A. NOTARIAL LAW
XVI-2004-13 dated January
2004 RULES ON NOTARIAL PRACTICE
HEIRS OF PEDRO ALILANO VS. EXAMEN
FACTS:
Pedro Alilano and his wife, Florentina, were the holders
of Original Certificate of Title covering a 98,460 sq. m.
parcel of land.
It appears that on March 31, 1984 and September 12, 1984
Absolute Deeds of Sale were executed by the Spouses
Alilano in favor of Ramon Examen and his wife,
Edna. Both documents were notarized by respondent
Atty. Roberto Examen, brother of the vendee. Sometime
in September 1984, Spouses Examen obtained possession
of the property.
On January 12, 2002, the heirs of Alilano filed a suit for
recovery of possession before the RTC against Edna
Examen and Atty. Roberto Examen. It was during this
proceeding that Atty. Examen introduced into evidence
the Absolute Deeds of Sale.
On November 15, 2003, the heirs of Alilano filed this
complaint alleging that Atty. Examen, based on Barretto
v. Cabreza, violated the notarial law when he notarized
the absolute deeds of sale since a notary public is
prohibited from notarizing a document when one of the
parties is a relative by consanguinity within the fourth
civil degree or affinity within the second civil degree.
It is also alleged that Atty. Examen notarized the
documents knowing that the cedula or residence
certificate number used by Ramon Examen was not
actually his but the residence certificate number of
Florentina. Atty. Examen also falsely acknowledged that
the two witnesses personally appeared before him when
they did not. Lastly, it is alleged that despite knowing the
infirmities of these documents, Atty. Examen introduced
these documents into evidence violating his oath as a
lawyer and the CPR.
In his defense, Atty. Examen pointed out that there was
no longer any prohibition under the Revised
Administrative Code for a notary public to notarize a
document where one of the parties is related to him by
consanguinity and affinity. With regard to the use of
Florentina’s residence certificate as Ramon’s, Atty.
Examen said that he was in good faith and that it was
office practice that the secretary type details without him
personally examining the output. In any event, he
reasoned that the use of another’s residence certificate is
not a ground for disbarment and is barred by prescription
based on IBP Resolution No.
26, 2004 where it was proposed that the Rules of
Procedure of the Commission on Bar Discipline
Integrated Bar of the Philippines, Section 1, Rule VIII, be
revised to include a prescription period for professional
misconduct: within two years from the date of the act.
In its Report and Recommendation, the IBP Commission
on Bar Discipline (CBD) found Atty. Examen liable for
breach of the Notarial Law and introducing false Absolute
Deeds of Sale before court proceedings. It stated that
there was ample evidence to support the complainants’
contention that the Spouses Alilano did not voluntarily
and knowingly convey their property, i.e. denials under
oath by attesting witnesses and NBI Report by
Handwriting Expert Jennifer Dominguez stating that
Pedro Alilano’s signature in the September 1984
Absolute Deed of Sale was significantly different from
the specimen signatures. It also noted that Ramon
Examen’s residence certificate number, date and place of
issue were also falsified since the residence certificate
actually belonged to Florentina Pueblo. It thus
recommended that the penalty of disbarment be imposed.
The IBP Board of Governors (BOG) in its June 26, 2007
Resolution adopted the IBP CBD’s report but modified
the penalty to suspension from the practice of law for a
period of two years and a suspension of Atty. Examen’s
Notarial Commission for a period of two years.
Atty. Examen moved for reconsideration. In its Notice of
Resolution, the IBP BOG denied the motion for
reconsideration. It also modified the penalty imposed to
suspension from the practice of law for a period of one
year and disqualification from re-appointment as Notary
Public for a period of two years.
ISSUE:
1. W/N the action has already prescribed
2. W/N the Spanish notarial law of
1889 was repealed by the revised
administrative code of 1917
3. W/N Atty. Examen was negligent in the performance
of his duties as a notary public
RULING:
1. NO.
In Frias v. Atty. Bautista-Lozada,, it was ruled that there
can be no prescription in bar discipline cases.
If the rule were otherwise, members of the bar would be
emboldened to disregard the very oath they took as
lawyers, prescinding from the fact that as long as no
private complainant would immediately come forward,
they stand a chance of being completely exonerated from
whatever administrative liability they ought to answer
for. It is the duty of this Court to protect the integrity of
the practice of law as well as the administration of
justice. No matter how much time has elapsed from the
time of the commission of the act complained of and the
time of the institution of the complaint, erring members of
the bench and bar cannot escape the disciplining arm of
the Court.
We therefore ruled in Frias, that Rule VIII, Section 1 of
the Rules of Procedure of the IBP CBD was void and had
no legal effect for being ultra vires and thus null and void.
2. YES.
Prior to 1917, governing law for notaries public in the
Philippines was the Spanish Notarial Law of
1889. However, the law governing Notarial Practice is
changed with the passage of the January 3, 1916 Revised
Administrative Code, which took effect in 1917. In 2004,
the Revised Rules on Notarial Practice27 was passed by
the Supreme Court.
In Kapunan, et al. v. Casilan and Court of Appeals,28 the
Court had the opportunity to state that enactment of the
Revised Administrative Code repealed the Spanish
Notarial Law of 1889.
In this case, the heirs of Alilano stated that Atty. Examen
was prohibited to notarize the absolute deeds of sale since
he was related by consanguinity within the fourth civil
degree with the vendee, Ramon. The prohibition might
have still applied had the applicable rule been the Spanish
Notarial Law. However, following the Court’s ruling
in Kapunan, the law in force at the time of signing was
the Revised Administrative Code, thus, the prohibition
was removed. Atty. Examen was not incompetent to
notarize the document even if one of the parties to the
deed was a relative, his brother.
Note must be taken that under 2004 Rules on Notarial
Practice, Rule IV, Section 3(c), a notary public is
disqualified among others to perform the notarial act if he
is related by affinity or consanguinity to a principal within
the fourth civil degree, to wit:
(c) is a spouse, common-law partner, ancestor,
descendant, or relative by affinity or consanguinity of the
principal within the fourth civil degree.
That Atty. Examen was not incompetent to act as a notary
public in the present case does not mean that he can evade
administrative liability under the CPR in conjunction with
the provisions of the Notarial Law.
3. YES.
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. For this reason, notaries public must
observe with utmost care the basic requirements in the
performance of their duties.
Thus under the prevailing law at the time of notarization
it was the duty of the notary public to comply with the
requirements of the Notarial Law. This includes the duty
under Chapter 11, Section 251 of the Revised
Administrative Code:
SEC. 251. Requirement as to notation of payment of
cedula [residence] tax. – Every contract, deed, or other
document acknowledged before a notary public shall have
certified thereon that the parties thereto have presented
their proper cedula [residence] certificates or are exempt
from the cedula [residence] tax, and there shall be entered
by the notary public as a part of such certification the
number, place of issue, and date of each cedula
[residence] certificate as aforesaid.
Under Chapter 11, Section 249 of the Revised
Administrative Code provided a list of the grounds for
disqualification:
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:

(f) The failure of the notary to make the proper notation

SEC. 3. Disqualifications. – A notary public is
regarding cedula certificates.
disqualified from performing a notarial act if he:
In Soriano v. Atty. Basco,33 the Court stated that notaries an attorney for a party to a case without authority so to do.
public are required to follow formalities as these are The practice of soliciting cases at law for the purpose of
mandatory and cannot be simply neglected. Thus, the gain, either personally or through paid agents or brokers,
Notarial Law requires them to certify that a party to the constitutes malpractice.
instrument acknowledged before him has presented the
proper residence certificate (or exemption from the
By his negligent act of not checking the work of his
residence certificate) and to enter its number, place of
secretary and merely perfunctorily notarizing documents,
issue and date as part of the certification. Failure to
it cannot be said that he upheld legal processes thus
perform his duties results in the revocation of a notary’s
commission. violating Canon 1 of the CPR. Neither can it be said that
he promoted confidence in the legal system. If anything,
Here, based on the submission of the complainants, it is his acts serve to undermine the functions of a diligent
clear that the residence certificate number used by Ramon lawyer. He thus ran afoul Rule 1.02 of the CPR. We
Examen and as notarized by Atty. Examen in both cannot stress enough that as a lawyer, respondent is
Absolute Deeds of Sale was not in fact the residence expected at all times to uphold the integrity and dignity of
certificate of Ramon but Florentina’s residence certificate the legal profession and refrain from any act or omission
number.35 Atty. Examen interposes that he was in good which might lessen the trust and confidence reposed by
faith in that it was office practice to have his secretary the public in the integrity of the legal profession. A
type up the details of the documents and requirements lawyer’s mandate includes thoroughly going over
without him checking the correctness of same. documents presented to them typed or transcribed by their
secretaries.
A notary public must discharge his powers and duties,
which are impressed with public interest, with accuracy
and fidelity.36 Good faith cannot be a mitigating
circumstance in situations since the duty to function as a
notary public is personal. We note that the error could
have been prevented had Atty. Examen diligently
performed his functions: personally checked the
correctness of the documents. To say that it was his
secretary’s fault reflects disregard and unfitness to
discharge the functions of a notary public for it is he who
personally acknowledges the document.
Atty. Examen posits that the failure of a notary to make
the proper notation of cedulas can only be a ground for
disqualification and not the proper subject for a
disbarment proceeding. We disagree.

In violating the provisions of the Notarial Law, Atty.

Examen also transgressed the his oath as a lawyer,
provisions of the CPR and Section 27, Rule 138 of the
Rules of Court which provides:

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, 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 wilful disobedience of any lawful order of a
superior court, or for corruptly and willfully appearing as
GENERAL CONSIDERATIONS
IVQ HOLDINGS, INC VS. BARBOZA
FACTS:
Barbosa filed a Petition for Cancellation and Quieting
of Titles7 against Jorge Vargas III, Benito Montinola,
IVQ, and the Register of Deeds of Quezon City.
Barbosa averred that he bought a parcel of land located in
QC from Vargas. Vargas surrendered the TCT and hen
Barbosa took possession of the property and paid the real
estate taxes in the name of Vargas. Later on, Barbosa
learned that Vargas’ name was cancelled and replaced
with that of IVQ in the tax declaration of the subject
property.
Upon investigation, Barbosa found out that the subject
property was previously registered in the name of
Kawilihan Corporation under TCT No. 71507. Therese
Vargas acquired the subject property from Kawilihan
Corporation and the date of entry of her TCT No. 159487
was November 6, 1970. On the other hand, IVQ
supposedly bought the subject property from Jorge
Vargas III who, in turn, acquired it also from Kawilihan
Corporation. The date of entry of Jose Vargas III's TCT
No. 223019 was October 14, 1976. This title was later
reconstituted and re-numbered as TCT No. RT-76391.
The title of IVQ, TCT No. 253434, was issued on August
6, 2003.
Barbosa argued that even without considering the
authenticity of Jorge Vargas III's title, Therese Vargas's
title bore an earlier date. Barbosa, thus, prayed for the trial
court to issue an order directing the Office of the Register
of Deeds of Quezon City to cancel Jorge Vargas III's TCT
No. 223019 and IVQ's TCT No. 253434 and adjudicating
ownership of the subject property to him.
In their Answer to the above petition, Jose Vargas III,
Benito Montinola, and IVQ (respondents in the court a
quo) countered that the alleged title from where Barbosa's
title was allegedly derived from was the one that was
fraudulently acquired and that Barbosa was allegedly part
of a syndicate that falsified titles for purposes of "land
grabbing." They argued that it was questionable that an
alleged lot owner would wait for 30 years before filing an
action to quiet title. They prayed for the dismissal of the
petition and, by way of counterclaim, sought the award of
moral and exemplary damages, attorney's fees and costs
of suit.
Barbosa testified and added that in the year 2000,
Santiago Sio Soy Une, allegedly the president of Lisan
Realty and Development Corporation (Lisan Realty),
presented to Barbosa's caretaker a Deed of Sale with
Assumption of Mortgage,13 which was allegedly executed
by Jorge Vargas III and Lisan Realty involving the subject
property. Barbosa then went on to compile documents on
the transactions relating to the subject property.
Barbosa testified that in the Deed of Sale with
Assumption of Mortgage of Jorge Vargas III and Santiago
Sio Soy Une, the Friar Land Survey (FLS) number was
denominated as FLS-2554-D, while in the title of Therese
Vargas it was FLS-2544-D. Barbosa obtained a
certification from the Lands Management Bureau that
FLS-2554-D was not listed in their electronic data
processing (EDP) listing, as well as a certification from
the DENR that FLS-2554-D had no records in the Land
Survey Records Section of said office. On the other hand,
he obtained a certification from the Lands Management
Bureau that Lot 644 subdivided under FLS-2544-D was
listed in their records.14 Barbosa also learned that IVQ
was registered with the Securities and Exchange
Commission only on June 5, 1998. Moreover, on January
7, 2004, IVQ filed Civil Case No. Q-17499(04), which is
a petition for the cancellation of an adverse claim filed by
Santiago Sio Soy Une (Exhibit "RR"). In a portion of the
transcript of stenographic notes (TSN) in said case, it was
stated that IVQ bought the property from Therese Vargas,
not from Jorge Vargas III.15
Barbosa furthermore secured a certification from the EDP
Division of the Office of the City Assessor in Quezon City
that there were no records of real property assessments in
the name of Jorge Vargas III as of August 15, 2006.
Moreover, Barbosa stated that Atty. Jesus C. Apelado, Jr.,
the person who notarized the March 3, 1986 Deed of
Absolute Sale between Jorge Vargas III and IVQ, was not
authorized to do so as Atty. Apelado was only admitted
as a member of the Philippine Bar in 1987. Also, the
notarial register entries, i.e., the document number, page
number, book number and series number, of the Deed of
Absolute Sale in favor of IVQ were exactly the same as
those in the special power of attorney (SPA) executed by
Jorge Vargas III in favor of Benito Montinola, who signed
the Deed of Absolute Sale on behalf of Jorge Vargas III.
The Deed of Absolute Sale and the SPA were notarized
by different lawyers but on the same date.16
On the part of the respondents in the court a quo, they
presented a lone witness, Atty. Erlinda B. Espejo. Her
testimony was offered to prove that she was the legal
consultant of IVQ; that IVQ's TCT No. 253434 was
acquired from Jorge Vargas III through TCT No. RT-
76391; that Jorge Vargas III's title was mortgaged at
Philippine National Bank (PNB), Bacolod; that Benito
Montinola, the attorney-in-fact of Jorge Vargas III, sold
the subject property to Lisan Realty who in turn assigned
its rights to IVQ and; that IVQ redeemed the property
from PNB. Barbosa's counsel offered to stipulate on the
offer so that the witness' testimony could already be
dispensed with.17
As to the supposed sale to Lisan Realty and Lisan Realty's
assignment of rights to IVQ, the counsel for Barbosa
agreed to stipulate on the same if the transactions were
annotated in Jorge Vargas III's title. The counsel for IVQ
said that they were so annotated. Upon inquiry of the trial
court judge, the counsel for IVQ clarified that the
transfers or assignment of rights were done at the time that
the subject property was mortgaged with PNB. The
property was then redeemed by IVQ on behalf of Jorge
Vargas III.
The RTC granted Barbosa's petition and ordered the
cancellation of IVQ's TCT No. 253434.19 The trial court
noted that while the original copy of the Deed of Absolute
Sale in favor of Barbosa was not presented during trial,
Barbosa presented secondary evidence by submitting to
the court a photocopy of said deed and the deed of sale in
favor of his predecessor-in-interest Therese Vargas, as
well as his testimony. The RTC ruled that Barbosa was
able to establish the existence and due execution of the
deeds of sale in his favor and that of Therese Vargas.
The Certification20 dated February 12, 2004 from the
Office of the Clerk of Court and Ex-Officio Sheriff of the
RTC, Manila stated that the page on which the Deed of
Sale dated October 4, 1978 in favor of Barbosa might
have been probably entered was torn. This, however, did
not discount the possibility that said deed was actually
notarized and recorded in the missing notarial records
page. Moreover, the RTC found that Barbosa adduced
evidence that proved the payment21 of Therese Vargas to
Jorge Vargas, as well as the payment of Barbosa to
Therese Vargas.
The RTC further observed that Therese Vargas's TCT No.
159487 and Jorge Vargas III's TCT No. 223019 bear more
or less identical technical descriptions of Lot 644-C-5,
except for their friar survey plan numbers. However, the
Lands Management Bureau and Land Survey Records
Section of the DENR, NCR issued certifications attesting
that their respective offices had no record of FLS-2554-
D, the land survey number in the certificates of title held
by Jorge Vargas III and IVQ. On the other hand, Barbosa
presented a certified true copy of the subdivision survey
plan FLS-2544-D from the Lands Management Bureau,
thereby bolstering his claim that the title of Therese
Vargas was an authentic transfer of the title of Kawilihan
Corporation.
Therese Vargas's TCT No. 159487 was also issued earlier
in time than Jorge Vargas III's TCT No. 223019. Not only
was the original of Therese Vargas's TCT No. 159487
presented in court, but the same was also proven to have
existed according to the Certification from the LRA dated
October 6, 2003 that Judicial Form No. 109-D with Serial
No. 1793128 - pertaining to TCT No. 159487 - was issued
by an authorized officer of the Register of Deeds of
Quezon City.
CA affirmed RTC’s decision.
ISSUE:
RULING:
Without ruling on the merits of this case, the Court finds
that there is a need to reassess the evidence adduced by
the parties to this case and thereafter reevaluate the
findings of the lower courts.
To recall, Barbosa initiated this case before the trial
court via a petition for cancellation and quieting of titles.
As held in Secuya v. De Selma,48
In an action to quiet title, the plaintiffs or
complainants must demonstrate a legal or an
equitable title to, or an interest in, the subject real
property. Likewise, they must show that the deed,
claim, encumbrance or proceeding that purportedly
casts a cloud on their title is in fact invalid or
inoperative despite its prima facie appearance of
validity or legal efficacy.
In the instant case, the trial court and the Court of Appeals
adjudicated the subject property in favor of Barbosa and
directed the cancellation of IVQ's certificate of title.
The trial court found that Barbosa was able to substantiate
the transfer of ownership of the subject property from
Kawilihan Corporation to Therese Vargas and then to
Barbosa. Specifically, Barbosa established the existence
and execution of the Deed of Absolute Sale dated
September 11, 1970 between Kawilihan Corporation and
Therese Vargas, as well as the Deed of Absolute Sale
dated October 4, 1978 between Therese Vargas and
Barbosa. In like manner, the trial court ruled that Barbosa
adduced evidence that purportedly proved the payment of
Therese Vargas to Kawilihan Corporation, and the
payment of Barbosa to Therese Vargas. Also, the trial
court found that Barbosa was able to prove the validity of
Therese Vargas's TCT No. 159487. Moreover, the friar
land survey number in Therese Vargas's TCT No.
159487- FLS-2544-D - was the one found to be extant in
the records of Lands Management Bureau, not FLS-2554-
D, the survey number in the certificates of title of Jorge
Vargas III and IVQ.
On the other hand, the trial court found that IVQ failed to
establish its claim of ownership over the subject property,
given the inconsistent statements on how the property was
transferred from Kawilihan Corporation to Jorge Vargas
III and eventually to IVQ.
Before this Court, however, IVQ adduced new pieces of
documentary evidence that tended to cast doubt on the
veracity of Barbosa's claim of ownership.
To impugn the validity of the Deed of Absolute Sale
between Kawilihan Corporation and Therese Vargas,
IVQ submitted a copy of the Certification from the Office
of the Bar Confidant that Espiridion J. Dela Cruz, the
notary public who supposedly notarized the said deed, is
not a member of the Philippine Bar. IVQ also submitted a
copy of the Certification from the National Archives,
stating that the Deed of Absolute Sale in favor of Therese
Vargas was not found in their records.
Anent the Deed of Absolute Sale between Therese Vargas
and Barbosa, IVQ presented a Certification from the
Office of the Clerk of Court and Ex-Officio Sheriff of the
RTC of Manila, stating that the notarial entries of Atty.
Santiago R. Reyes in said deed, i.e., Doc. No. 1947, Page
92, Book No. XIV, Series of 1978, pertained to a deed of
sale between other individuals. Also, the Deed of
Absolute Sale in favor of Barbosa was not found in the
photocopies of pages 90, 91, and 92 of the aforesaid
notarial records of Atty. Santiago R. Reyes, which pages
were reproduced from the National Archives. IVQ also
submitted a Certification from the City Treasurer's Office
of the City of Manila, stating that Therese Vargas's
Residence Certificate No. A-423263 in the Deed of
Absolute Sale in favor of Barbosa was not among those
allotted to the City of Manila.
Furthermore, IVQ submitted a letter from Director
Porfirio R. Encisa, Jr. of the LRA Department of
Registration, stating that the survey number FLS-2554-D
in IVQ's TCT No. 253434 was a typographical error and
the same should have been FLS-2544-D.
On the other hand, to bolster its claim of ownership over
the subject property, IVQ presented a copy of the Deed of
Absolute Sale50 dated March 12, 1976 between Kawilihan
Corporation and Jorge Vargas III that was obtained from
the records of the National Archives. IVQ also submitted
a copy of the Certification from the Office of the Clerk of
Court of the RTC of Pasig City that Atty. Jejomar C.
Binay, the officer who notarized the said deed, was indeed
appointed as a notary public for the province of Rizal for
the year 1976 and the latter submitted his notarial reports
for the said year.
Interestingly, despite the claim of both parties that their
respective titles could be traced to TCT No. 71507 in the
name of Kawilihan Corporation, neither of them thought
to submit a certified true copy of the cancelled TCT No.
71507, which would have indicated to whom the subject
property had in fact been transferred.
The parties likewise admit in their pleadings that there is
an on-going investigation being conducted by the LRA on
the authenticity and genuineness of the certificates of title
involved in the present case and to date, the LRA has not
issued any official report pertaining to said investigation.
After reviewing the factual and procedural antecedents of
this case, the Court deems it appropriate that further
proceedings be undertaken in order to verify the
authenticity and veracity of the parties' certificates of title
and other documentary evidence.
For sure, the Court is aware that the aforesaid evidence
belatedly introduced by IVQ are not technically newly-
discovered evidence, given that the same could have been
discovered and produced at the trial of the case had IVQ
exercised reasonable diligence in obtaining
them.51 Nonetheless, we find that the above evidence
cannot simply be brushed aside on this ground alone. The
same are too material to ignore and are relevant in
ultimately resolving the question of ownership of the
subject property. In Mangahas v. Court of Appeals,52 we
recognized the long line of jurisprudence
that:ChanRoblesVirtualawlibrary
[I]t is always in the power of this Court to suspend its own
rules, or to except a particular case from its operation,
whenever the purposes of justice require it. This Court is
mindful of the policy of affording litigants the amplest
opportunity for the determination of their cases on the
merits and of dispensing with technicalities whenever
compelling reasons so warrant or when the purpose of
justice requires it. (Citations omitted.)
Indeed, the alleged defects in the notarization of the Deed
of Absolute Sale dated September 11, 1970 between
Kawilihan Corporation and Therese Vargas and the Deed
of Absolute Sale dated October 4, 1978 between Therese
Vargas and Barbosa are by no means trivial.
As the Court stressed in Vda. De Rosales v. Ramos:
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.
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. The notarial
registry is a record of the notary public's official acts.
Acknowledged documents and instruments recorded in it
are considered public document. 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. x x x. (Citations omitted.)
Furthermore, in Bitte v. Jonas,54 the Court had occasion
to discuss the consequence of an improperly notarized
deed of absolute sale. Thus -
Article 1358 of the New Civil Code requires that the form
of a contract transmitting or extinguishing real rights over
immovable property should be in a public document.
x x x x
Not having been properly and validly notarized, the
deed of sale cannot be considered a public
document. It is an accepted rule, however, that the failure
to observe the proper form does not render the transaction
invalid. It has been settled that a sale of real property,
though not consigned in a public instrument or formal
writing is, nevertheless, valid and binding among the
parties, for the time-honored rule is that even a verbal
contract of sale or real estate produces legal effects
between the parties.
