part 2 cases pale

8/17/2019 Part 2 Cases PALE

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Republic of the Philippines

SUPREME COURT

Manila

SECOND DIVISION

A.C. No. 5645 July 2, 2002

ROSALINDA BERNARDO VDA DE ROSALES,complainant,

vs.

ATTY. MARIO G. RAMOS,respondent.

BELLOSILLO,J.:

This complaint for disbarment was filed in behalf of complainant Rosalinda

Bernardo Vda. de Rosales by the National Bureau of Investigation (NBI)

against respondent Atty. Mario G. Ramos for violation of Act No. 2711 oftheRevised Administrative Code of 1917, Title IV, Ch. 11,otherwise know as

the Notarial Law, particularly Secs. 245 and 246 thereof.

In September 1990 Manuel A. Bernardo, brother of complainant Rosalinda

Bernardo Vda. de Rosales, borrowed from Rosalinda the Original Transfer

Certificate of Title No. 194464 covering Lot No. 1-B-4-H in her name. The lot

measures 112 square meters and is located at the back of Manuel's house on

Fabie Street, Paco, Metro Manila. On 25 November 1990 Rosalinda sold this

lot to one Alfredo P. Castro. When she asked her brother Manuel to return hertitle he refused.

On 22 October 1990 Rosalinda executed an Affidavit of Loss of her title and

presented the affidavit to the Register of Deeds of Manila.

On 3 September 1991 the Register of Deeds informed Rosalinda that her title

to the property was already transferred to Manuel by virtue of aDeed of

Absolute Sale she purportedly executed in favor of Manuel on 5 September

1990. The document was notarized by respondent Atty. Mario G. Ramos on 1

October 1990 and entered in his Notarial Register as Doc. No. 388, Page No.

718, Book No. 10, Series of 1990. Rosalinda however denied having signed any

deed of sale over her property in favor of Manuel.

On 3 September 1991 Rosalinda filed with the NBI a complaint for falsification

of public document against her brother Manuel. The NBI invited respondent

Atty. Ramos for questioning. The complaint alleged among others that on 12

September 1991 Atty. Mario G. Ramos executed an affidavit before the NBI


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admitting that when Manuel presented the purportedDeed of Absolute Sale to

him for notarization, he (Atty. Ramos) found some defects in the document

and that complainant Rosalinda was not around. The NBI Questioned

Documents Division also compared Rosalinda's signature appearing in

theDeed of Absolute Sale with samples of her genuine signature, and found

that the signature in the purportedDeed of Absolute Sale and her genuine

signatures were not written by one and the same person.

On 5 October 1992 the NBI transmitted its findings to the Office of the City

Prosecutor of Manila with the recommendation that Manuel and Atty. Ramos

be prosecuted for Falsification of Public Document under Art. 172 in relation

to Art. 171 ofThe Revised Penal Code, and that Atty. Ramos be additionally

charged with violation of the Notarial Law.

The NBI also transmitted to the Integrated Bar of the Philippines (IBP)

Commission on Bar Discipline (CBD) photocopies of the NBI investigationreport and its annexes, and a verified complaint1 for disbarment signed by

Rosalinda. The CBD received the records on 5 October 1992. On the same

date, the CBD through Commissioner Victor C. Fernandez directed respondent

to submit an answer to the complaint within fifteen (15) days from notice.

Respondent admitted in his Answer2 that he had affixed his signature on the

purported Deed of Absolute Sale but failed to enter the document in his

Notarial Registry Book. He also admitted executing before the NBI on 12

September 1991 an affidavit regarding the matter. Respondent prayed for thedismissal of the complaint since according to him he only inadvertently signed

the purportedDeed of Absolute Sale and/or that his signature was procured

through mistake, fraud, undue influence or excusable negligence, claiming

that he simply relied on the assurances of Manuel that the document would

not be used for purposes other than a loan between brother and sister, and

that he affixed his signature thereon with utmost good faith and without

intending to obtain personal gain or to cause damage or injury to another.

The CBD set the case for hearing on 3 March 2000, 28 April 2000, 16 June2000 and 5 October 2000. Complainant never appeared. The records show

that the notices sent to her address at 1497 Fabie Street, Paco, Manila, were

returned unclaimed.3

On 26 January 2002 the IBP Board of Governors approved the report and

recommendation of the CBD through Commissioner Fernandez that the case

against respondent be dismissed in view of complainant's failure to prosecute


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and for lack of evidence on record to substantiate the complaint.4 The

Investigating Commissioner found that the notices sent to complainant were

returned unclaimed with the annotation "moved out," and that she did not

leave any forwarding address, and neither did she come to the CBD to inquire

about the status of her case. From these actuations, he concluded that

complainant had lost interest in the further prosecution of this case,5 and so

recommended its dismissal.

We cannot wholly agree with the findings and recommendation of the

Investigating Commissioner. It is clear from the pleadings before us that

respondent violated the Notarial Law in failing to register in his notarial book

the deed of absolute sale he notarized, which fact respondent readily admitted.

The Notarial Law is explicit on the obligations and duties of a notary public. It

requires him to keep a notarial register where he shall record all his official

acts as notary,6

and specifies what information with regard to the notarizeddocument should be entered therein.7 Failure to perform this duty results in

the revocation of his commission as notary public.8

The importance attached to the act of notarization cannot be overemphasized.

