS, as Maura Orosco, respondent's former client who worked as Records Processor at the GSIS, testified that she saw complainant give the said title to respondent.

Commissioner Sordan gave credence to the testimony of complainant that she gave respondent her owner's duplicate copy of TCT No. 61244 to enable respondent to use the same as collateral in constructing a townhouse, and that the title was in the safekeeping of respondent for seven years.13 Despite repeated demands by complainant, respondent refused to return it.14 Yet, respondent assured complainant that she was still the owner.15 Later, complainant discovered that a new building was erected on her property in January 1994, eight years after she gave the title to respondent. Respondent argued that it was unfathomable that after eight years, complainant never took any step to verify the status of her loan application nor visited her property, if it is untrue that she sold the said property. Complainant explained that respondent kept on assuring her that the bank required the submission of her title in order to process her loan application.16

Commissioner Sordan stated that respondent enabled Estrella B. Kraus to sell complainant's land to Krisbuilt Traders Company, Ltd.17 This was evidenced by Entry No. 150322 in TCT No. 61244 with respect to the sale of the property described therein to Krisbuilt Traders Company, Ltd. for P200,000.00.18 Respondent alleged that complainant signed the Deed of Sale in her presence inside her office.19 However, respondent would neither directly confirm nor deny if, indeed, she notarized the instrument in her direct examination,20 but on cross-examination, she stated that she was not denying that she was the one who notarized the Deed of Sale.21 Estrella Kraus' affidavit22 supported respondent's defense.

Respondent presented her former employee Basilio T. Depaudhon to prove the alleged signing by complainant of the purported Deed of Absolute Sale, and the notarization by respondent of the said Deed. However, Commissioner Sordan doubted the credibility of Depaudhon, as he affirmed that his

participation in the alleged Deed of Absolute Sale was mere recording, but he later affirmed that he saw the parties sign the Deed of Absolute Sale.23

Commissioner Sordan stated that the unbroken chain of circumstances, like respondent's testimony that she saw complainant sign the Deed of Sale before her is proof of respondent's deception. Respondent's notarization of the disputed deed of sale showed her active role to perpetuate a fraud to prejudice a party. Commissioner Sordan declared that respondent failed to exercise the required diligence and fealty to her office by attesting that the alleged party, Anita Peña, appeared before her and signed the deed when in truth and in fact the said person did not participate in the execution thereof. Moreover, respondent should be faulted for having failed to make the necessary entries pertaining to the deed of sale in her notarial register.

According to Commissioner Sordan, these gross violations of the law made respondent liable for violation of her oath as a lawyer and constituted transgressions of Section 20 (a),24 Rule 138 of the Rules of Court and Canon 125 and Rule 1.01 of the Code of Professional Responsibility. Commissioner Sordan recommended that respondent be disbarred from the practice of law and her name stricken-off the Roll of Attorneys, effective immediately, and recommended that the notarial commission of respondent, if still existing, be revoked, and that respondent be perpetually disqualified from reappointment as a notary public.

On August 28, 2010, the Board of Governors of the IBP passed Resolution No. XIX-20-464, adopting and approving the Report and Recommendation of the Investigating Commissioner, thus:

RESOLVED to ADOPT and APPROVE, as it is hereby unanimously ADOPTED and APPROVED the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex "A", and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and finding Respondent guilty of her oath as a lawyer, Section 20 (a), Rule 138 of the Rules of Court and Canon 1, Rule 1.01 of the Code of Professional Responsibility, Atty. Christina C. Paterno is hereby DISBARRED from the practice of law and her name stricken off from the Roll of Attorneys. Furthermore, respondent's notarial commission if still existing is Revoked with Perpetual Disqualification from reappointment as a Notary Public. The Court adopts the findings of the Board of Governors of the IBP insofar as respondent has violated the Code of Professional Responsibility and the Notarial Law, and agrees with the sanction imposed.

The criminal case of estafa from which respondent was acquitted, as her guilt was not proven beyond reasonable doubt, is different from this administrative case, and each must be disposed of according to the facts and the law applicable to each case.26 Section 5,27 in relation to Sections 128 and 2,29 Rule 133, Rules of Court states that in administrative cases, only substantial evidence is required, not proof beyond reasonable doubt as in criminal cases, or preponderance of evidence as in civil cases. Substantial evidence is that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.30

Freeman v. Reyes31 held that the dismissal of a criminal case does not preclude the continuance of a separate and independent action for administrative liability, as the weight of evidence necessary to establish the culpability is merely substantial evidence. An administrative case can proceed independently, even if there was a full-blown trial wherein, based on both prosecution and defense evidence, the trial court eventually rendered a judgment of acquittal, on the ground either that the prosecution failed to prove the respondent's guilt beyond reasonable doubt, or that no crime was committed.32The purpose of disbarment is to protect the courts and the public from the misconduct of the officers of the court and to ensure the administration of justice by requiring that those who exercise this important function shall be competent, honorable and trustworthy men in whom courts and

LEGFORMS 3C1415 | 27

clients may repose confidence.33 The burden of proof rests upon the complainant, and the Court will exercise its disciplinary power only if she establishes her case by clear, convincing and satisfactory evidence.34

In this case, Investigating Commissioner Sordan gave credence to complainant's testimony that she gave respondent her owner's copy of the certificate of title to her property as respondent would apply for a bank loan in complainant's behalf, using the subject property as collateral.

Complainant's testimony was corroborated by Maura Orosco, a former records processor in complainant's office at the GSIS and also a client of respondent, who stated that she saw complainant give her title to respondent.35 Respondent admitted in her Answer36 that she executed the Deed of Sale per the request of the Spouses Kraus. The said Deed of Sale was notarized by respondent as evidenced by Entry No. 15032237 in complainant's title, TCT No. N-61244. As the Deed of Sale could not be presented in evidence, through no fault of the complainant, nonetheless, the consequence thereof is failure of complainant to prove her allegation that her signature therein was forged and that respondent defrauded complainant by facilitating the sale of the property to Krisbuilt Traders Company, Ltd. without complainant's approval. However, complainant proved that respondent did not submit to the Clerk of Court of the RTC of Manila, National Capital Region her Notarial Report for the month of November 1986, when the Deed of Sale was executed.

The pertinent provisions of the applicable Notarial Law found in Chapter 12, Book V, Volume I of the Revised Administrative Code of 1917, as amended, states that every notary public shall keep a notarial register,38 and he shall enter in such register, in chronological order, the nature of each instrument executed, among others, and, when the instrument is a contract, he shall keep a correct copy thereof as part of his records, and he shall likewise enter in said records a brief description of the substance thereof.39

A ground for revocation of a notary public's commission is failure of the notary to send the copy of the entries to the proper clerk of the Court of First Instance (RTC) within the first ten days of the month next following or the failure of the notary to forward his notarial register, when filled, to the proper clerk of court.40

In this case, the Clerk of Court of the RTC of Manila issued a Certification,41 dated February 22, 1994, stating that respondent was duly appointed as a Notary Public for the City of Manila for the year 1986, and that respondent has not yet forwarded to the Clerk of Court's Office her Notarial Report for the month of November 1986, when the Deed of Sale was executed and notarized by her. Hence, a copy of the Notarial Report/Record and the said Deed of Sale could not also be found in the National Archives per the certification42 of the Archives Division Chief Teresita R. Ignacio for Director Edgardo J. Celis. The failure of respondent to fulfill her duty as notary public to submit her notarial register for the month of November 1986 and a copy of the said Deed of Sale that was notarized by her on the same month is cause for revocation of her commission under Section 249 of the Notarial Law.43 Lawyers commissioned as notaries public are mandated to discharge with fidelity the duties of their offices, such duties being dictated by public policy and impressed with public interest.44

Pursuant to Section 27, Rule 138 of the Rules of Court, a lawyer may be removed or suspended for any deceit or dishonest act, thus:

Sec. 27. Attorneys removed or suspended by Supreme Court on what grounds. – A member of the bar may be removed or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a wilfull disobedience of any lawful order of a superior

court, or for corruptly or wilfully appearing as an attorney for a party to a case without authority to do so. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice.

Given the facts of this case, wherein respondent was in possession of complainant's copy of the certificate of title (TCT No. N-61244) to the property in Marikina, and it was respondent who admittedly prepared the Deed of Sale, which complainant denied having executed or signed, the important evidence of the alleged forgery of complainant's signature on the Deed of Sale and the validity of the sale is the Deed of Sale itself. However, a copy of the Deed of Sale could not be produced by the Register of Deeds of Marikina City, as it could not be located in the general files of the registry, and a certification was issued stating that the Deed of Sale may be considered lost.45 Moreover, respondent did not submit to the Clerk of Court of the RTC of Manila her Notarial Report for the month of November 1986,46 including the said Deed of Sale, which was executed on November 11, 1986. Hence, Investigating Commissioner Sordan opined that it appears that efforts were exerted to get rid of the copies of the said Deed of Sale to prevent complainant from getting hold of the document for the purpose of handwriting verification from an expert to prove that her alleged signature on the Deed of Sale was forged. The failure of respondent to submit to the proper RTC Clerk of Court her Notarial Register/Report for the month of November 1986 and a copy of the Deed of Sale, which was notarized by her within that month, has far-reaching implications and grave consequences, as it in effect suppressed evidence on the veracity of the said Deed of Sale and showed the deceitful conduct of respondent to withhold the truth about its authenticity. During her testimony, it was observed by the Investigating Commissioner and reflected in the transcript of records that respondent would neither directly confirm nor deny that she notarized the said Deed of Sale.

For the aforementioned deceitful conduct, respondent is disbarred from the practice of law. As a member of the bar, respondent failed to live up to the standards embodied in the Code of Professional Responsibility, particularly the following Canons:

CANON 1 - A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and for legal processes.

Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.Rule 1.02 - A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system.

CANON 7 - A lawyer shall at all times uphold the integrity and dignity of the legal profession, and support the activities of the Integrated Bar.

Rule 7.03 - A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor should he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.1âwphi1

WHEREFORE, respondent Atty. Christina C. Paterno is DISBARRED from the practice of law, pursuant to Section 27, Rule 138 of the Rules of Court, as well as for violation of the Code of Professional Responsibility; and the notarial commission of Atty. Christina C. Paterno, if still existing, is perpetually REVOKED.

Let copies of this Decision be furnished the Office of the Bar Confidant to be appended to respondent's personal record. Likewise, copies shall be furnished to the Integrated Bar of the Philippines and all courts in the country for their information and guidance.

The Bar Confidant is hereby DIRECTED to strike out the name of Christina C. Paterno from the Roll of Attorneys.

LEGFORMS 3C1415 | 28

11) AGBULOS V. VIRAY, A.C. NO. 7350, 18 FEBRUARY 2013

The case stemmed from a Complaint1 filed before the Office of the Bar Confidant (OBC) by complainant Mrs. Patrocinio V. Agbulos against respondent Atty. Roseller A. Viray of Asingan, Pangasinan, for allegedly notarizing a document denominated as Affidavit of Non-Tenancy2 in violation of the Notarial Law. The said affidavit was supposedly executed by complainant, but the latter denies said execution and claims that the signature and the community tax certificate (CTC) she allegedly presented are not hers. She further claims that the CTC belongs to a certain Christian Anton. 3 Complainant added that she did not personally appear before respondent for the notarization of the document. She, likewise, states that respondent's client, Rolando Dollente (Dollente), benefited from the said falsified affidavit as it contributed to the illegal transfer of a property registered in her name to that of Dollente.4

In his Comment,5 respondent admitted having prepared and notarized the document in question at the request of his client Dollente, who assured him that it was personally signed by complainant and that the CTC appearing therein is owned by her.6 He, thus, claims good faith in notarizing the subject document.

In a Resolution7 dated April 16, 2007, the OBC referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation or decision.

After the mandatory conference and hearing, the parties submitted their respective Position Papers.8 Complainant insists that she was deprived of her property because of the illegal notarization of the subject document.9 Respondent, on the other hand, admits having notarized the document in question and asks for apology and forgiveness from complainant as a result of his indiscretion.10

In his report, Commissioner Dennis A. B. Funa (Commissioner Funa) reported that respondent indeed notarized the subject document in the absence of the alleged affiant having been brought only to respondent by Dollente. It turned out later that the document was falsified and the CTC belonged to another person and not to complainant. He further observed that respondent did not attempt to refute the accusation against him; rather, he even apologized for the complained act.11 Commissioner Funa, thus, recommended that respondent be found guilty of violating the Code of Professional Responsibility and the 2004 Rules on Notarial Practice, and that he be meted the penalty of six (6) months suspension as a lawyer and six (6) months suspension as a Notary Public.12

On April 15, 2008, the IBP Board of Governors issued Resolution No. XVIII-2008-166 which reads:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with modification, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering Respondent’s violation of the Code of Professional Responsibility and 2004 Rules on Notarial Practice, Atty. Roseller A. Viray is hereby SUSPENDED from the practice of law for one (1) month.13

Respondent moved for the reconsideration of the above decision, but the same was denied. The above resolution was further modified in Resolution No. XX-2012-117, dated March 10, 2012, to read as follows:

RESOLVED to DENY Respondent’s Motion for Reconsideration, and unanimously MODIFY as it is hereby MODIFIED Resolution No. XVIII- 2008-166 dated April 15, 2008, in addition to Respondent’s

SUSPENSION from the practice of law for one (1) month, Atty. Roseller A. Viray is hereby SUSPENDED as Notary Public for six (6) months. (Emphasis in the original)

The findings of the IBP are well taken.

Section 2 (b) of Rule IV of the 2004 Rules on Notarial Practice emphasizes the necessity of the affiant’s personal appearance before the notary public:14

x x x x

(b) A person shall not perform a notarial act if the person involved as signatory to the instrument or document –

(1) is not in the notary’s presence personally at the time of the notarization; and

(2) is not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by these Rules.

Moreover, Section 12,15 Rule II, of the 2004 Rules on Notarial Practice defines the "competent evidence of identity" referred to above.

In this case, respondent admits that not only did he prepare and notarize the subject affidavit but he likewise notarized the same without the affiant’s personal appearance. He explained that he did so merely upon the assurance of his client Dollente that the document was executed by complainant. In notarizing the document, respondent contented himself with the presentation of a CTC despite the Rules’ clear requirement of presentation of competent evidence of identity such as an identification card with photograph and signature. With this indiscretion, respondent failed to ascertain the genuineness of the affiant’s signature which turned out to be a forgery. In failing to observe the requirements of the Rules, even the CTC presented, purportedly owned by complainant, turned out to belong to somebody else.

To be sure, a notary public should not notarize a document unless the person who signed the same is the very same person who executed and personally appeared before him to attest to the contents and the truth of what are stated therein.16 Without the appearance of the person who actually executed the document in question, the notary public would be unable to verify the genuineness of the signature of the acknowledging party and to ascertain that the document is the party’s free act or deed.17

As aptly observed by the Court in Dela Cruz-Sillano v. Pangan:18

The Court is aware of the practice of not a few lawyers commissioned as notary public to authenticate documents without requiring the physical presence of affiants. However, the adverse consequences of this practice far outweigh whatever convenience is afforded to the absent affiants. Doing away with the essential requirement of physical presence of the affiant does not take into account the likelihood that the documents may be spurious or that the affiants may not be who they purport to be. A notary public should not notarize a document unless the persons who signed the same are the very same persons who executed and personally appeared before him to attest to the contents and truth of what are stated therein. The purpose of this requirement is to enable the notary public to verify the genuineness of the signature of the acknowledging party and to ascertain that the document is the party’s free act and deed.19

The Court has repeatedly emphasized in a number of cases20 the important role a notary public performs, to wit:

LEGFORMS 3C1415 | 29

x x x [N]otarization is not an empty, meaningless routinary act but one invested with substantive public interest. The notarization by a notary public converts a private document into a public document, making it admissible in evidence without further proof of its authenticity. A notarized document is, by law, entitled to full faith and credit upon its face. It is for this reason that a notary public must observe with utmost care the basic requirements in the performance of his duties; otherwise, the public’s confidence in the integrity of a notarized document would be undermined.21

Respondent’s failure to perform his duty as a notary public resulted not only damage to those directly affected by the notarized document but also in undermining the integrity of a notary public and in degrading the function of notarization.22 He should, thus, be held liable for such negligence not only as a notary public but also as a lawyer.23 The responsibility to faithfully observe and respect the legal solemnity of the oath in an acknowledgment or jurat is more pronounced when the notary public is a lawyer because of his solemn oath under the Code of Professional Responsibility to obey the laws and to do no falsehood or consent to the doing of any.24 Lawyers commissioned as notaries public are mandated to discharge with fidelity the duties of their offices, such duties being dictated by public policy and impressed with public interest.251âwphi1

As to the proper penalty, the Court finds the need to increase that recommended by the IBP which is one month suspension as a lawyer and six months suspension as notary public, considering that respondent himself prepared the document, and he performed the notarial act without the personal appearance of the affiant and without identifying her with competent evidence of her identity. With his indiscretion, he allowed the use of a CTC by someone who did not own it. Worse, he allowed himself to be an instrument of fraud. Based on existing jurisprudence, when a lawyer commissioned as a notary public fails to discharge his duties as such, he is meted the penalties of revocation of his notarial commission, disqualification from being commissioned as a notary public for a period of two years, and suspension from the practice of law for one year.26

WHEREFORE, the Court finds respondent Atty. Roseller A. Viray GUILTY of breach of the 2004 Rules on Notarial Practice and the Code of Professional Responsibility. Accordingly, the Court SUSPENDS him from the practice of law for one (1) year; REVOKES his incumbent commission, if any; and PROHIBITS him from being commissioned as a notary public for two (2) years, effective immediately. He is WARNED that a repetition of the same or similar acts in the future shall be dealt with more severely.

Let all the courts, through the Office of the Court Administrator, as well as the IBP and the Office of the Bar Confidant, be notified of this Decision and be it entered into respondent's personal record.

LEGFORMS 3C1415 | 30

12) MAHILUM V. LEZAMA, A.C. NO. 10450, 30 JULY 2014

This administrative complaint1 filed by Emerita B. Mahilum (complainant) seeks the disbarment of Atty. Samuel SM. Lezama (respondent), a commissioned notary public and practicing lawyer in San Carlos City, Negros Occidental, for notarizing a ‘Deed of Donation’ in the absence of one of the affiants.

The complainant averred that on May 24, 2006, the respondent notarized a Deed of Donation executed by her estranged husband, Rodolfo (Rodolfo) Mahilum as donor, and their common daughter, Jennifer Mahilum-Sorenson (Jennifer) as donee, pertaining to the donor’s share of one-half portion over a parcel of land covered by Transfer Certificate of Title No. T-710712 of the Registry of Deeds of Bacolod City.

Attached to the complaint is a copy of the deed of donation dated February 7, 2006 bearing the signatures of Rodolfo and Jennifer, as well as the notarial seal and signature of the respondent on the acknowledgment portion attesting to the personal appearance of Rodolfo and Jennifer before him when the same was notarized on May 24, 2006.3

According to the complainant, she has personal knowledge that Jennifer could not have personally appeared before the respondent on May 24, 2006 or even on February 7, 2006 because during those dates, she was in the United States of America (USA) working at the State Fund Office in California.

In his Answer,4 the respondent asserted that the donor, donee and instrumental witnesses to the donation were all physically present when the document was signed. He stated that he is personally acquainted with Rodolfo and he had no reason to cast doubts upon him when he introduced his daughter Jennifer who came all the way from the USA to visit her father.

The respondent further averred that the complainant has a long-running feud with Rodolfo and she and some of their common children are using this complaint as part of her personal vendetta against Rodolfo who happens to be friends with the respondent.

The parties were summoned for mandatory conference before the Integrated Bar of the Philippines (IBP), Negros Occidental Chapter, whereby both of them undertook to present documentary evidence showing the actual whereabouts of Jennifer during the dates in question.

The complainant submitted a Certification5 from the Bureau of Immigration showing the arrival and departure records of Jennifer in the Philippines. Based thereon, Jennifer did not enter the Philippines in the year 2006. Her travel records closest to that year showed that she arrived in the Philippines on June 25, 2004 but departed a month later or on July 22, 2004. She again arrived in the Philippines on June 24, 2007 and left on July 20, 2007. There were other various dates of her arrival in the country but the records did not reflect that she came to the Philippines in 2006.