Not being considered a public document, the deed is
subject to the requirement of proof under Section 20, Rule
132, which reads:
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.
Accordingly, the party invoking the validity of the
deed of absolute sale had the burden of proving its
authenticity and due execution.
In the instant case, should the Deeds of Absolute Sale in
favor of Therese Vargas and Barbosa, respectively, be
found to be indeed improperly notarized, the trial court
would have erred in admitting the same in evidence
without proof of their authenticity and in relying on the
presumption regarding the regularity of their execution.
Barbosa would then have the additional burden of proving
the authenticity and due execution of both deeds before
he can invoke their validity in establishing his claim of
ownership.
Therefore, IVQ should be allowed to formally offer in
evidence the documents it belatedly submitted to this
Court and that Barbosa should equally be given all the
opportunity to refute the same or to submit controverting
evidence.
Given that the Court is not a trier of facts and there still
are factual matters that need to be evaluated, the proper
recourse is to remand the case to the Court of Appeals for
the conduct of further proceedings.
ABADIANO VS. MARTIR
FACTS:
Lot No. 1318 of the Kabankalan Cadastre consists of
34,281 square meters covered by Original Certificate of
Title (OCT) No. 20461 issued on November 19, 1923 in
the name of the spouses Inocentes Baares and Feliciana
Villanueva. Before the issuance of OCT No. 20461,
however, Inocentes and the heirs of Feliciana Villanueva
(who had predeceased her husband) executed an
Agreement of Partition dated June 1, 1922 over Lot No.
1318. The lot was partitioned and distributed as follows:
(1) 14,976 sq m denominated as Lot No. 1318-A, in favor
of Demetrio Baares; (2) 10,125 sq m denominated as Lot
No. 1318-B, in favor of Ramon and David Abadiano
(grandchildren of Inocentes and Feliciana); and (3)
10,180 sq m denominated as Lot No. 1318-C, in favor of
Amando Baares. The partition is embodied in a Deed of
Partition executed on June 1, 1922 and notarized the
following day by Notary Public Jose Peralta with notarial
inscriptions Reg. No. 64, Pag. 69, Libro III.
On September 30, 1939, David Abadiano, who was
absent during the execution of the Agreement of Partition,
executed a Deed of Confirmation acknowledging and
ratifying the document of partition.
OCT No. 20461 was administratively reconstituted
on February 15, 1962 and in lieu thereof OCT No. RO-
8211 (20461) was issued over Lot No. 1318, still in the
name of Inocentes Baares and Felicidad Villanueva.
Annotated at the back of the reconstituted title were the
Agreement of Partition and the Deed of Confirmation.
On June 14, 1957 Demetrio Baares sold his share of the
lot to his son, Leopoldo. The same was annotated at the
back of OCT No. RO-8211 (20461).
Subsequently, on February 21, 1962, Leopoldo Baares
filed before the Court of First Instance (CFI) of Negros
Occidental an ex-parte petition praying for: first, the
confirmation of the Agreement of Partition, the
Conformity executed by David Abadiano, and the Deed
of Sale between him and his father; and second, the
cancellation of OCT No. RO-8211 (20461) and, in lieu
thereof, the issuance of a new certificate of title over the
property. In an Order dated February 22, 1962, the court
ordered the cancellation of OCT No. RO-8211 (20461)
and the issuance of a new certificate of title in the names
of Dr. Leopoldo Baares, Amando Baares, and Ramon and
David Abadiano. Pursuant thereto, Transfer Certificate of
Title (TCT) No. T-31862 was issued by the Register of
Deeds for Negros Occidental.
Petitioner insists that this is still the valid and subsisting
title over Lot No. 1318 and that no sale of the portion
pertaining to Ramon and David Abadiano ever took place.
On the other hand, respondent spouses alleged that, prior
to the issuance of TCT No. T-31862, Ramon Abadiano,
for himself and on behalf of David Abadiano, had already
sold their rights and interests over Lot No. 1318-C to
Victor Garde. The sale was allegedly evidenced by a
document of sale (Compra Y Venta) dated June 3, 1922
and acknowledged before Notary Public Jose Peralta and
bearing notarial inscription Doc. No. 64, Pag. No. 60,
Book No. III, series of 1922. The sale was allegedly
affirmed by David Abadiano in a document
dated September 30, 1939.
They further alleged that from the time of the sale, Victor
Garde and his heirs were in continuous, public, peaceful,
and uninterrupted possession and occupation in the
concept of an owner of Lot No. 1318-C. On December 29,
1961, the heirs of Victor Garde sold their rights and
interests over Lot No. 1318-C to Jose Garde, who
immediately took possession thereof. Jose Garde
continuously planted sugarcane on the land until he sold
the property to Lolita Martir in 1979.
After acquiring the property, respondent spouses
continued to plant sugarcane on the land. Sometime in
March 1982, after respondent Jesus Martir harvested the
sugarcane he had planted on Lot No. 1318-C, defendant
below Roberto Abadiano (son of Ramon) allegedly
entered the property and cultivated the remaining stalks
of sugarcane and refused to vacate despite demands to do
so. The following year, defendants Roberto Abadiano,
Faustino Montao, and Quirico Mandaguit again harvested
the sugarcane on Lot No. 1318-C. Further, the defendants
also entered the property and harvested the sugarcane on
Lot No. 1318-B, which by then had been acquired by
Lolita B. Martir from her adoptive father, Amando
Baares.
Thus, in April 1982, herein respondent-spouses filed the
Action to Quiet Title and/or Recovery of Possession with
Damages before the then CFI
In their Answer with Counterclaim,[19] defendants denied
that the subject property was ever sold by Ramon and
David Abadiano, and that, consequently, defendant
Roberto Abadiano had inherited the same from Ramon.
They also alleged, by way of Special and Affirmative
Defenses, that the subject land still belonged to the estate
of Ramon and David Abadiano and was never alienated.
They alleged further that the act of spouses Martir in
planting sugarcane on the land was without Robertos
consent; that Roberto had demanded that the spouses
Martir pay him reasonable rental for the land but that they
had persistently refused to do so; and that sometime in
March 1981, Roberto and the spouses Martir came to an
agreement whereby the defendant continued to cultivate
the remaining stalks of sugarcane left by plaintiffs and
that until the harvest of said sugarcane, plaintiffs never
posed any objection thereto.
Xerxes Abadiano intervened in the proceedings before the
trial court alleging likewise that his predecessor Ramon
Abadiano never sold their share of the property to Victor
Garde.
CFI ruled in favor of spouses martin and rejected therein
defendants contention that the Compra Y Venta was null
and void because the co-owner, David Abadiano, did not
sign the same. It held that the Supreme Court has ruled to
the effect that the sale by a co-owner of the entire property
without the consent of the other co-owners was not null
and void but that only the rights of the co-owner-seller are
transferred, making the buyer a co-owner. The trial court
also held that although the Compra Y Venta was not
annotated either on the OCT or on the reconstituted OCT,
the validity of the sale was not vitiated. The registration
or annotation is required only to make the sale valid as to
third persons. Thus, the trial court concluded that
the Compra Y Venta was valid between the parties,
Ramon Abadiano and Victor Garde.
ISSUE: W/N RTC erred in ruling for spouses martin
RULING: YES.
In appreciating the alleged Compra Y Venta presented by
respondents, the trial court concluded that [t]he parties
have no quarrel on the existence of a Deed of Sale of a
portion of Lot No. 1318 executed by Ramon Abadiano for
himself and as representative of David Abadiano, dated
June 3, [1922] in favor of Victor Garde.
The trial court erred in its conclusion.
It was error then for the RTC to have brushed aside this
issue and then make so sweeping a conclusion in the face
of such opposition. In light of this challenge to the very
existence of the Compra Y Venta, the trial court should
have first resolved the issue of the documents authenticity
and due execution before deciding on its validity.
Unfortunately, the CA did not even discuss this issue.
There is no denying that TCT No. 31862 is still the
subsisting title over the parcel of land in dispute. It is also
a fact that the purported Compra Y Venta was not
annotated on TCT No. 31862 until April 1982, shortly
before the complaint was commenced, even though the
deed was allegedly executed in 1922.
Considering that the action is one for quieting of title and
respondents anchored their claim to the property on the
disputed Compra Y Venta, we find it necessary to repeat
that it was incumbent upon the trial court to have resolved
first the issue of the documents due execution and
authenticity, before determining its validity.
Respondents attached only a photocopy of the Compra Y
Venta to their complaint. According to respondent Lolita
Martir, the original of said document was in the office of
the Register of Deeds. They allegedly tried to obtain a
copy from that office but their request was refused. No
other evidence but these bare assertions, however, was
presented to prove that the original is indeed in the
custody of the Register of Deeds or that respondents due
and diligent search for the same was unsuccessful.
The Rule states that when the original document is
unavailable, has been lost or destroyed, or cannot be
produced in court, the offeror, upon proof of its execution
or existence and the cause of its unavailability without bad
faith on his part, may prove its contents by a copy, or by
a recital of its contents in some authentic document, or by
the testimony of witnesses in the order stated.
In the case at bar, respondents failed to establish that the
offer in evidence of the document was made in
accordance with any of the exceptions allowed under the
abovequoted rule, and yet, the trial court accepted the
document as genuine and proceeded to determine its
validity based on such assumption.
The trial court likewise brushed aside the apparent defect
that the document presented contained the same notarial
inscription as the Agreement on Partition. Indeed, the
Deed of Partition and the Compra Y Venta, though
executed on different days, were notarized on the same
day, and both documents contained the signatures of the
same witnesses and the same notarial inscription.
This notwithstanding, the court concluded, Assuming this
to be true, same could be considered an error which did
not nullify, (sic) the Deed of Sale or Compra Y Venta. At
most, the document would be a non-registrable, but valid
document.
We stress that a notarial document is evidence of the facts
in the clear unequivocal manner therein expressed and has
in its favor the presumption of regularity.
In this case, while it is true that the error in the notarial
inscription would not have invalidated the sale if indeed
it took place the same error would have meant that the
document cannot be treated as a notarial document and
thus, not entitled to the presumption of regularity. The
document would be taken out of the realm of public
documents whose genuineness and due execution need
not be proved.
Accordingly, respondents not having proven the due
execution and genuineness of the purported Compra Y
Venta, the weight of evidence preponderates in favor of
petitioner.
CAMCAM VS. CA
FACTS:
Petitioner Leonor Camcam (Leonor) and her husband
Laureano Salvador (Laureano) were the registered owners
of two parcels of land.
Laureano died intestate on December 9, 1941. He was
survived by his wife-petitioner Leonor; his brothers
Agapito and petitioners Jose and Fortunato, all
surnamed Salvador; and the heirs of his deceased brother
Luis Salvador (Luis), namely, petitioners Virginia,
Gloria, Florendo, Delfin, Rodrigo, Eleuterio, Narciso,
Onofre, Zenaida, and Aurelia, all surnamed Salvador.
On February 9, 1983, Leonor, together with her brothers-
in-law Agapito, Jose, Fortunato, and Luis heirs, filed
before the Regional Trial Court against respondent
Arcadio Frias (Frias), for annulment of the following
documents executed by Leonor in Frias favor covering
Lot Nos. 19554 and 18738:
1. November 4, 1982 Deed of Adjudication
with Sale of the entire Lot No. 19554 and of Lot No.
18738, for a P11,000
consideration signed by Leonor (Exhibit B/1);
2. November 4, 1982 Deed of Extra-Judicial
Partition and Sale of ONE-HALF () portion EACH [of the
two lots] together with [Leonors] conjugal share of ONE-
HALF () EACH of the [two lots] with all the
improvements thereon for a P45,000
consideration, signed by Leonor (Exhibit A/3); and
3. November 23, 1982 Deed of Absolute Sale of
the other half of Lot No. 18738, for a consideration
of P3,000, signed by Leonor (Exhibit C/2).
Frias offered to purchase the two lots from
Leonor. Leonor, however, was only willing to enter into a
sale with right of repurchase within five years.Frias
agreed to Leonors condition but he deceived her into
signing the Deed of Adjudication-Exhibit B/1, after which
he paid her P9,000 out of the P11,000 consideration, he
promising that he would settle the balance of P2,000
before the end of the month.
In the latter part of November 1982, Frias, instead of
delivering the balance of P2,000, again deceived Leonor
into signing another document, the Deed of Absolute
Sale-Exhibit C/2, he telling her that since two lots were
involved, she had to sign another instrument pertaining to
the other lot.
Upon verification with Rodolfo Acosta (Acosta), the
notary public who notarized Exhibits B/1 and C/2,
petitioners discovered that the deeds Leonor signed
transferred ownership of the entire area covering the two
lots. They also, upon inquiry with the Register of Deeds
at Lingayen, discovered that Original Certificate of Title
Nos. 11634 and 12027 in the name of Leonor and her
husband covering the two lots were cancelled and
Transfer Certificate of Title Nos. 143752 and
143753 were in their stead issued in Frias name. Further,
they discovered that Frias registered the document-
Exhibit A/3, which had the same date and notarial details
as those of Exhibit B/1.
Petitioners alleged that assuming that the documents are
valid, it is void with respect to the shares of Leonors co-
heirs-co-petitioners as they were conveyed without their
knowledge and participation.
Frias advanced the following version:
Leonor inherited the two lots, to the exclusion of her co-
petitioners, under the old Civil Code and it was she who
convinced him to buy them.
Leonor later changed her mind and was willing to sell
only the whole of the residential land, Lot No. 19554, and
of the mango and coconut land, Lot No. 18739, as she was
giving her brothers-in-law two weeks to buy the
remaining portion thereof, hence, he and Leonor forged
Exhibit B/1. Leonor later informed him that her brothers-
in-law could not buy the remaining portion of Lot No.
18739, hence, he and Leonor forged Exhibit C/2.
After the execution of the two documents
dated November 4, 1982, Frias brought them to
the Municipal Building to pay taxes. When asked by an
employee of the then-Ministry of Agrarian Reform how
much he paid for the lots, Frias confessed to not having
indicated the correct consideration on the documents
because he wanted to escape paying taxes such as capital
gains taxes. On being informed of the consequences of
not reflecting the true consideration of the two lots in the
documents, he had the third document, Exhibit A/3,
prepared which, after explaining to Leonor the reason
beyond the necessity therefor, she signed in notary public
Acostas office.
RTC ruled against the petitioner with respect to her
portion. Meaning, half of the land must be given to
defendant and the other half be given to the brothers and
sisters per stirpes.
CA affirmed RTC with modification.
Petitioners contend as follows:
From the appearance of these documents, particularly
the Deed of Extrajudicial Partition and Sale (Annex A or
Exh. A/3) and the Deed of Adjudication with Sale (Annex
B or Exh. B/1), while both were notarized by the same
notary public, yet they have identical notarial
documentary identification, i.e., the same documentary
number to be 464, same page number 44, the same book
number X and the same series of 1982, and appeared to
have been sworn before the notary public on the same
date November 4, 1982.
Aside from the anomalous situation created by the
irregularly executed deeds and advantageously employed
by the private respondent, in order to conceal the apparent
irregularities, the private respondent claimed that the
Deed of Partition and Sale (Annex A or Exh A/3) dated
November 4, 1982, was a consolidation deed of the Deed
of Adjudication with Sale dated November 4, 1982
(Annex B or Exh. B/1) and the Deed of Absolute Sale
dated November 23, 1982 (Annex C or Exh
C/2). However, summing up the consideration stated in
Annex B of P11,000.00 and the consideration stated in
Annex C of P3,000.00, the total will naturally be
P14,000.00, but the alleged [consolidation] deed (Annex
A or Exh A/3) shows the consideration is not P14,000.00
but P45,000.00.
Assuming, without admitting, that petitioner Leonor
Camcam regularly sold her one-half portion in the two
parcels of land in favor of private respondent Arcadio
Frias, however, considering the preferential right of the
other petitioners, who are admittedly the owners of the
other half portion in said parcels of land, and considering
further the attendant circumstances of this case, as
discussed above, the petitioners, with the exception of
petitioner Leonor Camcam, should be allowed to jointly
exercise their right of redemption, the consideration of
which shall proportionately be based on that Deed (Annex
B or Exh. B/1) which was published in the newspaper.
ISSUE:
RULING:
The petition is bereft of merit.
Without passing on the merits of Frias claim that Leonor
originally sold to him of Lot No. 18739 as reflected in the
first November 4, 1982 document but later conveyed the
remaining thereof, hence, the execution of the second
document bearing the same date, an irregular notarization
merely reduces the evidentiary value of a document to
that of a private document, which requires proof of its due
execution and authenticity to be admissible as
evidence. The irregular notarization or, for that matter,
the lack of notarization does not thus necessarily affect
the validity of the contract reflected in the
document. Tigno v. Aquino enlightens:
x x x [F]rom a civil law perspective, the absence of
notarization of the Deed of Sale would not necessarily
invalidate the transaction evidenced therein. Article 1358
of the Civil Code requires that the form of a contract that
transmits or extinguishes real rights over immovable
property should be in a public document, yet it is also an
accepted rule that the failure to observe the proper form
does not render the transaction invalid. Thus, it has been
uniformly held that the form required in Article 1358 is
not essential to the validity or enforceability of the
transaction, but required merely for convenience. We
have even affirmed that a sale of real property though not
consigned in a public instrument or formal writing, is
nevertheless valid and binding among the parties, for the
time-honored rule is that even a verbal contract of sale or
real estate produces effects between the parties.
Petitioners alleged fraud on Frias part, hence, they had the
burden of establishing the same by clear and convincing
evidence. This they failed to discharge.
By Leonors account, she signed the three documents
relying on Frias word that they were deeds of mortgage,
and she did not read them because she [did] not know how
to read, When asked, however, on cross-examination
about her educational attainment, Leonor answered that
she finished the third year of a nursing course at San Juan
de Dios Hospital.
Clarifying her statement that she did not know how to
read, Leonor explained that she knew how to read but her
eyesight was blurred. Leonors granddaughter-witness
Gertrudes Calpo (Gertrudes) who signed as witness in
Exhibit B/1 declared, however, that she read the contents
of Exhibit B/1 to Leonor, thus belying petitioners claim
that Leonor signed the same without knowing its true
contents.
As for Exhibit A/3 which petitioners maintain is spurious,
Leonors signature therein being allegedly forged, Leonor
herself admitted having signed the same, and this was
corroborated by Gertrudes.
As for Leonors co-petitioners invocation of their right of
redemption of the share of Leonor in the lots sold to Frias,
points of law, theories, issues of fact, and arguments not
brought to the attention of the trial court ordinarily are not
considered by a reviewing court as they cannot be raised
for the first time on appeal. Besides, given that petitioners
already knew of the sale as early as 1983, they are guilty
of laches, having raised their right of redemption for the
first time in 2000 when they filed the present petition.
AT ALL EVENTS, even assuming that the invocation by
Leonors co-petitioners of their right of redemption was
timely made, it cannot be considered a valid exercise
thereof as it was not accompanied by a reasonable and
valid tender of the entire repurchase price.
MARTIRES VS. CHUA
FACTS:
The property, more particularly described as "Lot: 24 lots,
Block 213, Section: Plaza of Heritage-Reg.," is covered
by Transfer Certificate of Title (TCT) No. 342914.
Respondent, together with her mother, Florencia R.
Calagos, own the disputed property.
On December 18, 1995, respondent borrowed from
petitioner spouses the amount of ₱150,000.00. The loan
was secured by a real estate mortgage over the
abovementioned property. Respondent committed to pay
a monthly interest of 8% and an additional 10% monthly
interest in case of default.
Respondent failed to fully settle her obligation.
Subsequently, without foreclosure of the mortgage,
ownership of the subject lots were transferred in the name
of petitioners via a Deed of Transfer.
respondent filed with the Regional Trial Court (RTC) of
Quezon City a Complaint against petitioners, Manila
Memorial Park Inc., the company which owns the Holy
Cross Memorial Park, and the Register of Deeds of
Quezon City, praying for the annulment of the contract of
mortgage between her and petitioners on the ground that
the interest rates imposed are unjust and exorbitant.
Respondent moved for the amendment of her complaint
to include the allegation that she later discovered that
ownership of the subject lots was transferred in the name
of petitioners by virtue of a forged Deed of Transfer and
Affidavit of Warranty. Respondent prayed that the Deed
of Transfer and Affidavit of Warranty be annulled.
RTC rendered its decision in favor of petitioners.
CA affirmed but later reversed its decision.
Hence, the present petition based on the following
grounds:
A. THE COURT OF APPEALS PATENTLY ERRED IN
NOT UPHOLDING THE DEED OF TRANSFER
EXECUTED BY THE RESPONDENT IN FAVOR OF
THE PETITIONERS BY RULING THAT:
1. The Deed of Transfer executed by respondent in favor
of petitioners over the subject property was not entered in
the Notarial Book of Atty. Francisco Talampas and
reported in the Notarial Section of the Regional Trial
Court of Makati City.
2. The Deed of Transfer was not duly notarized by Atty.
Francisco Talampas inasmuch as there was no convincing
proof that respondent appeared before Notary Public Atty.
Talampas.
RULING:
The petition lacks merit.
The petition is filed out of time. (15-day period rule)
In any case, even granting, arguendo, that the present
petition is timely filed, the Court finds no cogent reason
to depart from the findings and conclusions of the CA in
its disputed Amended Decision.
Anent the first assigned error, petitioners are correct in
pointing out that notarized documents carry evidentiary
weight conferred upon them with respect to their due
execution and enjoy the presumption of regularity which
may only be rebutted by evidence so clear, strong and
convincing as to exclude all controversy as to
falsity.20 However, the presumptions that attach to
notarized documents can be affirmed only so long as it is
beyond dispute that the notarization was regular.21 A
defective notarization will strip the document of its public
character and reduce it to a private
instrument. Consequently, when there is a defect in the
notarization of a document, the clear and convincing
evidentiary standard normally attached to a duly-
notarized document is dispensed with, and the measure to
test the validity of such document is preponderance of
evidence.
In the present case, the CA has clearly pointed out the
dubious circumstances and irregularities attendant in the
alleged notarization of the subject Deed of Transfer, to
wit: (1) the Certification issued by the Clerk of Court of
the Notarial Section of the RTC of Makati City which
supposedly attested that a copy of the subject Deed of
Transfer is on file with the said court, was contradicted by
the Certification issued by the Administrative Officer of
the Notarial Section of the same office as well as by the
testimony of the court employee who prepared the
Certification issued by the Clerk of Court, to the effect
that the subject Deed of Transfer cannot, in fact, be found
in their files; (2) respondent's categorical denial that she
executed the subject Deed of Transfer; and (3) the subject
document did not state the date of execution and lacks the
marital consent of respondent's husband.
Indeed, petitioners' heavy reliance on the Certification
issued by the notary public who supposedly notarized the
said deed, as well as the Certification issued by the Clerk
of Court of the Notarial Section of the RTC of Makati
City, is misplaced for the following reasons: first, the
persons who issued these Certifications were not
presented as witnesses and, as such, they could not be
cross-examined with respect to the truthfulness of the
contents of their Certifications; second, as mentioned
above, these Certifications were contradicted by the
Certification issued by the Administrative Officer of the
Notarial Section of the RTC of Makati City as well as by
the admission, on cross-examination, of the clerk who
prepared the Certification of the Clerk of Court, that their
office cannot, in fact, find a copy of the subject Deed of
Transfer in their files; and third, the further admission of
the said clerk that the Certification, which was issued by
the clerk of court and relied upon by petitioners, was not
based on documents existing in their files, but was simply
based on the Certification issued by the notary public who
allegedly notarized the said Deed of Transfer.
Assuming further that the notarization of the disputed
Deed of Transfer was regular, the Court, nonetheless, is
not persuaded by petitioners' argument that such Deed is
a sufficient evidence of the validity of the agreement
between petitioners and respondent.