Notarization is not an empty, meaningless, routinary act. It is invested with

substantive public interest, such that only those who are qualified or

authorized may act as notaries public.9 Notarization converts a private

document into a public document thus making that document admissible in

evidence without further proof of its authenticity.10

A notarial document is bylaw entitled to full faith and credit upon its face. Courts, administrative

agencies and the public at large must be able to rely upon the

acknowledgment executed by a notary public and appended to a private

instrument.11

For this reason notaries public must observe with utmost care the basic

requirements in the performance of their duties.12 Otherwise, the confidence

of the public in the integrity of this form of conveyance would be

undermined.13 Hence a notary public should not notarize a document unlessthe persons who signed the same are the very same persons who executed

and personally appeared before him to attest to the contents and truth of what

are stated therein.14 The purpose of this requirement is to enable the notary

public to verify the genuineness of the signature of the acknowledging party

and to ascertain that the document is the party's free act and deed.15


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The notary public is further enjoined to record in his notarial registry the

necessary information regarding the document or instrument notarized and

retain a copy of the document presented to him for acknowledgment and

certification especially when it is a contract.16 The notarial registry is a record

of the notary public's official acts. Acknowledged documents and instruments

recorded in it are considered public documents. If the document or

instrument does not appear in the notarial records and there is no copy of it

therein, doubt is engendered that the document or instrument was not really

notarized, so that it is not a public document and cannot bolster any claim

made based on this document. Considering the evidentiary value given to

notarized documents, the failure of the notary public to record the document

in his notarial registry is tantamount to falsely making it appear that the

document was notarized when in fact it was not.

We take note of respondent's admission in his Answer that he had affixed his

signature in the purportedDeed of Absolute Sale but he did not enter it in his

notarial registry. This is clearly in violation of the Notarial Law for which he

must be disciplined.

Respondent alleges that he merely signed theDeed of Absolute

Sale inadvertently and that his signature was procured through mistake,

fraud, undue influence or excusable negligence as he relied on the assurances

of Manuel A. Bernardo, akababayan from Pampanga, that the document

would not be used for any illegal purpose.We cannot honor, much less give credit to this allegation. That respondent

notarized the document out of sympathy for hiskababayan is not a legitimate

excuse. It is appalling that respondent did away with the basics of notarial

procedure in order to accommodate the alleged need of a friend and client. In

doing so, he displayed a decided lack of respect for the solemnity of an oath in

a notarial document. He also exhibited his clear ignorance of the importance

of the office of a notary public. Not only did he violate the Notarial Law, he

also did so without thinking of the possible damage that might result from itsnon-observance.

The principal function of a notary public is to authenticate documents. When

a notary public certifies to the due execution and delivery of the document

under his hand and seal he gives the document the force of evidence. Indeed,

one of the purposes of requiring documents to be acknowledged before a

notary public, in addition to the solemnity which should surround the

execution and delivery of documents, is to authorize such documents to be


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given without further proof of their execution and delivery.17 Where the notary

public is a lawyer, a graver responsibility is placed upon him by reason of his

solemn oath to obey the laws and to do no falsehood or consent to the doing of

any.18 Failing in this, he must accept the consequences of his unwarranted

actions.

From his admissions we find that Atty. Mario G. Ramos failed to exercise thedue diligence required of him in the performance of the duties of notary

public. We do not agree however that his negligence should merit disbarment,

which is the most severe form of disciplinary sanction. Disbarment should

never be imposed unless it is evidently clear that the lawyer, by his serious

misconduct, should no longer remain a member of the bar. Removal from the

bar should not really be decreed when any punishment less severe -

reprimand, temporary suspension or fine - would accomplish the end

desired.19 Under the circumstances, imposing sanctions decreed under the

Notarial Law and suspension from the practice of law would suffice.

WHEREFORE, for lack of diligence in the observance of the Notarial Law, the

commission of respondent Atty. Mario G. Ramos as Notary Public, if still

existing, isREVOKEDand thereafter Atty. Ramos should

beDISQUALIFIEDfrom reappointment to the office of Notary Public.

Respondent Atty. Mario G. Ramos is alsoSUSPENDEDfrom the practice of

law for a period of six (6) months effective immediately. He isDIRECTEDto

report to this Court his receipt of this Decision to enable it to determine when

his suspension shall have taken effect.

The Clerk of Court of this Court isDIRECTEDto immediately circularize this

Decision for the proper guidance of all concerned.

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

the Integrated Bar of the Philippines.

SO ORDERED.

Mendoza, and Corona, JJ.,concur.

Quisumbing, J., on official business.

Footnotes

1 Records, pp. 2-5.


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2 Id, pp. 37-45.

3 Id, pp. 48, 50, 53, and 58.

4 Id, p. 60.

5 Id, p. 62.

6

The Notarial Law, Sec. 245. Notarial Register. - Every notary public shallkeep a register to be known as the notarial register, wherein record shall be

made of all his official acts as notary x x x x"

7 Id; Sec. 246. Matters to be entered therein. - The notary public shall enter

in such register, in chronological order, the nature of each instrument

executed, sworn to, or acknowledged before him, the person executing,

swearing to, or acknowledging the instrument, the witnesses, if any, to the

signature, the date of execution, oath, or acknowledgment of the

instrument, the fees collected by him for his services as notary inconnection therewith, and when the instrument is a contract, he shall keep

a correct copy thereof as part of his records, and shall likewise enter in

said records a brief description of the substance thereof, and shall give to

each entry a consecutive number, beginning with number one in each

calendar year. The notary shall give to each instrument executed, sworn to,

or acknowledged before him a number corresponding to the one in his

register, and shall also state on the instrument the page or pages of his

register on which the same is recorded. No blank line shall be left betweenentries x x x x "

8 Id; 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 x x x x (b) The failure of the notary to make the proper

entry or entries in his notarial register touching his notarial acts in the

manner required by law x x x x "

9 Maligsa v. Atty. Cabanting, 338 Phil. 912 (1997).

10 Sec. 30, Rule 132, Rules of Court.

11 Joson v. Baltazar, Adm. Case No. 575, 14 February 1991, 194 SCRA

114, 119.

12 Nunga v, Viray, Adm. Case No. 4758, 30 April 1999, 306 SCRA 487,

491.