Despite opportunity to submit evidence rebutting the foregoing certification, the respondent failed to file any.6 The only supporting evidence he proffered were the documents attached to his Answer showing the present marital status of the complainant – that she is actually married to a certain George W. Cooper, a British Canadian; that on July 14, 1986 she filed for the dissolution of her marriage with Rodolfo before the Superior Court of California, County of Orange and the same was granted on October 23, 1986. Likewise attached to his Answer is an Affidavit executed by Rodolfo attesting that Jennifer was physically present when she signed the deed of donation.7

Report and Recommendation of the IBP

In its Resolution transmitted to the IBP national office on March 12, 2009,8 the Grievance Committee of IBP Negros Occidental Chapter found that the respondent failed to exercise diligence in ascertaining the identity of the person who appeared before him as donee considering that based on official records, Jennifer never set foot in the Philippine soil at any time in the year 2006. The respondent failed to require competent proof of identification from the parties to the deed of donation as mandated by the Rules on Notarial Practice.

On December 1, 2009, the IBP Committee on Bar Discipline adopted the foregoing findings and accordingly, recommended that the respondent’s notarial commission be revoked and that he be prohibited from being commissioned as a Notary Public for a period of two years.9

The IBP Board of Governors adopted the above recommendation in a Resolution10 dated May 15, 2011.

The respondent moved for reconsideration11 pleading for the modification of the penalty meted upon him on the ground that various factors does not render it commensurate with the offense charged. He stressed that the complainant never became his client neither was she involved in the execution of the deed of donation. There was also no claim whatsoever that Jennifer’s signature in the deed of donation was forged or falsified. The respondent, further, asserted that he did not benefit financially from the notarization of the deed of donation and that the same did not cause any damage or injury to the complainant.

The respondent also asserted that there was no need for him to require any proof of identity from Rodolfo since he was personally known to him having been his partner before the latter retired from law practice.

He appealed for humanitarian consideration and cited that he has been a notary public for 35 years and this is the first administrative case filed against him. He also rendered free notarial services to the members of the local Philippine National Police in San Carlos City as well as the personnel of the Regional Trial Courts and Municipal Courts of Calatrava in Negros Occidental.

In the same motion, the respondent expressed remorse over his negligence and pledged to exercise diligence in discharging his duties as a notary public.

In a Resolution12 dated February 11, 2014, the IBP Board of Governors denied the respondent’s motion for reconsideration.

Ruling of the Court

The Court agrees with and sustains the IBP’s finding that the official record from the Bureau of Immigration showing that Jennifer never traveled to the Philippines in the year 2006 substantially established that indeed she could not have personally appeared before the respondent when he notarized the deed of donation on May 24, 2006. Certainly, the conclusive import of the contents of such certification cannot be overcome by the respondent’s mere counter-allegations unsupported by any corroborative proof.

Section 1 of Public Act No. 2103, or the Notarial Law mandates that affiants must personally appear to the notary public, viz:chanroblesvirtuallawlibrary

Sec. 1. (a) The acknowledgement shall be before a notary public or an officer duly authorized by law of the country to take acknowledgements of instruments or documents in the place where the act is done. The notary public or the officer taking the acknowledgement shall certify that the person

LEGFORMS 3C1415 | 31

acknowledging the instrument or document is known to him and that he is the same person who executed it, acknowledged that the same is his free act and deed. The certificate shall be made under the official seal, if he is required by law to keep a seal, and if not, his certificate shall so state.

Corollary, under Section 2(b) of Rule IV of the Rules on Notarial Practice of 2004, a commissioned notary public is enjoined from performing a notarial act unless the affiant is: (1) in his presence at the time of the notarization; and (2) personally known to him or otherwise identified by him through competent evidence of identity as defined by these Rules.

The purpose of the rule was emphasized in Angeles v. Ibañez,13 thus:chanroblesvirtuallawlibrary

The physical presence of the affiants enables the notary public to verify the genuineness of the signatures of the acknowledging parties and to ascertain that the document is the parties’ free act and deed.Notarization of a private document converts such document into a public one, and renders it admissible in court without further proof of its authenticity. Courts, administrative agencies and the public at large must be able to rely upon the acknowledgment executed by a notary public and appended to a private instrument. Notarization is not an empty routine; to the contrary, it engages public interest in a substantial degree and the protection of that interest requires preventing those who are not qualified or authorized to act as notaries public from imposing upon the public and the courts and administrative offices generally.14 (Citations omitted)

The respondent is, without doubt, familiar with the above rules and duties, having been a notary public for 35 years. But he, nonetheless, failed to observe them.

Contrary to the IBP’s findings that such failure was due to carelessness, the Court finds and so holds that the respondent deliberately disregarded the Rules on Notarial Practice and the Notarial Law.

A holistic examination of the records illustrates that the respondent has actually met Jennifer when she went home to visit the ailing Rodolfo. But this was before and definitely not during the notarization of deed of donation because based on her travel records, she did not come to the Philippines in 2006. The respondent accommodated the notarization of the deed sans Jennifer’s physical appearance before him on May 24, 2006 since he was personally acquainted with Rodolfo. Hence, he took the latter’s representation that Jennifer voluntarily executed the deed as reliable and faithful. Even if we were to uphold such representation, however, the truth remains that Jennifer was not personally present to attest to the truthfulness of her acceptance of the donation as donee during notarization.

Carelessness implies that the affiant was actually personally present and the notary public just forgot to verify her identity or that she was not personally known to her. Here, however, the affiant was not physically present during the notarization but the notary public nevertheless affixed his seal and signature attesting that the affiant “personally appeared” before him when in truth and in fact, she did not.

To stress, “[a] notary public should not notarize a document unless the persons who signed the same are the very same persons who executed and personally appeared before him to attest to the contents and truth of what are stated therein. The presence of the parties to the deed will enable the notary public to verify the genuineness of the signature of the affiant.”15

An act which contravenes the foregoing guidelines is in violation of Rule 1.01, Canon 116 of the Code of Professional Responsibility and the Notarial Law,17 which the respondent culpably committed when he notarized the ‘Deed of Donation’ in the absence of one of the affiants.

It must be emphasized that the public and the courts accord conclusiveness of due execution in notarized documents. By affixing his signature and notarial seal on the instrument, the respondent misled the public that Jennifer personally appeared before him and attested to the truth and veracity of the contents of the deed when in fact she did not. Such misconduct can also usher in precarious legal consequences should the deed of donation later on spawn court intervention.18

Certainly, the respondent was remiss in performing his functions as a notary public for which the penalties imposed in Wilberto C. Talisic v. Atty. Primo R. Rinen19 are appropriate.

WHEREFORE, the Court hereby finds Atty. Samuel SM. Lezama GUILTY of violating the Notarial Law and the Code of Professional Responsibility. Accordingly, his incumbent notarial commission is REVOKED and he is DISQUALIFIED from being commissioned as a notary public for ONE (1) YEAR, effective immediately. He is further WARNED that a repetition of the same or similar offense shall be dealt with more severely.

Let copies of this Resolution be furnished to the Office of the Bar Confidant, to be appended to the respondent’s personal record as attorney. Likewise, copies shall be furnished to the Integrated Bar of the Philippines and all courts in the country for their information and guidance.

LEGFORMS 3C1415 | 32

13) ZAULDA V. ZAULDA, G.R. NO. 201234, 17 MARCH 2014

This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court assailing the February 11, 2011 Resolution1 of the Court of Appeals (CA), in CA G.R. SP No. 05379, dismissing the petition for review of the petitioners, and its March 6, 2012 Resolution,2 denying the petitioners' motion for reconsideration. The February 11, 2011 CA Resolution reads:

A perusal of the Petition revealed there were impediments to the Court's subsequent action thereon:

1. the Petition was not filed in the nick of time inasmuch as the Court could not have pursued action on or before September 9, 2010 which was supposedly the last day specified on the Motion for Extension of Time to File Petition for Review dated August 23, 2010, postmarked August 24, 2010, and received by this Court on September 13, 2010 for the simple reason that this Division apparently received a copy of the Motion only on September 14, 2010, and the Rollo was forwarded to the Office of the ponente only on January 5, 2011. Certainly, parties and counsel should not assume that Courts are bound to grant the time they pray for. By parity of reasoning, a motion that is not acted upon in due time is deemed denied.

2. there was no competent evidence regarding petitioners’ identity on the attached Verification and Certification Against Forum Shopping as required by Section 12, Rule II of the 2004 Rules on Notarial Practice which now requires a photocopy of petitioners’ competent evidence of identity.

Accordingly, petitioners’ Petition for Review dated September 9, 2010 is hereby DISMISSED.

SO ORDERED.3

[Emphases supplied]

The Antecedents:

The controversy stemmed from a complaint for recovery of possession and declaration of ownership filed by the heirs of Amada Aguila-Zaulda, namely, Eleseo A. Zaulda and Rodolfo A. Zaulda (petitioners), against respondent Isaac Z. Zaulda (respondent), before the Municipal Circuit Trial Court, Banga-Libacao-Madalag, Banga, Aklan (MCTC).

The complaint4 alleged, among others, that petitioners were the legal heirs of the late Amada Aguila Zaulda; that the latter was one of the children and legal heirs of the late Teodulo Aguila and Dorotea Zolina (Spouses Aguila); that they were co-owners of a parcel of land, Lot 917-M, with an area of 4,263 square meters, situated in Barangay Guadalupe, Libacao, Aklan; that they acquired the subject property by inheritance from the Spouses Aguila per Deed of Extra-judicial Partition of Realty, dated November 2, 1993; that they have been in open, continuous and adverse possession of the subject property since time immemorial as evidenced by tax declarations for the years 1945, 1953, 1957, 1980, 1985, and 1990; that sometime in March 2000, respondent, through force and intimidation, forcibly entered the subject property and, there and then, cut and took with him bamboos and other forest/agricultural products; that on March 29, 2000, respondent, together with two (2) other unidentified persons, forcibly entered the subject property and, with threat and intimidation, constructed and built a house made of light material; and that petitioners demanded respondent to vacate and turn over the subject property to them but the latter refused to do so.

In his Answer,5 respondent averred that Erene Aguila Zaula (Erene), his predecessor-in-interest, was the actual and physical possessor of the subject land; that the property which the petitioners were claiming was donated to the Municipality of Libacao, Aklan, for school site purposes; that after

the donation, Tax Declaration No. 6636 covering the said land was cancelled, and a new Tax Declaration No. 8619 in the name of the Municipality of Libacao was issued and Tax Declaration No. 8618 for the remaining portion of 3,805 square meters was issued to Spouses Aguila; that in Tax Declaration No. 8618, it was erroneously entered therein that it contained 14,500 square meters when it should be only 3,805 square meters; that petitioners caused the survey of the land and instead of confining themselves to the remaining area of 3,805 square meters, they included part and portion of the property including the subject land which was owned by Erene; and that when the heirs of Erene found out that part of their land was included in the tax declaration issued to spouses Aguila, they filed a protest before the DENR.

On December 29, 2008, the MCTC rendered judgment,6 disposing as follows:

WHEREFORE, premises considered, the court finds preponderance of evidence in favor of plaintiffs (as regards Lots 1, 3 and 6) by:

1. Declaring plaintiffs the lawful owners entitled to possession of the Lots 1, 3 and 6 described in the Commissioner’s Report and Sketches being part and parcel of plaintiff’s inherited Lot 917;

2. Declaring Lot 1 as the portion owned by the heirs of Amada Zaulda and Lot 3 as the portion owned by the heirs of Coronacion A. Vidad by virtue of the Deed of Extra-judicial Partition executed by the heirs of spouses Teodulo and Dorotea Aguila; Lot 6 (portion of the barangay road) as included in plaintiffs’ inherited Lot 917;

3. Ordering the defendant Isaac Zaulda and intervenors Celedonia Aguila-Villorente and Danny A. Villorente, their assigns and privies to peacefully deliver possession of the above-mentioned lots to plaintiffs and/or their representatives;

4. Ordering the defendant Isaac Zaulda to remove the nipa houses he built found on Lot 3 at his expense.

Further, (with respect to Lots A and B):

5. Declaring Lots A and B described in the Commissioner’s Sketch found on page 164 of the record, as the combined area of Lot F-39 owned by parties’ predecessor Estanislao Aguila covered by tax declaration no. 011-0458 and are therefore co-owned by his heirs: plaintiffs, defendant, and intervenors included along with the rest of the children and descendants of Teodulo Aguila, Erene Aguila Zaulda and Jaime Aguila;

6. Ordering all parties to respect the co-ownership among them over Lots A and B until they execute an agreement of partition into three (3) equal parts representing the shares of Teodulo, Erene and Jaime.

No pronouncement as to costs.

SO ORDERED.7

On appeal, the Regional Trial Court, Branch 4, Kalibo, Aklan (RTC), partly modified the decision of the MCTC and declared respondent as the owner and possessor of lots 1 and 3, the dispositive portion reads:

WHEREFORE, judgment is hereby rendered as follows:

LEGFORMS 3C1415 | 33

1) Defendant Isaac Zaulda is declared, as reflected in the Commissioner’s Sketches and Reports, dated July 11, 2002 and March 4, 2004, the lawful owner and possessor of Lot No. 916 (shaded blue) and parts of Lot 1 and 3 (shaded green) as against the plaintiffs;

2) Paragraphs 5 and 6 of the dispositive portion of the decision appealed from is affirmed.

Costs against the plaintiffs.

SO ORDERED.8

Petitioner Eleseo Zaulda, the lone surviving heir of Amada Aguila-Zaulda, after his co-heir Rodolfo Zaulda passed away, filed a petition for review under Rule 42 of the 1997 Rules of Civil Procedure before the CA. In the assailed resolution, dated February 11, 2011, the CA dismissed the petition for being filed out of time and for lack of competent evidence on affiant’s identity on the attached verification and certification against forum shopping.

Petitioners’ motion for reconsideration was likewise denied in the assailed resolution, dated March 6, 2012.

Hence, petitioners filed this petition, raising the following issues:

1. Whether or not the CA erred in dismissing the petition for being filed out of time despite the motion for extension of time having been timely filed; and

2. Whether or not the CA erred in not passing upon the issue of whether or not the RTC erred in reversing the decision of the MCTC based on erroneous findings of facts and on mere suppositions and presumptions absent any evidence on the same.

On January 17, 2013, respondent filed his Comment,9 reiterating that no special and important reason exists to warrant the Court’s review of the assailed CA resolutions, the same having been issued in accord with law and supported by jurisprudence.

On June 6, 2013, petitioners filed their Reply,10 invoking the relaxation of the strict application of procedural rules in the interest of substantial justice. They submit that the petition should not have been dismissed based on technicalities because the appeal was instituted in accordance with the rules. They pray that the petition be given due course as they were deprived of their property without due process of law considering that the case was not properly ventilated upon, more so that the findings of fact of MCTC and RTC were different.

The Court’s Ruling:

Petition for review from the RTC to the CA is governed by Rule 42 of the Rules of Court, which provides:

Section 1. How appeal taken; time for filing. A party desiring to appeal from a decision of the Regional Trial Court rendered in the exercise of its appellate jurisdiction may file a verified petition for review with the Court of Appeals, paying at the same time to the clerk of said court the corresponding docket and other lawful fees, x x x. The petition shall be filed and served within fifteen (15) days from notice of the decision sought to be reviewed or of the denial of petitioner’s motion for new trial or reconsideration x x x. Upon proper motion x x x, the Court of Appeals may grant an additional period of fifteen (15) days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days. [Emphasis supplied]

In this case, the petitioners complied with the requirements laid down in the above quoted provision.

Records show that on March 10, 2010, petitioners timely filed a motion for reconsideration and/or new trial11 of the RTC decision (dated January 20, 2010, received by petitioners on February 25, 2010), but the same was denied in the RTC Order,12 dated August 4, 2010, copy of which was received by petitioners on August 10, 2010. Thus, they had until August 25, 2010 within which to file a petition for review pursuant to said Section 1, Rule 42.

On August 24, 2010, petitioners filed their Motion for Extension of Time to File Petition for Review before the CA, paying the docket and other lawful fees and deposit for costs and prayed for an additional period of fifteen (15) days from August 25, 2010 or until September 9, 2010, within which to file the said petition.

On September 9, 2010, they filed the Petition for Review.13

The Court notes that the petition for review before the CA was filed within the additional fifteen (15) day period prayed for in their motion for extension of time to file it, which was filed on time by registered mail. To repeat, the petition was filed on September 9, 2010, within the fifteen (15) day period requested in their motion for extension of time to file the petition.

As earlier stated, the Motion For Extension Of Time To File Petition For Review, which was filed through registered mail on August 24, 2010, was filed on time. It was physically in the appellate court’s possession long before the CA issued its Resolution on February 11, 2011, dismissing the petition for review for being filed out of time. The record shows that 1] the CA received the motion for extension of time to file petition for review on September 13, 2010; 2] the CA Division received the motion on September 14, 2010; and 3] the ponente’s office received it on January 5, 2011.

Indeed, there was a delay, but it was a delay that cannot be attributed at all to the petitioners. The almost four (4) months that lapsed before the records reached the ponente’s office was caused by the gross incompetence and inefficiency of the division personnel at the CA. It was the height of injustice for the CA to dismiss a petition just because the motion for extension reached the ponente’s office beyond the last date prayed for. Clearly, the petitioners were unreasonably deprived of their right to be heard on the merits because of the CA’s unreasonable obsession to reduce its load. In allowing the petitioners to be fatally prejudiced by the delay in the transmittal attributable to its inept or irresponsible personnel, the CA committed an unfortunate injustice.

The petitioners could not also be faulted that the motion for extension of time was received by the CA on September 13, 2010. The rules allow parties to file a pleading by registered mail.14 They are not required to ensure that it would be received by the court on or before the last day of the extended period prayed for. Though no party can assume that its motion for extension would be granted, any denial thereof should be reasonable.

Granting that the petition was filed late, substantial justice begs that it be allowed and be given due course. Indeed, the merits of petitioners’ cause deserve to be passed upon considering that the findings of the RTC were in complete contrast to the findings of the MCTC which declared petitioners as the lawful owners entitled to possession of the lots in question.

In Montajes v. People of the Philippines,15 petitioner therein, due to erroneous computation, filed his petition for review before the CA two (2) days after the expiration of the requested 15-day extension period. The Court held in that case that being a few days late in the filing of the petition for review did not automatically warrant its dismissal and where strong considerations of substantial justice were manifest in the petition, the stringent application of technical rules could be

LEGFORMS 3C1415 | 34

relaxed in the exercise of equity jurisdiction. It found that the circumstances obtaining in that case merited the liberal application of the rule absent any intention to cause delay.

As regards the competent identity of the affiant in the Verification and Certification, records16 show that he proved his identity before the notary public through the presentation of his Office of the Senior Citizen (OSCA) identification card. Rule II, Sec. 12 of the 2004 Rules on Notarial Practice requires a party to the instrument to present competent evidence of identity. Sec. 12, as amended, provides:

Sec. 12. Competent Evidence of Identity. – The phrase "competent evidence of identity" refers to the identification of an individual based on:

(a) at least one current identification document issued by an official agency bearing the photograph and signature of the individual, such as but not limited to, passport, driver’s license, Professional Regulations Commission ID, National Bureau of Investigation clearance, police clearance, postal ID, voter’s ID, Barangay certification, Government Service Insurance System (GSIS) e-card, Social Security System (SSS) card, PhilHealth card, senior citizen card, Overseas Workers Welfare Administration (OWWA) ID, OFW ID, seaman’s book, alien certificate of registration/immigrant certificate of registration, government office ID, certificate from the National Council for the Welfare of Disabled Persons (NCWDP), Department of Social Welfare and Development certification [as amended by A.M. No. 02-8-13-SC dated February 19, 2008]; or

(b) the oath or affirmation of one credible witness not privy to the instrument, document or transaction who is personally known to the notary public and who personally knows the individual, or of two credible witnesses neither of whom is privy to the instrument, document or transaction who each personally knows the individual and shows to the notary public documentary identification.

