A.M. No. 02-8-13-SC 2004 Rules on Notarial Practice         RESOLUTION

Acting on the compliance dated 05 July 2004 and on the proposed Rules on Notarial Practice of 2004 submitted by the Sub-Committee for the Study, Drafting and Formulation of the Rules Governing the Appointment of Notaries Public and the Performance and Exercise of Their Official Functions, of the Committees on Revision of the Rules of Court and on Legal Education and Bar Matters, the Court Resolved to APPROVE the proposed Rules on Notarial Practice of 2004, with modifications, thus:

2004 RULES ON NOTARIAL PRACTICE

RULE I IMPLEMENTATION

SECTION 1. Title. - These Rules shall be known as the 2004 Rules on Notarial Practice.

SEC. 2. Purposes. - These Rules shall be applied and construed to advance the following purposes:

(a) to promote, serve, and protect public interest; (b) to simplify, clarify, and modernize the rules governing notaries public; (c) to foster ethical conduct among notaries public.

SEC. 3. Interpretation. - Unless the context of these Rules otherwise indicates, words in the singular include the plural, and words in the plural include the singular.

RULE II DEFINITIONS

SECTION 1. Acknowledgment. - “Acknowledgment” refers to an act in which an individual on a single occasion:

(a)  appears in person before the notary public and presents an integrally complete instrument or document; (b)  is attested to be personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; and - (c)  represents to the notary public that the signature on the instrument or document was voluntarily affixed by him for the purposes stated in the instrument or document, declares that he has executed the instrument or document as his free and voluntary act and deed, and, if he acts in a particular representative capacity, that he has the authority to sign in that capacity.

SEC. 2. Affirmation or Oath. - The term “Affirmation” or “Oath” refers to an act in which an individual on a single occasion:

(a)  appears in person before the notary public; (b)  is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; (c)  avows under penalty of law to the whole truth of the contents of the instrument or document.SEC. 3. Commission. - “Commission” refers to the grant of authority to perform notarial acts and to the written evidence of the authority.

SEC. 4. Copy Certification. - “Copy Certification” refers to a notarial act in which a notary public:

(a)  is presented with an instrument or document that is neither a vital record, a public record, nor publicly recordable; (b)  copies or supervises the copying of the instrument or document; (c)  compares the instrument or document with the copy; and (d)  determines that the copy is accurate and complete.

SEC. 5. Notarial Register. - “Notarial Register” refers to a permanently bound book with numbered pages containing a chronological record of notarial acts performed by a notary public.

SEC. 6. Jurat. -  “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 as defined by these Rules; (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.

SEC. 7. Notarial Act and Notarization. -  “Notarial Act” and “Notarization” refer to any act that a notary public is empowered to perform under these Rules.

SEC. 8. Notarial Certificate. - “Notarial Certificate” refers to the part of, or attachment to, a notarized instrument or document that is completed by the notary public, bears the notary's signature and seal, and states the facts attested to by the notary public in a particular notarization as provided for by these Rules.

SEC. 9. Notary Public and Notary. -  “Notary Public” and “Notary” refer to any person commissioned to perform official acts under these Rules.

SEC. 10. Principal. -  “Principal” refers to a person appearing before the notary public whose act is the subject of notarization.

1

SEC. 11. Regular Place of Work or Business. - The term “regular place of work or business” refers to a stationary office in the city or province wherein the notary public renders legal and notarial services.

SEC. 12. Competent Evidence of Identity. - The phrase “competent evidence of identity” refers to the identification of an individual based on:

(a)  at least one current identification document issued by an official agency bearing the photograph and signature of the individual; (b)  the oath or affirmation of one credible witness not privy to the instrument, document or transaction who is personally known to the notary public and who personally knows the individual, or of two credible witnesses neither of whom is privy to the instrument, document or transaction who each personally knows the individual and shows to the notary public documentary identification.

SEC. 13. Official Seal or Seal. - “Official seal” or “Seal” refers to a device for affixing a mark, image or impression on all papers officially signed by the notary public conforming the requisites prescribed by these Rules.

SEC. 14. Signature Witnessing. - The term “signature witnessing” refers to a notarial act in which an individual on a single occasion:chan robles virtual law library

(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 as defined by these Rules; (c) signs the instrument or document in the presence of the notary public.

SEC. 15. Court. - “Court” refers to the Supreme Court of the Philippines.

SEC. 16. Petitioner. - “Petitioner” refers to a person who applies for a notarial commission.

SEC. 17. Office of the Court Administrator. - “Office of the Court Administrator” refers to the Office of the Court Administrator of the Supreme Court.

SEC. 18. Executive Judge. - “Executive Judge” refers to the Executive Judge of the Regional Trial Court of a city or province who issues a notarial commission.

SEC. 19. Vendor. -  “Vendor” under these Rules refers to a seller of a notarial seal and shall include a wholesaler or retailer.

SEC. 20.  Manufacturer. - “Manufacturer” under these Rules refers to one who produces a notarial seal and shall include an engraver and seal maker.

RULE III COMMISSIONING OF NOTARY PUBLIC

SECTION 1. Qualifications. - A notarial commission may be issued by an Executive Judge to any qualified person who submits a petition in accordance with these Rules.chan robles virtual law library

To be eligible for commissioning as notary public, the petitioner:

(1)  must be a citizen of the Philippines;(2)  must be over twenty-one (21) years of age; (3)  must be a resident in the Philippines for at least one (1) year and maintains a regular place of work or business in the city or province where the commission is to be issued; (4) must be a member of the Philippine Bar in good standing with clearances from the Office of the Bar Confidant of the Supreme Court and the Integrated Bar of the Philippines; and (5)  must not have been convicted in the first instance of any crime involving moral turpitude.

SEC. 2. Form of the Petition and Supporting Documents. - Every petition for a notarial commission shall be in writing, verified, and shall include the following:(a)  a statement containing the petitioner's personal qualifications, including the petitioner's date of birth, residence, telephone number, professional tax receipt, roll of attorney's number and IBP membership number;       (b)  certification of good moral character of the petitioner by at least two (2) executive officers of the local chapter of the Integrated Bar of the Philippines where he is applying for commission;       (c)  proof of payment for the filing of the petition as required by these Rules; and      (d)  three (3) passport-size color photographs with light background taken within thirty (30) days of the application. The photograph should not be retouched. The petitioner shall sign his name at the bottom part of the photographs.SEC. 3. Application Fee. - Every petitioner for a notarial commission shall pay the application fee as prescribed in the Rules of Court

SEC. 4. Summary Hearing on the Petition. - The Executive Judge shall conduct a summary hearing on the petition and shall grant the same if:

(a)  the petition is sufficient in form and substance; (b)  the petitioner proves the allegations contained in the petition; and (c)  the petitioner establishes to the satisfaction of the Executive Judge that he has read and fully understood these Rules.

2

The Executive Judge shall forthwith issue a commission and a Certificate of Authorization to Purchase a Notarial Seal in favor of the petitioner.

SEC. 5. Notice of Summary Hearing. - 

(a)  The notice of summary hearing shall be published in a newspaper of general circulation in the city or province where the hearing shall be conducted and posted in a conspicuous place in the offices of the Executive Judge and of the Clerk of Court. The cost of the publication shall be borne by the petitioner. The notice may include more than one petitioner.        (b)  The notice shall be substantially in the following form:NOTICE OF HEARING

Notice is hereby given that a summary hearing on the petition for notarial commission of (name of petitioner) shall be held on (date) at (place) at (time). Any person who has any cause or reason to object to the grant of the petition may file a verified written opposition thereto, received by the undersigned before the date of the summary hearing.

Executive Judge

SEC. 6. Opposition to Petition. - Any person who has any cause or reason to object to the grant of the petition may file a verified written opposition thereto. The opposition must be received by the Executive Judge before the date of the summary hearing.

SEC. 7. Form of Notarial Commission. - The commissioning of a notary public shall be in a formal order signed by the Executive Judge substantially in the following form:

REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT OF

This is to certify that (name of notary public) of (regular place of work or business) in (city or province) was on this (date) day of (month) two thousand and (year) commissioned by the undersigned as a notary public, within and for the said jurisdiction, for a term ending the thirty-first day of December (year)chan robles virtual law library

________________________ Executive Judge

SEC. 8. Period Of Validity of Certificate of Authorization to Purchase a Notarial Seal. - The  Certificate of Authorization to Purchase a Notarial Seal shall be valid for a period of three (3) months from date of issue, unless extended by the Executive Judge.

A mark, image or impression of the seal that may be purchased by the notary public pursuant to the Certificate shall be presented to the Executive Judge for approval prior to use.

SEC. 9.  Form of Certificate of Authorization to Purchase a Notarial Seal. - The Certificate of Authorization to Purchase a Notarial Seal shall substantially be in the following form:  

REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT OF_____________

CERTIFICATE OF AUTHORIZATION TO PURCHASE A NOTARIAL SEAL

This is to authorize (name of notary public) of (city or province) who was commissioned by the undersigned as a notary public, within and for the said jurisdiction, for a term ending, the thirty-first of December (year) to purchase a notarial seal.chan robles virtual law library

Issued this (day) of (month) (year).

________________________ Executive Judge  

SEC. 10. Official Seal of Notary Public. - Every person commissioned as notary public shall have only one official seal of office in accordance with these Rules.

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

SEC. 12. Register of Notaries Public. - The Executive Judge shall keep and maintain a Register of Notaries Public in his jurisdiction which shall contain, among others, the dates of issuance or revocation or suspension of notarial commissions, and the resignation or death of notaries public. The Executive Judge shall furnish the Office of the Court Administrator information and data recorded in the register of notaries public. The Office of the Court Administrator shall keep a permanent, complete and updated database of such records.

3

SEC. 13. Renewal of Commission. - A notary public may file a written application with the Executive Judge for the renewal of his commission within forty-five (45) days before the expiration thereof. A mark, image or impression of the seal of the notary public shall be attached to the application.

Failure to file said application will result in the deletion of the name of the notary public in the register of notaries public.

The notary public thus removed from the Register of Notaries Public may only be reinstated therein after he is issued a new commission in accordance with these Rules.

SEC. 14. Action on Application for Renewal of Commission. - The Executive Judge shall, upon payment of the application fee mentioned in Section 3 above of this Rule, act on an application for the renewal of a commission within thirty (30) days from receipt thereof. If the application is denied, the Executive Judge shall state the reasons therefore.

RULE IV POWERS AND LIMITATIONS OF NOTARIES PUBLIC

SECTION 1. Powers. - (a) A notary public is empowered to perform the following notarial acts:

(1) acknowledgments; (2) oaths and affirmations; (3) jurats; (4) signature witnessings; (5) copy certifications; and (6) any other act authorized by these Rules.

(b) A notary public is authorized to certify the affixing of a signature by thumb or other mark on an instrument or document presented for notarization if:(1)  the thumb or other mark is affixed in the presence of the notary public and of two (2) disinterested and unaffected witnesses to the instrument or document; (2)  both witnesses sign their own names in addition to the thumb or other mark; (3)  the notary public writes below the thumb or other mark: "Thumb or Other Mark affixed by (name of signatory by mark) in the presence of (names and addresses of witnesses) and undersigned notary public"; (4)  the notary public notarizes the signature by thumb or other mark through an acknowledgment, jurat, or signature witnessing.(c) A notary public is authorized to sign on behalf of a person who is physically unable to sign or make a mark on an instrument or document if:(1)  the notary public is directed by the person unable to sign or make a mark to sign on his behalf; (2)  the signature of the notary public is affixed in the presence of two disinterested and unaffected witnesses to the instrument or document; 

(3)  both witnesses sign their own names ; (4)  the notary public writes below his signature: “Signature affixed by notary in presence of (names and addresses of person and two [2] witnesses)”; and (5) the notary public notarizes his signature by acknowledgment or jurat.SEC. 2. Prohibitions. - (a) A notary public shall not perform a notarial act outside his regular place of work or business; provided, however, that on certain exceptional occasions or situations, a notarial act may be performed at the request of the parties in the following sites located within his territorial jurisdiction:(1)  public offices, convention halls, and similar places where oaths of office may be administered; (2)  public function areas in hotels and similar places for the signing of instruments or documents requiring notarization; (3)  hospitals and other medical institutions where a party to an instrument or document is confined for treatment; and (4)  any place where a party to an instrument or document requiring notarization is under detention.(b) A person shall not perform a notarial act if the person involved as signatory to the instrument or document -(1)  is not in the notary's presence personally at the time of the notarization; and (2)  is not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by these Rules.SEC. 3. Disqualifications. - A notary public is disqualified from performing a notarial act if he:(a)  is a party to the instrument or document that is to be notarized; (b)  will receive, as a direct or indirect result, any commission, fee, advantage, right, title, interest, cash, property, or other consideration, except as provided by these Rules and by law; or (c)  is a spouse, common-law partner, ancestor, descendant, or relative by affinity or consanguinity of the principal within the fourth civil degree.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; (b)  the signatory shows a demeanor which engenders in the mind of the notary public reasonable doubt as to the former's knowledge of the consequences of the transaction requiring a notarial act; and (c)  in the notary's judgment, the signatory is not acting of his or her own free will.SEC. 5. False or Incomplete Certificate. - A notary public shall not:chan robles virtual law library(a)  execute a certificate containing information known or believed by the notary to be false. (b)  affix an official signature or seal on a notarial certificate that is incomplete. SEC. 6. Improper Instruments or Documents. - A notary public shall not notarize:

4

(a) a blank or incomplete instrument or document; (b) an instrument or document without appropriate notarial certification.

RULE V FEES OF NOTARY PUBLIC

SECTION 1. Imposition and Waiver of Fees. - For performing a notarial act, a notary public may charge the maximum feeas prescribed by the Supreme Court unless he waives the fee in whole or in part. 

 SEC. 2. Travel Fees and Expenses. - A notary public may charge travel fees and expenses separate and apart from the notarial fees prescribed in the preceding section when traveling to perform a notarial act if the notary public and the person requesting the notarial act agree prior to the travel.

SEC. 3. Prohibited Fees. – No fee or compensation of any kind, except those expressly prescribed and allowed herein, shall be collected or received for any notarial service.

SEC. 4. Payment or Refund of Fees. - A notary public shall not require payment of any fees specified herein prior to the performance of a notarial act unless otherwise agreed upon.

Any travel fees and expenses paid to a notary public prior to the performance of a notarial act are not subject to refund if the notary public had already traveled but failed to complete in whole or in part the notarial act for reasons beyond his control and without negligence on his part.

SEC. 5. Notice of Fees. - A notary public who charges a fee for notarial services shall issue a receipt registered with the Bureau of Internal Revenue and keep a journal of notarial fees. He shall enter in the journal all fees charged for services rendered.chan robles virtual law library

A notary public shall post in a conspicuous place in his office a complete schedule of chargeable notarial fees.

RULE VI NOTARIAL REGISTER

SECTION 1. Form of Notarial Register. - (a) 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 register shall be kept in books to be furnished by the Solicitor General to any notary public upon request and upon payment of the cost thereof. The register shall be

duly paged, and on the first page, the Solicitor General shall certify the number of pages of which the book consists.

For purposes of this provision, a Memorandum of Agreement or Understanding may be entered into by the Office of the Solicitor General and the Office of the Court Administrator.

(b) A notary public shall keep only one active notarial register at any given time.

SEC. 2. Entries in the Notarial Register. - (a) For every notarial act, the notary shall record in the notarial register at the time of notarization the following:

(1) the entry number and page number; (2) the date and time of day of the notarial act; (3) the type of notarial act; (4) the title or description of the instrument, document or proceeding; (5) the name and address of each principal

(6) the competent evidence of identity as defined by these Rules if the signatory is not  personally known to the notary; (7) the name and address of each credible witness swearing to or affirming the person's identity; (8) the fee charged for the notarial act; (9) the address where the notarization was performed if not in the notary's regular place of work or business; and (10)  any other circumstance the notary public may deem of significance or relevance.

(b) A notary public shall record in the notarial register the reasons and circumstances for not completing a notarial act.

(c) A notary public shall record in the notarial register the circumstances of any request to inspect or copy an entry in the notarial register, including the requester's name, address, signature, thumbmark or other recognized identifier, and evidence of identity. The reasons for refusal to allow inspection or copying of a journal entry shall also be recorded.

(d) When the instrument or document is a contract, the notary public shall keep an original copy thereof as part of his records and 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. He shall also retain a duplicate original copy for the Clerk of Court.

5

(e) The notary public shall give to each instrument or document executed, sworn to, or acknowledged before him a number corresponding to the one in his register, and shall also state on the instrument or document the page/s of his register on which the same is recorded. No blank line shall be left between entries.

(f) In case of a protest of any draft, bill of exchange or promissory note, the notary public shall make a full and true record of all proceedings in relation thereto and shall note therein whether the demand for the sum of money was made, by whom, when, and where; whether he presented such draft, bill or note; whether notices were given, to whom and in what manner; where the same was made, when and to whom and where directed; and of every other fact touching the same.

(g) At the end of each week, the notary public shall certify in his notarial register the number of instruments or documents executed, sworn to, acknowledged, or protested before him; or if none, this certificate shall show this fact.

(h) A certified copy of each month's entries and a duplicate original copy of any instrument acknowledged before the notary public shall, within the first ten (10) days of the month following, be forwarded to the Clerk of Court and shall be under the responsibility of such officer. If there is no entry to certify for the month, the notary shall forward a statement to this effect in lieu of certified copies herein required.

SEC. 3. Signatures and Thumbmarks. - At the time of notarization, the notary's notarial register shall be signed or a thumb or other mark affixed by each:

(a) principal; (b) credible witness swearing or affirming to the identity of a principal; and (c) witness to a signature by thumb or other mark, or to a signing by the notary public on behalf of a person physically unable to sign.

