VICENTE M. BATIC vs. JUDGE VICTORIO L. GALAPON JR.

A.M. No. MTJ-99-1239; JULY 29, 2005 (465 SCRA 7)

FACTS:

This case involves three administrative complaints filed against

Judge Victorio L. Galapon, Jr., of the Municipal Trial Court of Dulag,

Leyte.

In A.M. No. MTJ-99-1239, filed on April 7, 1997, complainant

Vicente M. Batic, co-accused in Criminal Case No. 12305 (entitled People

of the Philippines v. Vicente Batic and Lualhati Ellert for Grave

Coercion) charged respondent judge with graft and corruption, grave

abuse of authority, gross ignorance of the law, dishonesty and conduct

prejudicial to the best interest of the service.  He claims that

respondent issued a warrant of arrest against him and his co-accused in

the aforesaid case two days before the complaint was filed.  As proof,

he attached a warrant of arrest dated March 18, 1997 and a complaint

dated March 20, 1997.

 Batic also charged respondent with engaging in unauthorized

notarial practice for notarizing a Deed of Absolute Sale between a

certain Antonio Caamic and Lualhati V. Ellert on January 25, 1990.

 In A.M. No. MTJ-05-1595, initiated on October 1, 1997 through a

letter by complainant Horst Franz Ellert, a French national and husband

of Lualhati Ellert, respondent judge was charged with having prepared

and notarized one Deed of Sale in the name of Lualhati Ellert, with the

document describing the latter as “single.”  Complainant adds that a

certain Attorney Custodio P. Cañete also notarized another Deed of Sale

indicating Lualhati Ellert as “single,” and that this Atty. Cañete,

together with his wife and respondent judge are in connivance towards

depriving him of his share in their conjugal properties.

 In A.M. No. MTJ-05-1596, complainant Horst Franz Ellert again

filed on January 11, 1999, this time in the form of an Affidavit, a

complaint charging respondent with ignorance of the law, grave

misconduct and gross negligence in the performance of duties for having

prematurely issued and signed a warrant of arrest against his wife and

Vicente Batic on March 18, 1997, before a complaint was actually and

officially received on March 20, 1997.

 Respondent explains that on March 17, 1997, the complainants in

the aforementioned criminal case brought their statements to him and

swore to them before him.  The following day, March 18, the police

department of Dulag, Leyte, brought the complaint in the same criminal

case to respondent together with the supporting affidavits. 

Complainants then swore to their complaint before him.  Respondent

decided to immediately conduct the preliminary examination because the

witnesses resided in a barangay far from the town proper of Dulag and it

would be expensive for them to come back on another date.  After finding

probable cause, he issued an Order on the same day for the issuance of

the warrant of arrest for the two accused.  However, it was already late

in the afternoon so the draft Order and the warrant of arrest could no

longer be typed.  They were typed the next day.

  On March 19, 1997, respondent went on leave of absence to attend

the graduation of his daughter.  On March 20, 1997, he signed the Order

together with the warrant and since the draft order was prepared on

March 18, 1997 both order and warrant of arrest were dated March 18,

1997.  He then brought the records to the table of the clerk of court,

Mr. Blandino Bautista, who stamped on all of them the current date.  The

date “March 20, 1997” marked on the criminal complaint thus only

signifies the date when the records were received by the clerk of court

from him.

 Regarding his act of notarization, respondent claims that he did

not prepare the document and that his participation was limited to its

acknowledgment, for which the corresponding fee was collected by and

paid to the clerk of court.  He says that he was constrained to notarize

the document because the only notary public in Dulag, Leyte was not in

town and the vendor was compelled to go to him because the vendee was in

a hurry. He adds that he at that time sincerely believed that when no

notary public is available, the Municipal Trial Courts may act as ex-

officio notary public, provided the fees shall be for the government. 

He finishes his argument by saying that now that there are two notaries

public in his municipality, he has refrained from notarizing any deed.

 

ISSUE: What is the limitation of notarial duties of the judges?

HELD: 

The notarization of a Deed of Absolute Sale, is disagreed with the

findings and recommendation of Investigating Judge that respondent judge

should be exonerated.  It reasoned that the rule on the power of the MTC

and MCTC judges to act as notaries public ex-officio has been

established even before the issuance of Circular No. 1-90 dated 26

February 1990.  It cited the cases of Borre v. Moya, and Penera v.

Dalocanog, wherein the Court ruled that judges are empowered to perform

the functions of notaries public ex-officio, but such authority is

limited to the notarization of only those documents connected with the

exercise of their official functions.  It added that this instance not

being the first that respondent committed the infraction, having been

found in A.M. No. MTJ-00-1294 to have engaged in unauthorized notarial

work, he should be fined the amount of Eleven Thousand Pesos (P11,000)

  WHEREFORE, the complaints filed against Judge Victorio L.

Galapon, Jr. with respect to the issuance of a warrant of arrest

are DISMISSED.  However, on the complaints charging notarization of a

private document, respondent judge is found GUILTY of unauthorized

notarization of a private document, and hereby ORDERED to pay a FINE of

Twenty Thousand Pesos (P20,000), with  a warning that a repetition of

the same will be punished more severely.

JUDGE GERVACIO A. LOPENA, vs. ATTY. ARTEMIO P. CABATOS

AC No. 3441; August 11, 2005 (466 SCRA 419)

FACTS: Atty. Artemio P. Cabatos (respondent) was administratively

charged by Judge Gervacio A. Lopena (complainant) of the Municipal

Circuit Trial Court (MCTC) of Tagbilaran-Clarin, Bohol of SERIOUS BREACH

OF PROFESSIONAL ETHICS and GRAVE MISCONDUCT on the following grounds:

1) Respondent knowingly falsified a Deed of Donation purportedly

executed by one Crispina Panis by notarizing the same on June 24, 1981

when the donor had died on January 15, 1981, and

2) Respondent “showed a grave disrespect to the courts and the

administration of justice” by holding, together with his followers, a

parade/rally on September 21, 1984 around the principal streets of

Tagbilaran City, directed against complainant who had convicted

respondent’s close relatives in three criminal cases and denied the

applications for probation of two of the convicts.

Acting on this Court’s Resolution respondent submitted his

COMMENT...

1. Claiming that he had been away from his place of birth,

Panaytayon, Tubigon, Bohol since 1958, hence, when he notarized

the questioned deed of donation, he “really did not recognize the

person of Cristina Panis,” but he was led by one Gregorio Ricafort

to believe that “the old woman before him at the time he notarized

the document was the said Crispina Panis.”

2. Respondent informed that his notarization of the questioned

document in fact resulted to his indictment in court for reckless

imprudence resulting in falsification of public document, which

case was pending trial.

3. As for the charge of having conducted a rally/parade, respondent

claimed that the same was staged by PDP Laban and BAYAN of Bohol

as a protest against complainant who showed bias in presiding over

the trial of the criminal cases against members of the Cabatos

family and “disregarding the evidence in convicting them.”

On reply to respondent’s COMMENT, complainant countered that...

one of the witnesses to the questioned document was respondent’s father,

Geronimo Cabatos, a permanent resident of Panaytayon who knew as he was

related by blood to Crispina Panis, hence, it is incredible for

respondent not to know of Panis’ death on January 15, 1981 or that “he

did not know the person of Panis even if he had been away from his place

of birth since 1958.”

Hence, this Court referred the case to the Integrated Bar of the

Philippines (IBP) by Resolution of June 4, 1990.

Accordingly, the IBP Commissioner on Bar Discipline issued a Notice of

Hearing and set forth the date thereof, but not one of the parties

showed up.

The case was set anew for complainant to present evidence during which,

again, none of the parties appeared drawing the Commission to consider

the case submitted for resolution.

In view of the failure of the complainant to substantiate his

serious charges against the respondent, it is respectfully recommended

that this charge for disbarment be dismissed.

Respondent accordingly prayed for the dismissal of this case.

However, the Commission pointed out that even though respondent was

exonerated from the criminal case filed against him, the same does not

exonerate him from the present administrative case.

ISSUES: Whether or not there is serious breach of professional ethics

committed by respondent?

RULLING: In Flores v. Chua, 306 SCRA 465, that 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.

In Nunga v. Viray, 306 SCRA 487, the Honorable Court ruled that

notaries public must observe with utmost care the basic requirements in

the performance of their duties.

That a notary public should not notarize a document unless the persons

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

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

therein.

Respondent having thus failed to faithfully discharge his sacred

duties as a notary public, under the facts and circumstances of the

case, the revocation of his notarial commission and disqualification

from being commissioned as notary public for a period of One (1) Year is

in order.

As for the charge against respondent of showing “grave disrespect

to the courts and the administration of justice” by holding a

parade/rally, along with his followers, during which he imputed bias to

complainant whom he branded as “worse than President Marcos,” it has not

been sufficiently substantiated.

WHEREFORE, the notarial commission of respondent, Atty. Artemio P.

Cabatos, if still existing, is hereby REVOKED and he is hereby

DISQUALIFIED to be commissioned as a notary public for a period of One

(1) Year, and WARNED that a similar violation by him shall be dealt with

more severely.

MARINA C. GONZALES, vs. ATTY. CALIXTO B. RAMOS,

A.C. No. 6649; June 21, 2005 (460 SCRA 352)

FACTS:

This is a complaint for disbarment filed by Marina C. Gonzales

against Atty. Calixto B. Ramos because of the latter’s alleged

misconduct in notarizing a Deed of Absolute Sale.