It is clear from the foregoing provisions that a senior citizen card is one of the competent identification cards recognized in the 2004 Rules on Notarial Practice. For said reason, there was compliance with the requirement. Contrary to the perception of the CA, attachment of a photocopy of the identification card in the document is not required by the 2004 Rules on Notarial Practice. Even A.M. No. 02-8-13-SC, amending Section 12 thereof, is silent on it. Thus, the CA’s dismissal of the petition for lack of competent evidence on the affiant’s identity on the attached verification and certification against forum shopping was without clear basis.

Even assuming that a photocopy of competent evidence of identity was indeed required, non-attachment thereof would not render the petition fatally defective. It has been consistently held17 that verification is merely a formal, not jurisdictional, requirement, affecting merely the form of the pleading such that non-compliance therewith does not render the pleading fatally defective. It is simply intended to provide an assurance that the allegations are true and correct and not a product of the imagination or a matter of speculation, and that the pleading is filed in good faith. The court may in fact order the correction of the pleading if verification is lacking or it may act on the pleading although it may not have been verified, where it is made evident that strict compliance with the rules may be dispensed so that the ends of justice may be served. The Court, in Altres v. Empleo,18 issued guidelines based on previous jurisprudential pronouncements respecting non-compliance with the requirements on, or submission of a defective, verification as well as on certification against forum shopping, as follows:

x x x

2) As to verification, non-compliance therewith or a defect therein does not necessarily render the pleading fatally defective. The court may order its submission or correction or act on the pleading if

the attending circumstances are such that strict compliance with the Rule may be dispensed with in order that the ends of justice may be served thereby.

x x x.19

Again, granting arguendo that there was non-compliance with the verification requirement, the rule is that courts should not be so strict about procedural lapses which do not really impair the proper administration of justice. After all, the higher objective of procedural rule is to ensure that the substantive rights of the parties are protected. Litigations should, as much as possible, be decided on the merits and not on technicalities. Every party-litigant must be afforded ample opportunity for the proper and just determination of his case, free from the unacceptable plea of technicalities.20

In Coca-Cola Bottlers v. De la Cruz,21 where the verification was marred only by a glitch in the evidence of the identity of the affiant, the Court was of the considered view that, in the interest of justice, the minor defect can be overlooked and should not defeat the petition.

The reduction in the number of pending cases is laudable, but if it would be attained by precipitate, if not preposterous, application of technicalities, justice would not be served. The law abhors technicalities that impede the cause of justice. The court's primary duty is to render or dispense justice. "It is a more prudent course of action for the court to excuse a technical lapse and afford the parties a review of the case on appeal rather than dispose of the case on technicality and cause a grave injustice to the parties, giving a false impression of speedy disposal of cases while actually resulting in more delay, if not miscarriage of justice."22 [Italicization supplied]

What should guide judicial action is the principle that a party-litigant should be given the fullest opportunity to establish the merits of his complaint or defense rather than for him to lose life, liberty, honor, or property on technicalities. The rules of procedure should be viewed as mere tools designed to facilitate the attainment of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be eschewed.23 At this juncture, the Court reminds all members of the bench and bar of the admonition in the often-cited case of Alonso v. Villamor:24

Lawsuits, unlike duels, are not to be won by a rapier's thrust.1âwphi1 Technicality, when it deserts its proper office as an aid to justice and becomes its great hindrance and chief enemy, deserves scant consideration from courts. There should be no vested rights in technicalities.

WHEREFORE, the petition is GRANTED. The February 11, 2011 and March 6, 2012 Resolutions of the Court of Appeals in CA-G.R. SP No. 05379 are SET ASIDE.

Accordingly, the Court GRANTS petitioners' Motion For Extension Of Time To File Petition For Review filed with the Cou1i of Appeals and gives due course to their Petition for Review. The case is REMANDED to the Court of Appeals for decision on the merits of the petition.

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14) HEIRS OF SARILI V. LAGROSA, G.R. NO. 193517, 15 JANUARY 2014

Assailed in this petition for review on Certiorari1 are the Decision2 dated May 20, 2010 and Resolution3 dated August 26, 2010 of the Court of Appeals (CA) in CA-G.R. CV No. 76258 which: (a) set aside the Decision4 dated May 27, 2002 of the Regional Trial Court of Caloocan City, Branch 131 (RTC) in Civil Case No. C-19152; (b) cancelled Transfer Certificate of Title (TCT) No. 2622185 in the name of Victorino Sarili (Victorino) married to Isabel Amparo (Sps. Sarili); (c) reinstated TCT No. 559796 in the name of respondent Pedro F. Lagrosa (respondent); and (d) awarded respondent moral damages, attorney’s fees and litigation expenses.

The Facts

On February 17, 2000, respondent, represented by his attorney-in-fact Lourdes Labios Mojica (Lourdes) via a special power of attorney dated November 25, 19997 (November 25, 1999 SPA), filed a complaint8 against Sps. Sarili and the Register of Deeds of Caloocan City (RD) before the RTC, alleging, among others, that he is the owner of a certain parcel of land situated in Caloocan City covered by TCT No. 55979 (subject property) and has been religiously paying the real estate taxes therefor since its acquisition on November 29, 1974. Respondent claimed that he is a resident of California, USA, and that during his vacation in the Philippines, he discovered that a new certificate of title to the subject property was issued by the RD in the name of Victorino married to Isabel Amparo (Isabel), i.e., TCT No. 262218, by virtue of a falsified Deed of Absolute Sale9 dated February 16, 1978 (February 16, 1978 deed of sale) purportedly executed by him and his wife, Amelia U. Lagrosa (Amelia). He averred that the falsification of the said deed of sale was a result of the fraudulent, illegal, and malicious acts committed by Sps. Sarili and the RD in order to acquire the subject property and, as such, prayed for the annulment of TCT No. 262218, and that Sps. Sarili deliver to him the possession of the subject property, or, in the alternative, that Sps. Sarili and the RD jointly and severally pay him the amount of P1,000,000.00, including moral damages as well as attorney’s fees.10

In their answer,11 Sps. Sarili maintained that they are innocent purchasers for value, having purchased the subject property from Ramon B. Rodriguez (Ramon), who possessed and presented a Special Power of Attorney12 (subject SPA) to sell/dispose of the same, and, in such capacity, executed a Deed of Absolute Sale13 dated November 20, 1992 (November 20, 1992 deed of sale) conveying the said property in their favor. In this relation, they denied any participation in the preparation of the February 16, 1978 deed of sale, which may have been merely devised by the "fixer" they hired to facilitate the issuance of the title in their names.14 Further, they interposed a counterclaim for moral and exemplary damages, as well as attorney’s fees, for the filing of the baseless suit.15

During the pendency of the proceedings, Victorino passed away16 and was substituted by his heirs, herein petitioners.17

The RTC Ruling

On May 27, 2002, the RTC rendered a Decision18 finding respondent’s signature on the subject SPA as "the same and exact replica"19 of his signature in the November 25, 1999 SPA in favor of Lourdes.20 Thus, with Ramon’s authority having been established, it declared the November 20, 1992 deed of sale21 executed by the latter as "valid, genuine, lawful and binding"22 and, as such, had validly conveyed the subject property in favor of Sps. Sarili. It further found that respondent "acted with evident bad faith and malice" and was, therefore, held liable for moral and exemplary damages.23 Aggrieved, respondent appealed to the CA.

The CA Ruling

In a Decision24 dated May 20, 2010, the CA granted respondent’s appeal and held that the RTC erred in its ruling since the November 20, 1992 deed of sale, which the RTC found "as valid and genuine," was not the source document for the transfer of the subject property and the issuance of TCT No. 262218 in the name of Sps. Sarili25 but rather the February 16, 1978 deed of sale, the fact of which may be gleaned from the Affidavit of Late Registration26 executed by Isabel (affidavit of Isabel). Further, it found that respondent w as "not only able to preponderate his claim over the subject property, but [has] likewise proved that his and his wife’s signatures in the [February 16, 1978 deed of sale] x x x were forged."27 "[A] comparison by the naked eye of the genuine signature of [respondent] found in his [November 25, 1999 SPA] in favor of [Lourdes], and those of his falsified signatures in [the February 16, 1978 deed of sale] and [the subject SPA] shows that they are not similar."28 It also observed that "[t]he testimony of [respondent] denying the authenticity of his purported signature with respect to the [February 16, 1978 deed of sale] was not rebutted x x x."29 In fine, the CA declared the deeds of sale dated February 16, 1978 and November 20, 1992, as well as the subject SPA as void, and consequently ordered the RD to cancel TCT No. 262218 in the name of Victorino married to Isabel, and consequently reinstate TCT No. 55979 in respondent’s name. Respondent’s claims for moral damages and attorney’s fees/litigation expenses were also granted by the CA.30

Dissatisfied, petitioners moved for reconsideration which was, however, denied in a Resolution31 dated August 26, 2010, hence, the instant petition.

The Issues Before the Court

The main issue in this case is whether or not there was a valid conveyance of the subject property to Sps. Sarili. The resolution of said issue would then determine, among others, whether or not: (a) TCT No. 262218 in the name of Victorino married to Isabel should be annulled; and (b) TCT No. 55979 in respondent’s name should be reinstated.

The Court’s Ruling

The petition lacks merit.

Petitioners essentially argue that regardless of the fictitious February 16, 1978 deed of sale, there was still a valid conveyance of the subject property to Sps. Sarili who relied on the authority of Ramos (as per the subject SPA) to sell the same. They posit that the due execution of the subject SPA between respondent and Ramon and, subsequently, the November 20, 1992 deed of sale between Victorino and Ramon were duly established facts and that from the authenticity and genuineness of these documents, a valid conveyance of the subject land from respondent to Victorino had leaned upon.32

The Court is not persuaded.

It is well-settled that even if the procurement of a certificate of title was tainted with fraud and misrepresentation, such defective title may be the source of a completely legal and valid title in the hands of an innocent purchaser for value. Where innocent third persons, relying on the correctness of the certificate of title thus issued, acquire rights over the property, the court cannot disregard such rights and order the total cancellation of the certificate. The effect of such an outright cancellation would be to impair public confidence in the certificate of title, for everyone dealing with property registered under the Torrens system would have to inquire in every instance whether the title has been regularly or irregularly issued. This is contrary to the evident purpose of the law.33

The general rule is that every person dealing with registered land may safely rely on the correctness of the certificate of title issued therefor and the law will in no way oblige him to go beyond the

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certificate to determine the condition of the property. Where there is nothing in the certificate of title to indicate any cloud or vice in the ownership of the property, or any encumbrance thereon, the purchaser is not required to explore further than what the Torrens Title upon its face indicates in quest for any hidden defects or inchoate right that may subsequently defeat his right thereto.34

However, a higher degree of prudence is required from one who buys from a person who is not the registered owner, although the land object of the transaction is registered. In such a case, the buyer is expected to examine not only the certificate of title but all factual circumstances necessary for him to determine if there are any flaws in the title of the transferor.35 The buyer also has the duty to ascertain the identity of the person with whom he is dealing with and the latter’s legal authority to convey the property.36

The strength of the buyer’s inquiry on the seller’s capacity or legal authority to sell depends on the proof of capacity of the seller. If the proof of capacity consists of a special power of attorney duly notarized, mere inspection of the face of such public document already constitutes sufficient inquiry. If no such special power of attorney is provided or there is one but there appears to be flaws in its notarial acknowledgment, mere inspection of the document will not do; the buyer must show that his investigation went beyond the document and into the circumstances of its execution.37

In the present case, it is undisputed that Sps. Sarili purchased the subject property from Ramos on the strength of the latter’s ostensible authority to sell under the subject SPA. The said document, however, readily indicates flaws in its notarial acknowledgment since the respondent’s community tax certificate (CTC) number was not indicated thereon. Under the governing rule on notarial acknowledgments at that time,38 i.e., Section 163(a) of Republic Act No. 7160, otherwise known as the "Local Government Code of 1991," when an individual subject to the community tax acknowledges any document before a notary public, it shall be the duty of the administering officer to require such individual to exhibit the community tax certificate.39 Despite this irregularity, however, Sps. Sarili failed to show that they conducted an investigation beyond the subject SPA and into the circumstances of its execution as required by prevailing jurisprudence. Hence, Sps. Sarili cannot be considered as innocent purchasers for value.

The defective notarization of the subject SPA also means that the said document should be treated as a private document and thus examined under the parameters of Section 20, Rule 132 of the Rules of Court which provides that "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 x x x." Settled is the rule that a defective notarization will strip the document of its public character and reduce it to a private instrument, and the evidentiary standard of its validity shall be based on preponderance of evidence.40

The due execution and authenticity of the subject SPA are of great significance in determining the validity of the sale entered into by Victorino and Ramon since the latter only claims to be the agent of the purported seller (i.e., respondent). Article 1874 of the Civil Code provides that "[w]hen a sale of a piece of land or any interest therein is through an agent, the authority of the latter shall be in writing; otherwise, the sale shall be void." In other words, if the subject SPA was not proven to be duly executed and authentic, then it cannot be said that the foregoing requirement had been complied with; hence, the sale would be void.

After a judicious review of the case, taking into consideration the divergent findings of the RTC and the CA on the matter,41 the Court holds that the due execution and authenticity of the subject SPA were not sufficiently established under Section 20, Rule 132 of the Rules of Court as above-cited.

While Ramon identified the signature of respondent on the subject SPA based on his alleged familiarity with the latter’s signature,42 he, however, stated no basis for his identification of the signatures of respondent’s wife Amelia and the witness, Evangeline F. Murral,43 and even failed to identify the other witness,44 who were also signatories to the said document. In other words, no evidence was presented to authenticate the signatures of the other signatories of the subject SPA outside from respondent.45

Besides, as the CA correctly observed, respondent’s signature appearing on the subject SPA is not similar46 to his genuine signature appearing in the November 25, 1999 SPA in favor of Lourdes,47 especially the signature appearing on the left margin of the first page.48

Unrebutted too is the testimony of respondent who, during trial, attested to the fact that he and his wife, Amelia, had immigrated to the USA since 1968 and therefore could not have signed the subject SPA due to their absence.49

Further, records show that the notary public, Atty. Ramon S. Untalan, failed to justify why he did not require the presentation of respondent’s CTC or any other competent proof of the identity of the person who appeared before him to acknowledge the subject SPA as respondent’s free and voluntary act and deed despite the fact that he did not personally know the latter and that he met him for the first time during the notarization.50 He merely relied on the representations of the person before him51 and the bank officer who accompanied the latter to his office,52 and further explained that the reason for the omission of the CTC was "because in [a] prior document, [respondent] has probably given us already his residence certificate."53 This "prior document," was not, however, presented during the proceedings below, nor the CTC number ever identified.

Thus, in light of the totality of evidence at hand, the Court agrees with the CA’s conclusion that respondent was able to preponderate his claims of forgery against the subject SPA.54 In view of its invalidity, the November 20, 1992 sale relied on by Sps. Sarili to prove their title to the subject property is therefore void.1âwphi1

At this juncture, it is well to note that it was, in fact, the February 16, 1978 deed of sale which – as the CA found – was actually the source of the issuance of TCT No. 262218. Nonetheless, this document was admitted to be also a forgery.55 Since Sps. Sarili’s claim over the subject property is based on forged documents, no valid title had been transferred to them (and, in turn, to petitioners). Verily, when the instrument presented is forged, even if accompanied by the owner’s duplicate certificate of title, the registered owner does not thereby lose his title, and neither does the assignee in the forged deed acquire any right or title to the property.56 Accordingly, TCT No. 262218 in the name of Victorino married to Isabel should be annulled, while TCT No. 55979 in the name of respondent should be reinstated.

Anent the award of moral damages, suffice it to say that the dispute over the subject property had caused respondent serious anxiety, mental anguish and sleepless nights, thereby justifying the aforesaid award.57 Likewise, since respondent was constrained to engage the services of counsel to file this suit and defend his interests, the awards of attorney’s fees and litigation expenses are also sustained.58

The Court, however, finds a need to remand the case to the court a quo in order to determine the rights and obligations of the parties with respect to the house Sps. Sarili had built59 on the subject property in bad faith in accordance with Article 449 in relation to Articles 450, 451, 452, and the first paragraph of Article 546 of the Civil Code which respectively read as follows:

ART. 449. He who builds, plants or sows in bad faith on the land of another, loses what is built, planted or sown without right to indemnity.

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ART. 450. The owner of the land on which anything has been built, planted or sown in bad faith may demand the demolition of the work, or that the planting or sowing be removed, in order to replace things in their former condition at the expense of the person who built, planted or sowed; or he may compel the builder or planter to pay the price of the land, and the sower the proper rent.

ART. 451. In the cases of the two preceding articles, the landowner is entitled to damages from the builder, planter or sower.

ART. 452. The builder, planter or sower in bad faith is entitled to reimbursement for the necessary expenses of preservation of the land.

x x x x

ART. 546. Necessary expenses shall be refunded to every possessor; but only the possessor in good faith may retain the thing until he has been reimbursed therefor. (Emphases and underscoring supplied)

x x x x

To be deemed a builder in good faith, it is essential that a person asserts title to the land on which he builds, i.e. , that he be a possessor in concept of owner, and that he be unaware that there exists in his title or mode of acquisition any flaw which invalidates it.60 Good faith is an intangible and abstract quality with no technical meaning or statutory definition, and it encompasses, among other things, an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage. It implies honesty of intention, and freedom from knowledge of circumstances which ought to put the holder upon inquiry.61 As for Sps. Sarili, they knew – or at the very least, should have known – from the very beginning that they were dealing with a person who possibly had no authority to sell the subject property considering the palpable irregularity in the subject SPA’s acknowledgment. Yet, relying solely on said document and without any further investigation on Ramos’s capacity to sell Sps. Sarili still chose to proceed with its purchase and even built a house thereon. Based on the foregoing it cannot be seriously doubted that Sps. Sarili were actually aware of a flaw or defect in their title or mode of acquisition and have consequently built the house on the subject property in bad faith under legal contemplation. The case is therefore remanded to the court a quo for the proper application of the above-cited Civil Code provisions.

WHEREFORE, the petition is DENIED. The Decision dated May 20, 2010 and Resolution dated August 26, 2010 of the Court of Appeals in CA-G.R. CV No. 76258 are AFFIRMED. However the case is REMANDED to the court a quo for the proper application of Article 449 in relation to Articles 450 451 452 and the first paragraph of Article 546 of the Civil Code with respect to the house Spouses Victorino Sarili and Isabel Amparo had built on the subject property as herein discussed.

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15) MARIA V. CORTEZ, A.C. NO. 7880, 11 APRIL 2012

This is an administrative complaint1 filed by William Hector Maria (William) against respondent Atty. Wilfredo R. Cortez for having notarized a Special Power of Attorney (SPA) without verifying the authenticity of the signatures contained therein in violation of the Notarial Law.

The factual antecedents are as follows:

Complainant William is a citizen of New Zealand, and married to Ernita Villanueva-Maria (Ernita) from Bio, Tagudin, Ilocos Sur. Sometime in September 2005, the complainant and his wife Ernita (Spouses Maria) took a vacation in Ilocos Sur from Australia. They met Emmanuel Biteng (Emmanuel) and Ethel Biteng (Ethel), collectively called as Spouses Biteng, who represented themselves as caretakers of certain parcels of land purportedly for sale and specifically covered by Original Certificates of Title (OCT) Nos. P-69632 and P-69595, situated in Sevilla and Paratong, Ilocos Sur, respectively. Taking interest over the same, Spouses Maria had the metes and bounds surveyed and came to know that the properties were separately registered under the names of Emmanuel’s aunts namely: Gundaway Biteng (Gundaway) and Namnama B. Alberto (Namnama), and his late father Pascual Biteng (Pascual).

