A.C. No.

10132

HEIRS OF PEDRO ALILANO represented by DAVID ALILANO, Complainants,

vs.
ATTY. ROBERTO E. EXAMEN,Respondent .

DECISION

VILLARAMA, JR., J.:

Before us is a complaint1 for disbarment filed before the Integrated Bar of the Philippines (IBP)
by the heirs of Pedro Alilario against Atty. Roberto E. Examen for misconduct and malpractice
for falsifying documents and presenting these as evidence in court thus violating the Lawyer's
Oath,2 Canons 1,3 104 and 19,5 and Rules 1.01,6 1.02,710.01,8 and 19.019 of the Code of
Professional Responsibility (CPR).

Pedro Alilano and his wife, Florentina, were the holders of Original Certificate of Title (OCT)
No. P-23261 covering a 98,460 sq. m. parcel of land identified as Lot No. 1085 Pls-544-D
located in Paitan, Esperanza, Sultan Kudarat. Pedro and Florentina died on March 6, 1985 and
October 11, 1989, respectively.

It appears that on March 31, 1984 and September 12, 1984 Absolute Deeds of Sale 10 were
executed by the Spouses Alilano in favor of Ramon Examen and his wife, Edna. Both
documents were notarized by respondent Atty. Roberto Examen, brother of the vendee.
Sometime in September 1984, Spouses Examen obtained possession of the property.

On January 12, 2002, the heirs of Alilano filed a suit for recovery of possession before the
Regional Trial Court of Sultan Kudarat against Edna Examen and Atty. Roberto Examen. 11 It
was during this proceeding that Atty. Examen introduced into evidence the March 31, 1984 and
September 12, 1984 Absolute Deeds of Sale.

On November 15, 2003,12 the heirs of Alilano filed this complaint alleging that Atty. Examen,
based on Barretto v. Cabreza,13 violated the notarial law when he notarized the absolute deeds
of sale since a notary public is prohibited from notarizing a document when one of the parties is
a relative by consanguinity within the fourth civil degree or affinity within the second civil
degree. It is also alleged that Atty. Examen notarized the documents knowing that the cedula or
residence certificate number used by Ramon Examen was not actually his but the residence
certificate number of Florentina. Atty. Examen also falsely acknowledged that the two
witnesses personally appeared before him when they did not. Lastly, it is alleged that despite
knowing the infirmities of these documents, Atty. Examen introduced these documents into
evidence violating his oath as a lawyer and the CPR.

In his defense, Atty. Examen pointed out that there was no longer any prohibition under the
Revised Administrative Code for a notary public to notarize a document where one of the
parties is related to him by consanguinity and affinity.14 With regard to the use of Florentina’s
residence certificate as Ramon’s, Atty. Examen said that he was in good faith and that it was
office practice that the secretary type details without him personally examining the output.15 In
any event, he reasoned that the use of another’s residence certificate is not a ground for
disbarment and is barred by prescription based on IBP Resolution No. XVI-2004-13 dated
January 26, 2004 where it was proposed that the Rules of Procedure of the Commission on Bar
Discipline Integrated Bar of the Philippines, Section 1, Rule VIII, be revised to include a
prescription period for professional misconduct: within two years from the date of the act.16

In its Report and Recommendation,17 the IBP Commission on Bar Discipline (CBD) found
Atty. Examen liable for breach of the Notarial Law and introducing false Absolute Deeds of
Sale before court proceedings. It stated that there was ample evidence to support the
complainants’ contention that the Spouses Alilano did not voluntarily and knowingly convey
their property, i.e. denials under oath by attesting witnesses and NBI Report by Handwriting
Expert Jennifer Dominguez stating that Pedro Alilano’s signature in the September 1984
Absolute Deed of Sale was significantly different from the specimen signatures. It also noted
that Ramon Examen’s residence certificate number, date and place of issue were also falsified
since the residence certificate actually belonged to Florentina Pueblo. It thus recommended that
the penalty of disbarment be imposed.

The IBP Board of Governors (BOG) in its June 26, 2007 Resolution18 adopted the IBP CBD’s
report but modified the penalty to suspension from the practice of law for a period of two years
and a suspension of Atty. Examen’s Notarial Commission for a period of two years.

Atty. Examen moved for reconsideration. In its Notice of Resolution, the IBP BOG denied the
motion for reconsideration. It also modified the penalty imposed to suspension from the practice
of law for a period of one year and disqualification from re-appointment as Notary Public for a
period of two years.19

We agree with the IBP that Atty. Examen is administratively liable and hereby impose a
modified penalty.

In disbarment cases the only issue that is to be decided by the Court is whether the member of
the bar is fit to be allowed the privileges as such or not.20 It is not therefore the proper venue for
the determination of whether there had been a proper conveyance of real property nor is it the
proper proceeding to take up whether witnesses’ signatures were in fact forged.

NO PRESCRIPTION OF ACTIONS FOR

ACTS OF ERRING MEMBERS OF THE BAR

In Frias v. Atty. Bautista-Lozada,21 the Court En Banc opined that there can be no prescription
in bar discipline cases. It pointed out this has been the policy since 1967 with the Court’s ruling
in Calo, Jr. v. Degamo22 and reiterated in Heck v. Santos23 where we had the chance to state:

If the rule were otherwise, members of the bar would be emboldened to disregard the very oath
they took as lawyers, prescinding from the fact that as long as no private complainant would
immediately come forward, they stand a chance of being completely exonerated from whatever
administrative liability they ought to answer for. It is the duty of this Court to protect the
integrity of the practice of law as well as the administration of justice. No matter how much
time has elapsed from the

time of the commission of the act complained of and the time of the institution of the complaint,
erring members of the bench and bar cannot escape the disciplining arm of the Court. This
categorical pronouncement is aimed at unscrupulous members of the bench and bar, to deter
them from committing acts which violate the Code of Professional Responsibility, the Code of
Judicial Conduct, or the Lawyer’s Oath. x x x

Thus, even the lapse of considerable time from the commission of the offending act to the
institution of the administrative complaint will not erase the administrative culpability of a
lawyer…. (Italics supplied)24

We therefore ruled in Frias, that Rule VIII, Section 1 of the Rules of Procedure of the IBP CBD
was void and had no legal effect for being ultra vires and thus null and void. 25

This ruling was reiterated in the more recent case of Bengco v. Bernardo,26 where the Court
stated that putting a prescriptive period on administrative cases involving members of the bar
would only serve to embolden them to disregard the very oath they took as lawyers, prescinding
from the fact that as long as no private complainant would immediately come forward, they
stand a chance of being completely exonerated from whatever administrative liability they
ought to answer for.

Atty. Examen’s defense of prescription therefore is of no moment and deserves scant

consideration.

THE SPANISH NOTARIAL LAW OF 1889 WAS REPEALED BY THE

REVISED ADMINISTRATIVE CODE OF 1917

Prior to 1917, governing law for notaries public in the Philippines was the Spanish Notarial
Law of 1889. However, the law governing Notarial Practice is changed with the passage of the
January 3, 1916 Revised Administrative Code, which took effect in 1917. In 2004, the Revised
Rules on Notarial Practice27 was passed by the Supreme Court.

In Kapunan, et al. v. Casilan and Court of Appeals,28 the Court had the opportunity to state that
enactment of the Revised Administrative Code repealed the Spanish Notarial Law of 1889.
Thus:

It is petitioners’ contention that Notary Public Mateo Canonoy, who was related to the parties in
the donation within the fourth civil degree of affinity, was, under Articles 22 and 28 of the
Spanish Notarial Law, incompetent and disqualified to authenticate the deed of donation
executed by the Kapunan spouses in favor of their daughter Concepcion Kapunan Salcedo. Said
deed of donation, according to petitioners, became a mere private instrument under Article 1223
of the old Civil Code, so that under the ruling laid down in the case of Barretto vs. Cabreza (33
Phil., 413), the donation was inefficacious. The appellate court, however, in the decision
complained of held that the Spanish Notarial Law has been repealed with the enactment of Act
No. 496. We find this ruling to be correct. In the case of Philippine Sugar Estate vs. Poizart (48
Phil., 536), cited in Vda. de Estuart vs. Garcia (Adm. Case No. 212, prom. February 15, 1957),
this Court held that "The old Spanish notarial law and system of conveyance was repealed in the
Philippines and another and different notarial law and system became the law of the land with
the enactment of Act No. 496."29 (Emphasis supplied)

In this case, the heirs of Alilano stated that Atty. Examen was prohibited to notarize the
absolute deeds of sale since he was related by consanguinity within the fourth civil degree with
the vendee, Ramon. The prohibition might have still applied had the applicable rule been the
Spanish Notarial Law. However, following the Court’s ruling in Kapunan, the law in force at
the time of signing was the Revised Administrative Code, thus, the prohibition was removed.
Atty. Examen was not incompetent to notarize the document even if one of the parties to the
deed was a relative, his brother. As correctly observed by the IBP CBD:

At the time of notarization, the prevailing law governing notarization was Sections 231-259,
Chapter 11 of the Revised Administrative Code and there was no prohibition on a notary public
from notarizing a document when one of the interested parties is related to the notary public
within the fourth civil degree of consanguinity or second degree of affinity.30

Note must be taken that under 2004 Rules on Notarial Practice, Rule IV, Section 3(c), a notary
public is disqualified among others to perform the notarial act if he is related by affinity or
consanguinity to a principal within the fourth civil degree, to wit:

SEC. 3. Disqualifications. – A notary public is disqualified from performing a notarial act if he:

xxxx

(c) is a spouse, common-law partner, ancestor, descendant, or relative by affinity or

consanguinity of the principal within the fourth civil degree.

That Atty. Examen was not incompetent to act as a notary public in the present case does not
mean that he can evade administrative liability under the CPR in conjunction with the
provisions of the Notarial Law.

NOTARIES PUBLIC MUST PERFORM

THEIR DUTIES DILIGENTLY AND
WITH UTMOST CARE

In Nunga v. Atty. Viray,31 this Court stated:

…[N]otarization is not an empty, meaningless, routinary act. It is invested with substantive

public interest, such that only those who are qualified or authorized may act as notaries public.
The protection of that interest necessarily requires that those not qualified or authorized to act
must be prevented from imposing upon the public, the courts, and the administrative offices in
general. It must be underscored that the notarization by a notary public converts a private
document into a public document making that document admissible in evidence without further
proof of the authenticity thereof. A notarial document is by law entitled to full faith and credit
upon its face. For this reason, notaries public must observe with utmost care the basic
requirements in the performance of their duties.32(Emphasis supplied; citations omitted)

Thus under the prevailing law at the time of notarization it was the duty of the notary public to
comply with the requirements of the Notarial Law.1âwphi1 This includes the duty under
Chapter 11, Section 251 of the Revised Administrative Code:

SEC. 251. Requirement as to notation of payment of cedula [residence] tax. – Every contract,
deed, or other document acknowledged before a notary public shall have certified thereon that
the parties thereto have presented their proper cedula [residence] certificates or are exempt from
the cedula [residence] tax, and there shall be entered by the notary public as a part of such
certification the number, place of issue, and date of each cedula [residence] certificate as
aforesaid.

Under Chapter 11, Section 249 of the Revised Administrative Code provided a list of the
grounds for disqualification:

SEC. 249. Grounds for revocation of commission. – The following derelictions of duty on the
part of a notary public shall, in the discretion of the proper judge of first instance, be sufficient
ground for the revocation of his commission:

xxxx

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

xxxx

In Soriano v. Atty. Basco,33 the Court stated that notaries public are required to follow
formalities as these are mandatory and cannot be simply neglected. Thus, the Notarial Law
requires them to certify that a party to the instrument acknowledged before him has presented
the proper residence certificate (or exemption from the residence certificate) and to enter its
number, place of issue and date as part of the certification. Failure to perform his duties results
in the revocation of a notary’s commission. The Court said:

As a lawyer commissioned as a notary public, respondent is mandated to discharge with fidelity

the sacred duties appertaining to his office, such duties being dictated by public policy and
impressed with public interest. Faithful observance and utmost respect for the legal solemnity of
an oath in an acknowledgment are sacrosanct. He cannot simply disregard the requirements and
solemnities of the Notarial Law.34 (Emphasis supplied)

Here, based on the submission of the complainants, it is clear that the residence certificate
number used by Ramon Examen and as notarized by Atty. Examen in both Absolute Deeds of
Sale was not in fact the residence certificate of Ramon but Florentina’s residence certificate
number.35 Atty. Examen interposes that he was in good faith in that it was office practice to
have his secretary type up the details of the documents and requirements without him checking
the correctness of same.

A notary public must discharge his powers and duties, which are impressed with public interest,
with accuracy and fidelity.36 Good faith cannot be a mitigating circumstance in situations since
the duty to function as a notary public is personal. We note that the error could have been
prevented had Atty. Examen diligently performed his functions: personally checked the
correctness of the documents. To say that it was his secretary’s fault reflects disregard and
unfitness to discharge the functions of a notary public for it is he who personally acknowledges
the document. He was behooved under Section 251, Chapter 11 of the Revised Administrative
Code to check if the proper cedulas were presented and inspect if the documents to be
acknowledged by him reflected the correct details. This Court cannot stress enough that
notarization is not a routinary act. It is imbued with substantive public interest owing to the
public character of his duties37 .

Atty. Examen posits that the failure of a notary to make the proper notation of cedulas can only
be a ground for disqualification and not the proper subject for a disbarment proceeding. We
disagree.

In violating the provisions of the Notarial Law, Atty. Examen also transgressed the his oath as a
lawyer, provisions of the CPR and Section 27, Rule 138 of the Rules of Court which provides:

SEC. 27. Disbarment or suspension of attorneys by Supreme Court; grounds therefor. – A

member of the bar may be disbarred or suspended from his office as attorney by the Supreme
Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral
conduct, or by reason of his conviction of a crime involving moral turpitude, or for any
violation of the oath which he is required to take before admission to practice, or for a wilful
disobedience of any lawful order of a superior court, or for corruptly and willfully appearing as
an attorney for a party to a case without authority so to do. The practice of soliciting cases at
law for the purpose of gain, either personally or through paid agents or brokers, constitutes
malpractice.

By his negligent act of not checking the work of his secretary and merely perfunctorily
notarizing documents, it cannot be said that he upheld legal processes thus violating Canon 1 of
the CPR. Neither can it be said that he promoted confidence in the legal system. If anything, his
acts serve to undermine the functions of a diligent lawyer. He thus ran afoul Rule 1.02 of the
CPR. We cannot stress enough that as a lawyer, respondent is expected at all times to uphold
the integrity and dignity of the legal

SEC. 241. Powers of notary public. – Every notary public shall have power to administer all
oaths and affirmations provided for by law, in all matters incident to his notarial office, and in
the execution of affidavits, depositions, and other documents requiring an oath, and to receive
the proof or acknowledgment of all writings relating to commerce or navigation, such as bills of
sale bottomries, mortgages, and hypothecations of ships, vessels, or boats, charter parties of
affreightments, letters of attorney, deeds, mortgages, transfers and assignments of land or
buildings, or an interest therein, and such other writings as are commonly proved or
acknowledged before notaries; to act as a magistrate, in the writing of affidavits or depositions,
and to make declarations and certify the truth thereof under his seal of office, concerning all
matters done by him by virtue of his office. profession and refrain from any act or omission
which might lessen the trust and confidence reposed by the public in the integrity of the legal
profession.38A lawyer’s mandate includes thoroughly going over documents presented to them
typed or transcribed by their secretaries.39

The Court notes that the case between the parties is not the first that reached this Court. In Edna
Examen and Roberto Examen v. Heirs of Pedro Alilano and Florentina Pueblo,40 Atty. Examen
and his sister-in-law questioned via a petition for certiorari41 the propriety of three Court of
Appeals’ Resolutions relating to a case involving Lot No. 1085 Pls-544-D this time with respect
to its fruits. There the Court of Appeals (CA) after giving Atty. Examen 90 days to file his
appellant’s brief, denied a second motion for extension of time merely on the basis of a flimsy
reason that he had misplaced some of the transcript of the witnesses’ testimonies. The CA did
not find the reason of misplaced transcript as good and sufficient cause to grant the extension
pursuant to Section 12,42 Rule 44 of the Revised Rules of Court. It stated that it was a "flimsy
and lame excuse to unnecessarily delay the proceedings."43 The CA was of the opinion that
defendant-appellant’s, herein respondent, motion was "a mockery of the procedural
rules."44This Court denied the petition for various procedural defects.45

With respect to the penalty imposed, given that Atty. Examen not only failed to uphold his duty
as a notary public but also failed to uphold his lawyer’s oath and ran afoul the provisions of the
CPR, the Court deems it proper to suspend Atty. Examen from the practice of law for a period
of two years following this Court’s decision in Caalim-Verzonilla v. Pascua.46

WHEREFORE, respondent Atty. Roberto E. Examen is hereby SUSPENDED from the practice
of law for TWO (2) YEARS. In addition, his present notarial commission, if any, is hereby
REVOKED, and he is DISQUALIFIED from reappointment as a notary public for a period of
two (2) years from finality of this Decision. He is further WARNED that any similar act or
infraction in the future shall be dealt with more severely.

Let copies of this Decision be furnished to the Office of the Bar Confidant to be appended to
respondent’s personal record as an attorney, the

Integrated Bar of the Philippines, the Department of Justice and all courts in the country for
their information and guidance.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 156310 July 31, 2008

XERXES A. ABADIANO, Petitioner,

vs.
SPOUSES JESUS and LOLITA MARTIR, Respondents.

DECISION

NACHURA, J.:

Before this Court is a Petition for Review on Certiorari under Rule 45 of the Revised Rules of
Civil Procedure assailing the Decision1 of the Court of Appeals (CA) dated March 14, 2002 and
its Resolution2 dated November 21, 2002 in CA-G.R. CV No. 51679. The CA affirmed the
Decision of the Regional Trial Court (RTC) of Kabankalan, Negros Occidental 3 declaring
respondents as the owners of the property in question.

The case stemmed from an action for quieting of title and/or recovery of possession 4 of a parcel
of land filed by herein respondents against Roberto Abadiano, Faustino Montaño, and Quirico
Mandaguit. Petitioner Xerxes A. Abadiano intervened in that case.

Lot No. 1318 of the Kabankalan Cadastre consists of 34,281 square meters covered by Original
Certificate of Title (OCT) No. 20461 issued on November 19, 1923 in the name of the spouses
Inocentes Bañares and Feliciana Villanueva. Before the issuance of OCT No. 20461, however,
Inocentes and the heirs of Feliciana Villanueva (who had predeceased her husband) executed an
Agreement of Partition dated June 1, 1922 over Lot No. 1318. The lot was partitioned and
distributed as follows: (1) 14,976 sq m denominated as Lot No. 1318-A, in favor of Demetrio
Bañares; (2) 10,125 sq m denominated as Lot No. 1318-B, in favor of Ramon and David
Abadiano (grandchildren of Inocentes and Feliciana); and (3) 10,180 sq m denominated as Lot
No. 1318-C, in favor of Amando Bañares. The partition is embodied in a Deed of Partition
executed on June 1, 1922 and notarized the following day by Notary Public Jose Peralta with
notarial inscriptions "Reg. No. 64, Pag. 69, Libro III."5

On September 30, 1939, David Abadiano, who was absent during the execution of the
Agreement of Partition, executed a Deed of Confirmation acknowledging and ratifying the
document of partition.6

OCT No. 20461 was administratively reconstituted on February 15, 1962 and in lieu thereof
OCT No. RO-8211 (20461) was issued over Lot No. 1318, still in the name of Inocentes
Bañares and Felicidad Villanueva. Annotated at the back of the reconstituted title were the
Agreement of Partition and the Deed of Confirmation.7
On June 14, 1957 Demetrio Bañares sold his share of the lot to his son, Leopoldo. The same
was annotated at the back of OCT No. RO-8211 (20461).8

Subsequently, on February 21, 1962, Leopoldo Bañares filed before the Court of First Instance
(CFI) of Negros Occidental an ex-parte petition praying for: first, the confirmation of the
Agreement of Partition, the Conformity executed by David Abadiano, and the Deed of Sale
between him and his father; and second, the cancellation of OCT No. RO-8211 (20461) and, in
lieu thereof, the issuance of a new certificate of title over the property. In an Order dated
February 22, 1962, the court ordered the cancellation of OCT No. RO-8211 (20461) and the
issuance of a new certificate of title in the names of Dr. Leopoldo Bañares, Amando Bañares,
and Ramon and David Abadiano. Pursuant thereto, Transfer Certificate of Title (TCT) No. T-
31862 was issued by the Register of Deeds for Negros Occidental.9

Petitioner insists that this is still the valid and subsisting title over Lot No. 1318 and that no sale
of the portion pertaining to Ramon and David Abadiano ever took place. 10

On the other hand, respondent spouses alleged that, prior to the issuance of TCT No. T-31862,
Ramon Abadiano, for himself and on behalf of David Abadiano, had already sold their rights
and interests over Lot No. 1318-C11 to Victor Garde. The sale was allegedly evidenced by a
document of sale (Compra Y Venta) dated June 3, 1922 and acknowledged before Notary
Public Jose Peralta and bearing notarial inscription "Doc. No. 64, Pag. No. 60, Book No. III,
series of 1922." The sale was allegedly affirmed by David Abadiano in a document dated
September 30, 1939.12

They further alleged that from the time of the sale, Victor Garde and his heirs were in
continuous, public, peaceful, and uninterrupted possession and occupation in the concept of an
owner of Lot No. 1318-C.13 On December 29, 1961, the heirs of Victor Garde sold their rights
and interests over Lot No. 1318-C14 to Jose Garde, who immediately took possession thereof.
Jose Garde continuously planted sugarcane on the land until he sold the property to Lolita
Martir in 1979.15

After acquiring the property, respondent spouses continued to plant sugarcane on the land.
Sometime in March 1982, after respondent Jesus Martir harvested the sugarcane he had planted
on Lot No. 1318-C, defendant below Roberto Abadiano (son of Ramon) allegedly entered the
property and cultivated the remaining stalks of sugarcane and refused to vacate despite demands
to do so. The following year, defendants Roberto Abadiano, Faustino Montaño, and Quirico
Mandaguit again harvested the sugarcane on Lot No. 1318-C.16 Further, the defendants also
entered the property and harvested the sugarcane on Lot No. 1318-B,17 which by then had been
acquired by Lolita B. Martir from her adoptive father, Amando Bañares.18

Thus, in April 1982, herein respondent-spouses filed the Action to Quiet Title and/or Recovery
of Possession with Damages before the then CFI of Negros Occidental.

In their Answer with Counterclaim,19 defendants denied that the subject property was ever sold
by Ramon and David Abadiano, and that, consequently, defendant Roberto Abadiano had
inherited the same from Ramon. They also alleged, by way of Special and Affirmative
Defenses, that the subject land still belonged to the estate of Ramon and David Abadiano and
was never alienated. They alleged further that the act of spouses Martir in planting sugarcane on
the land was without Roberto’s consent; that Roberto had demanded that the spouses Martir pay
him reasonable rental for the land but that they had persistently refused to do so; and that
sometime in March 1981, Roberto and the spouses Martir came to an agreement whereby the
defendant continued to cultivate the remaining stalks of sugarcane left by plaintiffs and that
until the harvest of said sugarcane, plaintiffs never posed any objection thereto.

Xerxes Abadiano intervened in the proceedings before the trial court alleging likewise that his
predecessor Ramon Abadiano never sold their share of the property to Victor Garde. 20

After trial, the court issued a Decision21 dated June 23, 1995, ruling in favor of the spouses
Martir, thus:

WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the
defendants declaring plaintiffs spouses Jesus and Lolita Martir as the true and legitimate owners
of portions of Lot No. 1318 Kabankalan Cadastre denominated as Lots 1318-B and 1318-C and
ordering:

(1) That the defendants Roberto Abadiano and the intervenor Xerxes Abadiano shall
surrender Transfer Certificate of Title No. T-31862 to the Registrar of Deeds of Negros
Occidental who is directed to partially cancel said title and issue new Certificate of Title
corresponding to Lots 1318-B and 1318-C in the names of the spouses Jesus and Lolita
Martir;

(2) That the defendants shall jointly and severally pay to the plaintiffs the amount of
Twenty Thousand (₱20,000.00) Pesos representing the value of the sugarcanes of
plaintiffs which defendants harvested and milled with SONEDCO and;

(3) To pay the costs of this suit.

SO ORDERED.22

The trial court rejected therein defendants’ contention that the Compra Y Venta was null and
void because the co-owner, David Abadiano, did not sign the same. It held that the Supreme
Court has ruled to the effect that the sale by a co-owner of the entire property without the
consent of the other co-owners was not null and void but that only the rights of the co-owner-
seller are transferred, making the buyer a co-owner. The trial court also held that although the
Compra Y Venta was not annotated either on the OCT or on the reconstituted OCT, the validity
of the sale was not vitiated. The registration or annotation is required only to make the sale
valid as to third persons. Thus, the trial court concluded that the Compra Y Venta was valid
between the parties, Ramon Abadiano and Victor Garde.
The trial court also brushed aside the defendants’ contention that the Compra Y Venta
contained the same notarial inscription as the Deed of Partition. It said that assuming this to be
true, this may be considered an error which did not nullify the Compra Y Venta; at most, the
document would be non-registrable but still valid.

On the contention that the alleged confirmation executed by David Abadiano was for the Deed
of Partition and not for the Compra Y Venta, the trial court agreed. It, however, interpreted the
same to mean that David Abadiano must not have authorized his brother to sell his share in Lot
No. 1318-C. The effect was that David Abadiano continued to be one of the registered owners
of the property and his heirs stepped into his shoes upon his death.

However, the trial court found that the plaintiffs’ (respondents’) claim that they and their
predecessors-in-interest have been in possession of the property for more than sixty (60) years
was duly established. In contrast, the court found that defendants and intervenor, and their
deceased parents, had not been in possession of their share in the property. It held that the
defendants and intervenor were guilty of laches for failing to avail of the many opportunities for
them to bring an action to establish their right over Lot No. 1318-C.

Defendants appealed to the CA. However, the same was summarily dismissed in a Resolution
dated February 11, 1997 due to defendants’ failure to pay the required docket fee within the
period set. Nonetheless, the records were retained for the appeal of Xerxes Abadiano, intervenor
in the trial court.

On March 14, 2002, the CA rendered a Decision affirming the Decision of the RTC in toto.23

Xerxes Abadiano now comes before this Court raising the following arguments:

THE HONORABLE COURT OF APPEALS ERRED, BASED ON ITS

MISAPPREHENSION AND/OR OMISSION OF THE FACTS, IN DISREGARDING
THE PRIMORDIAL ISSUE OF WHETHER OR NOT THE DEED OF SALE
("COMPRA Y VENTA") IS A SPURIOUS DOCUMENT

THE HONORABLE COURT OF APPEALS ERRED IN FINDING PETITIONER

GUILTY OF LACHES OVER REGISTERED LAND24

The Petition is impressed with merit. We believe the trial court and the CA erred in ruling for
the respondents. Accordingly, we reverse the assailed Decision and Resolution.