When ordered to file his Answer, the respondent lawyer alleged

that Francisco T. Gonzales went to his office, accompanied by a couple,

showing a Deed of Sale and requested him to notarize it. The respondent,

however, noticed that the Deed of Sale did not contain a technical

description of the property being sold, so he prepared another set of

Deed of Absolute Sale. Thereafter, Francisco and the spouses Gatus,

together with a witness, Ms. Eva Dulay, signed the second Deed of

Absolute Sale in his presence. He then instructed Francisco to bring his

wife, herein complainant, to his office so she can sign the Deed of

Absolute Sale in his presence.

When Francisco returned to his office, he brought with him the

Deed of Absolute Sale signed by Marina C. Gonzales. At first, he was

hesitant to notarize the document because he did not see the complainant

sign the same. He compared the signatures of Marina C. Gonzales on the

Deed of Absolute Sale with her other signatures in his files, the

spouses Gonzales being his clients from way back. Convinced that the

signature on the Deed of Absolute Sale was indeed the signature of

complainant Marina C. Gonzales, respondent notarized the Deed of

Absolute Sale.

ISSUE:

Whether or not respondent was liable for notarizing a Deed of

Absolute Sale signed by one of the signatories not in his presence?

RULING:

YES. The respondent’s act of notarizing the document despite the

non-appearance of one of the signatories should not be countenanced. His

conduct, if left unchecked, is fraught with dangerous possibilities

considering the conclusiveness on the due execution of a document that

our courts and the public accord to notarized documents. Respondent has

clearly failed to exercise utmost diligence in the performance of his

functions as a notary public and to comply with the mandates of law.

As a lawyer, respondent breached the Code of Professional

Responsibility. By notarizing the questioned deed, he engaged in

unlawful, dishonest, immoral or deceitful conduct. He also committed

falsehood and misled or allowed the Court to be misled by any artifice.

WHEREFORE, for breach of the Notarial Law and Code of Professional

Responsibility, the notarial commission of respondent is REVOKED and he

is DISQUALIFIED from reappointment as Notary Public for a period of two

years. He is also SUSPENDED from the practice of law for a period of one

year, effective immediately. He is further WARNED that a repetition of

same or of similar acts shall be dealt with more severely.

BENILDA M. MADDELA, vs. ATTY. ROSALIE DALLONG-GALICINAO

A.C. No. 6491; January 31, 2005 (450 SCRA 352)

Statement of Facts:

Complainant Benilda Madella is a Clerk in the Office of the Clerk

of Court, Regional Trial Court (RTC), Bayombong, Nueva Vizcaya, while

respondent Atty. Rosalie Dallong-Galicinao is the Clerk of Court and Ex-

Officio Provincial Sheriff of the RTC, Bambang, Nueva Vizcaya. In an

affidavit-complaint dated 7 February 2003, filed with the Integrated Bar

of the Philippines (IBP), the complainant prays for the disbarment of

the respondent for “acts unbecoming … a public servant and a lawyer,

grave misconduct and slander.”

In her affidavit-complaint, the complainant alleged that sometime

in July 1999, she received the amount of P40,000 from the respondent by

way of a loan at an interest of 5% per month.  In November 2001, since

part of the loan remained unpaid, the respondent went to complainant’s

office and took complainant’s “cash gift check” amounting to P5,000 in

her absence and without her knowledge.  There, the respondent “uttered

unsavory and humiliating words” against her (the complainant)  and bang

her fist on top of the complainant’s table, causing the glass top of the

table to break. 

To support her bid to have the respondent stripped of the

privilege to practice the noble profession of law, the complainant

attached to her affidavit-complaint a copy of a confidential letter-

complaint of one Benjamin Rilloraza dated 3 May 2001, opposing the

respondent’s admission to the Bar in view of her acts of notarizing

documents outside the area of her commission.  Mr. Rilloraza claimed

that the respondent, although not yet a lawyer, was issued a notarial

commission for “Kayapa or (Kasibu),” Nueva Vizcaya.  However, the

respondent notarized documents in Bayombong, Nueva Vizcaya, outside the

area of her commission. 

Anent the allegation that she notarized documents in Bayombong,

Nueva Vizcaya, outside of the area of her commission, the respondent

explained that she did it to accommodate the parties thereto, who were

her relatives, and that she did not derive profit from such act.

To prove the claim of the respondent, she presented an affidavit

of Mr. Josue B. Liclican dated 10 March 2003 stating that he is the

creditor of the complainant and she merely brokered the loan agreement

and acted as a guarantor in favor of the complainant. Mr. Liclican also

claimed that by reason of complainant’s failure to pay her obligation

after the lapse of more than four years, he tried to collect the loan

from the respondent, who acted as a guarantor.

ISSUE: Whether or not the respondent is allowed to notarize outside the

area of her commission?

ANSWER: NO.

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. Whether the

respondent derived profit from her act of notarizing outside the area of

her authority is of no moment.  The fact remains that she notarized

outside the area of her commission.  The penalty of fine would be a

sufficient sanction.

HOLDING:

WHEREFORE, the Court hereby MODIFIES the resolution of the IBP

Board of Governors and hereby imposes on respondent ATTY. ROSALIE

DALLONG-GALICINAO a fine of Ten Thousand Pesos (P10,000) for misconduct

as a notary public.

VICTORINO SIMON, vs. JUDGE ALIPIO M. ARAGON

AM No. MTJ-05-1576; Feb. 3, 2005 (450 SCRA 414)

FACTS:

Victorino Simon charged respondent, Judge Alipio M. Aragon, the

presiding judge of the Municipal Circuit Trial Court of San Pablo and

Cabagan, Isabela, with conduct unbecoming of an officer.Complainant

alleged that he engaged in unauthorized notarial practice having

undertaken the preparation and acknowledgment of private documents,

contracts and other acts of conveyances without direct relation to the

performance of his functions as a member of the judiciary.

Judge admitted that he notarized the documents but explained that

he was constrained to do so as there was no lawyer or notary public in

San Pablo, Isabela from 1983 to 1992.  He clarified that, upon learning

of Circular No. 1-90 sometime in 1993, he immediately and voluntarily

desisted from further notarizing private documents.  He further claimed

that he never profited from his acts of notarization since the parties

paid the notarial fees with the Office of the Municipal Treasurer of San

Pablo

Issue:

Whether or not an MTCT Judge can notarized private documents where

no lawyer or notary public is available?

HELD:

Circular No. 1-90 specifically delineates the power of Municipal

Trial Court judges and Municipal Circuit Trial Court judges to act as

notaries public ex-officio. However, for MTC and MCTC judges assigned

to municipalities or circuits with no lawyers or notaries public to

validly perform any act of a regular notary public, two requisites must

concur:

1. All notarial fees charged must be for the account of the

Government and turned over to the municipal treasurer; and

2. Certification be made in the notarized documents attesting to

the lack of any lawyer or notary public in such municipality or circuit.

The court finds the respondent judge guilty of engaging in

unauthorized notarial work without complying with the requirement of

certification as to lack of a notary public within his municipality or

circuit. The respondent judge was fined the amount of One Thousand

Pesos (P1,000.00) for unauthorized notarization of a private document.

ELEMAR G. BOTE, vs. JUDGE GEMINIANO A. EDUARDO.

451 SCRA 9

FACTS:

Herein petitioner together with his wife bought a parcel of land.

Although the Deed of Sale had already been prepared, it was not

immediately delivered to the spouses because they have yet to pay the

full purchase price. After settling their obligation, the seller

delivered the Deed for notarization. However, the respondent Judge

erroneously dated the notarized document to March 19, 1985 instead of

March 19, 1986. As a result, civil and criminal charges were filed

against the petitioner, and a warrant was issued for his arrest.

Over the years, petitioner made many requests on respondent to

rectify the error, but the latter merely ignored the same. A final

demand letter with an attached certified copy of the notarial register

was sent, but was likewise denied by the respondent by issuing a

certification that the Deed was really notarized on March 19, 1985.

Thus, the petitioner filed the instant administrative complaint against

the respondent for serious neglect of duty and grave misconduct for his

malicious refusal to correct such error, presenting the certification on

the entry in the notarial register that such Deed was notarized on March

19, 1986. On another hand, the respondent argued that the Deed was the

best evidence of the date of notarization and that the Court need not

look at the notarial registry.  He questioned the entry in the notarial

registry, stating that it was of doubtful veracity because it was not in

his handwriting. He surmised that one of the parties to the deed

inserted the purported date of execution as September 16, 1985 since it

was not in his handwriting, and that his clerk was responsible of

filling-out dates in documents and entries in the notarial register for

him.

On November 18, 2003, the Office of the Court Administrator issued

its findings declaring respondent administratively liable.  In

its Memorandum, the OCA recommended that a fine of P10,000 be imposed

upon respondent, to be deducted from his retirement benefits.

ISSUE:

Whether or not the respondent Judge is negligent and is liable

therefore.

RULING:

YES. The Court held that respondent Judge is liable for his

erroneous notarization. The findings of the Office of the Court

Administrator that the respondent is negligent were borne by the

records. The Deed was prepared in 1985. Based on the records, the CTCs

of both parties to the Deed appeared to be on September 16, 1985, which

was already six months after the Deed was allegedly notarized by the

respondent as claimed by him. It was further proven that the Deed was

entered on March 19, 1986 in the notarial register. Respondent claimed

that he notarized the deed on March 19, 1985.  However, he could not

have possibly notarized the deed, with the vendor’s residence

certificate’s date of issue already typewritten, six months before the

residence certificate was issued.  More convincing is complainant’s

assertion that respondent notarized the deed on March 19, 1986, except

that in filling in the date of notarization, respondent did not notice

that the year 1985 was already typed in.A notarial register is a prima

facie evidence of the facts stated therein. It has the presumption of

regularity and to contradict the veracity of the entry, evidence must be

clear, convincing, and more than merely preponderant. Here, respondent

had not been able to successfully assail the veracity of the entry.  He

contended that it was not in his handwriting, but he himself had

declared that his clerk made the entries in the register for him, thus

revealing why the entry was not in his handwriting. The respondent was

also negligent when he notarized the Deed with unfilled spaces, making

uncertified and fraudulent insertions easy to accomplish. Notarization

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

substantial public interest that only those who are qualified or

authorized may act as notaries public. Notarization converts a private

document into a public document, making that document admissible in

evidence without further proof of its authenticity. For this reason,

notaries 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.