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13 Arrieta v. Llosa, Adm. Case No. 4369, 28 November 1997, 282 SCRA

248, citing Ramirez v. Ner, 21 SCRA 207 (1967).

14 Villarin v. Sabate Jr., Adm. Case No. 3324, 9 February 2000, 325 SCRA

123, 128.

15 Flores v. Chua, 306 Phil 465 (1999).

16 See Note 7.

17 Antillon v. Barcelon, 37 Phil. 148 (1917).

18 See Note 15.

19 In re Almacen, No. L-27654, 18 February 1970, 31 SCRA 562, 602.


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FIRST DIVISION

[A.C. No. 6294. November 17, 2004]

ATTY. MINIANO B. DELA CRUZ,complainant, vs. ATTY. ALEJANDRO P.

ZABALA,respondent.

R E S O L U T I O N

QUISUMBING,J.:

In hisLetter-Complaint for Disbarment filed before the Committee on Bar

Discipline of the Integrated Bar of the Philippines, complainant Atty. Miniano

B. Dela Cruz charged respondent, Atty. Alejandro P. Zabala, for violating his

oath as a notary public.

Complainant alleged that respondent notarized with unknown witnesses, a

fake deed of sale allegedly executed by two dead people, in gross violation of

his oath as a Commissioned Notary Public in Quezon City.[1]

Complainant averred that he was retained by a certain Demetrio C. Marero

last December 21, 1996, to finance and undertake the filing of a Petition for

the Issuance of a Second Duplicate Original of the Owners copy of Original

Certificate of Title (OCT) No. 4153, in the names of Sps. Pedro Sumulong and

Cirila Tapales before the Regional Trial Court of Antipolo City, Branch 72. The

court issued an Order approving the said petition on March 10, 1997.[2]

On May 20, 1997, complainant purchased the said property from Marero

and had the title transferred to him and his wife. OCT No. 4153 was then

cancelled and replaced by Transfer Certificate of Title (TCT) No. 330000.[3]

The next day, complainant requested a certain Mrs. Adoracion Losloso and

Mr. Nestor Aguirre to register the title in the formers name at the Assessors

Office of Antipolo City. However, they were unable to do so because the

property was already registered in the name of Antipolo Properties, Inc., under

TCT No. N-107359.[4]

On May 27, 1997, respondent notarized a Deed of Absolute Sale over the

land covered by OCT No. 4153, executed by Cirila Tapales and Pedro

Sumulong in favor of the complainant and his wife.[5]

On December 9, 1997, Mr. Marero filed a Complaint for Reconveyance of

Title of the land, subject of the Deed of Sale which was notarized by

respondent, with damages against the complainant and his wife. The Deed of

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Sale was the same document Marero used when he filed a complaint for Estafa

thru Falsification of Public Document docketed as I.S. No. 98-16357 before the

Quezon City Prosecutors Office and in a disbarment case docketed as Adm.

Case No. 4963 against complainant.[6]

Purportedly, to clear his name, complainant filed this complaint for

disbarment against respondent. According to complainant, respondentnotarized an irregular document where one of the parties to the transaction

was already dead, grossly violating his oath as a notary public.[7]

The IBP then required the respondent to file his answer to the said

allegations.

Respondent, in his Answer alleged that as a notary, he did not have to go

beyond the documents presented to him for notarization. In notarial law, he

explains, the minimum requirements to notarize a document are the presence

of the parties and their presentation of their community tax certificate. As

long as these requirements are met, the documents may be notarized.

Furthermore, he adds, when he notarized the Deed of Sale, he had no way of

knowing whether the persons who appeared before him were the real owners

of the land or were merely poseurs.[8]

Thereafter, the parties were ordered to appear before the IBP Commission

on Bar Discipline on July 31, 2001 and August 21, 2001, and required to

submit their position papers.

The IBP Commission on Bar Discipline, in itsReport dated September 29,

2003, recommended that respondent be reprimanded for violating Canon 5 of

the Code of Professional Responsibility.[9] The allegations with respect to the

prayer for disbarment were recommended for dismissal for insufficiency of

evidence. The Commissioner held that complainant failed to establish by

convincing proof that respondent had to be disbarred because of his notarial

negligence. The alleged failures of respondent did not indicate a clear intent to

engage in unlawful, dishonest, immoral or deceitful conduct, according to theCommissions Report.

Noteworthy, however, respondent did not deny that he notarized the cited

Deed of Sale under the circumstances alleged by complainant. It appears that

there was negligence on respondents part which, in our view, is quite serious.

Thus, we cannot conclude that he did not violate the Notarial Law,[10] and our

rules regarding Notarial Practice.[11] Nor could we agree that, as recommended

by the IBP, he should only be reprimanded. At least his commission as Notary

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Public should be revoked and for two years he should be disqualified from

being commissioned as such.

The IBP noted that on its face, the Deed of Sale was not executed by the

purported vendee and that only Pedro Sumulong appeared and executed the

deed even though the property was co-owned by Pedro Sumulong and Cirila

Tapales. In addition, a copy of the title was not attached to the said Deed ofSale when it was presented for notarization. The aforementioned

circumstances should have alerted respondent. Given the ease with which

community tax certificates are obtained these days, respondent should have

been more vigilant in ascertaining the identity of the persons who appeared

before him.

We have empathically stressed 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 aprivate 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.[12]

Section 1 of Public Act No. 2103 provides,

. . .

(a) The acknowledgment shall be made before a notary public or an officer

duly authorized by law of the country to take acknowledgments of instruments

or documents in the place where the act is done.The notary public or the

officer taking the acknowledgment shall certify that the person acknowledging

the instrument or document is known to him and that he is the same person

who executed it, and acknowledged that the same is his free act and deed. The

certificate shall be made under his official seal, if he is by law required to keep

a seal, and if not, his certificate shall so state. [Emphasis ours.]