It is well settled that the findings of fact of the trial court, especially when affirmed by the CA,
are accorded the highest degree of respect, and generally will not be disturbed on appeal. Such
findings are binding and conclusive on the Court. Further, it is not the Court’s function under
Rule 45 of the 1997 Revised Rules of Civil Procedure to review, examine and evaluate or weigh
the probative value of the evidence presented. The jurisdiction of the Court in a petition for
review under Rule 45 is limited to reviewing only errors of law. Unless the case falls under the
recognized exceptions, the rule shall not be disturbed.25

However, this Court has consistently recognized the following exceptions: (1) when the
findings are grounded entirely on speculation, surmises, or conjectures; (2) when the inference
made is manifestly mistaken, absurd, or impossible; (3) when there is grave abuse of discretion;
(4) when the judgment is based on a misapprehension of facts; (5) when the findings of fact are
conflicting; (6) when in making its findings, the CA went beyond the issues of the case, or its
findings are contrary to the admissions of both the appellant and the appellee; (7) when the
findings are contrary to those of the trial court; (8) when the findings are conclusions without
citation of specific evidence on which they are based; (9) when the facts set forth in the petition
as well as in the petitioner’s main and reply briefs are not disputed by the respondent; and (10)
when the findings of fact are premised on the supposed absence of evidence and contradicted by
the evidence on record.26

In the present case, we find that the trial court based its judgment on a misapprehension of facts,
as well as on the supposed absence of evidence which is contradicted by the records.

In appreciating the alleged Compra Y Venta presented by respondents, the trial court concluded
that "[t]he parties have no quarrel on the existence of a Deed of Sale of a portion of Lot No.
1318 executed by Ramon Abadiano for himself and as representative of David Abadiano, dated
June 3, [1922] in favor of Victor Garde."27

The trial court erred in its conclusion.

Borne very clearly by the records is the defendants’ repudiation of the existence of the sale in
their Answer with Counterclaim. They stated:

2. That defendants admit plaintiffs’ allegation in paragraph 4 that there has been no
particular designation of lot number (sic) for each of the co-owner (sic) of Lot No. 1318
but specifically deny under oath the other allegations thereof the truth being that the
property referred to here as Lot No. 1318 remains undivided to this day that the owners
thereof as shown by the TCT No. 31862 co-own the same pro-indiviso;

3. That defendants have no knowledge sufficient to form a belief as to the truth of the
allegations in paragraph 528 and therefore specifically deny the same under oath the truth
being that Ramon Abadiano and David Abadiano had not sold the land at bar to anyone
and that consequently, defendant Roberto Abadiano had inherited the same from the
former; x x x.29 (emphasis supplied).

Likewise, petitioner specifically denied the allegations in paragraph 5 of the Complaint. He

alleged that the lot "had never been sold or alienated and the same still remains intact as the
property of the Intervenor and his co-owners by operation of law."30
This was testified to by Roberto Abadiano during the trial, thus:

Q: During the lifetime of your father, do you know if your father has ever sold to any party his
share on Lot No. 1318?

A: He has not sold his share.31

These statements were enough to impugn the due execution of the document. While it is true
that this Court had previously ruled that mere denials would not have sufficed to impeach the
document, in this case, there was an effective specific denial as contemplated by law in
accordance with our ruling that -

defendant must declare under oath that he did not sign the document or that it is otherwise false
or fabricated. Neither does the statement of the answer to the effect that the instrument was
procured by fraudulent representation raise any issue as to its genuineness or due execution. On
the contrary such a plea is an admission both of the genuineness and due execution thereof,
since it seeks to avoid the instrument upon a ground not affecting either. 32

It was error then for the RTC to have brushed aside this issue and then make so sweeping a
conclusion in the face of such opposition. In light of this challenge to the very existence of the
Compra Y Venta, the trial court should have first resolved the issue of the document’s
authenticity and due execution before deciding on its validity. Unfortunately, the CA did not
even discuss this issue.

We are cognizant, however, that it is now too late in the day to remand the case to the trial court
for the determination of the purported Compra Y Venta’s authenticity and due execution. Thus,
we will resolve this very issue here and now in order to put an end to this protracted litigation.

There is no denying that TCT No. 31862 is still the subsisting title over the parcel of land in
dispute. It is also a fact that the purported Compra Y Venta was not annotated on TCT No.
31862 until April 1982, shortly before the complaint was commenced, even though the deed
was allegedly executed in 1922.

Considering that the action is one for quieting of title and respondents anchored their claim to
the property on the disputed Compra Y Venta, we find it necessary to repeat that it was
incumbent upon the trial court to have resolved first the issue of the document’s due execution
and authenticity, before determining its validity.

Rule 130, Section 3 of the Revised Rules of Court reads:

Original document must be produced; exceptions. – When the subject of inquiry is the contents
of a document, no evidence shall be admissible other than the original document itself, except
in the following cases:

(a) When the original has been lost or destroyed, or cannot be produced in court without
bad faith on the part of the offeror;
 (b) When the original is in the custody or under the control of the party against whom the
evidence is offered, and the latter fails to produce it after reasonable notice;

(c) When the original consists of numerous accounts or other documents which cannot be
examined in court without great loss of time and the fact sought to be established from
them is only the general result of the whole;

(d) When the original is a public record in the custody of a public officer or is recorded in
a public office.

Respondents attached only a photocopy of the Compra Y Venta to their complaint. According
to respondent Lolita Martir, the original of said document was in the office of the Register of
Deeds. They allegedly tried to obtain a copy from that office but their request was refused. No
other evidence but these bare assertions, however, was presented to prove that the original is
indeed in the custody of the Register of Deeds or that respondents’ due and diligent search for
the same was unsuccessful.

The Rule states that when the original document is unavailable, has been lost or destroyed, or
cannot be produced in court, the offeror, upon proof of its execution or existence and the cause
of its unavailability without bad faith on his part, may prove its contents by a copy, or by a
recital of its contents in some authentic document, or by the testimony of witnesses in the order
stated.33

In the case at bar, respondents failed to establish that the offer in evidence of the document was
made in accordance with any of the exceptions allowed under the abovequoted rule, and yet, the
trial court accepted the document as genuine and proceeded to determine its validity based on
such assumption.

The trial court likewise brushed aside the apparent defect that the document presented contained
the same notarial inscription as the Agreement on Partition. Indeed, the Deed of Partition and
the Compra Y Venta, though executed on different days, were notarized on the same day, and
both documents contained the signatures of the same witnesses and the same notarial
inscription.

This notwithstanding, the court concluded, "Assuming this to be true, same could be considered
an error which did not nullify, (sic) the Deed of Sale or Compra Y Venta. At most, the
document would be a non-registrable, but valid document."34

We stress that a notarial document is evidence of the facts in the clear unequivocal manner
therein expressed and has in its favor the presumption of regularity.35

In this case, while it is true that the error in the notarial inscription would not have invalidated
the sale – if indeed it took place – the same error would have meant that the document cannot be
treated as a notarial document and thus, not entitled to the presumption of regularity. The
document would be taken out of the realm of public documents whose genuineness and due
execution need not be proved.36

Accordingly, respondents not having proven the due execution and genuineness of the
purported Compra Y Venta, the weight of evidence preponderates in favor of petitioner.

Next, we determine if petitioner is guilty of laches. On this issue, we rule in the negative.

Under the Property Registration Decree,37 no title to registered land in derogation of the title of
the registered owner shall be acquired by prescription or adverse possession.38 Indefeasibility
and imprescriptibility are the cornerstones of land registration proceedings. Barring any mistake
or use of fraud in the procurement of the title, owners may rest secure on their ownership and
possession once their title is registered under the protective mantle of the Torrens system.39

Nonetheless, even if a Torrens title is indefeasible and imprescriptible,40 the registered

landowner may lose his right to recover the possession of his registered property by reason of
laches.41

Laches has been defined as neglect or omission to assert a right, taken in conjunction with lapse
of time and other circumstances causing prejudice to an adverse party, as will operate as a bar in
equity. It is a delay in the assertion of a right which works disadvantage to another because of
the inequity founded on some change in the condition or relations of the property or parties. It is
based on public policy which, for the peace of society, ordains that relief will be denied to a
stale demand which otherwise could be a valid claim.42

The four basic elements of laches are: (1) conduct on the part of the defendant, or of one under
whom he claims, giving rise to the situation of which complaint is made and for which the
complaint seeks a remedy; (2) delay in asserting the complainant's rights, the complainant
having had knowledge or notice of the defendant’s conduct and having been afforded an
opportunity to institute suit; (3) lack of knowledge or notice on the part of the defendant that the
complainant would assert the right on which he bases his suit; and (4) injury or prejudice to the
defendant in the event relief is accorded to the complainant or the suit is not held to be barred.43

The reason for the rule is not simply the lapse of time during which the neglect to enforce the
right has existed, but the changes of condition which may have arisen during the period in
which there has been neglect. In other words, where a court finds that the position of the parties
will change, that equitable relief cannot be afforded without doing injustice, or that the
intervening rights of third persons may be destroyed or seriously impaired, it will not exert its
equitable powers in order to save one from the consequences of his own neglect. 44

Though laches applies even to imprescriptible actions, its elements must be proved positively.
Laches is evidentiary in nature and cannot be established by mere allegations in the pleadings. 45

Based on the foregoing, we hold that petitioner is not guilty of laches. The evidence on record
does not support such finding.
Petitioner had reasonable ground to believe that the property, being still in the name of his
predecessor in interest, continued to be theirs, especially considering that the annotation of the
purported sale was done only in 1982. According to petitioner, his father had told him that his
(the father’s) inheritance was in the possession of their uncle, Amando Bañares who knew
likewise that the property was theirs.

Thus, Roberto Abadiano testified:

Q: Before Amando Bañares died, did you know that your father is a part owner of Lot No.
1318?

A: Yes, Sir.

Q: And did you not complain to Amando Bañares that your father is a pert owner of that lot?

A: No, Sir. We did not complain because he was our grandfather and when he dies, the property
will go back to us.46

And herein petitioner testified:

Atty. Garaygay –

Q: Before the war who was occupying this lot which you claimed belonging (sic) to your
father?

A: The uncle of my father, Amando Bañares, Sir.

Q: As a matter of fact, before and after the war and during the lifetime of Amando Bañares, he
was the one in possession of Lot No. 1318?

A: Yes, sir.

Q: What was the condition of the lot under the possession of the lot under the possession of
Amando Bañares – was it under lease?

A: As far as I can remember, my father told me that his inheritance was with Amando Bañares,
his uncle.47

From the testimonies of petitioner and the defendants during trial, it would appear that they
were unaware of any of respondents’ actions in relation to the property until the death of their
grandfather, Amando Bañares. When they did find out that respondents were occupying the
land, they immediately took action to occupy what they believed was still rightfully theirs.

On this point, petitioner testified, thus:

Q: When did you initiate the move to claim Lot No. 1318-B as your inheritance from your late
father?

A: It was shortly after the death of Amando Bañares.

Q: Who were these, who initiated the move to claim Lot No. 1318-B?

A: I advised my brothers here in Kabankalan to take action to possess the land which was then
occupied before by our (sic) great uncle, Amando Bañares.

Q: When was that, in what year, because we do not know when did your uncle (sic) die?

A: It was after the death of Amando Bañares sometime in 1973 or 1974.

Q: Why did it take you that long before you initiated the move to claim the inheritance?

A: Considering that relatives were involved and the fact we understand that our late parents
revered our uncle so, we cautiously tried to take action shortly after his death, so as not to
antagonize our relatives.

Q: What did you do in order to claim your inheritance?

A: Now, after learning that it was being farmed by Lolita Martir, I advised my brothers here in
Kabankalan to go to Bacolod City to seek the intercession of the Philippine Constabulary
Commander in order to thresh out the matter in a way that there will be no hostility or adverse
reaction.

Q: What other reactions did you take, if any?

A: Well, I told my brother that they have a confrontation in the Office of the PACLAP known
as the Presidential Action Commission on Land Problems.

Q: Besides that confrontation at the PACLAP, what other action did you personally take as an
heir of Lot No. 1318-B?

A: After that confrontation, I advised my brothers to occupy the land in question to farm it
because it belongs to us.

Q: With respect to the Transfer Certificate of Title, what action, if any, did you undertake?

A: Well, we drew out a Declaration of Heirship and Adjudication and after it was approved by
the Court, it was annotated at the back of the Transfer Certificate of Title No. T-31862 and we
were given a co-owner’s copy of the said title by the Register of Deeds.

xxxx
Q: Mr. Witness, when did you and your co-owners executed (sic) this Declaration of Heirship
and Adjudication over Lot 1318-B?

A: That was on July 17, 1976.

Q: Was that before or after the plaintiffs have filed this present case?

A: That was almost 6 or 7 years before this present case was filed.48

On the other hand, Roberto Abadiano testified:

Atty. Garaygay –

Q: Now, according to you, your father is the co-owner of Lot No. 1318. Prior to the death of
your father, who was in possession of Lot No. 1318?

Witness –

A: What I know is it was Amando Bañares.

Q: You mean to say that when your father was still alive, it was Amando Bañares who was in
possession of Lot No. 1318?

A: Yes, sir.

Q: And until when did you know that Amando Bañares has been in possession of Lot No. 1318?

A: Up to 1976 when he died.

Q: After his death in 1976, who was in possession of the said lot?

A: I made a verification in the Office of the Register of Deeds, and when I went to the said lot,
it was vacant.

Q: When was that?

A: In 1976-1977, and I have it planted in 1978.49

That petitioner and his co-heirs waited until the death of Amando Bañares to try and occupy the
land is understandable. They had to be careful about the actions they took, lest they sow dissent
within the family. Furthermore, they knew that their parents revered Amando.50

The Court has recognized that this reaction cannot be characterized as such delay as would
amount to laches, thus:

in determining whether a delay in seeking to enforce a right constitutes laches, the existence of
a confidential relationship between the parties is an important circumstance for consideration, a
delay under such circumstances not being so strictly regarded as where the parties are strangers
to each other. The doctrine of laches is not strictly applied between near relatives, and the fact
that parties are connected by ties of blood or marriage tends to excuse an otherwise
unreasonable delay.51

In addition, several other factors militate against the finding of laches on the part of the
petitioner.

When the Original Certificate of Title was reconstituted on February 15, 1962, no annotation
therein was made of the Compra Y Venta or of the Deed of Sale between Ramon Abadiano and
Victor Garde. Only the Agreement of Partition, the Confirmation by David Abadiano, and the
sale from Demetrio to Leopoldo Bañares were annotated therein.52 Neither does the Deed of
Sale of Demetrio’s share in favor of Leopoldo, executed in 1957, mention that the property
belonged to anyone other than the parties to the Deed of Partition.53

Likewise, Transfer Certificate of Title No. T-31862, which was issued in 1962 pursuant to an
Order of the Kabankalan CFI, was issued in the names of Leopoldo Bañares, Amando Bañares,
and Ramon and David Abadiano. Even at the time of the issuance of said TCT, there was no
annotation of the alleged sale to Victor Garde, which according to respondents took place in
1922.

If respondents’ contention were true, the TCT should not have been issued in April 1962 in the
name of Ramon and David Abadiano, but in the name of Victor Garde or Jose Garde – who by
then had supposedly acquired the property by virtue of the Declaration of Heirship and Deed of
Sale executed on December 29, 1961.54 As it is, neither respondents nor any of their
predecessors in interest participated in any of the proceedings for the issuance of the OCT, the
reconstituted OCT, or the TCT. The petitioner’s testimony on the matter is revealing:

Q: Based on your investigation, did you find records of the proceedings of the reconstitution of
title of Lot 1318 or any evidence as to the participation of the plaintiffs in this Reconstitution
Petition?

A: Based on the existing records, they did not participate.

Q: How about in the Reconstitution of Original Certificate of Title No. (sic) did the plaintiffs
participate therein?

A: They did not also.

Q: How about in the issuance of the new Transfer Certificate of Title, did the plaintiffs
participate therein?

A: No, sir.55

Again, the TCT bears out the fact that the purported Compra Y Venta to Victor Garde was
annotated thereon only on April 23, 1982. On the other hand, several entries made in 1981
evince that petitioner and his co-heirs took steps after Amando’s death to assert their rights over
the property.56

In 1976, the heirs of David Abadiano executed a Special Power of Attorney in favor of Roberto
Abadiano giving the latter authority to act, sue, and/or represent them in any suit or action for
recovery of possession or of whatever kind or nature.57 For their part, the heirs of Ramon
Abadiano executed a Declaration of Heirship and Adjudication over the part of Lot No. 1318
pertaining to their predecessor.58

Ranged against these positive steps, respondents only have their bare assertions to support their
claim that they indeed had possession of the land through their predecessors in interest, which
are insufficient to overcome the testimony that it was Amando Bañares – and not Victor Garde
– who had possession of the property during the former’s lifetime, or that after Amando’s death,
the lot remained unoccupied.

In sum, we find that petitioner is not guilty of such neglect or inaction as would bar his claim to
the property in question. In contrast, it is most telling that respondents, who are claiming to
have been in possession of the property by virtue of an alleged duly constituted sale for almost
60 years, have themselves failed within that long period to have the same property transferred in
their name or even only to have the sale annotated on the title of the property.

Finally, we come to the issue of damages. Petitioner prays that respondents be made to pay
actual damages of not less that ₱30,000.00 plus rentals on the property from the time of the
latter’s occupation, moral damages amounting to ₱100,000.00, and exemplary damages, as well
as attorney’s fees.

The record shows that petitioner testified on the prevailing rate of rentals on the subject
property from the time of Amando Bañares’ death in 1976 until the time of the trial. According
to petitioner, the rental rate from 1976 until 1985 was ₱3,000.00 per hectare, while from 1985
until the time of his testimony in 1994, the rental rate was ₱5,000.00 per hectare. We thus rule
that the actual damages that may be awarded shall be based only on these rates.59

Considering, however, that petitioner’s co-heirs (defendants Roberto Abandiano, et al.) were
able to enter the property and harvest the sugarcane therein in 1981 and, thereafter, the land
remained unoccupied, the rent must be reckoned only from the time respondents actually
occupied the land until March 1981.1avvphi1

The claims for moral damages must be anchored on a definite showing that the claiming party
actually experienced emotional and mental sufferings.60 In this case, we find that petitioner’s
testimony that he suffered from sleepless nights from worrying about this case and considering
the great distance he had to travel from his home in Tacloban to see the case through are enough
bases to award him moral damages. With the award of moral damages, exemplary damages are
likewise in order.61
Attorney’s fees are recoverable when exemplary damages are awarded, or when the court
deems it just and equitable. The grant of attorney’s fees depends on the circumstances of each
case and lies within the discretion of the court.62 Given the circumstances of this case, we grant
the prayer for attorney’s fees.

WHEREFORE, the foregoing premises considered, the Petition is GRANTED. The Decision
and Resolution of the Court of Appeals in CA-G.R. CV No. 51679 are reversed and set aside. A
new one is entered:

(1) reversing the Decision of the Regional Trial Court of Kabankalan, Negros Occidental
in Civil Case No. 1331;

(2) declaring the heirs of Ramon and David Abadiano as the lawful owners of Lot No.
1318-B, a portion of Lot No. 1318 covered by Transfer Certificate of Title No. T-31862,
Kabankalan Cadastre, Negros Occidental; and

(3) ordering respondents to pay petitioner and his co-heirs rentals at the rate of ₱3,000.00
per hectare per year, from the time of actual occupation of the land in 1976 until March
1981, moral damages in the amount of ₱100,00.00, exemplary damages in the amount of
₱30,000.00, and attorney’s fees in the amount of ₱10,000.00.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

SECOND DIVISION

G.R. No. 142977 September 30, 2008

LEONOR CAMCAM, JOSE, FORTUNATO, VIRGINIA, GLORIA, FLORENDO,

DELFIN, RODRIGO, LEUTERIO, NARCISO, ONOFRE, ZENAIDA, AURELIA,
TEOFILA, FELICIDAD, MERCEDES, LYDIA, ALFREDO, BIENVENIDO, EFREN,
LILIA, ERLINDA, MELINDA, MARYLOU, MERIAM, all surnamed
SALVADOR, Petitioners,
vs.
HONORABLE COURT OF APPEALS AND ARCADIO FRIAS, Respondents.

DECISION

CARPIO MORALES, J.:

Petitioner Leonor Camcam (Leonor) and her husband Laureano Salvador (Laureano) were the
registered owners of two parcels of land, Lot Nos. 19554 and 18738 of the Cadastral Survey of
San Carlos, Pangasinan, located in the Barrio of Basista, San Carlos, Pangasinan.

Laureano died intestate on December 9, 1941. He was survived by his wife-petitioner Leonor;
his brothers Agapito and petitioners Jose and Fortunato, all surnamed Salvador; and the heirs of
his deceased brother Luis Salvador (Luis), namely, petitioners Virginia, Gloria, Florendo,
Delfin, Rodrigo, Eleuterio, Narciso, Onofre, Zenaida, and Aurelia, all surnamed Salvador.

On February 9, 1983, Leonor, together with her brothers-in-law Agapito, Jose, Fortunato, and
Luis’ heirs, filed before the Regional Trial Court of San Carlos City, Pangasinan a
Complaint,1 docketed as Civil Case No. SCC-833, against respondent Arcadio Frias (Frias), for
annulment of the following documents executed by Leonor in Frias’ favor covering Lot Nos.
19554 and 18738:

1. November 4, 1982 Deed of Adjudication with Sale of the entire Lot No. 19554 and ½
of Lot No. 18738, for a P11,000 consideration signed by Leonor (Exhibit "B"/"1");2

2. November 4, 1982 Deed of Extra-Judicial Partition and Sale of "ONE-HALF (½)

portion EACH [of the two lots] together with [Leonor’s] conjugal share of ONE-HALF
(½) EACH of the [two lots] with all the improvements thereon" for a P45,000
consideration, signed by Leonor(Exhibit "A"/"3");3 and
 3. November 23, 1982 Deed of Absolute Sale of the other half of Lot No. 18738, for a
consideration of P3,000, signed by Leonor (Exhibit "C"/"2").4

Before the trial court, petitioners advanced the following version of the case:

In November 1982, Frias offered to purchase the two lots from Leonor. Leonor, however, was
only willing to enter into a sale with right of repurchase within five years. Frias agreed to
Leonor’s condition but he deceived her into signing the Deed of Adjudication-Exhibit "B"/"1,"
after which he paid her P9,000 out of the P11,000 consideration, he promising that he would
settle the balance of P2,000 before the end of the month.

In the latter part of November 1982, Frias, instead of delivering the balance of P2,000, again
deceived Leonor into signing another document, the Deed of Absolute Sale-Exhibit "C"/"2," he
telling her that since two lots were involved, she had to sign another instrument pertaining to
the other lot.

Upon verification with Rodolfo Acosta (Acosta), the notary public who notarized Exhibits
"B"/"1" and "C"/"2," petitioners discovered that the deeds Leonor signed transferred ownership
of the entire area covering the two lots. They also, upon inquiry with the Register of Deeds at
Lingayen, discovered that Original Certificate of Title Nos. 116345 and 120276 in the name of
Leonor and her husband covering the two lots were cancelled and Transfer Certificate of Title
Nos. 1437527 and 1437538 were in their stead issued in Frias’ name. Further, they discovered
that Frias registered the document-Exhibit "A"/"3," which had the same date and notarial details
as those of Exhibit "B"/"1."

Petitioners alleged that assuming that the documents are valid, it is void with respect to the
shares of Leonor’s co-heirs-co-petitioners as they were conveyed without their knowledge and
participation.

They thus prayed for judgment

(1) Declaring null and void, the Deed of Adjudication with Sale dated November 4, 1982
[Exhibit "B"/"1"], and the Deed of Absolute Sale dated November 23, 1982 [Exhibit
"C"/"2"] on the ground that the said documents did not reflect the true intention of the
parties x x x, moreover, the shares of the plaintiffs, other than plaintiff Camcam,
were included without their knowledge, participation and consent x x x;

(2) Declaring null and void, the Deed of Extrajudicial Partition and Sale dated November
4, 1982 [Exhibit "A"/"3"] based on the fact that it is absolutely fictitious and simulated x
x x;

(3) That as a consequence of the nullity of [Exhibit "A"/"3"], TCT Nos. 143752 and
143753 be declared null and void and ordering the Register of Deeds of Lingayen,
Pangasinan to cancel said transfer certificates of titles issued in the name of defendant
Frias and the annotations on OCT Nos. 11634 and 12027 relative to the cancellation be
 cancelled; or, in the alternative, the defendant Frias xxx be ordered to execute a deed of
reconveyance over the parcels subject of this suit in favor of the plaintiffs, in the
following proportion, to wit: one half (1/2) to plaintiff Camcam, and the other half shall
pertain to the other plaintiffs, namely, Agapito, Jose, Fortunato and the heirs of the late
Luis, all surnamed Salvador, in equal proportion;

(4) Declaring plaintiffs Agapito, Jose, Fortunato, and the late Luis, all surnamed
Salvador, the latter being represented in this suit by his heirs, as the only legitimate heirs
to inherit the estate of their deceased brother, Laureano Salvador who died on December
9, 1941, thereby excluding the widow from participating xxx;

(5) Declaring the defendant liable for actual, compensatory and moral damages to
plaintiffs and litigation expenses, assessable in terms of money in such amount as will be
proved in court, and to pay exemplary damages as may be assessed by the court;

(6) Declaring the defendant liable for the attorney’s fees in the amount of P10,000.00 and
to pay the costs.9 (Emphasis and underscoring supplied)

They likewise prayed for other just and equitable reliefs.10

Upon the other hand, Frias advanced the following version:

Leonor inherited the two lots, to the exclusion of her co-petitioners, under the old Civil
Code11 and it was she who convinced him to buy them.