Respondent’s lack of due care in the performance of his delicate

task as ex officio notary public clearly rendered him administratively

liable.  Nonetheless, the Court could not agree with the OCA’s

recommended penalty.  Even considering that respondent consistently

refused to recognize his error after he has been informed of it, the

Court believes that respondent’s infraction would not warrant a stiff

fine of P10,000. Rather, considering the circumstances, a fine of P5,000

would have been more appropriatefor simple negligence.On record,

however, we find that respondent already passed away on June 11,

2001.Thus, in this case, for humanitarian reasons,we find it

inappropriate to impose any administrative liability of a punitive

nature. Even a fine lower than that recommended by OCA, in our view,

could no longer be imposed under the circumstances of this case.  OCA’s

recommendation was contained in its finding of administrative liability

only on November 18, 2003, a year and a half after respondent’s demise. 

As well said in Apiag v. Judge Cantero, involving also gross misconduct

and neglect, “[f]or such conduct, this Court would have imposed a

penalty.  But in view of his death prior to the promulgation of this

Decision, dismissal of the case is now in order.” It behooves us now to

declare the instant complaint DISMISSED, CLOSED and TERMINATED.

EPIFANIA DELA CRUZ, substituted by LAUREANA V. ALBERTO, vs. SPS. EDUARDO

C. SISON AND EUFEMIA S. SISON.

451 SCRA 754

FACTS:

Herein petitioner claimed that sometime in 1992, she discovered that

her rice land has been transferred and registered in the name of her

nephew, the respondent in this case, without her knowledge and consent.

She filed a complaint to declare the Deed of Sale null and void. She

alleged that the respondent tricked her into signing the purported Deed of

Sale by inserting such among the documents she signed pertaining to the

transfer of her residential land, house, and camarin in favor of Demetrio,

her foster child and the brother of Eduardo. The respondent denied that

they employed fraud and trickery in the execution of the said document.

They further averred that petitioner could not have been deceived into

signing such document because it was duly notarized and they have complied

all the necessary requisites for its registration. They also pointed out

that some of the documents bore the signature of the petitioner herself,

proving that petitioner agreed to the transfer of such property. Moreover,

respondents asserted that they have been in open, continuous, and peaceful

possession of the land since November 24, 1989, and have been receiving

its fruits as corroborated by the caretaker of the property. Adversely,

petitioner claimed that she is unable to read and understand the English

language used therein; thus, respondents failed to comply the requirement

laid down under Art. 1332 of the New Civil Code that states, “When one of

the parties is unable to read, or if the contract is in a language not

understood by him, and mistake or fraud is alleged, the person enforcing

the contract must show that the terms thereof have been fully explained to

the former.”

ISSUE:

Whether or not the Deed of Sale is null and void.

RULING:

The Court held that the Deed of Absolute Sale dated November 24, 1989

is VALID. The petitioner did not satisfactorily establish her inability to

read and understand the English language. During her testimony, Epifania

insisted that she cannot read, but her avowal is inconsistent with her own

complaint by alleging that she only read the document on top of the other

several copies and found the same to be the deed in favor of Demetrio and

being made to believe by Eduardo C. Sison that the other copies are the

same as the deed in favor of Demetrio C. Sison, she signed all the other

copies that Eduardo made her sign. To us, these contradictory statements

do not establish the fact that Epifania was unable to read and understand

the English language. Thus, there is no enough evidence adduced to support

her claim. It is well settled that a party who alleges a fact has the

burden of proving it. Hence, Art 1332 does not apply. Although she was 79

years old at the time the execution of the contract, her age did not

impair he mental faculties as to hinder her from properly and

intelligently protecting her rights. Even at the age of 83, she exhibited

mental astuteness when she testified in Court. It is therefore,

inconceivable for her to sign the assailed documents without ascertaining

their contents, especially if, as she alleges, she did not direct the

respondent to prepare the same.

In addition, the questioned document was duly notarized. It is a

settled rule that the one who denies the due execution of a deed where

ones signature appears has the burden of proving that one never appeared

before the notary public and acknowledged the deed to be a voluntary act.

Epifania never claimed her signatures as forgeries. In fact, she never

questioned the deed of sale in favor of Demetrio, accepting it as a valid

and binding document. Hence, we apply the rule that documents acknowledged

before notaries public are public documents which are admissible in

evidence without necessity of preliminary proof as to their authenticity

and due execution. They have in their favor the presumption of regularity,

and to contradict the same, there must be evidence that is clear,

convincing and more than mere preponderant. The burden of proof to

overcome the presumption of due execution of a notarial document lies on

the one contesting the same. Petitioner failed to discharge this burden.

We uphold the findings of the Court of Appeals that the series of official

acts and processes leading to the transfer of the tax declaration in the

name of Eduardo lend credence to the due execution of the questioned deed

of sale. The testimony of Municipal Agrarian Reform Officer Erlinda

Lomibao demonstrates the intent of Epifania to sell her land to the

former. According to Lomibao, both Epifania and Eduardo appeared before

her twice to facilitate the issuance of the clearance over the transfer of

the said property as shown in the DAR’s log book where both their names

and signatures appeared as written one after the other. These overwhelming

documentary evidence presented by the respondents prove that the spouses

Sison bought the property from Epifania.

ADELINA GUERZON BARCENAS, MAXIMO T. GUERZON SR., MARINA T. GUERZON,

GABRIEL T. GUERZON, and ROWEL T. GUERZON, in their Capacity as Heirs to

VERONICA TOLENTINO, vs. SPOUSES ANASTACIO TOMAS and CANDIDA CALIBOSO.

GR. No. 150321 , March 31, 2005 (454 SCRA 754)

The Facts

A case for recovery of ownership and possession of real property

with damages was filed by Respondent Spouses Anastacio Tomas and Candida

Caliboso against the heirs of Veronica Tolentino. The Complaint stated,

among others, that after the death of her husband, Benedicto Guerzon,

Veronica sold to respondents on May 7, 1969, a one-hectare portion of

her undivided share in a 14.6-hectare property. Situated in Barangay

Paitan Sur, Cuyapo, Nueva Ecija, the land was co-owned by her and her

ten children. The entire property was registered in her name and that of

her late husband and covered by Transfer Certificate of Title No. 16390.

Respondents took possession of the property immediately after the

sale. In 1989, however, the couple migrated to the United States,

leaving the lot in the possession of Victoriano Tomas, the husband's

brother. On April 13, 1989, the heirs of Veronica executed an

Extrajudicial Partition covering the entire property. As a result, a new

title was issued in the name of one of the heirs, Maximo Guerzon, who in

1995 wrested possession of the lot from Victoriano Tomas.

During the trial, respondents presented a Deed of Sale (Exhibit

"B") evidencing the sale of the one-hectare lot for P2,800. Moreover, an

Affidavit (Exhibit "C") showed that Veronica's children had subsequently

confirmed the sale. Petitioners, however, denied knowledge of the two

documents and claimed that their signatures on the Affidavit had been

forged.

Ruling that respondents had the better right of possession and

ownership of the land in question, the Municipal Trial Court of Cuyapo,

Nueva Ecija held that the sale of the one-hectare portion to them had

sufficiently been established by the notarized document of sale and by

their continuous possession of the property from 1969 until its

interruption by Maximo Guerzon in 1995. The MTC added that the

authenticity and genuineness of the Deed of Sale, as well as of the

Affidavit confirming it, could not be assailed by mere unsubstantiated

denials that the documents were fake. It ordered the defendants to

vacate the property immediately and to pay moral damages, litigation

expenses, attorney's fees and the costs of the suit.

On appeal, the Regional Trial Court, Branch 33, of Guimba, Nueva

Ecija affirmed the MTC Decision. Petitioners thereafter elevated the

case to the CA under Rule 42 of the Rules of Court.

As earlier stated, the CA dismissed the Petition for Review

because of the following procedural infirmities: (1) petitioners had

merely referred to themselves as the "Heirs of Veronica Tolentino,"

instead of stating their full names as required under Section 2(a) of

Rule 42; (2) the pleadings filed with the lower court had not been

appended to the Petition, contrary to Section 2(d) of Rule 42; and (3)

among petitioners, only one had signed the Verification and the

Certification of non-forum shopping.

ISSUE:

Petitioners ask the Supreme Court to (1) to set aside the CA

Resolution "in the interest of substantial justice"; and (2) to review

and reverse the RTC and the MTC Decisions, despite the fact that the CA

did not pass upon them on their merits.

The Court's Ruling

First Issue: Dismissal Due to Procedural Defects (Petition Defective in

Form)

A review of the Petition for Review easily confirms the defects

adverted to by the CA in its assailed October 11, 2001 Resolution. In

the title of the Petition, petitioners referred to themselves merely as

the "Heirs of Veronica Tolentino," without stating their full names or

the fact that they were represented by Adelina Guerzon Barcenas. This

lapse runs counter to the requirement of Section 2(a) of Rule 42,

especially because the deficiency could not have been offset by the

equally incomplete attachments.