While indeed a notarized document enjoys the
presumption of regularity, the fact that a deed is notarized
is not a guarantee of the validity of its contents. The
presumption is not absolute and may be rebutted by clear
and convincing evidence to the contrary. In the present
case, the presumption cannot be made to apply, because
aside from the regularity of its notarization, the validity of
the contents and execution of the subject Deed of Transfer
was challenged in the proceedings below where its prima
facie validity was subsequently overthrown by the
questionable circumstances attendant in its supposed
execution. These circumstances include: (1) the alleged
agreement between the parties that the ownership of the
subject property be simply assigned to petitioners instead
of foreclosure of the contract of mortgage which was
earlier entered into by them; (2) the Deed of Transfer was
executed by reason of the loan extended by petitioners to
respondent, the amount of the latter's outstanding
obligation being the same as the amount of the
consideration for the assignment of ownership over the
subject property; (3) the inadequacy of the consideration;
and (4) the claim of respondent that she had no intention
of transferring ownership of the subject property to
petitioners.
Based on the foregoing, the Court finds no cogent reason
to depart from the findings of the CA that the agreement
between petitioners and respondent is, in fact, an
equitable mortgage.
ARANAS VS MERCADO
FACTS: Emigdio S. Mercado (Emigdio) died intestate on
January 12, 1991, survived by his second wife, Teresita
V. Mercado (Teresita), and their five children, namely:
Allan V. Mercado, Felimon V. Mercado, Carmencita M.
Sutherland, Richard V. Mercado, and Maria Teresita M.
Anderson; and his two children by his first marriage,
namely: respondent Franklin L. Mercado and petitioner
Thelma M. Aranas (Thelma).
Emigdio inherited and acquired real properties during his
lifetime. He owned corporate shares in Mervir Realty
Corporation (Mervir Realty) and Cebu Emerson
Transportation Corporation (Cebu Emerson). He assigned
his real properties in exchange for corporate stocks of
Mervir Realty, and sold his real property in Badian, Cebu
(Lot 3353 covered by TCT No. 3252) to Mervir Realty.
Teresita was appointed as the administrator. Teresita
submitted an inventory of the estate of Emigdio for the
consideration and approval by the RTC. She indicated in
the inventory that at the time of his death, Emigdio had
“left no real properties but only personal properties”
worth P6,675,435.25 in all, consisting of cash of
P32,141.20; furniture and fixtures worth P20,000.00;
pieces of jewelry valued at P15,000.00; 44,806 shares of
stock of Mervir Realty worth P6,585,585.80; and 30
shares of stock of Cebu Emerson worth P22,708.25.
Claiming that Emigdio had owned other properties that
were excluded from the inventory, Thelma moved that the
RTC direct Teresita to amend the inventory, and to be
examined regarding it. The RTC granted Thelma’s
motion through an order.
Teresita filed a compliance with the order supporting her
inventory with copies of 3 certificates of stocks covering
the 44,806 Mervir Realty shares of stock; the deed of
assignment executed by Emigdio involving real
properties with the market value of P4,440,651.10 in
exchange for 44,407 Mervir Realty shares of stock with
total par value of P4,440,700.00;5 and the certificate of
stock for 300 shares of stock of Cebu Emerson worth
P30,000.00.
Thelma opposed the approval of the inventory, and asked
leave of court to examine Teresita on the inventory. With
the parties agreeing to submit themselves to the
jurisdiction of the court on the issue of what properties
should be included in or excluded from the inventory, the
RTC set dates for the hearing on that issue.
The RTC later on ruled that the inventory submitted by
Teresita had excluded properties that should be included.
Teresita, joined by other heirs of Emigdio, timely sought
the reconsideration of the order of March 14, 2001 on the
ground that one of the real properties affected, Lot No.
3353 located in Badian, Cebu, had already been sold to
Mervir Realty, and that the parcels of land covered by the
deed of assignment had already come into the possession
of and registered in the name of Mervir Realty. However,
RTC denied the MR.
Teresita appealed to the CA by petition for certiorari
based on grave abused of discretion in ruling that there
are excluded properties in the inventory.
The CA held that that Teresita, et al. had properly filed
the petition for certiorari because the order of the RTC
directing a new inventory of properties was interlocutory;
that pursuant to Article 1477 of the Civil Code, to the
effect that the ownership of the thing sold “shall be
transferred to the vendee” upon its “actual and
constructive delivery,” and to Article 1498 of the Civil
Code, to the effect that the sale made through a public
instrument was equivalent to the delivery of the object of
the sale, the sale by Emigdio and Teresita had
transferred the ownership of Lot No. 3353 to Mervir
Realty because the deed of absolute sale had been
notarized; that Emigdio had thereby ceased to have any
more interest in Lot 3353; that Emigdio had assigned the
parcels of land to Mervir Realty as early as February 17,
1989 “for the purpose of saving, as in avoiding taxes with
the difference that in the Deed of Assignment dated
January 10, 1991, additional seven (7) parcels of land
were included”; that as to the January 10, 1991 deed of
assignment, Mervir Realty had been “even at the losing
end considering that such parcels of land, subject
matter(s) of the Deed of Assignment dated February 12,
1989, were again given monetary consideration through
shares of stock”; that even if the assignment had been
based on the deed of assignment dated January 10, 1991,
the parcels of land could not be included in the inventory
“considering that there is nothing wrong or objectionable
about the estate planning scheme”; that the RTC, as an
intestate court, also had no power to take cognizance of
and determine the issue of title to property registered in
the name of third persons or corporation; that a property
covered by the Torrens system should be afforded the
presumptive conclusiveness of title; that the RTC, by
disregarding the presumption, had transgressed the clear
provisions of law and infringed settled jurisprudence on
the matter; and that the RTC also gravely abused its
discretion in holding that Teresita, et al. were estopped
from questioning its jurisdiction because of their
agreement to submit to the RTC the issue of which
properties should be included in the inventory.
ISSUE:
Did the CA properly determine that the RTC committed
grave abuse of discretion amounting to lack or excess of
jurisdiction in directing the inclusion of certain properties
in the inventory notwithstanding that such properties had
been either transferred by sale or exchanged for corporate
shares in Mervir Realty by the decedent during his
lifetime?
a. Was certiorari the proper recourse
to assail the questioned orders of the RTC?
b. Did the RTC commit grave abuse of discretion in
directing the inclusion of the properties in the
estate of the decedent?
RULING:
A. Yes, certiorari is the proper recourse.
The propriety of the special civil action for certiorari as a
remedy depended on whether the assailed orders of the
RTC were final or interlocutory in nature
The distinction between a final order and an interlocutory
order is well known. The first disposes of the subject
matter in its entirety or terminates a particular proceeding
or action, leaving nothing more to be done except to
enforce by execution what the court has determined, but
the latter does not completely dispose of the case but
leaves something else to be decided upon. An
interlocutory order deals with preliminary matters and the
trial on the merits is yet to be held and the judgment
rendered. The test to ascertain whether or not an order or
a judgment is interlocutory or final is: does the order or
judgment leave something to be done in the trial court
with respect to the merits of the case? If it does, the order
or judgment is interlocutory; otherwise, it is final.
The assailed order of March 14, 2001 denying Teresita’s
motion for the approval of the inventory and the order
dated May 18, 2001 denying her motion for
reconsideration were interlocutory. This is because the
inclusion of the properties in the inventory was not yet a
final determination of their ownership. Hence, the
approval of the inventory and the concomitant
determination of the ownership as basis for inclusion or
exclusion from the inventory were provisional and subject
to revision at anytime during the course of the
administration proceedings.
The reason for disallowing an appeal from an
interlocutory order is to avoid multiplicity of appeals in a
single action, which necessarily suspends the hearing and
decision on the merits of the action during the pendency
of the appeals. Permitting multiple appeals will
necessarily delay the trial on the merits of the case for a
considerable length of time, and will compel the adverse
party to incur unnecessary expenses, for one of the parties
may interpose as many appeals as there are incidental
questions raised by him and as there are interlocutory
orders rendered or issued by the lower court. An
interlocutory order may be the subject of an appeal, but
only after a judgment has been rendered, with the ground
for appealing the order being included in the appeal of the
judgment itself.
Clearly, the assailed orders of the RTC, being
interlocutory, did not come under any of the instances in
which multiple appeals are permitted.
B. The RTC did not commit grave abuse of
discretion.
In its assailed decision, the CA concluded that the RTC
committed grave abuse of discretion for including
properties in the inventory notwithstanding their having
been transferred to Mervir Realty by Emigdio during his
lifetime, and for disregarding the registration of the
properties in the name of Mervir Realty, a third party, by
applying the doctrine of piercing the veil of corporate
fiction.
The CA is not correct.
The general rule is that the jurisdiction of the trial court,
either as a probate court or an intestate court, relates only
to matters having to do with the probate of the will and/or
settlement of the estate of deceased persons, but does not
extend to the determination of questions of ownership that
arise during the proceedings. The patent rationale for this
rule is that such court merely exercises special and limited
jurisdiction.
However, this general rule is subject to exceptions as
justified by expediency and convenience.
First, the probate court may provisionally pass upon in
an intestate or a testate proceeding the question of
inclusion in, or exclusion from, the inventory of a piece
of property without prejudice to final determination
of ownership in a separate action. Second, if the
interested parties are all heirs to the estate, or the question
is one of collation or advancement, or the parties consent
to the assumption of jurisdiction by the probate court
and the rights of third parties are not impaired, then
the probate court is competent to resolve issues on
ownership. Verily, its jurisdiction extends to matters
incidental or collateral to the settlement and distribution
of the estate, such as the determination of the status of
each heir and whether the property in the inventory is
conjugal or exclusive property of the deceased spouse.
Here, RTC strictly followed the directives of the Rules of
Court and the jurisprudence relevant to the procedure for
preparing the inventory by the administrator. The
directive to include the properties in question in the
inventory rested on good and valid reasons.
Firstly, the shares in the properties inherited by Emigdio
from Severina Mercado should be included in the
inventory because Teresita, et al. did not dispute the fact
about the shares being inherited by Emigdio.
Secondly, with Emigdio and Teresita having been married
prior to the effectivity of the Family Code in August 3,
1988, their property regime was the conjugal partnership
of gains.29 For purposes of the settlement of Emigdio’s
estate, it was unavoidable for Teresita to include his
shares in the conjugal partnership of gains. The party
asserting that specific property acquired during that
property regime did not pertain to the conjugal
partnership of gains carried the burden of proof, and that
party must prove the exclusive ownership by one of them
by clear, categorical, and convincing evidence.30 In the
absence of or pending the presentation of such proof, the
conjugal partnership of Emigdio and Teresita must be
provisionally liquidated to establish who the real owners
of the affected properties were,31 and which of the
properties should form part of the estate of Emigdio. The
portions that pertained to the estate of Emigdio must be
included in the inventory.
Moreover, although the title over Lot 3353 was already
registered in the name of Mervir Realty, the RTC made
findings that put that title in dispute. Civil Case No. CEB–
12692, a dispute that had involved the ownership of Lot
3353, was resolved in favor of the estate of Emigdio, and
Transfer Certificate of Title No. 3252 covering Lot 3353
was still in Emigdio’s name. Indeed, the RTC noted in the
order of March 14, 2001, or ten years after his death, that
Lot 3353 had remained registered in the name of Emigdio.
Interestingly, Mervir Realty did not intervene at all in
Civil Case No. CEB–12692. Such lack of interest in Civil
Case No. CEB–12692 was susceptible of various
interpretations, including one to the effect that the heirs of
Emigdio could have already threshed out their differences
with the assistance of the trial court. This interpretation
was probable considering that Mervir Realty, whose
business was managed by respondent Richard, was
headed by Teresita herself as its President. In other words,
Mervir Realty appeared to be a family corporation.
Also, the fact that the deed of absolute sale executed by
Emigdio in favor of Mervir Realty was a notarized
instrument did not sufficiently justify the exclusion from
the inventory of the properties involved. A notarized deed
of sale only enjoyed the presumption of regularity in favor
of its execution, but its notarization did not per
se guarantee the legal efficacy of the transaction under the
deed, and what the contents purported to be. The
presumption of regularity could be rebutted by clear and
convincing evidence to the contrary.32 As the Court has
observed in Suntay v. Court of Appeals:33
x x x. Though the notarization of the deed of sale
in question vests in its favor the presumption of
regularity, it is not the intention nor the function
of the notary public to validate and make binding
an instrument never, in the first place, intended to
have any binding legal effect upon the parties
thereto. The intention of the parties still and
always is the primary consideration in
determining the true nature of a contract.
It should likewise be pointed out that the exchange of
shares of stock of Mervir Realty with the real properties
owned by Emigdio would still have to be inquired into.
That Emigdio executed the deed of assignment two days
prior to his death was a circumstance that should put any
interested party on his guard regarding the exchange,
considering that there was a finding about Emigdio
having been sick of cancer of the pancreas at the time.34 In
this regard, whether the CA correctly characterized the
exchange as a form of an estate planning scheme
remained to be validated by the facts to be established in
court.
The fact that the properties were already covered by
Torrens titles in the name of Mervir Realty could not be a
valid basis for immediately excluding them from the
inventory in view of the circumstances admittedly
surrounding the execution of the deed of assignment. This
is because the Torrens system is not a mode of acquiring
titles to lands; it is merely a system of registration of titles
to lands.
Lastly, the inventory of the estate of Emigdio must be
prepared and submitted for the important purpose of
resolving the difficult issues of collation and
advancement to the heirs.
The determination of which properties should be
excluded from or included in the inventory of estate
properties was well within the authority and discretion of
the RTC as an intestate court.
ABOITIZ VS PO
FACTS: This case involves a parcel of land located in
Cabancalan, Mandaue City,9 initially registered as
Original Certificate of Title No. 0-887, and titled under
the name of Roberto Aboitiz (Roberto).10 The land is
referred to as Lot No. 2835.11 This parcel of land
originally belonged to the late Mariano Seno (Mariano).12
On July 31, 1973, Mariano executed a Deed of Absolute
Sale in favor of his son, Ciriaco Seno (Ciriaco), over a
1.0120-hectare land in Cebu covered by Tax Declaration
No. 43358.13 This property included two (2) lots: Lot No.
2807 and the land subject of this case, Lot No. 2835.14
On May 5, 1978, Ciriaco sold the two (2) lots to Victoria
Po (Victoria).15 The parties executed a Deed of Absolute
Sale.16
On July 15, 1982, Mariano died and was survived by his
five (5) children (Mariano Heirs): Esperanza Seno Vda.
De Kuizon, Ramon Seno,17 Benita Seno Vda. De Lim,
Simeon Seno,18 and Ciriaco.19
In 1990, Peter Po (Peter) discovered that Ciriaco "had
executed a [q]uitclaim dated August 7, 1989 renouncing
[his] interest over Lot [No.] 2807 in favor of [petitioner]
Roberto."20 In the quitclaim, Ciriaco stated that he was
"the declared owner of Lot [Nos.] 2835 and 2807."21
The Spouses Po confronted Ciriaco.22 By way of remedy,
Ciriaco and the Spouses Po executed a Memorandum of
Agreement dated June 28, 1990 in which Ciriaco agreed
to pay Peter the difference between the amount paid by
the Spouses Po as consideration for the entire property
and the value of the land the Spouses Po were left with
after the quitclaim.23
However, also in 1990, Lot No. 2835 was also sold to
Roberto.24 The Mariano Heirs, including Ciriaco,
executed separate deeds of absolute sale in favor of
Roberto.25 Thereafter, Roberto immediately developed
the lot as part of a subdivision called North Town
Homes.26
In 1991, the Spouses Po declared Lot No. 2835 for
taxation purposes and was issued Tax. Declaration No.
0634-A.27
In 1992, Roberto also declared Lot No. 2835 for taxation
purposes and was issued Tax Declaration No. 1100,
annotated with: "This tax declaration is also declared in
the name of Mrs. VICTORIA LEE PO married to PETER
PO under [T]ax [Declaration] [N]o. 0634-A so that one
may be considered a duplicate to the other."28
On April 19, 1993, Roberto filed an application for
original registration of Lot No. 2835 with the Mandaue
City Regional Trial Court, acting as land registration
court.29 The case was raffled to Branch 28 and docketed
as LRC Case No. N-208.30
In its Decision dated October 28, 1993, the trial court
granted the issuance of Original Certificate of Title No. 0-
887 in the name of Roberto.31 The lot was immediately
subdivided with portions sold to Ernesto and Jose.32
On November 19, 1996, the Spouses Po filed a complaint
to recover the land and to declare nullity of title with
damages.
The RTC ruled that the plaintiffs is the owner of subject
land and ordering the defendants reconvey and/or return
to plaintiffs Lot No. 2835; declaring as absolute nullity all
the documents of sale involving Lot 2835 executed by the
Heirs of Mariano Seno in favor of defendant Roberto
Aboitiz and such other documents used in the improvident
issuance of titles in the name of defendants, and to cancel
the said titles.
The CA partially affirmed the trial court decision,
declaring the Spouses Po as the rightful owner of the land.
However, it ruled that the titles issued to respondents Jose,
Ernesto, and Isabel should be respected. It held that the
Mariano Heirs were no longer the owners of the lot at the
time they sold it to Roberto in 1990 because Mariano,
during his lifetime, already sold this to Ciriaco in 1973.39
It found that the Deed of Absolute Sale between Ciriaco
and the Spouses Po was duly notarized and was thus
presumed regular on its face.40 Their Memorandum of
Agreement did not cancel or rescind the Deed of Absolute
Sale but rather strengthened their claim that they "entered
into a contract of [s]ale."
ISSUES:
I. W/N the RTC has jurisdiction over the Spouses
Peter and Victoria Po's complaint;
II. W/N the action is barred by prescription,
III. W/N the doctrines of estoppel and laches apply;
IV. W/N the land registration court's finding that
Ciriaco Seno only held the property in trust for
the Mariano Heirs is binding as res judicata in
this case;
V. W/N the Deed of Absolute Sale between Ciriaco
Seno and the Spouses Peter and Victoria Po
should be considered as evidence of their
entitlement to the property; (impt)
VI. W/N the Mariano Heirs, as sellers in a deed of
conveyance of realty, are indispensable parties;
and
VII. W/N the respondents Jose Maria Moraza, Ernesto
Aboitiz, and Isabel Aboitiz are innocent
purchasers in good faith.
RULING
I. Yes, RTC has jurisidicion. The action filed is an
action for reconveyance not annulment of
judgment.
The Spouses Aboitiz argue that Branch 55, Regional Trial
Court did not have jurisdiction to nullify the final and
executory Decision of Branch 28, Regional Trial Court in
LRC Case No. N-208.73 They claim that that it is the
Court of Appeals that has jurisdiction to annul judgments
of the Regional Trial Court.74
However, the instant action is not for the annulment of
judgment of a Regional Trial Court. It is a complaint for
reconveyance, cancellation of title, and damages.75
A complaint for reconveyance is an action which admits
the registration of title of another party but claims that
such registration was erroneous or wrongful.
An action for annulment of title questions the validity of
the title because of lack of due process of law. There is an
allegation of nullity in the procedure and thus the
invalidity of the title that is issued.
The complaint of the Spouses Po asserted that they were
the true owners of the parcel of land which was registered
in the name of the Spouses Aboitiz.78 They alleged that
they acquired the property from Ciriaco, who acquired it
from Mariano.79 They claimed that the Spouses Aboitiz
had the property registered without their knowledge and
through fraud.80 Thus, they sought to recover the property
and to cancel the title of the Spouses Aboitiz
Considering the Spouses Aboitiz's fraudulent registration
without the Spouses Po's knowledge and the latter's
assertion of their ownership of the land, their right to
recover the property and to cancel the Spouses
Aboitiz's88 title, the action is for reconveyance and
annulment of title and not for annulment of judgment.
Thus, the Regional Trial Court has jurisdiction to hear this
case.
II. Sps Po’s action has not prescribed.
[A]n action for reconveyance ... prescribes in [10] years
from the issuance of the Torrens title over the
property."91 The basis for this is Section 53, Paragraph
392 of Presidential Decree No. 152993 in relation to
Articles 145694 and 1144(2)95 of the Civil Code.
Under Presidential Decree No. 1529 (Property
Registration Decree), the owner of a property may avail
of legal remedies against a registration procured by fraud:
SECTION 53. Presentation of Owner's Duplicate Upon
Entry of New Certificate. - . . .
In all cases of registration procured by fraud, the owner
may pursue all his legal and equitable remedies against
the parties to such fraud without prejudice, however, to
the rights of any innocent holder for value of a certificate
of title...
Article 1456 of the Civil Code provides that a person
acquiring a property through fraud becomes an implied
trustee of the property's true and lawful owner.97
An implied trust is based on equity and is either (i) a
constructive trust, or (ii) a resulting trust.98 A resulting
trust is created by implication of law and is presumed as
intended by the parties.99 A constructive trust is created
by force of law100 such as when a title is registered in
favor of a person other than the true owner.101
The implied trustee only acquires the right "to the
beneficial enjoyment of [the] property."102 The legal title
remains with the true owner.
The prescriptive period to enforce this trust is 10 years
from the time the right of action accrues. Article 1144 of
the Civil Code provides:
Article 1144. The following actions must be brought
within ten years from the time the right of action accrues:
(1) Upon a written contract;
(2) Upon an obligation created by law;
(3) Upon a judgment.
In an action for reconveyance, the right of action accrues
from the ti.me the property is registered
Registration of the property is a "constructive notice to the
whole world."114 Thus, in registering the property, the
adverse party repudiates the implied trust.115 Necessarily,
the cause of action accrues upon registration.116
An action for reconveyance and annulment of title does
not seek to question the contract which allowed the
adverse party to obtain the title to the property.117 What is
put on issue in an action for reconveyance and
cancellation of title is the ownership of the property and
its registration.118 It does not question any fraudulent
contract119 Should that be the case, the applicable
provisions are Articles 1390120 and 1391121 of the Civil
Code.122
Thus, an action for reconveyance and cancellation of title
prescribes in 10 years from the time of the issuance of the
Torrens title over the property.123
Considering that the Spouses Po's complaint was filed on
November 19, 1996, less than three (3) years from the
issuance of the Torrens title over the property on April 6,
1994, it is well within the 10-year prescriptive period
imposed on an action for reconveyance.
III. Laches and estoppel do not apply.
The Spouses Aboitiz insist that estoppel and laches have
already set in.124 They claim that they have been in "open,
continuous, public, peaceful, [and] adverse" possession in
the concept of owners over the property for "46 years as
of 1993," without the Spouses Po acting on their Deed of
Absolute Sale.125Moreover, the development of North
Town Homes Subdivision "was covered by utmost
publicity" but the Spouses Po did not promptly question
the development.126 In fact, they did not interpose any
objection during the registration proceedings.127
There is laches when a party was negligent or has failed
"to assert a right within a reasonable time," thus giving
rise to the presumption that he or she has abandoned
it.128 Laches has set in when it is already inequitable or
unfair to allow the party to assert the right.
"Laches is different from prescription."131 Prescription
deals with delay itself and thus is an issue of how much
time has passed.132 The time period when prescription is
deemed to have set in is fixed by law.133Laches, on the
other hand, concerns itself with the effect of delay and not
the period of time that has lapsed.134 It asks the question
whether the delay has changed "the condition of the
property or the relation of the parties" such that it is no
longer equitable to insist on the original right
This Court rules that the Spouses Po is not barred by
laches. There is no showing that they abandoned their
right to the property. The factual findings reveal that the
Spouses Po had their rights over the property registered in
the assessor's office.140 They testified that they introduced
improvements by cultivating fruit trees after they
purchased the lots.141 When the Spouses Po discovered
that Ciriaco executed a quitclaim renouncing his interest
over Lot No. 2807 in favor of Roberto, the Spouses Po
executed a Memorandum of Agreement with Ciriaco to
protect their interest in Lot No. 2835.142
The Spouses Po also had the property declared for
taxation purposes in their names and Tax Declaration No.