SEC. 4. Inspection, Copying and Disposal. - (a) In the notary's presence, any person may inspect an entry in the notarial register, during regular business hours, provided;(1) the person's identity is personally known to the notary public or proven through competent evidence of identity as defined in these Rules; (2) the person affixes a signature and thumb or other mark or other recognized identifier, in the notarial register in a separate, dated entry; (3) the person specifies the month, year, type of instrument or document, and name of the principal in the notarial act or acts sought; and (4) the person is shown only the entry or entries specified by him.

(b) The notarial register may be examined by a law enforcement officer in the course of an official investigation or by virtue of a court order.

(c) If the notary public has a reasonable ground to believe that a person has a criminal intent or wrongful motive in requesting information from the notarial register, the notary shall deny access to any entry or entries therein.

SEC. 5. Loss, Destruction or Damage of Notarial Register. - (a) In case the notarial register is stolen, lost, destroyed, damaged, or otherwise rendered unusable or illegible as a record of notarial acts, the notary public shall, within ten (10) days after informing the appropriate law enforcement agency in the case of theft or vandalism, notify the Executive Judge by any means providing a proper receipt or acknowledgment, including registered mail and also provide a copy or number of any pertinent police report.

(b) Upon revocation or expiration of a notarial commission, or death of the notary public, the notarial register and notarial records shall immediately be delivered to the office of the Executive Judge.

SEC. 6. Issuance of Certified True Copies. - The notary public shall supply a certified true copy of the notarial record, or any part thereof, to any person applying for such copy upon payment of the legal fees.

RULE VII SIGNATURE AND SEAL OF NOTARY PUBLIC

SECTION 1. Official Signature. – In notarizing a paper instrument or document, a notary public shall:

(a) sign by hand on the notarial certificate only the name indicated and as appearing on the notary's commission;

(b) not sign using a facsimile stamp or printing device; and (c) affix his official signature only at the time the notarial act is performed.

SEC. 2. Official Seal. - (a) Every person commissioned as notary public shall have a seal of office, to be procured at his own expense, which shall not be possessed or owned by any other person. It shall be of metal, circular in shape, two inches in diameter, and shall have the name of the city or province and the word “Philippines” and his own name on the margin and the roll of attorney's number on the face thereof, with the words "notary public" across the center. A mark, image or impression of such seal shall be made directly on the paper or parchment on which the writing appears.

6

(b) The official seal shall be affixed only at the time the notarial act is performed and shall be clearly impressed by the notary public on every page of the instrument or document notarized.

(c) When not in use, the official seal shall be kept safe and secure and shall be accessible only to the notary public or the person duly authorized by him.

(d) Within five (5) days after the official seal of a notary public is stolen, lost, damaged or other otherwise rendered unserviceable in affixing a legible image, the notary public, after informing the appropriate law enforcement agency, shall notify the Executive Judge in writing, providing proper receipt or acknowledgment, including registered mail, and in the event of a crime committed, provide a copy or entry number of the appropriate police record. Upon receipt of such notice, if found in order by the Executive Judge, the latter shall order the notary public to cause notice of such loss or damage to be published, once a week for three (3) consecutive weeks, in a newspaper of general circulation in the city or province where the notary public is commissioned. Thereafter, the Executive Judge shall issue to the notary public a new Certificate of Authorization to Purchase a Notarial Seal.

(e) Within five (5) days after the death or resignation of the notary public, or the revocation or expiration of a notarial commission, the official seal shall be surrendered to the Executive Judge and shall be destroyed or defaced in public during office hours. In the event that the missing, lost or damaged seal is later found or surrendered, it shall be delivered by the notary public to the Executive Judge to be disposed of in accordance with this section. Failure to effect such surrender shall constitute contempt of court. In the event of death of the notary public, the person in possession of the official seal shall have the duty to surrender it to the Executive Judge.

SEC. 3. Seal Image. - The notary public shall affix a single, clear, legible, permanent, and photographically reproducible mark, image or impression of the official seal beside his signature on the notarial certificate of a paper instrument or document.

SEC. 4. Obtaining and Providing Seal. - (a) A vendor or manufacturer of notarial seals may not sell said product without a written authorization from the Executive Judge.

(b) Upon written application and after payment of the application fee, the Executive Judge may issue an authorization to sell to a vendor or manufacturer of notarial seals after verification and investigation of the latter's qualifications. The Executive Judge shall charge an authorization fee in the amount of PhP 4,000 for the vendor and PhP 8,000 for the manufacturer. If a manufacturer is also a vendor, he shall only pay the manufacturer's authorization fee.

(c) The authorization shall be in effect for a period of four (4) years from the date of its issuance and may be renewed by the Executive Judge for a similar period upon payment of the authorization fee mentioned in the preceding paragraph.

(d) A vendor or manufacturer shall not sell a seal to a buyer except upon submission of a certified copy of the commission and the Certificate of Authorization to Purchase a Notarial Seal issued by the Executive Judge. A notary public obtaining a new seal as a result of change of name shall present to the vendor or manufacturer a certified copy of the Confirmation of the Change of Name issued by the Executive Judge.

(e) Only one seal may be sold by a vendor or manufacturer for each Certificate of Authorization to Purchase a Notarial Seal.

(f) After the sale, the vendor or manufacturer shall affix a mark, image or impression of the seal to the Certificate of Authorization to Purchase a Notarial Seal and submit the completed Certificate to the Executive Judge. Copies of the Certificate of Authorization to Purchase a Notarial Seal and the buyer's commission shall be kept in the files of the vendor or manufacturer for four (4) years after the sale.

(g) A notary public obtaining a new seal as a result of change of name shall present to the vendor a certified copy of the order confirming the change of name issued by the Executive Judge.

RULE VIII NOTARIAL CERTIFICATES

SECTION 1. Form of Notarial Certificate. - The notarial form used for any notarial instrument or document shall conform to all the requisites prescribed herein, the Rules of Court and all other provisions of issuances by the Supreme Court and in applicable laws.

SEC. 2. Contents of the Concluding Part of the Notarial Certificate. – The notarial certificate shall include the following:

(a) the name of the notary public as exactly indicated in the commission; (b) the serial number of the commission of the notary public; (c) the words "Notary Public" and the province or city where the notary public is commissioned, the expiration date of the commission, the office address of the notary public; and (d) the roll of attorney's number, the professional tax receipt number and the place and date of issuance thereof, and the IBP membership number.

7

RULE IX CERTIFICATE OF AUTHORITY OF NOTARIES PUBLIC

SECTION 1. Certificate of Authority for a Notarial Act. - A certificate of authority evidencing the authenticity of the official seal and signature of a notary public shall be issued by the Executive Judge upon request in substantially the following form:

CERTIFICATE OF AUTHORITY FOR A NOTARIAL ACT

I, (name, title, jurisdiction of the Executive Judge), certify that (name of notary public), the person named in the seal and signature on the attached document, is a Notary Public in and for the (City/Municipality/Province) of the Republic of the Philippines and authorized to act as such at the time of the document's notarization.

IN WITNESS WHEREOF, I have affixed below my signature and seal of this office this (date) day of (month) (year).

_________________                (official signature) (seal of Executive Judge)

RULE X CHANGES OF STATUS OF NOTARY PUBLIC

SECTION 1. Change of Name and Address. -

Within ten (10) days after the change of name of the notary public by court order or by marriage, or after ceasing to maintain the regular place of work or business, the notary public shall submit a signed and dated notice of such fact to the Executive Judge.       The notary public shall not notarize until:

(a) he receives from the Executive Judge a confirmation of the new name of the notary public and/or change of regular place of work or business; and      (b) a new seal bearing the new name has been obtained.

The foregoing notwithstanding, until the aforementioned steps have been completed, the notary public may continue to use the former name or regular place of work or business in performing notarial acts for three (3) months from the date of the change, which may be extended once for valid and just cause by the Executive Judge for another period not exceeding three (3) months.

SEC. 2. Resignation. - A notary public may resign his commission by personally submitting a written, dated and signed formal notice to the Executive Judge together with his notarial seal, notarial register and records. Effective

from the date indicated in the notice, he shall immediately cease to perform notarial acts. In the event of his incapacity to personally appear, the submission of the notice may be performed by his duly authorized representative.

SEC. 3. Publication of Resignation. - The Executive Judge shall immediately order the Clerk of Court to post in a conspicuous place in the offices of the Executive Judge and of the Clerk of Court the names of notaries public who have resigned their notarial commissions and the effective dates of their resignation.

RULE XI REVOCATION OF COMMISSION AND DISCIPLINARY SANCTIONS

SECTION 1. Revocation and Administrative Sanctions. - (a) The Executive Judge shall revoke a notarial commission for any ground on which an application for a commission may be denied.

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

(1) fails to keep a notarial register; (2) fails to make the proper entry or entries in his notarial register concerning his notarial acts; (3) fails to send the copy of the entries to the Executive Judge within the first ten (10) days of the month following; (4) fails to affix to acknowledgments the date of expiration of his commission; (5) fails to submit his notarial register, when filled, to the Executive Judge; (6) fails to make his report, within a reasonable time, to the Executive Judge concerning the performance of his duties, as may be required by the judge; (7) fails to require the presence of a principal at the time of the notarial act; (8) fails to identify a principal on the basis of personal knowledge or competent evidence; (9) executes a false or incomplete certificate under Section 5, Rule IV; (10)  knowingly performs or fails to perform any other act prohibited or mandated by these Rules; and (11)  commits any other dereliction or act which in the judgment of the Executive Judge constitutes good cause for revocation of commission or imposition of administrative sanction.

(c) Upon verified complaint by an interested, affected or aggrieved person, the notary public shall be required to file a verified answer to the complaint.  If the answer of the notary public is not satisfactory, the Executive Judge shall conduct a summary hearing. If the allegations of the complaint are not proven, the complaint shall be dismissed. If the charges are duly established, the

8

Executive Judge shall impose the appropriate administrative sanctions. In either case, the aggrieved party may appeal the decision to the Supreme Court for review. Pending the appeal, an order imposing disciplinary sanctions shall be immediately executory, unless otherwise ordered by the Supreme Court.

(d) The Executive Judge may motu proprio initiate administrative proceedings against a notary public, subject to the procedures prescribed in paragraph (c) above and impose the appropriate administrative sanctions on the grounds mentioned in the preceding paragraphs (a) and (b).

SEC. 2. Supervision and Monitoring of Notaries Public. - The Executive Judge shall at all times exercise supervision over notaries public and shall closely monitor their activities.

SEC. 3. Publication of Revocations and Administrative Sanctions. - The Executive Judge shall immediately order the Clerk of Court to post in a conspicuous place in the offices of the Executive Judge and of the Clerk of Court the names of notaries public who have been administratively sanctioned or whose notarial commissions have been revoked.

SEC. 4. Death of Notary Public. - If a notary public dies before fulfilling the obligations in Section 4(e), Rule VI and Section 2(e), Rule VII, the Executive Judge, upon being notified of such death, shall forthwith cause compliance with the provisions of these sections.

RULE XII SPECIAL PROVISIONS

SECTION 1. Punishable Acts. - The Executive Judge shall cause the prosecution of any person who:

(a) knowingly acts or otherwise impersonates a notary public; (b) knowingly obtains, conceals, defaces, or destroys the seal, notarial register, or official records of a notary public; and (c) knowingly solicits, coerces, or in any way influences a notary public to commit official misconduct.

SEC 2. Reports to the Supreme Court. - The Executive Judge concerned shall submit semestral reports to the Supreme Court on discipline and prosecution of notaries public.

RULE XIII REPEALING AND EFFECTIVITY PROVISIONS

SECTION 1. Repeal. - All rules and parts of rules, including issuances of the Supreme Court inconsistent herewith, are hereby repealed or accordingly modified.

SEC. 2. Effective Date. - These Rules shall take effect on the first day of August 2004, and shall be published in a newspaper of general circulation in the Philippines which provides sufficiently wide circulation.

Promulgated this 6th day of July, 2004.

G.R. No. 129416.  November 25, 2004

ZENAIDA B. TIGNO, IMELDA B. TIGNO and ARMI B. TIGNO, petitioners, vs. SPOUSES ESTAFINO AQUINO and FLORENTINA AQUINO and the HONORABLE COURT OF APPEALS, respondents.

D E C I S I O N

TINGA, J.:

The controversy in the present petition hinges on the admissibility of a single document, a deed of sale involving interest over real property, notarized by a person of questionable capacity. The assailed ruling of the Court of Appeals, which overturned the findings of fact of the Regional Trial Court, relied primarily on the presumption of regularity attaching to notarized documents with respect to its due execution. We conclude instead that the document has not been duly notarized and accordingly reverse the Court of Appeals.

The facts are as follow:

On 11 January 1980, respondent spouses Estafino and Florentina Aquino (the Aquinos) filed a complaint for enforcement of contract and damages against Isidro Bustria (Bustria).[1] The complaint sought to enforce an alleged sale by Bustria to the Aquinos of a one hundred twenty thousand (120,000) square meter fishpond located in Dasci, Pangasinan. The property was not registered either under the Land Registration Act or under the Spanish Mortgage Law, though registrable under Act No. 3344.[2] The conveyance was covered by a Deed of Sale dated 2 September 1978.

Eventually, Bustria and the Aquinos entered into a compromise agreement, whereby Bustria agreed to recognize the validity of the sale, and the Aquinos in turn agreed to grant to Bustria the right to repurchase the same property after the lapse of seven (7) years.

Upon submission, the Court of First Instance of Pangasinan, Branch VII, approved and incorporated the compromise agreement in a Decision which it rendered on 7 September 1981.

Bustria died in October of 1986.[3] On 1 December 1989, petitioner Zenaida B. Tigno (Tigno), in substitution of her deceased father Isidro Bustria,[4] attempted to repurchase the property by filing a Motion for Consignation. She deposited the amount of Two Hundred Thirty Thousand Pesos (P200,000.00)  with the trial court,

9

now Regional Trial Court (RTC), Branch 55 at Alaminos, Pangasinan. On 18 December 1989, the Aquinos filed an opposition, arguing that the right to repurchase was not yet demandable and that Tigno had failed to make a tender of payment. In an Order dated 10 October 1999, the RTC denied the Motion for Consignation.[5]

In June of 1991, Tigno filed a Motion for a Writ of Execution, which was likewise opposed by the Aquinos, and denied by the RTC. Then, on 6 September 1991, Tigno filed an action for Revival of Judgment,[6] seeking the revival of the decision in Civil Case No. A-1257, so that it could be executed accordingly.[7] The Aquinos filed an answer, wherein they alleged that Bustria had sold his right to repurchase the property to them in a deed of sale dated 17 October 1985.[8]

Among the witnesses presented by the Aquinos during trial were Jesus De Francia (De Francia), the instrumental witness to the deed of sale, and former Judge Franklin Cariño (Judge Cariño), who notarized the same. These two witnesses testified as to the occasion of the execution and signing of the deed of sale by Bustria. Thereafter, in their Formal Offer of Documentary Evidence, the Aquinos offered for admission as their Exhibit No. “8,” the deed of sale (Deed of Sale)[9] purportedly executed by Bustria. The admission of the Deed of Sale was objected to by Tigno on the ground that it was a false and fraudulent document which had not been acknowledged by Bustria as his own; and that its existence was suspicious, considering that it had been previously unknown, and not even presented by the Aquinos when they opposed Tigno’s previous Motion for Consignation.[10]

In an Order dated 6 April 1994, the RTC refused to admit the Deed of Sale in evidence.[11] A Motion for Reconsideration praying for the admission of said exhibit was denied in an Order dated 27 April 1994.[12]

Then, on 18 August 1994, a Decision was rendered by the RTC in favor of Tigno. The RTC therein expressed doubts as to the authenticity of the Deed of Sale, characterizing the testimonies of De Francia and Cariño as conflicting.[13] The RTC likewise observed that nowhere in the alleged deed of sale was there any statement that it was acknowledged by Bustria;[14] that it was suspicious that Bustria was not assisted or represented by his counsel in connection with the preparation and execution of the deed of sale[15] or that Aquino had raised the matter of the deed of sale in his previous Opposition to the Motion for Consignation.[16] The RTC then stressed that the previous Motion for Execution lodged by Tigno had to be denied since more than five (5) years had elapsed from the date the judgment in Civil Case No. A-1257 had become final and executory; but the judgment could be revived by action such as the instant complaint. Accordingly, the RTC ordered the revival of the judgment dated 7 September 1981 in Civil Case No. A-1257.[17]

The Aquinos interposed an appeal to the Court of Appeals.[18] In the meantime, the RTC allowed the

execution pending appeal of itsDecision.[19] On 23 December 1996, the Court of Appeals Tenth Division promulgated a Decision[20] reversing and setting aside the RTCDecision. The appellate court ratiocinated that there were no material or substantial inconsistencies between the testimonies of Cariño and De Francia that would taint the document with doubtful authenticity; that the absence of the acknowledgment and substitution instead of a jurat did not render the instrument invalid; and that the non-assistance or representation of Bustria by counsel did not render the document null and ineffective.[21] It was noted that a notarized document carried in its favor the presumption of regularity with respect to its due execution, and that there must be clear, convincing and more than merely preponderant evidence to contradict the same. Accordingly, the Court of Appeals held that the RTC erred in refusing to admit the Deed of Sale, and that the document extinguished the right of Bustria’s heirs to repurchase the property.

After the Court of Appeals denied Tigno’s Motion for Reconsideration,[22] the present petition was filed before this Court. Tigno imputes grave abuse of discretion and misappreciation of facts to the Court of Appeals when it admitted the Deed of Sale.  He also argues that the appellate court should have declared the Deed of Sale as a false, fraudulent and unreliable document not supported by any consideration at all.

The general thrusts of the arguments posed by Tigno are factually based.  As such, they could normally lead to the dismissal of this Petition for Review. However, while this Court is not ordinarily a trier of facts,[23] factual review may be warranted in instances when the findings of the trial court and the intermediate appellate court are contrary to each other.[24] Moreover, petitioner raises a substantial argument regarding the capacity of the notary public, Judge Cariño, to notarize the document. The Court of Appeals was unfortunately silent on that matter, but this Court will take it up with definitiveness.