Petitioners do not deny that the pertinent pleadings and portions

of the record in support of their allegations were not attached to the

Petition as required by Section 2(d) of Rule 42. They attribute this

procedural lapse to personal shortcomings, as well as to the purported

unwillingness of lower court personnel to provide the needed documents.

No proof was adduced to validate these excuses, however.

Worst of all, only Adelina signed the Verification and the

Certification of non-forum shopping. She did so despite her admission

that, among petitioners, she was the only signatory; and despite the

absence of proof that she had authority to sign for the others. Loquias

v. Office of the Ombudsman has categorically declared that where there

are two or more petitioners, a petition signed by only one of them is

defective, unless such signatory has been duly authorized by the co-

parties to represent them and to sign the certification. For that

matter, the Court notes that the Special Power of Attorney in Adelina's

favor was executed only on November 14, 2001, when the CA Resolution was

appealed by certiorari to this Court. It was therefore not intended for

the subject CA Petition.

Admittedly, all the infirmities besetting the Petition before the

CA affected only its form. In appropriate cases, they have been waived

to give the parties a chance to argue their causes and defenses on the

merits. To justify the relaxation of the rules, however, a satisfactory

explanation and a subsequent fulfillment of the requirements have always

been required.

Unfortunately, petitioners have not given any reasonable

justification for liberalizing the rules here. As pointed out earlier,

because they had not moved for a reconsideration of the CA Resolution --

for which they cited no reason -- they were not able to show reasonable

diligence in subsequently complying with the requirements. They must be

reminded that except for the most compelling grounds, procedural rules

must be strictly complied with to facilitate the orderly administration

of justice.

Petitioners are required by the Rules of Court to provide

appellate courts with certified true copies of the judgments or final

orders that are the subjects of review, as well as the material portions

of the record. The reason for such requirement is that these documents

and pleadings are needed by the reviewing courts in resolving whether to

give due course to petitions. Hence, this requirement cannot be

perfunctorily ignored or violated. Failure to comply with it hinders the

review of cases on the merits, deprives the appellate courts of

definitive bases for their actions, results in frustrating delays, and

contributes havoc to the orderly administration of justice.

Second Issue: Review of RTC and MTC Decisions (Subject of Appeal)

Section 1 of Rule 45 clearly states that the following may be

appealed to the Supreme Court through a petition for review by

certiorari: 1) judgments; 2) final orders; or 3) resolutions of the

Court of Appeals, the Sandiganbayan, the Regional Trial Court or similar

courts, whenever authorized by law. The appeal must involve only

questions of law, not of fact.

Procedurally then, petitioners could have appealed the RTC

Decision affirming the MTC (1) to this Court on questions of law only;

or (2) if there are factual questions involved, to the CA -- as they in

fact did. Unfortunately for petitioners, the CA properly dismissed their

petition for review because of serious procedural defects. This action

foreclosed their only available avenue for the review of the factual

findings of the RTC.

Finally, to satisfy he incessant call of petitioners for a factual

review, the Court -- despite the foregoing invocations -- nonetheless

looked over the records. It found no adequate basis for their claims. We

shall now run through the issues.

First, the evidence did not show that petitioners had presented

strong, complete, and conclusive proof that the notarized Deed of Sale

was false. Without that sort of evidence, the presumption of regularity,

the evidentiary weight conferred upon such public document with respect

to its execution, as well as the statements and the authenticity of the

signatures thereon, stand.

Second, no evidence was presented to establish the fact that the

Affidavit confirming the sale (Exhibit "C") had been forged. Forgery

cannot be presumed. Whoever alleges it must prove it by clear and

convincing evidence.

Third, the sale of the undivided share of Veronica Tolentino was

valid even without the consent of the other co-owners. Both law and

jurisprudence have categorically held that even while an estate remains

undivided, co-owners have each full ownership of their respective

aliquots or undivided shares and may therefore alienate, assign or

mortgage them. Here, the one-hectare portion sold to respondents was

very much less than the ideal share of Tolentino consisting of her

conjugal partnership share of one half of the 14.6-hectare lot (or 7.3

hectares) plus her equal share of 1/11 (0.66 hectare) of the other half.

In sum, the Court has bent over backwards and patiently given this case

more than adequate review and found absolutely no basis to reverse or

modify the Decisions of the three lower courts.

WHEREFORE, the Petition is DENIED and the assailed Resolution

AFFIRMED. Costs against petitioners.

SPOUSES BENJAMIN SANTUYO AND EDITHA SANTUYO, vs. ATTY. EDWIN A. HIDALGO.

A.C No. 5838, January 17, 2005 (448 SCRA 282)

The Facts

Complainants stated that sometime in December 1991, they purchased a

parcel of land covered by a deed of sale. The deed of sale was allegedly

notarized by respondent lawyer and was entered in his notarial register as

Doc. No. 94 on Page No. 19 in Book No. III, Series of 1991. Complainant

spouses averred that about six years after the date of notarization, they

had a dispute with one Danilo German over the ownership of the land. The

case was estafa through falsification of a public document.

During the trial of the case, German presented in court an affidavit

executed by respondent denying the authenticity of his signature on the

deed of sale. The spouses allegedly forged his notarial signature on said

deed.

According to complainants, respondent overlooked the fact that the

disputed deed of sale contained all the legal formalities of a duly

notarized document, including an impression of respondent’s notarial dry

seal. Not being persons who were learned in the technicalities surrounding

a notarial act, spouses contended that they could not have forged the

signature of herein respondent. They added that they had no access to his

notarial seal and notarial register, and could not have made any imprint

of respondent’s seal or signature on the subject deed of sale or

elsewhere.

In his answer to the complaint, respondent denied the allegations

against him. He denied having notarized any deed of sale covering the

disputed property. According to respondent, he once worked as a junior

lawyer at Carpio General and Jacob Law Office where he was asked to apply

for a notarial commission. While he admitted that he notarized several

documents in that office, these, however, did not include the subject deed

of sale. He explained that, as a matter of office procedure, documents

underwent scrutiny by the senior lawyers and it was only when they gave

their approval that notarization was done. He claimed that, in some

occasions, the secretaries in the law firm, by themselves, would affix the

dry seal of the junior associates on documents relating to cases handled

by the law firm. Moreover, respondent stressed that an examination of his

alleged signature on the deed of sale revealed that it was forged; the

strokes were smooth and mild. He suspected that a lady was responsible

for forging his signature.

To further refute the accusations against him, respondent stated

that, at the time the subject deed of sale was supposedly notarized, on

December 27, 1991, he was on vacation. He surmised that complainants must

have gone to the law office and enticed one of the secretaries, with the

concurrence of the senior lawyers, to notarize the document. He claimed he

was a victim of a criminal scheme motivated by greed.

The complaint was referred to the Integrated Bar of the Philippines

(IBP) for investigation, report and recommendation. In a report it

submitted to the Court, the IBP noted that the alleged forged signature of

respondent on the deed of sale was different from his signatures in other

documents he submitted during the investigation of the present case.

However, it ruled that respondent was also negligent because he allowed

the office secretaries to perform his notarial functions, including the

safekeeping of his notarial dry seal and notarial register.

ISSUE:

Whether or not the Notary Public is held liable for his actions under

the notarial law.

The Court’s Ruling

YES. Considering that the responsibility attached to a notary public

is sensitive, respondent should have been more discreet and cautious in

the execution of his duties as such and should not have wholly entrusted

everything to the secretaries; otherwise he should not have been

commissioned as notary public.

For having wholly entrusted the preparation and other mechanics of the

document for notarization to the secretary there can be a possibility that

even the respondent’s signature which is the only one left for him to do

can be done by the secretary or anybody for that matter as had been the

case herein.

As it is respondent had been negligent not only in the supposed

notarization but foremost in having allowed the office secretaries to make

the necessary entries in his notarial registry which was supposed to be

done and kept by him alone; and should not have relied on somebody else.

WHEREFORE, respondent Atty. Edwin A. Hidalgo is hereby found GUILTY

of negligence in the performance of his duties as notary public and is

hereby SUSPENDED from his commission as a notary public for a period of

two years, if he is commissioned, or if he is not, he is disqualified from

an appointment as a notary public for a period of two years from finality

of this resolution, with a warning that a repetition of similar negligent

acts would be dealt with more severely.

DECS vs. DEL ROSARIO

G.R. No. 146586.  January 26, 2005 (449 SCRA 299)

FACTS:

On 14 February 1992, respondents Julia Del Rosario, Maria Del

Rosario, Pacencia Del Rosario and the Heirs of Santos Del Rosario

(“respondents”) filed before the trial court a complaint for Recovery of

Possession against petitioner Department of Education, Culture and

Sports (“DECS”).  Respondents alleged that they own a parcel of land

with an area of 1,181 square meters (“Property”) situated in Kaypombo,

[4] Sta. Maria, Bulacan.  The Property was registered in 1976 in the

name of respondents under Transfer Certificate of Title No. T-222432 of

the Bulacan Register of Deeds.  Respondents alleged that the Kaypombo

Primary School Annex (“KPPS”) under DECS was occupying a portion of the

Property through respondents’ tolerance and that of their predecessors-

in-interest.  Respondents further alleged that KPPS refused to vacate

the premises despite their valid demands to do so.