A notary public should not notarize a document unless the persons who

signed the same are the very same persons who executed and personally

appeared before him to attest to the contents and the truth of what are stated

therein. These acts of the affiants cannot be delegated because what are

stated therein are facts they have personal knowledge of and are personally

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sworn to. Otherwise, their representatives names should appear in the said

documents as the ones who executed the same.[13]

The function of a notary public is, among others, to guard against any

illegal or immoral arrangements.[14] By affixing his notarial seal on the

instrument, he converted the Deed of Absolute Sale, from a private document

into a public document. In doing so, respondent, in effect, proclaimed to theworld that (1) all the parties therein personally appeared before him; (2) they

are all personally known to him; (3) they were the same persons who executed

the instruments; (4) he inquired into the voluntariness of execution of the

instrument; and (5) they acknowledged personally before him that they

voluntarily and freely executed the same.[15] As a lawyer commissioned to be a

notary public, respondent is mandated to discharge his sacred duties with

faithful observance and utmost respect for the legal solemnity of an oath in an

acknowledgment or jurat.[16] Simply put, such responsibility is incumbent

upon him, he must now accept the commensurate consequences of his

professional indiscretion. His act of certifying under oath an irregular Deed of

Absolute Sale without ascertaining the identities of the persons executing the

same constitutes gross negligence in the performance of duty as a notary

public.

WHEREFORE, this Court finds respondent Atty. Alejandro P. Zabala

GUILTY of gross negligence in his conduct as a notary public. His notarial

commission, if still existing, is hereby REVOKED and he is DISQUALIFIEDfrom being commissioned as a notary public for a period of two (2) years. He is

DIRECTED to report the date of his receipt of this Resolution to the Court

within five (5) days from such receipt. Further, he is ordered to SHOW CAUSE

why he should not be subject to disciplinary action as a member of the Bar.

Let copies of this Resolution be furnished to all the courts of the land as

well as the Integrated Bar of the Philippines, and the Office of the Bar

Confidant. Let this Resolution be also made of record in the personal files of

the respondent.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio,and Azcuna,

JJ.,concur.

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SUPREME COURT

Manila

FIRST DIVISION

A.C. No. 5281 February 12, 2008

MANUEL L. LEE,petitioner,

vs.

ATTY. REGINO B. TAMBAGO,respondent.

R E S O L U T I O N

CORONA,J.:

In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee charged

respondent Atty. Regino B. Tambago with violation of the Notarial Law and the

ethics of the legal profession for notarizing a spurious last will and testament.

In his complaint, complainant averred that his father, the decedent Vicente

Lee, Sr., never executed the contested will. Furthermore, the spurious will

contained the forged signatures of Cayetano Noynay and Loreto Grajo, the

purported witnesses to its execution.

In the said will, the decedent supposedly bequeathed his entire estate to his

wife Lim Hock Lee, save for a parcel of land which he devised to Vicente Lee,Jr. and Elena Lee, half-siblings of complainant.

The will was purportedly executed and acknowledged before respondent on

June 30, 1965.1 Complainant, however, pointed out that the residence

certificate2 of the testator noted in the acknowledgment of the will was dated

January 5, 1962.3 Furthermore, the signature of the testator was not the

same as his signature as donor in a deed of donation4 (containing his

purported genuine signature). Complainant averred that the signatures of his

deceased father in the will and in the deed of donation were "in any way (sic)entirely and diametrically opposed from (sic) one another in all angle[s]."5

Complainant also questioned the absence of notation of the residence

certificates of the purported witnesses Noynay and Grajo. He alleged that their

signatures had likewise been forged and merely copied from their respective

voters’ affidavits.

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Complainant further asserted that no copy of such purported will was on file

in the archives division of the Records Management and Archives Office of the

National Commission for Culture and the Arts (NCCA). In this connection, the

certification of the chief of the archives division dated September 19, 1999

stated:

Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an AFFIDAVITexecuted by BARTOLOME RAMIREZ on June 30, 1965 and is available in

this Office[’s] files.6

Respondent in his comment dated July 6, 2001 claimed that the complaint

against him contained false allegations: (1) that complainant was a son of the

decedent Vicente Lee, Sr. and (2) that the will in question was fake and

spurious. He alleged that complainant was "not a legitimate son of Vicente

Lee, Sr. and the last will and testament was validly executed and actually

notarized by respondent per affidavit7

of Gloria Nebato, common-law wife ofVicente Lee, Sr. and corroborated by the joint affidavit8 of the children of

Vicente Lee, Sr., namely Elena N. Lee and Vicente N. Lee, Jr. xxx."9

Respondent further stated that the complaint was filed simply to harass him

because the criminal case filed by complainant against him in the Office of the

Ombudsman "did not prosper."

Respondent did not dispute complainant’s contention that no copy of the will

was on file in the archives division of the NCCA. He claimed that no copy of

the contested will could be found there because none was filed.

Lastly, respondent pointed out that complainant had no valid cause of action

against him as he (complainant) did not first file an action for the declaration

of nullity of the will and demand his share in the inheritance.

In a resolution dated October 17, 2001, the Court referred the case to the

Integrated Bar of the Philippines (IBP) for investigation, report and

recommendation.10

In his report, the investigating commissioner found respondent guilty ofviolation of pertinent provisions of the old Notarial Law as found in the

Revised Administrative Code. The violation constituted an infringement of legal

ethics, particularly Canon 111 and Rule 1.0112 of the Code of Professional

Responsibility (CPR).13 Thus, the investigating commissioner of the IBP

Commission on Bar Discipline recommended the suspension of respondent for

a period of three months.