The notarial certification of the Deed of Sale reads as follows:

ACKNOWLEDGMENT

REPUBLIC OF THE PHILIPPINES)PROVINCE OF PANGASINAN    ) S.S.

MUNICIPALITY OF ALAMINOS    )

SUBSCRIBED AND SWORN TO before me this 17th day of October 1985 at Alaminos, Pangasinan both parties known to me to be the same parties who executed the foregoing instrument.

FRANKLIN CARIÑOEx-Officio Notary PublicJudge, M.T.C.

Alaminos, Pangasinan

10

There are palpable errors in this certification. Most glaringly, the document is certified by way of a jurat instead of an acknowledgment. Ajurat is a distinct creature from an acknowledgment. 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; while a jurat is that part of an affidavit where the officer certifies that the same was sworn before him.[25] Under Section 127 of the Land Registration Act,[26] which has been replicated in Section 112 of Presidential Decree No. 1529,[27] the Deed of Sale should have been acknowledged before a notary public.[28]

But there is an even more substantial defect in the notarization, one which is determinative of this petition. This pertains to the authority of Judge Franklin Cariño to notarize the Deed of Sale.

It is undisputed that Franklin Cariño at the time of the notarization of the Deed of Sale, was a sitting judge of the Metropolitan Trial Court of Alaminos.[29] Petitioners point out, citing Tabao v. Asis,[30] that municipal judges may not undertake the preparation and acknowledgment of private documents, contracts, and other acts of conveyance which bear no relation to the performance of their functions as judges.[31] In response, respondents claim that the prohibition imposed on municipal court judges from notarizing documents took effect only in December of 1989, or four years after the Deed of Sale was notarized by Cariño.[32]

Respondent’s contention is erroneous. Municipal Trial Court (MTC) and Municipal Circuit Trial Court (MCTC) judges are empowered to perform the functions of notaries public ex officio under Section 76 of Republic Act No. 296, as amended (otherwise known as the Judiciary Act of 1948) and Section 242 of the Revised Administrative Code.[33] However, as far back as 1980 in Borre v. Moya,[34] the Court explicitly declared that municipal court judges such as Cariño may notarize only documents connected with the exercise of their official duties.[35] TheDeed of Sale was not connected with any official duties of Judge Cariño, and there was no reason for him to notarize it. Our observations as to the errant judge in Borre are pertinent in this case, considering that Judge Cariño identified himself in the Deed of Sale as “Ex-Officio Notary Public, Judge, MTC:”

[A notary ex officio] should not compete with private law practitioners or regular notaries in transacting legal conveyancing business.

In the instant case, it was not proper that a city judge should notarize documents involving private transactions and sign the document in this wise: "GUMERSINDO ARCILLA, Notary Public Ex-Officio, City Judge" (p. 16, Rollo, Annex D of Complaint). In doing so, he obliterated the distinction between a regular notary and a notary ex officio.[36]

There are possible grounds for leniency in connection with this matter, as Supreme Court Circular No. I-90 permits notaries public ex officioto perform any act within the competency of a regular notary public provided that certification be made in the notarized documents attesting to the lack of any lawyer or notary public in such municipality or circuit. Indeed, it is only when there are no lawyers or notaries public that the exception applies.[37] The facts of this case do not warrant a relaxed attitude towards Judge Cariño’s improper notarial activity. There was no such certification in the Deed of Sale. Even if one was produced, we would be hard put to accept the veracity of its contents, considering that Alaminos, Pangasinan, now a city,[38] was even then not an isolated backwater town and had its fair share of practicing lawyers.

There may be sufficient ground to call to task Judge Cariño, who ceased being a judge in 1986, for his improper notarial activity. Perhaps though, formal sanction may no longer be appropriate considering Judge Cariño’s advanced age, assuming he is still alive.[39] However, thisDecision should again serve as an affirmation of the rule prohibiting municipal judges from notarizing documents not connected with the exercise of their official duties, subject to the exceptions laid down in Circular No. 1-90.

Most crucially for this case, we should deem the Deed of Sale as not having been notarized at all. The validity of a notarial certification necessarily derives from the authority of the notarial officer.  If the notary public does not have the capacity to notarize a document, but does so anyway, then the document should be treated as unnotarized.  The rule may strike as rather harsh, and perhaps may prove to be prejudicial to parties in good faith relying on the proferred authority of the notary public or the person pretending to be one. Still, to admit otherwise would render merely officious the elaborate process devised by this Court in order that a lawyer may receive a notarial commission. Without such a rule, the notarization of a document by a duly appointed notary public will have the same legal effect as one accomplished by a non-lawyer engaged in pretense.

The notarization of a document carries considerable legal effect.  Notarization of a private document converts such document into a public one, and renders it admissible in court without further proof of its authenticity.[40] Thus, notarization is not an empty routine; to the contrary, it engages public interest in a substantial degree and the protection of that interest requires preventing those who are not qualified or authorized to act as notaries public from imposing upon the public and the courts and administrative offices generally.[41]

On the other hand, what then is the effect on the Deed of Sale if it was not notarized? True enough, from 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

11

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.[42] 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 legal effects between the parties.[43]

Still, the Court has to reckon with the implications of the lack of valid notarization of the Deed of Sale from the perspective of the law on evidence. After all, the case rests on the admissibility of the Deed of Sale.

Clearly, the presumption of regularity relied upon by the Court of Appeals no longer holds true since the Deed of Sale is not a notarized document. Its proper probative value is governed by the Rules of Court. Section 19, Rule 132 states:

Section 19. Classes of documents.—For the purpose of their presentation in evidence, documents are either public or private.

Public documents are:

(a)    The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country;

(b)    Documents acknowledged before a notary public except last wills and testaments; and

(c)    Public records, kept in the Philippines, of private documents required by law to be entered therein.

All other writings are private. (Emphasis supplied.)

The Deed of Sale, invalidly notarized as it was, does not fall under the enumeration of public documents; hence, it must be considered a private document. The nullity of the alleged or attempted notarization performed by Judge Cariño is sufficient to exclude the document in question from the class of public documents.  Even assuming that the Deed of Sale was validly notarized, it would still be classified as a private document, since it was not properly acknowledged, but merely subscribed and sworn to by way of jurat.

Being a private document, the Deed of Sale is now subject to the requirement of proof under Section 20, Rule 132, which states:

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 is claimed to be.

The Deed of Sale was offered in evidence as authentic by the Aquinos, who likewise insist that its enforceability militates against Tigno’s claim.  Correspondingly, the burden falls upon the Aquinos to prove its authenticity and due execution.  The Court of Appeals clearly erred in not appreciating the Deed of Sale as a private document and in applying the presumption of regularity that attaches only to duly notarized documents, as distinguished from private documents.

Did the RTC err then in refusing to admit the Deed of Sale? We hold that it did not. Section 20, Rule 132 provides ample discretion on the trier of fact before it may choose to receive the private document in evidence. The RTC wisely refused to admit the Deed of Sale, taking great lengths as it did to explain its doubts as to its veracity. The RTC was not convinced of the proffered proof by the Aquinos, and the exercise of its sound discretion as the primary trier of fact warrants due respect.

The most telling observation of the RTC relates to the fact that for the very first time respondents alleged the existence of the Deed of Salewhen they filed their answer to petitioner’s current action to revive judgment.[44] Prior to the initiation of the present action, Tigno had tried to operationalize and implement the Compromise Agreement through two judicial means: consignation and execution of judgment. The Aquinos duly opposed these prior attempts of the petitioner to exercise the right to repurchase, but they did not raise then the claim that such right to repurchase was already extinguished by the Deed of Sale. Tigno attempted to exercise the right to repurchase only a few years after the execution of the Deed of Sale to which respondents themselves were signatories. Thus, it is incredulous that the Aquinos did not invoke theDeed of Sale when they opposed in court petitioner’s successive attempts at consignation and execution of judgment. The Deed of Sale, if in existence and valid, would have already precluded Tigno’s causes of action for either consignation or execution of judgment. The only believable conclusion, as drawn by the RTC, was that the Deed of Sale had yet to be created when petitioner moved in 1990 for consignation and execution of judgment—an existential anomaly if we were

12

to agree with the respondents that such document had been signed and notarized back in 1985.

The dubiousness in origin of the Deed of Sale is not alleviated by the other observations of the RTC. It also pointed to certain incredible aspects in the Aquinos’ tale of events.  It noted that no receipts were ever presented by the respondents to evidence actual payment of consideration by them to Bustria, despite the allegation of the respondents that the amount was covered by seven (7) receipts.[45] The Aquinos claimed that Bustria kept all the receipts, an assertion which the RTC found as unbelievable, citing ordinary human nature to ask for receipts for significant amounts given and to keep the same.[46] In itself, the absence of receipts, or any proof of consideration, would not be conclusive since consideration is always presumed.  However, given the totality of the circumstances surrounding this case, the absence of such proof further militates against the claims of the Aquinos.

We can appreciate in a similar vein the observation of the Court of Appeals that Bustria did not bother to seek his lawyer’s assistance as regards the execution of the Deed of Sale, considering that the subject property had previously been fiercely litigated. Although the Court of Appeals was correct in ruling that the document would not be rendered null or ineffective due to the lack of assistance of counsel, the implausibility of the scenario strikes as odd and therefore reinforces the version found by the RTC as credible.

The Court likewise has its own observations on the record that affirm the doubts raised by the Court of Appeals.  Isidro Bustria, who would die in 1986, was already ninety-three (93) years old when he allegedly signed the Deed of Sale in 1985. Still, the Aquinos asserted before the RTC that Bustria traveled unaccompanied from his home in Dasol, Pangasinan, passing through two towns to Alaminos, to execute the Deed of Sale. Without discrediting the accomplishments of nonagenarians capable of great physical feats, it should be acknowledged as a matter of general assumption that persons of Bustria’s age are typically sedentary and rarely so foolhardy as to insist on traveling significant distances alone.

Also of note is the fact that there are glaring differences as to the alleged signature of Bustria on the Deed of Sale and as it otherwise appears on the judicial record.  Bustria’s signature in the 1981 Compromise Agreement is noticeably shaky which is not surprising, considering that it was subscribed when Bustria was eighty-nine (89) years old. However, Bustria’s signature on the Deed of Sale, which if genuine was affixed when he was already ninety-three (93) years old, is remarkably steady in its strokes. There are also other evident differences between Bustria’s signature on the Deed of Sale and on other documents on the record.

Admittedly, these doubts cast above arise in chief from an appreciation of circumstantial evidence.  These

have to be weighed against the findings of the Court of Appeals that the fact that Bustria signed the Deed of Sale was established by the respective testimonies of witnesses De Francia and Judge Cariño. In its own appreciation of these testimonies, the RTC alluded to notable inconsistencies in their testimonies.  As a final measure of analysis, the Court shall now examine whether the appellate court was in error in reversing the conclusion of the RTC on these testimonies.

The inconsistencies cited by the RTC were that De Francia testified that Judge Cariño himself prepared and typed the Deed of Sale in his office, where the document was signed,[47] while Judge Cariño testified that he did not type the Deed of Sale since it was already prepared when the parties arrived at his office for the signing.[48] On this point, the Court of Appeals stated with utter nonchalance that a perusal of the record revealed no material or substantial inconsistencies between the testimonies of Judge Cariño and De Francia.

Strangely, the appellate court made no comment as to the inconsistency pointed out by the RTC as to who prepared the Deed of Sale. If the only point of consideration was the due execution of the Deed of Sale, then the Court of Appeals should have properly come out with its finding. Other variances aside, there are no contradictions in the testimonies of Judge Cariño and De Francia on the question of whether or not Bustria signed the Deed of Sale.

However, as earlier established, the Deed of Sale is a private document. Thus, not only the due execution of the document must be proven but also its authenticity. This factor was not duly considered by the Court of Appeals. The testimonies of Judge Cariño and De Francia now become material not only to establish due execution, but also the authenticity of the Deed of Sale. And on this point, the inconsistencies pointed out by the RTC become crucial.

The matter of authenticity of the Deed of Sale being disputed, the identity of the progenitor of this all-important document is a material evidentiary point. It is disconcerting that the very two witnesses of the respondent offered to prove the Deed of Sale, flatly contradict each other on the basis of their own personal and sensory knowledge. Worse, the purported author of the Deed of Sale disavowed having drafted the document, notwithstanding the contrary testimony grounded on personal knowledge by the documentary witness.

Establishing the identity of the person who wrote the Deed of Sale would not ordinarily be necessary to establish the validity of the transaction it covers. However, since it is the authenticity of the document itself that is disputed, then the opposing testimonies on that point by the material witnesses properly raises questions about the due execution of the document itself. The inconsistencies in the testimonies of Judge Cariño and De Francia are irreconcilable. It is not possible to

13

affirm the testimony of either without denigrating the competence and credibility of the other as a witness. If Judge Cariño was truthful in testifying that he did not write the Deed of Sale, then doubt can be cast as to the reliability of the notarial witness De Francia. It takes a leap of imagination, a high level of gumption, and perverse deliberation for one to erroneously assert, under oath and with particularities, that a person drafted a particular document in his presence.

However, if we were to instead believe De Francia, then the integrity of the notary public, Judge Cariño, would be obviously compromised.  Assuming that Judge Cariño had indeed authored the Deed of Sale, it would indeed be odd that he would not remember having written the document himself yet sufficiently recall notarizing the same. If his testimony as to authorship of the document is deemed as dubious, then there is all the reason to make a similar assumption as to his testimony on the notarization of the Deed of Sale.

These inconsistencies are not of consequence because there is need to indubitably establish the author of the Deed of Sale. They are important because they cast doubt on the credibility of those witnesses of the Aquinos, presented as they were to attest to the due execution and authenticity of the Deed of Sale. The Court of Appeals was clearly in error in peremptorily disregarding this observation of the RTC.

As a result, we are less willing than the Court of Appeals to impute conclusive value to the testimonies of de Francia and Judge Cariño. The totality of the picture leads us to agree with the trial court that the Deed of Sale is ineluctably dubious in origin and in execution. The Court deems as correct the refusal of the RTC to admit the Deed of Sale, since its due execution and authenticity have not been proven. The evidence pointing to the non-existence of such a transaction is so clear and convincing that it is sufficient even to rebut the typical presumption of regularity arising from the due execution of notarial documents.  However, for the reasons stated earlier, the Deed of Sale is ineluctably an unnotarized document. And the lower court had more than sufficient basis to conclude that it is a spurious document.

Since the validity of the Deed of Sale has been successfully assailed, Tigno’s right to repurchase was not extinguished at the time of the filing of the Petition for revival of judgment, as correctly concluded by the RTC. The Court of Appeals being in error when it concluded otherwise, the reinstatement of the RTC Decision is warranted.

WHEREFORE, the Petition is GRANTED.  The assailed Decision dated 23 December 1996 and Resolution dated 9 June 1997 of the Court of Appeals in CA-G.R. CV No. 49879 is REVERSED, and the Decision dated 18 August 1994 of the Regional Trial Court of Alaminos, Pangasinan, Branch 55, in Civil Case No. A-1918 is REINSTATED. Costs against respondents.

SO ORDERED.

A.C. No. 6713             December 8, 2008

ZENAIDA B. GONZALES, petitioner, vs. ATTY. NARCISO PADIERNOS, respondent.

BRION, J.:

Before the Court is the Complaint for Disbarment of Atty. Narciso Padiernos (respondent) filed on May 12, 2003 by Ms. Zenaida B. Gonzales (complainant) with the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP). Commissioner Milagros V. San Juan conducted the fact-finding investigation on the complaint.

Commissioner San Juan submitted a Report and Recommendation1 dated September 10, 2004 to the IBP Board of Governors who approved this Report and Recommendation in a resolution dated November 4, 2004.

In a letter2 dated March 14, 2005, IBP Director for Bar Discipline Rogelio A. Vinluan transmitted to the Office of Chief Justice Hilario G. Davide, Jr. (retired) a Notice of Resolution3 and the records of the case.

The Factual Background

The complainant alleged in her complaint for disbarment that on three (3) separate occasions the respondent notarized the following documents: (1) a Deed of Absolute Sale4 dated July 16, 1979 which disposed of her property in Jaen, Nueva Ecija in favor of Asterio, Estrella and Rodolfo, all surnamed Gonzales; (2) a Subdivision Agreement5 dated September 7, 1988 which subdivided her property among the same persons; and (3) an affidavit of Non-Tenancy6 dated March 3, 1988 which certified that her property was not tenanted. All three documents were purportedly signed and executed by complainant. All three documents carried forged signatures and falsely certified that the complainant personally appeared before the respondent and that she was "known to me (the respondent) to be the same person who executed the foregoing and acknowledged to me that the same is her own free act and voluntary deed." The complainant claimed that she never appeared before respondent on the dates the documents were notarized because she was then in the United States.

The respondent filed his Answer7 on June 16, 2003. He admitted that he notarized the three documents, but denied the "unfounded and malicious imputation" that the three documents contained the complainant's forged signatures. On the false certification aspect, he countered that "with the same or identical facts obtained in the instant case, the Highest Tribunal, the Honorable Supreme Court had this to say – That it is not necessary

14

to know the signatories personally, provided he or she or they signed in the presence of the Notary, alleging that they are the same persons who signed the names."

On October 13, 2003, the respondent moved to dismiss the complaint for lack of verification and notification of the date of hearing.8

On December 19, 2003, complainant amended her complaint.9 This time, she charged respondent with gross negligence and failure to exercise the care required by law in the performance of his duties as a notary public, resulting in the loss of her property in Jaen, Nueva Ecija, a 141,497 square meters of mango land covered by TCT NT-29578. The complainant claimed that because of the respondent’s negligent acts, title to her property was transferred to Asterio Gonzales, Estrella Gonzales and Rodolfo Gonzales. She reiterated that when the three documents disposing of her property were notarized, she was out of the country. Estrella Gonzales Mendrano, one of the vendees, was also outside the country as shown by a certification issued by the Bureau of Immigration and Deportation (BID) on September 14, 1989.10 She likewise claimed that Guadalupe Ramirez Gonzales (the widow of Rodolfo Gonzales, another vendee) executed an affidavit describing the "Deed of Absolute Sale and Subdivision Agreement" as spurious and without her husband's participation.11 The affidavit further alleged that the complainant’s signatures were forged and the respondent did not ascertain the identity of the person who came before him and posed as vendor despite the fact that a large tract of land was being ceded and transferred to the vendees.