Being confronted with the issue on ownership, Emmanuel presented an SPA allegedly signed by Gundaway and Namnama, appointing him as their attorney-in-fact in all transactions pertaining to the subject properties. The SPA was notarized by the respondent and entered in his Notarial Register as Document No. 1553, Page No. 313, Book No. XV, Series of 2005.2

The complainant, however, doubted the authenticity of the document as it appeared to be a mere photocopy. Besides, he learned that both Gundaway and Namnama were living abroad, who allegedly never came home to execute an SPA in favor of Emmanuel. Spouses Biteng, however, promised to send Spouses Maria a duly signed SPA notarized in the USA. Relying on their word, Ernita affixed her signature on the Deed of Sale (as to the land owned by Gundaway and Namnama) and Deed of Adjudication with Sale (as to the land owned by the late Pascual).

When Spouses Maria were back in Australia, they received a communication from the Philippines together with a General Power of Attorney (GPA) signed by Gundaway and Namnama executed in Daly City, California, USA; but said document was allegedly not authenticated by the Philippine Embassy.

In the early part of 2006, Spouses Maria found out that Transfer Certificates of Title (TCTs) over the subject properties have already been issued in their names but were in the possession of the Spouses Biteng who refused to deliver to them due to some misunderstanding. This prompted the Spouses Maria to get in touch with Gundaway and Namnama in the USA who told them that they (Gundaway and Namnana) did not execute any SPA in favor of Emmanuel.

On April 4, 2006, the complainant came back to the Philippines and reviewed all the pertinent documents involved in the sale of the subject properties and noticed that they were all notarized by the respondent. Hence, the complainant filed the instant administrative case which prayed for the respondent’s suspension as a notary public and for his disbarment for violating his sworn duty as a lawyer.

In his Answer,3 the respondent asserted that he had no active participation in the sale nor did he exert any influence over the parties into agreeing to said sale; that his two well-trusted secretaries carefully scrutinized every document, specifically the identities of the parties involved and the authenticity of their signatures, before they were brought to him for his notarial signature.

The respondent also averred that the SPA he notarized was not the one used in the registration of the subject properties, since it was replaced with another one upon the insistence of Spouses Maria, who eventually signed the two (2) Deeds of Sale on the same day. He even asseverated that the complainant should not have allowed his wife to sign the two Deeds of Sale if he doubted the authenticity of the SPA. More importantly, the respondent stressed that he was merely being implicated in the feud between the parties regarding the selling price of the subject properties. The parties have settled their differences and the titles of the land were finally turned over to Spouses Maria. In support thereof, he presented the following documents, to wit: (1) Affidavit executed by Emmanuel stating that Spouses Maria refused to pay the price they agreed upon and did threaten to declare the transaction illegal by filing the instant administrative complaint against the respondent; (2) OCTs Nos. P-69632,4 P-695955 and P-696356 over the subject properties, issued in the name of Ernita, married to William;7 and (3) the Joint Affidavit8 of his secretaries attesting to the respondent’s integrity as a member of the Integrated Bar of the Philippines (IBP). The respondent, thus, prayed for the dismissal of the complaint.

The instant case was referred to the IBP for investigation, report and recommendation.

The Investigating Commissioner set the case for mandatory conference on August 4, 2006 which was reset to September 8, 2006. However, only the respondent was present. In an Order9 dated September 8, 2006, the IBP Commission on Bar Discipline terminated the conference and ordered the parties to submit their respective Position Papers.

In his report,10 Investigating Commissioner Acerey C. Pacheco found the respondent administratively liable for having notarized the SPA in the absence of the alleged affiants and without knowing whether or not the signatures appearing therein belong to the supposed affiants. As it appeared, the signatures were falsified considering that Gundaway and Namnama were not aware of such SPA. The Investigating Commissioner further stated that it was of no moment that such SPA was not utilized in registering the sale as alleged by the respondent. The mere fact that the respondent notarized such SPA with an acknowledgement that these affiants have personally appeared before him as a Notary Public when in fact, they did not, makes the respondent administratively liable. Thus, the Investigating Commissioner recommended that the respondent be reprimanded and denied commission as a notary public for a period of one (1) year.11

The IBP Board of Governors adopted the report and recommendation and issued Resolution No. XVIII-2007-275 dated November 2, 2007 which states:

RESOLVED to ADOPT and APPROVE, as it is hereby unanimously ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and for respondent’s violation of the Rules on Notarial Practice, Atty. Wilfredo R. Cortez is hereby REPRIMANDED and DISQUALIFIED from being Commissioned as Notary Public for one (1) year.12

A motion for reconsideration was promptly filed by the respondent, pleading that the penalty of disqualification from being commissioned as notary public for one year was too harsh. He reiterated that he was a victim of circumstances considering that the instant administrative case merely arose from the misunderstanding between the parties. The respondent alleged that he has not committed any fraud, dishonesty or deliberate injustice to anyone.1âwphi1 For the past twenty years (20) engaging in notarial works, he has not committed any kind of misconduct which may destroy his honor and reputation as a member of the legal profession.13

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In Resolution No. XIX-2011-399 dated June 26, 2011, the IBP Board of Governors denied the respondent’s motion for reconsideration which was duly noted by the Court in a resolution issued on October 12, 2011.

The findings of the IBP are well-taken.

A notary public is empowered to perform a variety of notarial acts, most common of which are the acknowledgement and affirmation of documents or instruments. In the performance of these notarial acts, the notary public must be mindful of the significance of the notarial seal affixed on documents. The notarial seal converts a document from a private to a public instrument, after which it may be presented as evidence without need for proof of its genuineness and due execution. Thus, notarization should not be treated as an empty, meaningless or routinary act.14

Rule IV, Section 2(b) of the 2004 Rules on Notarial Practice reads:

Section 2. Prohibitions –

x x x x

(b) A person shall not perform a notarial act if the person involved as signatory to the instrument or document –

(1) is not in the notary’s presence personally at the time of the notarization; and

(2) is not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by these Rules.

In the instant case, it was clearly established that the respondent notarized the subject SPA without having Gundaway and Namnama personally appear before him as required by law. In his Answer, he stated that he merely relies on his two secretaries in scrutinizing all contents of documents including the authenticity of its signatories before the documents are brought to him for his notarial signature. This was what actually transpired with regard to the subject SPA when Emmanuel went to the respondent’s office to have the SPA notarized. The secretaries were familiar with Emmanuel for being a long time Barangay Chairman. With the secretaries’ assurance that they knew Emmanuel in person, the respondent affixed his notarial signature on the SPA without even requiring the physical presence of Gundaway and Namnama whose names appear as signatories on the SPA.

The respondent’s excuse that the SPA was never used or has been replaced during the registration of the subject lands is of no moment. The fact remains that the SPA was notarized without complying with the requirements of the law.

It should be noted that a notary public’s function should not be trivialized and a notary public must discharge his powers and duties which are impressed with public interest, with accuracy and fidelity.15 A notary public exercises duties calling for carefulness and faithfulness. Notaries must inform themselves of the facts they certify to; most importantly, they should not take part or allow themselves to be part of illegal transactions.16

We agree with the IBP that the respondent’s Answer to the complaint, is virtually an admission that he failed to exercise the due diligence required of him in the performance of the duties of notary public. Such negligence can not be countenanced and definitely warrants sanction from the Court. In imposing the penalty, the Court is mindful that removal from the Bar should not really be decreed when any punishment less severe - reprimand, temporary suspension or fine - would accomplish the end desired.17

Considering the circumstances of the case, particularly the absence of bad faith and the fact that this is the first infraction lodged against him for the past 20 years, the Court finds that a suspension of six (6) months as notary public would suffice. The respondent, and for that matter, all notaries public, are hereby cautioned to be very careful and diligent in ascertaining the true identities of the parties executing the document before them, especially when it involves disposition of a property, as this Court will deal with such cases more severely in the future.18

WHEREFORE, premises considered, respondent Atty. Wilfredo R. Cortez is hereby REPRIMANDED and DISQUALIFIED from being commissioned as Notary Public for six (6) months.

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16) NEVADA V. CASUGA, A.C. NO. 7591, 20 MARCH 2012

Corazon T. Nevada (Nevada) seeks the disbarment of Atty. Rodolfo D. Casuga (Casuga) for alleged violation of his lawyer’s oath and the 2004 Rules on Notarial Practice (Notarial Rules).

The Facts

Nevada is the principal stockholder of C.T. Nevada & Sons, Inc., a family corporation which operates the Mt. Crest Hotel located at Legarda Road, Baguio City (the Hotel).

In her affidavit-complaint[1] dated June 28, 2007, with annexes, Nevada alleges that she and Casuga are members of the One in Jesus Christ Church, a religious group which counts the latter as one of its “elders.” According to Nevada, she has allowed the use of one of the Hotel’s functions rooms for church services. And in time, Casuga was able to gain her trust and confidence.

Nevada further alleges that unbeknownst to her, Casuga, sometime in 2006, started to represent himself as the administrator of the Hotel. In fact, on March 1, 2006, he entered into a contract of lease[2] with a certain Jung Jong Chul (Chul) covering an office space in the Hotel. Notably, Casuga signed the lease contract over the printed name of one Edwin T. Nevada and notarized the document himself.

Annex “B”[3] of the affidavit-complaint is a notarized letter dated May 15, 2007, wherein Chul attested that he gave Casuga, upon contract signing, the amount of ninety thousand pesos (PhP 90,000) as rental deposit for the office space. The amount thus deposited, so Nevada claims, was never turned over to her or to C.T. Nevada & Sons, Inc.

Nevada adds that, in the course of their acquaintanceship, Casuga was able to acquire from her several pieces of jewelry: a ¾ K diamond solitaire ring, earrings with three (3) diamonds each and a ring with three (3) diamonds, with an aggregate value of three hundred thousand pesos (PhP 300,000), and a solid gold Rolex watch with diamond dials valued at twelve thousand US dollars (USD 12,000). Casuga took possession of the valuables purportedly with the obligation of selling them and to remit any proceeds to Nevada. However, despite repeated demands by Nevada for Casuga to return the valuables or otherwise remit the proceeds of the sale, no jewelry or money was ever returned.

In compliance with a directive from the Court, Casuga submitted an Affidavit[4] dated December 5, 2007, as comment on the administrative complaint. In it, Casuga claims that Nevada informally instituted him as the administrator of the Hotel in a limited capacity but denied receiving the PhP 90,000 from Chul. With regard to the pieces of jewelry and the Rolex watch, Casuga stated that Nevada actually pawned them in a pawnshop and that she later asked his wife to redeem them using their own money. Thereafter, Nevada asked Casuga’s wife to sell the valuables and reimburse herself from the proceeds of the sale.

By Resolution of July 2, 2008, the Court, thru the Office of the Bar Confidant, referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation/decision. The case was docketed as CBD Case No. 7591 entitled Corazon T. Nevada v. Atty. Rodolfo D. Casuga.

On September 22, 2008, the IBP Commission on Bar Discipline (CBD), thru Commisioner Norberto B. Ruiz, issued and sent out a Notice of Mandatory Conference directing the parties to appear before it on October 23, 2008. On that date, only Nevada showed up, prompting the designated commissioner to reset the conference to November 25, 2008, with a warning that he, Casuga, will be declared in default and the case submitted for resolution should he again fail to appear. November 25, 2008 came, but only Nevada was present at the conference. Thus, CBD Case No. 7591 was submitted for resolution on the basis of Nevada’s Position Paper dated December 3, 2008 and the evidence she submitted consisting of, among others, twenty-one (21) official rental receipts Casuga issued to at least two (2) lessors of the Hotel.

Results of the Investigation

In its Report and Recommendation[5] dated January 14, 2009, the IBP CBD found Casuga guilty of the charges against him, disposing as follows:

WHEREFORE, premises considered it is hereby recommended that Casuga be suspended for one (1) year for gross misconduct, violation of the notarial law and infidelity in the custody of monies, jewelries and a Rolex watch which pertain to the complainant and the family corporation.

The IBP Board of Governors later adopted and approved the CBD’s Report and Recommendation, with modification, as indicated in Resolution No. XIX-2010-461 dated August 28, 2010, to wit:

RESOLVED to ADOPT and APPROVE, as it is hereby unanimously ADOPTED and APPROVED, with modification, the Report and Recommendation of the Investigating Commissioner of the above entitled case x x x; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering Casuga’s violation of Canon 16 of the Code of Professional Responsibility, for misappropriation of his client[’s] funds and jewelries, for violation of the Notarial Law when he signed as a party to a lease contract and notarized the same and also taking into consideration the gravity of the offense committed, Atty. Rodolfo D. Casuga is hereby SUSPENDED from the practice of law for four (4) years. In addition, Atty. Casuga is Suspended or Disqualified from reappointment as Notary Public for two (2) years and Ordered to Return the amount of P90,000.00, jewelries amounting to P300,000.00 and the Rolex watch valued at $12,000.00 or its equivalent to Mr. Jung Jong Chul, otherwise his Suspension shall continue.

The CBD Report and Recommendation and a copy of Resolution No. XIX-2010-461 were subsequently forwarded to the Court along with the records of the case.In the meantime, Nevada, upon receipt of a copy of Resolution No. XIX-2010-461, wrote and asked the IBP Board of Governors to rectify said resolution. Instead of the return of the amount of PhP 90,000, the jewelry and the Rolex watch or their monetary value to Chul, as directed in the resolution, Nevada requested the return to be made in her favor. The letter-request of Nevada had remained not acted upon owing obviously to the fact that the records of the case have been transmitted to the Court in the interim.

The Issues

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The principal but simple issues in this case pivot on the guilt of Casuga for the charges detailed or implied in the basic complaint; and the propriety of the return to Nevada of the items, or their money value, and the amount subject of the case.

The Court’s Ruling

We agree with the CBD’s inculpatory findings, as endorsed by the IBP Board of Governors, and the recommended upgrading of penalties, as shown in Resolution No. XIX-2010-461, but subject to the modification as shall be discussed.

Casuga is guilty of gross misconduct for misrepresenting himself

In re Horrilleno[6] defined “gross misconduct” in the following wise:

The grounds for removal of a judge of first instance under Philippine law are two: (1) Serious misconduct and (2) inefficiency. The latter ground is not involved in these proceedings. As to the first, the law provides that “sufficient cause” must exist in the judgment of the Supreme Court involving “serious misconduct.” The adjective is “serious;” that is, important, weighty, momentous, and not trifling. The noun is “misconduct;” that is, a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by the public officer. The word “misconduct” implies a wrongful intention and not a mere error or judgment. For serious misconduct to exist, there must be reliable evidence showing that the judicial acts complained of were corrupt or inspired by an intention to violate the law, or were in persistent disregard of well-known legal rules. (Lawlor vs. People [1874], 74 Ill., 228; Citizens' Insurance Co. vs. Marsh [1861], 41 Pa., 386; Miller vs. Roby [1880], 9 Neb., 471; Smith vs. Cutler [1833], 10 Wend. [N.Y.], 590; U.S. vs. Warner [1848], 28 Fed. Cas. No. 16643; In re Tighe [1904], 89 N.Y. Supra., 719.) (Emphasis supplied.)

The above definition was to be reiterated in Ajeno v. Judge Inserto,[7] where the Court wrote:

In the case of In re [Horrilleno], 43 Phil. 212, this Court previously ruled that “For serious misconduct to exist, there must be reliable evidence showing that the judicial acts complained of were corrupt or inspired by an intention to violate the law, or were in persistent disregard of well-known legal rules.”

Of similar tenor is the definition provided in Jamsani-Rodriguez v. Ong:[8]

x x x The respondent Justices were not liable for gross misconduct – defined as the transgression of some established or definite rule of action, more particularly, unlawful behavior or gross negligence, or the corrupt or persistent violation of the law or disregard of well-known legal rules x x x.

Respondent Casuga represented himself as a duly-authorized representative of Nevada when in fact he was not. Casuga admitted signing the subject contract of lease, but claimed that he was duly authorized to do so by Nevada. However, Casuga failed to adduce an iota of evidence to prove that he was indeed so authorized. One who alleges the existence of an agency relationship must prove such fact. The Court ruled in Yun Kwan Byung v. Philippine Amusement and Gaming Corporation,[9]

“The law makes no presumption of agency and proving its existence, nature and extent is incumbent upon the person alleging it.”

Plainly enough, Casuga is guilty of misrepresentation, when he made it appear that he was authorized to enter into a contract of lease in behalf of Nevada when, in fact, he was not. Furthermore, the records reveal that Casuga received the rentals by virtue of the contract of lease, benefitting from his misrepresentation. Chul’s notarized letter of May 15, 2007 sufficiently shows that Casuga indeed received PhP 90,000 as rental deposit from Chul. In his affidavit-comment dated December 5, 2007, Casuga denied having received such amount, alleging that a certain Pastor Oh, who purportedly introduced him to Chul, received the money. However, Casuga again failed to adduce a single piece of evidence to support his contention. A bare denial must fail in light of the positive assertion of Chul, who appears to have no ulterior motive to incriminate Casuga.

In Tan v. Gumba,[10] the respondent lawyer similarly misrepresented herself to have been authorized to sell a parcel of land by virtue of a Special Power of Attorney (SPA). By virtue of the SPA, the lawyer was able to obtain a loan from the complainant, secured by the said parcel of land through an “open” deed of sale. When the respondent lawyer defaulted in the payment of the loan, it turned out that the SPA only authorized the lawyer to mortgage the property to a bank. Thus, the complainant could not register the deed of sale with the register of deeds and could not recover the amount that he loaned to the lawyer. In that case, the Court ruled:

Here, respondent’s actions clearly show that she deceived complainant into lending money to her through the use of documents and false representations and taking advantage of her education and complainant’s ignorance in legal matters. As manifested by complainant, he would have never granted the loan to respondent were it not for respondent’s misrepresentation that she was authorized to sell the property and if respondent had not led him to believe that he could register the “open” deed of sale if she fails to pay the loan. By her misdeed, respondent has eroded not only complainant’s perception of the legal profession but the public’s perception as well. Her actions constitute gross misconduct for which she may be disciplined, following Section 27, Rule 138 of the Revised Rules of Court, as amended x x x. (Emphasis supplied.)

In the instant case, by maintaining an office within the Hotel, taking advantage of his apparent close relationship to Nevada, and through the use of false representations, Casuga led Chul to believe that he was the administrator of the Hotel, when in fact he was not. By doing so, he made it appear that he was duly authorized to enter into contracts for the Hotel and to receive rentals from its occupants. His fraudulent scheme enabled Casuga to collect rentals from the occupants of the Hotel, Chul in particular, which he did not transmit to Nevada. Worse still, Casuga obtained money belonging to the Hotel. Following the principle laid down in Tan, Casuga’s misrepresentation properly constitutes gross misconduct for which he must be disciplined.

Notably, in Tan, the respondent lawyer was held guilty of misconduct and suspended from the practice of law for six (6) months.

Casuga also violated Canon 16of the Code of Professional Responsibility

With regard to the jewelry and watch entrusted to him, Casuga alleged that Nevada pawned them and thereafter instructed Casuga’s wife to redeem them with the latter’s money. He added that Nevada then instructed his wife to sell the valuables and use the proceeds to reimburse herself for the redemption price. Again, however, Casuga’s allegations are unsupported by a single shred of

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evidence. Pawnshop receipts would have provided the best evidence under the circumstances. But they were not presented, too.

Moreover, Casuga’s admission that the valuables are indeed in his possession, without any adequate reason, supports Nevada’s version of the story. Casuga’s failure to return such property or remit the proceeds of the sale is a blatant violation of Canon 16 of the Code of Professional Responsibility (the Code). The Code’s Canon 16 and Rule 16.3 state:

CANON 16 - A lawyer shall hold in trust all moneys and properties of his client that may come into his profession.

Rule 16.03 - A lawyer shall deliver the funds and property of his client when due or upon demand. However, he shall have a lien over the funds and may apply so much thereof as may be necessary to satisfy his lawful fees and disbursements, giving notice promptly thereafter to his client. He shall also have a lien to the same extent on all judgments and executions he has secured for his client as provided for in the Rules of Court.