Isaias del Rosario went to his house of Atty. Eli Natividad and

told him that he wanted to have a primary school in their place as  he

saw the plight of small pupils in their place; that the elementary

school then existing was very far from their place and Isaias del

Rosario wanted to have a primary school to help  these pupils and that

he is willing to donate a portion of the questioned lot for school

site, that Atty. Eli Natividad, testified that he prepared the deed of

donation which was signed by Isaias del Rosario in his residence which

was accepted by the municipality of Sta. Maria, Bulacan through a

resolution signed in the office of the secretary and the municipal

mayor; that a copy of said resolution could not be found due to the

transfer of the municipal hall from the old to the new building.

Atty. Natividad who is now a Judge and witness of the DECS

testified that he prepared and notarized the deed of donation.  He

further testified that there was a municipal council Resolution, signed

in the Office of the Secretary and of the Mayor, accepting the donation

and expressing gratitude to the donor.  He furnished the municipal

government, the DECS Division Office of Bulacan and the clerk of court

of Sta. Maria a copy of the deed of donation.

DECS allegedly made a search in the municipal building and in the

DECS Division Office in Bulacan.  The copies of the deed of donation

furnished these offices were purportedly “lost” when these offices

transferred to new locations.  However, as the Court of Appeals

correctly pointed out, Judge Natividad who claimed to have notarized the

deed of donation failed to account for other copies of the deed, which

the law strictly enjoins him to record, and furnish to other designated

government offices.

ISSUE: Whether not retaining a copy of a notaries document by notary

public effect the validity of document?

RULING:

In the absence of Primary evidence the secondary evidence is

admitted in court as long as there is a witness to prove the due

execution of the Deed of Donation. Resolution dated 29 December 2000 of

the Court of Appeals in CA-G.R. CV No. 43929 reversing the decisions of

lower court and issuing a decision in favor of the heirs of Del Rosario,

DECS fail to prove that they exceeded effort to locate the lost document

and DECS should have produced at the trial the notarial register where

Judge Natividad as the notary public should have recorded the deed of

donation.  Alternatively, DECS should have explained the unavailability

of the notarial register. Judge Natividad could have also explained why

he did not retain a copy of the deed of donation as required by law.  

As the Court of Appeals correctly observed, there was no evidence

showing that DECS looked for a copy from the Clerk of Court concerned or

from the National Archives.  All told, these circumstances preclude a

finding that DECS or the Municipality made a diligent search to obtain a

copy of the deed of donation.

In civil cases, the party having the burden of proof must

establish his case by a preponderance of evidence. “Preponderance of

evidence” means that the evidence as a whole adduced by one side is

superior to that of the other.  In other words, preponderance of

evidence means the greater weight of the evidence - or evidence that

outweighs the evidence of the adverse party.  This Court is not

satisfied that the evidence on the side of the party carrying the burden

of proof is of preponderating weight.

Much as we sympathize with the plight of the schoolchildren, we do

not find reversible error in the Decision of the Court of Appeals.  We

cannot grant the relief DECS is seeking and disregard existing laws and

jurisprudence.  DECS, however, is not without remedy.  The government

can expropriate at any time the Donated Site, paying just compensation

to respondents.

WHEREFORE, we DENY the petition. The Decision dated 25 September

2000 and the Resolution dated 29 December 2000 of the Court of Appeals

in CA-G.R. CV No. 43929 are AFFIRMED.

ATTY. MINIANO B. DELA CRUZ vs. ATTY. ALEJANDRO P. ZABALA

442 SCRA 407 November 17, 2004

Facts:

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

Marero to finance and undertake the filing of a Petition for the Issuance

of a Second Duplicate Original of the Owner’s copy of Original Certificate

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

Tapales. 

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

and had the title transferred to him and his wife. The next day,

complainant requested a certain Mrs. Adoracion Losloso and Mr. Nestor

Aguirre to register the title in the complainant’s name at the Assessor’s

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

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

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

over the same land, executed by Cirila Tapales and Pedro Sumulong in favor

of the complainant and his wife.

Mr. Marero filed a Complaint for Reconveyance of Title of the land,

subject of the Deed of Sale which was notarized by respondent, with

damages against the complainant and his wife.  The Deed of Sale was the

same document Marero used when he filed a complaint for Estafa thru

Falsification of Public Document before the Quezon City Prosecutor’s

Office and in disbarment against the complainant. 

To clear his name, complainant filed this complaint for disbarment

against respondent.  According to complainant, respondent notarized an

irregular document where one of the parties to the transaction was already

dead, grossly violating his oath as a notary public.

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

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

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

presence of the parties and their presentation of their community tax

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

notarized.  Furthermore, he adds, when he notarized the Deed of Sale, he

had no way of knowing whether the persons who appeared before him were the

real owners of the land or were merely poseurs.

Issue:   

Whether or not Atty. Alejandro P. Zabala was negligent in his conduct

as a notary public.

Ruling:

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

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

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

stated therein.  These acts of the affiants cannot be delegated because

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

personally sworn to.  Otherwise, their representative’s names should

appear in the said documents as the ones who executed the same.

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

any illegal or immoral arrangements. By affixing his notarial seal on the

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

document into a public document.  In doing so, respondent, in effect,

proclaimed to the world that (1) all the parties therein personally

appeared before him; (2) they are all personally known to him; (3) they

were the same persons who executed the instruments; (4) he inquired into

the voluntariness of execution of the instrument; and (5) they

acknowledged personally before him that they voluntarily and freely

executed the same. As a lawyer commissioned to be a notary public,

respondent is mandated to discharge his sacred duties with faithful

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

acknowledgment or jurat.  Simply put, such responsibility is incumbent

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

professional indiscretion.  His act of certifying under oath an irregular

Deed of Absolute Sale without ascertaining the identities of the persons

executing the same constitutes gross negligence in the performance of duty

as a notary public.

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

by the purported vendee and that only Pedro Sumulong appeared and

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

and Cirila Tapales.  In addition, a copy of the title was not attached to

the said Deed of Sale when it was presented for notarization. The

aforementioned circumstances should have alerted respondent.  Given the

ease with which community tax certificates are obtained these days,

respondent should have been more vigilant in ascertaining the identity of

the persons who appeared before him.

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

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

commission, if still existing, is hereby REVOKED and he is DISQUALIFIED

from being commissioned as a notary public for a period of two (2) years.

SOCIAL SECURITY COMMISSION, vs. ATTY. NAPOLEON CORRAL.

400 SCRA 291 

 

FACTS:

Social Security Commission (hereafter the Commission, for brevity)

sought to disbar respondent Atty. Napoleon Corral for preparing,

notarizing, and filing with the Commission’s Regional Office in Bacolod

City two complaints allegedly executed and verified by people who have

been long dead.

The Commission alleged that respondent filed the first spurious

complaint on April 18, 1986, on behalf of one Hermogenes Bareno. The

complaint was signed by respondent himself, but appeared to have been

verified by Bareno with a thumbmark and acknowledged before respondent

on April 16, 1986. Later, upon investigation, it was discovered that

Bareno had died two years earlier.

The second spurious complaint, for its part, was filed on September

10, 1987, on behalf of one Domingo N. Panadero, under similar

circumstances.  The complaint was likewise signed by respondent himself

and likewise appeared to have been verified by Panadero with a thumbmark

and acknowledged before respondent shortly prior to filing. When this

complaint was investigated, it was discovered that Panadero had also

died long before.

In his Comment, respondent argued that since Hermogenes Bareno’s

impostor had Bareno’s Social Security System (SSS) card, Domingo

Panadero’s impostor had Panadero’s SSS FORM E-1, and Catalino de la

Cruz’s impostor had an ID, he could not be faulted for not investigating

further into their identities.  He argued he had sufficiently complied

with his obligations as notary public when he relied only on what they

had presented, especially since they sought only the preparation of

simple, but justified, complaints for remittance of unpaid SSS premiums

ISSUE:  

Whether or not notarizing a documented executed and verified by

people who have been long dead before its due execution is a ground for

disbarment?

RULING:

The death certificates presented show that both Bareno and Panadero

had long been dead, while de la Cruz’s unrebutted affidavit proves he

had never been to Bacolod City where he supposedly verified the

complaint.  It is a mystery, then, how respondent, in notarizing the

complaints, could have certified that Bareno, Panadero and de la Cruz

personally appeared before him and swore to the truth of the facts

stated in the complaints. Respondent did not clarify whether the forms

of identification presented to him and on which he relied were valid

IDs.  He never expounded on what documents Bareno’s impostor presented

or on what kind of ID de la Cruz’s impostor showed him.

By recklessly notarizing the complaints without ascertaining that

Hermogenes Bareno, Domingo Panadero, and Catalino de la Cruz were indeed

personally appearing before him to attest to the contents and truth of

what were stated in the complaints he prepared, respondent undermined

the confidence of the public on notarial documents.  He breached Canon I

of the Code of Professional Responsibility which requires lawyers to

uphold the Constitution, obey the laws of the land and promote respect

for the law and legal processes, and Rule 1.01 thereof, which proscribes

lawyers from engaging in unlawful, dishonest, immoral or deceitful

conduct. 

WHEREFORE, for violating Public Act No. 2103, Section 1(a) and the

Code of Professional Responsibility, respondent Atty. Napoleon Corral’s

notarial commission, if still extant, is INDEFINITELY SUSPENDED

MELANIO L. ZORETA vs. ATTY. HEHERSON ALNOR G. SIMPLICIANO

A.C. No. 6492.  November 18, 2004 (443 SCRA 1)

FACTS:

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. 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.

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.

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 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.

Against the evidence presented by complainant,

respondent did not even attempt to present any evidence.  His

counsel filed an ex-parte motion 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.

ISSUE: What is the significance of the commission?