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The IBP Board of Governors, in its Resolution No. XVII-2006-285 dated May

26, 2006, resolved:

[T]o ADOPT and APPROVE, as it is hereby ADOPTED and

APPROVED, with modification,the Report and Recommendation of the

Investigating Commissioner of the above-entitled case, herein made part

of this Resolution as Annex "A"; and, finding the recommendation fullysupported by the evidence on record and the applicable laws and rules,

and considering Respondent’s failure to comply with the laws in the

discharge of his function as a notary public, Atty. Regino B. Tambago is

hereby suspended from the practice of law for one year and Respondent’s

notarial commission isRevoked and Disqualifiedfromreappointment as

Notary Public for two (2) years.14

We affirm with modification.

A will is an act whereby a person is permitted, with the formalities prescribed

by law, to control to a certain degree the disposition of his estate, to take effect

after his death.15 A will may either be notarial or holographic.

The law provides for certain formalities that must be followed in the execution

of wills. The object of solemnities surrounding the execution of wills is to close

the door on bad faith and fraud, to avoid substitution of wills and testaments

and to guarantee their truth and authenticity.16

A notarial will, as the contested will in this case, is required by law to besubscribed at the end thereof by the testator himself. In addition, it should be

attested and subscribed by three or more credible witnesses in the presence of

the testator and of one another.17

The will in question was attested by only two witnesses, Noynay and Grajo. On

this circumstance alone, the will must be considered void.18 This is in

consonance with the rule that acts executed against the provisions of

mandatory or prohibitory laws shall be void, except when the law itself

authorizes their validity.

The Civil Code likewise requires that a will must be acknowledged before a

notary public by the testator and the witnesses.19 The importance of this

requirement is highlighted by the fact that it was segregated from the other

requirements under Article 805 and embodied in a distinct and separate

provision.20

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An acknowledgment is the act of one who has executed a deed in going before

some competent officer or court and declaring it to be his act or deed. It

involves an extra step undertaken whereby the signatory actually declares to

the notary public that the same is his or her own free act and deed.21 The

acknowledgment in a notarial will has a two-fold purpose: (1) to safeguard the

testator’s wishes long after his demise and (2) to assure that his estate is

administered in the manner that he intends it to be done.

A cursory examination of the acknowledgment of the will in question shows

that this particular requirement was neither strictly nor substantially

complied with. For one, there was the conspicuous absence of a notation of

the residence certificates of the notarial witnesses Noynay and Grajo in the

acknowledgment. Similarly, the notation of the testator’s old residence

certificate in the same acknowledgment was a clear breach of the law. These

omissions by respondent invalidated the will.

As the acknowledging officer of the contested will, respondent was required to

faithfully observe the formalities of a will and those of notarization. As we held

inSantiago v. Rafanan:22

The Notarial Law is explicit on the obligations and duties of notaries

public. They are required to certify that the party to every document

acknowledged before him had presented the proper residence certificate

(or exemption from the residence tax); and to enter its number, place of

issue and date as part of such certification.

These formalities are mandatory and cannot be disregarded, considering the

degree of importance and evidentiary weight attached to notarized

documents.23 A notary public, especially a lawyer,24 is bound to strictly

observe these elementary requirements.

The Notarial Law then in force required the exhibition of the residence

certificate upon notarization of a document or instrument:

Section 251. Requirement as to notation of payment of [cedula] residencetax. – 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 certificate or are exempt from

the [cedula] residence tax, and there shall be entered by the notary

public as a part of such certificate the number, place of issue, and date

of each [cedula] residence certificate as aforesaid.25

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The importance of such act was further reiterated by Section 6 of the

Residence Tax Act26 which stated:

When a person liable to the taxes prescribed in this Act acknowledges

any document before a notary public xxx it shall be the duty of such

person xxx with whom such transaction is had or business done, to

require the exhibition of the residence certificate showing payment of theresidence taxes by such person xxx.

In the issuance of a residence certificate, the law seeks to establish the true

and correct identity of the person to whom it is issued, as well as the payment

of residence taxes for the current year. By having allowed decedent to exhibit

an expired residence certificate, respondent failed to comply with the

requirements of both the old Notarial Law and the Residence Tax Act. As much

could be said of his failure to demand the exhibition of the residence

certificates of Noynay and Grajo.On the issue of whether respondent was under the legal obligation to furnish a

copy of the notarized will to the archives division, Article 806 provides:

Art. 806. Every will must be acknowledged before a notary public by the

testator and the witness. 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. (emphasis supplied)

Respondent’s failure, inadvertent or not, to file in the archives division a copyof the notarized will was therefore not a cause for disciplinary action.

Nevertheless, respondent should be faulted for having failed to make the

necessary entries pertaining to the will in his notarial register. The old

Notarial Law required the entry of the following matters in the notarial

register, in chronological order:

1. nature of each instrument executed, sworn to, or acknowledged before

him;

2. person executing, swearing to, or acknowledging the instrument;

3. witnesses, if any, to the signature;

4. date of execution, oath, or acknowledgment of the instrument;

5. fees collected by him for his services as notary;

6. give each entry a consecutive number; and

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7. if the instrument is a contract, a brief description of the substance of

the instrument.27

In an effort to prove that he had complied with the abovementioned rule

respondent contended that he had crossed out a prior entry and entered

instead the will of the decedent. As proof, he presented a photocopy of his

notarial register. To reinforce his claim, he presented a photocopy of acertification28 stating that the archives division had no copy of the affidavit of

Bartolome Ramirez.

A photocopy is a mere secondary evidence. It is not admissible unless it is

shown that the original is unavailable. The proponent must first prove the

existence and cause of the unavailability of the original,29 otherwise, the

evidence presented will not be admitted. Thus, the photocopy of respondent’s

notarial register was not admissible as evidence of the entry of the execution

of the will because it failed to comply with the requirements for theadmissibility of secondary evidence.