Having been tasked to sell such valuables, Casuga was duty-bound to return them upon Nevada’s demand. His failure to do so renders him subject to disciplinary action. To be sure, he cannot use, as a defense, the lack of a lawyer-client relationship as an exonerating factor. In Barcenas v. Alvero,[11] the Court suspended a lawyer from the practice of law for two (2) years after he failed to account for or return PhP 300,000 that was entrusted to him for deposit with the courts. The Court ruled:

From the records of the case, there is likewise a clear breach of lawyer-client relations. When a lawyer receives money from a client for a particular purpose, the lawyer is bound to render an accounting to the client showing that the money was spent for a particular purpose. And if he does not use the money for the intended purpose, the lawyer must immediately return the money to his client. x x x

Jurisprudence dictates that a lawyer who obtains possession of the funds and properties of his client in the course of his professional employment shall deliver the same to his client (a) when they become due, or (b) upon demand. x x x

[Respondent] Atty. Alvero cannot take refuge in his claim that there existed no attorney-client relationship between him and Barcenas. Even if it were true that no attorney-client relationship existed between them, case law has it that an attorney may be removed, or otherwise disciplined, not only for malpractice and dishonesty in the profession, but also for gross misconduct not connected with his professional duties, making him unfit for the office and unworthy of the privileges which his license and the law confer upon him.

Atty. Alvero’s failure to immediately account for and return the money when due and upon demand violated the trust reposed in him, demonstrated his lack of integrity and moral soundness, and warranted the imposition of disciplinary action. It gave rise to the presumption that he converted the money for his own use, and this act constituted a gross violation of professional ethics and a betrayal of public confidence in the legal profession. They constitute gross misconduct and gross unethical behavior for which he may be suspended, following Section 27, Rule 138 of the Rules of Court x x x. (Emphasis supplied.)

Having failed to return, upon demand, the items entrusted to him by Nevada or remit the proceeds of the sale, Casuga violated Canon 16 and Rule 16.03 of the Code.

In Almendarez, Jr. v. Langit,[12] the Court suspended a lawyer from the practice of law for two (2) years for failing to account for the money and properties of his client. Similarly, in Small v. Banares,[13] a lawyer was also suspended from the practice of law for two (2) years, as he failed to return the money of his client that he was holding in trust and for failing to file an answer to the complaint and his refusal to appear at the mandatory conference before the IBP. Thus, the same penalty should be imposed upon Casuga.

Casuga violated the Notarial Rules

The Notarial Rules, A.M. No. 02-8-13-SC, provides in its Rule IV, Section 1(c) and Sec. 3(a) when a notary public may sign a document in behalf of another person, thus:

SEC. 1. Powers. – x x x

x x x x

(c) A notary public is authorized to sign on behalf of a person who is physically unable to sign or make a mark on an instrument or document if:

(1) the notary public is directed by the person unable to sign or make a mark to sign on his behalf;

(2) the signature of the notary public is affixed in the presence of two disinterested and unaffected witnesses to the instrument or document;

(3) both witnesses sign their own names;

(4) the notary public writes below his signature: “Signature affixed by notary in presence of (names and addresses of person and two (2) witnesses)”;

(5) the notary public notarizes his signature by acknowledgment or jurat.

On the other hand, the succeeding Sec. 3(a) disqualifies a notary public from performing a notarial act if he or she “is a party to the instrument or document that is to be notarized.”

None of the requirements contained in Rule IV, Sec. 1(c), as would justify a notary signing in behalf of a contracting party, was complied with in this case. Moreover, Casuga’s act of affixing his signature above the printed name “Edwin T. Nevada,” without any qualification, veritably made him a party to the contract of lease in question. Thus, his act of notarizing a deed to which he is a party is a plain violation of the aforequoted Rule IV, Sec. 3(a) of the Notarial Rules, for which he can be disciplinarily sanctioned provided under Rule XI, Sec. 1(b)(10) of the Notarial Rules, which provides:

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SECTION 1. Revocation and Administrative Sanctions. – x x x.

(b) In addition, the Executive Judge may revoke the commission of, or impose appropriate administrative sanctions upon, any notary public who:

(10) knowingly performs or fails to perform any other act prohibited or mandated by these Rules;

Aside from being a violation of the Notarial Rules, Casuga’s aforementioned act partakes of malpractice of law and misconduct punishable under the ensuing Sec. 27, Rule 138 of the Rules of Court:

SEC. 27. Disbarment or suspension of attorneys by Supreme Court; grounds therefor. — A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, x x x or for any violation of the oath which he is required to take before admission to practice x x x. (Emphasis supplied.)

So it was that in Lanuzo v. Bongon[14] the Court suspended a notary public from the practice of law for one (1) year for violation of the Notarial Rules. This was on top of the penalty of disqualification from being commissioned as a notary public for two (2) years.

In Dela Cruz v. Zabala,[15] the Court adjudged the respondent notary public guilty of gross negligence for failing to require the parties to be physically present before him. In revoking the erring notary’s commission, the Court, in Dela Cruz, stressed the significance of notarization and proceeded to define the heavy burden that goes when a lawyer is commissioned as a notary public. The Court wrote:

x x x [N]otarization is not an empty, meaningless routinary act. It is invested with substantive public interest. It must be underscored that x x x notarization x x x converts a private document into a public document making that document admissible in evidence without further proof of authenticity thereof. A notarial document is, by law, entitled to full faith and credit upon its face. For this reason, a notary public must observe with utmost care the basic requirements in the performance of x x x duties; otherwise, the confidence of the public in the integrity of this form of conveyance would be undermined.

x x x x

A notary public should not notarize a document unless the persons who signed the same are the very same persons who executed and personally appeared before him to attest to the contents and the truth of what are stated therein. These acts of the affiants cannot be delegated because what are stated therein are facts they have personal knowledge of and are personally sworn to. Otherwise, their representative’s names should appear in the said documents as the ones who executed the same.

The function of a notary public is, among others, to guard against any illegal or immoral arrangements. By affixing his notarial seal on the instrument, he converted the Deed of Absolute Sale, from a private document into a public document. x x x As a lawyer commissioned to be a notary public, respondent is mandated to discharge his sacred duties with faithful observance and utmost respect for the legal solemnity of an oath in an acknowledgment or jurat. Simply put, such

responsibility is incumbent upon him, he must now accept the commensurate consequences of his professional indiscretion.[16] x x x (Emphasis supplied.)

The recommended penalty must be modified

Considering the various infractions Casuga committed, as discussed above, the aggregate penalty recommended by the IBP Board of Governors of suspension from the practice of law for four (4) years was correct. It hews with prevailing jurisprudence as cited above. However, Casuga’s disqualification from reappointment as notary public for two (2) years should match his suspension from the practice of law. The disqualification should accordingly be increased to four (4) years, since only a lawyer in good standing can be granted the commission of a notary public.

The desired disbarment of Casuga, however, is too severe a sanction to impose under the premises; it cannot be granted. The penalty of disbarment shall be meted out only when the lawyer’s misconduct borders on the criminal and/or is committed under scandalous circumstance.[17]

The money, jewelry and Rolex watch should be returned to Nevada

Nevada’s plea that the rental deposit of PhP 90,000, the pieces of jewelry worth PhP 300,000, and the Rolex watch valued at USD 12,000 or its equivalent in Philippine Peso should be ordered returned to her instead of to Jung Jong Chul is well-taken. We need not belabor the fact that Chul has no right whatsoever over the amount or property mentioned above.

WHEREFORE, the Court finds Atty. Rodolfo D. Casuga GUILTY of gross misconduct for violation of Canon 16 of the Code of Professional Responsibility and the Notarial Rules. He is hereby SUSPENDED for a period of four (4) years from the practice of law. The notarial commission of Atty. Casuga, if still existing, is hereby REVOKED and he is DISQUALIFIED from being commissioned as Notary Public also for four (4) years. Additionally, he is ordered to return the amount of PhP 90,000, the pieces of jewelry subject of this case or their equivalent of PhP 300,000, and the Rolex watch valued at USD 12,000 or its equivalent in Philippine Peso to Corazon T. Nevada within thirty (30) days from finality of this Decision; otherwise, he shall be cited for contempt. Lastly, Atty. Casuga is warned that a repetition of the same or similar acts will be dealt with more severely.

Let a copy of this Decision be furnished the Office of the Bar Confidant, to be appended to the personal record of Atty. Rodolfo D. Casuga as a member of the Bar; the Integrated Bar of the Philippines; and the Office of the Court Administrator for dissemination to all trial courts for their information and guidance.

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17) ALMAZAN V. SUERTE-FELIPE, A.C. NO. 7184, 17 SEPTEMBER 2014

This is an administrative case against respondent Atty. Marcelo B. Suerte-Felipe (respondent) for malpractice as a notary public, among others.

The Facts

In a Complaint1 dated April 27, 2006, complainant Felipe B. Almazan, Sr. (complainant) charged respondent, previously of the Public Attorney’s Office,2 for malpractice and gross negligence in the performance of his duty as a notary public and/or lawyer, alleging that the latter, despite not having been registered as a notary public for the City of Marikina, notarized the acknowledgment of the document entitled “Extrajudicial Settlement of the Estate of the Deceased Juliana P. Vda. De Nieva”3 dated “25th day of 1999” (subject document), stating that he is a “notary public for and in the City of Marikina.”4 Said document was one of the attachments to the Amended Complaint5 dated August 14, 2003 filed in Civil Case No. 03-849-MK entitled “Esperanza Nieva Dela Cruz [(as represented by respondent)] v. Brita T. Llantada [(as represented by complainant)].” To prove his claim, complainant attached a Certification6 dated May 26, 2005 issued by the Office of the Clerk of Court of the Regional Trial Court (RTC) of Marikina City, certifying that per the court’s record, respondent is not a commissioned notary public for the City of Marikina from March 30, 1994 to the date of issuance.

In a Resolution7 dated July 5, 2006, the Court required respondent to file his Comment8 which he eventually submitted on February 13, 2007 after proper service. In said pleading, respondent admitted that he indeed notarized the acknowledgment of the subject document but denied that he was not commissioned as a notary public at that time.9 To prove his defense, he attached a Certification10 dated August 23, 2006 issued by the Office of the Clerk of Court of the RTC of Pasig City, certifying the fact of his appointment as notary public for the City of Pasig and in the Municipalities of Taguig, Pateros, San Juan, and Mandaluyong for the years 1998-1999 under Appointment No. 98.11 Further, respondent, thru the comment, incorporated his own administrative complaint against complainant for malpractice and harassment of a fellow lawyer in view of the filing of the instant administrative case against him.12cralawred

In response, complainant filed a Reply13 dated April 26, 2007 asserting that he has the legitimate right to file the administrative complaint against respondent for his unlawful act of notarization, which is not an act of harassment as respondent claims. He also draws attention to the fact that the subject document was incompletely dated and yet notarized by respondent.14cralawred

In a Resolution15 dated July 11, 2007, the Court, inter alia, referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report, and recommendation. Eventually, both parties appeared during the mandatory conference held on April 30, 2008.16cralawred

The Report and Recommendation of the IBP

In a Report and Recommendation17 dated September 22, 2008, the IBP Investigating Commissioner found respondent guilty for violating the Notarial Law and the lawyer’s oath, reasoning that he could not notarize the acknowledgment of the subject document in Marikina City as it was outside the territorial limits of his jurisdiction. To this end, the Investigating Commissioner pointed out that in the acknowledgment of the subject document, it was categorically stated that respondent is a notary public for and in the City of Marikina, Province of Rizal, of which he was not, hence, violating the Notarial Law. Moreover, respondent likewise violated the lawyer’s oath, specifically its mandate for lawyers, to obey the laws and do no falsehood.18cralawred

In view of the foregoing, it was thus recommended that respondent be suspended for a period of two (2) years from the practice of law. However, since it does not appear that he was still commissioned as a notary public, the Investigating Commissioner did not recommend that he be disqualified as such.19cralawred

In a Resolution20 dated October 9, 2008, the IBP Board of Governors adopted and approved the Report and Recommendation of the Investigating Commissioner with modification, decreasing the penalty of suspension to one (1) year, with immediate revocation of notarial commission if presently commissioned, and disqualification from being commissioned as a notary public for two (2) years.

On reconsideration,21 the IBP Board of Governors, in a Resolution22 dated March 8, 2014, modified the penalty stated in its previous resolution, imposing, instead, the penalty of reprimand with warning, and disqualification from being commissioned as a notary public for the decreased period of one (1) year.

The Issue Before the Court

The essential issue in this case is whether or not respondent should be held administratively liable.

The Court’s Ruling

The Court concurs with the findings of the IBP except as to the penalty.

As the Investigating Commissioner correctly observed, respondent, who himself admitted that he was commissioned as notary public only in the City of Pasig and the Municipalities of Taguig, Pateros, San Juan, and Mandaluyong for the years 1998-1999, could not notarize the subject document’s acknowledgment in the City of Marikina, as said notarial act is beyond the jurisdiction of the commissioning court, i.e., the RTC of Pasig. The territorial limitation of a notary public’s jurisdiction is crystal clear from Section 11, Rule III of the 2004 Rules on Notarial Practice:23cralawred

Sec. 11. Jurisdiction and Term – A person commissioned as notary public may perform notarial acts in any place within the territorial jurisdiction of the commissioning court for a period of two (2) years commencing the first day of January of the year in which the commissioning court is made, unless either revoked or the notary public has resigned under these Rules and the Rules of Court. (Emphasis supplied)

Said principle is equally echoed in the Notarial Law found in Chapter 12, Book V, Volume I of the Revised Administrative Code of 1917, as amended,24 of which Section 240, Article II states:ChanRoblesVirtualawlibrary

Sec. 240. Territorial jurisdiction. – The jurisdiction of a notary public in a province shall be co-extensive with the province. The jurisdiction of a notary public in the City of Manila shall be co-extensive with said city. No notary shall possess authority to do any notarial act beyond the limits of his jurisdiction. (Emphases supplied)

For misrepresenting in the said acknowledgment that he was a notary public for and in the City of Marikina, when it is apparent and, in fact, uncontroverted that he was not, respondent further committed a form of falsehood which is undoubtedly anathema to the lawyer’s oath. Perceptibly, said transgression also runs afoul of Rule 1.01, Canon 1 of the Code of Professional Responsibility which provides that “[a] lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.”

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In the case of Tan Tiong Bio v. Atty. Gonzales,25 citing Nunga v. Atty. Viray,26 the Court instructively expounded on infractions similar to that of respondent:ChanRoblesVirtualawlibrary

While seemingly appearing to be a harmless incident, respondent’s act of notarizing documents in a place outside of or beyond the authority granted by his notarial commission, partakes of malpractice of law and falsification. While perhaps not on all fours because of the slight dissimilarity in the violation involved, what the Court said in Nunga v. Viray is very much apropos:Where the notarization of a document is done by a member of the Philippine Bar at a time when he has no authorization or commission to do so, the offender may be subjected to disciplinary action. For one, performing a notarial [act] without such commission is a violation of the lawyer’s oath to obey the laws, more specifically, the Notarial Law. Then, too, by making it appear that he is duly commissioned when he is not, he is, for all legal intents and purposes, indulging in deliberate falsehood, which the lawyer’s oath similarly proscribes. These violations fall squarely within the prohibition of Rule 1.01 of Canon 1 of the Code of Professional Responsibility, which provides: “A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.”It cannot be over-emphasized that notarization is not an empty, meaningless, routinary act. Far from it. Notarization is invested with substantive public interest, such that only those who are qualified or authorized may act as notaries public. Hence, the requirements for the issuance of a commission as notary public are treated with a formality definitely more than casual.27 (Emphases supplied)

With respondent’s liability herein established, and considering further the attendant circumstances of this case, take for instance, that he is a first time offender and that he had already acknowledged his wrongdoings,28 the Court finds that suspension for a period of six (6) months29 from the practice of law would suffice as a penalty. In addition, he is disqualified from being commissioned as a notary public for a period of one (1) year and, his notarial commission, if currently existing, is hereby revoked.30cralawred

WHEREFORE, respondent Atty. Marcelo B. Suerte-Felipe is found GUILTY of malpractice as a notary public, and violating the lawyer’s oath as well as Rule 1.01, Canon 1 of the Code of Professional Responsibility. Accordingly, he is SUSPENDED from the practice of law for a period of six (6) months, effective upon his receipt of this Resolution, with a STERN WARNING that a repetition of the same or similar acts will be dealt with more severely. He is likewise DISQUALIFIED from being commissioned as a notary public for a period of one (1) year and his notarial commission, if currently existing, is hereby REVOKED.

Let copies of this Resolution be furnished the Office of the Bar Confidant, to be appended to respondent’s personal record as attorney. Further, let copies of this Resolution be furnished the Integrated Bar of the Philippines and the Office of the Court Administrator, which is directed to circulate them to all the courts in the country for their information and guidance.

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18) LAQUINDANUM V. QUINTANA, A.C. NO. 7036, 29 JUNE 2009

This administrative case against Atty. Nestor Q. Quintana (Atty. Quintana) stemmed from a letter1 addressed to the Court filed by Executive Judge Lily Lydia A. Laquindanum (Judge Laquindanum) of the Regional Trial Court of Midsayap, Cotabato requesting that proper disciplinary action be imposed on him for performing notarial functions in Midsayap, Cotabato, which is beyond the territorial jurisdiction of the commissioning court that issued his notarial commission, and for allowing his wife to do notarial acts in his absence.

In her letter, Judge Laquindanum alleged that pursuant to A.M. No. 03-8-02-SC, executive judges are required to closely monitor the activities of notaries public within the territorial bounds of their jurisdiction and to see to it that notaries public shall not extend notarial functions beyond the limits of their authority. Hence, she wrote a letter2 to Atty. Quintana directing him to stop notarizing documents within the territorial jurisdiction of the Regional Trial Court of Midsayap, Cotabato (which is outside the territorial jurisdiction of the commissioning court that issued his notarial commission for Cotabato City and the Province of Maguindanao) since certain documents3 notarized by him had been reaching her office.

However, despite such directive, respondent continuously performed notarial functions in Midsayap, Cotabato as evidenced by: (1) the Affidavit of Loss of ATM Card4 executed by Kristine C. Guro; and (2) the Affidavit of Loss of Driver’s License5 executed by Elenita D. Ballentes.

Under Sec. 11, Rule III6 of the 2004 Rules on Notarial Practice, Atty. Quintana could not extend his notarial acts beyond Cotabato City and the Province of Maguindanao because Midsayap, Cotabato is not part of Cotabato City or the Province of Maguindanao. Midsayap is part of the Province of Cotabato. The City within the province of Cotabato is Kidapawan City, and not Cotabato City.

Judge Laquindanum also alleged that, upon further investigation of the matter, it was discovered that it was Atty. Quintana’s wife who performed notarial acts whenever he was out of the office as attested to by the Joint Affidavit7 executed by Kristine C. Guro and Elenita D. Ballentes.

In a Resolution dated February 14, 2006,8 we required Atty. Quintana to comment on the letter of Judge Laquindanum.

In his Response,9 Atty. Quintana alleged that he filed a petition for notarial commission before Branch 18, Regional Trial Court, Midsayap, Cotabato. However, the same was not acted upon by Judge Laquindanum for three weeks. He alleged that the reason for Judge Laquindanum’s inaction was that she questioned his affiliation with the Integrated Bar of the Philippines (IBP) Cotabato City Chapter, and required him to be a member of IBP Kidapawan City Chapter and to obtain a Certification of Payments from the latter chapter. Because of this, he opted to withdraw his petition. After he withdrew his petition, he claimed that Judge Laquindanum sent a clerk from her office to ask him to return his petition, but he did not oblige because at that time he already had a Commission for Notary Public10 issued by Executive Judge Reno E. Concha of the Regional Trial Court, Branch 14, Cotabato City.

Atty. Quintana lamented that he was singled out by Judge Laquindanum, because the latter immediately issued notarial commissions to other lawyers without asking for so many requirements. However, when it came to him, Judge Laquindanum even tracked down all his pleadings; communicated with his clients; and disseminated information through letters, pronouncements, and directives to court clerks and other lawyers to humiliate him and be ostracized by fellow lawyers.

Atty. Quintana argued that he subscribed documents in his office at Midsayap, Cotabato; and Midsayap is part of the Province of Cotabato. He contended that he did not violate any provision of the 2004 Rules on Notarial Practice, because he was equipped with a notarial commission. He maintained that he did not act outside the province of Cotabato since Midsayap, Cotabato, where he practices his legal profession and subscribes documents, is part of the province of Cotabato. He claimed that as a lawyer of good moral standing, he could practice his legal profession in the entire Philippines.