RULING:

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.

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.”

For such reprehensible conduct, the Court has sanctioned

erring lawyers by suspension from the practice of law, revocation

of the notarial commission and disqualification from acting as

such, and even disbarment. In the case of Nunga v. Viray, the

Court had reason 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. 

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.

Also, on different occasions, this Court had disbarred or

suspended lawyers for notarizing documents with an expired

commission in the following cases, to wit: 1. Flores v. Lozada,

2. Joson v. Baltazar, 3. Nunga v. Viray, and 4. Buensuceso v.

Barrera.

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.

Medina vs. Greenfield Development Corp.

443 SCRA 150

FACTS:

Petitioners are the grandchildren of Pedro Medina from two

marriages.  In his first marriage to Isadora San Jose, Pedro sired three

children: Rafael, Rita and Remegia; in his second marriage, this time to

Natalia Mullet, Pedro had five: Cornelio, Brigida, Balbino, Crisanta and

Rosila.  Except for Balbino and Crisanta, all of Pedro’s children

likewise bore children, the petitioners in this case.

On June 5, 1962, Pedro, his brother Alberto Medina and his niece

Nazaria Cruz (Alberto’s daughter) executed a notarized Contract to Sell

in favor of respondent Greenfield Development Corporation over a parcel

of land located in Muntinlupa City, then in the Province of Rizal,

covered by Transfer Certificate of Title (TCT) No. 100177 (Lot 90-A) and

measuring 17,121 square meters. A notarized Deed of Sale covering said

property was subsequently entered into on June 27, 1962, in favor of

respondent, and this time signed by Pedro, Cornelio, Brigida, Balbino,

Gregoria, Crisanta, Rosila, and Alberto, all surnamed Medina, and

Nazaria Cruz, as vendors. Hereafter, a notarized Deed of Absolute Sale

with Mortgage was executed on September 4, 1964 in favor of respondent

over Lot 90-B covered by TCT No. 100178, measuring 16,291 square

meters.  Signing as vendors were Pedro, Cornelio, Brigida, Balbino,

Gregoria, Crisanta, Rosila, and Alberto, all surnamed Medina, and

Nazaria Cruz. By virtue of these sales, respondent was able to register

in its name the title to the two parcels of land with TCT No. 100578

covering Lot 90-A and TCT No. 133444 covering Lot 90-B.  These

properties were consolidated with other lots and were eventually

registered on July 19, 1995, in the name of respondent.

On November 6, 1998, petitioners instituted Civil Case No. 98-233,

an action for annulment of titles and deeds, reconveyance, damages with

preliminary injunction and restraining order, against respondent and the

Register of Deeds of Makati. Included in the complaint are the heirs of

Nazaria Cruz, as unwilling co-plaintiffs. Petitioners allege in their

complaint that they are co-owners of these two parcels of land.  While

the titles were registered in the names of Pedro, Alberto, Cornelio,

Brigida and Gregoria, all surnamed Medina, they alleged that they were

recognized as co-owners thereof.  In support of their case, petitioners

maintain that the deeds of sale on these properties were simulated and

fictitious, and the signatures of the vendors therein were fake. 

Despite the transfer of the title to respondent’s name, they

remained in possession thereof and in fact, their caretaker, a certain

Santos Arevalo and his family still reside on a portion of the

property.  On July 13, 1998, petitioners caused an adverse claim to be

annotated on the titles.  After discovering the annotation, respondent

constructed a fence on the property and posted security personnel,

barring their ingress and egress.  Thus, petitioners sought, among

others, the issuance of a temporary restraining order and a writ of

preliminary injunction enjoining respondent and its agents and

representatives from preventing petitioners to exercise their rights

over the properties. Respondent denied the allegations, stating that

petitioners have no valid claim on the properties as it is already

titled in its name by virtue of the public documents executed by their

predecessors.  As counterclaim, respondent alleged that Santos Arevalo

is not petitioners’ caretaker and it was them who employed him as

caretaker.

Issue: Whether or not the deeds of sale were valid?

Ruling:

What tilt the balance in respondent’s favor are the notarized

documents and the titles to the properties.  The well-settled rule is

that a document acknowledged before a notary public enjoys the

presumption of regularity.  It is a prima facie evidence of the facts

therein stated. To overcome this presumption, there must be presented

evidence that is clear and convincing.  Absent such evidence, the

presumption must be upheld. In addition, the titles in the name of

respondent, having been registered under the Torrens system, are

generally a conclusive evidence of the ownership of the land referred to

therein, and a strong presumption exists that the titles are regularly

issued and valid. Therefore, until and unless petitioners show that the

documents are indeed spurious and the titles invalid, then the

presumptions must prevail at this juncture.

Petitioners also claim that they are in actual possession of the

property.  As alleged in their complaint, they instituted Santos

Arevalo, a co-petitioner, as caretaker. They also alleged in their

petition filed before this Court that Balbino and Yolanda Medina and

their respective families are still residing on a portion of the

property. Respondent belies their claim, declaring that it employed

Arevalo as caretaker.  Respondent presented a notarized Receipt and

Quitclaim dated April 26, 1994, signed by Arevalo, who attested that he

was employed by respondent as caretaker and that his stay on the

property was a mere privilege granted by respondent.

Possession and ownership are two different legal concepts.  Just

as possession is not a definite proof of ownership, neither is non-

possession inconsistent with ownership. Even assuming that petitioners’

allegations are true, it bears no legal consequence in the case at hand

because the execution of the deeds of conveyances is already deemed

equivalent to delivery of the property to respondent, and prior physical

delivery or possession is not legally required. Under Article 1498 of

the Civil Code, “when the sale is made through a public instrument, the

execution thereof shall be equivalent to the delivery of the object of

the contract, if from the deed the contrary does not appear or cannot be

inferred.” Possession is also transferred, along with ownership thereof,

to respondent by virtue of the notarized deeds of conveyances.

ZENAIDA B. TIGNO, IMELDA B. TIGNO and ARMI B. TIGNO, vs. SPOUSES

ESTAFINO AQUINO and FLORENTINA AQUINO and the HONORABLE COURT OF

APPEALS.

G.R. No. 129416.  November 25, 2004 (444 SCRA 61)

FACTS:

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). The complaint sought to

enforce an alleged sale by Bustria to the Aquinos of a fishpond located

in Dasci, Pangasinan. Such conveyance was covered by a Deed of Sale

dated 2 September 1978. Bustria and the Aquinos entered into a

compromise agreement, whereby Bustria agreed to recognize the validity

of the sale, and grant the right to repurchase the same property after

the lapse of seven (7) years.

Bustria was then substituted by petitioner Zenaida B. Tigno, the

daughter after his death. She attempted to repurchase the property

however the Aquinos filed an opposition and alleged that Bustria had

sold his right to repurchase the property to them in a deed of sale

dated 17 October 1985. 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.

However, 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.

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.

The RTC likewise observed that nowhere in the alleged deed of sale was

there any statement that it was acknowledged by Bustria; 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.

An appeal was interposed by the Aquinos to the Court of Appeals

which then reversed and set aside the RTC Decision. 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.

Accordingly, the Court of Appeals held that the RTC erred in refusing to

admit the Deed of Sale. Thus, this petition.

Petitioner raises a substantial argument regarding the capacity of

the notary public, Judge Cariño, to notarize the document.

ISSUES:

Whether or not a deed of sale subscribed by way of jurat, not by

acknowledgement is admissible as evidence.

Whether or not 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.

Whether or not Judge Cariño is authorized to notarize a deed of

sale.

RULING:

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. The Court now concludes instead that the document

has not been duly notarized and accordingly reverse the decision of

Court of Appeals.

There are palpable errors in this certification. The document is

certified by way of a jurat instead of an acknowledgment. A jurat 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. Under Section 127 of the Land Registration Act, which has

been replicated in Section 112 of Presidential Decree No. 1529, the Deed

of Sale should have been acknowledged before a notary public.

Moreover, Franklin Cariño at the time of the notarization of

the Deed of Sale, was a sitting judge of the Metropolitan Trial Court of

Alaminos. Citing Tabao v. Asis, the 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. The Deed of Sale was not connected with any

official duties of Judge Cariño, and there was no reason for him to

notarize it. 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. Notarization

of a private document converts such document into a public one, and

renders it admissible in court without further proof of its

authenticity.

However, the absence of notarization of the Deed of Sale would not

necessarily invalidate the transaction evidenced therein. Article 1358

of the Civil Code requires that the form of a contract that transmits or

extinguishes real rights over immovable property should be in a public

document, yet it is also an accepted rule that the failure to observe

the proper form does not render the transaction invalid. The 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.

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.

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.

Since the the Deed of Sale was offered in evidence as authentic by

the Aquinos, the burden falls upon the Aquinos to prove its

authenticity. However, as 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 which 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. Nevertheless, the inconsistencies in

the testimonies of Judge Cariño and De Francia are irreconcilable. De

Francia testified that Judge Cariño himself prepared and typed the Deed

of Sale in his office, where the document was signed,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.

The totality of the picture leads the Court 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.

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.

FELIX AZUELA, vs. COURT OF APPEALS.

G.R. No. 122880; April 12, 2006 (487 SCRA 119)

FACTS:

The core of this petition is a highly defective notarial

will, purportedly executed by Eugenia E. Igsolo (decedent), who

died on 16 December 1982 at the age of 80. In refusing to give

legal recognition to the due execution of this document, the

Court is provided the opportunity to assert a few important

doctrinal rules in the execution of notarial wills, all self-

evident in view of Articles 805 and 806 of the Civil Code.