In the same vein, respondent’s attempt to controvert the certification dated

September 21, 199930 must fail. Not only did he present a mere photocopy of

the certification dated March 15, 2000;31 its contents did not squarely prove

the fact of entry of the contested will in his notarial register.

Notaries public must observe with utmost care32 and utmost fidelity the basic

requirements in the performance of their duties, otherwise, the confidence of

the public in the integrity of notarized deeds will be undermined.33

Defects in the observance of the solemnities prescribed by law render the

entire will invalid. This carelessness cannot be taken lightly in view of the

importance and delicate nature of a will, considering that the testator and the

witnesses, as in this case, are no longer alive to identify the instrument and to

confirm its contents.34 Accordingly, respondent must be held accountable for

his acts. The validity of the will was seriously compromised as a consequence

of his breach of duty.35

In this connection, Section 249 of the old Notarial Law provided:

Grounds for revocation of commission. — The following derelictions of

duty on the part of a notary public shall, in the discretion of the proper

judge of first instance, be sufficient ground for the revocation of his

commission:

xxx xxx xxx

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(b) The failure of the notary to make the proper entry or entries in his

notarial register touching his notarial acts in the manner required by law.

xxx xxx xxx

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

certificates.36

These gross violations of the law also made respondent liable for violation of

his oath as a lawyer and constituted transgressions of Section 20 (a), Rule 138

of the Rules of Court37 and Canon 138 and Rule 1.0139 of the CPR.

The first and foremost duty of a lawyer is to maintain allegiance to the

Republic of the Philippines, uphold the Constitution and obey the laws of the

land.40 For a lawyer is the servant of the law and belongs to a profession to

which society has entrusted the administration of law and the dispensation of

justice.41

While the duty to uphold the Constitution and obey the law is an obligation

imposed on every citizen, a lawyer assumes responsibilities well beyond the

basic requirements of good citizenship. As a servant of the law, a lawyer

should moreover make himself an example for others to emulate.42 Being a

lawyer, he is supposed to be a model in the community in so far as respect for

the law is concerned.43

The practice of law is a privilege burdened with conditions.44 A breach of these

conditions justifies disciplinary action against the erring lawyer. A disciplinarysanction is imposed on a lawyer upon a finding or acknowledgment that he

has engaged in professional misconduct.45 These sanctions meted out to errant

lawyers include disbarment, suspension and reprimand.

Disbarment is the most severe form of disciplinary sanction.46 We have held in

a number of cases that the power to disbar must be exercised with great

caution47 and should not be decreed if any punishment less severe – such as

reprimand, suspension, or fine – will accomplish the end desired.48 The rule

then is that disbarment is meted out only in clear cases of misconduct thatseriously affect the standing and character of the lawyer as an officer of the

court.49

Respondent, as notary public, evidently failed in the performance of the

elementary duties of his office. Contrary to his claims that he "exercised his

duties as Notary Public with due care and with due regard to the provision of

existing law and had complied with the elementary formalities in the

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performance of his duties xxx," we find that he acted very irresponsibly in

notarizing the will in question. Such recklessness warrants the less severe

punishment of suspension from the practice of law. It is, as well, a sufficient

basis for the revocation of his commission50 and his perpetual disqualification

to be commissioned as a notary public.51

WHEREFORE, respondent Atty. Regino B. Tambago is hereby found guilty ofprofessional misconduct. He violated (1) the Lawyer’s Oath; (2) Rule 138 of the

Rules of Court; (3) Canon 1 and Rule 1.01 of the Code of Professional

Responsibility; (4) Art. 806 of the Civil Code and (5) the provisions of the old

Notarial Law.

Atty. Regino B. Tambago is herebySUSPENDED from the practice of law for

one year and his notarial commissionREVOKED. Because he has not lived up

to the trustworthiness expected of him as a notary public and as an officer of

the court, he isPERPETUALLY DISQUALIFIED from reappointment as anotary public.

Let copies of this Resolution be furnished to all the courts of the land, the

Integrated Bar of the Philippines and the Office of the Bar Confidant, as well

as made part of the personal records of respondent.

SO ORDERED.

RENATO C. CORONA

Associate Justice

WE CONCUR:

REYNATO S. PUNO

Chief Justice

Chairperson

ANGELINA SANDOVAL-

GUTIERREZ

Associate Justice

ADOLFO S. AZCUNA

Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

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Footnotes

1 Rollo, p. 3.

2 Now known as Community Tax Certificate.

3

Page two, Last Will and Testament of Vicente Lee, Sr.,rollo, p. 3.4 Id., p. 10.

5 Id., p. 1.

6 Rollo, p. 9.

7 Dated July 11, 2001. Id., p. 94.

8 Dated July 11, 2001. Id., p. 95.

9 Id., p. 90.

10 Rollo, p. 107.

11 CANON 1 – A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY

THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND FOR

LEGAL PROCESSES.

12 Rule 1.01 – A lawyer shall not engage in unlawful, dishonest, immoral

or deceitful conduct.

13

Annex "A," Report and Recommendation by Commissioner Elpidio G.Soriano III, dated February 27 2006.Rollo, p. 13.

14 Notice of Resolution, IBP Board of Governors. (Emphasis in the

original)

15 Civil Code, Art. 783.

16 Jurado, Desiderio P., Comments And Jurisprudence On Succession,

8th ed. (1991), Rex Bookstore, Inc., p. 52.In re: Will of Tan Diuco, 45 Phil.

807 (1924);Unson v. Abella, 43 Phil. 494 (1922); Aldaba v. Roque, 43

Phil. 379 (1922); Avera v. Garcia, 42 Phil. 145 (1921); Abangan v.

Abangan, 40 Phil. 476 (1919).




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20 Azuela v. Court of Appeals, G.R. No. 122880, 12 April 2006, 487 SCRA

142.