Atty. Quintana further argued that Judge Laquindanum had no authority to issue such directive, because only Executive Judge Reno E. Concha, who issued his notarial commission, and the Supreme Court could prohibit him from notarizing in the Province of Cotabato.

In a Resolution dated March 21, 2006,11 we referred this case to the Office of the Bar Confidant (OBC) for investigation, report and recommendation.

In the February 28, 2007 Hearing12 before the OBC presided by Atty. Ma. Crisitina B. Layusa (Hearing Officer), Judge Laquindanum presented a Deed of Donation,13 which was notarized by Atty. Quintana in 2004.14 Honorata Rosil appears as one of the signatories of the document as the donor’s wife. However, Honorata Rosil died on March 12, 2003, as shown by the Certificate of Death15 issued by the Civil Registrar of Ibohon, Cotabato.

Judge Laquindanum testified that Atty. Quintana continued to notarize documents in the years 2006 to 2007 despite the fact that his commission as notary public for and in the Province of Maguindanao and Cotabato City had already expired on December 31, 2005, and he had not renewed the same.16 To support her claim, Judge Laquindanum presented the following: (1) Affidavit of Loss [of] Title17 executed by Betty G. Granada with subscription dated April 8, 2006 at Cotabato City; (2) Certificate of Candidacy18 of Mr. Elias Diosanta Arabis with subscription dated July 18, 2006; (3) Affidavit of Loss [of] Driver’s License19 executed by Anecito C. Bernabe with subscription dated February 20, 2007 at Midsayap, Cotabato; and (4) Affidavit of Loss20 executed by Santos V. Magbanua with subscription dated February 22, 2007 at Midsayap, Cotabato.

For his part, Atty. Quintana admitted that all the signatures appearing in the documents marked as exhibits of Judge Laquindanum were his except for the following: (1) Affidavit of Loss of ATM Card21 executed by Kristine C. Guro; and (2) Affidavit of Loss of Driver’s License22 executed by Elenita D. Ballentes; and (3) Affidavit of Loss23 executed by Santos V. Magbanua. He explained that those documents were signed by his wife and were the result of an entrapment operation of Judge Laquindanum: to let somebody bring and have them notarized by his wife, when they knew that his wife is not a lawyer. He also denied the he authorized his wife to notarize documents. According to him, he slapped his wife and told her to stop doing it as it would ruin his profession.

Atty. Quintana also claimed that Judge Laquindanum did not act on his petition, because he did not comply with her requirements for him to transfer his membership to the Kidapawan Chapter, wherein her sister, Atty. Aglepa, is the IBP President.

On the one hand, Judge Laquindanum explained that she was only performing her responsibility and had nothing against Atty. Quintana. The reason why she did not act on his petition was that he had not paid his IBP dues,24 which is a requirement before a notarial commission may be granted. She told his wife to secure a certification of payment from the IBP, but she did not return.

This was denied by Atty. Quintana, who claimed that he enclosed in his Response the certification of good standing and payments of his IBP dues. However, when the same was examined, there were no documents attached thereto. Due to oversight, Atty. Quintana prayed that he be given time to send them later which was granted by the Hearing Officer.

LEGFORMS 3C1415 | 47

Finally, Atty. Quintana asked for forgiveness for what he had done and promised not to repeat the same. He also asked that he be given another chance and not be divested of his privilege to notarize, as it was the only bread and butter of his family.

On March 5, 2007, Atty. Quintana submitted to the OBC the documents25 issued by the IBP Cotabato City Chapter to prove that he had paid his IBP dues.

In a Manifestation26 dated March 9, 2007, Judge Laquindanum submitted a Certification27 and its entries show that Atty. Quintana paid his IBP dues for the year 2005 only on January 9, 2006 per Official Receipt (O.R.) No. 610381. Likewise, the arrears of his IBP dues for the years 1993, 1995, 1996, and 1998 to 2003 were also paid only on January 9, 2006 per O.R. No. 610387. Hence, when he filed his petition for notarial commission in 2004, he had not yet completely paid his IBP dues.

In its Report and Recommendation,28 the OBC recommended that Atty. Quintana be disqualified from being appointed as a notary public for two (2) years; and that if his notarial commission still exists, the same should be revoked for two (2) years. The OBC found the defenses and arguments raised by Atty. Quintana to be without merit, viz:

Apparently, respondent has extended his notarial acts in Midsayap and Kabacan, Cotabato, which is already outside his territorial jurisdiction to perform as Notary Public.

Section 11 of the 2004 Rules on Notarial Practice provides, thus:

"Jurisdiction and Term – A person commissioned as notary public may perform notarial acts in any place within the territorial jurisdiction of the commissioning court for a period of two (2) years commencing the first day of January of the year in which the commissioning court is made, unless earlier revoked [or] the notary public has resigned under these Rules and the Rules of Court.

Under the rule[,] respondent may perform his notarial acts within the territorial jurisdiction of the commissioning Executive Judge Concha, which is in Cotabato City and the [P]rovince of Maguindanao only. But definitely he cannot extend his commission as notary public in Midsayap or Kabacan and in any place of the province of Cotabato as he is not commissioned thereat to do such act. Midsayap and Kabacan are not part of either Cotabato City or [P]rovince of Maguindanao but part of the province of North Cotabato. Thus, the claim of respondent that he can exercise his notarial commission in Midsayap, Cotabato because Cotabato City is part of the province of Cotabato is absolutely devoid of merit.

xxxx

Further, evidence on record also shows that there are several documents which the respondent’s wife has herself notarized. Respondent justifies that he cannot be blamed for the act of his wife as he did not authorize the latter to notarize documents in his absence. According to him[,] he even scolded and told his wife not to do it anymore as it would affect his profession.

In the case of Lingan v. Calubaquib et al., Adm. Case No. 5377, June 15, 2006 the Court held, thus:

"A notary public is personally accountable for all entries in his notarial register; He cannot relieve himself of this responsibility by passing the buck to their (sic) secretaries"

A person who is commissioned as a notary public takes full responsibility for all the entries in his notarial register. Respondent cannot take refuge claiming that it was his wife’s act and that he did not authorize his wife to notarize documents. He is personally accountable for the activities in his office as well as the acts of his personnel including his wife, who acts as his secretary.

Likewise, evidence reveals that respondent notarized in 2004 a Deed of Donation (Rollo, p. 79) wherein, (sic) Honorata Rosel (Honorata Rosil) one of the affiants therein, was already dead at the time of notarization as shown in a Certificate of Death (Rollo, p.80) issued by the Civil Registrar General of Libungan, Cotabato.

Sec. 2, (b), Rule IV of the 2004 Rules on Notarial Practice provides, thus[:]

"A person shall not perform a notarial act if the person involved as signatory to the instrument or document (1) is not in the notary’s presence personally at the time of the notarization; and (2) is not personally known to the notary public through competent evidence of identity as defined by these Rules."

Clearly, in notarizing a Deed of Donation without even determining the presence or qualifications of affiants therein, respondent only shows his gross negligence and ignorance of the provisions of the 2004 Rules on Notarial Practice.

xxxx

Furthermore, respondent claims that he, being a lawyer in good standing, has the right to practice his profession including notarial acts in the entire Philippines. This statement is barren of merit.

While it is true that lawyers in good standing are allowed to engage in the practice of law in the Philippines.(sic) However, not every lawyer even in good standing can perform notarial functions without having been commissioned as notary public as specifically provided for under the 2004 Rules on Notarial Practice. He must have submitted himself to the commissioning court by filing his petition for issuance of his notarial (sic) Notarial Practice. The commissioning court may or may not grant the said petition if in his sound discretion the petitioner does not meet the required qualifications for [a] Notary Public. Since respondent herein did not submit himself to the procedural rules for the issuance of the notarial commission, he has no reason at all to claim that he can perform notarial act[s] in the entire country for lack of authority to do so.

Likewise, contrary to the belief of respondent, complainant being the commissioning court in Midsayap, Cotabato has the authority under Rule XI of the 2004 Rules on Notarial Practice to monitor the duties and responsibilities including liabilities, if any, of a notary public commissioned or those performing notarial acts without authority in her territorial jurisdiction.29

xxxx

We adopt the findings of the OBC. However, we find the penalty of suspension from the practice of law for six (6) months and revocation and suspension of Atty. Quintana's notarial commission for two (2) years more appropriate considering the gravity and number of his offenses.

After a careful review of the records and evidence, there is no doubt that Atty. Quintana violated the 2004 Rules on Notarial Practice and the Code of Professional Responsibility when he committed the following acts: (1) he notarized documents outside the area of his commission as a notary public; (2) he performed notarial acts with an expired commission; (3) he let his wife notarize documents in his absence; and (4) he notarized a document where one of the signatories therein was already dead at that time.

The act of notarizing documents outside one’s area of commission is not to be taken lightly. Aside from being a violation of Sec. 11 of the 2004 Rules on Notarial Practice, it also partakes of malpractice of law and falsification.30 Notarizing documents with an expired commission is a violation of the lawyer’s oath to obey the laws, more specifically, the 2004 Rules on Notarial

LEGFORMS 3C1415 | 48

Practice. Since the public is deceived into believing that he has been duly commissioned, it also amounts to indulging in deliberate falsehood, which the lawyer's oath proscribes.31 Notarizing documents without the presence of the signatory to the document is a violation of Sec. 2(b)(1), Rule IV of the 2004 Rules on Notarial Practice,32 Rule 1.01 of the Code of Professional Responsibility, and the lawyer’s oath which unconditionally requires lawyers not to do or declare any falsehood. Finally, Atty. Quintana is personally accountable for the documents that he admitted were signed by his wife. He cannot relieve himself of liability by passing the blame to his wife. He is, thus, guilty of violating Canon 9 of the Code of Professional Responsibility, which requires lawyers not to directly or indirectly assist in the unauthorized practice of law.

All told, Atty. Quintana fell miserably short of his obligation under Canon 7 of the Code of Professional Responsibility, which directs every lawyer to uphold at all times the integrity and dignity of the legal profession.

That Atty. Quintana relies on his notarial commission as the sole source of income for his family will not serve to lessen the penalty that should be imposed on him. On the contrary, we feel that he should be reminded that a notarial commission should not be treated as a money-making venture. It is a privilege granted only to those who are qualified to perform duties imbued with public interest. As we have declared on several occasions, notarization is not an empty, meaningless, routinary act. It is invested with substantive public interest, such that only those who are qualified or authorized may act as notaries public. The protection of that interest necessarily requires that those not qualified or authorized to act must be prevented from imposing upon the public, the courts, and the administrative offices in general. It must be underscored that notarization by a notary public converts a private document into a public document, making that document admissible in evidence without further proof of the authenticity thereof.33

IN VIEW WHEREOF, the notarial commission of Atty. Nestor Q. Quintana, if still existing, is hereby REVOKED, and he is DISQUALIFIED from being commissioned as notary public for a period of two (2) years. He is also SUSPENDED from the practice of law for six (6) months effective immediately, with a WARNING that the repetition of a similar violation will be dealt with even more severely. He is DIRECTED to report the date of his receipt of this Decision to enable this Court to determine when his suspension shall take effect.1avvphi1

Let a copy of this decision be entered in the personal records of respondent as a member of the Bar, and copies furnished the Bar Confidant, the Integrated Bar of the Philippines, and the Court Administrator for circulation to all courts in the country.

LEGFORMS 3C1415 | 49

19) DE JESUS V. SANCHEZ-MALIT, A.C. NO. 6470, 8 JULY 2014

Before the Court is a disbarment complaint filed by Mercedita De Jesus (De Jesus) against respondent Atty. Juvy Mell Sanchez-Malit (Sanchez-Malit) on the following grounds: grave misconduct, dishonesty, malpractices, and unworthiness to become an officer of the Court.

THE FACTS OF THE CASE

In the Affidavit-Complaint 1 filed by complainant before the Office of the Bar Confidant on 23 June 2004, she alleged that on 1 March 2002, respondent had drafted and notarized a Real Estate Mortgage of a public market stall that falsely named the former as its absolute and registered owner. As a result, the mortgagee sued complainant for perjury and for collection of sum of money. She claimed that respondent was a consultant of the local government unit of Dinalupihan, Bataan, and was therefore aware that the market stall was government-owned.

Prior thereto, respondent had also notarized two contracts that caused complainant legal and financial problems. One contract was a lease agreement notarized by respondent sometime in September 1999 without the signature of the lessees. However, complainant only found out that the agreement had not been signed by the lessees when she lost her copy and she asked for another copy from respondent. The other contract was a sale agreement over a property covered by a Certificate of Land Ownership Award (CLOA) which complainant entered into with a certain Nicomedes Tala (Tala) on 17 February 1998. Respondent drafted and notarized said agreement, but did not advise complainant that the property was still covered by the period within which it could not be alienated.

In addition to the documents attached to her complaint, complainant subsequently submitted three Special Powers of Attorney (SPAs) notarized by respondent and an Affidavit of Irene Tolentino (Tolentino), complainant’s secretary/treasurer. The SPAs were not signed by the principals named therein and bore only the signature of the named attorney-in-fact, Florina B. Limpioso (Limpioso). Tolentino’s Affidavit corroborated complainant’s allegations against respondent.2

On 4 August 2004, the Second Division of the Supreme Court issued a Resolution requiring respondent to submit her comment on the Complaint within ten (10) days from receipt of notice.3

In her Comment,4 respondent explained that the mortgage contract was prepared in the presence of complainant and that the latter had read it before affixing her signature. However, complainant urgently needed the loan proceeds so the contract was hastily done. It was only copied from a similar file in respondent’s computer, and the phrase “absolute and registered owner” was inadvertently left unedited. Still, it should not be a cause for disciplinary action, because complainant constructed the subject public market stall under a “Build Operate and Transfer” contract with the local government unit and, technically, she could be considered its owner. Besides, there had been a prior mortgage contract over the same property in which complainant was represented as the property’s absolute owner, but she did not complain. Moreover, the cause of the perjury charge against complainant was not the representation of herself as owner of the mortgaged property, but her guarantee that it was free from all liens and encumbrances. The perjury charge was even dismissed, because the prosecutor found that complainant and her spouse had, indeed, paid the debt secured with the previous mortgage contract over the same market stall.

With respect to the lease agreement, respondent countered that the document attached to the Affidavit-Complaint was actually new. She gave the court’s copy of the agreement to complainant to accommodate the latter’s request for an extra copy. Thus, respondent prepared and notarized a new one, relying on complainant’s assurance that the lessees would sign it and that it would be returned in lieu of the original copy for the court. Complainant, however, reneged on her promise.

As regards the purchase agreement of a property covered by a CLOA, respondent claimed that complainant was an experienced realty broker and, therefore, needed no advice on the repercussions of that transaction. Actually, when the purchase agreement was notarized, complainant did not present the CLOA, and so the agreement mentioned nothing about it. Rather, the agreement expressly stated that the property was the subject of a case pending before the Department of Agrarian Reform Adjudication Board (DARAB); complainant was thus notified of the status of the subject property. Finally, respondent maintained that the SPAs submitted by complainant as additional evidence were properly notarized. It can be easily gleaned from the documents that the attorney-in-fact personally appeared before respondent; hence, the notarization was limited to the former’s participation in the execution of the document. Moreover, the acknowledgment clearly stated that the document must be notarized in the principal’s place of residence.

An exchange of pleadings ensued after respondent submitted her Comment. After her rejoinder, complainant filed an Urgent Ex-Parte Motion for Submission of Additional Evidence.5 Attached thereto were copies of documents notarized by respondent, including the following: (1) an Extra Judicial Deed of Partition which referred to the SPAs naming Limpioso as attorney-in-fact; (2) five SPAs that lacked the signatures of either the principal or the attorney-in-fact; (3) two deeds of sale with incomplete signatures of the parties thereto; (4) an unsigned Sworn Statement; (5) a lease contract that lacked the signature of the lessor; (6) five unsigned Affidavits; (7) an unsigned insurance claim form (Annual Declaration by the Heirs); (8) an unsigned Invitation Letter to a potential investor in Japan; (9) an unsigned Bank Certification; and (10) an unsigned Consent to Adoption.

After the mandatory conference and hearing, the parties submitted their respective Position Papers.6 Notably, respondent’s Position Paper did not tackle the additional documents attached to complainant’s Urgent Ex Parte Motion.

THE FINDINGS OF THE IBP

In his 15 February 2008 Report, IBP Investigating Commissioner Leland R. Villadolid, Jr. recommended the immediate revocation of the Notarial Commission of respondent and her disqualification as notary public for two years for her violation of her oath as such by notarizing documents without the signatures of the parties who had purportedly appeared before her. He accepted respondent’s explanations with respect to the lease agreement, sale contract, and the three SPAs pertaining to Limpioso. However, he found that the inaccurate crafting of the real estate mortgage contract was a sufficient basis to hold respondent liable for violation of Canon 187 and Rule 18.038 of the Code of Professional Responsibility. Thus, he also recommended that she be suspended from the practice of law for six months.9

The IBP Board of Governors, in its Resolution No. XVIII-2008-245 dated 22 May 2008, unanimously adopted and approved the Report and Recommendation of the Investigating Commissioner, with the modification that respondent be suspended from the practice of law for one year.10

Respondent filed her first Motion for Reconsideration11 and Second Motion for Reconsideration.12 She maintained that the additional documents submitted by complainant were inadmissible, as they were obtained without observing the procedural requisites under Section 4, Rule VI of Adm. No. 02-08-13 SC (2004 Rules on Notarial Practice).13 Moreover, the Urgent Ex Parte Motion of complainant was actually a supplemental pleading, which was prohibited under the rules of procedure of the Committee on Bar Discipline; besides, she was not the proper party to question those documents. Hence, the investigating commissioner should have expunged the documents from the records, instead of giving them due course. Respondent also prayed that mitigating circumstances be

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considered, specifically the following: absence of prior disciplinary record; absence of dishonest or selfish motive; personal and emotional problems; timely good-faith effort to make restitution or to rectify the consequences of her misconduct; full and free disclosure to the disciplinary board or cooperative attitude toward the proceedings; character or reputation; remorse; and remoteness of prior offenses.

The IBP Board of Governors, in its Resolution No. XX-2012-119 dated 10 March 2012, denied respondent’s motion for reconsideration for lack of substantial reason to justify a reversal of the IBP’s findings.14

Pursuant to Rule 139-B of the Rules of Court, Director for Bar Discipline Pura Angelica Y. Santiago – through a letter addressed to then acting Chief Justice Antonio T. Carpio – transmitted the documents pertaining to the disbarment Complaint against respondent.15

THE COURT’S RULING

After carefully reviewing the merits of the complaint against respondent and the parties’ submissions in this case, the Court hereby modifies the findings of the IBP.

Before going into the substance of the charges against respondent, the Court shall first dispose of some procedural matters raised by respondent.

Respondent argues that the additional documents submitted in evidence by complainant are inadmissible for having been obtained in violation of Section 4, Rule VI of the 2004 Rules on Notarial Practice. A comparable argument was raised in Tolentino v. Mendoza,16 in which the respondent therein opposed the admission of the birth certificates of his illegitimate children as evidence of his grossly immoral conduct, because those documents were obtained in violation Rule 24, Administrative Order No. 1, Series of 1993.17 Rejecting his argument, the Court reasoned as follows:chanroblesvirtuallawlibrary

Section 3, Rule 128 of the Revised Rules on Evidence provides that “evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules.” There could be no dispute that the subject birth certificates are relevant to the issue. The only question, therefore, is whether the law or the rules provide for the inadmissibility of said birth certificates allegedly for having been obtained in violation of Rule 24, Administrative Order No. 1, series of 1993.