Leonor later changed her mind and was willing to sell only the whole of the residential land,
Lot No. 19554, and ½ of the mango and coconut land, Lot No. 18739,12 as she was giving her
brothers-in-law two weeks to buy the ½ remaining portion thereof,13 hence, he and Leonor
forged Exhibit "B"/"1." Leonor later informed him that her brothers-in-law could not buy the
remaining ½ portion of Lot No. 18739, hence, he and Leonor forged Exhibit "C"/"2."14

After the execution of the two documents dated November 4, 1982, Frias brought them to the
Municipal Building to pay taxes. When asked by an employee of the then-Ministry of Agrarian
Reform how much he paid for the lots, Frias confessed to not having indicated the correct
consideration on the documents because he wanted to "escape" paying taxes such as capital
gains taxes. On being informed of the consequences of not reflecting the true consideration of
the two lots in the documents, he had the third document, Exhibit "A"/"3," prepared which, after
explaining to Leonor the reason beyond the necessity therefor, she signed in notary public
Acosta’s office.15

During the pendency of the proceedings before the trial court, Leonor’s brother-in-law Agapito
died and was substituted by his heirs, namely petitioners Teofila, Felicidad, Mercedes, Lydia,
Alfredo, Bienvenido, Efren, Lilia, Erlinda, Melinda, Marylou, and Meriam, all surnamed
Salvador.16

By Decision17 of December 12, 1990, Branch 57 of the Pangasinan RTC, holding that:
 xxxx

We cannot agree that Leonor Camcam signed [these] document[s] without reading them. She
signed [them] and read [them] because she was one who had enough learning. x x x Besides
that, Evangeline Pira, and Gertrudes Calpo signed it themselves as [witnesses according to] the
testimony of Atty. Rodolfo Acosta.

xxxx

But this is true only with regards to ½ of the properties as [they are] conjugal in nature. As
regards x x x the other half of the property the rights of inheritance by x x x brothers and sisters
under the old law is provided thus:

Article 948. If there are brothers and sisters and nephews, who are children of brothers and
sisters of the whole blood, the former shall inherit per capita, and the latter per stirpes.

Article 953. In case there are brothers or sisters or children of brothers or sisters, the widow or
widower shall have a right to receive, in concurrence with the former, the portion of the
inheritance in usufruct granted him or her in Article 837.

Article 837. When the testator leaves no legitimate descendants or ascendants, the surviving
spouse shall be entitled to one-half of the inheritance also in usufruct18 (The old civil code)
(Emphasis and underscoring supplied),

disposed as follows:

WHEREFORE the other half [of the two lots] should be divided among the brothers and sisters
and nephews and nieces by the right of intestate succession; to brothers and sisters, per capita;
and the nephews and nieces per stirpes; of one-half of the property. The remaining one-half
belong[s] to defendant [herein-respondent Frias].

Ordering the Register of Deeds of Lingayen, Pangasinan to cancel TCT No. 143752 and 143753
and instead issue another title, one half of the property to the brothers and sisters, per capita;
and to the nieces and nephews per stirpes; the other half to the defendants. 19 (Emphasis and
underscoring supplied)

On appeal,20 the Court of Appeals, by Decision21 of April 30, 1992, affirmed with modification
the trial court’s decision. Thus it disposed:

WHEREFORE, in view of the foregoing, the decision of the lower court dated December 12,
1990 is hereby AFFIRMED with MODIFICATION. One-half of the properties in question
belong to defendant-appellee Arcadio Frias, by virtue of the valid sale by Leonor Camcam. The
other half should be divided among the brothers, nephews and nieces of the late Laureano
Salvador by right of intestate succession: to brothers per capita and to the nephews and nieces
per stirpes.
THE Register of Deeds of Lingayen, Pangasinan is directed to cancel TCT Nos. 143752 and
143753 and issue the corresponding titles in accordance with the above pronouncement. The
expenses of the survey should be borne equally by plaintiffs-appellants and defendant-appellee.
Costs against plaintiffs-appellants.22 (Underscoring supplied)

Their Motion for Reconsideration23 having been denied,24 petitioners filed the present Petition
for Review on Certiorari,25 faulting the appellate court

1. . . . IN NOT DECLARING NULL AND VOID THE THREE (3) DEEDS X X X

CONSIDERING THEIR PHYSICAL APPEARANCE AND CONDITIONS
INDICATING STRONGLY THE IRREGULARITIES OF THEIR EXECUTION.

2. [IN NOT DECLARING THAT] THE SALES WERE ILLEGAL, CONSIDERING

THE OTHER PETITIONERS [,] BEING OWNERS OF THE OTHER HALF, HAVE
THE PREFERENTIAL RIGHT TO PURCHASE THAT HALF PORTION INSTEAD
OF PRIVATE RESPONDENT.26

Petitioners contend as follows:

xxxx

From the appearance of these documents, particularly the Deed of Extrajudicial Partition and
Sale(Annex "A" or Exh. "A"/"3") and the Deed of Adjudication with Sale (Annex "B" or Exh.
"B"/"1"), while both were notarized by the same notary public, yet they have identical notarial
documentary identification, i.e., the same documentary number to be 464, same page
number 44, the same book number X and the same series of 1982, and appeared to have been
"sworn" before the notary public on the same date – November 4, 1982.

xxxx

Aside from the anomalous situation created by the irregularly executed deeds and
advantageously employed by the private respondent, in order to conceal the apparent
irregularities, the private respondent claimed that the Deed of Partition and Sale (Annex "A" or
Exh "A"/"3") dated November 4, 1982, was a consolidation deed of the Deed of Adjudication
with Sale dated November 4, 1982 (Annex "B" or Exh. "B"/"1") and the Deed of Absolute Sale
dated November 23, 1982 (Annex "C" or Exh "C"/"2"). However, summing up the
consideration stated in Annex "B" of P11,000.00 and the consideration stated in Annex "C" of
P3,000.00, the total will naturally be P14,000.00, but the alleged [consolidation] deed (Annex
"A" or Exh "A"/"3") shows the consideration is not P14,000.00 but P45,000.00.27

xxxx

Assuming, without admitting, that petitioner Leonor Camcam regularly sold her one-half
portion in the two parcels of land in favor of private respondent Arcadio Frias, however,
considering the preferential right of the other petitioners, who are admittedly the owners of the
other half portion in said parcels of land, and considering further the attendant circumstances of
this case, as discussed above, the petitioners, with the exception of petitioner Leonor Camcam,
should be allowed to jointly exercise their right of redemption, the consideration of which shall
proportionately be based on that Deed (Annex "B" or Exh. "B"/"1") which was published in the
newspaper.28 (Underscoring supplied)

The petition is bereft of merit.

Without passing on the merits of Frias’ claim that Leonor originally sold to him ½ of Lot No.
18739 as reflected in the first November 4, 1982 document but later conveyed the remaining ½
thereof, hence, the execution of the second document bearing the same date, an irregular
notarization merely reduces the evidentiary value of a document to that of a private document,
which requires proof of its due execution and authenticity to be admissible as evidence. 29 The
irregular notarization – or, for that matter, the lack of notarization – does not thus necessarily
affect the validity of the contract reflected in the document. Tigno v. Aquino30 enlightens:

x x x [F]rom a civil law perspective, the absence of notarization of the Deed of Sale would not
necessarily invalidate the transaction evidenced therein. Article 1358 of the Civil Code requires
that the form of a contract that transmits or extinguishes real rights over immovable property
should be in a public document, yet it is also an accepted rule that the failure to observe the
proper form does not render the transaction invalid. Thus, it has been uniformly held that the
form required in Article 1358 is not essential to the validity or enforceability of the transaction,
but required merely for convenience. We have even affirmed that a sale of real property though
not consigned in a public instrument or formal writing, is nevertheless valid and binding among
the parties, for the time-honored rule is that even a verbal contract of sale or real estate produces
effects between the parties.31 (Underscoring supplied)

Petitioners alleged fraud on Frias’ part, hence, they had the burden of establishing the same by
clear and convincing evidence.32 This they failed to discharge.

By Leonor’s account, she signed the three documents relying on Frias’ word that they were
deeds of "mortgage," and she did not read them because she "[did] not know how to
read,"33 When asked, however, on cross-examination about her educational attainment, Leonor
answered that she finished the third year of a nursing course at San Juan de Dios Hospital. 34

Clarifying her statement that she did not know how to read, Leonor explained that she knew
how to read but her eyesight was blurred.35 Leonor’s granddaughter-witness Gertrudes Calpo
(Gertrudes) who signed as witness in Exhibit "B"/"1" declared, however, that she read the
contents of Exhibit "B"/"1" to Leonor,36 thus belying petitioners’ claim that Leonor signed the
same without knowing its true contents.

As for Exhibit "A"/"3" which petitioners maintain is spurious, Leonor’s signature therein being
allegedly forged,37 Leonor herself admitted having signed the same,38 and this was corroborated
by Gertrudes.39
As for Leonor’s co-petitioners’ invocation of their right of redemption of the share of Leonor in
the lots sold to Frias, points of law, theories, issues of fact, and arguments not brought to the
attention of the trial court ordinarily are not considered by a reviewing court as they cannot be
raised for the first time on appeal.40 Besides, given that petitioners already knew of the sale as
early as 1983, they are guilty of laches, having raised their right of redemption for the first time
in 2000 when they filed the present petition.41

At all events, even assuming that the invocation by Leonor’s co-petitioners of their right of
redemption was timely made, it cannot be considered a valid exercise thereof as it was not
accompanied by a reasonable and valid tender of the entire repurchase price.42

WHEREFORE, the petition is, in light of the foregoing disquisition, DENIED.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 156407 January 15, 2014

THELMA M. ARANAS, Petitioner,

vs.
TERESITA V. MERCADO, FELIMON V. MERCADO, CARMENCITA M.
SUTHERLAND, RICHARD V. MERCADO, MA. TERESITA M. ANDERSON, and
FRANKLIN L. MERCADO, Respondents.

DECISION

BERSAMIN, J.:

The probate court is authorized to determine the issue of ownership of properties for purposes
of their inclusion or exclusion from the inventory to be submitted by the administrator, but its
determination shall only be provisional unless the interested parties are all heirs of the decedent,
or the question is one of collation or advancement, or the parties consent to the assumption of
jurisdiction by the probate court and the rights of third parties are not impaired. Its jurisdiction
extends to matters incidental or collateral to the settlement and distribution of the estate, such as
the determination of the status of each heir and whether property included in the inventory is the
conjugal or exclusive property of the deceased spouse.

Antecedents

Emigdio S. Mercado (Emigdio) died intestate on January 12, 1991, survived by his second wife,
Teresita V. Mercado (Teresita), and their five children, namely: Allan V. Mercado, Felimon V.
Mercado, Carmencita M. Sutherland, Richard V. Mercado, and Maria Teresita M. Anderson;
and his two children by his first marriage, namely: respondent Franklin L. Mercado and
petitioner Thelma M. Aranas (Thelma).

Emigdio inherited and acquired real properties during his lifetime. He owned corporate shares
in Mervir Realty Corporation (Mervir Realty) and Cebu Emerson Transportation Corporation
(Cebu Emerson). He assigned his real properties in exchange for corporate stocks of Mervir
Realty, and sold his real property in Badian, Cebu (Lot 3353 covered by Transfer Certificate of
Title No. 3252) to Mervir Realty.

On June 3, 1991, Thelma filed in the Regional Trial Court (RTC) in Cebu City a petition for the
appointment of Teresita as the administrator of Emigdio’s estate (Special Proceedings No.
3094-CEB).1 The RTC granted the petition considering that there was no opposition. The letters
of administration in favor of Teresita were issued on September 7, 1992.
As the administrator, Teresita submitted an inventory of the estate of Emigdio on December 14,
1992 for the consideration and approval by the RTC. She indicated in the inventory that at the
time of his death, Emigdio had "left no real properties but only personal properties" worth
₱6,675,435.25 in all, consisting of cash of ₱32,141.20; furniture and fixtures worth ₱20,000.00;
pieces of jewelry valued at ₱15,000.00; 44,806 shares of stock of Mervir Realty worth
₱6,585,585.80; and 30 shares of stock of Cebu Emerson worth ₱22,708.25.2

Claiming that Emigdio had owned other properties that were excluded from the inventory,
Thelma moved that the RTC direct Teresita to amend the inventory, and to be examined
regarding it. The RTC granted Thelma’s motion through the order of January 8, 1993.

On January 21, 1993, Teresita filed a compliance with the order of January 8, 1993,3 supporting
her inventory with copies of three certificates of stocks covering the 44,806 Mervir Realty
shares of stock;4 the deed of assignment executed by Emigdio on January 10, 1991 involving
real properties with the market value of ₱4,440,651.10 in exchange for 44,407 Mervir Realty
shares of stock with total par value of ₱4,440,700.00; 5 and the certificate of stock issued on
January 30, 1979 for 300 shares of stock of Cebu Emerson worth ₱30,000.00.6

On January 26, 1993, Thelma again moved to require Teresita to be examined under oath on the
inventory, and that she (Thelma) be allowed 30 days within which to file a formal opposition to
or comment on the inventory and the supporting documents Teresita had submitted.

On February 4, 1993, the RTC issued an order expressing the need for the parties to present
evidence and for Teresita to be examined to enable the court to resolve the motion for approval
of the inventory.7

On April 19, 1993, Thelma opposed the approval of the inventory, and asked leave of court to
examine Teresita on the inventory.

With the parties agreeing to submit themselves to the jurisdiction of the court on the issue of
what properties should be included in or excluded from the inventory, the RTC set dates for the
hearing on that issue.8

Ruling of the RTC

After a series of hearings that ran for almost eight years, the RTC issued on March 14, 2001 an
order finding and holding that the inventory submitted by Teresita had excluded properties that
should be included, and accordingly ruled:

WHEREFORE, in view of all the foregoing premises and considerations, the Court hereby
denies the administratrix’s motion for approval of inventory. The Court hereby orders the said
administratrix to re-do the inventory of properties which are supposed to constitute as the estate
of the late Emigdio S. Mercado by including therein the properties mentioned in the last five
immediately preceding paragraphs hereof and then submit the revised inventory within sixty
(60) days from notice of this order.
The Court also directs the said administratrix to render an account of her administration of the
estate of the late Emigdio S. Mercado which had come to her possession. She must render such
accounting within sixty (60) days from notice hereof.

SO ORDERED.9

On March 29, 2001, Teresita, joined by other heirs of Emigdio, timely sought the
reconsideration of the order of March 14, 2001 on the ground that one of the real properties
affected, Lot No. 3353 located in Badian, Cebu, had already been sold to Mervir Realty, and
that the parcels of land covered by the deed of assignment had already come into the possession
of and registered in the name of Mervir Realty.10 Thelma opposed the motion.

On May 18, 2001, the RTC denied the motion for reconsideration,11 stating that there was no
cogent reason for the reconsideration, and that the movants’ agreement as heirs to submit to the
RTC the issue of what properties should be included or excluded from the inventory already
estopped them from questioning its jurisdiction to pass upon the issue.

Decision of the CA

Alleging that the RTC thereby acted with grave abuse of discretion in refusing to approve the
inventory, and in ordering her as administrator to include real properties that had been
transferred to Mervir Realty, Teresita, joined by her four children and her stepson Franklin,
assailed the adverse orders of the RTC promulgated on March 14, 2001 and May 18, 2001 by
petition for certiorari, stating:

THE HONORABLE RESPONDENT JUDGE HAS COMMITTED GRAVE ABUSE OF

JURISDICTION (sic) AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
HOLDING THAT THE REAL PROPERTY WHICH WAS SOLD BY THE LATE EMIGDIO
S. MERCADO DURING HIS LIFETIME TO A PRIVATE CORPORATION (MERVIR
REALTY CORPORATION) BE INCLUDED IN THE INVENTORY OF THE ESTATE OF
THE LATE EMIGDIO S. MERCADO.

II

THE HONORABLE RESPONDENT JUDGE HAS COMMITTED GRAVE ABUSE OF

JURISDICTION (sic) AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
HOLDING THAT REAL PROPERTIES WHICH ARE IN THE POSSESSION OF AND
ALREADY REGISTERED IN THE NAME (OF) PRIVATE CORPORATION (MERVIR
REALTY CORPORATION) BE INCLUDED IN THE INVENTORY OF THE ESTATE OF
THE LATE EMIGDIO S. MERCADO.

III
THE HONORABLE RESPONDENT JUDGE HAS COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN HOLDING
THAT PETITIONERS ARE NOW ESTOPPED FROM QUESTIONING ITS JURISDICTION
IN PASSING UPON THE ISSUE OF WHAT PROPERTIES SHOULD BE INCLUDED IN
THE INVENTORY OF THE ESTATE OF THE LATE EMIGDIO MERCADO.12

On May 15, 2002, the CA partly granted the petition for certiorari, disposing as follows:13

WHEREFORE, FOREGOING PREMISES CONSIDERED, this petition is GRANTED

partially. The assailed Orders dated March 14, 2001 and May 18, 2001 are hereby reversed and
set aside insofar as the inclusion of parcels of land known as Lot No. 3353 located at Badian,
Cebu with an area of 53,301 square meters subject matter of the Deed of Absolute Sale dated
November 9, 1989 and the various parcels of land subject matter of the Deeds of Assignment
dated February 17, 1989 and January 10, 1991 in the revised inventory to be submitted by the
administratrix is concerned and affirmed in all other respects.

SO ORDERED.

The CA opined that Teresita, et al. had properly filed the petition for certiorari because the
order of the RTC directing a new inventory of properties was interlocutory; that pursuant to
Article 1477 of the Civil Code, to the effect that the ownership of the thing sold "shall be
transferred to the vendee" upon its "actual and constructive delivery," and to Article 1498 of the
Civil Code, to the effect that the sale made through a public instrument was equivalent to the
delivery of the object of the sale, the sale by Emigdio and Teresita had transferred the
ownership of Lot No. 3353 to Mervir Realty because the deed of absolute sale executed on
November 9, 1989 had been notarized; that Emigdio had thereby ceased to have any more
interest in Lot 3353; that Emigdio had assigned the parcels of land to Mervir Realty as early as
February 17, 1989 "for the purpose of saving, as in avoiding taxes with the difference that in the
Deed of Assignment dated January 10, 1991, additional seven (7) parcels of land were
included"; that as to the January 10, 1991 deed of assignment, Mervir Realty had been "even at
the losing end considering that such parcels of land, subject matter(s) of the Deed of
Assignment dated February 12, 1989, were again given monetary consideration through shares
of stock"; that even if the assignment had been based on the deed of assignment dated January
10, 1991, the parcels of land could not be included in the inventory "considering that there is
nothing wrong or objectionable about the estate planning scheme"; that the RTC, as an intestate
court, also had no power to take cognizance of and determine the issue of title to property
registered in the name of third persons or corporation; that a property covered by the Torrens
system should be afforded the presumptive conclusiveness of title; that the RTC, by
disregarding the presumption, had transgressed the clear provisions of law and infringed settled
jurisprudence on the matter; and that the RTC also gravely abused its discretion in holding that
Teresita, et al. were estopped from questioning its jurisdiction because of their agreement to
submit to the RTC the issue of which properties should be included in the inventory.

The CA further opined as follows:

In the instant case, public respondent court erred when it ruled that petitioners are estopped
from questioning its jurisdiction considering that they have already agreed to submit themselves
to its jurisdiction of determining what properties are to be included in or excluded from the
inventory to be submitted by the administratrix, because actually, a reading of petitioners’
Motion for Reconsideration dated March 26, 2001 filed before public respondent court clearly
shows that petitioners are not questioning its jurisdiction but the manner in which it was
exercised for which they are not estopped, since that is their right, considering that there is
grave abuse of discretion amounting to lack or in excess of limited jurisdiction when it issued
the assailed Order dated March 14, 2001 denying the administratrix’s motion for approval of
the inventory of properties which were already titled and in possession of a third person that is,
Mervir Realty Corporation, a private corporation, which under the law possessed a personality
distinct and separate from its stockholders, and in the absence of any cogency to shred the veil
of corporate fiction, the presumption of conclusiveness of said titles in favor of Mervir Realty
Corporation should stand undisturbed.

Besides, public respondent court acting as a probate court had no authority to determine the
applicability of the doctrine of piercing the veil of corporate fiction and even if public
respondent court was not merely acting in a limited capacity as a probate court, private
respondent nonetheless failed to adjudge competent evidence that would have justified the court
to impale the veil of corporate fiction because to disregard the separate jurisdictional personality
of a corporation, the wrongdoing must be clearly and convincingly established since it cannot
be presumed.14

On November 15, 2002, the CA denied the motion for reconsideration of Teresita, et al. 15

Issue

Did the CA properly determine that the RTC committed grave abuse of discretion amounting to
lack or excess of jurisdiction in directing the inclusion of certain properties in the inventory
notwithstanding that such properties had been either transferred by sale or exchanged for
corporate shares in Mervir Realty by the decedent during his lifetime?

Ruling of the Court

The appeal is meritorious.

Was certiorari the proper recourse

to assail the questioned orders of the RTC?

The first issue to be resolved is procedural. Thelma contends that the resort to the special civil
action for certiorari to assail the orders of the RTC by Teresita and her co-respondents was not
proper.

Thelma’s contention cannot be sustained.

The propriety of the special civil action for certiorari as a remedy depended on whether the
assailed orders of the RTC were final or interlocutory in nature. In Pahila-Garrido v.
Tortogo,16 the Court distinguished between final and interlocutory orders as follows:

The distinction between a final order and an interlocutory order is well known. The first
disposes of the subject matter in its entirety or terminates a particular proceeding or action,
leaving nothing more to be done except to enforce by execution what the court has determined,
but the latter does not completely dispose of the case but leaves something else to be decided
upon. An interlocutory order deals with preliminary matters and the trial on the merits is yet to
be held and the judgment rendered. The test to ascertain whether or not an order or a judgment
is interlocutory or final is: does the order or judgment leave something to be done in the trial
court with respect to the merits of the case? If it does, the order or judgment is interlocutory;
otherwise, it is final.

The order dated November 12, 2002, which granted the application for the writ of preliminary
injunction, was an interlocutory, not a final, order, and should not be the subject of an appeal.
The reason for disallowing an appeal from an interlocutory order is to avoid multiplicity of
appeals in a single action, which necessarily suspends the hearing and decision on the merits of
the action during the pendency of the appeals. Permitting multiple appeals will necessarily
delay the trial on the merits of the case for a considerable length of time, and will compel the
adverse party to incur unnecessary expenses, for one of the parties may interpose as many
appeals as there are incidental questions raised by him and as there are interlocutory orders
rendered or issued by the lower court. An interlocutory order may be the subject of an appeal,
but only after a judgment has been rendered, with the ground for appealing the order being
included in the appeal of the judgment itself.

The remedy against an interlocutory order not subject of an appeal is an appropriate special civil
action under Rule 65, provided that the interlocutory order is rendered without or in excess of
jurisdiction or with grave abuse of discretion. Then is certiorari under Rule 65 allowed to be
resorted to.

The assailed order of March 14, 2001 denying Teresita’s motion for the approval of the
inventory and the order dated May 18, 2001 denying her motion for reconsideration were
interlocutory. This is because the inclusion of the properties in the inventory was not yet a final
determination of their ownership. Hence, the approval of the inventory and the concomitant
determination of the ownership as basis for inclusion or exclusion from the inventory were
provisional and subject to revision at anytime during the course of the administration
proceedings.

In Valero Vda. De Rodriguez v. Court of Appeals,17 the Court, in affirming the decision of the
CA to the effect that the order of the intestate court excluding certain real properties from the
inventory was interlocutory and could be changed or modified at anytime during the course of
the administration proceedings, held that the order of exclusion was not a final but an
interlocutory order "in the sense that it did not settle once and for all the title to the San Lorenzo
Village lots." The Court observed there that:
The prevailing rule is that for the purpose of determining whether a certain property should or
should not be included in the inventory, the probate court may pass upon the title thereto but
such determination is not conclusive and is subject to the final decision in a separate action
regarding ownership which may be instituted by the parties (3 Moran’s Comments on the Rules
of Court, 1970 Edition, pages 448-9 and 473; Lachenal vs. Salas, L-42257, June 14, 1976, 71
SCRA 262, 266).18 (Bold emphasis supplied)

To the same effect was De Leon v. Court of Appeals,19 where the Court declared that a "probate
court, whether in a testate or intestate proceeding, can only pass upon questions of title
provisionally," and reminded, citing Jimenez v. Court of Appeals, that the "patent reason is the
probate court’s limited jurisdiction and the principle that questions of title or ownership, which
result in inclusion or exclusion from the inventory of the property, can only be settled in a
separate action." Indeed, in the cited case of Jimenez v. Court of Appeals,20 the Court pointed
out:

All that the said court could do as regards the said properties is determine whether they should
or should not be included in the inventory or list of properties to be administered by the
administrator. If there is a dispute as to the ownership, then the opposing parties and the
administrator have to resort to an ordinary action for a final determination of the conflicting
claims of title because the probate court cannot do so. (Bold emphasis supplied)

On the other hand, an appeal would not be the correct recourse for Teresita, et al. to take against
the assailed orders. The final judgment rule embodied in the first paragraph of Section 1, Rule
41, Rules of Court,21 which also governs appeals in special proceedings, stipulates that only the
judgments, final orders (and resolutions) of a court of law "that completely disposes of the case,
or of a particular matter therein when declared by these Rules to be appealable" may be the
subject of an appeal in due course. The same rule states that an interlocutory order or resolution
(interlocutory because it deals with preliminary matters, or that the trial on the merits is yet to
be held and the judgment rendered) is expressly made non-appealable.

Multiple appeals are permitted in special proceedings as a practical recognition of the

possibility that material issues may be finally determined at various stages of the special
proceedings. Section 1, Rule 109 of the Rules of Court enumerates the specific instances in
which multiple appeals may be resorted to in special proceedings, viz:

Section 1. Orders or judgments from which appeals may be taken. - An interested person may
appeal in special proceedings from an order or judgment rendered by a Court of First Instance
or a Juvenile and Domestic Relations Court, where such order or judgment:

(a) Allows or disallows a will;

(b) Determines who are the lawful heirs of a deceased person, or the distributive share of
the estate to which such person is entitled;
 (c) Allows or disallows, in whole or in part, any claim against the estate of a deceased
person, or any claim presented on behalf of the estate in offset to a claim against it;

(d) Settles the account of an executor, administrator, trustee or guardian;

(e) Constitutes, in proceedings relating to the settlement of the estate of a deceased

person, or the administration of a trustee or guardian, a final determination in the lower
court of the rights of the party appealing, except that no appeal shall be allowed from the
appointment of a special administrator; and

(f) Is the final order or judgment rendered in the case, and affects the substantial rights of
the person appealing, unless it be an order granting or denying a motion for a new trial or
for reconsideration.

Clearly, the assailed orders of the RTC, being interlocutory, did not come under any of the
instances in which multiple appeals are permitted.

II

Did the RTC commit grave abuse of discretion

in directing the inclusion of the properties
in the estate of the decedent?

In its assailed decision, the CA concluded that the RTC committed grave abuse of discretion for
including properties in the inventory notwithstanding their having been transferred to Mervir
Realty by Emigdio during his lifetime, and for disregarding the registration of the properties in
the name of Mervir Realty, a third party, by applying the doctrine of piercing the veil of
corporate fiction.

Was the CA correct in its conclusion?

The answer is in the negative. It is unavoidable to find that the CA, in reaching its conclusion,
ignored the law and the facts that had fully warranted the assailed orders of the RTC.