0634-A was issued.143 Thus, when the Spouses Aboitiz
also had the property declared for taxation purposes, it
had the annotation: "This tax declaration is also declared
in the name of Mrs. Victoria Lee Po, married to Peter Po
under tax dec. no. 0634-A so that one may be considered
a duplicate to the other."144
The Spouses Aboitiz only acquired their alleged rights
over the property in 1990, when the Mariano Heirs
executed the Deeds of Sale in their favor.145 Assuming the
Spouses Aboitiz immediately took possession and began
construction in 1990, it cannot be said that the Spouses Po
were in delay in asserting their right. In the Spouses Po's
complaint, they asserted that they made demands upon the
Spouses Aboitiz to reconvey to them the
property.146 They also referred the matter to the barangay
for conciliation
When they discovered that the property was registered in
the name of the Spouses Aboitiz in 1993, the Spouses Po
then filed the instant complaint to recover the property
sold to them by Ciriaco, alleging that it was done without
their knowledge, through evident bad faith and
fraud.149 The Spouses Po filed this case in less than three
(3) years from the time of registration.
Based on these circumstances, the elements of laches are
clearly lacking in this case. There was no delay in
asserting their right over the property, and the Spouses
Aboitiz had knowledge that the Spouses Po would assert
their right. Thus, it cannot be said that they are barred by
laches.
IV. Res judicata cannot apply to their action for
reconveyance.
The Spouses Aboitiz insist that there is already a finding
by the Regional Trial Court in LRC Case No. N-208 that
Ciriaco merely held the property "in trust for the [Mariano
Heirs]."150 Thus, Ciriaco could not have validly sold the
property to the Spouses Po.151 They claim that these
findings are binding on the whole world because land
registration proceedings are actions in rem.
This Court rules that this cannot be binding in this action
for reconveyance.
Res judicata embraces two (2) concepts: (i) bar by prior
judgment and (ii) conclusiveness of judgment,
respectively covered under Rule 39, Section 47 of the
Rules of Court, paragraphs (b) and (c)
Res judicata in the concept of bar by prior judgment
proscribes the filing of another action based on "the same
claim, demand, or cause of action. Res judicata in the
concept of conclusiveness of judgment applies when there
is an identity of issues in two (2) cases between the same
parties involving different causes of action.159 Its effect is
to bar "the relitigation of particular facts or issues" which
have already been adjudicated in the other case.
However, in Racoma v. Fortich,163 this Court held that res
judicata could not be a defense in an action for
reconveyance based on fraud where the complainant had
no knowledge of the application for registration.
In this case, the Spouses Po allege that the registration was
done through fraud. They contend that they were unaware
and were thus unable to contest the registration and prove
their claim over the property. Aside from several tax
receipts, the Spouses Po formally offered as evidence,
among others, the Deed of Sale executed by Mariano in
Ciriaco's favor, the Deed of Absolute Sale executed by
Ciriaco in their favor, and the Tax Declaration under
Victoria's name. Additionally, they also submitted their
Memorandum of Agreement with Ciriaco and the
Quitclaim executed by Ciriaco in favor of the Spouses
Aboitiz.167 These documents were not considered by the
land registration court when it issued the title in favor of
the Spouses Aboitiz. The Spouses Po also offered the
Application of Original Registration of Title of the
Spouses Aboitiz to prove that the Spouses Aboitiz only
submitted to the land registration court the cancelled tax
declarations of Ciriaco, instead of the tax declaration of
the Spouses Po.168
Thus, the ruling of the land registration court cannot be so
conclusive as to deny the Spouses Po the remedy afforded
to them by law. The action for reconveyance allows them
to prove their ownership over the property. Hence, they
are not precluded from presenting evidence that is
contrary to the findings in the land registration case.
The rationale for allowing reconveyance despite the
finality of the registration is that the issuance of a
certificate of title does not create or vest ownership to a
person over the property.174 Registration under the
Torrens system "is not a mode of acquiring
ownership."175 A certificate is only a proof of
ownership.176 Thus, its issuance does not foreclose the
possibility of having a different owner, and it cannot be
used against the true owner as a shield for fraud.
V. Yes. Spouses Aboitiz failed to present clear and
convincing evidence to overturn the presumption.
The notarized Deed of Absolute Sale between
Ciriaco and the Spouses Po is, thus, presumed
regular and authentic.
The Spouses Aboitiz posit that the Deed of Absolute Sale
between Ciriaco and the Spouses Po is fake and
fraudulent.181 They argue that this is evidenced by
certifications of the document's non-existence in the
notarial books and the Spouses Po's failure to enforce
their rights over the property until 18 years later.182 They
also claim that the Deed of Absolute Sale is inadmissible
as no documentary stamp was paid and affixed.
This Court notes that the Spouses Aboitiz are raising
questions of fact which are not within the scope of a
review on certiorari under Rule 45 of the Rules of Court.
There is no showing that the factual findings are not
supported by evidence or that the judgment seems to be
based on a misapprehension of facts. Therefore, the
factual findings of the lower courts are binding.
Furthermore, this Court finds that the Spouses Aboitiz
failed to prove their claim of fraud. The Spouses Aboitiz
attempted to prove that the Deed of Absolute Sale
between Ciriaco and the Spouses Po was fake and
fraudulent by presenting certifications of its non-
existence in the notarial books of the notary public who
notarized the document.197
However, a review of the certifications does not even state
that the document does not exist in the notarial books.
The Certification dated April 1, 1997 of the Records
Management and Archives Office of the Department of
Education, Culture and Sports states:
This is to certify that per records of this Office,
Deed of Sale executed by and between Ciriaco
Seno and Victoria Lee known as Doc. No. 66;
Page No. 14; Book No. I; Series of 1978 entered
in the Notarial Register of Notary Public Jesus
Pono is not among the documents transferred by
the Regional Trial Court of Cebu for
safekeeping.198
Likewise, the Certification dated April 4, 1997 of the
Office of the Clerk of Court of the Regional Trial Court
of Cebu, 7th Judicial Region, Cebu City provides:
This is to certify that as per notarial records on
file with this office, available and found as of this
date, Atty. Jesus M. Pono had been issued a
Notarial Commission for the term 1978-1979.
It is further certifie[d] that said Notary Public has
not submitted his notarial reports for the year
1978-1979 in this office wherein the Deed of Sale
 as stated on the letter dated March 31, 1997
designated as Doc. no. 66; Page no. 14; Book No.
I and Series of 1978 is allegedly
included.199 (Emphasis supplied)
These Certifications do not declare that the Deed of
Absolute Sale does not exist. They only state that at the
time of their issuance, the Notary Public had not
submitted his notarial reports or that the document had not
been transferred to the archives for safekeeping. It cannot
logically be concluded from these certifications that the
document is inexistent, false, or fraudulent.
In any case, the Notary Public's failure to submit his or
her notarial report does not auect the act of notarization.200
Rule 132, Section 30 of the Rules of Court provides that:
Section 30. Proof of notarial documents. - Every
instrument duly acknowledged or proved and
certified as provided by law, may be presented in
evidence without further proof, the certificate of
acknowledgment being prima facie evidence of
the execution of the instrument or document
involved.
When a private document is notarized, the document is
converted to a public document which is presumed
regular, admissible in evidence without need for proof of
its authenticity and due execution, and entitled to full faith
and credit upon its face.201
To overturn the presumption in favor of a notarized
document, the party questioning it must present "clear,
convincing, and more than merely preponderant
evidence."202
Thus, parties who appear before a Notary Public should
not be prejudiced by the failure of the Notary Public to
follow rules imposed by the Notarial Law.203 They are not
obliged to ensure that the Notary Public submits his or her
notarial reports.204
The Spouses Aboitiz failed to present clear and
convincing evidence to overturn the presumption. The
notarized Deed of Absolute Sale between Ciriaco and the
Spouses Po is, thus, presumed regular and authentic.
Consequently, this Court can affirm the finding that the
property was sold to Ciriaco in 1973, and that Ciriaco, as
the owner of the property, had the right to sell it to the
Spouses Po. Hence, the lot did not form part of the estate
of Mariano, and the Mariano Heirs did not have the
capacity to sell the property to the Spouses Aboitiz later
on.
VI. No, they are not indispensable parties.
An indispensable party is the party whose legal presence
in the proceeding is so necessary that "the action cannot
be finally determined" without him or her because his or
her interests in the matter and in the relief "are so bound
up with that of the other parties."206
The property owners against whom the action for
reconveyance is filed are indispensable parties.207 No
relief can be had, and the court cannot render a valid
judgment, without them.208 The property has been sold
to respondents Jose, Ernesto, and Isabel.209 Thus, they
are indispensable parties.
The Mariano Heirs, as the alleged sellers of the property,
are not indispensable parties. They are at best necessary
parties. A necessary party is one who is not indispensable
but who ought to be joined as a party if complete relief is
to be accorded as to those already parties, or for a
complete determination or settlement of the claim subject
of the action.
Necessary parties may be joined in the case "to adjudicate
the whole controversy," but the case may go on without
them because a judgment may be rendered without any
effect on their rights and interests.
However, it is clear that the Mariano Heirs are not
indispensable parties. They have already sold all their
interests in the property to the Spouses Aboitiz. They will
no longer be affected, benefited, or injured by any ruling
of this Court on the matter, whether it grants or denies the
complaint for reconveyance. The ruling of this Court as to
whether the Spouses Po are entitled to reconveyance will
not affect their rights. Their interest has, thus, become
separable from that of Jose, Ernesto, and Isabel.
Thus, the Court of Appeals correctly ruled that the
Mariano Heirs are not indispensable parties.
VII. Yes, they are innocent purchasers in good
faith.
Despite these findings, the Spouses Po cannot recover the
property. Respondents Jose, Ernesto, and Isabel are
innocent purchasers for value.
An innocent purchaser for value refers to the buyer of the
property who pays for its full and fair price without or
before notice of another person's right or interest in it.215
He or she buys the property believing that "the [seller] [i]s
the owner and could [transfer] the title to the
property."216
The Spouses Po argue that respondents Jose, Ernesto, and
Isabel are not innocent purchasers for value because the
tax declaration over the property has the following
annotation:
This tax declaration is also declared in the name
of Mrs. Victoria Lee Po, married to Peter Po
under tax dec. no. 0634-A so that one may be
considered a duplicate to the other.
However, if a property is registered, the buyer of a parcel
of land is not obliged to look beyond the transfer
certificate of title to be considered a purchaser in good
faith for value.
The rationale for this rule is the public's interest in
sustaining "the indefeasibility of a certificate of title, as
evidence of the lawful ownership of the land or of any
encumbrance" on it.
Thus, respondents were not obliged to look beyond the
title before they purchased the property. They may rely
solely on the face of the title.
The only exception to the rule is when the purchaser has
actual knowledge of any defect or other circumstance that
would cause "a reasonably cautious man" to inquire into
the title of the seller.224 If there is anything which arouses
suspicion, the vendee is obliged to investigate beyond the
face of the title.225 Otherwise, the vendee cannot be
deemed a purchaser in good faith entitled to protection
under the law.226
In this case, there is no showing that respondents Jose,
Ernesto, and Isabel had any knowledge of the defect in the
title. Considering that the annotation that the Spouses Po
are invoking is found in the tax declaration and not in the
title of the property, respondents Jose, Ernesto, and Isabel
cannot be deemed purchasers in bad faith.
CA’s decision is affirmed.
GIMENO VS ZAIDE
FACTS: Complainant Joy A. Gimeno (Gimeno) filed a
complaint3 with the IBP's Commission on Bar Discipline,
charging Atty. Zaide with: (1) usurpation of a notary
public's office; (2) falsification; (3) use of intemperate,
offensive and abusive language; and (4) violation of
lawyer-client trust.
Gimeno alleged that even before Atty. Zaide's
admission4 to the Bar and receipt5 of his notarial
commission, he had notarized a partial extrajudicial
partition with deed of absolute sale on March 29,
2002.6 She also accused Atty. Zaide of making false and
irregular entries in his notarial registers.7
Gimeno further submitted that she was Atty. Zaide's
former client. She engaged the services of his law firm
Zaragoza-Makabangkit-Zaide Law Offices (ZMZ) in an
annulment of title case that involved her husband and her
parents-in-law.
Despite their previous lawyer-client relationship, Atty.
Zaide still appeared against her in the complaint
for estafa and violation of RA 30198 that one Priscilla
Somontan (Somontan) filed against her with the
Ombudsman. Gimeno posited that by appearing against a
former client, Atty. Zaide violated the prohibition against
the representation of conflicting clients' interests.9
Lastly, Gimeno contended that Atty. Zaide called her a
"notorious extortionist" in the same administrative
complaint that Somontan filed against her.10 In another
civil case where she was not a party, Gimeno observed
that Atty. Zaide referred to his opposing counsel as
someone suffering from "serious mental incompetence"
in one of his pleadings.11 According to Gimeno, these
statements constitute intemperate, offensive and abusive
language, which a lawyer is proscribed from using in his
dealings.
In his answer Atty. Zaide argued that he did not notarize
the partial extrajudicial partition. As it appeared on the
notarial page of this document, his notarial stamp and
falsified signature were superimposed over the
typewritten name of Atty. Elpedio Cabasan, the lawyer
who actually notarized this document.13 Atty. Zaide
claimed that Gimeno falsified his signature to make it
appear that he notarized it before his admission to the Bar.
On the alleged falsification of his notarial entries, Atty.
Zaide contended that he needed to simultaneously use
several notarial registers in his separate satellite offices in
order to better cater to the needs of his clients and
accommodate their growing number.14 This explains the
irregular and non-sequential entries in his notarial
registers.
Further, Atty. Zaide argued that Gimeno was never his
client since she did not personally hire him as her counsel.
Gimeno engaged the services of ZMZ where he
previously worked as an associate. The real counsel of
Gimeno and her relatives in their annulment of title case
was Atty. Leo Montalban Zaragoza, one of ZMZ's
partners.15 On this basis, the respondent should not be
held liable for representing conflicting clients' interests.
Finally, he denied that he used any intemperate, offensive,
and abusive language in his pleadings.
In the IBP Proceedings, Commissioner Pedro A.
Magpayo, Jr. (Commissioner Magpayo) found Atty.
Zaide administratively liable for violating the Notarial
Practice Rules, representing conflicting interests, and
using abusive and insulting language in his pleadings.
He noted that Atty. Zaide violated Section 1 (a) and 1 (b),
Rule VI of the Notarial Practice Rules when he
maintained several active notarial registers in different
offices. These provisions respectively require a notary
public to "keep, maintain, protect and provide for lawful
inspection, a chronological official register of notarial
acts consisting of a permanently bound book with
numbered papers" and to "keep only one active notarial
register at any given time."
For violating the Notarial Practice Rules, Commissioner
Magpayo recommended that Atty. Zaide be suspended for
three months, and for another six months for employing
abusive and insulting language
Later, IBP Board of Governors (Board) opined that the
evidence on record fully supports the findings of the
investigating commissioner. However, the Board
modified the recommended penalty and imposed instead
the penalty of one year suspension from the practice of
law, revocation of notarial commission, if existing, and
two years suspension from being commissioned as a
notary public.
ISSUES:
1. W/N Atty Zaide should be held liable of usurpation
of a notarial office
2. W/N Atty Zaide violated notarial practice rules by
maintaining different notarial registers in separate
notarial offices
3. W/N he should be held liable for representing
conflicting interests
4. W/N he should be held liable for using intemperate,
offensive, and abusive language
RULING:
1. No
As the investigating commissioner found, Gimeno did not
present any concrete evidence to show that Atty. Zaide
notarized the March 29, 2002 partial extrajudicial
partition prior to his admission to the Bar and receipt of
his notarial commission.
It appears that this document originally carried the name
of one Atty. Elpedio Cabasan, as notary public. Atty.
Zaide's signature and notarial stamp that bears his name,
roll number,, PTR number, IBP number, and the
expiration date of his notarial commission, were merely
superimposed over Atty. Cabasan's typewritten name.
Notably, Atty. Zaide admitted that the details stamped on
the document are his true information. However, he
denied that he personally stamped and signed the
document. In fact, this document never appeared in his
notarial register and was never included in his notarial
report for the year 2002. He contended that Gimeno
falsified his signature and used his notarial stamp to make
it appear that he was the one who notarized it.
This Court notes that at the time the document was
purportedly notarized, Atty. Zaide's details as a lawyer
and as a notary public had not yet existed. He was
admitted to the Bar only on May 2, 2002; thus, he could
not have obtained and used the exact figures pertaining to
his roll number, PTR number, IBP number and the
expiration date of his notarial commission, prior to this
date, particularly on March 29, 2002.
This circumstance, coupled with the absence of any
evidence supporting Gimeno's claim such as a witness to
the alleged fictitious notarization, leads us to the
conclusion that Atty. Zaide could not have notarized the
document before his Bar admission and receipt of his
notarial commission.
We can only conclude that his professional details, which
were only generated after his Bar admission, were
stamped on the March 29, 2002 document. How this
happened is not clear from the evidence before us.
2. Yes
Atty. Zaide violated the Notarial Practice Rules by
maintaining different notarial registers in several offices.
Because of this practice, there are notarized documents
that were irregularly numbered and entered.
Section l(a), Rule VI of the Notarial Practice Rules
provides that "a notary public shall keep, maintain, protect
and provide for lawful inspection as provided in these
Rules, a chronological official notarial register of
notarial acts consisting of a permanently bound book
with numbered pages." The same section further provides
that "a notary public shall keep only one active notarial
register at any given time."28 On this basis, Atty. Zaide's
act of simultaneously keeping several active notarial
registers is a blatant violation of Section 1, Rule VI.
The Notarial Practice Rules strictly requires a notary
public to maintain only one active notarial register and
ensure that the entries in it are chronologically arranged.
The "one active notarial register" rule is in place to deter
a notary public from assigning several notarial registers to
different offices manned by assistants who perform
notarial services on his behalf.
Since a notarial commission is personal to each lawyer,
the notary public must also personally administer the
notarial acts29 that the law authorizes him to execute. This
important duty is vested with public interest. Thus, no
other person, other than the notary public, should perform
it.
On the other hand, entries in a notarial register need to be
in chronological sequence in order to address and prevent
the rampant practice of leaving blank spaces in the
notarial register to allow the antedating of notarizations.
In these lights, we cannot accept Atty. Zaide's explanation
that he needed to maintain several active notarial registers
in separate offices so he could accommodate the
increasing number of his clients requiring his notarial
services.
This Court stresses that a notary public should not
trivialize his functions as his powers and duties are
impressed with public interest.30 A notary public's
office is not merely an income-generating venture. It is a
public duty that each lawyer who has been privileged to
receive a notarial commission must faithfully and
conscientiously perform.
Atty. Zaide should have been acutely aware of the
requirements of his notarial commission. His flagrant
violation of Section 1, Rule VI of the Notarial Practice
Rules is not merely a simple and excusable negligence. It
amounts to a clear violation of Canon 1 of the Code of
Professional Responsibility, which provides that "a
lawyer [should] uphold the constitution, obey the laws of
the land and promote respect for law and legal
processes."
 3. No Rule 8.01 - A lawyer shall not, in his professional
dealings, use language which is abusive, offensive or
Rule 15.03, Canon 15 of the Code of Professional
otherwise improper.
Responsibility provides:
Canon 11 - A lawyer shall observe and maintain the
Rule 15.03 - A lawyer shall not represent
respect due to the courts and to judicial officers and
conflicting interests except by written consent of should insist on similar conduct by others.
all concerned given after a full disclosure of the
facts. Rule 11.03 - A lawyer shall abstain from scandalous,
offensive or menacing language or behavior before the
The Court laid down the tests to determine if a lawyer is
Courts.
guilty of representing conflicting interests between and
among his clients. As shown in the record, Atty. Zaide, in the reply that he
drafted in the Ombudsman case, called Gimeno a
One of these tests is whether the acceptance of a new
"notorious extortionist."34 And in another case, Gimeno
relation would prevent the full discharge of a lawyer's observed that Atty. Zaide used demeaning and
duty of undivided fidelity and loyalty to the client or immoderate language in presenting his comment against
invite suspicion of unfaithfulness or double-dealing in his opposing counsel.
the performance of that duty.32
This clearly confirms Atty. Zaide's lack of restraint in the
Another test is whether a lawyer would be called upon in
use and choice of his words — a conduct unbecoming of
the new relation to use against a former client any
an officer of the court.
confidential information acquired through their
connection or previous employment.33 While a lawyer is entitled to present his case with vigor
and courage, such enthusiasm does not justify the use of
Applying these tests, we find no conflict of interest when offensive and abusive language. Language abounds with
Atty. Zaide appeared against Gimeno, his former law countless possibilities for one to be emphatic but
firm's client. respectful, convincing but not derogatory, and
illuminating but not offensive.36
The lawyer-client relationship between Atty. Zaide and
Gimeno ceased when Atty. Zaide left ZMZ. Moreover, On many occasions, the Court has reminded the members
the case where Gimeno engaged ZMZ's services is an of the Bar to abstain from any offensive personality and
entirely different subject matter and is not in any way to refrain from any act prejudicial to the honor or
connected to the complaint that Somontan filed against reputation of a party or a witness. In keeping with the
Gimeno with the Ombudsman. dignity of the legal profession, a lawyer's language
even in his pleadings, must be dignified.
The prior case where Gimeno hired ZMZ and where Atty.
Zaide represented her family pertained to the annulment
of a land title. Somontan was never a party to this case
since this only involved Gimeno's relatives. On the other
hand, the case where Atty. Zaide appeared against
Gimeno involved Somontan's Ombudsman complaint
against Gimeno for her alleged mishandling of the funds
that Somontan entrusted to her, and for Gimeno's alleged
corruption as an examiner in the Register of Deeds of
Iligan City. Clearly, the annulment of title case and the
Ombudsman case are totally unrelated.
4. Yes
Canon 8 - A lawyer shall conduct himself with courtesy,
fairness and candor toward his professional colleagues,
and shall avoid harassing tactics against opposing
counsel.
DISQUALIFICATION
YLAYA VS GACOTT
FACTS: Fe A. Ylaya (complainant) filed a disbarment
case 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.
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. 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.
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.
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.
The complainant also claimed that the respondent
notarized the Deed of Absolute Sale dated June 4, 2001
even though Reynold and Sylvia (his mothers sister) are
his uncle and his aunt, respectively.
The respondent denied all the allegations in the
complaint.
The respondent argued that the complainants 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.
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 buyers
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.
The respondent filed a Motion to Resolve or Decide the
Case dated August 24, 2006 praying for the early
resolution of the complaint.
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.
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.
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.
The IBP Board of Governors adopted the IBP
Commissioners finding, but increased the penalty
imposed to two (2) years suspension and a warning that
commission of a similar offense will be dealt with more
severely.
Hence, the respondent filed a Petition for Review (on
appeal) assailing the IBPs findings.
ISSUES:
1. W/N the IBP violated the respondents right to due
process; and
2. W/N 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
RULING
1. There is no denial of due process.
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 ones 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 complainants allegations as
hearsay, and the IBPs 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.
In this case, the respondents 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 Boards 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?r?l1
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.
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
respondents misconduct to warrant the exercise of its
disciplinary powers
2. 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.
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 clients 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.
The respondent is not liable for Canon 1, Rule 1.01
because 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.
The respondent argues that the IBP Commissioners
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 complainants 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, 200855affirming 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.
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 complainants 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.
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.
As regards rules of notarial practice, the respondent did
not violate such. Rule IV, Section 3 (c) of A.M. No. 02-
8-13-SC provides:
"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."
However, after examining the records of the case, no
prohibition exists against the notarization of a document
in which any of the parties interested is the notarys
relative within the 4th civil degree, by affinity or
consanguinity, at that time the respondent notarized the
documents.