A will whose attestation clause does not contain the number

of pages on which the will is written is fatally defective. A

will whose attestation clause is not signed by the instrumental

witnesses is fatally defective. And perhaps most importantly, a

will which does not contain an acknowledgment, but a mere jurat,

is fatally defective. Any one of these defects is sufficient to

deny probate. A notarial will with all three defects is just

aching for judicial rejection.

The case stems from a petition for probate filed on 10 April

1984 with the Regional Trial Court (RTC) of Manila. The petition

filed by petitioner Felix Azuela sought to admit to probate the

notarial will of Eugenia E. Igsolo, which was notarized on 10

June 1981. Petitioner is the son of the cousin of the decedent.

The will, consisting of two (2) pages and written in the

vernacular Pilipino:

PATUNAY NG MGA SAKSI

Ang kasulatang ito, na binubuo ng ____ dahon pati ang

huling dahong ito, na ipinahayag sa amin ni Eugenia E.

Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon

ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing

tagapagmana sa ilalim ng kasulatang nabanggit at sa

kaliwang panig ng lahat at bawa’t dahon, sa harap ng

lahat at bawa’t sa amin, at kami namang mga saksi ay

lumagda sa harap ng nasabing tagapagmana at sa harap ng

lahat at bawa’t isa sa amin, sa ilalim ng nasabing

kasulatan at sa kaliwang panig ng lahat at bawa’t dahon

ng kasulatan ito.

The three named witnesses to the will affixed their

signatures on the left-hand margin of both pages of the will, but

not at the bottom of the attestation clause.

The petition was opposed by Geralda Aida Castillo (Geralda

Castillo), who represented herself as the attorney-in-fact of

"the 12 legitimate heirs" of the decedent. Geralda Castillo

claimed that the will is a forgery, and that the true purpose of

its emergence was so it could be utilized as a defense in several

court cases filed by oppositor against petitioner, particularly

for forcible entry and usurpation of real property, all centering

on petitioner’s right to occupy the properties of the

decedent. It also asserted that contrary to the representations

of petitioner, the decedent was actually survived by 12

legitimate heirs, namely her grandchildren, who were then

residing abroad. Per records, it was subsequently alleged that

decedent was the widow of Bonifacio Igsolo, who died in 1965, and

the mother of a legitimate child, Asuncion E. Igsolo, who

predeceased her mother by three (3) months. Oppositor Geralda

Castillo also argued that the will was not executed and attested

to in accordance with law. She pointed out that decedent’s

signature did not appear on the second page of the will, and the

will was not properly acknowledged. These twin arguments are

among the central matters to this petition.

ISSUE:

WHETHER OR NOT the will was not executed and attested to in

accordance with the law.

RULING:

Art. 805. Every will, other than a holographic will, must be

subscribed at the end thereof by the testator himself or by the

testator's name written by some other person in his presence, and

by his express direction, and attested and subscribed by three or

more credible witnesses in the presence of the testator and of

one another.

The testator or the person requested by him to write his

name and the instrumental witnesses of the will, shall also sign,

as aforesaid, each and every page thereof, except the last, on

the left margin, and all the pages shall be numbered

correlatively in letters placed on the upper part of each page.

Art. 806. Every will must be acknowledged before a notary

public by the testator and the witnesses. The notary public shall

not be required to retain a copy of the will, or file another

with the office of the Clerk of Court.

The failure of the attestation clause to state the number of

pages on which the will was written remains a fatal flaw, despite

Article 809. The purpose of the law in requiring the clause to

state the number of pages on which the will is written is to

safeguard against possible interpolation or omission of one or

some of its pages and to prevent any increase or decrease in the

pages. The failure to state the number of pages equates with the

absence of an averment on the part of the instrumental witnesses

as to how many pages consisted the will, the execution of which

they had ostensibly just witnessed and subscribed to.

An acknowledgement is not an empty meaningless act. The

acknowledgment coerces the testator and the instrumental

witnesses to declare before an officer of the law that they had

executed and subscribed to the will as their own free act or

deed. Such declaration is under oath and under pain of perjury,

thus allowing for the criminal prosecution of persons who

participate in the execution of spurious wills, or those executed

without the free consent of the testator. It also provides a

further degree of assurance that the testator is of certain

mindset in making the testamentary dispositions to those persons

he/she had designated in the will.

All told, the string of mortal defects which the will in

question suffers from makes the probate denial inexorable.

WHEREFORE, the petition is DENIED. Costs against petitioner.

PAN PACIFIC INDUSTRIAL SALES CO., INC., vs. COURT OF APPEALS and NICOLAS

CAPISTRANO.

G.R. No. 125283; February 10, 2006 (482 SCRA 164)

FACTS:

On 10 September 1982, Capistrano executed a Special Power of

Attorney authorizing Cruz to mortgage the subject lot in favor of

Associated Bank (the Bank) as security for the latter’s loan

accommodation.

Shortly, by virtue of the Special Power of Attorney, Cruz obtained

a loan in the amount of P500,000.00 from the Bank. Thus, he executed a

Real Estate Mortgage over the subject lot in favor of the Bank.

Capistrano and Cruz then executed a letter-agreement dated 23 September

1982 whereby Cruz agreed to buy the subject lot for the price

of P350,000.00, of which P200,000.00 would be paid out of the loan

secured by Cruz, and the balance of P150,000.00 in eight (8) quarterly

payments of P18,750.00 within two (2) years from 30 October 1982,

without need of demand and with interest at 18% in case of default.

On 15 March 1983, Capistrano executed the Deed of Absolute

Sale over the subject lot in favor of Cruz. Two (2) days later, on 17

March 1983, Notary Public Vicente J. Benedicto (Benedicto) notarized the

deed. However, it was earlier or on 9 March 1983 that Capistrano’s wife,

Josefa Borromeo Capistrano, signed the Marital Consent evidencing her

conformity in advance to the sale. The Marital Consent was also sworn to

before Benedicto.

Following the execution of the deed of sale, Cruz continued

payments to Capistrano for the subject lot. Sometime in October 1985,

Capistrano delivered to Cruz a Statement of Account signed by

Capistrano, showing that as of 30 October 1985, Cruz’s balance stood

at P19,561.00 as principal, and P3,520.98 as interest, or a total

ofP23,081.98.

Thus, in May 1987, with the mortgage on the subject lot then being

in danger of foreclosure by the Bank, Cruz filed a case with the RTC of

Manila, Branch 11, docketed as Civil Case No. 87-40647, to enjoin the

foreclosure. Cruz impleaded Capistrano and his spouse Josefa Borromeo

Capistrano as defendants, the title to the subject lot not having been

transferred yet to his name.

Pan Pacific, which bought the subject lot from the Cruz spouses,

was allowed to intervene in the proceedings and joined Cruz, in

resisting the complaint insofar as the first cause of action on the

subject lot is concerned.

ISSUE:

WHETHER OR NOT THE RESCISION OF DEED OF ABSOLUTE SALE MAY BE

GRANTED.

RULING:

The petition is imbued with merit.

Deeply embedded in our jurisprudence is the rule that notarial

documents celebrated with all the legal requisites under the safeguard

of a notarial certificate is evidence of a high character and to

overcome its recitals, it is incumbent upon the party challenging it to

prove his claim with clear, convincing and more than merely preponderant

evidence.

A notarized document carries the evidentiary weight conferred upon

it with respect to its due execution, and it has in its favor the

presumption of regularity which may only be rebutted by evidence so

clear, strong and convincing as to exclude all controversy as to the

falsity of the certificate. Absent such, the presumption must be upheld.

The burden of proof to overcome the presumption of due execution of a

notarial document lies on the one contesting the same. Furthermore, an

allegation of forgery must be proved by clear and convincing evidence,

and whoever alleges it has the burden of proving the same.

Evidently, as he impugns the genuineness of the documents,

Capistrano has the burden of making out a clear-cut case that the

documents are bogus. The courts below both concluded that Capistrano had

discharged this burden. However, this Court does not share the

conclusion. Indeed, Capistrano failed to present evidence of the forgery

that is enough to overcome the presumption of authenticity.

Corollarily, he who disavows the authenticity of his signature on

a public document bears the responsibility to present evidence to that

effect. Mere disclaimer is not sufficient. At the very least, he should

present corroborating witnesses to prove his assertion. At best, he

should present an expert witness.

The courts below also assigned an adverse connotation to Cruz’s

impleading of the Capistrano spouses as party-defendants in the action

against the Bank to enjoin the foreclosure of the mortgage on the

subject lot. Cruz’s move is congruent with both his strong desire to

protect his interest in the subject lot and the reality that there was

an existing deed of sale in his favor. Precisely, his interest in the

lot is borne out and had arisen from the deed of sale. As purchaser of

the lot, he had to avert the foreclosure of the mortgage thereon. And to

ensure against the dismissal of the action for failure to join a real

party-in-interest, he had to implead Capistrano in whose name the title

to the subject lot was registered still.

The use of a jurat, instead of an acknowledgement does not elevate

the Marital Consent to the level of a public document but instead

consigns it to the status of a private writing. The lack of

acknowledgment, however, does not render a deed invalid. The necessity

of a public document for contracts which transmit or extinguish real

rights over immovable property, as mandated by Article 1358 of the Civil

Code, is only for convenience; it is not essential for validity or

enforceability.

WHEREFORE, the Petition is GRANTED. The Decision dated 4 June 1996

of the Court of Appeals in CA-G.R. CV No. 41112 is REVERSED and SET

ASIDE. Respondent Nicolas Capistrano is ordered to surrender the owner’s

duplicate certificate of Transfer of Certificate of Title No. 143599 to

the Register of Deeds of Manila to enable the issuance of a new title

over the subject lot in the name of petitioner Pan Pacific Industrial

Sales, Inc. Costs against respondent Nicolas Capistrano.