Note that Rule 24, Administrative Order No. 1, series of 1993 only provides for sanctions against persons violating the rule on confidentiality of birth records, but nowhere does it state that procurement of birth records in violation of said rule would render said records inadmissible in evidence. On the other hand, the Revised Rules of Evidence only provides for the exclusion of evidence if it is obtained as a result of illegal searches and seizures. It should be emphasized, however, that said rule against unreasonable searches and seizures is meant only to protect a person from interference by the government or the state. In People vs. Hipol, we explained that:The Constitutional proscription enshrined in the Bill of Rights does not concern itself with the relation between a private individual and another individual. It governs the relationship between the individual and the State and its agents. The Bill of Rights only tempers governmental power and protects the individual against any aggression and unwarranted interference by any department of government and its agencies. Accordingly, it cannot be extended to the acts complained of in this case. The alleged "warrantless search" made by Roque, a co-employee of appellant at the treasurer's office, can hardly fall within the ambit of the constitutional proscription on unwarranted searches and seizures.

Consequently, in this case where complainants, as private individuals, obtained the subject birth records as evidence against respondent, the protection against unreasonable searches and seizures does not apply.Since both Rule 24, Administrative Order No. 1, series of 1993 and the Revised Rules on Evidence do not provide for the exclusion from evidence of the birth certificates in question, said public documents are, therefore, admissible and should be properly taken into consideration in the resolution of this administrative case against respondent.18

Similarly, the 2004 Rules on Notarial Law contain no provision declaring the inadmissibility of documents obtained in violation thereof. Thus, the IBP correctly considered in evidence the other notarized documents submitted by complainant as additional evidence.

Respondent’s argument that the Urgent Ex-Parte Motion of complainant constitutes a supplemental pleading must fail as well. As its very name denotes, a supplemental pleading only serves to bolster or adds something to the primary pleading. Its usual office is to set up new facts which justify, enlarge or change the kind of relief with respect to the same subject matter as the controversy referred to in the original complaint.19 Accordingly, it cannot be said that the Urgent Ex-Parte Motion filed by complainant was a supplemental pleading. One of her charges against respondent is that the latter notarized incomplete documents, as shown by the SPAs and lease agreement attached to the Affidavit-Complaint. Complainant is not legally barred from submitting additional evidence to strengthen the basis of her complaint.

Going now into the substance of the charges against respondent, the Court finds that she committed misconduct and grievously violated her oath as a notary public.

The important role a notary public performs cannot be overemphasized. The Court has repeatedly stressed that notarization is not an empty, meaningless routinary act, but one invested with substantive public interest. Notarization converts a private document into a public document, making it admissible in evidence without further proof of its authenticity. Thus, a notarized document is, by law, entitled to full faith and credit upon its face. It is for this reason that a notary public must observe with utmost care the basic requirements in the performance of his notarial duties; otherwise, the public's confidence in the integrity of a notarized document would be undermined.20

Where the notary public admittedly has personal knowledge of a false statement or information contained in the instrument to be notarized, yet proceeds to affix the notarial seal on it, the Court must not hesitate to discipline the notary public accordingly as the circumstances of the case may dictate. Otherwise, the integrity and sanctity of the notarization process may be undermined, and public confidence in notarial documents diminished. 21 In this case, respondent fully knew that complainant was not the owner of the mortgaged market stall. That complainant comprehended the provisions of the real estate mortgage contract does not make respondent any less guilty. If at all, it only heightens the latter’s liability for tolerating a wrongful act. Clearly, respondent’s conduct amounted to a breach of Canon 122 and Rules 1.0123 and 1.0224 of the Code of Professional Responsibility.

Respondent’s explanation about the unsigned lease agreement executed by complainant sometime in September 199925 is incredulous. If, indeed, her file copy of the agreement bore the lessees’ signatures, she could have given complainant a certified photocopy thereof. It even appears that said lease agreement is not a rarity in respondent’s practice as a notary public. Records show that on various occasions from 2002 to 2004, respondent has notarized 22 documents that were either unsigned or lacking signatures of the parties. Technically, each document maybe a ground for disciplinary action, for it is the duty of a notarial officer to demand that a document be signed in his or her presence.26

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A notary public should not notarize a document unless the persons who signed it are the very same ones who executed it and who personally appeared before the said notary public to attest to the contents and truth of what are stated therein.27 Thus, in acknowledging that the parties personally came and appeared before her, respondent also violated Rule 10.0128 of the Code of Professional Responsibility and her oath as a lawyer that she shall do no falsehood.29

Certainly, respondent is unfit to continue enjoying the solemn office of a notary public. In several instances, the Court did not hesitate to disbar lawyers who were found to be utterly oblivious to the solemnity of their oath as notaries public.30 Even so, the rule is that disbarment is meted out only in clear cases of misconduct that seriously affect the standing and character of the lawyer as an officer of the court and the Court will not disbar a lawyer where a lesser penalty will suffice to accomplish the desired end.31 The blatant disregard by respondent of her basic duties as a notary public warrants the less severe punishment of suspension from the practice of law and perpetual disqualification to be commissioned as a notary public.

WHEREFORE, respondent Atty. Juvy Mell Sanchez-Malit is found guilty of violating Canon 1 and Rules 1.01, 1.02, and 10.01 of the Code of Professional Responsibility as well as her oath as notary public. Hence, she is SUSPENDED from the practice of law for ONE YEAR effective immediately. Her notarial commission, if still existing, is IMMEDIATELY REVOKED and she is hereby PERPETUALLY DISQUALIFIED from being commissioned as a notary public.

Let copies of this Resolution be entered into the personal records of respondent as a member of the bar and furnished to the Bar Confidant, the Integrated Bar of the Philippines, and the Court Administrator for circulation to all courts of the country for their information and guidance.

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20) FUENTES V. BUNO, A.M. NO. MTJ-99-1204, 28 JULY 2008

This administrative case against Judge Romualdo G. Buno of the 4TH Municipal Circuit Trial Court (MCTC), Talibon-Getafe, Bohol, stemmed from a complaint filed by Geronimo C. Fuentes charging him with abuse of discretion and authority and graft and corruption.

In his complaint, Geronimo Fuentes alleged that he is one of the nine (9) heirs of Bernardo Fuentes, their father, who owned an agricultural land located at San Jose, Talibon, Bohol, and that respondent judge prepared and notarized an "Extra-Judicial Partition with Simultaneous Absolute Deed of Sale" of the said agricultural land, executed by complainant’s mother Eulalia Credo Vda. de Fuentes, widow of Bernardo Fuentes, and Alejandro Fuentes, on his own behalf and on behalf of his brothers and sisters, including Geronimo Fuentes, as heirs/vendors and one Ma. Indira A. Auxtero, as vendee; that in the aforesaid document, the aforementioned agricultural land was sold, transferred/conveyed by the heirs/vendors to the vendee despite the fact that in his Special Power of Attorney (SPA), he merely appointed his brother, Alejandro Fuentes to mortgage said agricultural land but not to partition, much more to sell the same. According to complainant Geronimo Fuentes respondent judge notarized said document as ex-officio Notary Public, thereby abusing his discretion and authority as well as committing graft and corruption.

In his 1st Indorsement dated December 2, 1997, the then Court Administrator required the respondent to file his comment on the complaint within ten days. In compliance thereto respondent judge submitted his answer, which prayed for the dismissal of the complaint. He admitted that on December 24, 1996, while he was the Presiding Judge of the MCTC, Talibon-Getafe, stationed at Talibon, Bohol, he notarized an Extra-Judicial Partition of Real Property with Simultaneous Absolute Deed of Sale, described as Document No. 1158, Series of 1996. He explained his reasons and related the circumstances surrounding the case as follows:

1. That in the last week of the month of September, 1996, Mrs. Eulalia Vda. de Fuentes, Alejandro Fuentes together with Mrs. Helen A. Auxtero and Miss Ma. Indira Auxtero came to my house and requested me to make and prepare a document of sale between the Heirs of Bernardo Fuentes and Ma. Indira Auxtero as Vendee and upon verification of the papers they presented to the undersigned it was found out that the land subject of the sale is a conjugal property of the deceased Bernardo Fuentes and Eulalia Credo Vda. de Fuentes. Being a conjugal property, the undersigned advised them to secure special power of attorney for the children of Bernardo Fuentes who are out of town.

2. On the 20th of December, 1996 Eulalia Vda. de Fuentes and Alejandro Fuentes came back to the house bringing a special power of attorney executed by Bonifacio Fuentes, Benjamin Fuentes, Urbano Fuentes, Samuela Fuentes, Rufina Fuentes and Bernardo Fuentes, Jr. carbon copy of the said Special Power of Attorney herewith attached as Annex "A" of the answer. All these special power of attorney empowers Alejandro Fuentes to execute a Deed of Sale of a parcel of land under Transfer Certificate of Title No. 24937 registered in the name of Bernardo Fuentes, their deceased father.

Since no special power of attorney was presented to the undersigned executed by PO2 Geronimo Fuentes, the undersigned refused to make their document of sale but Eulalia Vda. de Fuentes and Alejandro Fuentes earnestly requested the undersigned to make and prepare the necessary document saying that the special power of attorney of PO2 Geronimo Fuentes is coming and they are in urgent need of the money and because of their request, the undersigned prepared the document, and Extra-Judicial Partition of Real Property with Simultaneous Absolute Deed of Sale in favor of Ma. Indira Auxtero. That PO2 Geronimo Fuentes was included in the Deed of Sale because of the assurance of Alejandro Fuentes and Eulalia Vda. de Fuentes that the Special Power of Attorney of PO2 Geronimo Fuentes is coming.

3. That after the necessary document was prepared Eulalia Vda. de Fuentes and Alejandro Fuentes together with the vendee, Ma. Indira Auxtero signed the document on December 24, 1996 and on that day the said document was notarized by the undersigned.

4. That few days after the document was notarized, the undersigned learned that the Special Power of Attorney executed by PO2 Geronimo Fuentes empowered Alejandro Fuentes only to mortgage the property so Mrs. Eulalia Vda. de Fuentes, Alejandro Fuentes and the vendee, Ma. Indira Auxtero were called by the undersigned about the Special Power of Attorney executed by PO2 Geronimo Fuentes but Eulalia Fuentes and Alejandro Fuentes explained to the undersigned that they will be responsible for PO2 Geronimo Fuentes considering that the money was already spent by them and the vendee, Ma. Indira Auxtero also assured the undersigned that if PO2 Geronimo Fuentes insists to take back his share, she is willing and in fact she reserved the share of Geronimo Fuentes, hence, the transaction was completed.

5. The undersigned is making and notarizing the document outside of office hour cannot be said to have abuse his discretion and authority since he was earnestly requested by Eulalia Vda. de Fuentes and Alejandro Fuentes to prepare and notarized the document with authority from his brothers and sisters and with respect to Eulalia Vda. de Fuentes, she is selling her share of the conjugal property which is one-half (1/2) of the entire parcel of land.

In the aforementioned answer, respondent judge contended that he could not be charged of graft and corruption, since in a municipality where a notary public is unavailable, a municipal judge is allowed to notarize documents or deeds as ex-officio notary public. To support his claim, he presented two certifications: one, from Atty. Azucena C. Macalolot, Clerk of Court VI of the RTC, Branch 52, Talibon, Bohol, who certified that according to their records and dockets, no petition for commission and/or renewal of commission as notary public was granted by the said court for calendar year 1996 and no appointment as notary public was issued for that year; and the other, from Mayor Juanario A. Item of Talibon, Bohol who also certified that no notary public was staying and residing in the Municipality of Talibon, Bohol during the year 1996.

Respondent judge contended that he did nothing wrong in preparing and notarizing the said document and that he acted in good faith and in obedience to the earnest plea of complainant’s mother and siblings who were in urgent need of money, and with their assurance that complainant’s SPA was forthcoming. In his attempt to explain his lack of malice, respondent judge narrated that after learning that the SPA only authorized his brother, Alejandro Fuentes to mortgage the property, he summoned the latter, his mother and the buyer of the land. Alejandro then assured him that they would be responsible to the complainant and that the buyer was willing to return complainant’s share in the property. Respondent further questioned complainant’s sincerity in filing the complaint because the latter allegedly wanted merely the respondent to persuade the buyer to return the whole property to him instead of his share only.

In its Memorandum Report, the OCA recommended that the present case be re-docketed as a regular administrative matter and that respondent be fined in the amount of P10,000.00 for unauthorized notarization of a private document, the same to be deducted from his retirement benefit. The said OCA recommendation was premised on the lack of authority of respondent judge to prepare and notarize the document in question, which had no direct relation to the performance of his official functions as a judge.1awphil

While Section 76 of Republic Act No. 296,1 as amended, and Section 242 of the Revised Administrative Code2 authorize MTC and MCTC judges to perform the functions of notaries public ex officio, the Court laid down the scope of said authority in SC Circular No. 1-90. Pertinently, the said Circular reads:

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MTC and MCTC judges may act as notaries public ex officio in the notarization of documents connected only with the exercise of their official functions and duties [Borre v. Mayo, Adm. Matter No. 1765-CFI, October 17, 1980, 100 SCRA 314; Penera v. Dalocanog, Adm. Matter No. 2113-MJ, April 22, 1981, 104 SCRA 193]. They may not, as notaries public ex officio, undertake the preparation and acknowledgment of private documents, contracts and other acts of conveyances which bear no direct relation to the performance of their functions as judges. The 1989 Code of Judicial Conduct not only enjoins judges to regulate their extra-judicial activities in order to minimize the risk of conflict with their judicial duties, but also prohibits them from engaging in the private practice of law (Canon 5 and Rule 5.07).

However, the Court, taking judicial notice of the fact that there are still municipalities which have neither lawyers nor notaries public, rules that MTC and MCTC judges assigned to municipalities or circuits with no lawyers or notaries public may, in the capacity as notaries public ex officio, perform any act within the competency of a regular notary public, provided that: (1) all notarial fees charged be for the account of the Government and turned over to the municipal treasurer (Lapena, Jr. vs. Marcos, Adm. Matter No. 1969-MJ, June 29, 1982, 114 SCRA 572); and, (2) certification be made in the notarized documents attesting to the lack of any lawyer or notary public in such municipality or circuit.

The above-quoted SC Circular No. 1-90 prohibits judges from undertaking the preparation and acknowledgment of private documents, contracts and other deeds of conveyances which have no direct relation to the discharge of their official functions. In this case, respondent judge admitted that he prepared both the document itself, entitled "Extra-judicial Partition with Simultaneous Absolute Deed of Sale" and the acknowledgment of the said document, which had no relation at all to the performance of his function as a judge. These acts of respondent judge are clearly proscribed by the aforesaid Circular.

While it may be true that no notary public was available or residing within respondent judge’s territorial jurisdiction, as shown by the certifications issued by the RTC Clerk of Court and the Municipal Mayor of Talibon, Bohol, SC Circular No. 1-90 specifically requires that a certification attesting to the lack of any lawyer or notary public in the said municipality or circuit be made in the notarized document. Here, no such certification was made in the Extra-Judicial Partition with Simultaneous Deed of Sale. Respondent judge also failed to indicate in his answer as to whether or not any notarial fee was charged for that transaction, and if so, whether the same was turned over to the Municipal Treasurer of Talibon, Bohol. Clearly, then, respondent judge, who was the sitting judge of the MCTC, Talibon-Getafe, Bohol, failed to comply with the aforesaid conditions prescribed by SC Circular No. 1-90, even if he could have acted as notary public ex-officio in the absence of any lawyer or notary public in the municipality or circuit to which he was assigned.

Whether or not respondent judge truly acted in good faith when he prepared and acknowledged the subject document is beside the point since he failed to strictly observe the requirements of SC Circular No. 1-90. As noted by the then Court Administrator, the document involved here is Document No. 1158, which shows that numerous documents were notarized by respondent judge in the year 1996 alone. Respondent judge was silent as to whether he charged fees when he notarized documents and if so, whether he turned over the notarial fees to the municipal treasurer. Moreover, contrary to Rule IV, Sec. 6(a) of the Rules on Notarial Practice of 2004,3 respondent notarized the said document without the SPA of the attorney-in-fact of the vendors which gave rise to the legal problem between the vendors and the vendee concerning the scope of authority of the aforesaid attorney-in-fact. By failing to comply with the conditions set for SC Circular No. 1-90 and violating the provision of the Rules on Notarial Practice of 2004, respondent judge failed to conduct himself in a manner that is beyond reproach and suspicion. Any hint of impropriety must be avoided at all cost. Judges are enjoined by the Code of Judicial Conduct to regulate their extra-judicial activities in order to minimize the risk of conflict with their judicial duties.4

Rule 140 of the Rules of Court deals with the administrative sanctions imposable on erring judges. Violation of Supreme Court rules, directives and circulars is a Less Serious Charge punishable by suspension from office or a fine of more than P10,000.00 but not exceeding P20,000.00. However, respondent judge’s application for optional retirement had already been approved by the Court en banc on March 10, 1998 in Administrative Matter No. 9449-Ret. and the release of his retirement benefits was allowed provided that the amount of P20,000.00 was withheld from the said retirement benefits, pursuant to the Resolution of this Court’s Third Division on June 16, 1999 in this administrative case, formerly docketed as Administrative Matter OCA IPI No. 97-355-MTJ.

WHEREFORE, respondent Judge ROMUALDO G. BUNO, now retired, of the Municipal Circuit Trial Court of Talibon-Getafe, Bohol, is found LIABLE for failure to comply with SC Circular No. 1-90 and the Rules on Notarial Practice. He is hereby ORDERED to pay a FINE of Twelve Thousand Pesos (P12,000.00), to be deducted from the amount withheld from his retirement benefits.

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21) TUPAL V. ROJO, A.M. MTJ-14-1842, 24 FEBRUARY 2014

Municipal trial court judges cannot notarize affidavits of cohabitation of parties whose marriage they will solemnize.

Rex M. Tupal filed with the Office of the Court Administrator a complaint against Judge Remegio V. Rojo for violating the Code of Judicial Conduct and for gross ignorance of the law.1

Judge Remegio V. Rojo presides Municipal Trial Court in Cities, Branch 5, Bacolod City, Negros Occidental. Judge Rojo allegedly solemnized marriages without the required marriage license. He instead notarized affidavits of cohabitation2 and issued them to the contracting parties.3 He notarized these affidavits on the day of the parties’ marriage.4 These "package marriages" are allegedly common in Bacolod City.5

Rex annexed to his complaint-affidavit nine affidavits of cohabitation all notarized by Judge Rojo. All affidavits were notarized on the day of the contracting parties’ marriages.6 The affidavits contained the following jurat:

SUBSCRIBED AND SWORN to before me this [date] at Bacolod City, Philippines.(sgd.)HON. REMEGIO V. ROJOJudge7

For notarizing affidavits of cohabitation of parties whose marriage he solemnized, Judge Rojo allegedly violated Circular No. 1-90 dated February 26, 1990.8 Circular No. 1-90 allows municipal trial court judges to act as notaries public ex officio and notarize documents only if connected with their official functions and duties. Rex argues that affidavits of cohabitation are not connected with a judge’s official functions and duties as solemnizing officer.9 Thus, Judge Rojo cannot notarize ex officio affidavits of cohabitation of parties whose marriage he solemnized.

Also, according to Rex, Judge Rojo allegedly violated the 2004 Rules on Notarial Practice. Judge Rojo notarized affidavits of cohabitation without affixing his judicial seal on the affidavits. He also did not require the parties to present their competent pieces of evidence of identity as required by law.

These omissions allegedly constituted gross ignorance of the law as notarial rules "[are] x x x simple and elementary to ignore."10

Judge Rojo commented on the complaint.11 He argued that Rex was only harassing him. Rex is the father of Frialyn Tupal. Frialyn has a pending perjury case in Branch 5 for allegedly making false statements in her affidavit of cohabitation. Rex only filed a complaint against Judge Rojo to delay Frialyn’s case.12

Judge Rojo did not deny notarizing the affidavits of cohabitation. He argued that notarizing affidavits of cohabitation was connected with his official functions and duties as a judge.13 The Guidelines on the Solemnization of Marriage by the Members of the Judiciary14 does not prohibit judges from notarizing affidavits of cohabitation of parties whose marriage they will solemnize.15 Thus, Judge Rojo did not violate Circular No. 1-90.