We note that the respondent has not squarely addressed
the issue of his relationship with Reynold, whom the
complainant alleges to be the respondents uncle because
Reynold is married to the respondents 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, 200176and 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
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 Reynolds
ownership over the property against all other claims,
including that of the spouses Ylaya.
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 complainants desistance to be suspect; it is not grounded
as his client and actively opposed the interests of his on the fact that the respondent did not commit any actual
former client, the complainant. He thus violated Canon misconduct; rather, because of the consideration, the
15, Rule 15.03 of the Code of Professional Responsibility complainant is now amenable to the position of the
respondent and/or Reynold.
We affirm the IBP Commissioners finding that the
respondent violated Canon 16. The respondent admits to WHEREFORE, premises considered, we set aside
losing certificates of land titles that were entrusted to his Resolution No. XVIII-.2007-302 dated December 14,
care by Reynold.83 According to the respondent, the 2007 and Resolution No. XIX-2010-545 dated October 8,
complainant "maliciously retained" the TCTs over the 2010 of the IBP Board of Governors, and find respondent
properties sold by Laurentino to Reynold after she Atty. Glenn Carlos Gacott GUILTY of violating Rule
borrowed them from his office.84 Reynold confirms that 15.03 of Canon 15, Canon 16, and Rule 18.03 of Canon
the TCTs were taken by the complainant from the 18 of the Code of Professional Responsibility. As a
respondents law office.85?r?l1 penalty, he is SUSPENDED from the practice of law for
one (1) year, with a WARNING that a repetition of the
The respondent is reminded that his duty under Canon 16 same or similar act will be dealt with more severely.
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 clients 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 respondents 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.
Lastly, with regard to the Ex Parte Motion to Withdraw
the Verified Complaint and to Dismiss the Case and her
Affidavit, the SC ruled that in administrative proceedings
against lawyers, the complainants 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
JANDOQUILE VS REVILLA
FACTS: Complainant Bernard N. Jandoquile filed
disbarment case against respondent Atty. Quirino P.
Revilla, Jr.
2
Atty. Revilla, Jr. notarized a complaint-affidavit 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:
xxx
(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.
ISSUE:
W/N violation of the disqualification rule is sufficient
ground for disbarment?
a. W/N he violated the disqualification rule
b. W/N he is justified in not requiring IDs from the
affiants
RULING
He violated the disqualification rule; however, it is not a
sufficient ground for his disbarment. Moreover, he is
justified in not requiring IDs from the affiants since he
personally knew them.
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.7Let 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.
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.
REFUSAL TO NOTARIZE AND FALSE OR
INCOMPLETE CERTIFICATES
MERCEDITA DE JESUS, Complainant, vs. ATTY.
JUVY MELL SANCHEZMALIT, Respondent.
A.C. No. 6470; July 8, 2014; SERENO, CJ
FACTS:
This is a disbarment complaint filed by De Jesus against
respondent Sanchez-Malit on the following grounds:
grave misconduct, dishonesty, malpractices, and
unworthiness to become an officer of the Court.
The complainant alleged that the 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 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 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). 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.
In her Comment, 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.
THE FINDINGS OF THE IBP - IBP Investigating
Commissioner 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 18 and Rule 18.03 of the Code of
Professional Responsibility. Thus, he also recommended
that she be suspended from the practice of law for six
months.
The IBP Board of Governors 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.
Respondent filed her first and Second MR. 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). 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
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.
IBP Board of Governors denied respondent’s motion for
reconsideration for lack of substantial reason to justify a
reversal of the IBP’s findings.
ISSUE: Whether or not respondent should be held
administratively liable.
RULING: YES. The Court modifies the findings of the
IBP.
PROCEDURAL MATTERS:
a) Re: Respondent’s argument 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, 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. Rejecting
his argument, the Court reasoned as follows:
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.
- 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.
 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.
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.
b) Respondent’s argument that the Urgent Ex-Parte
Motion of complainant constitutes a supplemental
pleading must fail as well.
A supplemental pleading only serves to bolster or adds
something to the primary pleading. 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.
SUBSTANTIVE MATTERS: The Court finds that she
committed misconduct and grievously violated her oath
as a notary public.
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.
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.
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 1 and Rules 1.01
and 1.02 of the Code of Professional Responsibility.
Respondent’s explanation about the unsigned lease
agreement executed by complainant sometime in
September 1999 is incredulous. If, indeed, her file copy
of the agreement bore the lessees’ signatures, she could
have given complainant a certified photocopy thereof.
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.
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. Thus, in acknowledging that the parties
personally came and appeared before her, respondent also
violated Rule 10.01 of the Code of Professional
Responsibility and her oath as a lawyer that she shall do
no falsehood.
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. 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.
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.
EUPROCINA I. CRISOSTOMO, MARILYN L.
SOLIS, EVELYN MARQUIZO, ROSEMARIE
BALATUCAN, MILDRED BATANG, MARILEN
MINERALES, and MELINDA D.
SIOTING, Complainants, vs. ATTY. PHILIP Z. A.
NAZARENO, Respondent.
A.C. No. 6677 June 10, 2014; PONENTE: PERLAS-
BERNABE, J
FACTS:
Complainants charged Atty. Philip Z. A. Nazareno (Atty.
Nazareno) of making false declarations in the
certifications against forum shopping subject of this case
in disregard of Section 5, Rule 7 of the Rules of Court,
and malpractice as a notary public in violation of the Code
of Professional Responsibility.
Complainants individually purchased housing units
(subject properties) in Patricia South Villa Subdivision,
Anabu-II, Imus, Cavite, from Rudex International
Development Corp. (Rudex).
In view of several inadequacies and construction
defects in the housing units and the subdivision itself,
complainants sought the rescission of their respective
contracts to sell before the Housing and Land Use
Regulatory Board (HLURB), seeking the refund of the
monthly amortizations they had paid. The first batch of
rescission cases was filed by herein complainants Sioting
and Crisostomo and Marquizo while the second batch of
rescission cases was filed by complainants Balatucan,
Solis and Ederlinda M. Villanueva (represented by
Minerales) and Batang. In all the foregoing rescission
cases, Rudex was represented by herein respondent Atty.
Nazareno.
Judgments of default were eventually rendered against
Rudex in the first batch of rescission cases.
Rudex filed three (3) petitions for review before the
HLURB assailing the same. In the certifications against
forum shopping attached to the said petitions, Rudex,
through its President Ruben P. Baes, and legal counsel
Atty. Nazareno, stated that it has not commenced or has
knowledge of any similar action or proceeding involving
the same issues pending before any court, tribunal or
agency – this, notwithstanding the fact that Rudex, under
the representation of Atty. Nazareno, previously filed an
ejectment case on September 9, 2002 against Sioting and
her husband, Rodrigo Sioting (Sps. Sioting), before the
Municipal Trial Court of Imus, Cavite (MTC).
On January 29, 2004, Rudex, again represented by Atty.
Nazareno, filed another complaint against Sps. Sioting
before the HLURB for the rescission of their contract to
sell and the latter’s ejectment, similar to its pending
September 9, 2002 ejectment complaint. Yet, in the
certification against forum shopping attached executed by
the Head of its Credit and Collection department, Norilyn
D. Unisan, Rudex declared that it has not commenced or
is not aware of any action or proceeding involving the
same issues pending before any court, tribunal or agency.
The said certification was notarized by Atty. Nazareno
himself.
On April 1, 2004, six (6) similar complaints for rescission
of contracts to sell and ejectment, plus damages for non-
payment of amortizations due, were filed by Atty.
Nazareno, on behalf of Rudex, against the other
complainants before the HLURB. The certifications
against forum shopping attached thereto likewise stated
that Rudex has not commenced or has any knowledge of
any similar pending action before any court, tribunal or
agency.
Complainants jointly filed the present administrative
complaint for disbarment against Atty. Nazareno,
claiming that in the certifications against forum shopping
attached to the complaints for rescission and ejectment of
Rudex filed while Atty. Nazareno was its counsel, the
latter made false declarations therein that no similar
actions or proceedings have been commenced by Rudex
or remained pending before any other court, tribunal or
agency when, in fact, similar actions or proceedings for
rescission had been filed by herein complainants before
the HLURB against Rudex and Atty. Nazareno, and an
ejectment complaint was filed by Rudex, represented by
Atty. Nazareno, against Sps. Sioting.
In addition, complainants asserted that Atty. Nazareno
committed malpractice as a notary public since he only
assigned one (1) document number (i.e., Doc. No. 1968)
in all the certifications against forum shopping that were
separately attached to the six (6) April 1, 2004 complaints
for rescission and ejectment.
Atty. Nazareno failed to file his comment and refute the
administrative charges against him.
In the interim, the HLURB dismissed Rudex’s complaints
for rescission and ejectment on the ground that its
statements in the certifications against forum shopping
attached thereto were false due to the existence of similar
pending cases in violation of Section 5,Rule 7 of the Rules
of Court.
The IBP’s Report and Recommendation:
Integrated Bar of the Philippines (IBP)
Investigating Commissioner Oliver A. Cachapero
recommended the suspension of Atty. Nazareno for a
period of six (6) months for his administrative violations.
The Investigating Commissioner found that there were
unassailable proofs that the certification against forum
shopping attached to Rudex’s ejectment complaint
against Sps. Sioting had been erroneously declared,
considering that at the time Rudex filed the said complaint
in September 2002, Sps. Sioting’s rescission complaint
against Rudex, filed on May 24, 2002, was already
pending.
Hence, it was incumbent upon Rudex to have declared its
existence, more so, since both complaints involve the
same transaction and essential facts, and a decision on the
rescission complaint would amount to res judicata on the
ejectment complaint. In this relation, the Investigating
Commissioner observed that Atty. Nazareno cannot claim
innocence of his omission since he was not only Rudex’s
counsel but the notarizing officer as well. Having
knowingly made false entries in the subject certifications
against forum shopping, the Investigating Commissioner
recommended that Atty. Nazareno be held
administratively liable and thereby penalized with six (6)
months suspension
IBP Board of Governors: adopted and approved the
Investigating Commissioner’s Report and
Recommendation, but modified the recommended
penalty from a suspension of six (6) months to only one
(1) month.
ISSUE: whether or not Atty. Nazareno should be held
administratively liable and accordingly suspended for a
period of one (1) month.
RULING: YES. The Court affirms the IBP’s findings
with modification as to the penalty imposed.
Separate from the proscription against forum shopping is
the violation of the certification requirement against
forum shopping, which was distinguished in the case of
Sps. Ong v. CA:
To reiterate, compliance with the certification against
forum shopping is separate from and independent of the
avoidance of the act of forum shopping itself. There is a
difference in the treatment between failure to comply with
the certification requirement and violation of the
prohibition against forum shopping not only in terms of
imposable sanctions but also in the manner of enforcing
them. The former constitutes sufficient cause for the
dismissal without prejudice to the filing of the complaint
or initiatory pleading upon motion and after hearing,
while the latter is a ground for summary dismissal thereof
and for direct contempt.
Under Section 5, Rule 7 of the Rules of Court, the
submission of false entries in a certification against forum
shopping constitutes indirect or direct contempt of court,
and subjects the erring counsel to the corresponding
administrative and criminal actions.
In the realm of legal ethics, said infraction may be
considered as a violation of Rule 1.01, Canon 1 and Rule
10.01, Canon 10 of the Code of Professional
Responsibility (Code) which read as follows:
CANON 1 – A LAWYER SHALL UPHOLD THE
CONSTITUTION, OBEY THE LAWS OF THE
LANDAND PROMOTE RESPECT FOR LAW AND
LEGAL PROCESSES.
Rule 1.01 - A lawyer shall not engage in unlawful,
dishonest, immoral or deceitful conduct.
CANON 10 – A LAWYER OWES CANDOR,
FAIRNESS AND GOOD FAITH TO THE COURT.
Rule 10.01 - 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 this case, it has been established that Atty. Nazareno
made false declarations in the certifications against forum
shopping attached to Rudex’s pleadings, for which he
should be held administratively liable.
Records show that Atty. Nazareno, acting as Rudex’s
counsel, filed, in August 2003, petitions for review
assailing the judgments of default rendered in the first
batch of rescission cases without disclosing in the
certifications against forum shopping the existence of the
ejectment case it filed against Sps. Sioting which involves
an issue related to the complainants’ rescission cases.
Further, on January 29, 2004, Rudex, represented by Atty.
Nazareno, filed a complaint for rescission and ejectment
against Sps. Sioting without disclosing in the
certifications against forum shopping the existence of
Sioting’s May 24, 2002 rescission complaint against
Rudex as well as Rudex’s own September 9, 2002
ejectment complaint also against Sps. Sioting.
Finally, on April 1, 2004,Atty. Nazareno, once more filed
rescission and ejectment complaints against the other
complainants in this case without disclosing in the
certifications against forum shopping the existence of
complainants’ own complaints for rescission.
Owing to the evident similarity of the issues involved in
each set of cases, Atty. Nazareno – as mandated by the
Rules of Court and more pertinently, the canons of the
Code – should have truthfully declared the existence of
the pending related cases in the certifications against
forum shopping attached to the pertinent pleadings.
Considering that Atty. Nazareno did not even bother to
refute the charges against him despite due notice, the
Court finds no cogent reason to deviate from the IBP’s
resolution on his administrative liability. However, as for
the penalty to be imposed, the Court deems it proper to
modify the IBP’s finding on this score.
In Molina v. Atty. Magat, a penalty of six (6) months
suspension from the practice of law was imposed against
the lawyer therein who was shown to have deliberately
made false and untruthful statements in one of his
pleadings. Given that Atty. Nazareno’s infractions are of
a similar nature, but recognizing further that he had
repetitively committed the same, the Court hereby
suspends him from the practice of law for a period of one
(1) year.
CONNECTED TO THE TOPIC:
Separately, the Court further finds Atty. Nazareno guilty
of malpractice as a notary public, considering that he
assigned only one document number (i.e., Doc. No. 1968)
to the certifications against forum shopping attached to
the six (6) April 1, 2004 complaints for rescission and
ejectment despite the fact that each of them should have
been treated as a separate notarial act.
It is a standing rule that for every notarial act, the notary
shall record in the notarial register at the time of the
notarization, among others, the entry and page number of
the document notarized, and that he shall give to each
instrument or document executed, sworn to, or
acknowledged before him a number corresponding to the
one in his register. Evidently, Atty. Nazareno did not
comply with the foregoing rule.
Worse, Atty. Nazareno notarized the certifications against
forum shopping attached to all the aforementioned
complaints, fully aware that they identically asserted a
material falsehood, i.e., that Rudex had not commenced
any actions or proceedings or was not aware of any
pending actions or proceedings involving the same issues
in any other forum.
The administrative liability of an erring notary public in
this respect was clearly delineated as a violation of Rule
1.01, Canon 1 of the Code in the case of Heirs of the Late
Spouses Villanueva v. Atty. Beradio.
In this case, respondent’s conduct amounted to a breach
of Canon 1 of the Code of Professional Responsibility,
which requires lawyers to obey the laws of the land and
promote respect for the law and legal processes.
Respondent also violated Rule 1.01 of the Code which
proscribes lawyers from engaging in unlawful, dishonest,
immoral, or deceitful conduct.
In said case, the lawyer who knowingly notarized a
document containing false statements had his notarial
commission revoked and was disqualified from being
commissioned as such for a period of one (1) year. Thus,
for his malpractice as a notary public, the Court is wont to
additionally impose the same penalties of such nature
against him. However, due to the multiplicity of his
infractions on this front, coupled with his willful
malfeasance in discharging the office, the Court deems it
proper to revoke his existing commission and
permanently disqualify him from being commissioned as
a notary public.
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. 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. Failing in
this, he must accept the consequences of his unwarranted
actions.
WHEREFORE, respondent Atty. Philip Z. A. Nazareno is
found GUILTY of making false declarations in the
certifications against forum shopping subject of this case,
as well as malpractice as a notary public. Accordingly, he
is SUSPENDED from the practice of law for a period of
one (1) year, effective upon his receipt of this Decision,
with a STERN WARNING that a repetition of the same
or similar acts will be dealt with more severely. Further,
he is PERMANENTLY DISQUALIFIED from being
commissioned as a notary public and, his notarial
commission, if currently existing, is hereby REVOKED.
JOY T. SAMONTE, Complainant vs. ATTY.
VIVENCIO V. JUMAMIL, Respondent
A.C. No. 11668; PERLAS-BERNABE, J.; July 17,
2017
For the Court's resolution is a Complaint filed before the
Integrated Bar of the Philippines (IBP), by complainant
Joy T. Samonte against respondent Atty. Vivencio V.
Jumamil, praying that the latter be disbarred for acts
unbecoming of a lawyer and betrayal of trust.
FACTS:
Complainant alleged that sometime in October 2012, she
received summons from the National Labor Relations
Commission (NLRC), Regional Arbitration Branch Xl,
Davao City, relative to an illegal dismissal case filed by
four (4) persons claiming to be workers in her small
banana plantation.
Consequently, complainant engaged the services of
respondent to prepare her position paper, and paid him the
amount of ₱8,000.00 as attorney's fees.
Despite constantly reminding respondent of the deadline
for the submission of her position paper, complainant
discovered that he still failed to file the same.
As such, the Labor Arbiter rendered a Decision based on
the evidence on record, whereby complainant was held
liable to the workers. When complainant confronted
respondent about the said ruling, the latter casually told
her to just sell her farm to pay the farm workers.
Because of respondent's neglect, complainant claimed
that she was left defenseless and without any remedy to
protect her interests against the execution of the foregoing
judgment; hence, she filed the instant complaint.
In an Order the IBP Commission on Bar Discipline (IBP-
CBD) directed respondent to submit his Answer to the
complaint.
In his Answer, respondent admitted that he indeed failed
to file a position paper on behalf of complainant.
However, he maintained that said omission was due to
complainant's failure to adduce credible witnesses to
testify in her favor.
In this relation, respondent averred that complainant
instructed her to prepare an Affidavit for one Romeo P.
Baol (Romeo), who was intended to be her witness;
nevertheless, respondent was instructed that the contents
of Romeo's affidavit were not to be interpreted in the
Visayan dialect so that the latter would not know what he
would be testifying on. Respondent added that
complainant's uncle, Nicasio Ticong, who was also an
intended witness, refused to execute an affidavit and
testify to her lies. Thus, it was complainant who was
deceitful in her conduct and that the complaint against
him should be dismissed for lack of merit.
The IBP's Report and Recommendation
In its Report and Recommendation, the IBPCBD found
respondent administratively liable and recommended that
he be suspended from the practice of law for a period of
one (1) year. The IBP-CBD found respondent guilty of
violating Rule 10.01, Canon 10, and Rule 18.03, Canon
18 of the Code of Professional Responsibility (CPR), as
well as the 2004 Rules on Notarial Practice.
The IBP Board of Governors adopted and approved the
aforesaid Report and Recommendation, finding the same
to be fully supported by the evidence on record and the
applicable laws and rules.
ISSUE: Whether or not respondent should be held
administratively liable.
RULING: YES. The Court concurs with and affirms the
findings of the IBP, with modification, however, as to the
penalty in order to account for his breach of the rules on
notarial practice.
The relationship between a lawyer and his client is one
imbued with utmost trust and confidence. In this regard,
clients are led to expect that lawyers would be ever-
mindful of their cause, and accordingly, exercise the
required degree of diligence in handling their affairs. To
this end, lawyers are enjoined to employ only fair and
honest means to attain lawful objectives. These principles
are embodied in Rule 10.01 of Canon 10 and Rule 18.03
of Canon 18 of the CPR, which respectively read as
follows:
CANON 10 – A LAWYER OWES CANDOR,
FAIRNESS AND GOOD FAITH TO THE COURT.
Rule 10.01 – 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.
CANON 18 – A LAWYER SHALL SERVE HIS
CLIENT WITH COMPETENCE AND DILIGENCE.
Rule 18.03 – A lawyer shall not neglect a legal matter
entrusted to him, and his negligence in connection
therewith shall render him liable.
In this case, it is undisputed that a lawyer-client
relationship was forged between complainant and
respondent when the latter agreed to file a position paper
on her behalf before the NLRC and, in connection
therewith, received the amount of ₱8,000.00 from
complainant as payment for his services.
Case law instructs that a lawyer-client relationship
commences when a lawyer signifies his agreement to
handle a client's case and accepts money representing
legal fees from the latter, as in this case. From then on, as
the CPR provides, a lawyer is duty-bound to "serve his
client with competence and diligence," and in such regard,
"not neglect a legal matter entrusted to him."
However, it is fairly apparent that respondent breached
this duty when he admittedly failed to file the necessary
position paper before the NLRC, which had, in fact,
resulted into an adverse ruling against his
client, i.e., herein complainant. To be sure, it is of no
moment that complainant purportedly failed to produce
any credible witnesses in support of her position paper;
clearly, this is not a valid justification for respondent to
completely abandon his client's cause.
By voluntarily taking up complainant's case, respondent
gave his unqualified commitment to advance and defend
the latter's interest therein. Verily, he owes fidelity to such
cause and must be mindful of the trust and confidence
reposed in him.
In Abay v. Montesino, it was explained that regardless of
a lawyer's personal view, the latter must still present every
remedy or defense within the authority of the law to
support his client's cause.
In light of the foregoing, the Court therefore agrees with
the IBP that respondent should be held administratively
liable for violation of Rule 18.03, Canon 18 of the CPR.
CONNECTED TO THE TOPIC:
Likewise, the IBP correctly found that respondent
violated Rule 10.01, Canon 10 of the CPR. Records show
that he indeed indulged in deliberate falsehood when he
admittedly prepared and notarized the affidavit of
complainant's intended witness, Romeo, despite his belief
that Romeo was a perjured witness.
In Spouses Umaguing v. De Vera, the Court highlighted
the oath undertaken by every lawyer to not only obey the
laws of the land, but also to refrain from doing any
falsehood.
Notably, the notarization of a perjured affidavit also
constituted a violation of the 2004 Rules on Notarial
Practice. Section 4 (a), Rule IV thereof pertinently
provides:
SEC. 4. Refusal to Notarize. - A notary public shall not
perform any notarial act described in these Rules for any
person requesting such an act even if he tenders the
appropriate fee specified by these Rules if:
(a) the notary knows or has good reason to believe that the
notarial act or transaction is unlawful or immoral
On this score, it is well to stress that "notarization is not
an empty, meaningless routinary act. It is invested with
substantive public interest. It must be underscored that the
notarization by a notary public 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 their duties; otherwise, the confidence of
the public in the integrity of this form of conveyance
would be undermined.
Having established respondent's administrative liability,
the Court now determines the proper penalty.
The appropriate penalty to be meted against an errant
lawyer depends on the exercise of sound judicial
discretion based on the surrounding facts.
In Del Mundo v. Capistrano, the Court suspended the
lawyer for a period of one (1) year for his failure to
perform his undertaking under his retainership agreement
with his client. Similarly, in Conlu v. Aredonia, Jr., the
same penalty was imposed on a lawyer for his inexcusable
negligence in failing to file the required pleading to the
prejudice of his client.
Hence, consistent with existing jurisprudence, the Court
adopts the penalty recommended by the IBP and
accordingly suspends respondent from the practice of law
for a period of one (1) year. Moreover, as in the case
of Dela Cruz v. Zabala, where the notary public therein
notarized an irregular document, the Court hereby
revokes respondent's notarial commission and further
disqualifies him from being commissioned as a notary
public for a period of two (2) years.
WHEREFORE, respondent Atty. Vivencio V. Jumamil
is found GUILY of violating Rule 10.01, Canon 10 and
Rule 18.03, Canon 18 of the Code of Professional
Responsibility. Accordingly, he is
hereby SUSPENDED for a period of one (1) year,
effective upon his receipt of this Resolution.
Moreover, in view of his violation of the 2004 Rules on
Notarial Practice, his notarial commission, if still existing,
is hereby REVOKED, and he is DISQUALIFIED from
being commissioned as a notary public for a period of two
(2) years. Finally, he is STERNLY WARNED that a
repetition of the same or similar offense shall be dealt
with more severely.