The complainant prayed for the revocation of the respondent's notarial commission and his suspension from the practice of law due to "his deplorable failure to hold the importance of the notarial act and observe [with] utmost care the basic requirements in the performance of his duties as a notary public which include the ascertainment that the person who signed the document as the very person who executed and personally appeared before him."

On May 3, 2004, the complainant moved that the case be considered submitted for resolution in view of respondent's failure to answer the amended complaint.12

The IBP Findings

In her report to the IBP Board of Governors,13 Commissioner San Juan categorically noted the respondent’s admission that he notarized the three documents in question – the Deed of Absolute Sale on July 16, 1979; the Subdivision Agreement on September 7, 1988 and the affidavit of Non-Tenancy on March 3, 1988. Commissioner San Juan also noted that the complainant’s documentary evidence supported her claim that she never executed these documents and

never appeared before the respondent to acknowledge the execution of these documents. These documentary evidence consisted of the certification from the BID that complainant did not travel to the Philippines on the dates the documents were allegedly notarized;14 and the affidavit of Guadalupe Ramirez Gonzales described above.15

Commissioner San Juan found that the respondent had no participation in the preparation or knowledge of the falsity of the spurious documents, and found merit in the complainant's contention that the respondent "was negligent in the performance of his duties as a notary public." She faulted the respondent for not demanding proof of the identity of the person who claimed to be complainant Zenaida Gonzales when the documents were presented to him for notarization. She concluded that the respondent failed to exercise the diligence required of him as notary public to ensure the integrity of the presented documents. She recommended that the respondent's notarial commission be revoked and that he be suspended from the practice of law for a period of three months.

The Court's Ruling

Rule II of the 2004 Rules of Notarial Practice16 provides:

SECTION 1. Acknowledgment. - "Acknowledgment" refers to an act in which an individual on a single occasion:

(a) appears in person before the notary public and present an integrally complete instrument on document;

(b) is attested to be personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; and

(c) represents to the notary public that the signature on the instrument or document was voluntarily affixed by him for the purpose stated in the instrument or document, declares that he has executed the instrument or document as his free and voluntary act and deed, and, if he acts in a particular representative capacity that he has the authority to sign in that capacity."

Under the given facts, the respondent clearly failed to faithfully comply with the foregoing rules when he notarized the three documents subject of the present complaint. The respondent did not know the complainant personally, yet he did not require proof of identity from the person who appeared before him and executed and authenticated the three documents. The IBP Report observed that had the respondent done so, "the fraudulent transfer of complainant's property could have been prevented."

15

Through his negligence in the performance of his duty as a notary public resulting in the loss of property of an unsuspecting private citizen, the respondent eroded the complainant’s and the public’s confidence in the notarial system; he brought disrepute to the system. As we held in Pantoja Mumar vs. Flores,17 he thereby breached Canon 1 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) as well as Rule 1.01 of the same Code (which prohibits lawyers from engaging in unlawful, dishonest, immoral or deceitful conduct).

The respondent should be reminded that a notarial document is, on its face and by authority of law, entitled to full faith and credit. For this reason, notaries public must observe utmost care in complying with the formalities intended to ensure the integrity of the notarized document and the act or acts it embodies.18

We are not persuaded by the respondent's argument that this Court, in a similar case or one with identical facts, said "that it is not necessary to know the signatories personally provided he or she or they signed in the presence of the notary, alleging that they are the persons who signed the names." The respondent not only failed to identify the cited case; he apparently also cited it out of context. A notary public is duty bound to require the person executing a document to be personally present, and to swear before him that he is the person named in the document and is voluntarily and freely executing the act mentioned in the document.19 The notary public faithfully discharges this duty by at least verifying the identity of the person appearing before him based on the identification papers presented.

For violating his duties as a lawyer and as a notary public, as well as for the grave injustice inflicted on the complainant, it is only proper that the respondent be penalized and suffer the consequences of his acts. We note in this regard that in her amended complaint, the complainant no longer sought the disbarment of respondent; she confined herself to the revocation of the respondent’s notarial commission and his suspension from the practice of law. Thus, the recommendation of the IBP is for revocation of his notarial commission and for his suspension from the practice of law for three (3) months. We approve this recommendation as a sanction commensurate with the transgression committed by the respondent as a member of the bar and as a notary public.

WHEREFORE, premises considered, ATTY. NARCISO PADIERNOS of 103 Del Pilar Street, Cabanatuan City, isSUSPENDED from the practice of law for a period of THREE (3) MONTHS, and his notarial commission is herebyREVOKED.

SO ORDERED.

[A.C. No. 4758.  April 30, 1999]

VICTOR NUNGA, complainant,vs. ATTY. VENANCIO VIRAY, respondent

DAVIDE, JR., C.J.:

In his complaint, Victor Nunga seeks the disbarment of respondent Venancio Viray on the ground of grave misconduct for notarizing documents without a commission to do so.  After issues were joined, the Integrated Bar of the Philippines conducted an investigation.

The Investigating Commissioner was Atty. Lydia A. Navarro. Report dated 4 August 1998 reads as follows:

Victor D. Nunga, president of the Masantol Rural Bank filed a complaint for disbarment against Atty. Venancio M. Viray on the ground of gross and serious misconduct for notarizing documents when he was not commissioned to do so at the time the said documents were executed.

Complainant alleged that in May 1996, he was appointed by the board of directors of Masantol Rural Bank after his father’s resignation as its president.

A few month[] thereafter, he allegedly discovered that one of the bank’s assets consisting of 250 square meters house and lot in Kalookan City was sold without proper bidding by its manager Jesus B. Manansala to Jesus Carlo Gerard M. Viray, a minor born February 2, 1969 during the transaction on May 22, 1987.  The deed of absolute sale was notarized by the respondent who is not only the father of the buyer minor but also a stockholder and legal counsel of the vendor bank and was not duly commissioned as notary public as of that date.

Complainant further alleged that the said minor vendee wasn’t capable to buy the said property at its value of FOUR HUNDRED THOUSAND PESOS (P400,000.00) but his parents Atty. and Mrs. Venancio Viray, respondent herein [sic].  Being a minor he must [have been] represented by a guardian in the said transaction.  After the title was allegedly issued in the name of the minor vendee Jesus Carlo [M.] Viray, the same title was allegedly used by Respondent and his wife in mortgaging the property to Crown Savings and Loan Association for THREE HUNDRED THOUSAND PESOS (P300,000.00) on July 15, 1991 both by virtue of Special Powers of Attorney annotated at the back of the TCT No. 362813 PR 9907.  The annotation of the cancellation of the THREE HUNDRED THOUSAND PESOS (P300,000.00) loan in … favor of Crown Savings and Loan Association under entry number 1226 was allegedly entered in the notarial registry of the Respondent for 1991 when he wasn’t commissioned as notary public.

16

The aforesaid acts of Respondent allegedly constitute not only unprofessional and unethical misconduct unbecoming of a lawyer but also gross and serious malpractice which justifies disbarment.

Respondent for his part alleged in his comment that complainant holds no position at the Masantol Rural Bank Inc.  [i]n 1987 and 1997, but is facing criminal charges for having plundered the said bank of millions of pesos and [for] trespass to dwelling; while his father is facing a case before the Securities and Exchange Commission.  The sale of the lot by the Masantol Rural Bank Inc. to his son was allegedly done in good faith all the formalities required by law [were] properly complied with and the complaint from all indications is a leverage in persuading him into a possible compromise.

From 1965 to date Respondent alleged that he was always commissioned as notary public and the fact that Pampanga is under several feet of floodwaters, he could not annex all the needed documents to support the allegations.  According to Respondent, there was no year in his practice of law that he was not commissioned as notary public.  In fact, in the alleged documents he had PTR for that purpose [, and] he would not [have obtained] a commission without the PTR.

After going over the records of this case, the Undersigned noted that although both parties were required to submit their respective memorand[a], only complainant complied with the order.

Complainant submitted certification and the respective orders of the Clerk of Court and presiding judges … in support of his contention, and previous certification issued by the Clerk of Court of Pampanga to the effect that Respondent Atty. Venancio Viray had been commissioned to act as notary public for the said province on January 2, 1981 to December 31, 1982; January 10, 1983 to December 31, 1984; and January 8, 1995 to December 31, 1996 and had no record of any notarial reports.  These therefore negate respondent’s allegation that he [has been] commissioned as notary public since 1965 to the present.

Complainant likewise submitted a copy of the Resolution which dismissed the cases filed against the Complainant and his father and the xerox copy of the TCT No. 362813 PR 9907 where the special power of attorney and the annotations for the cancellation of mortgage showed inscription of the same in the notarial register of Venancio Viray on June 4, 1991.  Nowhere from the records and evidence[] submitted was there any proof that Respondent was commissioned as notary public in 1987 and 1991, the years the Absolute Deed of Sale was notarized by Respondent as appearing to be May 22, 1987 and the inscription for cancellation of mortgage on the dorsal side of TCT 362813 as June 4, 1991 [sic].

The respondent’s contention that he had a PTR for all the documents he prepared is only an indication that the Professional Tax Receipt is a license for him to engage in the practice of his profession as a lawyer but not a commission for him to act as notary public.

Inasmuch as Respondent was not able to counteract the averments of Complainant which were duly supported with evidence[], it is apparent that Respondent violated the provisions of the notarial law by having affixed his official signatures to the aforesaid documents with the intent to impart the appearance of notarial authenticity thereto when … in fact as of those dates 1987 and 1991 he was not commissioned as notary public.

In view of the foregoing, it is respectfully recommended that if Respondent is presently commissioned as notary public, the same should be revoked, and [he should] not be granted any commission as notary public up to December 31, 2002.

On 5 November 1998, the Board of Governors of the Integrated Bar promulgated Resolution No. XIII-98-196 adopting the Report of the Investigating Commissioner and recommending that respondent’s commission as a notary public be revoked and that respondent be suspended from the practice of law for three months.

We concur with the finding of the Investigating Commissioner that respondent Atty. Venancio Viray did not have a commission as notary public in 1987 and 1991 when he notarized the assailed documents.  Respondent knew that he could not exercise the powers or perform the duties of a notary public unless he was duly appointed as such pursuant to the Notarial Law (Chapter 11, Title IV, Book I, Revised Administrative Code).  He tried to impress upon the investigating commissioner that since “1965 to date” he has always been commissioned as a notary public.  Yet, he was unable to rebut complainant’s evidence that he was not so commissioned for the years in question.

We have emphatically stressed that 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 the 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.  A notarial document is by law entitled to full faith and credit upon its face.  For this reason, notaries public must observe with utmost care the basic requirements in the performance of their duties.  (Maligsa v. Cabanting, 272 SCRA 408, 413 [1997]; Arrieta v. Llosa, 282 SCRA 248, 252-253 [1997]).

17

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 without such commission is a violation of the lawyer’s oath to obey the laws, more specifically, the Notarial Law.  Then, too, by making it appear that he is duly commissioned when he is not, he is, for all legal intents and purposes, indulging in deliberate falsehood, which the lawyer’s oath similarly proscribes.  These violations fall squarely within the prohibition of Rule 1.01 of Canon 1 of the Code of Professional Responsibility, which provides:  “A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.”

By such misconduct as a notary public, the lawyer likewise violates Canon 7 of the same Code, which directs every lawyer to uphold at all times the integrity and dignity of the legal profession.  Elaborating on this, we said in Maligsa v. Cabanting (supra):

A lawyer brings honor to the legal profession by faithfully performing his duties to society, to the bar, to the courts and to his clients.  To this end a member of the legal fraternity should refrain from doing any act which might lessen in any degree the confidence and trust reposed by the public in the fidelity, honesty and integrity of the legal profession.  (Citing Marcelo v. Javier, 214 SCRA 1 [1992]).

What aggravated respondent’s unlawful notarization in 1987 was the fact that the transaction involved was in favor of his son, who was then only eighteen years old and, therefore, a minor.  Under Article 402 of the Civil Code, which was the governing law as of 22 May 1987 when the said transaction was made, the age of majority was twenty-one years.  Republic Act No. 6809, which reduced the age of majority to eighteen years was approved only on 13 December 1989 and became effective two weeks after publication in two newspapers of general circulation.

Needless to state, respondent cannot escape from disciplinary action in his capacity as a notary public and as a member of the Philippine Bar.

However, the penalty recommended by the Board of Governors of the Integrated Bar of the Philippines is too light.  Respondent must be barred from being commissioned as a notary public for three (3) years, and suspended from the practice of law for also three (3) years.

WHEREFORE, the Court hereby adopts the findings and conclusions of Investigating Commissioner Lydia A. Navarro, which the Board of Governors of the Integrated Bar of the Philippines adopted and approved, but MODIFIES the penalty recommended by the said Board of Governors.  As modified, respondent ATTY. VENANCIO VIRAY is hereby BARRED from being commissioned as notary public for THREE (3) years and his present commission, if any, is revoked, and SUSPENDED from the

practice of law also for THREE (3) years, effective upon receipt of a copy of this Resolution.

SO ORDERED.

A.C. No. 6492. November 18, 2004MELANIO L. ZORETA, complainant, vs. ATTY. HEHERSON ALNOR G. SIMPLICIANO, respondent

CHICO-NAZARIO, J.:

This is a complaint for disbarment filed against Atty. Heherson Alnor G. Simpliciano for allegedly notarizing several documents during the year 2002 after his commission as notary public had expired.

Complainant Melanio L. Zoreta alleged that on 02 August 2001, he filed before Branch 4 of the Regional Trial Court of Antipolo City, a complaint for Breach of Contract and Damages against Security Pacific Assurance Corporation (SPAC) dated 22 June 2001 due to the latter’s failure to honor SPAC’s Commercial Vehicle Policy No. 94286, where respondent Atty. Heherson Alnor G. Simpliciano was the latter’s counsel.  In said cases, respondent who was not a duly commissioned Notary Public in 2002 per Certifications[1] issued by the Clerk of Court of Quezon City Mercedes S. Gatmaytan, performed acts of notarization, as evidenced by the following documents, viz:

1.       Verification[2] executed by Aurora C. Galvez, President of defendant SPAC, subscribed and sworn to before Atty. Heherson Alnor G. Simpliciano on February 18, 2002 as alleged notary public, in Quezon City and attached to defendants’ Very Urgent Motion (1) To Lift the Order of Default; and (2) To defer Plaintiff’s Presentation of Evidence Ex-Parte dated February 18, 2002;

2.       Affidavits of Merit[3] signed by Aurora Galvez attached to the pleading mentioned in par. 1 hereof, likewise notarized by Atty. Heherson Alnor G. Simpliciano as alleged “Notary Public” in Quezon City, on February 18, 2002;

3.       The Affidavit of Service[4] signed by a certain Renee L. Ramos, a Legal Assistant in Simpliciano and Capela Law Office, and subscribed and sworn to before Atty. Heherson Alnor G. Simpliciano on February 19, 2002 as alleged “Notary Public” in Quezon City.  Said Affidavit of Service was attached to the pleading mentioned in Par. 1 hereof;

4.       The Affidavit of Service[5] of one Nestor Abayon, another Legal Assistant of Simpliciano and Capela Law Office, subscribed and sworn to before Atty. Heherson Alnor G. Simpliciano on 01 April 2002 at Quezon City, as “Notary Public.” This Affidavit of Service was attached to defendants’ Motion (1)  For Reconsideration of the Order

18

dated 05 March 2002; and (2)  To allow defendants to Present Defensive Evidence dated 27 March 2002.

5.       The Verification and Certification Against Forum Shopping[6] signed this time by a certain Celso N. Sarto, as affiant, “notarized” on 16 August 2002 by Atty. Heherson Alnor G. Simpliciano.  This Verification and Certification Against Forum Shopping was attached to defendant’s Motion For Extension of Time To File Petition Under Rule 65 before the Court of Appeals;

6.       The Affidavit of Service[7] signed by a certain Joseph B. Aganan, another Legal Assistant in Simpliciano and Capela Law Office subscribed and sworn to before Atty. Heherson Alnor G. Simpliciano as “Notary Public” on 16 August 2002.  This Affidavit of Service signed by Aganan was also attached to that Motion For Extension of Time To File Petition under Rule 65 before the Court of Appeals;

7.       Verification and Certification Against Forum Shopping[8] executed by one Celso N. Sarto, alleged Executive Vice President and Claims Manager of defendant SPAC and “notarized” by Atty. Heherson Alnor G. Simpliciano on 19 August 2002, attached to the Petition for Certiorari and Prohibition, etc., filed before the Court of Appeals; and

8.       Affidavit of Service[9] signed by a certain Joseph B. Aganan, Legal Assistant of Simpliciano and Capela Law Office, subscribed and sworn to before Atty. Heherson Alnor G. Simpliciano on 19 August 2002, as alleged ”Notary Public” for Quezon City with notarized commission to expire by December 31, 2002.

On 23 April 2003, the Integrated Bar of the Philippines (IBP) of Pasig required respondent Atty. Simpliciano to submit his answer within fifteen (15) days from receipt of the Order.[10]

On 26 May 2003, counsel of respondent filed an ex-parte motion[11] for extension of time to file answer.

On 30 June 2003, petitioner filed a motion[12] to resolve the complaint after the extension requested by respondent ended on 30 May 2003, and almost a month had lapsed from 30 May 2003, with no comment or pleading filed by respondent.

On 17 July 2003, Commissioner Lydia A. Navarro issued an order,[13] giving respondent a last chance to file his answer, otherwise the case shall be deemed submitted for resolution.  Respondent failed to do so.