Under Section 6(a), Rule 78 of the Rules of Court, the letters of administration may be granted
at the discretion of the court to the surviving spouse, who is competent and willing to serve
when the person dies intestate. Upon issuing the letters of administration to the surviving
spouse, the RTC becomes duty-bound to direct the preparation and submission of the inventory
of the properties of the estate, and the surviving spouse, as the administrator, has the duty and
responsibility to submit the inventory within three months from the issuance of letters of
administration pursuant to Rule 83 of the Rules of Court, viz:

Section 1. Inventory and appraisal to be returned within three months. – Within three (3)
months after his appointment every executor or administrator shall return to the court a true
inventory and appraisal of all the real and personal estate of the deceased which has come into
his possession or knowledge. In the appraisement of such estate, the court may order one or
more of the inheritance tax appraisers to give his or their assistance.

The usage of the word all in Section 1, supra, demands the inclusion of all the real and personal
properties of the decedent in the inventory.22 However, the word all is qualified by the phrase
which has come into his possession or knowledge, which signifies that the properties must be
known to the administrator to belong to the decedent or are in her possession as the
administrator. Section 1 allows no exception, for the phrase true inventory implies that no
properties appearing to belong to the decedent can be excluded from the inventory, regardless of
their being in the possession of another person or entity.

The objective of the Rules of Court in requiring the inventory and appraisal of the estate of the
decedent is "to aid the court in revising the accounts and determining the liabilities of the
executor or the administrator, and in making a final and equitable distribution (partition) of the
estate and otherwise to facilitate the administration of the estate."23Hence, the RTC that presides
over the administration of an estate is vested with wide discretion on the question of what
properties should be included in the inventory. According to Peralta v. Peralta,24 the CA cannot
impose its judgment in order to supplant that of the RTC on the issue of which properties are to
be included or excluded from the inventory in the absence of "positive abuse of discretion," for
in the administration of the estates of deceased persons, "the judges enjoy ample discretionary
powers and the appellate courts should not interfere with or attempt to replace the action taken
by them, unless it be shown that there has been a positive abuse of discretion." 25 As long as the
RTC commits no patently grave abuse of discretion, its orders must be respected as part of the
regular performance of its judicial duty.

There is no dispute that the jurisdiction of the trial court as an intestate court is special and
limited. The trial court cannot adjudicate title to properties claimed to be a part of the estate but
are claimed to belong to third parties by title adverse to that of the decedent and the estate, not
by virtue of any right of inheritance from the decedent. All that the trial court can do regarding
said properties is to determine whether or not they should be included in the inventory of
properties to be administered by the administrator. Such determination is provisional and may
be still revised. As the Court said in Agtarap v. Agtarap:26

The general rule is that the jurisdiction of the trial court, either as a probate court or an intestate
court, relates only to matters having to do with the probate of the will and/or settlement of the
estate of deceased persons, but does not extend to the determination of questions of ownership
that arise during the proceedings. The patent rationale for this rule is that such court merely
exercises special and limited jurisdiction. As held in several cases, a probate court or one in
charge of estate proceedings, whether testate or intestate, cannot adjudicate or determine title to
properties claimed to be a part of the estate and which are claimed to belong to outside parties,
not by virtue of any right of inheritance from the deceased but by title adverse to that of the
deceased and his estate. All that the said court could do as regards said properties is to
determine whether or not they should be included in the inventory of properties to be
administered by the administrator. If there is no dispute, there poses no problem, but if there is,
then the parties, the administrator, and the opposing parties have to resort to an ordinary action
before a court exercising general jurisdiction for a final determination of the conflicting claims
of title.

However, this general rule is subject to exceptions as justified by expediency and convenience.

First, the probate court may provisionally pass upon in an intestate or a testate proceeding the
question of inclusion in, or exclusion from, the inventory of a piece of property without
prejudice to final determination of ownership in a separate action. Second, if the interested
parties are all heirs to the estate, or the question is one of collation or advancement, or the
parties consent to the assumption of jurisdiction by the probate court and the rights of third
parties are not impaired, then the probate court is competent to resolve issues on ownership.
Verily, its jurisdiction extends to matters incidental or collateral to the settlement and
distribution of the estate, such as the determination of the status of each heir and whether the
property in the inventory is conjugal or exclusive property of the deceased spouse. 27 (Italics in
the original; bold emphasis supplied)

It is clear to us that the RTC took pains to explain the factual bases for its directive for the
inclusion of the properties in question in its assailed order of March 14, 2001, viz:

In the first place, the administratrix of the estate admitted that Emigdio Mercado was one of the
heirs of Severina Mercado who, upon her death, left several properties as listed in the inventory
of properties submitted in Court in Special Proceedings No. 306-R which are supposed to be
divided among her heirs. The administratrix admitted, while being examined in Court by the
counsel for the petitioner, that she did not include in the inventory submitted by her in this case
the shares of Emigdio Mercado in the said estate of Severina Mercado. Certainly, said
properties constituting Emigdio Mercado’s share in the estate of Severina Mercado should be
included in the inventory of properties required to be submitted to the Court in this particular
case.

In the second place, the administratrix of the estate of Emigdio Mercado also admitted in Court
that she did not include in the inventory shares of stock of Mervir Realty Corporation which are
in her name and which were paid by her from money derived from the taxicab business which
she and her husband had since 1955 as a conjugal undertaking. As these shares of stock partake
of being conjugal in character, one-half thereof or of the value thereof should be included in the
inventory of the estate of her husband.

In the third place, the administratrix of the estate of Emigdio Mercado admitted, too, in Court
that she had a bank account in her name at Union Bank which she opened when her husband
was still alive. Again, the money in said bank account partakes of being conjugal in character,
and so, one-half thereof should be included in the inventory of the properties constituting as
estate of her husband.

In the fourth place, it has been established during the hearing in this case that Lot No. 3353 of
Pls-657-D located in Badian, Cebu containing an area of 53,301 square meters as described in
and covered by Transfer Certificate of Title No. 3252 of the Registry of Deeds for the Province
of Cebu is still registered in the name of Emigdio S. Mercado until now. When it was the
subject of Civil Case No. CEB-12690 which was decided on October 19, 1995, it was the estate
of the late Emigdio Mercado which claimed to be the owner thereof. Mervir Realty Corporation
never intervened in the said case in order to be the owner thereof. This fact was admitted by
Richard Mercado himself when he testified in Court. x x x So the said property located in
Badian, Cebu should be included in the inventory in this case.

Fifthly and lastly, it appears that the assignment of several parcels of land by the late Emigdio
S. Mercado to Mervir Realty Corporation on January 10, 1991 by virtue of the Deed of
Assignment signed by him on the said day (Exhibit N for the petitioner and Exhibit 5 for the
administratrix) was a transfer in contemplation of death. It was made two days before he died
on January 12, 1991. A transfer made in contemplation of death is one prompted by the thought
that the transferor has not long to live and made in place of a testamentary disposition (1959
Prentice Hall, p. 3909). Section 78 of the National Internal Revenue Code of 1977 provides that
the gross estate of the decedent shall be determined by including the value at the time of his
death of all property to the extent of any interest therein of which the decedent has at any time
made a transfer in contemplation of death. So, the inventory to be approved in this case should
still include the said properties of Emigdio Mercado which were transferred by him in
contemplation of death. Besides, the said properties actually appeared to be still registered in
the name of Emigdio S. Mercado at least ten (10) months after his death, as shown by the
certification issued by the Cebu City Assessor’s Office on October 31, 1991 (Exhibit O). 28

Thereby, the RTC strictly followed the directives of the Rules of Court and the jurisprudence
relevant to the procedure for preparing the inventory by the administrator. The aforequoted
explanations indicated that the directive to include the properties in question in the inventory
rested on good and valid reasons, and thus was far from whimsical, or arbitrary, or capricious.

Firstly, the shares in the properties inherited by Emigdio from Severina Mercado should be
included in the inventory because Teresita, et al. did not dispute the fact about the shares being
inherited by Emigdio.

Secondly, with Emigdio and Teresita having been married prior to the effectivity of the Family
Code in August 3, 1988, their property regime was the conjugal partnership of gains.29 For
purposes of the settlement of Emigdio’s estate, it was unavoidable for Teresita to include his
shares in the conjugal partnership of gains. The party asserting that specific property acquired
during that property regime did not pertain to the conjugal partnership of gains carried the
burden of proof, and that party must prove the exclusive ownership by one of them by clear,
categorical, and convincing evidence.30 In the absence of or pending the presentation of such
proof, the conjugal partnership of Emigdio and Teresita must be provisionally liquidated to
establish who the real owners of the affected properties were,31 and which of the properties
should form part of the estate of Emigdio. The portions that pertained to the estate of Emigdio
must be included in the inventory.
Moreover, although the title over Lot 3353 was already registered in the name of Mervir Realty,
the RTC made findings that put that title in dispute. Civil Case No. CEB-12692, a dispute that
had involved the ownership of Lot 3353, was resolved in favor of the estate of Emigdio, and

Transfer Certificate of Title No. 3252 covering Lot 3353 was still in Emigdio’s
name.1âwphi1 Indeed, the RTC noted in the order of March 14, 2001, or ten years after his
death, that Lot 3353 had remained registered in the name of Emigdio.

Interestingly, Mervir Realty did not intervene at all in Civil Case No. CEB-12692. Such lack of
interest in Civil Case No. CEB-12692 was susceptible of various interpretations, including one
to the effect that the heirs of Emigdio could have already threshed out their differences with the
assistance of the trial court. This interpretation was probable considering that Mervir Realty,
whose business was managed by respondent Richard, was headed by Teresita herself as its
President. In other words, Mervir Realty appeared to be a family corporation.

Also, the fact that the deed of absolute sale executed by Emigdio in favor of Mervir Realty was
a notarized instrument did not sufficiently justify the exclusion from the inventory of the
properties involved. A notarized deed of sale only enjoyed the presumption of regularity in
favor of its execution, but its notarization did not per se guarantee the legal efficacy of the
transaction under the deed, and what the contents purported to be. The presumption of
regularity could be rebutted by clear and convincing evidence to the contrary.32 As the Court
has observed in Suntay v. Court of Appeals:33

x x x. Though the notarization of the deed of sale in question vests in its favor the presumption
of regularity, it is not the intention nor the function of the notary public to validate and make
binding an instrument never, in the first place, intended to have any binding legal effect upon
the parties thereto. The intention of the parties still and always is the primary consideration in
determining the true nature of a contract. (Bold emphasis supplied)

It should likewise be pointed out that the exchange of shares of stock of Mervir Realty with the
real properties owned by Emigdio would still have to be inquired into. That Emigdio executed
the deed of assignment two days prior to his death was a circumstance that should put any
interested party on his guard regarding the exchange, considering that there was a finding about
Emigdio having been sick of cancer of the pancreas at the time.34 In this regard, whether the CA
correctly characterized the exchange as a form of an estate planning scheme remained to be
validated by the facts to be established in court.

The fact that the properties were already covered by Torrens titles in the name of Mervir Realty
could not be a valid basis for immediately excluding them from the inventory in view of the
circumstances admittedly surrounding the execution of the deed of assignment. This is because:

The Torrens system is not a mode of acquiring titles to lands; it is merely a system of
registration of titles to lands.1âwphi1However, justice and equity demand that the titleholder
should not be made to bear the unfavorable effect of the mistake or negligence of the State’s
agents, in the absence of proof of his complicity in a fraud or of manifest damage to third
persons. The real purpose of the Torrens system is to quiet title to land and put a stop forever to
any question as to the legality of the title, except claims that were noted in the certificate at the
time of registration or that may arise subsequent thereto. Otherwise, the integrity of the Torrens
system shall forever be sullied by the ineptitude and inefficiency of land registration officials,
who are ordinarily presumed to have regularly performed their duties.35

Assuming that only seven titled lots were the subject of the deed of assignment of January 10,
1991, such lots should still be included in the inventory to enable the parties, by themselves,
and with the assistance of the RTC itself, to test and resolve the issue on the validity of the
assignment. The limited jurisdiction of the RTC as an intestate court might have constricted the
determination of the rights to the properties arising from that deed, 36 but it does not prevent the
RTC as intestate court from ordering the inclusion in the inventory of the properties subject of
that deed. This is because the RTC as intestate court, albeit vested only with special and limited
jurisdiction, was still "deemed to have all the necessary powers to exercise such jurisdiction to
make it effective."37

Lastly, the inventory of the estate of Emigdio must be prepared and submitted for the important
purpose of resolving the difficult issues of collation and advancement to the heirs. Article 1061
of the Civil Code required every compulsory heir and the surviving spouse, herein Teresita
herself, to "bring into the mass of the estate any property or right which he (or she) may have
received from the decedent, during the lifetime of the latter, by way of donation, or any other
gratuitous title, in order that it may be computed in the determination of the legitime of each
heir, and in the account of the partition." Section 2, Rule 90 of the Rules of Court also provided
that any advancement by the decedent on the legitime of an heir "may be heard and determined
by the court having jurisdiction of the estate proceedings, and the final order of the court
thereon shall be binding on the person raising the questions and on the heir." Rule 90 thereby
expanded the special and limited jurisdiction of the RTC as an intestate court about the matters
relating to the inventory of the estate of the decedent by authorizing it to direct the inclusion of
properties donated or bestowed by gratuitous title to any compulsory heir by the decedent.38

The determination of which properties should be excluded from or included in the inventory of
estate properties was well within the authority and discretion of the RTC as an intestate court.
In making its determination, the RTC acted with circumspection, and proceeded under the
guiding policy that it was best to include all properties in the possession of the administrator or
were known to the administrator to belong to Emigdio rather than to exclude properties that
could turn out in the end to be actually part of the estate. As long as the RTC commits no patent
grave abuse of discretion, its orders must be respected as part of the regular performance of its
judicial duty. Grave abuse of discretion means either that the judicial or quasi-judicial power
was exercised in an arbitrary or despotic manner by reason of passion or personal hostility, or
that the respondent judge, tribunal or board evaded a positive duty, or virtually refused to
perform the duty enjoined or to act in contemplation of law, such as when such judge, tribunal
or board exercising judicial or quasi-judicial powers acted in a capricious or whimsical manner
as to be equivalent to lack of jurisdiction.39
In light of the foregoing, the CA's conclusion of grave abuse of discretion on the part of the
RTC was unwarranted and erroneous.

WHEREFORE, the Court GRANTS the petition for review on certiorari; REVERSES and
SETS ASIDE the decision promulgated on May 15, 2002; REINSTATES the orders issued on
March 14, 2001 and May 18, 2001 by the Regional Trial Court in Cebu; DIRECTS the
Regional Trial Court in Cebu to proceed with dispatch in Special Proceedings No. 3094-CEB
entitled Intestate Estate of the late Emigdio Mercado, Thelma Aranas, petitioner, and to resolve
the case; and ORDERS the respondents to pay the costs of suit.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Baguio City

SECOND DIVISION

A.C. No. 10303 April 22, 2015

JOY A. GIMENO, Complainant,

vs.
ATTY. PAUL CENTILLAS ZAIDE, Respondent.

DECISION

BRION, J.:

We review Resolution No. XX-2011-2641 of the Board of Governors of the Integrated Bar of
the Philippines (IBP) in CBD Case No. 07-2069, which imposed on Atty. Paul Centillas Zaide
(Atty. Zaide) the penalty of one-year suspension from the practice of law, revocation of notarial
commission, if existing, and two years suspension from being commissioned as a notary public,
for violation of the 2004 Rules on Notarial Practice (Notarial Practice Rules).2

The Case

On August 8, 2007, complainant Joy A. Gimeno (Cimeno) filed a complaint3 with the IBP's
Commission on Bar Discipline, charging Atty. Zaide with: (1) usurpation of a notary public's
office; (2) falsification;

(3) use of intemperate, offensive and abusive language; and (4) violation of lawyer-client trust.

In her complaint, Gimeno alleged that even before Atty. Zaide's admission 4 to the Bar and
receipt5 of his notarial commission, he had notarized a partial extrajudicial partition with deed
of absolute sale on March 29, 2002.6 She also accused Atty. Zaide of making false and irregular
entries in his notarial registers.7

Gimeno further submitted that she was Atty. Zaide's former client. She engaged the services of
his law firm Zaragoza-Makabangkit-Zaide Law Offices (ZMZ) in an annulment of title case that
involved her husband and her parents-in-law.

Despite their previous lawyer-client relationship, Atty. Zaide still appeared against her in the
complaint for estafa and violation of RA 30198 that one Priscilla Somontan (Somontan) filed
against her with the Ombudsman. Gimeno posited that by appearing against a former client,
Atty. Zaide violated the prohibition against the representation of conflicting clients'
interests.9 Lastly, Gimeno contended that Atty. Zaide called her a "notorious extortionist" in the
same administrative complaint that Somontan filed against her.10 In another civil case where she
was not a party, Gimeno observed that Atty. Zaide referred to his opposing counsel as someone
suffering from "serious mental incompetence" in one of his pleadings.11 According to Gimeno,
these statements constitute intemperate, offensive and abusive language, which a lawyer is
proscribed from using in his dealings.

In his answer12 dated September 13, 2007,Atty. Zaide argued that he did not notarize the March
29, 2002 partial extrajudicial partition. As it appeared on the notarial page of this document, his
notarial stamp and falsified signature were superimposed over the typewritten name of Atty.
Elpedio Cabasan, the lawyer who actually notarized this document.13 Atty. Zaide claimed that
Gimeno falsified his signature to make it appear that he notarized it before his admission to the
Bar.

On the alleged falsification of his notarial entries, Atty. Zaide contended that he needed to
simultaneously use several notarial registers in his separate satellite offices in order to better
cater to the needs of his clients and accommodate their growing number.14 This explains the
irregular and non-sequential entries in his notarial registers.

Further, Atty. Zaide argued that Gimeno was never his client since she did not personally hire
him as her counsel. Gimeno engaged the services of ZMZ where he previously worked as an
associate. The real counsel of Gimeno and her relatives in their annulment of title case was
Atty. Leo Montalban Zaragoza, one of ZMZ's partners.15 On this basis, the respondent should
not be held liable for representing conflicting clients' interests.

Finally, he denied that he used any intemperate, offensive, and abusive language in his
pleadings.16

The IBP Proceedings

On October 4, 2007, the IBP CBD issued an order setting the case for mandatory
conference.17 After this, both parties were required to submit their position papers.

In his report and recommendation18 dated May 18, 2010, Commissioner Pedro A. Magpayo, Jr.
(Commissioner Magpayo) found Atty. Zaide administratively liable for violating the Notarial
Practice Rules, representing conflicting interests, and using abusive and insulting language in
his pleadings.

He noted that Atty. Zaide violated Section 1(a) and 1(b), Rule VI of the Notarial Practice Rules
when he maintained several active notarial registers in different offices. These provisions
respectively require a notary public to "keep, maintain, protect and provide for lawful
inspection, a chronological official register of notarial acts consisting of a permanently bound
book with numbered papers" and to "keep only one active notarial register at any given
time."19However, Commissioner Magpayo opined that Atty. Zaide should not be held
administratively liable for usurping a notary public's office. The investigating commissioner
noted that the evidence presented on this issue is not enough to prove that Atty. Zaide signed
and notarized the March 29, 2002 partial extrajudicial partition even after his admission to the
Bar and receipt of his notarial commission.20
Commissioner Magpayo also found that the evidence presented proved that Gimeno was indeed
Atty. Zaide's former client. He disagreed with Atty. Zaide's defense that Gimeno only hired
ZMZ but did not personally hire him to defend them in their annulment of title case. The
retainer of a law firm is equivalent to the retainer of all its lawyers.21But despite this previous
attorney-client relationship, the investigating commissioner noted that Atty. Zaide should not be
held liable for representing conflicting interests since the annulment of title case is totally
unrelated to the Ombudsman complaint that Somontan filed against Gimeno through Atty.
Zaide.

Finally, the investigating commissioner noted that Atty. Zaide used intemperate, offensive, and
abusive language when he called Gimeno a "notorious extortionist" in one of his
pleadings.22 For violating the Notarial Practice Rules, Commissioner Magpayo recommended
that Atty. Zaide be suspended for three months, and for another six months for employing
abusive and insulting language.23

The IBP Board of Governors' Findings

In its November 19, 2011 resolution, the IBP Board of Governors (Board) opined that the
evidence on record fully supports the findings of the investigating commissioner. However, the
Board modified the recommended penalty and imposed instead the penalty of one year
suspension from the practice of law, revocation of notarial commission, if existing, and two
years suspension from being commissioned as a notary public.24

Atty. Zaide sought for the reconsideration25 of the Board's November 19, 2011 resolution but
this was also denied in its subsequent June 21, 2013 resolution.26

The Court's Ruling

The Court agrees with the IBP Board of Governors' findings and recommended penalty, and
accordingly confirms them.

For an orderly disposition of the case, we shall discuss each of the main issues that the parties
identified.

Violation of the Notarial Practice Rules

a. Usurpation of a notarial office

As the investigating commissioner found, Gimeno did not present any concrete evidence to
show that Atty. Zaide notarized the March 29, 2002 partial extrajudicial partition prior to his
admission to the Bar and receipt of his notarial commission.

It appears that this document originally carried the name of one Atty. Elpedio Cabasan, as
notary public.1âwphi1 Atty. Zaide's signature and notarial stamp that bears his name, roll
number, PTR number, IBP number, and the expiration date of his notarial commission, were
merely superimposed over Atty. Cabasan's typewritten name.
Notably, Atty. Zaide admitted that the details stamped on the document are his true information.
However, he denied that he personally stamped and signed the document. In fact, this
document never appeared in his notarial register and was never included in his notarial
report for the year 2002. He contended that Gimeno falsified his signature and used his
notarial stamp to make it appear that he was the one who notarized it.

This Court notes that at the time the document was purportedly notarized, Atty. Zaide's details
as a lawyer and as a notary public had not yet existed. He was admitted to the Bar only on
May 2, 2002; thus, he could not have obtained and used the exact figures pertaining to his
roll number, PTR number, IBP number and the expiration date of his notarial
commission, prior to this date, particularly on March 29, 2002.

This circumstance, coupled with the absence of any evidence supporting Gimeno's claim such
as a witness to the alleged fictitious notarization, leads us to the conclusion that Atty. Zaide
could not have notarized the document before his Bar admission and receipt of his notarial
commission.

We can only conclude that his professional details, which were only generated after his Bar
admission, were stamped on the March 29, 2002 document. How this happened is not clear
from the evidence before us.

b. Maintaining different notarial registers in separate notarial offices

We find that Atty. Zaide violated the Notarial Practice Rules by maintaining different notarial
registers in several offices. Because of this practice, the following notarized documents had
been irregularly numbered and entered:

Document27 Date Doc. No. Page Book Year

Special Power of Attorney 6/20/05 273 55 18 2005
Secretary's Certificate 10/28/05 226 46 18 2005
Affidavit of Quitclaim 10/31/05 272 55 18 2005
Affidavit of Loss 4/17/06 54 11 25 2006
Affidavit of Two Disinterested 4/17/06 310 61 25 2006

Persons
Petition for Issuance of Owner's 4/17/06 72 15 25 2006

Duplicate copy
Affidavit of Parental Consent 4/19/06 461 93 23 2006
Confirmation of Sale 4/21/06 283 56 25 2006
Deed of Absolute Sale 4/27/06 304 60 25 2006
Section 1(a), Rule VI of the Notarial Practice Rules provides that "a notary public shall keep,
maintain, protect and provide for lawful inspection as provided in these Rules, a chronological
official notarial register of notarial acts consisting of a permanently bound book with numbered
pages." The same section further provides that "a notary public shall keep only one active
notarial register at any given time."28 On this basis, Atty. Zaide's act of simultaneously keeping
several active notarial registers is a blatant violation of Section 1, Rule VI.

The Notarial Practice Rules strictly requires a notary public to maintain only one active notarial
register and ensure that the entries in it are chronologically arranged. The "one active notarial
register" rule is in place to deter a notary public from assigning several notarial registers to
different offices manned by assistants who perform notarial services on his behalf.

Since a notarial commission is personal to each lawyer, the notary public must also personally
administer the notarial acts29 that the law authorizes him to execute. This important duty is
vested with public interest. Thus, no other person, other than the notary public, should perform
it.

On the other hand, entries in a notarial register need to be in chronological sequence in order to
address and prevent the rampant practice of leaving blank spaces in the notarial register to allow
the antedating of notarizations.

In these lights, we cannot accept Atty. Zaide's explanation that he needed to maintain several
active notarial registers in separate offices so he could accommodate the increasing number of
his clients requiring his notarial services.

This Court stresses that a notary public should not trivialize his functions as his powers and
duties are impressed with public interest.30 A notary public's office is not merely an income-
generating venture. It is a public duty that each lawyer who has been privileged to receive a
notarial commission must faithfully and conscientiously perform.

Atty. Zaide should have been acutely aware of the requirements of his notarial commission. His
flagrant violation of Section 1, Rule VI of the Notarial Practice Rules is not merely a simple and
excusable negligence. It amounts to a clear violation of Canon 1 of the Code of Professional
Responsibility, which provides that "a lawyer [should] uphold the constitution, obey the laws of
the land and promote respect for law and legal processes."

Representing conflicting interests

The investigating commissioner properly noted that Atty. Zaide should not be held liable for
representing conflicting clients' interests.

Rule 15.03, Canon 15 of the Code of Professional Responsibility provides:

Rule 15.03 - A lawyer shall not represent conflicting interests except by written consent of all
concerned given after a full disclosure of the facts.1âwphi1
In Aniñon v. Sabitsana,31 the Court laid down the tests to determine if a lawyer is guilty of
representing conflicting interests between and among his clients.

One of these tests is whether the acceptance of a new relation would prevent the full discharge
of a lawyer's duty of undivided fidelity and loyalty to the client or invite suspicion of
unfaithfulness or double-dealing in the performance of that duty.32

Another test is whether a lawyer would be called upon in the new relation to use against a
former client any confidential information acquired through their connection or previous
employment.33

Applying these tests, we find no conflict of interest when Atty. Zaide appeared against Gimeno,
his former law firm's client.

The lawyer-client relationship between Atty. Zaide and Gimeno ceased when Atty. Zaide left
ZMZ. Moreover, the case where Gimeno engaged ZMZ's services is an entirely different
subject matter and is not in any way connected to the complaint that Somontan filed against
Gimeno with the Ombudsman.

The prior case where Gimeno hired ZMZ and where Atty. Zaide represented her family
pertained to the annulment of a land title. Somontan was never a party to this case since this
only involved Gimeno's relatives. On the other hand, the case where Atty. Zaide appeared
against Gimeno involved Somontan's Ombudsman complaint against Gimeno for her alleged
mishandling of the funds that Somontan entrusted to her, and for Gimeno's alleged corruption as
an examiner in the Register of Deeds of Iligan City. Clearly, the annulment of title case and the
Ombudsman case are totally unrelated.