21 Id.

22 A.C. No. 6252, 5 October 2004, 440 SCRA 98.

23 Santiago v. Rafanan, id., at 99.

24 Under the old Notarial Law, non-lawyers may be commissioned as

notaries public subject to certain conditions. Under the 2004 Rules on

Notarial Practice (A.M. No. 02-8-13-SC, effective August 1, 2004),

however, only lawyers may be granted a notarial commission.

25 Revised Administrative Code, Book I, Title IV, Chapter 11, Sec. 251.

26 Commonwealth Act No. 465.

27 Revised Administrative Code, Book I, Title IV, Chapter 11, Sec. 246.

28 Dated March 15, 2000.Rollo, p. 105.

29 "When the original document is unavailable. – When the original

document has been lost or destroyed, or cannot be produced in court,

the offeror, upon proof of its execution or existence and the cause of its

unavailability without bad faith on his part, may prove its contents by a

copy, or by a recital of its contents in some authentic document, or by

the testimony of witnesses in the order stated." RULES OF COURT, Rule

130, Sec. 5.30 Supra note 6.

31 Rollo, p. 105.

32 Bon v. Ziga, A.C. No. 5436, 27 May 2004, 429 SCRA 185.

33 Zaballero v. Montalvan, A.C. No. 4370, 25 May 2004, 429 SCRA 78.

34 Annex "A," Report and Recommendation by Commissioner Elpidio G.

Soriano III, dated February 27, 2006, rollo, p. 12

35 Id., p. 13.

36 Revised Administrative Code, Book 1, Title IV, Chapter 11.

37 "Duties of attorneys. – It is the duty of an attorney:

(a) To maintain allegiance to the Republic of the Philippines and to

support the Constitution and obey the laws of the Philippines;

(b) Xxx," RULES OF COURT, Rule 138, Sec. 20, par. (a).

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38 CANON 1,supra note 11.

39 Rule 1.01,supra note 12.

40 Montecillo v. Gica, 158 Phil. 443 (1974). Zaldivar v. Gonzales, G.R. No.

L-79690-707, 7 October 1988, 166 SCRA 316.

41 Agpalo, Ruben E.,Legal And Judicial Ethics, 7th Edition (2002), Rex

Bookstore, Inc., p. 69. Comments of IBP Committee that drafted the

Code of Professional Responsibility, pp. 1-2 (1980).

42 Id.

43 Id.

44 Agpalo, Ruben E.,Legal And Judicial Ethics, 7th Edition (2002), Rex

Bookstore, Inc., p. 465.

45 Guidelines for Imposing Lawyer Sanctions, Integrated Bar of the

Philippines Commission on Bar Discipline.

46 San Jose Homeowners Association, Inc. v. Romanillos, A.C. No. 5580,

15 June 2005, 460 SCRA 105.

47 Santiago v Rafanan,supra note 22 at 101. Alitagtag v. Garcia, A.C. No.

4738, 10 June 2003, 403 SCRA 335.

48 Suzuki v. Tiamson, A.C. No. 6542, 30 September 2005, 471 SCRA

140; Amaya v. Tecson, A.C. No. 5996, 7 February 2005, 450 SCRA 510,

516.

49 Bantolo v. Castillon, Jr., A.C. No. 6589, 19 December 2005, 478 SCRA

449.

50 Cabanilla v. Cristal-Tenorio, A.C. No. 6139, 11 November 2003, 415

SCRA 361.Guerrero v. Hernando, 160-A Phil. 725 (1975).

51 Tan Tiong Bio v. Gonzales, A.C. No. 6634, 23 August 2007.

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SUPREME COURT

Manila

SECOND DIVISION

A.C. No. 7781 September 12, 2008

DOLORES L. DELA CRUZ, MILAGROS L. PRINCIPE, NARCISA L.

FAUSTINO, JORGE V. LEGASPI, and JUANITO V. LEGASPI,complainants,

vs.

ATTY. JOSE R. DIMAANO, JR., respondent.

D E C I S I O N

VELASCO, JR.,J.:

In their complaint for disbarment against respondent Atty. Jose R. Dimaano,

Jr., Dolores L. Dela Cruz, Milagros L. Principe, Narcisa L. Faustino, Jorge V.

Legaspi, and Juanito V. Legaspi alleged that on July 16, 2004, respondent

notarized a document denominated asExtrajudicial Settlement of the Estate

with Waiver of Rights purportedly executed by them and their sister, Zenaida

V.L. Navarro. Complainants further alleged that: (1) their signatures in this

document were forged; (2) they did not appear and acknowledge the document

on July 16, 2004 before respondent, as notarizing officer; and (3) their

purported community tax certificates indicated in the document were not

theirs.

According to complainants, respondent had made untruthful statements in

the acknowledgment portion of the notarized document when he made it

appear, among other things, that complainants "personally came and

appeared before him" and that they affixed their signatures on the document

in his presence. In the process, complainants added, respondent effectively

enabled their sister, Navarro, to assume full ownership of their deceased

parents’ property in Tibagan, San Miguel, Bulacan, covered by Transfer

Certificate of Title No. T-303936 and sell the same to the Department of Public

Works and Highways.

In his answer, respondent admitted having a hand in the preparation of the

document in question, but admitted having indeed notarized it. He explained

that "he notarized [the] document in good faith relying on the representation

and assurance of Zenaida Navarro that the signatures and the community tax


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certificates appearing in the document were true and correct." Navarro would

not, according to respondent, lie to him having known, and being neighbors of,

each other for 30 years. Finally, respondent disclaimed liability for any damage

or injury considering that the falsified document had been revoked and

canceled.

