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

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

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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?

RULING:

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

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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

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

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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?

RULING:

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.

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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,

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.

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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.

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BENILDA M. MADDELA vs ATTY. ROSALIE DALLONG-GALICINAO

450 SCRA 352

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 unbecominga 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.

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ISSUE:

Whether or not the respondent is allowed to notarize outside the area of her commission?

RULING

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.

RULING:

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

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

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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?

RULING:

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.

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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

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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 appropriate for 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.

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EPIFANIA DELA CRUZ 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

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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.

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ADELINA GUERZON BARCENAS ET AL. vs SPOUSES ANASTACIO TOMAS and CANDIDA CALIBOSO

454 SCRA 754

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

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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.

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

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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

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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

448 SCRA 282

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.

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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.

RULING:

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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

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.

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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

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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.

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

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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. 

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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

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

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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.

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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.

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

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.

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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

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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

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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.

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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, ET AL. vs SPOUSES ESTAFINO AQUINO and FLORENTINA AQUINO and the CA

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

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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.

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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.

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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.

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FELIX AZUELA vs COURT OF APPEALS

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.

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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.

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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.

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.

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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

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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

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subject lot in the name of petitioner Pan Pacific Industrial Sales, Inc. Costs against respondent

Nicolas Capistrano.

VICTORINA BAUTISTA vs ATTY. SERGIO E. BERNABE

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 Complaint 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

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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.

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.

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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

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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

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.

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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.

RULING:

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.

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