There was also no double-dealing on the part of Atty. Zaide because at the time Somontan
engaged his services, he had already left ZMZ. More importantly, nothing in the record shows
that Atty. Zaide used against Gimeno any confidential information which he acquired while he
was still their counsel in the annulment of title case.

Under these circumstances, Atty. Zaide should not be held liable for violating the prohibition
against the representation of conflicting interests.

Use of intemperate, offensive and

abusive language in professional
dealings

The prohibition on the use of intemperate, offensive and abusive language in a lawyer's
professional dealings, whether with the courts, his clients, or any other person, is based on the
following canons and rules of the Code of Professional Responsibility:

Canon 8 - A lawyer shall conduct himself with courtesy, fairness and candor toward his
professional colleagues, and shall avoid harassing tactics against opposing counsel.
Rule 8.01 - A lawyer shall not, in his professional dealings, use language which is abusive,
offensive or otherwise improper.

Canon 11 - A lawyer shall observe and maintain the respect due to the courts and to judicial
officers and should insist on similar conduct by others.

Rule 11.03 - A lawyer shall abstain from scandalous, offensive or menacing language or
behavior before the Courts. (emphasis supplied)

As shown in the record, Atty. Zaide,in the reply that he drafted in the Ombudsman case, called
Gimeno a "notorious extortionist."34 And in another case, Gimeno observed that Atty. Zaide
used the following demeaning and immoderate language in presenting his comment against his
opposing counsel:

Her declaration in Public put a shame, DISGRACE, INDIGNITY AND HUMILIATION in the
whole Justice System, and the Department of Justice in particular, where the taxpayers paid for
her salary over her incompetence and poor performance as a prosecutor...This is a clear
manifestation that the Public prosecutor suffers serious mental incompetence as regard her
mandate as an Assistant City Prosecutor.35 (emphasis supplied)

This clearly confirms Atty. Zaide's lack of restraint in the use and choice of his words - a
conduct unbecoming of an officer of the court.

While a lawyer is entitled to present his case with vigor and courage, such enthusiasm does not
justify the use of offensive and abusive language. Language abounds with countless
possibilities for one to be emphatic but respectful, convincing but not derogatory, and
illuminating but not offensive.36

On many occasions, the Court has reminded the members of the Bar to abstain from any
offensive personality and to refrain from any act prejudicial to the honor or reputation of a party
or a witness. In keeping with the dignity of the legal profession, a lawyer's language even in his
pleadings, must be dignified.37

WHEREFORE, premises considered, the Court resolves to ADOPT the recommended penalty
of the Board of Governors of the Integrated Bar of the Philippines. Atty. Paul Centillas Zaide is
found GUILTY of violating the 2004 Rules on Notarial Practice and for using intemperate,
offensive and, abusive language in violation of Rule 8.01, Canon 8 and Rule 11.03, Canon 11 of
the Code of Professional Responsibility. His notarial commission, if existing, is hereby
REVOKED, and he is declared DISQUALIFIED from being commissioned as a notary public
for a period of two (2) years. He is also SUSPENDED for one (1) year from the practice of law.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

Adm. Case No. 6475 January 30, 2013

FE A. YLAYA, Complainant,
vs.
ATTY. GLENN CARLOS GACOTT, Respondent.

DECISION

BRION, J.:

For the Court's consideration is the disbarment complaint1 tiled by Fe A. Ylaya (complainant)
against Atty. Glenn Carlos Gacott (respondent) who allegedly deceived the complainant and her
late husband, Laurentino L. Ylaya, into signing a "preparatory" Deed of Sale that the respondent
converted into a Deed of Absolute Sale in favor of his relatives.

After the submission of the respondent's comment to the complaint, the Court referred the
complaint to the Commission on Bar Discipline ofthe Integrated Bar of the Philippines (IBP)
for investigation, evaluation and recommendation.

The complainant alleged that she and her late husband are the registered owners of two (2)
parcels of land covered by Transfer Certificate of Title ( TCT) Nos. 162632 and 162633 located
at Barangay Sta. Lourdes, Puerto Princesa City. Prior to the acquisition of these properties, TCT
No. 162632 (property) was already the subject of expropriation proceedings filed by the City
Government of Puerto Princesa (City Government) on May 23, 1996 against its former
registered owner, Cirilo Arellano. The expropriation case was filed with the Regional Trial
Court (RTC) of Palawan and Puerto Princesa, Branch 95, and was docketed as Civil Case No.
2902. The RTC already fixed the price and issued an order for the City Government to deposit
₱6,000,000.00 as just compensation for the property.2

The respondent briefly represented the complainant and her late husband in the expropriation
case as intervenors for being the new registered owners of the property. The complainant
alleged that the respondent convinced them to sign a "preparatory deed of sale" for the sale of
the property, but he left blank the space for the name of the buyer and for the amount of
consideration. The respondent further alleged that the deed would be used in the sale to the City
Government when the RTC issues the order to transfer the titles.3 The respondent then
fraudulently – without their knowledge and consent, and contrary to their understanding –
converted the "preparatory deed of sale" into a Deed of Absolute Sale dated June 4,
2001,4 selling the subject property to Reynold So and Sylvia Carlos So for ₱200,000.00.5
The complainant denied that she and Laurentino were paid the ₱200,000.00 purchase price or
that they would sell the property "for such a measly sum" when they stood to get at least
₱6,000,000.00 as just compensation.6

The complainant also claimed that the respondent notarized the Deed of Absolute Sale dated
June 4, 2001 even though Reynold and Sylvia (his mother’s sister) are his uncle and his aunt,
respectively.7

The respondent denied all the allegations in the complaint.8

The respondent argued that the complainant’s greed to get the just Compensation 9 caused her to
file this "baseless, unfounded and malicious" disbarment case.10 He claimed that the sale was
their voluntary transaction and that he "simply ratified the document."11 He also claimed that
Reynold and Laurentino had originally jointly purchased the properties from Cirilo Arellano on
July 10, 2000; that they were co-owners for some time; and that Laurentino subsequently sold
his share to Reynold under a Deed of Absolute Sale dated June 4, 2001.12

The respondent specifically denied asking the complainant and her late husband to execute any
"preparatory deed of sale" in favor of the City Government.13 He also denied that the Deed of
Absolute Sale contained blanks when they signed it.14 That he filed for the spouses Ylaya and
Reynold an opposition to the just compensation the RTC fixed proved that there was no
agreement to use the document for the expropriation case.15 He also argued that it was clear
from the document that the intended buyer was a natural person, not a juridical person, because
there were spaces for the buyer’s legal age, marital status, and citizenship,16 and he was even
constrained to file a subsequent Motion to Intervene on behalf of Reynold because the
complainant "maliciously retained" the TCTs to the subject properties after borrowing them
from his office.17 Lastly, he denied violating the Rules on Notarial Practice.18

On September 4, 2006, the respondent filed a Motion to Resolve or Decide the Case dated
August 24, 2006 praying for the early resolution of the complaint.19

On December 5, 2006, the complainant filed an Ex Parte Motion to Withdraw the Verified
Complaint and To Dismiss the Case dated November 14, 2006.20

On February 28, 2008, the complainant executed an Affidavit21 affirming and confirming the
existence, genuineness and due execution of the Deed of Absolute Sale notarized on March 6,
2000;22 the Memorandum of Agreement (MOA) dated April 19, 2000;23 and the Deed of
Absolute Sale notarized in 2001.24 The respondent submitted this Affidavit to the IBP as an
attachment to his Motion for Reconsideration of April 21, 2008.25

The IBP’s Findings

In her Report and Recommendation dated November 19, 2007, IBP Commissioner Anna
Caridad Sazon-Dupaya found the respondent administratively liable for violating Canon 1, Rule
1.01 (A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct) and
Canon 16 ("A lawyer shall hold in trust all moneys and properties of his client that may come
into his possession) of the Code of Professional Responsibility, and Section 3(c), Rule IV of
A.M. No. 02-8-13-SC (2004 Rules on Notarial Practice).26 She recommended his suspension
from the practice of law for a period of six (6) months.27

In its Resolution No. XVIII-2007-30228 dated December 14, 2007, the IBP Board of Governors
adopted the IBP Commissioner’s finding, but increased the penalty imposed to two (2) years
suspension and a warning:

RESOLVED to ADOPT and APPROVE, as it is hereby unanimously ADOPTED and

APPROVED, with modification, the Report and Recommendation of the Investigating
Commissioner [in] the above-entitled case, herein made part of this Resolution as Annex "A";
and, finding the recommendation fully supported by the evidence on record and the applicable
laws and rules, and considering respondent’s violations of Canon 1, [Rule] 1.01 and Canon 16
of the Code of Professional Responsibility and Rule IV, Sec. 39(c) of A.M. No. 02-8-13-SC
(2004 Rules on Notarial Practice), Atty. Glenn Carlos Gacott is hereby SUSPENDED from
practice of law for two (2) years with a Warning that commission of a similar offense will be
dealt with more severely. [emphases supplied]

On May 8, 2008, the respondent filed a Motion for Reconsideration dated April 21, 2008,
attaching, among others, a copy of the complainant’s Affidavit dated February 27, 2008,
admitting the existence, genuineness and due execution of the Deed of Absolute Sale between
Cirilo and Laurentino; the MOA between Laurentino and Reynold; the Deed of Absolute Sale
between Laurentino and Reynold; and the Compromise Agreement between Reynold and the
complainant dated November 14, 2006 for the expropriation case.29

On September 4, 2008, the respondent filed a Manifestation with the Supreme Court, requesting
that the IBP be directed to resolve his Motion for Reconsideration.30

By Resolution No. XIX-2010-545 dated October 8, 2010,31 the IBP Board of Governors denied
the respondent’s Motion for Reconsideration for failing to raise any new substantial matter or
any cogent reason to warrant a reversal or even a modification of its Resolution No. XVIII-
2007-302.32

On March 14, 2012, the respondent filed a Petition for Review (on appeal) assailing the IBP’s
findings, as follows:33

a) In conveniently concluding that the Deed of Absolute Sale was pre-signed and
fraudulently notarized without requiring Fe Ylaya to adduce evidence in a formal hearing
thus, violated the respondent’s right to due process as he was not able to cross-examine
her. This is not to mention that the complainant failed to offer corroborative proof to
prove her bare allegations;

b) In sweepingly and arbitrarily disregarded/skirted (sic) the public documents (MOA

and 2 other DOAS) duly executed by the parties therein and notarized by the respondent;
 c) In totally ignoring the complainant’s Affidavit admitting the genuineness and due
execution of the Deed of Absolute Sale in issue;

d) In arbitrarily concluding the absence of co-ownership by Reynold So and Fe Ylaya of

the subject lots despite the existence of a notarized MOA clearly showing the co-
ownership of Ylaya and So; and

e) In finding the respondent/appellant’s act of notarizing the DOAS as contrary to the

notarial rules.

The Issues

From the assigned errors, the complainant poses the following issues:

(1) whether the IBP violated the respondent’s right to due process; and

(2) whether the evidence presented supports a finding that the respondent is
administratively liable for violating Canon 1, Rule 1.01 and Canon 16 of the Code of
Professional Responsibility, and Section 3(c), Rule IV of A.M. No. 02-8-13-SC.

The Court’s Ruling

We set aside the findings and recommendations of the IBP Commissioner and those of the IBP
Board of Governors finding the respondent liable for violating Canon 1, Rules 1.01 and Section
3(c), Rule IV of A.M. No. 02-8-13-SC.34

We however hold the respondent liable for violating Canon 16 of the Code of Professional
Responsibility for being remiss in his obligation to hold in trust his client’s properties. We
likewise find him liable for violation of (1) Canon 15, Rule 15.03 for representing conflicting
interests without the written consent of the represented parties, thus, violating the rule on
conflict of interests; and (2) Canon 18, Rule 18.03 for neglecting a legal matter entrusted to
him.

a. Due process violation

The most basic tenet of due process is the right to be heard. Denial of due process means the
total lack of opportunity to be heard or to have one’s day in court. As a rule, no denial of due
process takes place where a party has been given an opportunity to be heard and to present his
case;35 what is prohibited is the absolute lack of opportunity to be heard.

The respondent claims that the IBP violated his right to due process because he was not given
the "amplest opportunity to defend himself, to cross examine the witness complainant, to object
to the admissibility of documents or present controverting evidence"36 when the IBP rendered
its conclusion without requiring the complainant to adduce evidence in a formal hearing and
despite the absence of corroborative proof. He insists that these defects rendered the
complainant’s allegations as hearsay, and the IBP’s report, recommendation or resolution null
and void.

Although the respondent failed to have a face-to-face confrontation with the complainant when
she failed to appear at the required mandatory conference on October 6, 2005,37 the records
reveal that the respondent fully participated during the entire proceedings and submitted
numerous pleadings, including evidence, before the IBP. He was even allowed to file a motion
for reconsideration supported by his submitted evidence, which motion the IBP considered and
ruled upon in its Resolution No. XIX-2010-545 dated October 8, 2010.38

In Alliance of Democratic Free Labor Organization v. Laguesma,39 we held that due process, as
applied to administrative proceedings, is the opportunity to explain one’s side. In Samalio v.
Court of Appeals,40 due process in an administrative context does not require trial-type
proceedings similar to those in courts of justice. Where the opportunity to be heard, either
through oral arguments or through pleadings, is accorded, no denial of procedural due process
takes place. The requirements of due process are satisfied where the parties are afforded a fair
and reasonable opportunity to explain their side of the controversy at hand.

Similarly, in A.Z. Arnaiz Realty, Inc. v. Office of the President,41 we held that "due process, as
a constitutional precept, does not always, and in all situations, require a trial-type proceeding.
Litigants may be heard through pleadings, written explanations, position papers, memoranda or
oral arguments. The standard of due process that must be met in administrative tribunals allows
a certain degree of latitude[, provided that] fairness is not ignored. It is, therefore, not legally
objectionable for being violative of due process, for an administrative agency to resolve a case
based solely on position papers, affidavits or documentary evidence submitted by the parties." 42

In this case, the respondent’s failure to cross-examine the complainant is not a sufficient ground
to support the claim that he had not been afforded due process. The respondent was heard
through his pleadings, his submission of alleged controverting evidence, and his oral testimony
during the October 6, 2005 mandatory conference. These pleadings, evidence and testimony
were received and considered by the IBP Commissioner when she arrived at her findings and
recommendation, and were the bases for the IBP Board’s Resolution.

Moreover, "any seeming defect in the observance of due process is cured by the filing of a
motion for reconsideration. A denia of due process cannot be successfully invoked by a party
who has had the opportunity to be heard on his motion for reconsideration. Undoubtedly in this
case, the requirement of the law was afforded to the respondent."43

We also note that the respondent, on a Motion to Resolve or Decide the Case dated August 24,
2006, submitted his case to the IBP for its resolution without any further hearings. The motion,
filed almost one year after the mandatory conference on October 6, 2005, significantly did not
contain any statement regarding a denial of due process. In effect, the respondent himself
waived his cross-examination of the complainant when he asked the IBP Board of Governors to
resolve the case based on the pleadings and the evidence on record. To quote his own
submission:
 1. On June 30, 2004, a complaint was filed in this case;

2. On October 19, 2004, the respondent filed his comment with all its attachments
denying all the allegations in the complaint;

3. On June 23, 2005, the respondent filed his position paper. On April 28, 2006, the
respondent also filed his supplemental position paper. By contrast, up to this date, the
complainant/petitioner has not filed her verified position paper thus, waived her right to
file the same;

4. There being no other genuine issues to be heard in this case as all the defenses and
counter-arguments are supported by documentary evidence, it is most respectfully prayed
that the instant case be resolved on its merits or be ordered dismissed for lack of merit
without further hearing;

5. Further, considering that there is an on-going case in Branch 52 of the Regional Trial
Court of Palawan in Civil Case No. 2902 for Expropriation involving the same property,
and such fact was deliberately omitted by the complainant in her Verified Complaint as
shown in the certification of non-forum shopping, the outright dismissal of this case is
warranted, hence, this motion; and

6. This is meant to expedite the termination of this case.44 (underscore ours; italics
supplied)

Finally, we note Section 11, Rule 139-B of the Rules of Court which provides that:

No defect in a complaint, notice, answer, or in the proceeding or the Investigator’s Report shall
be considered as substantial unless the Board of Governors, upon considering the whole record,
finds that such defect has resulted or may result in a miscarriage of justice, in which event the

Board shall take such remedial action as the circumstances may warrant, including invalidation
of the entire proceedings.

In this case, the IBP Commissioner’s findings were twice reviewed by the IBP Board of
Governors – the first review resulted in Resolution No. XVIII-2007-30245 dated December 14,
2007, affirming the IBP Commissioner’s findings, but modifying the penalty; the second review
resulted in Resolution No. XIX-2010-545 dated October 8, 2010,46denying the respondent’s
motion for reconsideration. In both instances, the IBP Board of Governors found no defect or
miscarriage of justice warranting a remedial action or the invalidation of the proceedings.

We emphasize that disciplinary proceedings against lawyers are sui generis in that they are
neither purely civil nor purely criminal; they involve investigations by the Court into the
conduct of one of its officers,47 not the trial of an action or a suit.

Disciplinary proceedings against lawyers are sui generis. Neither purely civil nor purely
criminal, they do not involve a trial of an action or a suit, but is rather an investigation by the
Court into the conduct of one of its officers. Not being intended to inflict punishment, it is in no
sense a criminal prosecution. Accordingly, there is neither a plaintiff nor a prosecutor therein. It
may be initiated by the Court motu proprio. Public interest is its primary objective, and the real
question for determination is whether or not the attorney is still a fit person to be allowed the
privileges as such. Hence, in the exercise of its disciplinary powers, the Court merely calls upon
a member of the Bar to account for his actuations as an officer of the Court with the end in view
of preserving the purity of the legal profession and the proper and honest administration of
justice by purging the profession of members who by their misconduct have proved themselves
no longer worthy to be entrusted with the duties and responsibilities pertaining to the office of
an attorney. In such posture, there can thus be no occasion to speak of a complainant or a
prosecutor. [emphases deleted]

The complainant in disbarment cases is not a direct party to the case but a witness who brought
the matter to the attention of the Court.48 Flowing from its sui generis character, it is not
mandatory to have a formal hearing in which the complainant must adduce evidence.

From all these, we find it clear that the complainant is not indispensable to the disciplinary
proceedings and her failure to appear for cross-examination or to provide corroborative
evidence of her allegations is of no merit. What is important is whether, upon due investigation,
the IBP

Board of Governors finds sufficient evidence of the respondent’s misconduct to warrant the
exercise of its disciplinary powers.

b. Merits of the Complaint

"In administrative cases against lawyers, the quantum of proof required is preponderance of
evidence which the complainant has the burden to discharge."49 Preponderance of evidence
means that the evidence adduced by one side is, as a whole, superior to or has a greater weight
than that of the other. It means evidence which is more convincing to the court as worthy of
belief compared to the presented contrary evidence.

Under Section 1, Rule 133 of the Rules of Court, in determining whether preponderance of
evidence exists, the court may consider the following: (a) all the facts and circumstances of the
case; (b) the witnesses’ manner of testifying, their intelligence, their means and opportunity of
knowing the facts to which they are testifying, the nature of the facts to which they testify, and
the probability or improbability of their testimony; (c) the witnesses’ interest or want of interest,
and also their personal credibility so far as the same may ultimately appear in the trial; and (d)
the number of witnesses, although it does not mean that preponderance is necessarily with the
greater number.50 By law, a lawyer enjoys the legal presumption that he is innocent of the
charges against him until the contrary is proven, and that as an officer of the court, he is
presumed to have performed his duties in accordance with his oath.51

The IBP Commissioner set out her findings as follows:

The undersigned, after a careful evaluation of the evidence presented by both parties, finds that
the charges of the complainant against the respondent are worthy of belief based on the
following:

First, the allegation of the respondent that Reynold So was actually co-owner of spouses Ylanas
(sic) in the properties subject of the Deed of Sale between Felix Arellano and Spouses Ylanas
(sic) is hard to believe despite the presentation of the Memorandum of Agreement.

It is elementary in Rules of Evidence that when the contents of a written document are put in
issue, the best evidence would be the document itself. In the Deed of Sale between Felix
Arellano and Spouses Ylanas (sic), the buyer of the subject properties is only Laurentino L.
Ylaya married to Fe A. Ylaya. The document does not state that Reynold So was likewise a
buyer together with Laurentino Ylaya, or that the former paid half of the purchase price.

Also, it is hard for this Commission to believe that Reynold So, assisted by a lawyer at that and
who allegedly paid half of the purchase price, would not insist for the inclusion of his name in
the Deed of Sale as well as the Transfer Certificate of Title subsequently issued.

The Memorandum of Agreement between the spouses Ylaya and Reynold So produced by the
respondent cannot overturn the belief of this Commission considering that the Memorandum of
Agreement was executed more than a month AFTER the Deed of Sale between Felix Arellano
and the Ylayas was notarized. This is not to mention the fact that the complainant denied ever
having executed the Memorandum of Agreement. A close examination of the signatories in the
said Memorandum of Agreement would reveal that indeed, the alleged signatures of the
complainant and her husband are not the same with their signatures in other documents.

Assuming, for the sake of argument, that the Memorandum of Agreement is valid, thereby
making Laurentino Ylaya and co-owner Reynold So co-owners of the subject properties (Please
see Annex "B" of respondent’s Comment), this Commission finds it hard to believe Laurentino
Ylaya would sell it to Reynold So for ₱200,000 x x x when his minimum expenses for the
purchase thereof is already ₱225,000.00 and he was expecting to receive ₱7,000,000.00, more
or less. That would mean that if Reynold So and the complainant were co-owners, the
₱7,000,000.00 would then be equally divided among them at ₱3,500,000.00 each, far above the
₱200,000.00 selling price reflected in the pre-signed Deed of Sale.

As to the second issue, this Commission believes that the respondent committed serious error in
notarizing the Deed of Sale and the Memorandum of Agreement between his uncle Reynold So
and Laurentino Ylaya based on Rule IV, Section 3 (c) of A.M. No. 02-8-13-SC which provides
as follows:

"Sec. 3. Disqualifications – a notary public is disqualified from performing a notarial act if he:

(a) x x x.

(b) x x x.
 (c) is a spouse, common-law partner, ancestor, descendant, or relative by affinity or
consanguinity of the principal within the fourth civil degree."

The defense therefore of the respondent that he did not violate the aforementioned Rule
becausehis uncle Reynold So, the buyer is not the principal in the Subject Deed of Sale but the
seller Laurentino Ylaya (please see page 3 of the respondent’s Supplemental Position Paper) is
misplaced. Clearly, both the buyer and the seller in the instant case are considered principals in
the contract entered into.

Furthermore, if we are to consider the argument of the respondent that his uncle was not a
principal so as to apply the afore-quoted provision of the Rules, the respondent still violated the
Rules when he notarized the subject Memorandum of Agreement between Laurentino Ylaya
and his uncle Reynold So. Clearly, both complainant and Reynold So were principal parties in
the said Memorandum of Agreement.52

The respondent argues that the IBP Commissioner’s findings are contrary to the presented
evidence, specifically to the MOA executed by Laurentino and Reynold acknowledging the
existence of a co-ownership;53 to the complainant’s Ex Parte Motion to Withdraw the Verified
Complaint and To Dismiss the Case dated November 14, 2006 where she stated that the parties
have entered into a compromise agreement in Civil Case No. 2902, and that the disbarment
complaint arose from a misunderstanding, miscommunication and improper appreciation of
facts;54to her Affidavit dated February 27, 200855 affirming and confirming the existence,
genuineness and due execution of the Deed of Absolute Sale notarized on March 6, 2000; 56 and
to the Deed of Absolute Sale notarized in 2001.57

In all, the respondent claims that these cited pieces of evidence prove that this administrative
complaint against him is fabricated, false and untrue. He also points to Atty. Robert Peneyra,
the complainant’s counsel in this administrative case, as the hand behind the
complaint.58 According to the respondent, Atty. Peneyra harbors ill-will against him and his
family after his father filed several administrative cases against Atty. Peneyra, one of which
resulted in the imposition of a warning and a reprimand on Atty. Peneyra.59

Reynold, in his Affidavit dated October 11, 2004, confirms that there was a co-ownership
between him and Laurentino; that Laurentino decided to sell his half of the property to Reynold
because he (Laurentino) had been sickly and in dire need of money to pay for his medical bills;
that Laurentino agreed to the price of ₱200,000.00 as this was almost the same value of his
investment when he and Reynold jointly acquired the property; and that the sale to Reynold was
with the agreement and consent of the complainant who voluntarily signed the Deed of Sale. 60

After examining the whole record of the case, we agree with the respondent and find the
evidence insufficient to prove the charge that he violated Canon 1, Rule 1.01 of the Code of
Professional Responsibility and Section 3(c), Rule IV of A.M. No. 02-8-13-SC. Specifically, (1)
the evidence against the respondent fails to show the alleged fraudulent and deceitful acts he has
taken to mislead the complainant and her husband into signing a "preparatory deed of sale" and
the conversion into a Deed of Absolute Sale dated June 4, 2001 in favor of Reynold; and (2) no
prohibition exists against the notarization of a document in which any of the parties interested is
the notary’s relative within the 4th civil degree, by affinity or consanguinity, at that time the
respondent notarized the documents.

In her Report and Recommendation,61 the IBP Commissioner concluded that the respondent is
liable for deceit and fraud because he failed to prove the existence of a co-ownership between
Laurentino and Reynold; in her opinion, the signatures of the complainant and of her husband
on the MOA "are not the same with their signatures in other documents."62

We do not agree with this finding. While the facts of this case may raise some questions
regarding the respondent’s legal practice, we nevertheless found nothing constituting clear
evidence of the respondent’s specific acts of fraud and deceit. His failure to prove the existence
of a co-ownership does not lead us to the conclusion that the MOA and the Deed of Absolute
Sale dated June 4, 2001 are spurious and that the respondent was responsible for creating these
spurious documents. We are further persuaded, after noting that in disregarding the MOA, the
IBP Commissioner failed to specify what differences she observed in the spouses Ylaya’s
signatures in the MOA and what documents were used in comparison.