COMMISSION PERIOD AND EXPIRATION
EFIGENIA M. TENOSO Complainant, vs. ATTY.
ANSELMO S. ECHANEZ, Respondent.
A.C. No. 8384; April 11, 2013; LEONEN, J.
FACTS:
Etigenia M. Tenoso (complainant) filed a complaint
against Atty. Anselmo S. Echanez (respondent) alleging
that respondent was engaged in practice as a notary public
in Cordon, lsabela, without having been properly
commissioned by the Regional Trial Court (RTC) of
Santiago City, Isabela. This is the RTC exercising
jurisdiction over the Municipality of Cordon.
This alleged act violates Rule III of the 2004 Rules on
Notarial Practice (A.M. No. 02-8-13-SC). To support her
allegations, complainant attached the following
documents to her pleadings:
a. Two (2) documents signed and issued by RTC Santiago
City Executive Judge Efren M. Cacatian bearing the
names of commissioned notaries public within the
territorial jurisdiction of the RTC of Santiago City for the
years 2006 to 2007 and 2007 to 2008. Respondent's name
does not appear on either list;
b. Copies of ten (10) documents that appear to have been
notarized by respondent in the years 2006, 2007, and
2008; and
c. A copy of a certification issued by Judge Cacatian
stating that a joint-affidavit notarized by respondent in
2008 could not be "authenticated as to respondent's seal
and signature as NO Notarial Commission was issued
upon him at the time of the document's notarization."
In his Answer, respondent denied the allegations saying,
"I have never been notarizing any document or
pleadings" and added that he has "never committed any
malpractice, nor deceit nor have violated the lawyers
oath". He dismissed such allegations as being
"preposterous, full of lies, politically motivated and meant
to harass or intimidate him"
Also, he surmised that the documents annexed to the
Affidavit-Complaint were "tampered and adulterated," or
that "somebody might have forged his signature." He
failed to attend the mandatory conference and likewise
failed to file his Position Paper.
In his Report and Recommendation, Investigating
Commissioner Atty. Salvador B. Hababag recommended
that respondent be suspended from the practice of law for
six (6) months and disqualified from being commissioned
as a notary public for two (2) years for violating Rules
1.01 and 10.01 of the Code of Professional
Responsibility.
In a Resolution, the IBP Board of Governors affirmed the
findings of the Investigating Commissioner but increased
the penalty of suspension from six (6) months to one (1)
year. Respondent did not file a Motion for
Reconsideration or any other subsequent pleading.
The IBP Board of Governors transmitted its Resolution to
the Supreme Court for its action following Rule 139-B of
the Rules of Court.
ISSUE: Whether or not respondent should be held
administratively liable.
RULING: YES.
The Court modifies the IBP Board of Governors'
Resolution.
Complainant presented evidence supporting her
allegation that respondent had notarized various
documents in Cordon, Isabela from 2006 to 2008 and that
respondent's name does not appear on the list of notaries
public commissioned by the RTC of Santiago City,
Isabela for the years 2006 to 2007 and 2007 to 2008.
Respondent failed to present evidence to rebut
complainant's allegations. Per Section 1, Rule 131 of the
Rules of Court, the burden of proof is vested upon the
party who alleges the truth of his claim or defense or any
fact in issue.
Thus, in Leave Division, Office of Administrative
Services, Office of the Court Administrator v. Gutierrez,
where a party resorts to bare denials and allegations and
fails to submit evidence in support of his defense, the
determination that he committed the violation is
sustained. Respondent merely posited that the notarized
documents presented by complainant were "tampered and
adulterated" or were results of forgery, but he failed to
present any proof.
Respondent also resorted to a sweeping and unsupported
statement that he never notarized any document.
Accordingly, the reasonable conclusion is that respondent
repeatedly notarized documents without the requisite
notarial commission.
Time and again, this Court emphasizes that the practice of
law is imbued with public interest and that "a lawyer owes
substantial duties not only to his client, but also to his
brethren in the profession, to the courts, and to the nation,
and takes part in one of the most important functions of
the State - the administration of justice - as an officer of
the court." Accordingly, '"lawyers are bound to maintain
not only a high standard of legal proficiency, but also of
morality, honesty, integrity and fair dealing."
Similarly, the duties of notaries public are dictated by
public policy and impressed with public interest.
"Notarization is not a routinary, meaningless act, for
notarization converts a private document to a public
instrument, making it admissible in evidence without the
necessity of preliminary proof of its authenticity and due
execution."
In misrepresenting himself as a notary public, respondent
exposed party-litigants, courts, other lawyers and the
general public to the perils of ordinary documents posing
as public instruments. As noted by the Investigating
Commissioner, respondent committed acts of deceit and
falsehood in open violation of the explicit
pronouncements of the Code of Professional
Responsibility. Evidently, respondent's conduct falls
miserably short of the high standards of morality, honesty,
integrity and fair dealing required from lawyers. It is
proper that he be sanctioned.
WHEREFORE, We find Atty. Anselmo S. Echanez guilty
of engaging in notarial practice without a notarial
commission, and accordingly, We SUSPEND him from
the practice of law for two (2) years and DISQUALIFY
him from being commissioned as a notary public for two
(2) years. He is warned that a repetition of the same or
similar act in the future shall merit a more severe sanction.
ST. LOUIS UNIVERSITY LABORATORY HIGH
SCHOOL (SLU-LHS) FACULTY and
STAFF, Complainant, vs. ATTY. ROLANDO C.
DELA CRUZ, Respondent.
A.C. No. 6010 August 28, 2006; CHICO-NAZARIO, J.
FACTS:
This is a disbarment case filed by the Faculty members
and Staff of the Saint Louis University-Laboratory High
School (SLU-LHS) against Atty. Rolando C. Dela Cruz,
principal of SLU-LHS, predicated on the following
grounds:
1) Gross Misconduct:
From the records of the case, it appears that there is a
pending criminal case for child abuse allegedly
committed by him against a high school student filed
before the Prosecutor’s Office of Baguio City; a pending
administrative case filed by the Teachers, Staff, Students
and Parents before an Investigating Board created by SLU
for his alleged unprofessional and unethical acts of
misappropriating money supposedly for the teachers; and
the pending labor case filed by SLU-LHS Faculty before
the NLRC, Cordillera Administrative Region, on alleged
illegal deduction of salary by respondent.
2) Grossly Immoral Conduct: In contracting a second
marriage despite the existence of his first marriage; and
3) Malpractice: In notarizing documents despite the
expiration of his commission.
According to complainant, respondent was legally
married to Teresita Rivera. He thereafter contracted a
subsequent marriage with one Mary Jane Pascua. Said
second marriage was subsequently annulled for being
bigamous.
On the charge of malpractice, complainant alleged that
respondent deliberately subscribed and notarized certain
legal documents on different dates from 1988 to 1997,
despite expiration of respondent’s notarial commission on
31 December 1987.
A Certification dated 25 May 1999 was issued by the
Clerk of Court of Regional Trial Court (RTC), Baguio
City, to the effect that respondent had not applied for
commission as Notary Public for and in the City of
Baguio for the period 1988 to 1997. Respondent
performed acts of notarization, as evidenced by the
following 14 documents.
Respondent, in his comment, denied the charges of child
abuse, illegal deduction of salary and others which are
still pending before the St. Louis University (SLU),
National Labor Relations Commission (NLRC) and the
Prosecutor’s Office. He did not discuss anything about the
allegations of immorality in contracting a second
marriage and malpractice in notarizing documents despite
the expiration of his commission.
After the filing of comment, We referred the case to the
Integrated Bar of the Philippines (IBP), for investigation,
report and recommendation.
The IBP conducted the mandatory preliminary
conference.
The complainants submitted their position paper which is
just a reiteration of their allegations in their complaint.
Respondent, on his part, expressly admitted his second
marriage despite the existence of his first marriage, and
the subsequent nullification of the former. He also
admitted having notarized certain documents during the
period when his notarial commission had already expired.
However, he offered some extenuating defenses such as
good faith, lack of malice and noble intentions in doing
the complained acts.
Commissioner Acerey C. Pacheco submitted his report
and recommended that:
WHEREFORE, premises considered, it is respectfully
recommended that respondent be administratively
penalized for the following acts:
a. For contracting a second marriage without taking the
appropriate legal steps to have the first marriage annulled
first, he be suspended from the practice of law for one (1)
year, and
b. For notarizing certain legal documents despite full
knowledge of the expiration of his notarial commission,
he be suspended from the practice of law for another one
(1) year or for a total of two (2) years.
IBP Board of Governors, approved and adopted the
recommendation of Commissioner Pacheco.
ISSUE: Whether or not respondent should be held
administratively liable.
RULING: YES
This Court finds the recommendation of the IBP to fault
respondent well taken, except as to the penalty contained
therein.
In the case at bench, there is no dispute that respondent
and Teresita Rivera contracted marriage on 31 May 1982
before Judge Tomas W. Macaranas. In less than a year,
they parted ways owing to their irreconcilable differences
without seeking judicial recourse. After their separation
in-fact, respondent never knew the whereabouts of
Teresita Rivera since he had lost all forms of
communication with her.
Seven years thereafter, respondent became attracted to
one Mary Jane Pascua, who was also a faculty member of
SLU-LHS. There is also no dispute over the fact that in
1989, respondent married Mary Jane Pascua in the
Municipal Trial Court (MTC) of Baguio City, Branch 68.
Respondent even admitted this fact.
When the second marriage was entered into, respondent’s
prior marriage with Teresita Rivera was still subsisting,
no action having been initiated before the court to obtain
a judicial declaration of nullity or annulment of
respondent’s prior marriage to Teresita Rivera or a
judicial declaration of presumptive death of Teresita
Rivera.
Respondent was already a member of the Bar when he
contracted the bigamous second marriage in 1989, having
been admitted to the Bar in 1985. As such, he cannot feign
ignorance of the mandate of the law that before a second
marriage may be validly contracted, the first and
subsisting marriage must first be annulled by the
appropriate court. The second marriage was annulled only
on 4 October 1994 before the RTC of Benguet, Branch 9,
or about five years after respondent contracted his second
marriage.
The annulment of respondent’s second marriage has no
bearing to the instant disbarment proceeding. Firstly, as
earlier emphasized, the annulment came after the
respondent’s second bigamous marriage. Secondly, as we
held in In re: Almacen, a disbarment case is sui generis
for it is neither purely civil nor purely criminal but is
rather an investigation by the court into the conduct of its
officers.
Thus, if the acquittal of a lawyer in a criminal action is
not determinative of an administrative case against him,
or if an affidavit of withdrawal of a disbarment case does
not affect its course, then neither will the judgment of
annulment of respondent’s second marriage also
exonerate him from a wrongdoing actually committed. So
long as the quantum of proof - clear preponderance of
evidence - in disciplinary proceedings against members of
the Bar is met, then liability attaches.
Section 27, Rule 138 of the Rules of Court cites grossly
immoral conduct as a ground for disbarment.
The Court has laid down with a common definition of
what constitutes immoral conduct, vis-à-vis, grossly
immoral conduct. Immoral conduct is "that conduct
which is willful, flagrant, or shameless, and which shows
a moral indifference to the opinion of the good and
respectable members of the community" and what is
"grossly immoral," that is, it must be so corrupt and false
as to constitute a criminal act or so unprincipled as to be
reprehensible to a high degree."
Undoubtedly, respondent’s act constitutes immoral
conduct. But is it so gross as to warrant his disbarment?
Indeed, he exhibited a deplorable lack of that degree of
morality required of him as a member of the Bar. In
particular, he made a mockery of marriage which is a
sacred institution demanding respect and dignity. His act
of contracting a second marriage while the first marriage
was still in place, is contrary to honesty, justice, decency
and morality.
However, measured against the definition, we are not
prepared to consider respondent’s act as grossly immoral.
This finds support in the following recommendation and
observation of the IBP Investigator and IBP Board of
Governors, thus:
The uncontested assertions of the respondent belies any
intention to flaunt the law and the high moral standard of
the legal profession, to wit:
a. After his first failed marriage and prior to his second
marriage or for a period of almost seven (7) years, he has
not been romantically involved with any woman;
b. His second marriage was a show of his noble intentions
and total love for his wife, whom he described to be very
intelligent person;
c. He never absconded from his obligations to support his
wife and child;
d. He never disclaimed paternity over the child and
husbandry (sic) with relation to his wife;
e. After the annulment of his second marriage, they have
parted ways when the mother and child went to Australia;
f. Since then up to now, respondent remained celibate.
Based on the reasons stated above, we find the imposition
of disbarment upon him to be unduly harsh. The power to
disbar must be exercised with great caution, and may be
imposed only in a clear case of misconduct that seriously
affects the standing and character of the lawyer as an
officer of the Court.
Disbarment should never be decreed where any lesser engage in unlawful, dishonest, immoral or deceitful
penalty could accomplish the end desired. In line with this conduct." By acting as a notary public without the proper
philosophy, we find that a penalty of two years suspension commission to do so, the lawyer likewise violates Canon
is more appropriate. The penalty of one (1) year 7 of the same Code, which directs every lawyer to uphold
suspension recommended by the IBP is too light and not at all times the integrity and dignity of the legal
commensurate to the act committed by respondent. profession.
CONNECTED TO THE TOPIC: In the case of Buensuceso v. Barera, a lawyer was
suspended for one year when he notarized five documents
As to the charge of misconduct for having notarized
after his commission as Notary Public had expired.
several documents during the years 1988-1997 after his
Guided by the pronouncement in said case, we find that a
commission as notary public had expired, respondent
suspension of two (2) years is justified under the
humbly admitted having notarized certain documents
circumstances. Herein respondent notarized a total of
despite his knowledge that he no longer had authority to
fourteen (14) documents without the requisite notarial
do so. He, however, alleged that he received no payment commission.
in notarizing said documents.
Other charges constituting respondent’s misconduct such
It has been emphatically stressed that notarization is not
as the pending criminal case for child abuse allegedly
an empty, meaningless, routinary act. On the contrary, it
committed by him against a high school student filed
is invested with substantive public interest, such that only
before the Prosecutor’s Office of Baguio City; the
those who are qualified or authorized may act as notaries
pending administrative case filed by the Teachers, Staff,
public. Notarization of a private document converts the
Students and Parents before an Investigating Board
document into a public one making it admissible in court
created by SLU; and the pending labor case filed by SLU-
without further proof of its authenticity.
LHS Faculty before the NLRC, Cordillera Administrative
A notarial document is by law entitled to full faith and Region, on alleged illegal deduction of salary by
credit upon its face and, for this reason, notaries public respondent, need not be discussed, as they are still
must observe with the utmost care the basic requirements pending before the proper forums. At such stages, the
in the performance of their duties. Otherwise, the presumption of innocence still prevails in favor of the
confidence of the public in the integrity of this form of respondent.
conveyance would be undermined.
WHEREFORE, finding respondent Atty. Rolando Dela
The requirements for the issuance of a commission as Cruz guilty of immoral conduct, in disregard of the Code
notary public must not be treated as a mere casual of Professional Responsibility, he is hereby
formality. The Court has characterized a lawyer’s act of SUSPENDED from the practice of law for a period of two
notarizing documents without the requisite commission to (2) years, and another two (2) years for notarizing
do so as "reprehensible, constituting as it does not only documents despite the expiration of his commission or a
malpractice but also the crime of falsification of public total of four (4) years of suspension.
documents."
The Court had occasion to state that 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 or 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
HECK VS SANTOS
FACTS: The instant case arose when in a verified Letter-
Complaint dated March 21, 2001 Heinz R. Heck prayed
for the disbarment of Judge Anthony E. Santos, Regional
Trial Court, Branch 19, Cagayan de Oro City.
The complainant alleged that prior to the respondents
appointment as RTC judge on April 11, 1989, he violated
the notarial law, thus:
Judge Santos, based on ANNEX A, was not duly
commissioned as notary public until January 9,
1984 but still subscribed and forwarded (on a
non-regular basis) notarized documents to the
Clerk of Court VI starting January 1980
uncommissioned until the 9th of January 1984.
The complainant submitted a certification from Clerk of
Court, Atty. Beverly Sabio-Beja, Regional Trial Court,
Misamis Oriental, which contained the following:
1. The name Atty. Anthony E. Santos is listed as
a duly commissioned notary public in the
following years:
a. January 9, 1984 to December 31, 1985
b. January 16, 1986 to December 31, 1987
c. January 6, 1988 to December 31, 1989
Records also fail to show any entry of transmittal of
notarial documents under the name Atty. Anthony Santos
on various dates.
Pursuant to the report of the Office of the Court
Administrator recommending the need to resort to a full-
blown investigation to determine the veracity of the
parties assertions, the Court, in a Resolution dated
September 10, 2001, resolved to: (a) treat the matter as a
regular administrative complaint; and (b) refer the case to
Associate Justice Edgardo P. Cruz of the Court of Appeals
(CA) for investigation, report and recommendation
Upon the complainants insistence the hearing was held at
in Cagayan de Oro City. The complainant presented his
evidence in Cagayan de Oro City before retired Court of
Appeals Justice Romulo S. Quimbo.
In a Sealed Report dated August 14, 2003, Investigating
Justice Edgardo P. Cruz made the following
recommendation:
It is recommended that [i] respondent (who
retired on May 22, 2002) be found guilty of
violation of the Notarial Law by (a) notarizing
documents without commission; (b) tardiness in
submission of notarial reports; and (c) non-
forwarding of his notarial register to the Clerk of
Court upon expiration of his commission; and [ii]
that for these infractions, he be suspended from
the practice of law and barred from being
commissioned as notary public, both for one year,
and his present commission, if any, be revoked
According to the Investigating Justice, the respondent did
not adduce evidence in his defense, while the complainant
presented documentary evidence to support the charges.
The Investigating Justice said that it is noteworthy that in
his answer, respondent did not claim that he was
commissioned as notary public for the years 1980 to 1983
nor deny the accuracy of the first certification. He merely
alleged that there was no proper recording of the
commissioned lawyers in the City of Cagayan de Oro nor
of the submitted Notarized Documents/Notarial Register.
And, as already observed, he presented no evidence,
particularly on his appointment as notary public for 1980
to 1983 (assuming he was so commissioned) and
submission of notarial reports and notarial register.
Thus, the Investigating Justice concluded, based on the
evidence presented by the complainant, that the
respondent notarized documents in 1980 and 1983
without being commissioned as a notary public therefor,
considering that his earliest commission of record was on
January 9, 1984
ISSUES:
Procedural Issues
a. W/N resolution AM No. 02-9-02-SC applies
b. What procedure to be followed in disbarment
cases involving a retired judge for acts committed
while he was still a practicing lawyer
Substantive Issues
a. W/N the retirement or resignation of a judge will
preclude the filing thereafter of an administrative
charge against him for which he shall still be held
answerable if found liable therefor
b. W/N a judge may be disciplined for acts
committed before his appointment to the
judiciary
c. W/N notarizing documents without the requisite
commission constitutes malpractice, if not the
crime of falsification of public documents
d. W/N the charge against Judge Santos is supported
by evidence
e. W/N an administrative complaint against a
member of the bar prescribes
RULING
PROCEDURAL
a. No. It does not apply.
On September 17, 2002, we issued Resolution A.M. No.
02-9-02-SC, to wit: Some administrative cases against
Justices of the Court of Appeals and the Sandiganbayan;
judges of regular and special courts; and the court officials
who are lawyers are based on grounds which are likewise
grounds for the disciplinary action of members of the Bar
for violation of the Lawyers Oath, the Code of
Professional Responsibility, and the Canons of
Professional Ethics, or for such other forms of breaches
of conduct that have been traditionally recognized as
grounds for the discipline of lawyers.
So Before the Court approved this resolution,
administrative and disbarment cases against members of
the bar who were likewise members of the court were
treated separately. Thus, pursuant to the new rule,
administrative cases against erring justices of the CA and
the Sandiganbayan, judges, and lawyers in the
government service may be automatically treated as
disbarment cases. The Resolution, which took effect on
October 1, 2002, also provides that it shall supplement
Rule 140 of the Rules of Court, and shall apply to
administrative cases already filed where the
respondents have not yet been required to comment on the
complaints.
Clearly, the instant case is not covered by the foregoing
resolution, since the respondent filed his
Answer/Comment on June 13, 2001.
b. The undisputed facts are as follows: (1) the
respondent is a retired judge; (2) the complainant
prays for his disbarment; and (3) the acts
constituting the ground for disbarment were
committed when the respondent was still a
practicing lawyer, before his appointment to the
judiciary. Thus, the respondent is being charged
not for acts committed as a judge; he is charged,
as a member of the bar, with notarizing
documents without the requisite notarial
commission therefor.
It is clear from the Rules then that a complaint for
disbarment is cognizable by the Court itself, and its
indorsement to the IBP is not mandatory. The Court may
refer the complaint for investigation, report and
recommendation to the Solicitor General, any officer of
the court or a judge of a lower court, on which the Court
will thereafter base its final action.
Although the respondent has already retired from the
judiciary, he is still considered as a member of the bar and
as such, is not immune to the disciplining arm of the
Supreme Court, pursuant to Article VIII, Section 6[16]of
the 1987 Constitution. Furthermore, at the time of the
filing of the complaint, the respondent was still the
presiding judge of the Regional Trial Court, Branch 19,
Cagayan de Oro City. As such, the complaint was
cognizable by the Court itself, as the Rule mandates that
in case the respondent is a justice of the Court of Tax
Appeals or the lower court, the complaint shall be filed
with the Supreme Court
SUBSTANTIVE
a. No
The fact that a judge has retired or has otherwise been
separated from the service does not necessarily divest the
Court of its jurisdiction to determine the veracity of the
allegations of the complaint, pursuant to its disciplinary
authority over members of the bench.
However, recognizing the proliferation of unfounded or
malicious administrative or criminal cases against
members of the judiciary for purposes of harassment, we
issued A.M. No. 03-10-01-SC[20] which took effect on
November 3, 2003.
Accdg to AM No 03-10-01-SC, in order for an
administrative complaint against a retiring or retired
judge or justice to be dismissed outright, the following
requisites must concur: (1) the complaint must have been
filed within six months from the compulsory retirement
of the judge or justice; (2) the cause of action must have
occurred at least a year before such filing; and, (3) it is
shown that the complaint was intended to harass the
respondent.
In this case, the Administrative Complaint dated March
21, 2001 was received by the Office of the Court
Administrator on March 26, 2001.[21] The respondent
retired compulsorily from the service more than a year
later, or on May 22, 2002. Likewise, the ground for
disbarment or disciplinary action alleged to have been
committed by the respondent did not occur a year before
the respondents separation from the service. Furthermore,
and most importantly, the instant complaint was
not prima facie shown to be without merit and intended
merely to harass the respondent.
Clearly, therefore, the instant case does not fall within the
ambit of the foregoing resolution.
 b. Yes
It is settled that a judge may be disciplined for acts
committed prior to his appointment to the judiciary.[22] In
fact, even the new Rule itself recognizes this, as it
provides for the immediate forwarding to the Supreme
Court for disposition and adjudication of charges
against justices and judges before the IBP, including
those filed prior to their appointment to the judiciary.[23] It
need not be shown that the respondent continued the
doing of the act or acts complained of; it is sufficient that
the evidence on record supports the charge on the
respondent, considering the gravity of the offense.