VICTORINA BAUTISTA, vs. ATTY. SERGIO E. BERNABE.

A.C. No. 6963; February 9, 2006 (482 SCRA 1)

FACTS:

Complainant alleged that on January 3, 1998, respondent prepared

and notarized a Magkasanib na Salaysay purportedly executed by Donato

Salonga and complainant’s mother, Basilia de la Cruz. Both affiants

declared that a certain parcel of land in Bigte, Norzagaray, Bulacan,

was being occupied by Rodolfo Lucas and his family for more than 30

years. Complainant claimed that her mother could not have executed the

joint affidavit on January 3, 1998 because she has been dead since

January 28, 1961.

In his Answer, respondent denied that he falsified the Magkasanib

na Salaysay. He disclaimed any knowledge about Basilia’s death. He

alleged that before he notarized the document, he requested for

Basilia’s presence and in her absence, he allowed a certain Pronebo,

allegedly a son-in-law of Basilia, to sign above the name of the latter

as shown by the word "by" on top of the name of Basilia. Respondent

maintained that there was no forgery since the signature appearing on

top of Basilia’s name was the signature of Pronebo.

ISSUE:

WHETHER OR NOT respondent act unethical conduct in the performance

of his duties as notary public.

RULING:

In a Complaint1 filed before the Commission on Bar Discipline of

the Integrated Bar of the Philippines (IBP) on November 16, 2004,

complainant Victorina Bautista prays for the suspension or disbarment of

respondent Atty. Sergio E. Bernabe for malpractice and unethical conduct

in the performance of his duties as a notary public and a lawyer.

The records sufficiently established that Basilia was already dead

when the joint affidavit was prepared on January 3, 1998. Respondent’s

alleged lack of knowledge of Basilia’s death does not excuse him. It was

his duty to require the personal appearance of the affiant before

affixing his notarial seal and signature on the instrument.

A notary public should not notarize a document unless the persons

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

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

what are stated therein. The presence of the parties to the deed will

enable the notary public to verify the genuineness of the signature of

the affiant.

By affixing his signature and notarial seal on the instrument, he

led us to believe that Basilia personally appeared before him and

attested to the truth and veracity of the contents of the affidavit when

in fact it was a certain Pronebo who signed the document. Respondent’s

conduct is fraught with dangerous possibilities considering the

conclusiveness on the due execution of a document that our courts and

the public accord on notarized documents. Respondent has clearly failed

to exercise utmost diligence in the performance of his function as a

notary public and to comply with the mandates of the law.

Respondent was also remiss in his duty when he allowed Pronebo to

sign in behalf of Basilia. 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 him. They should swear to the document personally and

not through any representative.

WHEREFORE, for breach of the Notarial Law and Code of Professional

Responsibility, the notarial commission of respondent Atty. Sergio E.

Bernabe, is REVOKED. He is DISQUALIFIED from reappointment as Notary

Public for a period of two years. He is also SUSPENDED from the practice

of law for a period of one year, effective immediately. He is

further WARNED that a repetition of the same or of similar acts shall be

dealt with more severely. He is DIRECTED to report the date of receipt

of this Decision in order to determine when his suspension shall take

effect.

TAGUNICAR et al. vs LORNA EXPRESS CREDIT CORP.

G.R. No. 138592, February 28, 2006 (483 SCRA 486)

FACTS:

Spouses Elsa and Emerson Tagunicar (petitioners) obtained a

loan of P60,000.00 from Lorna Express Credit Corporation

(respondent). As security, they executed a deed of mortgage over

their two unregistered lots with improvements located at Upper

Bicutan, Taguig, Metro Manila.

Subsequently, because of the failure of the petitioners to

pay said loan, the respondent filed with the RTC of Makati City a

complaint for sum of money amounting to P223,057.34 (representing

the principal and interests) against petitioners. The RTC,

however, dismissed the complaint for respondent’s failure to

prosecute. Meantime, due to the inability of petitioners to pay

their loan (now amounting to P740,254.87), respondent, through

its counsel, filed with the Office of the Sheriff of Taguig,

Metro Manila an application for extra judicial foreclosure under

Act No. 3135, as amended.

On September 29, 1997, the Notice of Auction Sale was issued

by the Office of Notary Public. It was (1) posted at three public

places in the municipalities of Taguig and Pasig; and (2)

published in Bongga once a week for three consecutive weeks

(October 4, 11 and 18, 1997), setting the auction sale of the

mortgaged property on October 24, 1997 at ten o’clock in the

morning at the main entrance of the Taguig Municipal Hall.

Petitioners immediately filed with the RTC a petition for

prohibition from proceeding with the auction sale. The petition

and the subsequent motion for reconsideration were denied by the

RTC. This prompted petitioners to file with the Court of Appeals

a petition for review, which was also denied. Hence, the petition

for review on certiorari before the Supreme Court. Petitioners

alleged that the said auction sale was set, not after the third

publication, but only after the first publication, in violation

of Section 3 of Act No. 3135, as amended, and that the law

applicable for extrajudicial foreclosure of a mortgage and

auction sale is the Supreme Court Administrative Order no. 3, and

thus, the foreclosure proceedings before a notary public is null

and void.

ISSUE:

Whether or not the foreclosure proceedings before the notary

public is null and void.

RULING:

No, the foreclosure proceeding before the notary public is

valid.

As to the petitioners’ contention that the notice of auction

sale did not comply with the requirements in Section 3, Act No.

3135, records show that the notice of auction sale was posted in

three public places in the Municipality of Taguig and Pasig City.

The said notice was published once a week for three consecutive

weeks or on October 4, 11 and 18, 1997 in Bongga, a newspaper of

general circulation. Thus, the mandatory requirements of notice

and publication provided in Section 3, Act No. 3135, as amended,

were complied with.

As to the authority of the Notary Public to conduct public

auction, Section 4 of Act No. 3135, as amended, provides:

Sec. 4. The sale shall be made at public auction, between the

hours of nine in the morning and four in the afternoon; and shall

be under the direction of the sheriff of the province, the

justice or auxiliary justice of the peace (now municipal or

auxiliary municipal judge) of the municipality in which such sale

has to be made, or a NOTARY PUBLIC of said municipality, who

shall be entitled to collect a fee of five pesos for each day of

actual work performed, in addition to his expenses.

Clearly, the Notary Public is authorized to direct or

conduct a public auction.

WHEREFORE, the petition is denied. The assailed decision of

the CA is affirmed.

MALLARI VS. ALSOL

G.R. No. 150866; 06 March 2006 (484 SCRA 148)

Facts:

Stalls No. 7 and 8 of the Supermarket Section of the

Cabanatuan City Public Market were awarded to and occupied by

Abelardo Mallari ("Abelardo"), father of Manuel Mallari

("Manuel") and Rebecca Alsol ("respondent"). Before Abelardo’s

death on 16 July 1986, he gave the stalls to Manuel and

respondent. Manuel and his wife Millie Mallari ("petitioners")

occupied Stall No. 7 while respondent and her husband Zacarias

Alsol occupied Stall No. 8.

In July 1988, respondent’s daughter became sick and the

Alsol family had to stay in Manila for two months for the medical

treatment. They returned to Cabanatuan City in September 1988

only to find out that petitioners were already occupying Stall

No. 8. The partition between Stalls No. 7 and 8 had been removed

and respondent’s merchandise and things were already gone.

Petitioners refused respondent’s demand to vacate Stall No. 8.

Respondent sought the help of the City Market Committee

("Committee"). On 5 May 1989, the Committee passed Kapasiyahan

Blg. 1, s-1989 granting Stall No. 7 to Manuel and Stall No. 8 to

respondent. On 4 June 1990, respondent and the City Government of

Cabanatuan ("City Government"), represented by City Mayor

Honorato C. Perez ("Mayor Perez"), executed a Contract of Lease

("Lease Contract"). The Lease Contract granted respondent the

right to occupy Stall No. 8 for a monthly rental of P316 subject

to increase or decrease in accordance with the rules and

ordinances of the City Government.

Issue:

Whether the Lease Contract executed between respondent and

the City Government is valid.

Held:

Petitioners allege that the Court of Appeals erred in

applying Republic Act No. 7160, otherwise known as the Local

Government Code of 1991, which took effect on 1 January 1992 or

long after the execution of the Lease Contract on 4 June 1990.

The Court agrees with petitioners that RA 7160 is not the

applicable law. Instead, the Court of Appeals should have applied

Batas Pambansa Blg. 337 or the old Local Government Code. Still,

even under BP 337, city mayors have the authority to sign

contracts on behalf of city governments.

Petitioners also allege that the Lease Contract is not valid

because Mayor Perez did not appear before the notary public who

notarized the document.

Notarization converts a private document into a public

document. However, the non-appearance of the parties before the

notary public who notarized the document does not necessarily

nullify nor render the parties’ transaction void ab initio. Thus:

x x x Article 1358 of the New Civil Code on the

necessity of a public document is only for convenience,

not for validity or enforceability. Failure to follow

the proper form does not invalidate a contract. Where a

contract is not in the form prescribed by law, the

parties can merely compel each other to observe that

form, once the contract has been perfected. This is

consistent with the basic principle that contracts are

obligatory in whatever form they may have been entered

into, provided all essential requisites are present.

Hence, the Lease Contract is valid despite Mayor Perez’s

failure to appear before the notary public.