Judge Rojo also argued that he did not violate the 2004 Rules on Notarial Practice. He is a judge, not a notary public. Thus, he was not required to affix a notarial seal on the affidavits he notarized.16

Also, Judge Rojo argued that he need not notarize the affidavits with the parties presenting their competent pieces of evidence of identity. Since he interviewed the parties as to the contents of their

affidavits, he personally knew them to be the same persons who executed the affidavit.17 The parties’ identities are "unquestionable."18

Judge Rojo alleged that other judges in Bacolod City and Talisay City also notarized affidavits of cohabitation of parties whose marriage they solemnized.19 He pleaded "not to make him [complainant Tupal’s] doormat, punching bag and chopping block"20 since other judges also notarized affidavits of cohabitation.

In its report dated July 30, 2013, the Office of the Court Administrator found that Judge Rojo violated Circular No. 1-90. The Office of the Court Administrator recommended that Judge Rojo be fined P9,000.00 and sternly warned that repeating the same offense will be dealt with more severely.

The Office of the Court Administrator ruled that affidavits of cohabitation are documents not connected with municipal trial court judges’ official functions and duties. Under the Guidelines on the Solemnization of Marriage by the Members of the Judiciary,21 a judge’s duty is to personally examine the allegations in the affidavit of cohabitation before performing the marriage ceremony.22 Nothing in the Guidelines authorizes judges to notarize affidavits of cohabitation of parties whose marriage they will solemnize.

Since Judge Rojo notarized without authority nine affidavits of cohabitation, the Office of the Court Administrator recommended a fine of P1,000.00 per affidavit of cohabitation notarized.23

The issue is whether Judge Rojo is guilty of violating the New Code of Judicial Conduct and of gross ignorance of the law.

This court finds Judge Rojo guilty of violating the New Code of Judicial Conduct and of gross ignorance of the law. Judge Rojo violated Circular No. 1-90 and the 2004 Rules on Notarial Practice.

Municipal trial court and municipal circuit trial court judges may act as notaries public. However, they may do so only in their ex officio capacities. They may notarize documents, contracts, and other conveyances only in the exercise of their official functions and duties. Circular No. 1-90 dated February 26, 1990 provides:

Municipal trial court (MTC) and municipal circuit trial court (MCTC) judges are empowered to perform the function of notaries public ex officio under Section 76 of Republic Act No. 296, as amended (otherwise known as the Judiciary Act of 1948) and Section 242 of the Revised Administrative Code. But the Court hereby lays down the following qualifications on the scope of this power:

MTC and MCTC judges may act as notaries public ex officio in the notarization of documents connected only with the exercise of their official functions and duties x x x. They may not, as notaries public ex officio, undertake the preparation and acknowledgment of private documents, contracts and other acts of conveyances which bear no direct relation to the performance of their functions as judges. The 1989 Code of Judicial Conduct not only enjoins judges to regulate their extra-judicial activities in order to minimize the risk of conflict with their judicial duties, but also prohibits them from engaging in the private practice of law (Canon 5 and Rule 5.07).

They may also act as notaries public ex officio only if lawyers or notaries public are lacking in their courts’ territorial jurisdiction. They must certify as to the lack of lawyers or notaries public when notarizing documents ex officio:

However, the Court, taking judicial notice of the fact that there are still municipalities which have neither lawyers nor notaries public, rules that MTC and MCTC judges assigned to municipalities or

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circuits with no lawyers or notaries public may, in the capacity as notaries public ex officio, perform any act within the competency of a regular notary public, provided that: (1) all notarial fees charged be for the account of the Government and turned over to the municipal treasurer (Lapena, Jr. vs. Marcos, Adm. Matter No. 1969-MJ, June 29, 1982, 114 SCRA 572); and, (2) certification be made in the notarized documents attesting to the lack of any lawyer or notary public in such municipality or circuit.24

Judge Rojo notarized affidavits of cohabitation, which were documents not connected with the exercise of his official functions and duties as solemnizing officer. He also notarized affidavits of cohabitation without certifying that lawyers or notaries public were lacking in his court’s territorial jurisdiction. Thus, Judge Rojo violated Circular No. 1-90.

Before performing the marriage ceremony, the judge must personally interview the contracting parties and examine the requirements they submitted.25 The parties must have complied with all the essential and formal requisites of marriage. Among these formal requisites is a marriage license.26 A marriage license is issued by the local civil registrar to parties who have all the qualifications and none of the legal disqualifications to contract marriage.27 Before performing the marriage ceremony, the judge must personally examine the marriage license presented.28

If the contracting parties have cohabited as husband and wife for at least five years and have no legal impediment to marry, they are exempt from the marriage license requirement.29 Instead, the parties must present an affidavit of cohabitation sworn to before any person authorized by law to administer oaths.30 The judge, as solemnizing officer, must personally examine the affidavit of cohabitation as to the parties having lived together as husband and wife for at least five years and the absence of any legal impediment to marry each other.31 The judge must also execute a sworn statement that he personally ascertained the parties’ qualifications to marry and found no legal impediment to the marriage.32 Article 34 of the Family Code of the Philippines provides:

Art. 34. No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The solemnizing officer shall also state under oath that he ascertained the qualifications of the contracting parties and found no legal impediment to the marriage.

Section 5 of the Guidelines on the Solemnization of Marriage by the Members of the Judiciary also provides:

Sec. 5. Other duties of solemnizing officer before the solemnization of the marriage in legal ratification of cohabitation. — In the case of a marriage effecting legal ratification of cohabitation, the solemnizing officer shall (a) personally interview the contracting parties to determine their qualifications to marry; (b) personally examine the affidavit of the contracting parties as to the fact of having lived together as husband and wife for at least five [5] years and the absence of any legal impediments to marry each other; and (c) execute a sworn statement showing compliance with (a) and (b) and that the solemnizing officer found no legal impediment to the marriage.

Based on law and the Guidelines on the Solemnization of Marriage by the Members of the Judiciary, the person who notarizes the contracting parties’ affidavit of cohabitation cannot be the judge who will solemnize the parties’ marriage.As a solemnizing officer, the judge’s only duty involving the affidavit of cohabitation is to examine whether the parties have indeed lived together for at least five years without legal impediment to marry. The Guidelines does not state that the judge can notarize the parties’ affidavit of cohabitation.

Thus, affidavits of cohabitation are documents not connected with the judge’s official function and duty to solemnize marriages. Notarizing affidavits of cohabitation is inconsistent with the duty to examine the parties’ requirements for marriage. If the solemnizing officer notarized the affidavit of cohabitation, he cannot objectively examine and review the affidavit’s statements before performing the marriage ceremony. Should there be any irregularity or false statements in the affidavit of cohabitation he notarized, he cannot be expected to admit that he solemnized the marriage despite the irregularity or false allegation.

Thus, judges cannot notarize the affidavits of cohabitation of the parties whose marriage they will solemnize. Affidavits of cohabitation are documents not connected with their official function and duty to solemnize marriages.

Judge Rojo admitted that he notarized affidavits of cohabitation of parties "on the same day [he solemnized their marriages]."33 He notarized documents not connected with his official function and duty to solemnize marriages. Thus, Judge Rojo violated Circular No. 1-90.

Judge Rojo argued that the Guidelines on the Solemnization of Marriage by the Members of the Judiciary does not expressly prohibit judges from notarizing affidavits of cohabitation. Thus, he cannot be prohibited from notarizing affidavits of cohabitation.

To accept Judge Rojo’s argument will render the solemnizing officer’s duties to examine the affidavit of cohabitation and to issue a sworn statement that the requirements have been complied with redundant. As discussed, a judge cannot objectively examine a document he himself notarized. Article 34 of the Family Code and the Guidelines on the Solemnization of Marriage by the Members of the Judiciary assume that "the person authorized by law to administer oaths" who notarizes the affidavit of cohabitation and the "solemnizing officer" who performs the marriage ceremony are two different persons.

Judge Rojo argued that Circular No. 1-90 only prohibits municipal trial court judges from notarizing "private documents x x x [bearing] no direct relation to the performance of their functions as judges."34 Since a marriage license is a public document, its "counterpart," the affidavit of cohabitation, is also a public document. Thus, when he notarizes an affidavit of cohabitation, he notarizes a public document. He did not violate Circular No. 1-90.

An affidavit of cohabitation remains a private document until notarized. Notarization converts a private document into a public document, "[rendering the document] admissible in court without further proof of its authenticity."35 The affidavit of cohabitation, even if it serves a "public purpose," remains a private document until notarized.

Thus, when Judge Rojo notarized the affidavits of cohabitation, he notarized nine private documents. As discussed, affidavits of cohabitation are not connected with a judge’s official duty to solemnize marriages. Judge Rojo violated Circular No. 1-90.

Judge Rojo argued that Circular No. 1-90’s purpose is to "eliminate competition between judges and private lawyers in transacting legal conveyancing business."36 He cited Borre v. Judge Moya37 where this court found City Judge Arcilla guilty of violating Circular No. 1-90 for notarizing a deed of sale. Judge Rojo argued that when he notarized the affidavits of cohabitation, he did "not compete with private law practitioners or regular notaries in transacting legal conveyancing business."38 Thus, he did not violate Circular No. 1-90.

In Borre, Judge Arcilla notarized a deed of sale. This is the context in which this court stated that "[judges] should not compete with private [lawyers] or regular notaries in transacting legal conveyancing business."39

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At any rate, Circular No. 1-90’s purpose is not limited to documents used to transact "legal conveyancing business." So long as a judge notarizes a document not connected with his official functions and duties, he violates Circular No. 1-90.

Thus, in Mayor Quiñones v. Judge Lopez, Jr.,40 this court fined Judge Lopez for notarizing a certificate of candidacy. In Ellert v. Judge Galapon, Jr.,41 this court fined Judge Galapon for notarizing the verification page of an answer filed with the Department of Agrarian Reform Adjudication Board. The documents involved in these cases were not used to transact "legal conveyancing business." Nevertheless, this court found Judge Lopez and Judge Galapon guilty of violating Circular No. 1-90.

Since Judge Rojo notarized affidavits of cohabitation, which were not connected with his official function and duty to solemnize marriages, he violated Circular No. 1-90.

Also, Judge Rojo notarized affidavits of cohabitation without certifying that lawyers or notaries public are lacking in Bacolod City. Failure to certify that lawyers or notaries public are lacking in the municipality or circuit of the judge’s court constitutes violation of Circular No. 1-90.42

That other judges have notarized affidavits of cohabitation of parties whose marriages they solemnized does not make the practice legal. Violations of laws are not excused by practice to the contrary.43

All told, Judge Rojo violated Circular No. 1-90. Judge Rojo also violated the 2004 Rules on Notarial Practice. Rule IV, Section 2, paragraph (b) of the 2004 Rules on Notarial Practice prohibits a notary public from notarizing documents if the signatory is not personally known to him. Otherwise, the notary public must require the signatory to present a competent evidence of identity:

SEC. 2. Prohibitions. – x x x x(b) A person shall not perform a notarial act if the person involved as signatory to the instrument or document -(1) is not in the notary's presence personally at the time of the notarization; and(2) is not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by these Rules.

A competent evidence of identity guarantees that the person appearing before the notary public is the signatory to the instrument or document to be notarized. If the notary public does not personally know the signatory, he must require the signatory to present a competent evidence of identity.

In all the nine affidavits of cohabitation Judge Rojo notarized, he only stated that the parties subscribed and swore to their affidavits before him. Judge Rojo did not state that the parties were personally known to him or that the parties presented their competent pieces of evidence of identity. Thus, Judge Rojo violated the 2004 Rules on Notarial Practice.

Judge Rojo argued that he personally knew the parties to the affidavits of cohabitation. They personally appeared before him to subscribe to their affidavits of cohabitation. He also interviewed them on their qualifications to contract marriage. Thus, the parties to the affidavit of cohabitation need not present their competent pieces of evidence of identity.44

That the parties appeared before Judge Rojo and that he interviewed them do not make the parties personally known to him. The parties are supposed to appear in person to subscribe to their affidavits. To personally know the parties, the notary public must at least be acquainted with

them.45 Interviewing the contracting parties does not make the parties personally known to the notary public.

For violating Circular No. 1-90 and the 2004 Rules on Notarial Practice nine times, Judge Rojo is guilty of gross ignorance of the law.

Judge Rojo argued that he notarized the affidavits of cohabitation in good faith. He cited Santos v. Judge How46 where this court held that "[g]ood faith and absence of malice, corrupt motives or improper considerations x x x"47 were defenses against gross ignorance of the law charges. His good faith in notarizing affidavits of cohabitation should not hold him administratively liable.

However, this court also held in Santos that "good faith in situations of fallible discretion [inheres] only within the parameters of tolerable judgment x x x."48 Good faith "does not apply where the issues are so simple and the applicable legal principles evident and basic as to be beyond possible margins of error."49

Circular No. 1-90 requires judges to certify that lawyers or notaries public are lacking in their courts’ territorial jurisdiction before notarizing documents. The 2004 Rules on Notarial Practice requires notaries public to personally know the signatory to the document they will notarize or require the signatory to present a competent evidence of identity. These are basic legal principles and procedure Judge Rojo violated. Failure to comply with these basic requirements nine times is not good faith.

Under the New Code of Judicial Conduct on integrity,50 "[j]udges shall ensure that not only is their conduct above reproach, but that it is perceived to be so in the view of a reasonable observer."51 If the law involved is basic, ignorance constitutes "lack of integrity."52 Violating basic legal principles and procedure nine times is gross ignorance of the law.

This court may impose the following sanctions for gross ignorance of the law or procedure, it being a serious charge:53a. dismissal from the service with forfeiture of benefits, except accrued leave credits, and disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporations;54b. suspension from office without salary and other benefits for more than three (3) but not exceeding six (6) months;55 orc. A fine of more than P20,000.00 but not exceeding P40,000.00.56

This court does not condone violations of law. Judges have been dismissed from the service for gross ignorance of the law. However, Judge Rojo may have been misled by other judges’ practice of notarizing affidavits of cohabitation in Bacolod City and Talisay City. Thus, this court finds suspension from office without salary and other benefits for six (6) months sufficient sanction.

Trial court judges are advised to strictly comply with the requirements of the law.1âwphi1 They should act with caution with respect to affidavits of cohabitation. Similar breach of the ethical requirements as in this case will be dealt with strictly.

WHEREFORE, Judge Remegio V. Rojo, Presiding Judge of the Municipal Trial Court in Cities, Branch 5, Bacolod City, Negros Occidental is SUSPENDED FROM OFFICE without salary and other benefits for SIX (6) MONTHS. His suspension is effective upon service on him of a copy of this resolution.

SERVE copies of this resolution to all municipal trial courts in Bacolod City and Talisay City.

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22) GABON V. MERKA, A.M. NO. P-11-3000, 29 NOVEMBER 2011 (EN BANC)

We resolve the administrative complaint against respondent Rebecca P. Merka, Clerk of Court II, Municipal Trial Court (MTC) of Liloan, Southern Leyte, for Grave Misconduct.

The Factual Antecedents

The antecedent facts, gathered from the records, are summarized below.

In his Complaint-Affidavit,1 complainant Arthur M. Gabon charged the respondent with Grave Misconduct (1) for writing eight demand letters in 1993 in behalf of the Saint Ignatius Loyola Credit Cooperative, Inc.,2 Simeon C. Maamo, Jr.3 and Restituta Claridad4 using the MTC’s official letterhead and signing the same letters in her official capacity as the Clerk of Court of the MTC of Liloan, Southern Leyte; and (2) for administering oaths in five affidavits5 and a Kasabutan (Agreement)6 in 1995 and 2000 that had no relation with her official duties.

The Office of the Court Administrator (OCA) directed the respondent to comment on the complaint.7

In her Comment,8 the respondent admitted the charge of using the MTC’s official letterhead and signing the demand letters in her official capacity, but explained that she acted in good faith to aid in declogging court dockets. She insisted that she was duly authorized to administer oaths under Section M, Chapter VIII of the Manual for Clerks of Court and that she did not abuse the franking privilege of the court in sending the letters as these letters were in representation of the court. She averred that the complaint was a harassment suit because she committed the acts complained of 15 or 17 years ago.

The complainant filed a Reply-Affidavit,9 arguing that the respondent acted like the counsel of a private party in writing the demand letters and that the respondent’s authority to administer oaths extended only to cases filed or pending in her assigned court.

The OCA’s Report and Recommendation

The OCA recommended that the present matter be redocketed as a regular administrative complaint. It found the respondent guilty of simple misconduct for (a) the unauthorized use of the letterhead of the court and her official designation in the demand letters she prepared in 1993, and (b) administering oaths in affidavits and a document executed in 1995 and 2000 on matters not involving official business. It recommended a penalty of suspension for one (1) month and one (1) day. The OCA also found the respondent guilty of violating Presidential Decree (PD) No. 2611 for taking advantage of the franking privilege extended to courts in sending the demand letters. It recommended a fine of P500.00 for this offense.

The OCA noted that in 2009, the Court fined the respondent in the amount of P2,000.00 for abuse of authority for the 2007 notarization of a document not related to her official functions, but this previous offense cannot now be used to increase her penalty because the acts complained of in the present case predated the act penalized in the 2009 case.12

The Court’s Ruling

We modify the findings and recommendation of the OCA.

We have repeatedly stressed that all officials and employees involved in the administration of justice, from judges to the lowest rank and file employees, bear the heavy responsibility of acting with strict propriety and decorum at all times in order to merit and maintain the public's respect

for, and trust in, the Judiciary. Simply stated, all court personnel must conduct themselves in a manner exemplifying integrity, honesty and uprightness.13

In this case, the respondent's use of the letterhead of the court and of her official designation in the eight demand letters she prepared in 1993 hardly meets the foregoing standard. She took advantage of her office and position to advance the interests of private individuals, acting as "counsel" and collecting agent for the Saint Ignatius Loyola Credit Cooperative, Inc., Simeon C. Maamo, Jr., and Restituta Claridad. Despite her good intentions, she gave private individuals an unwarranted privilege at the expense of the name of the court.14

The respondent also administered oaths in documents not involving official business, in violation of Section 41,15 as amended by Section 2 of Republic Act No. 6733,16 and Section 24217 of the Revised Administrative Code, in relation with Sections G,18 M19 and N,20 Chapter VIII of the Manual for Clerks of Court.1avvphi1 Under these provisions, Clerks of Court are notaries public ex officio; they may notarize documents or administer oaths only when the matter is related to the exercise of their official functions. Thus, in their ex-officio capacity, clerks of court should not take part in the execution of private documents bearing no relation at all to their official functions.21 The respondent administered oaths in five affidavits and a document bearing no relation at all to her official functions.

We note that the respondent also violated PD No. 26. The franking privilege granted by PD No. 26 extended only to judges and referred to official communications and papers directly connected with the conduct of judicial proceedings which shall be transmitted in the mail free of charge.22 The respondent was not a judge nor were the eight demand letters related to the discharge of judicial functions.

We cannot tolerate the respondent’s flagrant abuse and misuse of authority.

Misconduct in office refers to "any unlawful behavior by a public officer in relation to the duties of his office, willful in character. The term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act."23 In grave misconduct, as distinguished from simple misconduct, the elements of corruption, clear intent to violate the law, or flagrant disregard of established rule must be manifest.24 Corruption as an element of grave misconduct consists in the act of an official or employee who unlawfully or wrongfully uses his station or character to procure some benefit for himself or for another, contrary to the rights of others,25 as in this case. By her repeated abuse and misuse of authority, the respondent exhibited an obvious lack of integrity expected of a court employee.

Grave misconduct is a serious offense punishable, under Section 52 of the Revised Uniform Rules on Administrative Cases in the Civil Service, with dismissal even for the first offense.

We are duty-bound to sternly wield a corrective hand to discipline errant employees and to weed out those who are found undesirable. The respondent failed to meet the strict standards set for a court employee; hence, she does not deserve to remain in the Judiciary.

WHEREFORE, respondent Rebecca P. Merka, Clerk of Court II, Municipal Trial Court of Liloan, Southern Leyte, is found GUILTY of Grave Misconduct. She is hereby DISMISSED from the service, with forfeiture of all benefits, except accrued leave credits, and with prejudice to reemployment in any branch or instrumentality of the government, including government-owned or controlled corporations and financial institutions.

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