The practice of law is so ultimately affected with public
interest that it is both the right and duty of the State to
control and regulate it in order to promote the public
welfare. The Constitution vests this power of control and
regulation in this Court.[29] The Supreme Court, as
guardian of the legal profession, has ultimate disciplinary
power over attorneys, which authority is not only a right
but a bounden duty as well. This is why respect and
fidelity to the Court is demanded of its members
c. Yes
It must be remembered that notarization is not an empty,
meaningless, routinary act. On the contrary, it is invested
with substantive public interest, such that only those who
are qualified or authorized may act as notaries public.[31]
Notarization by a notary public converts a private
document into a public one, making it admissible in
evidence without the necessity of preliminary proof of its
authenticity and due execution.[32]
The requirements for the issuance of a commission as
notary public must not be treated as a mere casual
formality.[33] The Court has characterized a lawyers act
of notarizing documents without the requisite commission
therefore as reprehensible, constituting as it does not only
malpractice, but also the crime of falsification of public
documents.[34] For such reprehensible conduct, the Court
has sanctioned erring lawyers by suspension from the
practice of law, revocation of the notarial commission and
disqualification from acting as such, and even disbarment.
In the case of Nunga v. Viray,[36] the Court had the
occasion to state -
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 lawyers 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 lawyers 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.[37]
The importance of the function of a notary public cannot,
therefore, be over-emphasized. No less than the public
faith in the integrity of public documents is at stake in
every aspect of that function
d. Yes
The respondent did not object to the complainants formal
offer of evidence, prompting the Investigating Justice to
decide the case on the basis of the pleadings filed.[39]
Neither did he claim that he was commissioned as notary
public for the years 1980 to 1983, nor deny the accuracy
of the first certification. The respondent merely alleged in
his answer that there was no proper recording of the
commissioned lawyers in the City of Cagayan de Oro nor
of the submitted Notarized Documents/Notarial Register.
Furthermore, as found by the Investigating Justice, the
respondent presented no evidence of his commission as
notary public for the years 1980 to 1983, as well as proof
of submission of notarial reports and the notarial register.
The respondent in this case was given an opportunity to
answer the charges and to controvert the evidence against
him in a formal investigation. When the integrity of a
member of the bar is challenged, it is not enough that he
deny the charges; he must meet the issue and overcome
the evidence against him.
The respondents allegation that the complainant was not
a party in any of the documents so notarized, and as such
was not prejudiced thereby, is unavailing. An attorney
may be disbarred or suspended for any violation of his
oath or of his duties as an attorney and counselor which
include the statutory grounds under Section 27, Rule
138[42] of the Revised Rules of Court. Any interested
person or the court motu proprio may initiate disciplinary
proceedings. There can be no doubt as to the right of a
citizen to bring to the attention of the proper authority acts
and doings of public officers which citizens feel are
incompatible with the duties of the office and from which
conduct the citizen or the public might or does suffer
undesirable consequences
 e. No
The qualification of good moral character is a requirement
which is not dispensed with upon admission to
membership of the bar. This qualification is not only a
condition precedent to admission to the legal profession,
but its continued possession is essential to maintain ones
good standing in the profession. It is a continuing
requirement to the practice of law and therefore does not
preclude a subsequent judicial inquiry, upon proper
complaint, into any question concerning ones mental or
moral fitness before he became a lawyer. This is because
his admission to practice merely creates a rebuttable
presumption that he has all the qualifications to become a
lawyer. The rule is settled that a lawyer may be suspended
or disbarred for any misconduct, even if it pertains to his
private activities, as long as it shows him to be wanting in
moral character, honesty, probity or good demeanor.
Possession of good moral character is not only a
prerequisite to admission to the bar but also a continuing
requirement to the practice of law.
Furthermore, administrative cases against lawyers belong
to a class of their own, distinct from and may proceed
independently of civil and criminal cases. As we held in
the leading case of In re Almacen: [D]isciplinary
proceedings against lawyers are sui generis.
Pursuant to the foregoing, there can be no other
conclusion than that an administrative complaint
against an erring lawyer who was thereafter
appointed as a judge, albeit filed only after twenty-
four years after the offending act was committed, is
not barred by prescription. If the rule were otherwise,
members of the bar would be emboldened to disregard the
very oath they took as lawyers, prescinding from the fact
that as long as no private complainant would immediately
come forward, they stand a chance of being completely
exonerated from whatever administrative liability they
ought to answer for. It is the duty of this Court to protect
the integrity of the practice of law as well as the
administration of justice. No matter how much time has
elapsed from the time of the commission of the act
complained of and the time of the institution of the
complaint, erring members of the bench and bar cannot
escape the disciplining arm of the Court. This categorical
pronouncement is aimed at unscrupulous members of the
bench and bar, to deter them from committing acts which
violate the Code of Professional Responsibility, the Code
of Judicial Conduct, or the Lawyers Oath. This should
particularly apply in this case, considering the seriousness
of the matter involved - the respondents dishonesty and
the sanctity of notarial documents.
Thus, even the lapse of considerable time, from the
commission of the offending act to the institution of the
administrative complaint, will not erase the
administrative culpability of a lawyer who notarizes
documents without the requisite authority therefor.
Time and again, we have stressed the settled principle that
the practice of law is not a right but a privilege bestowed
by the State on those who show that they possess the
qualifications required by law for the conferment of such
privilege. Membership in the bar is a privilege burdened
with conditions. A high sense of morality, honesty, and
fair dealing is expected and required of a member of the
bar.[52] By his actuations, the respondent failed to live up
to such standards;[53] he undermined the confidence of the
public on notarial documents and thereby breached Canon
I of the Code of Professional Responsibility, which
requires lawyers to uphold the Constitution, obey the laws
of the land and promote respect for the law and legal
processes. The respondent also violated Rule 1.01 thereof
which proscribes lawyers from engaging in unlawful,
dishonest, immoral or deceitful conduct.[54] In
representing that he was possessed of the requisite
notarial commission when he was, in fact, not so
authorized, the respondent also violated Rule 10.01 of the
Code of Professional Responsibility and his oath as a
lawyer that he shall do no falsehood.
The supreme penalty of 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. While we will not hesitate to remove an erring
attorney from the esteemed brotherhood of lawyers where
the evidence calls for it, we will likewise not disbar him
where a lesser penalty will suffice to accomplish the
desired end.[55] Furthermore, a tempering of justice is
mandated in this case, considering that the complaint
against the respondent was filed twenty-four years after
the commission of the act complained of;[56] that there
was no private offended party who came forward and
claimed to have been adversely affected by the documents
so notarized by the respondent; and, the fact that the
respondent is a retired judge who deserves to enjoy the
full measure of his well-earned retirement
benefits.[57] The Court finds that a fine of P5,000.00 is
justified in this case.
WHEREFORE, respondent Judge Anthony E. Santos is
found GUILTY of notarizing documents without the
requisite notarial commission therefor. He is hereby
ORDERED to pay a fine in the amount of Five Thousand
Pesos (P5,000.00).
MILA VIRTUSIO, Complainant, vs. ATTY.
GRENALYN V. VIRTUSIO, Respondent.
A.C. No. 6753; September 5, 2012; ABAD, J.
FACTS:
This administrative case concerns a lawyer who failed to
use the money given by another to fund the checks she
issued as accommodation party in payment for the
property that was purchased by such person and
performed a notarial act without commission.
Mila Virtusio (Mila) filed with this Court a Complaint for
disbarment against against her husband's distant relative,
Atty. Grenalyn V. Virtusio.
Mila alleged that Atty. Virtusio convinced her to buy a
house and lot at North Olympus Subdivision in
Novaliches, Quezon City, from its developer, Stateland
Investment Corporation (Stateland).
Mila agreed for Atty. Virtusio to use her personal checks
in paying the seller with Mila reimbursing her. Under this
arrangement, Mila gave Atty. Virtusio the following
amounts: ₱ 95,000.00, ₱ 25,000.00, ₱ 65,000.00, ₱
64,000.00 and ₱ 64,000.00. All of these were properly
receipted except for the ₱ 95,000.00 for which she got a
receipt from her for only ₱ 90,000.00.
On October 25 and November 24, 1999, Mila deposited
identical amounts of ₱ 64,000.00 each in Atty. Virtusio’s
checking account with Equitable Bank. In all, Mila gave
her ₱ 441,000.00.
To her surprise, however, Mila began receiving letters
from Stateland, demanding that she make good the
dishonored checks that it got. When she confronted Atty.
Virtusio regarding this, the latter assured her that she
would take care of the problem. But the demand letters
persisted.
For fear of losing the property, Mila directly dealt with
Stateland. In order not to lose the property, Mila and her
husband decided to settle their overdue obligation with
money they borrowed at high interest. In turn, Stateland
turned over to her three checks of Atty. Virtusio, each for
₱ 71,944.97, with the notation "DAIF."
Mila further alleged that Atty. Virtusio declined to return
to her the money the latter misappropriated despite
demand.
Only when Mila threatened to file a case against her did
Atty. Virtusio agree to pay her by executing a deed of sale
in her favor covering her Mazda car. When she refused to
give up the car, Mila filed a replevin case against Atty.
Virtusio that the court eventually decided in Mila’s favor.
But, as it turned out, Atty. Virtusio had managed to
register the car in her children’s name and sold it to a third
person. Mila filed a case of estafa against Atty. Virtusio
apart from the present disbarment case.
Mila claimed that Atty. Virtusio evaded the return of
money she misappropriated, impeded the execution of a
final judgment, and engaged in conduct that discredits the
legal profession, all in violation of the Code of
Professional Responsibility, rendering her unfit to remain
a member of the bar.
The Court required Atty. Virtusio to comment on the
complaint. She asked for extension of time to comply but
did not file her comment just the same.
The IBP Investigating Commissioner directed Atty.
Virtusio to file a position paper. She filed a motion for
extension of time to file the same but did not.
IBP Investigating Commissioner reported having found
that Atty. Virtusio appropriated portions of the money
that Mila gave her for payment to Stateland, thus
evidencing her moral unfitness to practice the profession.
The Commissioner recommended the imposition of the
penalty of one year suspension from the practice of law
with a two-year disqualification from reappointment as
Notary Public, given that she had notarized documents
despite the expiration of her notarial commission. The
IBP Board of Governors approved the report and
recommendation.
Atty. Virtusio filed a motion for reconsideration of the
IBP Investigating Commissioner’s action. She prayed that
her attached position paper be admitted and considered in
resolving her motion for reconsideration.
In her version of the facts, Atty. Virtusio wants to
convince the Court that she committed no intentional
wrongs and that she was but a victim of circumstances.
Although she admitted using Mila’s money rather than
pay Stateland with it, she explained that, having been busy
attending to her sick son in Manila, she failed to monitor
her check disbursements, entrusting it to an office staff.
Atty. Virtusio averred that she and Mila entered into a
verbal agreement whereby she would pay her in exchange
for Mila’s dismissal of all her actions. Notwithstanding
that the compromise agreement had not been formalized,
Atty. Virtusio claimed that it obliterated her liabilities,
given that she substantially settled her obligations to Mila.
Atty. Virtusio also pointed out, that the charges against
her were not born of some professional relation between
Mila and her. She had acted as an accommodation party,
allowing Mila to make use of her personal checks to
facilitate the purchase of a property from Stateland. And,
assuming that the predicament she finds herself in has a
bearing on her professional conduct, the same does not
amount to grossly immoral conduct since she owned up
to her responsibilities and exerted tireless effort to settle
her accounts.
Further, Atty. Virtusio claimed that she should not be
penalized for violation of the notarial law since this
offense did not form part of the original complaint to
which she was required to respond. At any rate, she
merely committed an oversight.
She had religiously renewed her notarial commission
yearly since May 1995. When she notarized the
questioned documents, she believed in good faith that she
had renewed her notarial commission for 2006 and 2007
just as before. She asked not to be punished for her
mistake since it was brought about by her sincere
commitment to extend free legal service to the
disadvantaged.
Lastly, Atty. Virtusio asked the Court to reconsider the
harsh penalty imposed on her in the light of the peculiar
circumstances of her case and the good faith she showed.
IBP Board of Governors issued Resolution denying the
motion despite an affidavit of desistance that Mila filed in
the meantime.
ISSUES:
1. Whether or not the IBP erred in finding Atty. Virtusio
guilty of grave misconduct in her dealings with Mila and
in notarizing documents without a renewed commission –
NO.
2. Assuming Atty. Virtusio was guilty of some offenses,
whether or not the IBP imposed the appropriate penalties
on her. – YES.
RULING:
Lawyers are, as officers of the court and instruments for
the administration of justice, expected to maintain not
only legal proficiency but also a high standard of
morality, honesty, and fair dealing. A lawyer’s gross
misconduct, whether in his professional or private
capacity, is ground for suspension or disbarment under
the principle that, since good moral character is an
essential qualification for the admission to the practice of
law, maintaining such trait is a condition for keeping the
privilege.31
By her own account, Atty. Virtusio admitted misusing the
money that Mila entrusted to her for payment to Stateland.
Her excuse is that she lost track of her finances and mixed
up her office funds with her personal funds. But this
excuse is too thin. She admitted misusing ₱ 165,000.00 of
Mila’s money, which is not petty cash. Indeed she tried to
borrow money from a third person to cover it up rather
than just offer her shallow excuse to Mila. Atty. Virtusio’s
use for personal purpose of money entrusted to her
constitutes dishonest and deceitful conduct under the
Code of Professional Responsibility. It provides:
Rule 1.01 — A lawyer shall not engage in unlawful,
dishonest, immoral or deceitful conduct.
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 shall
he, whether in public or private life, behave in a
scandalous manner to the discredit of the legal profession.
Atty. Virtusio cannot absolve herself of liability by
claiming that she failed to attend to her finances because
she had to look after a sick child at that time. Assuming
she had such a child, the fact is that it was not by mere
oversight that she failed to finance the checks for
Stateland.
For, if this were so, she could have easily rectified her
mistake by using her other funds. In truth, she spent the
money that Mila entrusted to her because she had no other
funds. Indeed, she had to borrow money from a third party
later to remedy her financial problems.
What is more, supposedly to cover up for her fault, Atty.
Virtusio executed a deed of sale covering her car in Mila’s
favor rather than return the money she defalcated. But,
again acting with guile, she withheld possession of the car
and transferred its registration in the name of her children.
Atty. Virtusio is guilty by her above acts of gross
misconduct that warrants her suspension for one year
from the practice of law following Section 27, Rule 138
of the Rules of Court.
CONNECTED TO THE TOPIC
The Court cannot also countenance Atty. Virtusio’s
notarization of documents after her notarial commission
had expired. Although the IBP discovered this violation
of the notarial law only in the course of the proceedings
and was not a subject matter of Mila’s complaint, it cannot
close its eyes to the same. Besides, Atty. Virtusio had an
opportunity to defend herself against this additional
charge. Her defense is that she thought that she had
renewed her commission.
Again, Atty. Virtusio’s defense is unsubstantial. She did
not renew her notarial commission for two years, 2006
and 2007, not just one. She could not have missed that fact
considering that, as she said, she had been renewing her
commission yearly from 1995 to 2005.
A lawyer who notarizes a document without a proper
commission violates his lawyer’s oath to obey the
law.1âwphi1 He makes it appear that he is commissioned
when he is not. He thus indulges in deliberate falsehood
that the lawyer’s oath forbids. This violation falls
squarely under Rule 1.01 of Canon 1 of the Code of
Professional Responsibility and Canon 7 as well. A
proper sanction is authorized.
Considering, however, that based on the evidence Atty.
Virtusio had notarized only two documents without a
proper notarial commission, the Court finds her
suspension from notarial practice for one year adequate.
That Mila had agreed after some financial settlement to
withdraw her complaint against Atty. Virtusio cannot
exempt the latter from the prescribed sanction. She has
outraged the country’s professional code and this
demands a measure of justice. As the Court said in
Spouses Soriano v. Atty. Reyes, disbarment is a
disciplinary action taken for the public good.
Consequently, it is as a rule not subject to some
compromise entered into with the complainant. Besides,
Mila's evidence is already a matter of record and the Court
cannot simply ignore the same.
WHEREFORE, the Court FINDS Atty. Grenalyn V.
Virtusio GUILTY of gross misconduct and violation of
the Code of Professional Responsibility
and IMPOSES on her the penalty of SUSPENSION from
the practice of law for one year, effective immediately. In
addition, the Court REVOKES any Notarial Commission
she may presently have and DISQUALIFIES her from
applying for it for one year also effective immediately.
Further, she is WARNED of a more severe penalty should
she commit a similar infraction in the future.
BAUTISTA VS BERNABE
FACTS: In a Complaint1 filed before the Commission on
Bar Discipline of the IBP, complainant Victorina
Bautista2 prays for the suspension or disbarment of
respondent Atty. Sergio E. Bernabe for malpractice and
unethical conduct in the performance of his duties as a
notary public and a lawyer.
Complainant alleged that on January 3, 1998, respondent
prepared and notarized a Magkasanib na
3
Salaysay purportedly executed by Donato Salonga and
complainant’s mother, Basilia de la Cruz.4 Both affiants
declared that a certain parcel of land in Bigte, Norzagaray,
Bulacan, was being occupied by Rodolfo Lucas and his
family for more than 30 years. Complainant claimed that
her mother could not have executed the joint affidavit on
January 3, 1998 because she has been dead since January
28, 1961
In his Answer,6 respondent denied that he falsified
the Magkasanib na Salaysay. He disclaimed any
knowledge about Basilia’s death. He alleged that before
he notarized the document, he requested for Basilia’s
presence and in her absence, he allowed a certain
Pronebo, allegedly a son-in-law of Basilia, to sign above
the name of the latter as shown by the word "by" on top
of the name of Basilia. Respondent maintained that there
was no forgery since the signature appearing on top of
Basilia’s name was the signature of Pronebo.
On April 4, 2005, respondent filed a persons who signed the same are the very same persons
7
manifestation attaching thereto the affidavit of
desistance of complainant which reads in part:
Ako na si, VICTORINA BAUTISTA CAPA, x x x
matapos makapanumpa ng naaayon sa batas ay malaya at
kusang loob na nagpapahayag ng mga sumusunod:
1. Na ako ang siyang tumatayong nagrereklamo laban kay
Abogado, SERGIO EXQUIVEL BERNABE, sa isang
kaso sa Tanggapan ng Integrated Bar of the Philippines
na may Blg. CBD CASE NO. 04-1371;
2. Na ang nasabing habla ay hindi ko kagustuhan sapagkat
iyon ay pinapirmahan lamang sa akin ni ELISEO
OLOROSO at ng kanyang Abogado na si Atty.
MARCIAL MORFE MAGSINO at sa katunayan hindi
ako nakaharap sa Notaryo Publiko na si Abogado
CARLITOS C. VILLARIN;
3. Na ang pagpapapirma sa akin ay isang panlilinlang at
ako ay ginawang kasangkapan para sirain ang magandang
pangalan nitong si Abogado SERGIO ESQUIVEL
BERNABE;
4. Na dahil sa ganitong pangyayari, aking hinihiling sa
Tanggapan ng Integrated Bar of the Philippines (IBP) na
ang reklamo ko laban sa nasabing Abogado SERGIO
ESQUIVEL BERNABE ay mapawa[la]ng bisa.
However, in the report, the Investigating
Commissioner9 recommended that: Atty. Sergio Esquibel
Bernabe be suspended from the practice of the legal
profession for 1 month; Any existing commission of him
as notary public, be revoked; and he be barred from being
granted a notarial commission for a period of 1 year
The Board of Governors of the IBP adopted and approved
the recommendation of the Investigating Commissioner
with modification that respondent be suspended from the
practice of law for 1 year and his notarial commission be
revoked and he be disqualified for reappointment as
notary public for 2 years.
ISSUE: W/N Atty Bernabe should be disqualified as
notary public
RULING: Yes
The records sufficiently established that Basilia was
already dead when the joint affidavit was prepared on
January 3, 1998. Respondent’s alleged lack of knowledge
of Basilia’s death does not excuse him. It was his duty to
require the personal appearance of the affiant before
affixing his notarial seal and signature on the instrument.
A notary public should not notarize a document unless the
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.11
Respondent’s act of notarizing the Magkasanib na
Salaysay in the absence of one of the affiants is in
violation of Rule 1.01,12 Canon 1 of the Code of
Professional Responsibility and the Notarial Law.13 By
affixing his signature and notarial seal on the instrument,
he led us to believe that Basilia personally appeared
before him and attested to the truth and veracity of the
contents of the affidavit when in fact it was a certain
Pronebo who signed the document. Respondent’s conduct
is fraught with dangerous possibilities considering the
conclusiveness on the due execution of a document that
our courts and the public accord on notarized documents.
Respondent has clearly failed to exercise utmost diligence
in the performance of his function as a notary public and
to comply with the mandates of the law.14
Respondent was also remiss in his duty when he allowed The Commission on Bar Discipline of the Integrated Bar
Pronebo to sign in behalf of Basilia. A member of the bar of the Philippines is DIRECTED to investigate the
who performs an act as a notary public should not notarize allegation that Atty. Carlitos C. Villarin notarized
a document unless the persons who signed the same are the Sinumpaang Salaysay of Victorina Bautista dated
the very same persons who executed and personally November 12, 2004 without requiring the latter’s personal
appeared before him. The acts of the affiants cannot be appearance
delegated to anyone for what are stated therein are facts
of which they have personal knowledge. They should
swear to the document personally and not through any
representative. Otherwise, their representative’s name
should appear in the said documents as the one who
executed the same.
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.
We find the penalty recommended by the IBP to be in full
accord with recent jurisprudence.
Finally, it has not escaped our notice that in paragraph
218 of complainant’s affidavit of desistance, she alluded
that Atty. Carlitos C. Villarin notarized her Sinumpaang
Salaysay19 dated November 12, 2004 which was attached
to the complaint filed with the Commission on Bar
Discipline of the IBP, without requiring her to personally
appear before him in violation of the Notarial Law. This
allegation must likewise be investigated.
WHEREFORE, for breach of the Notarial Law and
Code of Professional Responsibility, the notarial
commission of respondent Atty. Sergio E. Bernabe,
is REVOKED. He is DISQUALIFIED from
reappointment as Notary Public for a period of two years.
He is also SUSPENDED from the practice of law for a
period of one year, effective immediately. He is
further WARNED that a repetition of the same or of
similar acts shall be dealt with more severely. He
is DIRECTED to report the date of receipt of this
Decision in order to determine when his suspension shall
take effect.
BAUTISTA VS SILVA
DOCTRINE: To establish his status as a buyer for value
in good faith, a person dealing with land registered in the
name of and occupied by the seller need only show that
he relied on the face of the seller's certificate of title.1 But
for a person dealing with land registered in the name of
and occupied by the seller whose capacity to sell is
restricted, such as by Articles 1662 and 1733 of the Civil
Code or Article 1244 of the Family Code, he must show
that he inquired into the latter's capacity to sell in order to
establish himself as a buyer for value in good faith.5 The
extent of his inquiry 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 appear 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.
FACTS: Civil Case No. 3091-V-89 is a Complaint for
Annulment of Deed of Absolute Sale and Transfer
Certificate of Title (TCT) No. V-2765, Reconveyance and
Damages filed by Berlina F. Silva (Berlina), through
Hermes Dorado (Dorado) as Attorney-in-Fact, against
Spouses Claro and Nida Bautista (Spouses Bautista).
Spouses Bautista filed their Answer8 and a Third-Party
Complaint against Berlina's husband, Pedro M. Silva
(Pedro).9 In an Order dated August 6, 1991, the RTC
declared third-party defendant Pedro in default for failure
to file an answer to the Third-Party Complaint.10
The undisputed facts of the case, as found by the RTC, are
as follows:
1. That Transfer Certificate of Title No. B-37189 of the
Registry of Deeds for xxx Metro Manila District III over
a parcel of land situated in xxx Barrio of Parada,
Valenzuela, Metro Manila, was registered in the names of
Spouses Berlina F. Silva and Pedro M. Silva on August
14, 1980;
2. That on March 3, 1988, Pedro M. Silva, for himself and
as attorney-in-fact of his wife Berlina F. Silva, thru a
Special Power of Attorney purportedly executed on
November 18, 1987 by Berlina F. Silva in his favor,
signed and executed a Deed of Absolute Sale over the said
parcel of land covered by Transfer Certificate of Title No.