Commissioner Lydia A. Navarro submitted her report and recommendation[14] dated 12 February 2004, pertinent portions of which read:

A careful examination and evaluation of the evidence submitted by the petitioner showed that respondent notarized up to Document No. 590, Page 118, Book No. II,

Series of 2002 and his commission expires December 31, 2002 which referred to the Affidavit of Service signed and executed by Joseph B. Aganan Legal Assistant of Simpliciano and Capela Law Office subscribed and sworn to before Notary Public Heherson Alnor G. Simpliciano whose commission expires December 31, 2002.

All the other documents aforementioned were entered in Book II of respondent’s alleged notarial book which reflected that his commission expires on December 31, 2002 as notary public.

However, the Clerk of Court of Quezon City in her certification dated October 4, 2002 stated that as per records on file with their office respondent was not duly commissioned notary public for and in Quezon City for the year 2002.

Another certification issued by the Clerk of Court of RTC Quezon City dated April 15, 2003 showed that as per records on file with their office respondent was commissioned notary public for and in Quezon City from January 14, 2000 to December 31, 2001 and for the year 2002 and 2003 he did not apply for notarial commission for Quezon City.

It is evident from the foregoing that when respondent notarized the aforementioned documents, he was not commissioned as notary public, which was in violation of the Notarial Law; for having notarized the 590 documents after the expiration of his commission as notary public without having renewed said commission amounting to gross misconduct as a member of the legal profession.

Wherefore, in view of the foregoing the Undersigned respectfully recommends the revocation of respondent’s commission as notary public permanently if he is commissioned as such at present and his suspension from the practice of law for a period of three (3) months from receipt hereof furnishing the IBP Chapter where he is a registered member a copy hereof for implementation should this recommendation be approved by the Honorable members of the Board of Governors.[15]

Per Resolution No. XVI-2004-236 dated 16 April 2004, the Board of Governors modified the report and recommendation of Commissioner Navarro of suspension of three (3) months to a suspension of six (6) months.[16]

We concur in the finding of the Investigating Commissioner that respondent Atty. Simpliciano did not have a commission as notary public in 2002 when he notarized the assailed documents as evidenced by the two (2) certifications issued by the Clerk of Court of the Regional Trial Court of Quezon City dated 04 October 2002.[17] Records also show, and as confirmed by IBP Commissioner Navarro, that as of 02 August 2002, respondent had already notarized a total of 590 documents.[18] The evidence presented by complainant

19

conclusively establishes the misconduct imputed to respondent.

The eight (8) notarized documents for the year 2002 submitted by complainant, consisting of affidavits of merit, certifications and verifications against non-forum shopping, and affidavits of service, were used and presented in the Regional Trial Court of Antipolo City, Branch 74, in Civil Case No. 01-6240, and  in respondent’s petition for certiorari filed in the Court of Appeals.

Against the evidence presented by complainant, respondent did not even attempt to present any evidence.  His counsel filed an ex-partemotion for extension to file answer, which was granted, but no answer was forthcoming.  Still, Hearing Commissioner Lydia A. Navarro gave respondent a last chance to file his answer; which was again unheeded.  Thus, respondent was unable to rebut complainant’s evidence that he was not so commissioned for the year in question.  His lack of interest and indifference in presenting his defense to the charge and the evidence against him can only mean he has no strong and valid defense to offer.  Conclusively, respondent Atty. Simpliciano is not a duly commissioned Notary Public for and in Quezon City for the year 2002.

At the threshold, it is worth stressing that the practice of law is not a right but a privilege bestowed by the State on those who show that they possess, and continue to possess, the qualifications required by law for the conferment of such privilege.[19] Membership in the bar is a privilege burdened with conditions.  A lawyer has the privilege and right to practice law only during good behavior and can only be deprived of it for misconduct ascertained and declared by judgment of the court after opportunity to be heard has been afforded him.  Without invading any constitutional privilege or right, an attorney’s right to practice law may be resolved by a proceeding to suspend him, based on conduct rendering him unfit to hold a license or to exercise the duties and responsibilities of an attorney. It must be understood that the purpose of suspending or disbarring him as an attorney is to remove from the profession a person whose misconduct has proved him unfit to be entrusted with the duties and responsibilities belonging to an office of attorney, and thus to protect the public and those charged with the administration of justice, rather than to punish an attorney.[20] Elaborating on this, we said in Maligsa v. Cabanting [21]  that “[t]he bar should maintain a high standard of legal proficiency as well as of honesty and fair dealing.  A lawyer brings honor to the legal profession by faithfully performing his duties to society, to the bar, to the courts and to his clients.  To this end a member of the legal fraternity should refrain from doing any act which might lessen in any degree the confidence and trust reposed by the public in the fidelity, honesty and integrity of the legal profession.”[22] Towards this end, an attorney may be disbarred, or suspended for any violation of his oath or of his duties as an attorney and counselor, which include statutory grounds enumerated

in Section 27, Rule 138 of the Rules of Court, all of these being broad enough to cover practically any misconduct of a lawyer in his professional or private capacity.[23]

Apropos to the case at bar, it has been emphatically stressed that 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 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.  A notarial document is by law entitled to full faith and credit upon its face.  For this reason, notaries public must observe with utmost care the basic requirements in the performance of their duties.[24]

The requirements for the issuance of a commission as notary public must not be treated as a mere casual formality.  The Court has characterized a lawyer’s act of notarizing documents without the requisite commission therefore as “reprehensible, constituting as it does not only malpractice but also x x x the crime of falsification of public documents.”[25] 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.[26]

In the case of Nunga v. Viray,[27] 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.  For one, performing a notarial without such commission is a violation of the lawyer’s oath to obey the laws, more specifically, the Notarial Law.  Then, too, by making it appear that he is duly commissioned when he is not, he is, for all legal intents and purposes, indulging in deliberate falsehood, which the lawyer’s oath similarly proscribes.  These violations fall squarely within the prohibition of Rule 1.01 of Canon 1 of the Code of Professional Responsibility, which provides:  “A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.”

By such misconduct as a notary public, the lawyer likewise violates Canon 7 of the same Code, which directs every lawyer to uphold at all times the integrity and dignity of the legal profession.

On different occasions, this Court had disbarred or suspended lawyers for notarizing documents with an expired commission:

1.      In Flores v. Lozada,[28] the court disbarred a lawyer who notarized six documents such as the extrajudicial

20

partition of an estate, deed of sale with right of repurchase, and four (4) deeds of absolute sale - all involving unregistered lands, after his commission as Notary Public expired;

2.      In Joson v. Baltazar,[29] the court suspended the lawyer for three (3) months since only one (1) instance of unauthorized notarization of a deed of sale was involved.

3.      In Nunga v. Viray,[30] the court suspended the lawyer for three (3) years when he notarized an absolute deed of sale of the buyer minor, who was his son and, at the same time, he was a stockholder and legal counsel of the vendor bank, and when he entered in his notarial registry an annotation of the cancellation of the loan in favor of a certain bank, at a time when he was not commissioned as a Notary Public. What aggravated respondent’s unlawful notarization was the fact that the transaction involved was in favor of his son, who was then only eighteen years old and, therefore, a minor.

4.      In Buensuceso v. Barrera,[31] the lawyer was suspended for one (1) year when he notarized five (5) documents such as a complaint for ejectment, affidavit, supplemental affidavit, a deed of sale and a contract to sell, after his commission as Notary Public expired.

Needless to state, respondent cannot escape from disciplinary action in his capacity as a notary public and as a member of the Philippine Bar. However, the penalty recommended by the Board of Governors of the IBP must be increased. Respondent must be barred from being commissioned as a notary public permanently and suspended from the practice of law for two (2) years.

WHEREFORE, this Court hereby adopts the findings of Investigating Commissioner Lydia A. Navarro, which the Board of Governors of the Integrated Bar of the Philippines adopted and approved, but hereby MODIFIES the penalty recommended by the Board of Governors. As modified, respondent ATTY. HEHERSON ALNOR G. SIMPLICIANO is hereby BARRED PERMANENTLY from being commissioned as Notary Public.  He is furthermore SUSPENDED from the practice of law for two (2) years, effective upon receipt of a copy of this Decision.

Let copies of this Decision be furnished all the courts of the land through the Court Administrator as well as the Integrated Bar of the Philippines, the Office of the Bar Confidant, and recorded in the personal files of respondent himself.

SO ORDERED.

A.C. No. 7860             January 15, 2009

AVELINO O. ANGELES, LAURO O. ANGELES, MARIA O. ANGELES, ROSALINA O. ANGELES, CONNIE M. ANGELES, Complainants, vs. ATTY. AMADO O. IBAÑEZ, Respondent

CARPIO, J.:

The Case

This is a complaint filed by Avelino O. Angeles, Maria O. Angeles, Lauro O. Angeles, Rosalina O. Angeles, and Connie M. Angeles in representation of the deceased Loreto Angeles (collectively, complainants) against Atty. Amado O. Ibañez (respondent) for disbarment for notarizing the "Extrajudicial Partition with Absolute Sale" without a notarial commission and in the absence of the affiants.

The Facts

The facts of CBD Case No. 06-1830, as stated in the Report and Recommendation of the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP), read as follows:

II. Statement of the Complaint

Complainants ... are residents of Highway, Sapang I, Ternate, Cavite.

Respondent Atty. Amado Ibañez is a practicing lawyer who holds office at 2101 Carolina (now Madre Ignacia) St., Malate, Manila.

The lengthy and confusing narrative of what appears to be a bitter land dispute notwithstanding, it can be gleaned from the Complaint and Position Paper, and the personal clarification by the complainants themselves after questioning by the undersigned during the Mandatory Conference, that the present administrative case is limited to an "Extrajudicial Partition with Absolute Sale" which respondent Atty. Amado Ibañez allegedly notarized in the City of Manila on 18 February 1979, and entered in his Notarial Book as Doc. No. 735, p. 157 and Book No. II, Series of 1979.

The complainants denied that they executed the said document or that they ever appeared before respondent Atty. Ibañez for this purpose. They alleged that respondent Atty. Ibañez did not even have the authority to notarize the "Extrajudicial Partition with Absolute Sale" as he did not have a commission as a notary public at that time.

The complainants alleged that the respondent and his relatives are presently using the said document in judicial proceedings pending before the Regional Trial Court of Naic, Cavite to their damage and prejudice.

21

The complainants contend that respondent Atty. Ibañez’s act of notarizing the "Extrajudicial Partition with Absolute Sale" without requiring the presence of the parties thereto, and despite his alleged lack of a notarial commission, constitutes professional misconduct for which reason he should be disbarred.

In support of their allegations, the complainants attached to their Complaint and Position Paper the following documents:

1. Tax Declaration Nos. 20-004-00052, 1356, 1809 in the name of Barselisa Angeles, and Tax Declarations 198, 283, 403 and 1544, in the name of Juan Angeles.

2. Certification dated 24 March 2006 issued by the Office of the Clerk of Court of the Regional Trial Court of Manila stating that the Master List of Notaries Public shows that Atty. Amado O. Ibañez was not appointed as such for and in the City of Manila for the year 1976-1977.

3. Certification dated 28 April 2006 issued by the National Archives stating that there is no notarial record on file with the said office of Amado Ibañez, a notary public for and within the City of Manila, and it has no copy on file of an affidavit allegedly executed by Gabriel, Estebana, Eutiquio, Gloria, Leocadio, Jovita, Samonte, and Renato, all surnamed Angeles, ratified sometime in 1977 by the said notary public and acknowledged as Doc. No. 202, Page No. 42, Book No. 1, Series of 1977.

4. Certification dated 11 April 2006 issued by the National Archives stating that there is no notarial record on file with the said office of Amado Ibañez, a notary public for and within the City of Manila, and it has no copy on file of a partition w/renunciation [sic] and affidavit allegedly executed by and among Gabriela, Estebana, Eutiquio, Gloria, Leocadio, Jovita, Samonte and Renato, all surnamed Angeles, ratified sometime in 1977 by the said notary public and acknowledged as Doc. No. 201, Page No. 41, Series of 1977.

5. Two (2) versions of a "Partihang Labas sa Hukuman at Ganap na Bilihan" dated 28 March 1978, executed by and between Gloria Angeles, Leocadio Angeles and Gabriela, Estebana, Eutiquio, Jovita, Samonte and Renato, all surnamed Torres.

6. Flow chart showing the history of Tax Declaration No. 403, from 1948 to 1974.

7. Application for Free Patent over Cadastral Lot No. 460-C of the Ternate Cadastral Sketching (CADS-617-D), SWO-04-000598 and Cadastral Lot No. 460-B, executed by Atty. Amado O. Ibañez.

8. Certification dated 24 March 2006 issued by the Office of the Clerk of Court of the Regional Trial Court of Manila

stating that the Master List of Notaries Public shows that Atty. Amado O. Ibañez was not appointed as such for and in the year 1978-1979.

9. "Extrajudicial Partition with Absolute Sale" (with various marginal notes made by the complainants) notarized by Atty. Amado Ibañez in the City of Manila on 18 February 1979, and entered in his Notarial Book as Doc. No. 735, p. 147 and Book No. II, Series of 1979.

10. Real Estate Mortgage executed by Flora Olano in favor of the Rural Bank of Naic, Inc., in the amount of Php350.00, covering property located in Zapang, Ternate, Cavite and described in Tax Declaration No. 1657-1658.

11. Certification dated 12 January 2007 issued by the Office of the Clerk of Court of the Regional Trial Court of Trece Martires City stating that Atty. Amado O. Ibañez was not duly commissioned as a notaryt [sic] public for and within the Province of Cavite in the year 1979, and that it has no copy in its records of an "Extrajudicial Partition with Absolute Sale" allegedly notarized by Atty. Amado Ibañez on 18 February 1979 and entered in his Notarial Book as Doc. No. 735, p. 147 and Book No. II. Series of 1979.

III. Respondents’ Position/Defense

In his Motion to Dismiss and Position Paper, respondent Atty. Ibañez contended that the complainants are guilty of forum-shopping inasmuch as they had previously filed the same complaint, docketed as Administrative Case No. 3581, which was eventually dismissed by then IBP CBD Comm. Victor Fernandez.

The respondent admitted that he notarized the "Extrajudicial Partition with Absolute Sale" but clarified that he did so as Notary Public of the Province of Cavite, with a notarial commission issued by the Regional Trial Court of Cavite, Branch 1, Trece Martires City. He explained that the designation of "Manila" as the place of execution of the said document was a mistake of his former legal secretary, who failed to correct the same through oversight.

Respondent Atty. Ibañez alleged that he notarized the "Extrajudicial Partition with Absolute Sale" in his capacity as the official Notary Public of Puerto Azul, and the same was actually prepared and typewritten by complainant Rosalina Angeles for a consideration of Php20,000.00 as evidenced by a photocopy of Commercial Bank & Trust Co. Cashier’s Check dated 31 January 1979 on file with the Puerto Azul office, as well as an "Exclusive Authority" attached to the said document. The respondent also alleged that complainant Rosalina Angeles was at that time employed as a typist at Puerto Azul and that she enjoyed the trust and confidence of the Puerto Azul management.

22

The respondent stated that the land subject of the sale was surveyed for Mrs. Trinidad Diaz-Enriquez by the late Angel Salvacion, the official surveyor of Puerto Azul, and was submitted to the Bureau of Lands for verification and approval and was approved on 14 February 1985 as CCN No. 04-000038-D. Respondent Atty. Ibañez alleged that the property is presently in the actual possession of Puerto Azul, with former Sapang I Bgy. Captain Johnny Andra as tenant.

The respondent alleged that Puerto Azul’s ownership of the property is anchored on the "Extrajudicial Partition with Absolute Sale," which is in turn the subject of a case, CA GR SP No. 2006-1668, which is presently pending in the Court of Appeals.

Respondent Atty. Ibañez alleged that a defect in the notarization of a document of sale does not invalidate the transaction, and he stated that his failure to require the presence of the parties to the "Extrajudicial Partition with Absolute Sale" is wholly justified because of the assurance of complainant Rosalina Angeles that the signatures appearing in the said document were indeed those of her co-heirs. The respondent also alleged that almost all the complainants submitted their residence certificates, the numbers of which were recorded in the acknowledgement portion of the document.

The respondent denied that he had committed any crime when he notarized the "Extrajudicial Partition with Absolute Sale" because the offenses in the Revised Penal Code are "mala in se" where the intention to commit the crime is required, which is lacking in his case. The respondent added that there is regularity in the performance of his duty as the official notary public of Puerto Azul.

The respondent pointed out that nearly twenty eight (28) years have lapsed without anyone questioning not only the sale of the said property, but Puerto Azul’s long possession of the same as well. He alleged that the complainants are now denying the sale because they want to make it appear that they have land within or adjoining a quarry site which they have invaded and taken over. He reiterated that the defect in his notarization of the sale document notwithstanding, the sale remains valid.

By way of his defense, respondent Atty. Ibañez submitted the following documents:

1. Photocopy of a Supreme Court Resolution dated 31 July 2000 denying the complainants’ motion for reconsideration in Administrative Case No. 3581, entitled "Rosalina Angeles, et al. vs. Atty. Amado Ibañez"

2. Photocopy of IBP Board of Governors Resolution dated 27 June 1999, adopting and approving the Report and

Recommendation of Comm. Victor Fernandez dismissing Administrative Case No. 3581, entitled "Rosalina Angeles, et al. vs. Atty. Amado Ibañez"

3. Photocopy of a Counter-Affidavit filed by Atty. Amado Ibañez in OMB-1-C 06-0368-C/OMB-L C 06-0272-C, entitled "Mario O. Angeles vs. Sony Peji, et al.,"

4. "Extrajudicial Partition with Absolute Sale" notarized by Atty. Amado Ibañez in the City of Manila on 18 February 1979, and entered in his Notarial Book as Doc. No. 735, p. 147 and Book No. II, Series of 1979, with attached "Exclusive Authority" executed by Maria Angeles, Flora Angeles, Lauro Angeles and Avelino Angeles in favor of Rosalina Angeles.1

The IBP’s Report and Recommendation

In a Report2 dated 21 January 2008, IBP Commissioner for Bar Discipline Rico A. Limpingco (Commissioner Limpingco) found that respondent notarized the "Extrajudicial Partition with Absolute Sale" in the absence of affiants and without a notarial commission. Thus:

As stated earlier, the present administrative complaint may seem at first to be one for falsification, land grabbing, etc., but a closer examination of the complainants’ allegations coupled with their own verbal confirmation during the Mandatory Conference, shows that the complainants are actually accusing respondent Atty. Amado Ibañez of notarizing an "Extrajudicial Partition with Absolute Sale" in the City of Manila on 18 February 1979 (entered in his Notarial Book as Doc. No. 735, p. 147 and Book No. II, Series of 1979) without requiring the presence of the parties thereto, and further, for notarizing the said document even if he did not have a notarial commission at that time.