Apart from her allegations, the complainant’s pieces of evidence consist of TCT Nos. 162632
and 162633;63 her Motion for Leave to Intervene in Civil Case No. 2902 dated May 17,
2000;64 the RTC order in Civil Case No. 2902 dated November 6, 2000 fixing the price of just
compensation;65 the Deed of Absolute Sale dated June 4, 2001;66the spouses Ylaya’s Verified
Manifestation dated September 2, 2002, filed with the RTC in Civil Case No. 2902, assailing
the Motion to Deposit Just Compensation filed by the respondent on behalf of Reynold and
manifesting the sale between Laurentino and Reynold;67 the Provincial Prosecutor’s Subpoena
to the complainant in connection with the respondent’s complaint for libel; 68 the respondent’s
complaint for libel against the complainant dated August 27, 2003;69 the complainant’s Counter
Affidavit dated March 26, 2004 against the charge of libel;70 and the respondent’s letter to the
Provincial Attorney of Palawan dated April 5, 2004, requesting for "official information
regarding the actual attendance of Atty. ROBERT Y. PENEYRA" at an MCLE seminar.71

We do not see these documentary pieces of evidence as proof of specific acts constituting deceit
or fraud on the respondent’s part. The documents by themselves are neutral and, at the most,
show the breakdown of the attorney-client relationship between the respondent and the
complainant. It is one thing to allege deceit and misconduct, and it is another to demonstrate by
evidence the specific acts constituting these allegations.72

We reiterate that in disbarment proceedings, the burden of proof is on the complainant; the
Court exercises its disciplinary power only if the complainant establishes her case by clear,
convincing, and satisfactory evidence.73Preponderance of evidence means that the evidence
adduced by one side is, as a whole, superior to or has a greater weight than that of the other
party. When the pieces of evidence of the parties are evenly balanced or when doubt exists on
the preponderance of evidence, the equipoise rule dictates that the decision be against the party
carrying the burden of proof.74
In this case, we find that the complainant’s evidence and the records of the case do not show the
respondent’s deliberate fraudulent and deceitful acts. In the absence of such proof, the
complaint for fraud and deceit under Canon 1, Rule 1.01 of the Code of Professional
Responsibility must perforce be dismissed.

We note that the respondent has not squarely addressed the issue of his relationship with
Reynold, whom the complainant alleges to be the respondent’s uncle because Reynold is
married to the respondent’s maternal aunt.75However, this is of no moment as the respondent
cannot be held liable for violating Section 3(c), Rule IV of A.M. No. 02-8-13-SC because the
Deed of Absolute Sale dated June 4, 200176 and the MOA dated April 19, 200077 were notarized
by the respondent prior to the effectivity of A.M. No. 02-8-13-SC on July 6, 2004. The notarial
law in force in the years 2000 - 2001 was Chapter 11 of Act No. 2711 (the Revised
Administrative Code of 1917) which did not contain the present prohibition against notarizing
documents where the parties are related to the notary public within the 4th civil degree, by
affinity or consanguinity. Thus, we must likewise dismiss the charge for violation of A.M. No.
02-8-13-SC.

c. Liability under Canons 15, 16 and 18 We find the respondent liable under Canon 15, Rule
15.03 for representing conflicting interests without the written consent of all concerned,
particularly the complainant; under Canon 16 for being remiss in his obligation to hold in trust
his client’s properties; and under Canon 18, Rule 18.03 for neglecting a legal matter entrusted
to him.

Canon 15, Rule 15.03 states:

A lawyer shall not represent conflicting interests except by written consent of all concerned
given after a full disclosure of the facts. [emphasis ours]

The relationship between a lawyer and his client should ideally be imbued with the highest level
of trust and confidence. Necessity and public interest require that this be so. Part of the lawyer’s
duty to his client is to avoid representing conflicting interests. He is duty bound to decline
professional employment, no matter how attractive the fee offered may be, if its acceptance
involves a violation of the proscription against conflict of interest, or any of the rules of
professional conduct. Thus, a lawyer may not accept a retainer from a defendant after he has
given professional advice to the plaintiff concerning his claim; nor can he accept employment
from another in a matter adversely affecting any interest of his former client. It is his duty to
decline employment in any of these and similar circumstances in view of the rule prohibiting
representation of conflicting interests.78

The proscription against representation of conflicting interest applies "even if the lawyer would
not be called upon to contend for one client that which the lawyer has to oppose for the other, or
that there would be no occasion to use the confidential information acquired from one to the
disadvantage of the other as the two actions are wholly unrelated."79 The sole exception is
provided in Canon 15, Rule 15.03 of the Code of Professional Responsibility – if there is a
written consent from all the parties after full disclosure.
Based on the records, we find substantial evidence to hold the respondent liable for violating
Canon 15, Rule 15.03 of the Code of Professional Responsibility. The facts of this case show
that the respondent retained clients who had close dealings with each other. The respondent
admits to acting as legal counsel for Cirilo Arellano, the spouses Ylaya and Reynold at one
point during the proceedings in Civil Case No. 2902.80 Subsequently, he represented only
Reynold in the same proceedings,81 asserting Reynold’s ownership over the property against all
other claims, including that of the spouses Ylaya.82

We find no record of any written consent from any of the parties involved and we cannot give
the respondent the benefit of the doubt in this regard. We find it clear from the facts of this case
that the respondent retained Reynold as his client and actively opposed the interests of his
former client, the complainant. He thus violated Canon 15, Rule 15.03 of the Code of
Professional Responsibility.

We affirm the IBP Commissioner’s finding that the respondent violated Canon 16. The
respondent admits to losing certificates of land titles that were entrusted to his care by
Reynold.83 According to the respondent, the complainant "maliciously retained" the TCTs over
the properties sold by Laurentino to Reynold after she borrowed them from his
office.84 Reynold confirms that the TCTs were taken by the complainant from the respondent’s
law office.85

The respondent is reminded that his duty under Canon 16 is to "hold in trust all moneys and
properties of his client that may come into his possession." Allowing a party to take the original
TCTs of properties owned by another – an act that could result in damage – should merit a
finding of legal malpractice. While we note that it was his legal staff who allowed the
complainant to borrow the TCTs and it does not appear that the respondent was aware or
present when the complainant borrowed the TCTs,86 we nevertheless hold the respondent liable,
as the TCTs were entrusted to his care and custody; he failed to exercise due diligence in caring
for his client’s properties that were in his custody.

We likewise find the respondent liable for violating Canon 18, Rule 18.03 for neglecting a legal
matter entrusted to him. Despite the respondent’s admission that he represented the complainant
and her late husband in Civil Case No. 2902 and that he purportedly filed a Motion for Leave to
Intervene in their behalf, the records show that he never filed such a motion for the spouses
Ylaya. The complainant herself states that she and her late husband were forced to file the
Motion for Leave to Intervene on their own behalf. The records of the case, which include the
Motion for Leave to Intervene filed by the spouses Ylaya, support this conclusion.87

Canon 18, Rule 18.03 requires that a lawyer "shall not neglect a legal matter entrusted to him,
and his negligence in connection [therewith] shall render him liable." What amounts to
carelessness or negligence in a lawyer’s discharge of his duty to his client is incapable of an
exact formulation, but the Court has consistently held that the mere failure of a lawyer to
perform the obligations due his client is per se a violation.88
In Canoy v. Ortiz,89 we held that a lawyer’s failure to file a position paper was per se a violation
of Rule 18.03 of the Code of Professional Responsibility. Similar to Canoy, the respondent
clearly failed in this case in his duty to his client when, without any explanation, he failed to file
the Motion for Leave to Intervene on behalf of the spouses Ylaya. Under the circumstances, we
find that there was want of diligence; without sufficient justification, this is sufficient to hold
the respondent liable for violating Canon 18, Rule 18.03 of the Code of Professional
Responsibility.

d. The Complainant’s Ex Parte Motion to Withdraw the Verified Complaint and to Dismiss the
Case and her Affidavit

We are aware of the complainant’s Ex Parte Motion to Withdraw the Verified Complaint and
To Dismiss the Case dated November 14, 200690 and her Affidavit91 affirming and confirming
the existence, genuineness and due execution of the Deed of Absolute Sale notarized on March
6, 2000.92 The complainant explains that the parties have entered into a compromise agreement
in Civil Case No. 2902, and that this disbarment complaint was filed because of a
"misunderstanding, miscommunication and improper appreciation of facts"; 93 she erroneously
accused the respondent of ill motives and bad intentions, but after being enlightened, she is
convinced that he has no personal or pecuniary interests over the properties in Civil Case No.
2902; that such misunderstanding was due to her unfamiliarity with the transactions of her late
husband during his lifetime.94 The complainant now pleads for the respondent’s forgiveness,
stating that he has been her and her late husband’s lawyer for over a decade and affirms her
trust and confidence in him.95 We take note that under their Compromise Agreement dated
November 14, 2006 for the expropriation case,96 the complainant and Reynold equally share the
just compensation, which have since increased to ₱10,000,000.00.

While the submitted Ex Parte Motion to Withdraw the Verified Complaint and to Dismiss the
Case and the Affidavit appear to exonerate the respondent, complete exoneration is not the
necessary legal effect as the submitted motion and affidavit are immaterial for purposes of the
present proceedings. Section 5, Rule 139-B of the Rules of Court states that, "No investigation
shall be interrupted or terminated by reason of the desistance, settlement, compromise,
restitution, withdrawal of charges, or failure of the complainant to prosecute the same."

In Angalan v. Delante,97 despite the Affidavit of Desistance, we disbarred the respondent

therein for taking advantage of his clients and for transferring the title of their property to his
name. In Bautista v. Bernabe,98 we revoked the lawyer’s notarial commission, disqualified him
from reappointment as a notary public for two years, and suspended him from the practice of
law for one year for notarizing a document without requiring the affiant to personally appear
before him. In this cited case, we said:

Complainant’s desistance or withdrawal of the complaint does not exonerate respondent or put
an end to the administrative proceedings. A case of suspension or disbarment may proceed
regardless of interest or lack of interest of the complainant. What matters is whether, on the
basis of the facts borne out by the record, the charge of deceit and grossly immoral conduct has
been proven. This rule is premised on the nature of disciplinary proceedings. A proceeding for
suspension or disbarment is not a civil action where the complainant is a plaintiff and the
respondent lawyer is a defendant. Disciplinary proceedings involve no private interest and
afford no redress for private grievance. They are undertaken and prosecuted solely for the
public welfare. They are undertaken for the purpose of preserving courts of justice from the
official ministration of persons unfit to practice in them. The attorney is called to answer to the
court for his conduct as an officer of the court. The complainant or the person who called the
attention of the court to the attorney’s alleged misconduct is in no sense a party, and has
generally no interest in the outcome except as all good citizens may have in the proper
administration of justice.99

In sum, in administrative proceedings against lawyers, the complainant’s desistance or

withdrawal does not terminate the proceedings. This is particularly true in the present case
where pecuniary consideration has been given to the complainant as a consideration for her
desistance. We note in this regard that she would receive ₱5,000,000.00, or half of the just
compensation under the Compromise Agreement,100 and thus agreed to withdraw all charges
against the respondent.101 From this perspective, we consider the complainant’s desistance to be
suspect; it is not grounded on the fact that the respondent did not commit any actual
misconduct; rather, because of the consideration, the complainant is now amenable to the
position of the respondent and/or Reynold.

e. Procedural aspect

We remind all parties that resolutions from the IBP Board of Governors are merely
recommendatory and do not attain finality without a final action from this Court. Section 12,
Rule 139-B is clear on this point that:

Section 12. Review and decision by the Board of Governors. –

xxxx

(b) If the Board, by the vote of a majority of its total membership, determines that the
respondent should be suspended from the practice of law or disbarred, it shall issue a resolution
setting forth its findings and recommendations which, together with the whole record of the
case, shall forthwith be transmitted to the Supreme Court for final action.1âwphi1

The Supreme Court exercises exclusive jurisdiction to regulate the practice of law.102 It
exercises such disciplinary functions through the IBP, but it does not relinquish its duty to form
its own judgment. Disbarment proceedings are exercised under the sole jurisdiction of the
Supreme Court, and the IBP’s recommendations imposing the penalty of suspension from the
practice of law or disbarment are always subject to this Court’s review and approval.

The Penalty

In Solidon v. Macalalad,103 we imposed the penalty of suspension of six ( 6) months from the
practice of law on the respondent therein for his violation of Canon 18, Rule 18.03 and Canon
16, Rule 16.01 of the Code of Professional Responsibility. In Josefina M. Aniñon v. Atty.
Clemencio Sabitsana, Jr.,104 we suspended the respondent therein from the practice of law for
one (1) year, for violating Canon 15, Rule 15.03 of the Code of Professional Responsibility.
Under the circumstances, we find a one (1) year suspension to be a sufficient and appropriate
sanction against the respondent.

WHEREFORE, premises considered, we set aside Resolution No. XVIII-.2007-302 dated

December 14, 2007 and Resolution No. XIX-2010-545 dated October 8, 2010 of the IBP Board
of Governors, and find respondent Atty. Glenn Carlos Gacott GUILTY of violating Rule 15.03
of Canon 15, Canon 16, and Rule 18.03 of Canon 18 of the Code of Professional Responsibility.
As a penalty, he is SUSPENDED from the practice of law for one (1) year, with a WARNING
that a repetition of the same or similar act will be dealt with more severely.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

A.C. No. 9514 April 10, 2013

BERNARD N. JANDOQUILE, Complainant,

vs.
ATTY. QUIRINO P. REVILLA, JR., Respondent.

RESOLUTION

VILLARAMA, JR., J.:

Before us is a complaint1 for disbarment filed by complainant Bernard N. Jandoquile against

respondent Atty. Quirino P. Revilla, Jr.

The Facts of the case are not disputed.

Atty. Revilla, Jr. notarized a complaint-affidavit2 signed by Heneraline L. Brosas, Herizalyn

Brosas Pedrosa and Elmer L. Alvarado. Heneraline Brosas is a sister of Heizel Wynda Brosas
Revilla, Atty. Revilla, Jr.'s wife. Jandoquile complains that Atty. Revilla, Jr. is disqualified to
perform the notarial act3 per Section 3( c), Rule IV of the 2004 Rules on Notarial Practice
which reads as follows:

SEC. 3. Disqualifications. – A notary public is disqualified from performing a notarial act if he:

xxxx

(c) is a spouse, common-law partner, ancestor, descendant, or relative by affinity or

consanguinity of the principal4within the fourth civil degree.

Jandoquile also complains that Atty. Revilla, Jr. did not require the three affiants in the
complaint-affidavit to show their valid identification cards.

In his comment5 to the disbarment complaint, Atty. Revilla, Jr. did not deny but admitted
Jandoquile’s material allegations. The issue, according to Atty. Revilla, Jr., is whether the
single act of notarizing the complaint-affidavit of relatives within the fourth civil degree of
affinity and, at the same time, not requiring them to present valid identification cards is a
ground for disbarment. Atty. Revilla, Jr. submits that his act is not a ground for disbarment. He
also says that he acts as counsel of the three affiants; thus, he should be considered more as
counsel than as a notary public when he notarized their complaint-affidavit. He did not require
the affiants to present valid identification cards since he knows them personally. Heneraline
Brosas and Herizalyn Brosas Pedrosa are sisters-in-law while Elmer Alvarado is the live-in
houseboy of the Brosas family.

Since the facts are not contested, the Court deems it more prudent to resolve the case instead of
referring it to the Integrated Bar of the Philippines for investigation.

Indeed, Atty. Revilla, Jr. violated the disqualification rule under Section 3(c), Rule IV of the
2004 Rules on Notarial Practice. We agree with him, however, that his violation is not a
sufficient ground for disbarment.

Atty. Revilla, Jr.’s violation of the aforesaid disqualification rule is beyond dispute. Atty.
Revilla, Jr. readily admitted that he notarized the complaint-affidavit signed by his relatives
within the fourth civil degree of affinity. Section 3(c), Rule IV of the 2004 Rules on Notarial
Practice clearly disqualifies him from notarizing the complaint-affidavit, from performing the
notarial act, since two of the affiants or principals are his relatives within the fourth civil degree
of affinity. Given the clear provision of the disqualification rule, it behooved upon Atty.
Revilla, Jr. to act with prudence and refuse notarizing the document. We cannot agree with his
proposition that we consider him to have acted more as counsel of the affiants, not as notary
public, when he notarized the complaint-affidavit. The notarial certificate6 at the bottom of the
complaint-affidavit shows his signature as a notary public, with a notarial commission valid
until December 31, 2012.

He cannot therefore claim that he signed it as counsel of the three affiants.

On the second charge, we agree with Atty. Revilla, Jr. that he cannot be held liable. If the notary
public knows the affiants personally, he need not require them to show their valid identification
cards. This rule is supported by the definition of a "jurat" under Section 6, Rule II of the 2004
Rules on Notarial Practice. A "jurat" refers to an act in which an individual on a single
occasion: (a) appears in person before the notary public and presents an instrument or
document; (b) is personally known to the notary public or identified by the notary public
through competent evidence of identity; (c) signs the instrument or document in the presence of
the notary; and (d) takes an oath or affirmation before the notary public as to such instrument or
document. In this case, Heneraline Brosas is a sister of Atty. Revilla, Jr.’s wife; Herizalyn
Brosas Pedrosa is his wife’s sister-in-law; and Elmer Alvarado is the live-in houseboy of the
Brosas family. Atty. Revilla, Jr. knows the three affiants personally. Thus, he was justified in no
longer requiring them to show valid identification cards. But Atty. Revilla, Jr. is not without
fault for failing to indicate such fact in the "jurat" of the complaint-affidavit. No statement was
included therein that he knows the three affiants personally.7 Let it be impressed that Atty.
Revilla, Jr. was clearly disqualified to notarize the complaint-affidavit of his relatives within the
fourth civil degree of affinity. While he has a valid defense as to the second charge, it does not
exempt him from liability for violating the disqualification rule.

As we said, Atty. Revilla, Jr.’s violation of the disqualification rule under Section 3(c), Rule IV
of the 2004 Rules on Notarial Practice is not a sufficient ground to disbar him. To our mind,
Atty. Revilla, Jr. did not commit any deceit, malpractice, gross misconduct or gross immoral
conduct, or any other serious ground for disbarment under Section 27,8 Rule 138 of the Rules of
Court. We recall the case of Maria v. Cortez9 where we reprimanded Cortez and disqualified
him from being commissioned as notary public for six months. We were convinced that said
punishment, which is less severe than disbarment, would already suffice as sanction for
Cortez’s violation. In Cortez, we noted the prohibition in Section 2(b), Rule IV of the 2004
Rules on Notarial Practice that a person shall not perform a notarial act if the person involved as
signatory to the instrument or document (1) is not in the notary’s presence personally at the time
of the notarization and (2) is not personally known to the notary public or otherwise identified
by the notary public through a competent evidence of identity. Cortez had notarized a special
power of attorney without having the alleged signatories appear before him. In imposing the
less severe punishment, we were mindful that removal from the Bar should not really be
decreed when any punishment less severe such as reprimand, temporary suspension or fine
would accomplish the end desired.1âwphi1

Considering the attendant circumstances and the single violation committed by Atty. Revilla,
Jr., we are in agreement that a punishment less severe than disbarment would suffice.

WHEREFORE, respondent Atty. Quirino P. Revilla, Jr., is REPRIMANDED and

DISQUALIFIED from being commissioned as a notary public, or from performing any notarial
act if he is presently commissioned as a notary public, for a period of three (3) months. Atty.
Revilla, Jr. is further DIRECTED to INFORM the Court, through an affidavit, once the period
of his disqualification has lapsed.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

A.C. No. 6470 July 8, 2014

MERCEDITA DE JESUS, Complainant,

vs.
ATTY. JUVY MELL SANCHEZMALIT, Respondent.

RESOLUTION

SERENO, CJ:

Before the Court is a disbarment complaint filed by Mercedita De Jesus (De Jesus) against
respondent Atty. Juvy Mell Sanchez-Malit (Sanchez-Malit) on the following grounds: grave
misconduct, dishonesty, malpractices, and unworthiness to become an officer of the Court.

THE FACTS OF THE CASE

In the Affidavit-Complaint1 filed by complainant before the Office of the Bar Confidant on 23
June 2004, she alleged that on 1 March 2002, respondent had drafted and notarized a Real
Estate Mortgage of a public market stall that falsely named the former as its absolute and
registered owner. As a result, the mortgagee sued complainant for perjury and for collection of
sum of money. She claimed that respondent was a consultant of the local government unit of
Dinalupihan, Bataan, and was therefore aware that the market stall was government-owned.
Prior thereto, respondent had also notarized two contracts that caused complainant legal and
financial problems. One contract was a lease agreement notarized by respondent sometime in
September 1999 without the signature of the lessees. However, complainant only found out that
the agreement had not been signed by the lessees when she lost her copy and she asked for
another copy from respondent. The other contract was a sale agreement over a property covered
by a Certificate of Land Ownership Award (CLOA) which complainant entered into with a
certain Nicomedes Tala (Tala) on 17 February 1998. Respondent drafted and notarized said
agreement, but did not advise complainant that the property was still covered by the period
within which it could not be alienated.

In addition to the documents attached to her complaint, complainant subsequently submitted

three Special Powers of Attorney (SPAs) notarized by respondent and an Affidavit of Irene
Tolentino (Tolentino), complainant’s secretary/treasurer. The SPAs were not signed by the
principals named therein and bore only the signature of the named attorneyin-fact, Florina B.
Limpioso (Limpioso). Tolentino’s Affidavit corroborated complainant’s allegations against
respondent.2
On 4 August 2004, the Second Division of the Supreme Court issued a Resolution requiring
respondent to submit her comment on the Complaint within ten (10) days from receipt of
notice.3

In her Comment,4 respondent explained thatthe mortgage contract was prepared in the presence
of complainant and that the latter had read it before affixing her signature. However,
complainant urgently needed the loan proceeds so the contract was hastily done. It was only
copied from a similar file in respondent’s computer, and the phrase "absolute and registered
owner" was inadvertently left unedited. Still, it should not be a cause for disciplinary action,
because complainant constructed the subject public market stall under a "Build Operate and
Transfer" contract with the local government unit and, technically, she could be considered its
owner. Besides, there had been a prior mortgage contract over the same property in which
complainant was represented as the property’s absolute owner, but she did not complain.
Moreover, the cause of the perjury charge against complainant was not the representation
ofherself as owner of the mortgaged property, but her guarantee that it was free from all liens
and encumbrances. The perjury charge was even dismissed, because the prosecutor found that
complainant and her spouse had, indeed, paid the debt secured with the previous mortgage
contract over the same market stall.

With respect to the lease agreement, respondent countered that the document attached to the
Affidavit-Complaint was actually new. She gave the court’s copy of the agreement to
complainant to accommodate the latter’s request for an extra copy. Thus, respondent prepared
and notarized a new one, relying on complainant’s assurance that the lessees would sign it and
that it would be returned in lieu of the original copy for the court. Complainant, however,
reneged on her promise.

As regards the purchase agreement of a property covered by a CLOA, respondent claimed that
complainant was an experienced realty broker and, therefore, needed no advice on the
repercussions of that transaction. Actually, when the purchase agreement was notarized,
complainant did not present the CLOA, and so the agreement mentioned nothing about it.
Rather, the agreement expressly stated that the property was the subject of a case pending
before the Department of Agrarian Reform Adjudication Board (DARAB); complainant was
thus notified of the status of the subject property. Finally, respondent maintained that the SPAs
submitted by complainant as additional evidence wereproperly notarized. It can be easily
gleaned from the documents that the attorney-in-fact personally appeared before respondent;
hence,the notarization was limited to the former’s participation in the execution ofthe
document. Moreover, the acknowledgment clearly stated that the document must be notarized in
the principal’s place of residence.

An exchange of pleadings ensuedafter respondent submitted her Comment. After her rejoinder,
complainant filed an Urgent Ex-ParteMotion for Submission of Additional Evidence.5 Attached
thereto were copies of documents notarized by respondent, including the following: (1) an Extra
Judicial Deed of Partition which referred to the SPAs naming Limpioso as attorney-in-fact; (2)
five SPAs that lacked the signatures of either the principal or the attorney-in-fact; (3) two deeds
of sale with incomplete signatures of the parties thereto; (4) an unsigned Sworn Statement; (5) a
lease contract that lacked the signature of the lessor; (6) five unsigned Affidavits; (7) an
unsigned insurance claim form (Annual Declaration by the Heirs); (8) an unsigned Invitation
Letter toa potential investor in Japan; (9) an unsigned Bank Certification; and (10)an unsigned
Consent to Adoption.

After the mandatory conference and hearing, the parties submitted their respective Position
Papers.6 Notably, respondent’s Position Paper did not tackle the additional documents attached
to complainant’s Urgent Ex ParteMotion.

THE FINDINGS OF THE IBP

In his 15 February 2008 Report, IBP Investigating Commissioner Leland R. Villadolid, Jr.
recommended the immediate revocation of the Notarial Commission of respondent and her
disqualification as notary public for two years for her violation of her oath as such by notarizing
documents without the signatures of the parties who had purportedly appeared before her. He
accepted respondent’s explanations with respect to the lease agreement, sale contract, and the
three SPAs pertaining to Limpioso. However, he found that the inaccurate crafting of the real
estate mortgage contract was a sufficient basis to hold respondent liable for violation of Canon
187 and Rule 18.038of the Code of Professional Responsibility. Thus, he also recommended that
she besuspended from the practice of law for six months.9

The IBP Board of Governors, inits Resolution No. XVIII-2008-245 dated 22 May 2008,
unanimously adopted and approved the Report and Recommendation of the Investigating
Commissioner, with the modification that respondent be suspended from the practice of law for
one year.10

Respondent filed her first Motion for Reconsideration11 and Second Motion for
Reconsideration.12 She maintained that the additional documents submitted by complainant
were inadmissible, as they were obtained without observing the procedural requisites under
Section 4, Rule VI of Adm. No. 02-08-13 SC (2004 Rules on Notarial Practice).13Moreover, the
Urgent Ex ParteMotion of complainant was actually a supplemental pleading, which was
prohibited under the rules of procedure of the Committee on Bar Discipline; besides, she was
not the proper party to question those documents. Hence, the investigating commissioner should
have expunged the documents from the records, instead of giving them due course. Respondent
also prayed that mitigating circumstances be considered, specifically the following: absence of
prior disciplinary record; absence of dishonest or selfish motive; personal and emotional
problems; timely goodfaith effort to make restitution or to rectify the consequences of her
misconduct; full and free disclosure to the disciplinary board or cooperative attitude toward the
proceedings; character or reputation; remorse; and remoteness of prior offenses.

The IBP Board of Governors, inits Resolution No. XX-2012-119 dated 10 March 2012,
deniedrespondent’s motion for reconsideration for lack of substantial reason to justify a reversal
of the IBP’s findings.14
Pursuant to Rule 139-B of the Rules of Court, Director for Bar Discipline Pura Angelica Y.
Santiago – through a letter addressed to then acting Chief Justice Antonio T. Carpio –
transmitted the documents pertaining to the disbarment Complaint against respondent. 15

THE COURT’S RULING

After carefully reviewing the merits of the complaint against respondent and the parties’
submissions in this case, the Court hereby modifies the findings of the IBP.

Before going into the substance of the charges against respondent, the Court shall first dispose
of some procedural matters raised by respondent.