B-37189 in favor of defendants-spouses Claro Bautista
and Nida Bautista; and
3. That as a consequence, Transfer Certificate of Title No.
37189 was cancelled and in lieu thereof, Transfer
Certificate of Title No. V-2765 of the Registry of Deeds
for the Valenzuela Branch was issued in the names of
Spouses Claro Bautista and Nida Bautista
Based on the evidence presented, the RTC also found that
the signature appearing on the Special Power of Attorney
(SPA) as that of Berlina Silva is a forgery, and that
consequently the Deed of Absolute Sale executed by
Pedro in favor of Spouses Bautista is not authorized by
Berlina; hence, null and void.
The CA affirmed in toto the RTC decision.
ISSUES
1. W/N Hermes Dorado in his capacity as attorney-
in-fact has legal authority to file action against
spouses petitioners on behalf of the respondents
2. W/N the petitioners are considered as purchasers
in good faith and for value having relied upon a
Special Power of Attorney which appears legal,
valid and genuine on its face.
3. W/N petitioners may retain the portion of Pedro
Silva in the subject property
RULING
1. Yes
True, there was no written authority for Dorado to
represent respondent in the filing of her Complaint.
However, no written authorization of Dorado was needed
because the Complaint was actually filed by respondent,
and not merely through Dorado as her attorney-in-fact. As
correctly observed by the CA, respondent herself signed
the verification attached to the Complaint.18 She stated
therein that she is the plaintiff in Civil Case No. 3091-V-
89 and that she caused the preparation of the
Complaint.19 Respondent also personally testified on the
facts alleged in her Complaint.20 In reality, respondent
acted for and by herself, and not through any
representative, when she filed the Complaint. Therefore,
respondent being the real party in interest, by virtue of the
then prevailing Articles 16621 and 17322 of the Civil Code,
the Complaint she filed sufficiently stated a cause of
action.
2. No.
That the SPA is a forgery is a finding of the RTC and the
CA on a question of fact.25 The same is conclusive upon
the Court, 26 especially as it is based on the expert
opinion of the NBI which constitutes more than clear,
positive and convincing evidence that respondent did not
sign the SPA, and on the uncontroverted Certification of
Dorado that respondent was in Germany working as a
nurse when the SPA was purportedly executed in 1987.
The SPA being a forgery, it did not vest in Pedro any
authority to alienate the subject property without the
consent of respondent. Absent such marital consent, the
deed of sale was a nullity.
But then petitioners disclaim any participation in the
forgery of the SPA or in the unauthorized sale of the
subject property. They are adamant that even with their
knowledge that respondent was in Germany at the time of
the sale, they acted in good faith when they bought the
subject property from Pedro alone because the latter was
equipped with a SPA which contains a notarial
acknowledgment that the same is valid and authentic.
A holder of registered title may invoke the status of a
buyer for value in good faith as a defense against any
action questioning his title.34 Such status, however, is
never presumed but must be proven by the person
invoking it. A buyer for value in good faith is one who
buys property of another, with the well-founded belief that
the person from whom he receives the thing had title to
the property and capacity to convey it
To prove good faith, a buyer of registered and titled land
need only show that he relied on the face of the title to the
property. He need not prove that he made further inquiry
for he is not obliged to explore beyond the four corners of
the title.37 Such degree of proof of good faith, however, is
sufficient only when the following conditions concur:
first, the seller is the registered owner of the
land; 38 second, the latter is in possession thereof;39 and
third, at the time of the sale, the buyer was not aware of
any claim or interest of some other person in the
property,40 or of any defect or restriction in the title of the
seller or in his capacity to convey title to the property.41
Absent one or two of the foregoing conditions, then the
law itself puts the buyer on notice and obliges the latter to
exercise a higher degree of diligence by scrutinizing the
certificate of title and examining all factual circumstances
in order to determine the seller's title and capacity to
transfer any interest in the property.
In the present case, petitioners were dealing with a seller
(Pedro) who had title to and possession of the land but, as
indicated on the face of his title, whose capacity to sell
was restricted, in that the marital consent of respondent is
required before he could convey the property. To prove
good faith then, petitioners must show that they inquired
not only into the title of Pedro but also into his capacity
to sell.
According to petitioners, to determine Pedro's capacity to
sell, they conducted the following forms of inquiry: first,
they inspected the photocopy of the SPA presented to
them by Pedro;45 second, they brought said copy to Atty.
Lorenzo Lucero (the notary public who prepared the deed
of sale) and asked whether it was genuine;46 and third,
they inspected the original copy of the SPA after they
advanced payment of Php55,000.00 to
Pedro.47 Essentially, petitioners relied on the SPA,
specifically on its notarial acknowledgment which states
that respondent appeared before the notary public and
acknowledged having executed the SPA in favor of
Pedro.
To what extent, therefore, should an inquiry into a
notarized special power of attorney go in order for one to
qualify as a buyer for value in good faith?
When the document under scrutiny is a special power of
attorney that is duly notarized, we know it to be a public
document where the notarial acknowledgment is prima
facie evidence of the fact of its due execution.51 A buyer
presented with such a document would have no choice
between knowing and finding out whether a forger lurks
beneath the signature on it. The notarial acknowledgment
has removed that choice from him and replaced it with a
presumption sanctioned by law that the affiant appeared
before the notary public and acknowledged that he
executed the document, understood its import and signed
it. In reality, he is deprived of such choice not because he
is incapable of knowing and finding out but because,
under our notarial system, he has been given the luxury of
merely relying on the presumption of regularity of a duly
notarized SPA. And he cannot be faulted for that because
it is precisely that fiction of regularity which holds
together commercial transactions across borders and time.
In sum, all things being equal, a person dealing with a
seller who has possession and title to the property but
whose capacity to sell is restricted, qualifies as a buyer in
good faith if he proves that he inquired into the title of the
seller as well as into the latter's capacity to sell; and that
in his inquiry, he relied on the notarial acknowledgment
found in the seller's duly notarized special power of
attorney. He need not prove anything more for it is already
the function of the notarial acknowledgment to establish
the appearance of the parties to the document, its due
execution and authenticity.
In the present case, petitioners knew that Berlina was in
Germany at the time they were buying the property and
the SPA relied upon by petitioners has a defective notarial
acknowledgment. The SPA was a mere photocopy56 and
we are not convinced that there ever was an original copy
of said SPA as it was only this photocopy that was
testified to by petitioner Nida Bautista and offered into
evidence by her counsel.57 We emphasize this fact
because it was actually this photocopy that was relied
upon by petitioners before they entered into the deed of
sale with Pedro. As admitted to by petitioner Nida
Bautista, upon inspection of the photocopy of the SPA,
they gave Pedro an advanced payment of Php55,000.00;
this signifies that, without further investigation on the
SPA, petitioners had agreed to buy the subject property
from Pedro.
But then said photocopy of the SPA contains no notarial
seal. A notarial seal is a mark, image or impression on a
document which would indicate that the notary public
has officially signed it.58 There being no notarial seal, the
signature of the notary public on the notarial certificate
was therefore incomplete. The notarial certificate being
deficient, it was as if the notarial acknowledgment was
unsigned. The photocopy of the SPA has no notarial
acknowledgment to speak of. It was a mere private
document which petitioners cannot foist as a banner of
good faith.
All told, it was not sufficient evidence of good faith that
petitioners merely relied on the photocopy of the SPA as
this turned out to be a mere private document. They
should have adduced more evidence that they looked
beyond it. They did not. Instead, they took no precautions
at all. They verified with Atty. Lucero whether the SPA
was authentic but then the latter was not the notary public
who prepared the document. Worse, they purposely failed
to inquire who was the notary public who prepared the
SPA. Finally, petitioners conducted the transaction in
haste. It took them all but three days or from March 2 to
4, 1988 to enter into the deed of sale, notwithstanding the
restriction on the capacity to sell of Pedro.59 In no way
then may petitioners qualify as buyers for value in good
faith.
3. No. It is well-settled that the nullity of the sale of
conjugal property contracted by the husband
without the marital consent of the wife affects the
entire property, not just the share of the
wife.60 We see no reason to deviate from this rule.
NOTARIAL JURISDICTION
BELLA A. GUERRERO, PETITIONER, VS.
RESURRECCION A. BIHIS, RESPONDENT.
G.R. NO. 174144, April 17, 2007; CORONA, J
The Scriptures tell the story of the brothers Jacob and
Esau, siblings who fought bitterly over the inheritance of
their father Isaac's estate. Jurisprudence is also replete
with cases involving acrimonious conflicts between
brothers and sisters over successional rights. This case is
no exception.
FACTS:
On February 19, 1994, Felisa Tamio de Buenaventura,
mother of petitioner Bella A. Guerrero and respondent
Resurreccion A. Bihis, died at the Metropolitan Hospital
in Tondo, Manila.
Petitioner filed a petition for the probate of the last will
and testament of the decedent in Regional Trial Court of
Quezon City .
The petition alleged the following: petitioner was named
as executrix in the decedent's will and she was legally
qualified to act as such; the decedent was a citizen of the
Philippines at the time of her death; at the time of the
execution of the will, the testatrix was 79 years old, of
sound and disposing mind, not acting under duress, fraud
or undue influence and was capacitated to dispose of her
estate by will.
Respondent opposed her elder sister's petition on the
following grounds: the will was not executed and attested
as required by law; its attestation clause and
acknowledgment did not comply with the requirements of
the law; the signature of the testatrix was procured by
fraud and petitioner and her children procured the will
through undue and improper pressure and influence.
In an order, the trial court appointed petitioner as special
administratrix of the decedent's estate. Respondent
opposed petitioner's appointment but subsequently
withdrew her opposition. Petitioner took her oath as
temporary special administratrix and letters of special
administration were issued to her.
On January 17, 2000, after petitioner presented her
evidence, respondent filed a demurrer thereto alleging
that petitioner's evidence failed to establish that the
decedent's will complied with Articles 804 and 805 of the
Civil Code.
In a resolution dated July 6, 2001, the trial court denied
the probate of the will ruling that Article 806 of the Civil
Code was not complied with because the will was
"acknowledged" by the testatrix and the witnesses at the
testatrix's, residence at No. 40 Kanlaon Street, Quezon
City before Atty. Macario O. Directo who was a
commissioned notary public for and in Caloocan City.
Petitioner elevated the case to the Court of Appeals but
the appellate court dismissed the appeal and affirmed the
resolution of the trial court. Thus, this petition.
ISSUE:
RULING:
Petitioner admits that the will was acknowledged by the
testatrix and the witnesses at the testatrix's residence in
Quezon City before Atty. Directo and that, at that time,
Atty. Directo was a commissioned notary public for and
in Caloocan City. She, however, asserts that the fact that
the notary public was acting outside his territorial
jurisdiction did not affect the validity of the notarial will.
Did the will "acknowledged" by the testatrix and the
instrumental witnesses before a notary public acting
outside the place of his commission satisfy the
requirement under Article 806 of the Civil Code? It did
not.
Article 806 of the Civil Code provides:
ART. 806. Every will must be acknowledged before a
notary public by the testator and the witnesses. The notary
public shall not be required to retain a copy of the will, or
file another with the office of the Clerk of Court.
One of the formalities required by law in connection with
the execution of a notarial will is that it must be
acknowledged before a notary public by the testator and
the witnesses.[6] This formal requirement is one of the
indispensable requisites for the validity of a will.[7] In
other words, a notarial will that is not acknowledged
before a notary public by the testator and the instrumental
witnesses is void and cannot be accepted for probate.
An acknowledgment is the act of one who has executed a
deed in going before some competent officer and
declaring it to be his act or deed.[8] In the case of a
notarial will, that competent officer is the notary public.
The acknowledgment of a notarial will coerces the
testator and the instrumental witnesses to declare before
an officer of the law, the notary public, that they executed
and subscribed to the will as their own free act or deed.[9]
Such declaration is under oath and under pain of perjury,
thus paving the way for the criminal prosecution of An acknowledgment taken outside the territorial limits of
persons who participate in the execution of spurious wills, the officer's jurisdiction is void as if the person taking it
or those executed without the free consent of the ware wholly without official character. (emphasis
testator.[10] It also provides a further degree of assurance supplied)
that the testator is of a certain mindset in making the
Since Atty. Directo was not a commissioned notary public
testamentary dispositions to the persons instituted as heirs
for and in Quezon City, he lacked the authority to take the
or designated as devisees or legatees in the will.[11]
acknowledgment of the testatrix and the instrumental
Acknowledgment can only be made before a competent witnesses. In the same vein, the testatrix and her witnesses
officer, that is, a lawyer duly commissioned as a notary could not have validly acknowledged the will before him.
public. Thus, Felisa Tamio de Buenaventura's last will and
testament was, in effect, not acknowledged as required by
In this connection, the relevant provisions of the Notarial
law.
Law provide:
Moreover, Article 5 of the Civil Code provides:
SECTION 237. Form of commission for notary public. -
The appointment of a notary public shall be in writing, ART. 5. Acts executed against the provisions of
signed by the judge, and substantially in the following mandatory or prohibitory laws shall be void, except when
form: the law itself authorizes their validity.
GOVERNMENT OF THE The violation of a mandatory or a prohibitory statute
renders the act illegal and void unless the law itself
REPUBLIC OF THE PHILIPPINES
declares its continuing validity. Here, mandatory and
PROVINCE OF ___________ prohibitory statutes were transgressed in the execution of
the alleged "acknowledgment." The compulsory language
This is to certify that ____________, of the municipality of Article 806 of the Civil Code was not complied with
of ________ in said province, was on the ___ day of and the interdiction of Article 240 of the Notarial Law
__________, anno Domini nineteen hundred and was breached. Ineluctably, the acts of the testatrix, her
_______, appointed by me a notary public, within and for witnesses and Atty. Directo were all completely void.
the said province, for the term ending on the first day of
January, anno Domini nineteen hundred and _____. The Court cannot turn a blind eye to Atty. Directo's
participation in the preparation, execution and unlawful
_________________ "acknowledgment" of Felisa Tamio de Buenaventura's
Judge of the Court of First Instance[12] of said Province will. Had he exercised his notarial commission properly,
the intent of the law to effectuate the decedent's final
xxx xxx xxx statements[15] as expressed in her will would not have
come to naught.[16] Hence, Atty. Directo should show
SECTION 240. Territorial jurisdiction. - The jurisdiction
cause why he should not be administratively sanctioned
of a notary public in a province shall be co-extensive with
as a member of the bar and as an officer of the court.
the province. The jurisdiction of a notary public in the
City of Manila shall be co-extensive with said city. No WHEREFORE, the petition is hereby DENIED.
notary shall possess authority to do any notarial act
beyond the limits of his jurisdiction. (emphases supplied)
A notary public's commission is the grant of authority in
his favor to perform notarial acts.[13] It is issued "within
and for" a particular territorial jurisdiction and the notary
public's authority is co-extensive with it. In other words,
a notary public is authorized to perform notarial acts,
including the taking of acknowledgments, within that
territorial jurisdiction only. Outside the place of his
commission, he is bereft of power to perform any notarial
act; he is not a notary public. Any notarial act outside the
limits of his jurisdiction has no force and effect. As this
Court categorically pronounced in Tecson v. Tecson:[14]
LAQUINDANUM VS QUINTANA
FACTS: 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 letter 2 to
Atty. Quintana directing him to stop notarizing
documents within the territorial jurisdiction of the RTC 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, 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 Affidavit7executed by Kristine C. Guro and
Elenita D. Ballentes
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 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.
Before the Office of the Bar Confidant (OBC), 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.
Atty. Quintana also denied that 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.
He 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,24which
is a requirement before a notarial commission may be
granted.
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.
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.
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.
ISSUE: W/N Atty Quintana violated the 2004 Rules on
Notarial Practice (and Code of Professional
Responsibility)
RULING: Yes 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.30Notarizing documents with an expired
commission is a violation of the lawyer’s oath to obey the
laws, more specifically, the 2004 Rules on Notarial
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.
RE: VIOLATION OF RULES ON NOTARIAL
PRACTICE
A.M. No. 09-6-1-SC, January 21, 2015; MENDOZA, J.
FACTS:
This case stemmed from three (3) letter-complaints for
Violation of Rules on Notarial Practice endorsed to the
Office of the Bar Confidant (OBC) for appropriate action.
The first letter-complaint, was filed by the commissioned
notaries public within and for the jurisdiction of
Lingayen, Pangasinan, namely, Atty. Butch Cardinal
Torio, Atty. Nepthalie Pasiliao, Atty. Dominique
Evangelista, and Atty. Elizabeth C. Tugade
(complainants) before the Executive Judge of the
Regional Trial Court, Lingayen, Pangasinan (RTC-
Lingayen) against Atty. Juan C. Siapno, Jr. (Atty. Siapno)
for notarizing documents without a commission.
In their letter, complainants alleged that Atty. Siapno was
maintaining a notarial office along Alvear Street East,
Lingayen, Pangasinan, and was performing notarial acts
and practices in Lingayen, Natividad and Dagupan City
without the requisite notarial commission.
They asserted that Atty. Siapno was never commissioned
as Notary Public for and within the jurisdiction of
Lingayen, Natividad and Dagupan City. Instead, he
applied and was commissioned to perform notarial
functions by Executive Judge Anthony Sison of the RTC,
San Carlos City, Pangasinan from March 22, 2007 to
December 31, 2008.
His notarial commission, however, was never renewed
upon expiration. Complainants presented evidence
supporting their allegations such as the pictures of Atty.
Siapno’s law office in Lingayen, Pangasinan; and
documents to prove that Atty. Siapno performed acts of
notarization in Lingayen, Natividad and Dagupan City, to
wit: (1) Addendum to Loan and Mortgage Agreement
showing that the Promissory Note was notarized before
Atty. Siapno in Lingayen, Pangasinan in 2007; (2) Deed
of Absolute Sale, dated January 24, 2008, notarized in
Natividad, Pangasinan; (3) Joint Affidavit of Two
Disinterested Persons Re: Given Name and Date of
Birth, dated January 6, 2009, notarized in Dagupan City;
and (4) Acknowledgement of Debt,dated January 24,
2008, notarized in Dagupan City.
Complainants also averred that Atty. Siapno had
delegated his notarial authority to his secretaries, Mina
Bautista (Bautista) and Mary Ann Arenas (Arenas), who
wrote legal instruments and signed the documents on his
behalf.
RTC-Lingayen forwarded the said letter-complaint to the
Office of the Court Administrator (OCA) which, in turn,
indorsed the same to the OBC.
The second letter-complaint was filed by Audy B.
Espelita (Espelita) against Atty. Pedro L. Santos (Atty.
Santos). It alleged that Espelita lost his driver’s license
and he executed an affidavit of loss which was notarized
by Atty. Santos. The said affidavit, however, was denied
for authentication when presented before the Notarial
Section in Manila because Atty. Santos was not
commissioned to perform notarial commission within the
City of Manila.
The third letter-complaint came from a concerned citizen
reporting that a certain Atty. Evelyn who was holding
office at Dasmariñas Street, Sta. Cruz, Manila, had been
notarizing and signing documents for and on behalf of
several lawyers.
In its Resolution, the Court directed the Executive Judge
of the RTC-Lingayen to conduct a formal investigation on
the complaint against Atty. Siapno and Executive Judge
Reynaldo G. Ros (Judge Ros) of the RTC-Manila to
conduct a formal investigation on the alleged violation of
the Notarial Law by Atty. Santos, and the illegal activities
of a certain Atty. Evelyn, and thereafter, to submit a report
and recommendation thereon.
ISSUE:
RULING:
Re: Complaint against Atty. Siapno
For his part, Atty. Siapno denied the accusations and
averred that the law office in Lingayen, Pangasinan, was
not his and that Bautista and Arenas were not his
secretaries.
In her Report and Recommendation, the Executive Judge
found that Atty. Siapno was issued a notarial commission
within the jurisdiction of Lingayen, Pangasinan, from
January 20, 2003 to December 31, 2004 and February 8,
2005 to December 3, 2006. His commission, however,
was cancelled on June 8, 2006 and he was not issued
another commission thereafter. The Executive Judge
found Atty. Siapno to have violated the 2004 Rules on
Notarial Commission when he performed notarial
functions without commission and recommended that he
be fined in the amount of Fifty Thousand Pesos
(P50,000.00).
The Court agrees with the findings of the Executive Judge
but not to the recommended penalty.
A review of the records and evidence presented by
complainants shows that Atty. Siapno indeed maintained
a law office in Lingayen, Pangasinan, just beside the law
office of one of the complainants, Atty. Elizabeth Tugade.
It was also proven that Atty. Siapno notarized several
instruments with an expired notarial commission outside
the territorial jurisdiction of the commissioning court.
Section 11, Rule III of the 2004 Rules on Notarial Practice
provides that:
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 is
made, unless earlier revoked or the notary public has
resigned under these Rules and the Rules of Court.
Under the rule, only persons who are commissioned as
notary public may perform notarial acts within the
territorial jurisdiction of the court which granted the
commission. Clearly, Atty. Siapno could not perform
notarial functions in Lingayen, Natividad and Dagupan
City of the Province of Pangasinan since he was not
commissioned in the said places to perform such act.
This Court has stressed that notarization is not an empty,
meaningless and routine act. It is invested with
substantive public interest that only those who are
qualified or authorized may act as notaries public.
It must be emphasized that the act of notarization by a
notary public converts a private document into a public
document making that document admissible in evidence
without further proof of authenticity.
A notarial document is by law entitled to full faith and
credit upon its face, and for this reason, notaries public
must observe with utmost care the basic requirements in
the performance of their duties.
By performing notarial acts without the necessary
commission from the court, Atty. Siapno violated not only
his oath to obey the laws particularly the Rules on
Notarial Practice but also Canons 1 and 7 of the Code of
Professional Responsibility which proscribes all lawyers
from engaging in unlawful, dishonest, immoral or
deceitful conduct and directs them to uphold the integrity
and dignity of the legal profession, at all times.13
In a plethora of cases, the Court has subjected lawyers to
disciplinary action for notarizing documents outside their
territorial jurisdiction or with an expired commission. In
the case of Nunga v. Viray, a lawyer was suspended by
the Court for three (3) years for notarizing an instrument
without a commission. In Zoreta v. Simpliciano, the
respondent was likewise suspended from the practice of
law for a period of two (2) years and was permanently
barred from being commissioned as a notary public for
notarizing several documents after the expiration of his
commission. In the more recent case of Laquindanum v.
Quintana, the Court suspended a lawyer for six (6)
months and was disqualified from being commissioned as
notary public for a period of two (2) years because he
notarized documents outside the area of his commission,
and with an expired commission.
Considering that Atty. Siapno has been proven to have
performed notarial work in Ligayen, Natividad and
Dagupan City in the province of Pangasinan without the
requisite commission, the Court finds the recommended
penalty insufficient. Instead, Atty. Siapno must be barred
from being commissioned as notary public permanently
and suspended from the practice of law for a period of two
(2) years.
Re: Complaints against Atty. Santos and Atty. Evelyn
In a letter,17 dated July 29, 2013, Judge Ros informed the
Court that he could not have complied with the June 9,
2009 and August 4, 2009 orders of the Court because he
was no longer the Executive Judge of the RTC-Manila at
that time. To date, no formal investigation has been
conducted on the alleged violation of Atty. Santos and the
reported illegal activities of a certain Atty. Evelyn.
With respect to the complaints against Atty. Santos and a
certain Atty. Evelyn, the Clerk of Court is ordered to RE-
DOCKET the same as separate administrative cases.
The incumbent Executive Judge of the RTC-Manila,
whether permanent or in acting capacity, is ordered to
conduct a formal investigation on the matter and to submit
his Report and Recommendation within sixty (60) days
from receipt of copy of this decision.
WHEREFORE, respondent Atty. Juan C. Siapno, Jr. is
hereby SUSPENDED from the practice of law for two
(2) years and BARRED PERMANENTLY from being
commissioned as Notary Public, effective upon his receipt
of a copy of this decision.