The respondent contends that the complainants have previously filed the same administrative complaint against him, docketed as Administrative Case No. 3581, and that the same was eventually dismissed by the Supreme Court. He alleged that as in this prior complaint, the present case must likewise be dismissed for forum shopping.

It appears, however, that Administrative Case No. 3581 is entirely different and distinct from the present complaint. A reading of the photocopy of IBP Board of Governors Resolution dated 27 June 1999, adopting and approving the attached Report and Recommendation of Comm. Victor Fernandez dismissing Administrative Case No. 3581, entitled "Rosalina Angeles, et al. vs. Atty. Amado Ibañez" (as attached by the respondent himself in his Motion to Dismiss) shows that this earlier complaint pertains to herein respondent’s alleged "land-grabbing" of two (2) parcels of land in Bgy. Zapang, Ternate, Cavite. As stated in the report authored by then Commissioner

23

Victor Fernandez, the earlier administrative case relates to the sale of the said property to the Sps. Danilo Andra and Angela Olano, and its subsequent sale to the respondent, Atty. Amado Ibañez, who for his part later applied for, and was granted, free patent titles over the same. Branding the transaction as land-grabbing, the complainants filed an action in court to recover possession and annul the titles but the case was eventually dismissed by the Supreme Court for lack of merit. The complainants then filed the same complaint with the Office of the Ombudsman, the Dept. of Justice, the Bureau of Internal Revenue and the Supreme Court, which eventually referred the matter to the IBP. In his report, then-Commissioner Victor Fernandez declared that the complainants were engaged in forum-shopping, reasoning that unsuccessful in their effort to obtain the result they desire from the courts, they would attempt to refile their dismissed action under the guise of an administrative case.

The present administrative complaint may be in one way or another related to the alleged land-grabbing which was the subject of Administrative Case No. 3581, but it pertains to an altogether different matter. In the present complaint, respondent Atty. Ibañez is not being accused of land-grabbing or falsification, but rather, for misconduct in notarizing a document.

We would point out that respondent Atty. Amado Ibañez admitted that he did not require the presence of the parties to the document because he was assured as to the authenticity of their signatures. We would also stress that the respondent never denied that he notarized the "Extrajudicial Partition with Absolute Sale," but claimed that he did so not in Manila as stated in document, but in Cavite where he claimed to be a commissioned notary public; he attributed the mistake to his legal secretary, and he insisted that the sale remained valid despite the defects in notarization.

That is not the point, however. The validity of the transaction covered by the "Extrajudicial Partition with Absolute Sale" is not at issue in this administrative case for that is a matter for the courts to adjudicate, if they have not already done so.

As it is, no less than the respondent himself categorically admitted that he notarized the "Extrajudicial Partition with Absolute Sale" in the absence of the parties thereto. To make matters worse, the certifications submitted by the complainants clearly indicate that respondent Atty. Amado Ibañez didnot have any notarial commission whether for Manila or Cavite, in 18 February 1979 when he notarized the subject document. The respondent, for his part, has been completely unable to proffer any kind of proof of his claim that he had a commission as a notary public for and in the Province of Cavite in 1979, or of his submission of notarial reports and notarial register during the said period.

While the case of respondent Atty. Amado Ibañez is not perfectly identical to the facts and circumstances obtaining in these cases, his act of notarizing a document without the necessary commission is nonetheless clear and undeniable. Guided by the foregoing rulings of the Supreme Court vis-a-vis the facts in the present complaint, it is therefore respectfully recommended that respondent Atty. Amado Ibañez:

1. Be barred from being commissioned as a notary public for a period of two (2) years, and in the event that he is presently commissioned as a notary public, that his commission be immediately revoked and suspended for such period; and

2. Be suspended from the practice of law for a period of one (1) year.

Respectfully submitted.3 (Emphasis added)

In a Resolution4 dated 6 February 2008, the IBP Board of Governors adopted and approved the Report and Recommendation of Commissioner Limpingco. The Office of the Bar Confidant received the notice of the Resolution and the records of the case on 10 April 2008.

Respondent filed a supplemental position paper on 28 May 2008 before the IBP Board of Governors. In a Resolution dated 29 May 2008, the IBP Board of Governors referred respondent’s submission to the Office of the Bar Confidant. Respondent attached photocopies of the following: respondent’s Petition for Commission as Notary Public for and within the Province of Cavite filed before the said Court on 16 February 1978; respondent’s commission as Notary Public for the province of Cavite for the term 1978 until 1979 issued by Executive Judge Pablo D. Suarez on 21 February 1978; and respondent’s oath of office as notary public dated 21 February 1978.

The Ruling of the Court

We sustain the findings of the IBP and adopt its recommendations with modification. Respondent violated his oath as a lawyer and the Code of Professional Responsibility when he notarized the "Extrajudicial Partition with Absolute Sale" in the absence of the affiants.

Respondent Notarized the "Extrajudicial Partition with Absolute Sale" in the Absence of the Affiants

Respondent himself admits that he merely relied on the representation of Rosalina Angeles that the signatures appearing on the "Extrajudicial Partition with Absolute Sale" subject of the present complaint are those of her co-heirs.5 Respondent claims that he reposed confidence upon Rosalina Angeles because she is his confidential secretary. Unfortunately for respondent, he cannot

24

exculpate himself from the consequences of his recklessness and his failure to comply with the requirements of the law by relying on his confidential secretary.

Time and again, we have reminded lawyers commissioned as notaries public that the affiants must personally appear before them. Section 1 of Public Act No. 2103, or the Notarial Law, provides:

Sec. 1. (a) The acknowledgement shall be before a notary public or an officer duly authorized by law of the country to take acknowledgements of instruments or documents in the place where the act is done. The notary public or the officer taking the acknowledgement shall certify that the person acknowledging the instrument or document is known to him and that he is the same person who executed it, acknowledged that the same is his free act and deed. The certificate shall be made under the official seal, if he is required by law to keep a seal, and if not, his certificate shall so state.

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

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

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

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

The physical presence of the affiants enables the notary public to verify the genuineness of the signatures of the acknowledging parties and to ascertain that the document is the parties’ free act and deed.6

Notarization of a private document converts such document into a public one, and renders it admissible in court without further proof of its authenticity. Courts, administrative agencies and the public at large must be able to rely upon the acknowledgment executed by a notary public and appended to a private instrument. Notarization is not an empty routine; to the contrary, it engages public interest in a substantial degree and the protection of that interest requires preventing those who are not qualified or authorized to act as notaries public from imposing upon the public and the courts and administrative offices generally.7

Under the facts and circumstances of the case, respondent’s notarial commission should not only be suspended but respondent must also be suspended from the practice of law.

WHEREFORE, the Court finds respondent Atty. Amado O. Ibañez GUILTY of notarizing the "Extrajudicial Partition with Absolute Sale" in the absence of the affiants. Accordingly, the Court SUSPENDS him from the practice of law for one year, REVOKES his incumbent notarial commission, if any, and PROHIBITS him from being commissioned as a notary public for one year, effective immediately, with a stern warning that a repetition of the same or similar offense shall be dealt with more severely.

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

SO ORDERED.

[AC. No. 3849.  June 25, 2003]

FELICIDAD VDA. DE BERNARDO, complainant, vs. ATTY. JOSE R. RESTAURO, respondent.

AZCUNA, J.:

Complainant Felicidad Vda. de Bernardo (married to the late Alberto Bernardo) and Marcelino G. Soriano (married to Hildegarda Mejia) were co-owners of a parcel of land, with an area of 561 square meters, situated in Davao City, and covered by TCT No. T-39100.[1]

On June 8, 1992, complainant filed a petition for the  disbarment or indefinite suspension of respondent Atty. Jose R. Restauro of Davao City for malpractice, deceit and grave misconduct.

Complainant averred that on July 19, 1990, respondent prepared and notarized a Special Power of Attorney[2] making it appear that she, Felicidad G. Soriano (complainant’s full maiden name), her deceased spouse, Alberto Bernardo and Hildegarda Mejia appointed Marcelino G. Soriano, Jr. as their attorney-in-fact to sell a parcel of land situated in Davao City covered by TCT No.  T-39100 when they neither appeared nor executed and acknowledged said document before respondent. The Special Power of Attorney was entered in the Notarial Register of respondent as Doc. No. 380, Page No. 76, Book No. XIX, Series of 1990.

Complainant further alleged that her husband, Alberto Bernardo, could not have appeared and executed said Special Power of Attorney before respondent on July 19, 1990 since her husband died on January 30, 1980 at the Pangasinan Medical Center, as evidenced by a death certificate.[3]  Hence, when the Special Power of Attorney was executed, her husband was dead for more than ten years.

Complainant also alleged that to recover her share of the property which was sold to a third party, she hired

25

the services of her counsel whom she promised to pay 25 percent (on a contingent basis) of the value of her share.

Complainant prayed that respondent be disbarred or indefinitely suspended, and that he be ordered to pay the value of her pro indiviso half share of said property, the attorney’s fees and the costs of the suit.

In his Answer, respondent asserted that he would not have known the names of Felicidad Soriano, Alberto Bernardo and Hildegarda Mejia if said persons did not go to his office to request that he prepare the Special Power of Attorney.  Moreover, he stated that he would not have notarized the document if they did not appear before him and acknowledge that it was their act and deed. He also mentioned that said persons brought with them the title (TCT No. T-39100) to the property.

Respondent further averred that a living Alberto Bernardo appeared before him in Davao City and signed the Special Power of Attorney at the time of its execution.  He also stated that Pangasinan and Davao City are far apart; hence, events happening in either places (alluding to the death of complainant’s husband, Alberto Bernardo) are not always known to everybody. Atty. Restauro prayed for the dismissal of the complaint.

On September 14, 1992, this case was referred by the Court to the Integrated Bar of the Philippines for investigation, report and recommendation.

The Investigating Commissioner set the case for hearing on November 16, 1993.  During the hearing, only complainant and her counsel were present.  Complainant testified and identified the documents mentioned in her Complaint.  Thereafter, she submitted a Formal Offer of Evidence dated November 19, 1993.

On November 18, 1993, the Commissioner received from respondent a Manifestation dated November 9, 1993 stating that he could not attend the hearing set on November 16, 1993 due to previous commitments and that if the hearing could not be postponed to a later date,  he was waiving  his right to attend it.

In his Comments/Objections on Complainant’s Formal Offer of Evidence, respondent stated that he acted in good faith when he prepared the Special Power of Attorney and that the persons involved were all present, otherwise, the execution of said document would not have been possible.  He prayed for the non-admission of the evidence submitted by complainant.

As directed by the Commissioner, complainant filed a Memorandum.  But respondent did not.

In her Memorandum, complainant stated that whoever appeared before respondent at the time of the execution of the Special Power of Attorney and claimed to be her, Felicidad G. Soriano, and her deceased husband, Alberto Bernardo, were impostors. According to complainant, respondent could have been in good faith when the supposed Alberto Bernardo went to his office

for the first time for the preparation and notarization of the Special Power of Attorney.  Nevertheless, after complainant, through  her counsel, had informed respondent on May 6, 1992 (nearly 2 years after the execution of said Special Power of Attorney) that the persons who appeared before him were impostors, respondent was already in bad faith for not contacting said persons and for not retracting the unauthorized Special Power of Attorney.

In her report, the Investigating Commissioner found that it was not satisfactorily established that respondent was a party to the fraudulent execution of said Special Power of Attorney. Respondent’s participation was only in the preparation and notarization of said document based on the parties’ identification papers and their representations that they were the persons who they claimed to be. The notarial acknowledgment of said document showed that the alleged impostors presented their Community Tax Certificates bearing the names of complainant Felicidad G. Soriano and her deceased husband, Alberto Bernardo.

The Investigating Commissioner also stated, thus:

It is noteworthy to stress here that a  notary public is duty bound to require the person executing a document to be personally present, to swear before him that he is that person and ask the latter if he has voluntarily and freely executed the same; also to require him to sign in his presence if it is an affidavit or any other sworn statement.  But if it is a document with an acknowledgment, it is sufficient that the party thereto personally appears before the notary public and acknowledges that he was the one who executed such document.  It is enough that the Notary Public requires the party to produce identification papers like his Community Tax Certificate, and I.D.  The Notary Public is not obliged to go beyond the identification papers/documents presented and to investigate further to ascertain the real identity of the executing party.  What suffices is for the Notary Public to determine if he has the required identification papers.  If this were not the rule, no lawyer or any other person authorized to act as Notary Public would accept the job and perform its functions.

However, the foregoing rule does not disregard the nature of the corresponding responsibilities of a Notary Public.  His office is [imbued] with public trust and public service.  He is obliged to exercise due diligence in ascertaining the true identity of the person executing a document.  In this particular case, the Notary Public should have exerted utmost efforts to determine the real identity of the persons executing the Special Power of Attorney considering that it was a document which authorizes a certain Marcelino G. Soriano, Jr. to sell one half of the pro-indiviso share of the complainant over a parcel of land situated in Davao City.

26

On the basis of her investigation, the Commissioner recommended the following:

Based on the foregoing, it is respectfully recommended that respondent Atty. Restauro be penalized for his aforementioned acts and negligence and that the penalty of reprimand be meted out on him. It is further recommended that his Commission as Notary Public be revoked for an indefinite period until the time that he will be able to show to the Honorable Supreme Court that he again deserves to be allowed to act as Notary Public in his place.

Subsequently, the IBP Board of Governors adopted the following Resolution of August 3, 2002:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution/Decision as Annex “A”; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering respondent’s failure to exercise utmost diligence in the performance [of] his functions as Notary Public and for his disregard without justifiable reason of the Orders of the Commission, Respondent is hereby REPRIMANDED with REVOCATION of his Commission as Notary Public for an indefinite period until the time that he will be able to demonstrate to the court that he again deserves to be allowed to act as Notary Public.

On January 13, 2003, this Court noted the aforesaid Resolution.

The principal function of a notary public is to authenticate documents.[4]  When a notary public certifies to the due execution and delivery of a document under his hand and seal, he gives the document the force of evidence.[5]  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.[6]  A notarial document is by law entitled to full faith and credit upon its face.[7] Courts, administrative agencies and the public at large must be able to rely upon the acknowledgment executed before a notary public and appended to a private instrument.[8]  Hence, a notary public must discharge his powers and duties, which are impressed with public interest,[9] with accuracy and fidelity.

The Court agrees with the Integrated Bar of the Philippines that in this case, respondent, as notary public, should have exercised utmost diligence in ascertaining the true identity of the persons executing the said Special Power of Attorney considering that it authorized

Marcelino G. Soriano, Jr. to sell the pro indiviso half share of complainant in the land covered by TCT No. T-39100.

However, the act of respondent does not warrant his disbarment or indefinite suspension.  Considering all the circumstances in this case, particularly the absence of any evidence of fraud involved, this Court finds a suspension of six (6) months as notary public sufficient. Respondent, and for that matter, all notaries public, are hereby cautioned to be very careful and diligent in ascertaining the true identities of the parties executing a document before them, especially when it involves disposition of a property, as this Court will deal with such cases more severely in the future.

WHEREFORE, respondent Atty. Jose R. Restauro is hereby SUSPENDED as notary public for six (6) months for failure to exercise utmost diligence in the performance of his functions as notary public, and WARNED that a similar incident in the future shall be dealt with more severely.

No costs. SO ORDERED.

[A.C. No. 3324. February 9, 2000]

PASTOR EDWIN VILLARIN, PACIANO DE VEYRA, SR., and BARTOLOME EVAROLO, SR., complainants, vs. ATTY. RESTITUTO SABATE, JR., respondent.

R E S O L U T I O N

BUENA, J.:

Complainants Pastor Edwin Villarin, Paciano de Veyra, Sr. and Bartolome Evarolo, Sr. prays that administrative sanctions be imposed on respondent Atty. Restituto Sabate, Jr. for not having observed honesty and utmost care in the performance of his duties as notary public.

In their Affidavit-Complaint,[1] complainants alleged that through their counsel Atty. Eduardo D. Estores, they filed a complaint against Paterno Diaz, et al. under SEC Case No. DV091, Region XI Davao Extension Office, Davao City.

Respondents in the SEC Case filed their "Motion to Dismiss With Answer To Villarin’s Et. Al., Complaint To The Securities and Exchange Commission"[2] prepared and notarized by Atty. Resituto Sabate, Jr. The verification of the said pleading reads:

"V E R I F I C A T I O N

"REPUBLIC OF THE PHILIPPINES)

C A G A Y A N D E O R O C I T Y) S.S.

"WE, REV. PASTORS PATERNO M. DIAZ, MANUEL DONATO, ULYSSES CAMAGAY, LEVI PAGUNSAN, ALEJANDRO

27

BOFETIADO, All of legal ages after having been sworn in accordance with law depose and say:

"1. That we were the one who caused the above writings to be written;

"2. That we have read and understood all statements therein and believed that all are true and correct to the best of our knowledge and belief.

"IN WITNESS WHEREOF hereunto affixed our signatures on the 6th day of February, 1989 at the City of Cagayan de Oro, Philippines.

By: (Sgd.) Lilian C. Diaz (Sgd..) Camagay (Sgd.) M Donato

By (Sgd.) Atty. Restituto B. Sabate

(Sgd.) Dr. Levi Pagunsan (Sgd.) Pastor A. Bofetiado

"SUBSCRIBED AND SWORN to before the above-named affiants on the 6th day of February, 1989 at the City of Cagayan de Oro, Philippines.