Respondent argues that the additional documents submitted in evidence by complainant are
inadmissible for having been obtained in violation of Section 4, Rule VI of the 2004 Rules on
Notarial Practice. A comparable argument was raised in Tolentino v. Mendoza,16 in which the
respondent therein opposed the admission of the birth certificates of his illegitimate children as
evidence of his grossly immoral conduct, because those documents were obtained in violation
Rule 24, Administrative Order No. 1, Series of 1993.17 Rejecting his argument, the Court
reasoned as follows:

Section 3, Rule 128 of the Revised Rules on Evidence provides that "evidence is admissible
when it isrelevant to the issue and is not excluded by the law or these rules." There could be no
dispute that the subject birth certificates are relevant to the issue. The only question, therefore,
is whether the law or the rules provide for the inadmissibility of said birth certificates allegedly
for having been obtained in violation of Rule 24, Administrative Order No. 1, series of 1993.

Note that Rule 24, Administrative Order No. 1, series of 1993 only provides for sanctions
against persons violating the ruleon confidentiality of birth records, but nowhere does itstate
that procurement of birth records in violation of said rule would render said records
inadmissible in evidence. On the other hand, the Revised Rules of Evidence only provides for
the exclusion of evidence if it is obtained as a result of illegal searches and seizures. It should be
emphasized, however, that said rule against unreasonable searches and seizures is meant only to
protect a person from interference by the government or the state. In People vs. Hipol, we
explained that: The Constitutional proscription enshrined in the Bill of Rights does not concern
itself with the relation between a private individual and another individual. It governs the
relationship between the individual and the State and its agents. The Bill of Rights only tempers
governmental power and protects the individual against any aggression and unwarranted
interference by any department of government and its agencies. Accordingly, it cannot be
extended to the acts complained of in this case. The alleged "warrantless search" made by
Roque, a co-employee of appellant at the treasurer's office, can hardly fall within the ambit of
the constitutional proscription on unwarranted searches and seizures.

Consequently, in this case where complainants, as private individuals, obtained the subject birth
records as evidence against respondent, the protection against unreasonable searches and
seizures does not apply.
Since both Rule 24, Administrative Order No. 1, series of 1993 and the Revised Rules on
Evidence do not provide for the exclusion from evidence of the birth certificates inquestion,
said public documents are, therefore, admissible and should be properly taken into
consideration in the resolution of this administrative case against respondent.18

Similarly, the 2004 Rules on Notarial Law contain no provision declaring the inadmissibility of
documents obtained in violation thereof. Thus, the IBP correctly consideredin evidence the
other notarized documents submitted by complainant as additional evidence.

Respondent’s argument that the Urgent Ex-ParteMotion of complainant constitutes a

supplemental pleading must fail as well. As its very name denotes, a supplemental pleading
only serves to bolster or adds something to the primary pleading. Its usual office is to set up
new facts which justify, enlarge or change the kind of relief with respect to the same subject
matter as the controversy referred to in the original complaint.19 Accordingly, it cannot be said
that the Urgent Ex-Parte Motion filed by complainant was a supplemental pleading. One of her
charges against respondent is that the latter notarizedincomplete documents, as shown by the
SPAs and lease agreement attached to the Affidavit-Complaint. Complainant is not legally
barred from submitting additional evidence to strengthen the basis of her complaint.

Going now into the substance of the charges against respondent, the Court finds that she
committed misconduct and grievously violated her oath as a notary public.

The important role a notary public performs cannot be overemphasized. The Court has
repeatedlystressed that notarization is not an empty, meaningless routinary act, but one invested
with substantive public interest. Notarization converts a private document into a public
document, making it admissible in evidence without further proof of its authenticity. Thus, a
notarized document is, by law, entitled tofull faith and credit upon its face. It is for this reason
that a notary public must observe with utmost care the basic requirements in the performance of
his notarial duties; otherwise, the public's confidence in the integrity of a notarized document
would be undermined.20

Where the notary public admittedly has personal knowledge of a false statement or information
contained in the instrument to be notarized, yet proceeds to affix the notarial seal on it, the
Court must not hesitate to discipline the notary public accordingly as the circumstances of the
case may dictate. Otherwise, the integrity and sanctity of the notarization process may be
undermined, and public confidence in notarial documents diminished. 21 In this case, respondent
fully knew that complainant was not the owner of the mortgaged market stall. That complainant
comprehended the provisions of the real estate mortgage contractdoes not make respondent any
less guilty. If at all, it only heightens the latter’s liability for tolerating a wrongful act. Clearly,
respondent’s conduct amounted to a breach of Canon 122 and Rules 1.0123 and 1.0224 of the
Code of Professional Responsibility.

Respondent’s explanation about the unsigned lease agreement executed by complainant

sometime in September 199925 is incredulous. If, indeed, her file copy of the agreement bore the
lessees’ signatures, she could have given complainant a certified photocopy thereof. It even
appears that said lease agreement is not a rarityin respondent’s practice as a notary public.
Records show that on various occasions from 2002 to 2004, respondent has notarized 22
documents that were either unsigned or lacking signatures of the parties. Technically, each
document maybe a ground for disciplinary action, for it is the duty of a notarial officer to
demand that a document be signed in his or her presence.26

A notary public should not notarize a document unless the persons who signed it are the very
same ones who executed it and who personally appeared before the said notary public to attest
to the contents and truth of what are stated therein.27 Thus, in acknowledging that the parties
personally came and appeared before her, respondent also violated Rule 10.0128 of the Code of
Professional Responsibility and her oath as a lawyer that she shall do no falsehood. 29 Certainly,
respondent is unfit to continue enjoying the solemn office of a notary public. In several
instances, the Court did not hesitate to disbar lawyers who were found to be utterly oblivious to
the solemnity of their oath as notaries public.30 Even so, the rule is that disbarment is meted out
only in clear cases of misconduct that seriously affect the standing and character of the lawyer
as an officer of the court and the Court will not disbar a lawyer where a lesser penalty will
suffice to accomplish the desired end.31 The blatmt disregard by respondent of her basic duties
as a notary public warrants the less severe punishment of suspension from the practice of law
and perpetual disqualification to be commissioned as a notary public.

WHEREFORE, respondent Atty. Juvy Mell Sanchez-Malit is found guilty of violating Canon 1
and Rules 1.01, 1.02, and 10.01 of the Code of Professional Responsibility as well as her oath
as notary public. Hence, she is SUSPENDED from the practice of law for ONE YEAR effective
immediately. Her notarial commission, if still existing, is IMMEDIATELY REVOKED and she
is hereby PERPETUALLY DISQUALIFIED from being commissioned as a notary public.

Let copies of this Resolution be entered into the personal records of respondent as a member of
the bar and furnished to the Bar Confidant, the Integrated Bar of the Philippines, and the Court
Administrator for circulation to all courts of the country for their information and guidance.

No costs.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

A.C. No. 6677 June 10, 2014

EUPROCINA I. CRISOSTOMO, MARILYN L. SOLIS, EVELYN MARQUIZO,

ROSEMARIE BALATUCAN, MILDRED BATANG, MARILEN MINERALES, and
MELINDA D. SIOTING, Complainants,
vs.
ATTY. PHILIP Z. A. NAZARENO, Respondent.

DECISION

PERLAS-BERNABE, J.:

For the Court's resolution is an administrative complaint1 filed by complainants Euprocina I.

Crisostomo (Crisostomo), Marilyn L. Solis (Solis), Evelyn Marquizo (Marquizo), Rosemarie
Balatucan (Balatucan), Mildred Batang (Batang), Marilen Minerales (Minerales), and Melinda
D. Sioting (Sioting) against respondent Atty. Philip Z. A. Nazareno (Atty. Nazareno), charging
him with making false declarations in the certifications against forum shopping subject of this
case in disregard of Section 5, Rule 7 of the Rules of Court, and malpractice as a notary public
in violation of the Code of Professional Responsibility.

The Facts

Sometime in 2001, complainants individually purchased housing units (subject properties) in

Patricia South Villa Subdivision, Anabu-II, Imus, Cavite, from Rudex International
Development Corp. (Rudex).2 In view of several inadequacies and construction defects3 in the
housing units and the subdivision itself, complainants sought the rescission of their respective
contracts to sell before the Housing and Land Use Regulatory Board (HLURB), seeking the
refund of the monthly amortizations they had paid.4 The first batch of rescission cases was filed
by herein complainants Sioting5 on May 24, 2002, and Crisostomo6 and Marquizo7 on June 10,
2002, while the second batch of rescission cases was filed by complainants Balatucan 8 on
March 3, 2003, Solis9 and Ederlinda M. Villanueva10 (represented by Minerales) on May 12,
2003, and Batang11 on July 29, 2003. In all the foregoing rescission cases, Rudex was
represented by herein respondent Atty. Nazareno.

Judgments of default were eventually rendered against Rudex in the first batch of rescission
cases.12 Sometime in August 2003, Rudex filed three (3) petitions for review13 before the
HLURB assailing the same. In the certifications against forum shopping attached to the said
petitions, Rudex, through its President Ruben P. Baes, and legal counsel Atty. Nazareno, stated
that it has not commenced or has knowledge of any similar action or proceeding involving the
same issues pending before any court, tribunal or agency14 – this, notwithstanding the fact that
Rudex, under the representation of Atty. Nazareno, previously filed an ejectment case on
September 9, 2002 against Sioting and her husband, Rodrigo Sioting (Sps. Sioting), before the
Municipal Trial Court of Imus, Cavite (MTC).15

On January 29, 2004, Rudex, again represented by Atty. Nazareno, filed another
complaint16 against Sps. Sioting before the HLURB for the rescission of their contract to sell
and the latter’s ejectment, similar to its pending September 9, 2002 ejectment complaint. Yet, in
the certification against forum shopping attached thereto executed by the Head of its Credit and
Collection department, Norilyn D. Unisan,17 Rudex declared that it has not commenced or is not
aware of any action or proceeding involving the same issues pending before any court, tribunal
or agency.18The said certification was notarized by Atty. Nazareno himself.19

On April 1, 2004, six (6) similar complaints20 for rescission of contracts to sell and ejectment,
plus damages for non-payment of amortizations due, were filed by Atty. Nazareno, on behalf of
Rudex, against the other complainants before the HLURB. The certifications against forum
shopping attached thereto likewise stated that Rudex has not commenced or has any knowledge
of any similar pending action before any court, tribunal or agency.21

On February 21, 2005, complainants jointly filed the present administrative complaint for
disbarment against Atty. Nazareno, claiming that in the certifications against forum shopping
attached to the complaints for rescission and ejectment of Rudex filed while Atty. Nazareno was
its counsel, the latter made false declarations therein that no similar actions or proceedings have
been commenced by Rudex or remained pending before any other court, tribunal or agency
when, in fact, similar actions or proceedings for rescission had been filed by herein
complainants before the HLURB against Rudex and Atty. Nazareno, and an ejectment
complaint was filed by Rudex, represented by Atty. Nazareno, against Sps. Sioting. In addition,
complainants asserted that Atty. Nazareno committed malpractice as a notary public since he
only assigned one (1) document number (i.e., Doc. No. 1968) in all the certifications against
forum shopping that were separately attached to the six (6) April 1, 2004 complaints for
rescission and ejectment.22

Despite notice, Atty. Nazareno failed to file his comment and refute the administrative charges
against him.23

In the interim, the HLURB, in the Resolutions dated April 14, 2005 24 and May 12,
2005,25 dismissed Rudex’s complaints for rescission and ejectment26 on the ground that its
statements in the certifications against forum shopping attached thereto were false due to the
existence of similar pending cases in violation of Section 5,Rule 7 of the Rules of Court.

The IBP’s Report and Recommendation

In a Report and Recommendation27 dated March 8, 2012, Integrated Bar of the Philippines
(IBP) Investigating Commissioner Oliver A. Cachapero recommended the suspension of Atty.
Nazareno for a period of six (6) months for his administrative violations.
The Investigating Commissioner found, among others, that there were unassailable proofs that
the certification against forum shopping attached to Rudex’s ejectment complaint against Sps.
Sioting had been erroneously declared, considering that at the time Rudex filed the said
complaint in September 2002, Sps. Sioting’s rescission complaint against Rudex, filed on May
24, 2002, was already pending. Hence, it was incumbent upon Rudex to have declared its
existence, more so, since both complaints involve the same transaction and essential facts, and a
decision on the rescission complaint would amount to res judicata on the ejectment
complaint.28 In this relation, the Investigating Commissioner observed that Atty. Nazareno
cannot claim innocence of his omission since he was not only Rudex’s counsel but the
notarizing officer as well. Having knowingly made false entries in the subject certifications
against forum shopping, the Investigating Commissioner recommended that Atty. Nazareno be
held administratively liable and thereby penalized with six (6) months suspension. 29

In a Resolution30 dated April 15, 2013, the IBP Board of Governors adopted and approved the
Investigating Commissioner’s Report and Recommendation, but modified the recommended
penalty from a suspension of six (6) months to only one (1) month.

The Issue Before the Court

The essential issue in this case is whether or not Atty. Nazareno should be held administratively
liable and accordingly suspended for a period of one (1) month.

The Court’s Ruling

The Court affirms the IBP’s findings with modification as to the penalty imposed.

Separate from the proscription against forum shopping31 is the violation of the certification
requirement against forum shopping, which was distinguished in the case of Sps. Ong v.
CA32 as follows:

The distinction between the prohibition against forum shopping and the certification
requirement should by now be too elementary to be misunderstood. To reiterate, compliance
with the certification against forum shopping is separate from and independent of the avoidance
of the act of forum shopping itself. There is a difference in the treatment between failure to
comply with the certification requirement and violation of the prohibition against forum
shopping not only in terms of imposable sanctions but also in the manner of enforcing them.
The former constitutes sufficient cause for the dismissal without prejudice to the filing of the
complaint or initiatory pleading upon motion and after hearing, while the latter is a ground for
summary dismissal thereof and for direct contempt. x x x.33

Under Section 5, Rule 7 of the Rules of Court, the submission of false entries in a certification
against forum shopping constitutes indirect or direct contempt of court, and subjects the erring
counsel to the corresponding administrative and criminal actions, viz.:
Section 5. Certification against forum shopping. — The plaintiff or principal party shall certify
under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn
certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore
commenced any action or filed any claim involving the same issues in any court, tribunal or
quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending
therein; (b) if there is such other pending action or claim, a complete statement of the present
status thereof; and (c) if he should thereafter learn that the same or similar action or claim has
been filed or is pending, he shall report that fact within five (5) days therefrom to the court
wherein his aforesaid complaint or initiatory pleading has been filed.

Failure to comply with the foregoing requirements shall not be curable by mere amendment of
the complaint or other initiatory pleading but shall be cause for the dismissal of the case without
prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false
certification or non-compliance with any of the undertakings therein shall constitute indirect
contempt of court, without prejudice to the corresponding administrative and criminal actions.
If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping,
the same shall be ground for summary dismissal with prejudice and shall constitute direct
contempt, as well as a cause for administrative sanctions. (Emphases supplied)

In the realm of legal ethics, said infraction may be considered as a violation of Rule 1.01,
Canon 1 and Rule 10.01, Canon 10 of the Code of Professional Responsibility (Code) which
read as follows:

CANON 1 – A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF

THE LANDAND PROMOTE RESPECT FOR LAW AND LEGAL PROCESSES.

Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

xxxx

CANON 10 – A LAWYER OWES CANDOR, FAIRNESS AND GOOD FAITH TO THE

COURT.

Rule 10.01 - A lawyer shall not do any falsehood, nor consent to the doing of any in Court; nor
shall he mislead, or allow the Court to be misled by any artifice.

In this case, it has been established that Atty. Nazareno made false declarations in the
certifications against forum shopping attached to Rudex’s pleadings, for which he should be
held administratively liable.

Records show that Atty. Nazareno, acting as Rudex’s counsel, filed, in August 2003, petitions
for review assailing the judgments of default rendered in the first batch of rescission cases
without disclosing in the certifications against forum shopping the existence of the ejectment
case it filed against Sps. Sioting which involves an issue related to the complainants’ rescission
cases. Further, on January 29, 2004, Rudex, represented by Atty. Nazareno, filed a complaint
for rescission and ejectment against Sps. Sioting without disclosing in the certifications against
forum shopping the existence of Sioting’s May 24, 2002 rescission complaint against Rudex as
well as Rudex’s own September 9, 2002 ejectment complaint also against Sps. Sioting. Finally,
on April 1, 2004,Atty. Nazareno, once more filed rescission and ejectment complaints against
the other complainants in this case without disclosing in the certifications against forum
shopping the existence of complainants’ own complaints for rescission.

Owing to the evident similarity of the issues involved in each set of cases, Atty. Nazareno – as
mandated by the Rules of Court and more pertinently, the canons of the Code – should have
truthfully declared the existence of the pending related cases in the certifications against forum
shopping attached to the pertinent pleadings. Considering that Atty. Nazareno did not even
bother to refute the charges against him despite due notice, the Court finds no cogent reason to
deviate from the IBP’s resolution on his administrative liability.1âwphi1 However, as for the
penalty to be imposed, the Court deems it proper to modify the IBP’s finding on this score.

In Molina v. Atty. Magat,34 a penalty of six (6) months suspension from the practice of law was
imposed against the lawyer therein who was shown to have deliberately made false and
untruthful statements in one of his pleadings. Given that Atty. Nazareno’s infractions are of a
similar nature, but recognizing further that he, as may be gleaned from the foregoing discussion,
had repetitively committed the same, the Court hereby suspends him from the practice of law
for a period of one (1) year.

Separately, the Court further finds Atty. Nazareno guilty of malpractice as a notary public,
considering that he assigned only one document number (i.e., Doc. No. 1968) to the
certifications against forum shopping attached to the six (6) April 1, 2004 complaints for
rescission and ejectment despite the fact that each of them should have been treated as a
separate notarial act. It is a standing rule that for every notarial act, the notary shall record in the
notarial register at the time of the notarization, among others, the entry and page number of the
document notarized, and that he shall give to each instrument or document executed, sworn to,
or acknowledged before him a number corresponding to the one in his register.35 Evidently,
Atty. Nazareno did not comply with the foregoing rule.

Worse, Atty. Nazareno notarized the certifications against forum shopping attached to all the
aforementioned complaints, fully aware that they identically asserted a material falsehood, i.e.,
that Rudex had not commenced any actions or proceedings or was not aware of any pending
actions or proceedings involving the same issues in any other forum. The administrative
liability of an erring notary public in this respect was clearly delineated as a violation of Rule
1.01,Canon 1 of the Code in the case of Heirs of the Late Spouses Villanueva v. Atty.
Beradio,36 to wit:

Where admittedly the notary public has personal knowledge of a false statement or information
contained in the instrument to be notarized, yet proceeds to affix his or her notarial seal on it,
the Court must not hesitate to discipline the notary public accordingly as the circumstances of
the case may dictate. Otherwise, the integrity and sanctity of the notarization process may be
undermined and public confidence on notarial documents diminished. In this case, respondent’s
conduct amounted to a breach of Canon 1 of the Code of Professional Responsibility, which
requires lawyers to obey the laws of the land and promote respect for the law and legal
processes. Respondent also violated Rule 1.01 of the Code which proscribes lawyers from
engaging in unlawful, dishonest, immoral, or deceitful conduct.37 (Emphasis supplied)

In said case, the lawyer who knowingly notarized a document containing false statements had
his notarial commission revoked and was disqualified from being commissioned as such for a
period of one (1) year. Thus, for his malpractice as a notary public, the Court is wont to
additionally impose the same penalties of such nature against him. However, due to the
multiplicity of his infractions on this front, coupled with his willful malfeasance in discharging
the office, the Court deems it proper to revoke his existing commission and permanently
disqualify him from being commissioned as a notary public. Indeed, respondent ought to be
reminded that:38

Notarization is not an empty, meaningless, routinary act. It is invested with substantive public
interest, such that only those who are qualified or authorized may act as notaries public.
Notarization converts a private document into a public document thus making that document
admissible in evidence without further proof of its authenticity. A notarial document is by law
entitled to full faith and credit upon its face. Courts, administrative agencies and the public at
large must be able to rely upon he acknowledgment executed by a notary public and appended
to a private instrument.

xxxx

When a notary public certifies to the due execution and delivery of the document under his hand
and seal he gives the document the force of evidence. Indeed, one of the purposes of requiring
documents to be acknowledged before a notary public, in addition to the solemnity which
should surround the execution and delivery of documents, is to authorize such documents to be
given without further proof of their execution and delivery. Where the notary public is a lawyer,
a graver responsibility is placed upon him by reason of his solemn oath to obey the laws and to
do no falsehood or consent to the doing of any. Failing in this, he must accept the consequences
of his unwarranted actions.

WHEREFORE, respondent Atty. Philip Z. A. Nazareno is found GUILTY of making false

declarations in the certifications against forum shopping subject of this case, as well as
malpractice as a notary public. Accordingly, he is SUSPENDED from the practice of law for a
period of one (1) year, effective upon his receipt of this Decision, with a STERN WARNING
that a repetition of the same or similar acts will be dealt with more severely. Further, he is
PERMANENTLY DISQUALIFIED from being commissioned as a notary public and, his
notarial commission, if currently existing, is hereby REVOKED.

Let copies of this Decision be furnished the Office of the Bar Confidant, to be appended to
respondent's personal record as attorney.1âwphi1 Likewise, copies shall be furnished to the
Integrated Bar of the Philippines and all courts in the country for their information and
guidance.
SO ORDERED.
A.C. No. 11668

JOY T. SAMONTE, Complainant

vs.
ATTY. VIVENCIO V. JUMAMIL, Respondent

RESOLUTION

PERLAS-BERNABE, J.:

For the Court's resolution is a Complaint1 dated March 15, 2013, filed before the Integrated Bar
of the Philippines (IBP), by complainant Joy T. Samonte (complainant) against respondent
Atty. Vivencio V. Jumamil (respondent), praying that the latter be disbarred for acts
unbecoming of a lawyer and betrayal of trust.

The Facts

Complainant alleged that sometime in October 2012, she received summons from the National
Labor Relations Commission (NLRC), Regional Arbitration Branch Xl, Davao City, relative to
an illegal dismissal case, i.e., NLRC Case RAB-XI-10-00586-12, filed by four (4) persons
claiming to be workers in her small banana plantation.2Consequently, complainant engaged the
services of respondent to prepare her position paper, and paid him the amount of ₱8,000.00 3 as
attorney's fees.4 Despite constantly reminding respondent of the deadline for the submission of
her position paper, complainant discovered that he still failed to file the same.5 As such, on
January 25, 2013, the Labor Arbiter rendered a Decision6 based on the evidence on record,
whereby complainant was held liable to the workers in the total amount of ₱633,143.68.7 When
complainant confronted respondent about the said ruling, the latter casually told her to just sell
her farm to pay the farm workers.8 Because of respondent's neglect, complainant claimed that
she was left defenseless and without any remedy to protect her interests against the execution of
the foregoing judgment;9 hence, she filed the instant complaint.

In an Order10 dated March 26, 2013, the IBP Commission on Bar Discipline (IBP-CBD)
directed respondent to submit his Answer to the complaint.

In his Answer11 dated April 19, 2013, respondent admitted that he indeed failed to file a
position paper on behalf of complainant. However, he maintained that said omission was due to
complainant's failure to adduce credible witnesses to testify in her favor. In this relation,
respondent averred that complainant instructed her to prepare an Affidavit12 for one Romeo P.
Baol (Romeo), who was intended to be her witness; nevertheless, respondent was instructed that
the contents of Romeo's affidavit were not to be interpreted in the Visayan dialect so that the
latter would not know what he would be testifying on. Respondent added that complainant's
uncle, Nicasio Ticong, who was also an intended witness, refused to execute an affidavit and
testify to her lies. Thus, it was complainant who was deceitful in her conduct and that the
complaint against him should be dismissed for lack of merit.13
The IBP's Report and Recommendation

In its Report and Recommendation14 dated March 14, 2014, the IBPCBD found respondent
administratively liable and, accordingly, recommended that he be suspended from the practice
of law for a period of one (1) year. Essentially, the IBP-CBD found respondent guilty of
violating Rule 10.01, Canon 10, and Rule 18.03, Canon 18 of the Code of Professional
Responsibility (CPR), as well as the 2004 Rules on Notarial Practice.15

In a Resolution16 dated December 13, 2014, the IBP Board of Governors adopted and approved
the aforesaid Report and Recommendation, finding the same to be fully supported by the
evidence on record and the applicable laws and rules.

The Issue Before the Court

The sole issue in this case is whether or not respondent should be held administratively liable.

The Court's Ruling

The Court concurs with and affirms the findings of the IBP, with modification, however, as to
the penalty in order to account for his breach of the rules on notarial practice.

The relationship between a lawyer and his client is one imbued with utmost trust and
confidence. In this regard, clients are led to expect that lawyers would be ever-mindful of their
cause, and accordingly, exercise the required degree of diligence in handling their affairs.
Accordingly, lawyers are required to maintain, at all times, a high standard of legal proficiency,
and to devote their full attention, skill, and competence to their cases, regardless of their
importance, and whether they accept them for a fee or for free.17 To this end, lawyers are
enjoined to employ only fair and honest means to attain lawful objectives.18 These principles are
embodied in Rule 10.01 of Canon 10 and Rule 18.03 of Canon 18 of the CPR, which
respectively read as follows:

CANON 10 - A LAWYER OWES CANDOR, FAIRNESS AND GOOD FAITH TO THE

COURT.

Rule 10.01 - A lawyer shall not do any falsehood, nor consent to the doing of any in court; nor
shall he mislead, or allow the Court to be misled by any artifice.1âwphi1

CANON 18 -A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND

DILIGENCE.

Rule 18.03 - A lawyer shall not neglect a legal matter entrusted to him, and his negligence in
connection therewith shall render him liable.

In this case, it is undisputed that a lawyer-client relationship was forged between complainant
and respondent when the latter agreed to file a position paper on her behalf before the NLRC
and, in connection therewith, received the amount of ₱8,000.00 from complainant as payment
for his services. Case law instructs that a lawyer-client relationship commences when a lawyer
signifies his agreement to handle a client's case and accepts money representing legal fees from
the latter,19 as in this case. From then on, as the CPR provides, a lawyer is duty-bound to "serve
his client with competence and diligence," and in such regard, "not neglect a legal matter
entrusted to him."