In his Report and Recommendation, the Investigating Commissioner of theOffice of the Commission on Bar Discipline, Integrated Bar of the Philippines

(IBP), found the following as established: (1) the questioned document bore the

signatures and community tax certificates of, and purports to have been

executed by, complainants and Navarro; (2) respondent indeed notarized the

questioned document on July 16, 2004; (3) complainants did not appear and

acknowledge the document before respondent on July 16, 2004; (4)

respondent notarized the questioned document only on Navarro’s

representation that the signatures appearing and community tax certificates

were true and correct; and (5) respondent did not ascertain if the purported

signatures of each of the complainants appearing in the document belonged to

them.

The Commission concluded that with respondent’s admission of having

notarized the document in question against the factual backdrop as thus

established, a clear case of falsification and violation of the Notarial Law had

been committed when he stated in the Acknowledgment that:

Before me, on this 16th day of July 16, 2004 at Manila, personally cameand appeared the above-named persons with their respective Community

Tax Certificates as follows:

x x x x

who are known to me to be the same persons who executed the foregoing

instrument and they acknowledge to me that the same is their own free

act and deed. x x x

For the stated infraction, the Commission recommended, conformably withthe Court’s ruling inGonzales v. Ramos,1 that respondent be suspended from

the practice of law for one (1) year; that his notarial commission, if still

existing, be revoked; and that he be disqualified for reappointment as notary

public for two (2) years. On September 28, 2007, the IBP Board of Governors

passed Resolution No. XVIII-2007-147, adopting and approving the report and

recommendation of the Commission.

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We agree with the recommendation of the Commission and the premises

holding it together. It bears reiterating that notaries public should refrain from

affixing their signature and notarial seal on a document unless the persons

who signed it are the same individuals who executed and personally appeared

before the notaries public to attest to the truth of what are stated therein, for

under Section 1 of Public Act No. 2103 or the Notarial Law, an instrument or

document shall be considered authentic if the acknowledgment is made in

accordance with the following requirements:

(a) The acknowledgment shall be made before a notary public or an

officer duly authorized by law of the country to take acknowledgments of

instruments or documents in the place where the act is done. The notary

public or the officer taking the acknowledgment shall certify that the

person acknowledging the instrument or document is known to him and

that he is the same person who executed it, and acknowledged that the

same is his free act and deed. The certificate shall be made under his

official seal, if he is by law required to keep a seal, and if not, his

certificate shall so state.2

Without the appearance of the person who actually executed the document in

question, notaries public would be unable to verify the genuineness of the

signature of the acknowledging party and to ascertain that the document is

the party’s free act or deed.3 Furthermore, notaries public are required by the

Notarial Law to certify that the party to the instrument has acknowledged andpresented before the notaries public the proper residence certificate (or

exemption from the residence certificate) and to enter its number, place, and

date of issue as part of certification.4 Rule II, Sec. 12 of the2004 Rules on

Notarial Practice5 now requires a party to the instrument to present competent

evidence of identity. Sec. 12 provides:

Sec. 12. Competent Evidence of Identity.-The phrase "competent evidence

of identity" refers to the identification of an individual based on:

(a) at least one current identification document issued by an officialagency bearing the photograph and signature of the individual, such as

but not limited to, passport, driver’s license, Professional Regulations

Commission ID, National Bureau of Investigation clearance, police

clearance, postal ID, voter’s ID, Barangay certification, Government

Service Insurance System (GSIS) e-card, Social Security System (SSS)

card, Philhealth card, senior citizen card, Overseas Workers Welfare

Administration (OWWA) ID, OFW ID, seaman’s book, alien certificate of

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registration/immigrant certificate of registration, government office ID,

certificate from the National Council for the Welfare of Disabled Persons

(NCWDP), Department of Social Welfare and Development certification [as

amended by A.M. No. 02-8-13-SC dated February 19, 2008]; or

(b) the oath or affirmation of one credible witness not privy to the

instrument, document or transaction who is personally known to thenotary public and who personally knows the individual, or of two credible

witnesses neither of whom is privy to the instrument, document or

transaction who each personally knows the individual and shows to the

notary public documentary identification.

One last note. Lawyers commissioned as notaries public are mandated to

discharge with fidelity the duties of their offices, such duties being dictated by

public policy and impressed with public interest. It must be remembered that

notarization is not a routinary, meaningless act, for notarization converts aprivate document to a public instrument, making it admissible in evidence

without the necessity of preliminary proof of its authenticity and due

execution.6 A notarized document is by law entitled to full credit upon its face

and it is for this reason that notaries public must observe the basic

requirements in notarizing documents. Otherwise, the confidence of the public

on notorized documents will be eroded.

WHEREFORE, for breach of the Notarial Law, the notarial commission of

respondent Atty. Jose R. Dimaano, Jr., if still existing, isREVOKED. HeisDISQUALIFIED from being commissioned as notary public for a period of

two (2) years andSUSPENDED from the practice of law for a period of one (1)

year, effective upon receipt of a copy of this Decision, with WARNING that a

repetition of the same negligent act shall be dealt with more severely.

Let all the courts, through the Office of the Court Administrator, as well as the

IBP and the Office of the Bar Confidant, be notified of this Decision and be it

entered into respondent’s personal record.SO ORDERED.

Quisumbing,Chairperson Carpio-Morales, Tinga, Brion, JJ., concur.

Footnotes

1 A.C. No. 6649, June 21, 2005, 460 SCRA 352.

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2 Cited in 2 L.M. Tañada & F.A. Rodrigo, Modern Philippine Legal Forms

763 (6th ed., 1997).

3 Domingo v. Reed, G.R. No. 157701, December 9, 2005, 477 SCRA 227,

238; Lopena v. Cabatos, A.C. No. 3441, August 11, 2005, 466 SCRA 419,

426.

4

Soriano v. Basco, A.C. No. 6648, September 21, 2005, 470 SCRA 423,429.

5 Took effect on August 1, 2004.

6 Domingo, supra note 3.
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