(Sgd.) RESTITUTO B. SABATE, JR.

Notary Public"[3]

Complainants alleged that the signature of Paterno Diaz was not his, but that of a certain Lilian Diaz; that with regard to the signatures of Levi Pagunsan and Alejandro Bofetiado, it was Atty. Sabate, Jr. who signed for them; and that herein respondent Sabate, Jr. made it appear that said persons participated in the said act when in fact they did not do so. Complainants averred that respondent’s act undermined the public’s confidence for which reason administrative sanctions should be imposed against him.

In his Answer,[4] respondent alleged that Paterno Diaz, Levi Pagunsan and Alejandro Bofetiado swore to the correctness of the allegations in the motion to dismiss / pleading for the SEC through their authorized representatives known by their names as Lilian C. Diaz, wife of Paterno Diaz, and Atty. Restituto B. Sabate, Jr. manifested by the word "By" which preceded every signature of said representatives. Respondent allegedly signed for and in the interest of his client backed-up by their authorization[5]; and Lilian Diaz was authorized to sign for and in behalf of her husband as evidenced by a written authority.[6] Respondent alleged that on the strength of the said authorization he notarized the said document.

Respondent also alleged that in signing for and in behalf of his client Pagunsan and Bofetiado, his signature was preceded by the word "By" which suggests that he did

not in any manner make it appear that those persons signed in his presence; aside from the fact that his clients authorized him to sign for and in their behalf, considering the distance of their place of residence to that of the respondent and the reglementary period in filing said pleadings he had to reckon with. Respondent further alleged that the complaint is malicious and anchored only on evil motives and not a sensible way to vindicate complainants’ court losses, for respondent is only a lawyer defending a client and prayed that the case be dismissed with further award for damages to vindicate his honor and mental anguish as a consequence thereof.

The designated Investigating Commissioner of the Integrated Bar of the Philippines recommended that respondent Atty. Restituto Sabate, Jr. be suspended from his Commission as Notary Public for a period of six (6) months. The Board of Governors of the Integrated Bar of the Philippines adopted the said recommendation and resolved to suspend the respondent’s Commission for six (6) months for failure to exercise due diligence in upholding his duty as a notary public.

From the facts obtaining, it is apparent that respondent Atty. Restituto Sabate, Jr. notarized the Motion to Dismiss With Answer prepared by him which pleading he signed for and in behalf of Levi Pagunsan and Alejandro Bofetiado (while Lilian Diaz signed for her husband Pastor Diaz), three of the respondents in the SEC case, with the word "By" before their signatures, because he was their counsel in said case and also because he was an officer of the religious sect and corporation respondents-Pastors.

But while it would appear that in doing so, he acted in good faith, the fact remains that the same cannot be condoned. He failed to state in the preliminary statements of said motion/answer that the three respondents were represented by their designated attorneys-in-fact. Besides, having signed the Verification of the pleading, he cannot swear that he appeared before himself as Notary Public.

The function of a notary public is, among others, to guard against any illegal or immoral arrangements.[7] That function would be defeated if the notary public were one of the signatories to the instrument. For then, he would be interested in sustaining the validity thereof as it directly involves himself and the validity of his own act. It would place him in an inconsistent position, and the very purpose of the acknowledgment, which is to minimize fraud, would be thwarted.[8]

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 acknowledgment 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

28

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."[9]

A member of the bar who performs an act as 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 said notary public to attest to the contents and truth of what are stated therein. The acts of affiants cannot be delegated to anyone for what are stated therein are facts they have personal knowledge of and swore to the same personally and not through any representative. Otherwise, their representative’s names should appear in the said documents as the ones who executed the same and that is only the time they can affix their signatures and personally appear before the notary public for notarization of said document.

As a lawyer commissioned as notary public, respondent is mandated to subscribe to the sacred duties pertaining to his office, such duties being dictated by public policy impressed with public interest. Faithful observance and utmost respect of the legal solemnity of the oath in an acknowledgement or jurat is sacrosanct. Simply put, such responsibility is incumbent upon and failing therein, he must now accept the commensurate consequences of his professional indiscretion.[10]

That respondent acted the way he did because he was confronted with an alleged urgent situation is no excuse at all. As an individual, and even more so as a member of the legal profession, he is required to obey the laws of the land at all times.[11] For notarizing the Verification of the Motion to Dismiss With Answer when three of the affiants thereof were not before him and for notarizing the same instrument of which he was one of the signatories, he failed to exercise due diligence in upholding his duty as a notary public.

WHEREFORE, for lack of diligence in the observance of the Notarial Law, respondent Atty. Restituto Sabate, Jr. is SUSPENDED from his Commission as Notary Public for a period of one (1) year.

SO ORDERED.

[A.C. No. 6186.  February 3, 2004]VICENTE FOLLOSCO and HERMILINA FOLLOSCO, complainants, vs. ATTY. RAFAEL MATEO, respondent.

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

The present administrative complaint against Atty. Rafael Mateo was originally filed by the spouses Vicente and Hermilina Follosco with the Commission on Human Rights (CHR) some time in 1994.  In August of the same year, the CHR referred the complaint to the Integrated Bar of the Philippines (IBP) for appropriate action.  A complaint for disbarment, docketed as Administrative Case No. 4375, was also filed by the spouses Follosco against herein respondent, based on the same acts complained of in the present complaint.

The complaint was then raffled to Commissioner Pedro A. Magpayo, Jr.. After the parties submitted their respective position papers and other pertinent pleadings, Commissioner Magpayo, Jr., rendered his Report and Recommendation dated July 24, 2003.

Based on the following findings of facts, to wit:

Respondent was a notary public during all the time (1992 and 1993) material to the complaint.

Complainants are the owners of a certain property (house and lot) located in Tanay, Rizal which was mortgaged to Dr. Epitacio R. Tongohan for a loan ofP50,000.00.

Pursuant to this transaction, several related documents were caused to be executed namely: (1) Sinumpaang Kasunduan Salaysay Tungkol sa Lupang Sanlaan; (2)Dagdag na Paglilinaw Tungkol sa Lupang Sanlaan; (3) Sinumpaang Salaysay; (4) Sinumpaang Pangako Tungkol sa Lupang Sanglaang; and (5) Promissory Note (Sinumpaang Pangako) which were all notarized by herein respondent in his official capacity as notary public for the Province of Rizal.

Claiming that the signatures appearing on the documents to be forged, complainants filed criminal complaints for falsification of public documents against Dr.Tongohan, respondent Mateo and the instrumental witnesses which complaints were docketed as I.S. Nos. 94-269 and 94-2064 of the Provincial Prosecutor’s Office of Rizal.

I.S. No. 94-269 which involves the document entitled Dagdag na Paglilinaw Tungkol sa Lupang Sanglaan” was dismissed by Pros. Marianito Santos while I.S. No. 94-2064 which was filed at a later time was dismissed as against respondent, but four (4) counts of falsification of public documents were filed in court againstTongohan and Trinidad Iposadas and one (1) count of falsification against Veronica Regondola.  The latter two were the witnesses to the documents.

Herein complainants not entirely satisfied with the resolution of investigating prosecutor Jison D. Julian elevated I.S. No. 94-2064 to the Department of Justice on a petition for review.

29

The Department of Justice, speaking thru Chief State Prosecutor Jovencito Zuño, reversed the resolution in I.S. No. 94-2064 and directed that the questioned documents be referred to the NBI or PNP Crime Laboratory for appropriate examination and thereafter to conduct a re-investigation of the case and resolve the case anew based on the evidence adduced by the parties.

After due examination of the questioned document (Sinumpaang Pangako Tungkol sa Lupang Sanglaan), the NBI issued “Questioned Documents Report No. 661-900 containing the conclusion: “The questioned signatures on one hand and the standard sample signatures on the other hand were not written by one and the same person.”

By the use of this forged documents, new tax declarations bearing Nos. 00-TN-001-3661 and 00-TN-001-3147 were issued in the name of Dr. Epitacio Tongohaneffectively canceling Tax Declaration Nos. 00-001-1158 and 001-3217 in the name of complainant Vicente Follosco.[1]

Commissioner Magpayo, Jr. found respondent guilty of negligence in the performance of his duty as a notary public and recommended his suspension from the practice of law for a period of three months with warning that repetition of the same or similar conduct in the future will be dealt with more severely.[2]

In its Resolution dated August 30, 2003, The IBP Board of Governors approved the report and recommendation of Commissioner Magpayo, Jr., with the modification that instead, respondent’s notarial commission be suspended for one year and that respondent be reprimanded with warning that repetition of the same or similar conduct in the future will be dealt with more severely.

The Court agrees with the finding of the IBP that respondent failed to exercise utmost diligence in the performance of his duties as notary public.

Section 1 of Public Act No. 2103, otherwise known as the Notarial Law, explicitly provides:

Sec. 1.          (a)  The acknowledgment shall be 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, acknowledged that the same is his free act and deed.  The certificate shall be made under the official seal, if he is by law required to keep a seal, and if not, his certificate shall so state.

From the foregoing, it is clear that the party acknowledging must appear before the notary public or

any other person authorized to take acknowledgments of instruments or documents.[3]

In this case, respondent does not deny notarizing the questioned documents.  According to him, these documents were already prepared and executed at the time it was submitted to him for notarization; and because he was familiar with the complainants, he “unsuspectingly” affixed his signatures thereon.  Respondent also stated that he does not have the slightest intention of causing damage to complainants.[4]

It cannot be said that respondent acted in good faith in notarizing the questioned documents without requiring the affiants to personally appear before him and ensuring that the signatures were indeed theirs.  Respondent’s claim of good faith cannot relieve him from the consequences of his reckless failure to comply with the dictates of the law.

Acknowledgment of a document is not an empty act or routine.[5] Thus, in Vda . de Rosales vs. Ramos ,[6] the Court emphasized the significance of the act of notarization, to wit:

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. Notarization converts a private document into a public document thus making that document admissible in evidence without further proof of its authenticity. A notarial document is by law entitled to full faith and credit upon its face. Courts, administrative agencies and the public at large must be able to rely upon the acknowledgment executed by a notary public and appended to a private instrument.

For this reason notaries 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. Hence a notary public should not notarize a document unless the persons who signed the same are the very same persons who executed and personally appeared before him to attest to the contents and truth of what are stated therein. 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.

A notary public’s function should not be trivialized and a notary public must discharge his powers and duties which are impressed with public interest, with accuracy and fidelity. [7]

The Court is not unaware of the careless practice of some lawyers who notarize documents without requiring

30

the physical presence of the affiants.  For one reason or another, they forego this essential requirement without taking into account the likelihood that the documents may be spurious or that the affiants may not be who they purport to be.  The Court had resolved numerous cases involving unauthentic notarized deeds and documents. Sadly, public faith in the integrity of public documents is continually eroding, and the Court must, once more, exhort notaries public to be more circumspect in the discharge of their functions.

It devolves upon herein respondent to act with due care and diligence in stamping fiat on the questioned documents.  A notary public should not notarize a document unless the persons who signed the same are the very persons who executed and personally appeared before him to attest to the contents and truth of what are stated therein.[8]

As borne by the records, respondent’s failure to perform his duty as a notary public resulted not only in damaging complainants’ rights over the property subject of the documents but also in undermining the integrity of a notary public and in degrading the function of notarization.  Hence, he should be liable for such negligence, not only as a notary public but also as a lawyer.

As a lawyer commissioned as notary public, respondent is mandated to subscribe to the sacred duties appertaining to his office, such duties being dictated by public policy impressed with public interest.  Faithful observance and utmost respect of the legal solemnity of the oath in an acknowledgment or jurat is sacrosanct.  Simply put, such responsibility is incumbent upon respondent and failing therein, he must now accept the commensurate consequences of his professional indiscretion.[9]

As the Court has held in Flores vs. Chua:

Where the notary public is a lawyer, a graver responsibility is placed upon his shoulder by reason of his solemn oath to obey the laws and to do no falsehood or consent to the doing of any.  The Code of Professional Responsibility also commands him not to engage in unlawful, dishonest, immoral or deceitful conduct and to uphold at all times the integrity and dignity of the legal profession.  In Maligsa v. Cabanting, we emphatically pronounced:

As a lawyer commissioned as notary public, respondent is mandated to subscribe to the sacred duties appertaining to his office, such duties being dictated by public policy impressed with public interest.  Faithful observance and utmost respect of the legal solemnity of the oath in an acknowledgment or jurat is sacrosanct.  Simply put, such responsibility is incumbent upon and failing therein, he must now accept the commensurate consequences of his professional indiscretion.  By his effrontery of notarizing a

fictitious or spurious document, he has made a mockery of the legal solemnity of the oath in an Acknowledgment.[10] (Emphasis supplied)

Under the facts and circumstances of the case, respondent’s notarial commission should not only be suspended as recommended by the IBP Board of Governors but respondent must also be suspended from the practice of law as recommended by the investigating commissioner.

WHEREFORE, Atty. Rafael Mateo is SUSPENDED from practice of law for three (3) months; his incumbent notarial commission, if any, isREVOKED; and he is prohibited from being commissioned as notary public, for one year, effective immediately, with a stern warning that repetition of the same or similar conduct in the future will be dealt with more severely.

Let copies of this Decision be furnished the Office of the Bar Confidant to be attached to the personal record of respondent; the Office of the Clerk of Court of the Court for dissemination to all lower courts; and the Integrated Bar of the Philippines, for proper guidance and information.

SO ORDERED.

A.C. No. 6270 January 22, 2007HEIRS OF THE LATE SPOUSES LUCAS and FRANCISCA VILLANUEVA, Complainants, vs. ATTY. SALUD P. BERADIO, Respondent

CARPIO, J.:

The Case

This is a disbarment case against Atty. Salud P. Beradio (respondent), filed by the heirs of the late spouses Lucas and Francisca Villanueva (spouses Villanueva), namely: Ardenio M. Fonacier, Araceli M. Fonacier, Alano M. Fonacier, Eusebio M. Fonacier, Jr., Rolando V. Nazarro, Alejandro V. Nazarro, Margarita V. Collado, Felisa Collado, and Herminigildo Ylhi (complainants).

The Facts

During their lifetime, the spouses Villanueva acquired several parcels of land in Pangasinan, one of which was covered by Original Certificate of Title (OCT) No. 2522. Francisca died in 1968, and Lucas in 1974. Their five children, namely, Simeona, Susana, Maria, Alfonso, and Florencia, survived them.

On 22 May 1984, Alfonso executed an Affidavit of Adjudication 1 (affidavit of adjudication) stating that as "the only surviving son and sole heirs (sic)" of the spouses Villanueva, he was adjudicating to himself the

31

parcel of land under OCT No. 2522. Alfonso then executed a Deed of Absolute Sale 2 (deed of sale) on 5 July 1984, conveying the property to Adriano Villanueva. Respondent appeared as notary public on both the affidavit of adjudication and the deed of sale.

Contrary to the misrepresentations of Alfonso, his sister Florencia was still alive at the time he executed the affidavit of adjudication and the deed of sale, as were descendants of the other children of the spouses Villanueva. Complainants claimed that respondent was aware of this fact, as respondent had been their neighbor in Balungao, Pangasinan, from the time of their birth, and respondent constantly mingled with their family. Complainants accused respondent of knowing the "true facts and surrounding circumstances" regarding the properties of the spouses Villanueva, yet conspiring with Alfonso to deprive his co-heirs of their rightful shares in the property.

In a resolution dated 11 February 2004, this Court required respondent to comment on the complaint.

In her Comment, 3 respondent admitted that she notarized the affidavit of adjudication and the deed of sale executed by Alfonso in 1984. However, respondent denied that she conspired with Alfonso to dispose of fraudulently the property. Respondent alleged that Alfonso executed the two documents under the following circumstances:

That the properties of the late spouses [Villanueva] have been divided equally among their compulsory heirs, but said old couple left for themselves one titled lot, the subject now of the complaint x x x That said titled property was the only property left by the old couple, to answer for their needs while they are still alive until their deaths x x x.Alfonso [and his wife] were tasked to take care of the old couple, as they were the ones living in the same compound with their late parents. This fact was and is known by the other compulsory heirs, and they never questioned the said act of their parents, as they already had their own share on the estate of the late [spouses Villanueva]. This fact was also known to me because [Lucas] and [Alfonso] lived across the street from our house and I was requested to the house of the old man when he gave said title to [Alfonso and Tomasa, his wife]. The other compulsory heirs who were still alive at the time just made visits to their parents and never stayed in their old house to help in the care of their parents. Even [when] the parents died, it was [Alfonso and his wife] who took charge of the funeral and all other acts relative thereto.

That said title remain[ed] in the custody of [Alfonso] and after the death of the old man, when the spouses Alfonso [and Tomasa] needed money to finance the schooling of their children, it was then that they thought of disposing the land x x x and said land was sold by them to one

Adriano Villanueva of which in both documents, I notarized the same (sic).

I can say with all clean and good intentions, that if ever I notarized said documents, it was done in good faith, to do my job as expected of me, to help, assist and to guide people who come to me for legal assistance, as contained in my oath as a lawyer when I passed the bar. x x x 4 (Emphasis supplied)

According to respondent, the fact that none of Alfonso’s co-heirs filed their objections at the time he executed the affidavit of adjudication proved that most of the properties of the spouses Villanueva had earlier been distributed to the other heirs. It also proved that the heirs had agreed to abide by the intention of the spouses Villanueva to leave the property to Alfonso. Respondent asserted that "the personal appearances and acknowledgment by the party to the document are the core of the ritual that effectively convert a private document into a public document x x x."

On 26 May 2004, we resolved to refer the complaint to the Integrated Bar of the Philippines (IBP), which designated Commissioner Leland R. Villadolid, Jr. (IBP Commissioner Villadolid) to investigate, and submit his report and recommendation on, the complaint.

The IBP’s Findings

In his Report dated 16 September 2005, IBP Commissioner Villadolid found that respondent violated the provisions of the Code of Professional Responsibility and the spirit and intent of the notarial law when she notarized the affidavit knowing that Alfonso was not the sole compulsory heir of the spouses Villanueva. Although he found no evidence of fraudulent intent on respondent’s part, IBP Commissioner Villadolid held that respondent "engaged in conduct that lessened confidence in the legal system." Thus, he recommended suspension of respondent’s notarial commission for one year. He further recommended that respondent be reprimanded or suspended from the practice of law for up to six months.

The Court’s Ruling

We sustain partly the IBP’s findings and recommendations.

A notary public is empowered to perform a variety of notarial acts, most common of which are the acknowledgment and affirmation of a document or instrument. In the performance of such notarial acts, the notary public must be mindful of the significance of the notarial seal as affixed on a document. The notarial seal converts the document from private to public, after which it may be presented as evidence without need for proof of

32

its genuineness and due execution. 5 Thus, notarization should not be treated as an empty, meaningless, or routinary act. 6 As early as Panganiban v. Borromeo, 7 we held that notaries public must inform themselves of the facts to which they intend to certify and to take no part in illegal transactions. They must guard against any illegal or immoral arrangements. 8

On its face, Alfonso’s affidavit does not appear to contain any "illegal or immoral" declaration. However, respondent herself admitted that she knew of the falsity of Alfonso’s statement that he was the "sole heir" of the spouses Villanueva. Respondent therefore notarized a document while fully aware that it contained a material falsehood, i.e., Alfonso’s assertion of status as sole heir. The affidavit of adjudication is premised on this very assertion. By this instrument, Alfonso claimed a portion of his parents’ estate all to himself, to the exclusion of his co-heirs. Shortly afterwards, respondent notarized the deed of sale, knowing that the deed took basis from the unlawful affidavit of adjudication.

Respondent never disputed complainants’ allegation of her close relationship with the Villanueva family spanning several decades. Respondent even underscored this closeness by claiming that Lucas himself requested her to come to his house the day Lucas handed to Alfonso a copy of OCT No. 2522, allegedly so she could hear the conversation between them.

Respondent claims she is not administratively liable because at the time Alfonso executed the affidavit, his co-heirs had already received their respective shares from the estate of the spouses Villanueva. However, we are not concerned here with the proper distribution of the spouses Villanueva’s estates. Rather, respondent’s liability springs from her failure to discharge properly her duties as a notary public and as a member of the bar.

Where admittedly the notary public has personal knowledge of a false statement or information contained in the instrument to be notarized, yet proceeds to affix his or her notarial seal on it, the Court must not hesitate to discipline the notary public accordingly as the circumstances of the case may dictate. Otherwise, the integrity and sanctity of the notarization process may be undermined and public confidence on notarial documents diminished. 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.

We also view with disfavor respondent’s lack of candor before the IBP proceedings. The transcript of hearings shows that respondent denied preparing or notarizing the

deed of sale, 9 when she already admitted having done so in her Comment.

WHEREFORE, for violation of Canon 1 and Rule 1.01 of the Code of Professional Responsibility, we REVOKE the commission of respondent Atty. Salud P. Beradio as Notary Public, if still existing, and DISQUALIFY her from being commissioned a notary public for one (1) year. We further SUSPEND respondent from the practice of law for six (6) months effective upon finality of this decision.

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

SO ORDERED. 

  A.C. No. 6252JONAR SANTIAGO, Complainant,                   versus Atty. EDISON V. RAFANAN, RespondentOctober 5, 2004  DECISION- PANGANIBAN, J.:

  Notaries public are expected to exert utmost care in the performance of their duties, which are impressed with public interest.  They are enjoined to comply faithfully with the solemnities and requirements of the Notarial Law.  This Court will not hesitate to mete out appropriate sanctions to those who violate it or neglect observance thereof.

The Case and the Facts Before us is a verified Complaint[1] filed by Jonar Santiago, an employee of the Bureau of Jail Management and Penology (BJMP), for the disbarment of Atty. Edison V. Rafanan.  The Complaint was filed with the Commission on Bar Discipline (CBD) of the Integrated Bar of the Philippines (IBP) on January 16, 2001.  It charged Atty. Rafanan with deceit; malpractice or other gross misconduct in office under Section 27 of Rule 138[2] of the Rules of Court; and violation of Canons 1.01, 1.02 and 1.03[3], Canon 5[4], and Canons 12.07[5] and 12.08 of the Code of Professional Responsibility (CPR).

In his Report, IBP Investigating Commissioner Leland R. Villadolid Jr. summarized the allegations of the complainant in this wise:

 “x x x. In his Letter-Complaint, Complainant alleged, among others, that Respondent in notarizing several documents on different dates failed and/or refused to: a)make the proper notation regarding the cedula or community tax certificate of the affiants; b) enter the details of the notarized documents in the notarial register; and c) make and execute the

33

certification and enter his PTR and IBP numbers in the documents he had notarized, all in violation of the notarial provisions of the Revised Administrative Code. “Complainant likewise alleged that Respondent executed an Affidavit in favor of his client and offered the same as evidence in the case wherein he was actively representing his client.  Finally, Complainant alleges that on a certain date, Respondent accompanied by several persons waited for Complainant after the hearing and after confronting the latter disarmed him of his sidearm and thereafter uttered insulting words and veiled threats.”[6]

On March 23, 2001, pursuant to the January 19, 2001 Order of the CBD,

[7] Atty. Rafanan filed his verified Answer.[8]  He admitted having

administered the oath to the affiants whose Affidavits were attached to

the verified Complaint.  He believed, however, that the non-notation of

their Residence Certificates in the Affidavits and the Counter-affidavits

was allowed.

 He opined that the notation of residence certificates applied only to

documents acknowledged by a notary public and was not mandatory

for affidavits related to cases pending before courts and other

government offices.  He pointed out that in the latter, the affidavits,

which were sworn to before government prosecutors, did not have to

indicate the residence certificates of the affiants.  Neither did other

notaries public in Nueva Ecija -- some of whom were older practitioners

-- indicate the affiants’ residence certificates on the documents they

notarized, or have entries in their notarial register for these

documents. 

 

As to his alleged failure to comply with the certification required by

Section 3 of Rule 112[9] of the Rules of Criminal Procedure, respondent

explained that as counsel of the affiants, he had the option to comply

or not with the certification.  To nullify the Affidavits, it was

complainant who was duty-bound to bring the said noncompliance to

the attention of the prosecutor conducting the preliminary

investigation. 

 

As to his alleged violation of Rule 12.08 of the CPR, respondent argued

that lawyers could testify on behalf of their clients “on substantial

matters, in cases where [their] testimony is essential to the ends of

justice.”  Complainant charged respondent’s clients with attempted

murder.  Respondent averred that since they were in his house when

the alleged crime occurred, “his testimony is very essential to the ends

of justice.”

 

Respondent alleged that it was complainant who had threatened and

harassed his clients after the hearing of their case by the provincial

prosecutor on January 4, 2001.  Respondent requested the assistance

of the Cabanatuan City Police the following day, January 5, 2001, which

was the next scheduled hearing, to avoid a repetition of the incident

and to allay the fears of his clients.  In support of his allegations, he

submitted Certifications[10] from the Cabanatuan City Police and the

Joint Affidavit[11] of the two police officers who had assisted them.

Lastly, he contended that the case had been initiated for no other

purpose than to harass him, because he was the counsel of Barangay

Captain Ernesto Ramos in the cases filed by the latter before the

ombudsman and the BJMP against complainant.

 

After receipt of respondent’s Answer, the CBD, through Commissioner

Tyrone R. Cimafranca, set the case for hearing on June 5, 2001, at two

o’clock in the afternoon.  Notices[12] of the hearing were sent to the

parties by registered mail.  On the scheduled date and time of the

hearing, only complainant appeared.  Respondent was unable to do so,

apparently because he had received the Notice only on June 8, 2001.

[13]   The hearing was reset to July 3, 2001 at two o’clock in the

afternoon.

  On the same day, June 5, 2001, complainant filed his

Reply[14] to the verified Answer of respondent.  The latter’s Rejoinder

was received by the CBD on July 13, 2001.[15]  It also received

complainant’s Letter-Request[16] to dispense with the

hearings.  Accordingly, it granted that request in its Order[17] dated

July 24, 2001, issued through Commissioner Cimafranca.  It thereby

directed the parties to submit their respective memoranda within

fifteen days from receipt of the Order, after which the case was to be

deemed submitted for resolution.

The CBD received complainant’s Memorandum[18] on September 26,

2001.  Respondent did not file any.

The IBP’s Recommendation

 On September 27, 2003, the IBP Board of Governors issued Resolution

No. XVI-2003-172[19] approving and adopting the Investigating

Commissioner’s Report that respondent had violated specific

requirements of the Notarial Law on the execution of a certification, the

entry of such certification in the notarial register, and the indication of

the affiant’s residence certificate.  The IBP Board of Governors found

34

his excuse for the violations unacceptable.  It modified, however, the

recommendation[20] of the investigating commissioner by increasing

the fine to “P3,000 with a warning that any repetition of the violation

will be dealt with a heavier penalty.” 

 The other charges -- violation of Section 27 of Rule 138 of the Rules of

Court; and Canons 1.01 to 1.03, 12.07 and 12.08 of the CPR -- were

dismissed for insufficiency of evidence. 

 The Court’s Ruling

We agree with the Resolution of the IBP Board of Governors.

Respondent’s Administrative Liability  Violation of the Notarial Law 

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 them has 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.[21]  They are also required to maintain and keep a notarial register; to enter therein all instruments notarized by them; and to “give to each instrument executed, sworn to, or acknowledged before [them] a number corresponding to the one in [their] register [and to state therein] the page or pages of [their] register, on which the same is recorded.”[22]  Failure to perform these duties would result in the revocation of their commission as notaries public.[23]

 These formalities are mandatory and cannot

be simply neglected, considering the degree of importance and evidentiary weight attached to notarized documents.  Notaries public entering into their commissions are presumed to be aware of these elementary requirements.In Vda. de Rosales v. Ramos,[24] the Court explained the value and meaning of notarization as follows:

“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.  Notarization converts a private document into a public document thus making that document admissible in evidence without further proof of its authenticity.  A notarial document is by law entitled to full faith and credit upon its face.  Courts, administrative agencies and the public at large must be able to rely upon the acknowledgment executed

by a notary public and appended to a private instrument.”

For this reason, notaries public should not take for granted the solemn duties pertaining to their office.  Slipshod methods in their performance of the notarial act are never to be countenanced.  They are expected to exert utmost care in the performance of their duties,[25]  which are dictated by public policy and are impressed with public interest.

It is clear from the pleadings before us -- and respondent has readily admitted -- that he violated the Notarial Law by failing to enter in the documents notations of the residence certificate, as well as the entry number and the pages of the notarial registry.

Respondent believes, however, that noncompliance with those requirements is not mandatory for affidavits relative to cases pending before the courts and government agencies.  He points to similar practices of older notaries in Nueva Ecija. 

We cannot give credence to, much less honor, his claim.  His belief that the requirements do not apply to affidavits is patently irrelevant.  No law dispenses with these formalities.  Au contraire, the Notarial Law makes no qualification or exception.  It is appalling and inexcusable that he did away with the basics of notarial procedure allegedly because others were doing so.  Being swayed by the bad example of others is not an acceptable justification for breaking the law.

We note further that the documents attached to the verified Complaint are the Joint Counter-Affidavit of respondent’s clients Ernesto Ramos and Rey Geronimo, as well as their witnesses’ Affidavits relative to Criminal Case No. 69-2000 for attempted murder, filed by complainant’s brother against the aforementioned clients.  These documents became the basis of the present Complaint. 

As correctly pointed out by the investigating commissioner,  Section 3 of Rule 112 of the Rules of Criminal Procedure expressly requires respondent as notary -- in the absence of any fiscal, state prosecutor or government official authorized to administer the oath  -- to “certify that he has personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.”  Respondent failed to do so with respect to the subject Affidavits and Counter-Affidavits in the belief that -- as counsel for the affiants -- he was not required to comply with the certification requirement.

 It must be emphasized that the primary duty of lawyers is to obey the laws of the land and

35

promote respect for the law and legal processes.[26]  They are expected to be in the forefront in the observance and maintenance of the rule of law.  This duty carries with it the obligation to be well-informed of the existing laws and to keep abreast with legal developments, recent enactments and jurisprudence.[27]  It is imperative that they be conversant with basic legal principles.  Unless they faithfully comply with such duty, they may not be able to discharge competently and diligently their obligations as members of the bar.  Worse, they may become susceptible to committing mistakes. 

 Where notaries public are lawyers, a graver responsibility is placed upon them by reason of their solemn oath to obey the laws.[28]  No custom or age-old practice provides sufficient excuse or justification for their failure to adhere to the provisions of the law.  In this case, the excuse given by respondent exhibited his clear ignorance of the Notarial Law, the Rules of Criminal Procedure, and the importance of his office as a notary public. 

Nonetheless, we do not agree with complainant’s plea to disbar respondent from the practice of law.  The power to disbar must be exercised with great caution.[29]  Disbarment will be imposed as a penalty only in a clear case of misconduct that seriously affects the standing and the character of the lawyer as an officer of the court and a member of the bar.  Where any lesser penalty can accomplish the end desired, disbarment should not be decreed.[30]  Considering the nature of the infraction and the absence of deceit on the part of respondent, we believe that the penalty recommended by the IBP Board of Governors is a sufficient disciplinary measure in this case. Lawyer as Witness for Client

 Complainant further faults respondent for executing before Prosecutor Leonardo Padolina an affidavit corroborating the defense of alibi proffered by respondent’s clients, allegedly in violation of Rule 12.08 of the CPR: “A lawyer shall avoid testifying in behalf of his client.”

 Rule 12.08 of Canon 12 of the CPR states:“Rule 12.08 – A lawyer shall avoid testifying in

behalf of his client, except: a)  on formal matters, such as the mailing, authentication or custody of an instrument and the like;b)  on substantial matters, in cases where his testimony is essential to the ends of justice, in which event he must, during his testimony, entrust the trial of the case to another counsel.”

 Parenthetically, under the law, a lawyer is not disqualified from being a witness,[31] except only in certain cases pertaining to privileged communication arising from an attorney-client relationship.[32]

 The reason behind such rule is the difficulty posed upon lawyers by the task of dissociating their relation to their clients as witnesses from that as advocates.  Witnesses are expected to tell the facts as they recall them.  In contradistinction, advocates are partisans -- those who actively plead and defend the cause of others.  It is difficult to distinguish the fairness and impartiality of a disinterested witness from the zeal of an advocate.  The question is one of propriety rather than of competency of the lawyers who testify for their clients.

“Acting or appearing to act in the double capacity of lawyer and witness for the client will provoke unkind criticism and leave many people to suspect the truthfulness of the lawyer because they cannot believe the lawyer as disinterested.  The people will have a plausible reason for thinking, and if their sympathies are against the lawyer’s client, they will have an opportunity, not likely to be neglected, for charging, that as a witness he fortified it with his own testimony.  The testimony of the lawyer becomes doubted and is looked upon as partial and untruthful.”[33]

  Thus, although the law does not forbid lawyers from being witnesses and at the same time counsels for a cause, the preference is for them to refrain from testifying as witnesses, unless they absolutely have to; and should they do so, to withdraw from active management of the case.[34]

  Notwithstanding this guideline and the existence of the Affidavit executed by Atty. Rafanan in favor of his clients, we cannot hastily make him administratively liable for the following reasons:   

First, we consider it the duty of a lawyer to assert every remedy and defense that is authorized by law for the benefit of the client, especially in a criminal action in which the latter’s life and liberty are at stake.[35]  It is the fundamental right of the accused to be afforded full opportunity to rebut the charges against them.  They are entitled to suggest all those reasonable doubts that may arise from the evidence as to their guilt; and to ensure that if they are convicted, such conviction is according to law.     Having undertaken the defense of the accused, respondent, as defense counsel, was thus expected to spare no effort to save his clients from a wrong conviction.  He had the duty to present -- by all fair and honorable means -- every defense and mitigating circumstance that the law permitted,

36

to the end that his clients would not be deprived of life, liberty or property, except by due process of law.[36]

  The Affidavit executed by Atty. Rafanan was clearly necessary for the defense of his clients, since it pointed out the fact that on the alleged date and time of the incident, his clients were at his residence and could not have possibly committed the crime charged against them.  Notably, in his Affidavit, complainant does not dispute the statements of respondent or suggest the falsity of its contents. 

 Second, paragraph (b) of Rule 12.08 contemplates a situation in which lawyers give their testimonies during the trial.  In this instance, the Affidavit was submitted during the preliminary investigation which, as such, was merely inquisitorial.[37]  Not being a trial of the case on the merits, a preliminary investigation has the oft-repeated purposes of securing innocent persons against hasty, malicious and oppressive prosecutions; protecting them from open and public accusations of crime and from the trouble as well as expense and anxiety of a public trial; and protecting the State from useless and expensive prosecutions.[38]  The investigation is advisedly called preliminary, as it is yet to be followed by the trial proper. Nonetheless, we deem it important to stress and remind respondent to refrain from accepting employment in any matter in which he knows or has reason to believe that he may be an essential witness for the prospective client. Furthermore, in future cases in which his testimony may become essential to serve the “ends of justice,” the canons of the profession require him to withdraw from the active prosecution of these cases.

 No Proof of Harassment

 The charge that respondent harassed complainant and uttered insulting words and veiled threats is not supported by evidence.  Allegation is never equivalent to proof, and a bare charge cannot be equated with liability.[39]  It is not the self-serving claim of complainant but the version of respondent that is more credible, considering that the latter’s allegations are corroborated by the Affidavits of the police officers and the Certifications of the Cabanatuan City Police.

   WHEREFORE, Atty. Edison V. Rafanan is found guilty of violating the Notarial Law and Canon 5 of the Code of Professional Responsibility and is hereby FINED P3,000 with a warning that similar infractions in the future will be dealt with more severely. 

SO ORDERED.  

37