However, it is fairly apparent that respondent breached this duty when he admittedly failed to
file the necessary position paper before the NLRC, which had, in fact, resulted into an adverse
ruling against his client, i.e., herein complainant. To be sure, it is of no moment that
complainant purportedly failed to produce any credible witnesses in support of her position
paper; clearly, this is not a valid justification for respondent to completely abandon his client's
cause. By voluntarily taking up complainant's case, respondent gave his unqualified
commitment to advance and defend the latter's interest therein. Verily, he owes fidelity to such
cause and must be mindful of the trust and confidence reposed in him.20 In A bay v.
Montesino,21 it was explained that regardless of a lawyer's personal view, the latter must still
present every remedy or defense within the authority of the law to support his client's cause:

Once a lawyer agrees to take up the cause of a client, the lawyer owes fidelity to such cause and
must always be mindful of the trust and confidence reposed in him. He must serve the client
with competence and diligence, and champion the latter's cause with wholehearted fidelity,
care, and devotion. Otherwise stated, he owes entire devotion to the interest of the client, warm
zeal in the maintenance and defense of his client's rights, and the exertion of his utmost learning
and ability to the end that nothing be taken or withheld from his client, save by the rules of law,
legally applied. This simply means that his client is entitled to the benefit of any and every
remedy and defense that is authorized by the law of the land and he may expect his lawyer to
assert every such remedy or defense. If much is demanded from an attorney, it is because the
entrusted privilege to practice law carries with it the correlative duties not only to the client but
also to the court, to the bar, and to the public. A lawyer who performs his duty with diligence
and candor not only protects the interest of his client; he also serves the ends of justice, does
honor to the bar, and helps maintain the respect of the community to the legal
profession.22 (Emphasis and underscoring supplied)

In light of the foregoing, the Court therefore agrees with the IBP that respondent should be held
administratively liable for violation of Rule 18.03, Canon 18 of the CPR.

Likewise, the IBP correctly found that respondent violated Rule 10.01, Canon 10 of the CPR.
Records show that he indeed indulged in deliberate falsehood when he admittedly
prepared23 and notarized24 the affidavit of complainant's intended witness, Romeo, despite his
belief that Romeo was a perjured witness. In Spouses Umaguing v. De Vera,25the Court
highlighted the oath undertaken by every lawyer to not only obey the laws of the land, but also
to refrain from doing any falsehood, viz. :

The Lawyer's Oath enjoins every lawyer not only to obey the laws of the land but also to refrain
from doing any falsehood in or out of court or from consenting to the doing of any in court, and
to conduct himself according to the best of his knowledge and discretion with all good fidelity
to the courts as well as to his clients. Every lawyer is a servant of the law, and has to observe
and maintain the rule of law as well as be an exemplar worthy of emulation by others. It is by
no means a coincidence, therefore, that the core values of honesty, integrity, and trustworthiness
are emphatically reiterated by the Code of Professional Responsibility. In this light, Rule 10.01,
Canon 10 of the Code of Professional Responsibility provides that "[a] lawyer shall not do any
falsehood, nor consent to the doing of any in Court; nor shall he mislead, or allow the Court to
be misled by any artifice."26 (Emphases supplied)

Notably, the notarization of a perjured affidavit also constituted a violation of the 2004 Rules on
Notarial Practice. Section 4 (a), Rule IV thereof pertinently provides:

SEC. 4. Refusal to Notarize. - A notary public shall not perform any notarial act described in
these Rules for any person requesting such an act even if he tenders the appropriate fee
specified by these Rules if:

(a) the notary knows or has good reason to believe that the notarial act or transaction is unlawful
or immoral[.] (Emphasis supplied)

On this score, it is well to stress that "notarization is not an empty, meaningless routinary act. It
is invested with substantive public interest. It must be underscored that the notarization by a
notary public converts a private document into a public document, making that document
admissible in evidence without further proof of authenticity thereof. A notarial document is, by
law, entitled to full faith and credit upon its face. For this reason, a notary public must observe
with utmost care the basic requirements in the performance of their duties; otherwise, the
confidence of the public in the integrity of this form of conveyance would be undermined." 27

Having established respondent's administrative liability, the Court now determines the proper
penalty.

The appropriate penalty to be meted against an errant lawyer depends on the exercise of sound
judicial discretion based on the surrounding facts. In Del Mundo v. Capistrano,28 the Court
suspended the lawyer for a period of one (1) year for his failure to perform his undertaking
under his retainership agreement with his client. Similarly, in Conlu v. Aredonia, Jr.,29 the same
penalty was imposed on a lawyer for his inexcusable negligence in failing to file the required
pleading to the prejudice of his client. Hence, consistent with existing jurisprudence, the Court
adopts the penalty recommended by the IBP and accordingly suspends respondent from the
practice of law for a period of one (1) year. Moreover, as in the case of Dela Cruz v.
Zabala,30 where the notary public therein notarized an irregular document, the Court hereby
revokes respondent's notarial commission and further disqualifies him from being
commissioned as a notary public for a period of two (2) years.

WHEREFORE, respondent Atty. Vivencio V. Jumamil is found GUILY of violating Rule

10.01, Canon 10 and Rule 18.03, Canon 18 of the Code of Professional Responsibility.
Accordingly, he is hereby SUSPENDED for a period of one (1) year, effective upon his receipt
of this Resolution. Moreover, in view of his violation of the 2004 Rules on Notarial Practice,
his notarial commission, if still existing, is hereby REVOKED, and he
is DISQUALIFIED from being commissioned as a notary public for a period of two (2) years.
Finally, he is STERNLY WARNED that a repetition of the same or similar offense shall be
dealt with more severely.

Let a copy of this Decision be furnished the Office of the Bar Confidant to be appended to
respondent's personal record as a member of the Bar. Likewise, let copies of the same be served
on the Integrated Bar of the Philippines and the Office of the Court Administrator, which is
directed to circulate them to all courts in the country for their information and guidance.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

A.C. No. 8384 April 11, 2013

EFIGENIA M. TENOSO Complainant,

vs.
ATTY. ANSELMO S. ECHANEZ, Respondent.

RESOLUTION

LEONEN, J.:

Etigenia M. Tenoso (complainant) tiled a complaint against Atty. Anselmo S. Echanez

(respondent) alleging that respondent was engaged in practice as a notary public in Cordon,
lsabela, without having been properly commissioned by the Regional Trial Court (RTC) of
Santiago City, Isabela. This is the RTC exercising jurisdiction over the Municipality of Cordon.

This alleged act violates Rule III of the 2004 Rules on Notarial Practice (A.M. No. 02-8-13-
SC). To support her allegations, complainant attached the following documents to her
pleadings:

a. Two (2) documents signed and issued by RTC Santiago City Executive Judge Efren M.
Cacatian bearing the names of commissioned notaries public within the territorial
jurisdiction of the RTC of Santiago City for the years 2006 to 2007 and 2007 to
2008.1 Respondent's name does not appear on either list;

b. Copies of ten (10) documents that appear to have been notarized by respondent in the
years 2006, 2007, and 2008; and

c. A copy of a certification issued by Judge Cacatian stating that a joint-affidavit

notarized by respondent in 2008 could not be "authenticated as to respondent's seal and
signature as NO Notarial Commission was issued upon him at the time of the document's
notarization."2

In his two-page Answer, respondent denied the allegations saying, "I have never been
notarizing any document or pleadings"3 and added that he has "never committed any
malpractice, nor deceit nor have violated thelawyers (sic) oath".4 He dismissed such allegations
as being "preposterous, full of lies, politically motivated and x x x meant to harass or intimidate
him".5
Also, he surmised that the documents annexed to the Affidavit-Complaint were "tampered and
adulterated," or that "somebody might have forged his signature."6 He failed to attend the
mandatory conference and likewise failed to file his Position Paper.

In his Report and Recommendation dated 29 September 2008, Investigating Commissioner

Atty. Salvador B. Hababag recommended that respondent be suspended from the practice of law
for six (6) months and disqualified from being commissioned as a notary public for two (2)
years for violating Rules 1.01 and 10.01 of the Code of Professional Responsibility. 7

In a Resolution dated 11 December 2008, the IBP Board of Governors affirmed the findings of
the Investigating Commissioner but increased the penalty of suspension from six (6) months to
one (1) year. Respondent did not file a Motion for Reconsideration or any other subsequent
pleading.

On 12 August 2009, the IBP Board of Governors transmitted its Resolution to the Supreme
Court for its action following Rule 139-B of the Rules of Court.8

The Court modifies the IBP Board of Governors' Resolution.

Complainant presented evidence supporting her allegation that respondent had notarized various
documents in Cordon, Isabela from 2006 to 2008 and that respondent's name does not appear on
the list of notaries public commissioned by the RTC of Santiago City, Isabela for the years 2006
to 2007 and 2007 to 2008.

Respondent failed to present evidence to rebut complainant's allegations.1âwphi1 Per Section 1,

Rule 131 of the Rules of Court,9 the burden of proof is vested upon the party who alleges the
truth of his claim or defense or any fact in issue. Thus, in Leave Division, Office of
Administrative Services, Office of the Court Administrator v. Gutierrez,10where a party resorts
to bare denials and allegations and fails to submit evidence in support of his defense, the
determination that he committed the violation is sustained. Respondent merely posited that the
notarized documents presented by complainant were "tampered and adulterated" or were results
of forgery, but he failed to present any proof.11 Respondent also resorted to a sweeping and
unsupported statement that he never notarized any document. Accordingly, the reasonable
conclusion is that respondent repeatedly notarized documents without the requisite notarial
commission.

Time and again, this Court emphasizes that the practice of law is imbued with public interest
and that "a lawyer owes substantial duties not only to his client, but also to his brethren in the
profession, to the courts, and to the nation, and takes part in one of the most important functions
of the State - the administration of justice - as an officer of the court."12 Accordingly, '"lawyers
are bound to maintain not only a high standard of legal proficiency, but also of morality,
honesty, integrity and fair dealing."13

Similarly, the duties of notaries public are dictated by public policy and impressed with public
interest.14"Notarization is not a routinary, meaningless act, for notarization converts a private
document to a public instrument, making it admissible in evidence without the necessity of
preliminary proof of its authenticity and due execution."15

In misrepresenting himself as a notary public, respondent exposed party-litigants, courts, other

lawyers and the general public to the perils of ordinary documents posing as public instruments.
As noted by the Investigating Commissioner, respondent committed acts of deceit and
falsehood in open violation of the explicit pronouncements of the Code of Professional
Responsibility. Evidently, respondent's conduct falls miserably short of the high standards of
morality, honesty, integrity and fair dealing required from lawyers. It is proper that he be
sanctioned.

WHEREFORE, We find Atty. Anselmo S. Echanez guilty of engaging in notarial practice

without a notarial commission, and accordingly, We SUSPEND him from the practice of law
for two (2) years and DISQUALIFY him from being commissioned as a notary public for two
(2) years. He is warned that a repetition of the same or similar act in the future shall merit a
more severe sanction.

SO ORDERED.
A.C. No. 6010 August 28, 2006

ST. LOUIS UNIVERSITY LABORATORY HIGH SCHOOL (SLU-LHS) FACULTY and

STAFF, Complainant,
vs.
ATTY. ROLANDO C. DELA CRUZ, Respondent.

DECISION

CHICO-NAZARIO, J.:

This is a disbarment case filed by the Faculty members and Staff of the Saint Louis University-
Laboratory High School (SLU-LHS) against Atty. Rolando C. Dela Cruz, principal of SLU-
LHS, predicated on the following grounds:

1) Gross Misconduct:

From the records of the case, it appears that there is a pending criminal case for child abuse
allegedly committed by him against a high school student filed before the Prosecutor’s Office of
Baguio City; a pending administrative case filed by the Teachers, Staff, Students and Parents
before an Investigating Board created by SLU for his alleged unprofessional and unethical acts
of misappropriating money supposedly for the teachers; and the pending labor case filed by
SLU-LHS Faculty before the NLRC, Cordillera Administrative Region, on alleged illegal
deduction of salary by respondent.

2) Grossly Immoral Conduct:

In contracting a second marriage despite the existence of his first marriage; and

3) Malpractice:

In notarizing documents despite the expiration of his commission.

According to complainant, respondent was legally married to Teresita Rivera on 31 May 1982
at Tuba, Benguet, before the then Honorable Judge Tomas W. Macaranas. He thereafter
contracted a subsequent marriage with one Mary Jane Pascua, before the Honorable Judge
Guillermo Purganan. On 4 October 1994, said second marriage was subsequently annulled for
being bigamous.

On the charge of malpractice, complainant alleged that respondent deliberately subscribed and
notarized certain legal documents on different dates from 1988 to 1997, despite expiration of
respondent’s notarial commission on 31 December 1987. A Certification 1 dated 25 May 1999
was issued by the Clerk of Court of Regional Trial Court (RTC), Baguio City, to the effect that
respondent had not applied for commission as Notary Public for and in the City of Baguio for
the period 1988 to 1997. Respondent performed acts of notarization, as evidenced by the
following documents:
1. Affidavit of Ownership2 dated 8 March 1991, executed by Fernando T. Acosta, subscribed
and sworn to before Rolando Dela Cruz;

2. Affidavit3 dated 26 September 1992, executed by Maria Cortez Atos, subscribed and sworn
to before Rolando Dela Cruz;

3. Affidavit4 dated 14 January 1992, executed by Fanolex James A. Menos, subscribed and
sworn to before Rolando Dela Cruz;

4. Affidavit5 dated 23 December 1993, executed by Ponciano V. Abalos, subscribed and sworn
to before Rolando Dela Cruz;

5. Absolute Date of Sale6 dated 23 June 1993, executed by Danilo Gonzales in favor of Senecio
C. Marzan, notarized by Rolando Dela Cruz;

6. Joint Affidavit By Two Disinherited Parties7 dated 5 March 1994, executed by Evelyn C.
Canullas and Pastora C. Tacadena, subscribed and sworn to before Rolando Dela Cruz;

7. Sworn Statement8 dated 31 May 1994, executed by Felimon B. Rimorin, subscribed and
sworn to before Rolando Dela Cruz;

8. Deed of Sale9 dated 17 August 1994, executed by Woodrow Apurado in favor of Jacinto
Batara, notarized by Rolando Dela Cruz;

9. Joint Affidavit by Two Disinterested Parties10 dated 1 June 1994, executed by Ponciano V.
Abalos and Arsenio C. Sibayan, subscribed and sworn to before Rolando Dela Cruz;

10. Absolute Deed of Sale11 dated 23 March 1995, executed by Eleanor D.Meridor in favor of
Leonardo N. Benter, notarized by Rolando Dela Cruz;

11. Deed of Absolute Sale12 dated 20 December 1996, executed by Mandapat in favor of Mario
R. Mabalot, notarized by Rolando Dela Cruz;

12. Joint Affidavit By Two Disinterested Parties13 dated 17 April 1996, executed by Villiam C.
Ambong and Romeo L. Quiming, subscribed and sworn to before Rolando Dela Cruz;

13. Conditional Deed of Sale14 dated 27 February 1997, executed by Aurelia Demot Cados in
favor of Jose Ma. A. Pangilinan, notarized by Rolando Dela Cruz;

14. Memorandum of Agreement15 dated 19 July 1996, executed by JARCO represented by Mr.
Johnny Teope and AZTEC Construction represented by Mr. George Cham, notarized by
Rolando Dela Cruz.

Quite remarkably, respondent, in his comment, denied the charges of child abuse, illegal
deduction of salary and others which are still pending before the St. Louis University (SLU),
National Labor Relations Commission (NLRC) and the Prosecutor’s Office. He did not discuss
anything about the allegations of immorality in contracting a second marriage and malpractice
in notarizing documents despite the expiration of his commission.

After the filing of comment, We referred16 the case to the Integrated Bar of the Philippines
(IBP), for investigation, report and recommendation.

The IBP conducted the mandatory preliminary conference.

The complainants, thereafter, submitted their position paper which is just a reiteration of their
allegations in their complaint.

Respondent, on his part, expressly admitted his second marriage despite the existence of his
first marriage, and the subsequent nullification of the former. He also admitted having notarized
certain documents during the period when his notarial commission had already expired.
However, he offered some extenuating defenses such as good faith, lack of malice and noble
intentions in doing the complained acts.

After the submission of their position papers, the case was deemed submitted for resolution.

On 30 March 2005, Commissioner Acerey C. Pacheco submitted his report and recommended
that:

WHEREFORE, premises considered, it is respectfully recommended that respondent be

administratively penalized for the following acts:

a. For contracting a second marriage without taking the appropriate legal steps to have the first
marriage annulled first, he be suspended from the practice of law for one (1) year, and

b. For notarizing certain legal documents despite full knowledge of the expiration of his notarial
commission, he be suspended from the practice of law for another one (1) year or for a total of
two (2) years.17

On 17 December 2005, the IBP Board of Governors, approved and adopted the
recommendation of Commissioner Pacheco, thus:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the

Report and Recommendation of the Investigating Commissioner of the above-entitled case,
herein made part of this Resolution as Annex "A" and, finding the recommendation fully
supported by the evidence on record and the applicable laws and rules, and considering that
Respondent contracted a second marriage without taking appropriate legal steps to have the first
marriage annulled, Atty. Rolando C. dela Cruz is hereby SUSPENDED from the practice of law
for one (1) year and for notarizing legal documents despite full knowledge of the expiration of
his notarial commission Atty. Rolando C. dela Cruz is SUSPENDED from the practice of law
for another one (1) year, for a total of two (2) years Suspension from the practice of law.18
This Court finds the recommendation of the IBP to fault respondent well taken, except as to the
penalty contained therein.

At the threshold, it is worth stressing that the practice of law is not a right but a privilege
bestowed by the State on those who show that they possess the qualifications required by law
for the conferment of such privilege. Membership in the bar is a privilege burdened with
conditions. A lawyer has the privilege and right to practice law only during good behavior, and
he can be deprived of it for misconduct ascertained and declared by judgment of the court after
opportunity to be heard has been afforded him. Without invading any constitutional privilege or
right, an attorney’s right to practice law may be resolved by a proceeding to suspend, based on
conduct rendering him unfit to hold a license or to exercise the duties and responsibilities of an
attorney. It must be understood that the purpose of suspending or disbarring him as an attorney
is to remove from the profession a person whose misconduct has proved him unfit to be
entrusted with the duties and responsibilities belonging to an office of attorney and, thus, to
protect the public and those charged with the administration of justice, rather than to punish an
attorney. Elaborating on this, we said on Maligsa v. Atty. Cabanting,19 that the Bar should
maintain a high standard of legal proficiency as well as of honesty and fair dealing. A lawyer
brings honor to the legal profession by faithfully performing his duties to society, to the bar, to
the courts and to his clients. A member of the legal fraternity should refrain from doing any act
which might lessen in any degree the confidence and trust reposed by the public in the fidelity,
honesty and integrity of the legal profession. Towards this end, an attorney may be disbarred or
suspended for any violation of his oath or of his duties as an attorney and counselor, which
include statutory grounds enumerated in Section 27, Rule 138 of the Rules of Court, all of these
being broad enough to cover practically any misconduct of a lawyer in his professional or
private capacity.

Equally worthy of remark is that the law profession does not prescribe a dichotomy of standards
among its members. There is no distinction as to whether the transgression is committed in the
lawyer’s professional capacity or in his private life. This is because a lawyer may not divide his
personality so as to be an attorney at one time and a mere citizen at another.20 Thus, not only his
professional activities but even his private life, insofar as the latter may reflect unfavorably
upon the good name and prestige of the profession and the courts, may at any time be the
subject of inquiry on the part of the proper authorities.21

One of the conditions prior to admission to the bar is that an applicant must possess good moral
character. Possession of such moral character as requirement to the enjoyment of the privilege
of law practice must be continuous. Otherwise, "membership in the bar may be terminated when
a lawyer ceases to have good moral conduct."22

In the case at bench, there is no dispute that respondent and Teresita Rivera contracted marriage
on 31 May 1982 before Judge Tomas W. Macaranas. In less than a year, they parted ways
owing to their irreconcilable differences without seeking judicial recourse. The union bore no
offspring. After their separation in-fact, respondent never knew the whereabouts of Teresita
Rivera since he had lost all forms of communication with her. Seven years thereafter,
respondent became attracted to one Mary Jane Pascua, who was also a faculty member of SLU-
LHS. There is also no dispute over the fact that in 1989, respondent married Mary Jane Pascua
in the Municipal Trial Court (MTC) of Baguio City, Branch 68. Respondent even admitted this
fact. When the second marriage was entered into, respondent’s prior marriage with Teresita
Rivera was still subsisting, no action having been initiated before the court to obtain a judicial
declaration of nullity or annulment of respondent’s prior marriage to Teresita Rivera or a
judicial declaration of presumptive death of Teresita Rivera.

Respondent was already a member of the Bar when he contracted the bigamous second
marriage in 1989, having been admitted to the Bar in 1985. As such, he cannot feign ignorance
of the mandate of the law that before a second marriage may be validly contracted, the first and
subsisting marriage must first be annulled by the appropriate court. The second marriage was
annulled only on 4 October 1994 before the RTC of Benguet, Branch 9, or about five years after
respondent contracted his second marriage. The annulment of respondent’s second marriage has
no bearing to the instant disbarment proceeding. Firstly, as earlier emphasized, the annulment
came after the respondent’s second bigamous marriage. Secondly, as we held in In re: Almacen,
a disbarment case is sui generis for it is neither purely civil nor purely criminal but is rather an
investigation by the court into the conduct of its officers. Thus, if the acquittal of a lawyer in a
criminal action is not determinative of an administrative case against him, or if an affidavit of
withdrawal of a disbarment case does not affect its course, then neither will the judgment of
annulment of respondent’s second marriage also exonerate him from a wrongdoing actually
committed. So long as the quantum of proof - clear preponderance of evidence - in disciplinary
proceedings against members of the Bar is met, then liability attaches.23

Section 27, Rule 138 of the Rules of Court cites grossly immoral conduct as a ground for
disbarment.

The Court has laid down with a common definition of what constitutes immoral conduct, vis-à-
vis, grossly immoral conduct. Immoral conduct is "that conduct which is willful, flagrant, or
shameless, and which shows a moral indifference to the opinion of the good and respectable
members of the community" and what is "grossly immoral," that is, it must be so corrupt and
false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree." 24

Undoubtedly, respondent’s act constitutes immoral conduct. But is it so gross as to warrant his
disbarment? Indeed, he exhibited a deplorable lack of that degree of morality required of him as
a member of the Bar. In particular, he made a mockery of marriage which is a sacred institution
demanding respect and dignity. His act of contracting a second marriage while the first marriage
was still in place, is contrary to honesty, justice, decency and morality.25

However, measured against the definition, we are not prepared to consider respondent’s act as
grossly immoral. This finds support in the following recommendation and observation of the
IBP Investigator and IBP Board of Governors, thus:

The uncontested assertions of the respondent belies any intention to flaunt the law and the high
moral standard of the legal profession, to wit:
a. After his first failed marriage and prior to his second marriage or for a period of almost seven
(7) years, he has not been romantically involved with any woman;

b. His second marriage was a show of his noble intentions and total love for his wife, whom he
described to be very intelligent person;

c. He never absconded from his obligations to support his wife and child;

d. He never disclaimed paternity over the child and husbandry (sic) with relation to his wife;

e. After the annulment of his second marriage, they have parted ways when the mother and
child went to Australia;

f. Since then up to now, respondent remained celibate.26

In the case of Terre v. Terre,27 respondent was disbarred because his moral character was deeply
flawed as shown by the following circumstances, viz: he convinced the complainant that her
prior marriage to Bercenilla was null and void ab initio and that she was legally single and free
to marry him. When complainant and respondent had contracted their marriage, respondent
went through law school while being supported by complainant, with some assistance from
respondent’s parents. After respondent had finished his law course and gotten complainant
pregnant, respondent abandoned the complainant without support and without the wherewithal
for delivering his own child safely to a hospital.

In the case of Cojuangco, Jr. v. Palma,28 respondent was also disbarred for his grossly immoral
acts such as: first, he abandoned his lawful wife and three children; second, he lured an innocent
young woman into marrying him; third, he mispresented himself as a "bachelor" so he could
contract marriage in a foreign land; and fourth, he availed himself of complainant’s resources
by securing a plane ticket from complainant’s office in order to marry the latter’s daughter. He
did this without complainant’s knowledge. Afterwards, he even had the temerity to assure
complainant that "everything is legal."

Such acts are wanting in the case at bar. In fact, no less than the respondent himself
acknowledged and declared his abject apology for his misstep. He was humble enough to offer
no defense save for his love and declaration of his commitment to his wife and child.

Based on the reasons stated above, we find the imposition of disbarment upon him to be unduly
harsh. The power to disbar must be exercised with great caution, and may be imposed only in a
clear case of misconduct that seriously affects the standing and character of the lawyer as an
officer of the Court. Disbarment should never be decreed where any lesser penalty could
accomplish the end desired.29 In line with this philosophy, we find that a penalty of two years
suspension is more appropriate. The penalty of one (1) year suspension recommended by the
IBP is too light and not commensurate to the act committed by respondent.

As to the charge of misconduct for having notarized several documents during the years 1988-
1997 after his commission as notary public had expired, respondent humbly admitted having
notarized certain documents despite his knowledge that he no longer had authority to do so. He,
however, alleged that he received no payment in notarizing said documents.

It has been emphatically stressed that notarization is not an empty, meaningless, routinary act.
On the contrary, it is invested with substantive public interest, such that only those who are
qualified or authorized may act as notaries public. Notarization of a private document converts
the document into a public one making it admissible in court without further proof of its
authenticity. A notarial document is by law entitled to full faith and credit upon its face and, for
this reason, notaries public must observe with the 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.30

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 to do so as "reprehensible, constituting as it does not only
malpractice but also x x x the crime of falsification of public documents."31

The Court had occasion to state that where the notarization of a document is done by a member
of the Philippine Bar at a time when he has no authorization or commission to do so, the
offender may be subjected to disciplinary action or one, performing a notarial act without such
commission is a violation of the lawyer’s oath to obey the laws, more specifically, the Notarial
Law. Then, too, by making it appear that he is duly commissioned when he is not, he is, for all
legal intents and purposes, indulging in deliberate falsehood, which the lawyer’s oath similarly
proscribes. These violations fall squarely within the prohibition of Rule 1.01 of Canon 1 of the
Code of Professional Responsibility, which provides: "A lawyer shall not engage in unlawful,
dishonest, immoral or deceitful conduct." By acting as a notary public without the proper
commission to do so, 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.

In the case of Buensuceso v. Barera,32 a lawyer was suspended for one year when he notarized
five documents after his commission as Notary Public had expired, to wit: a complaint for
ejectment, affidavit, supplemental affidavit, a deed of sale, and a contract to sell. Guided by the
pronouncement in said case, we find that a suspension of two (2) years is justified under the
circumstances. Herein respondent notarized a total of fourteen (14) documents 33without the
requisite notarial commission.

Other charges constituting respondent’s misconduct such as the pending criminal case for child
abuse allegedly committed by him against a high school student filed before the Prosecutor’s
Office of Baguio City; the pending administrative case filed by the Teachers, Staff, Students
and Parents before an Investigating Board created by SLU; and the pending labor case filed by
SLU-LHS Faculty before the NLRC, Cordillera Administrative Region, on alleged illegal
deduction of salary by respondent, need not be discussed, as they are still pending before the
proper forums. At such stages, the presumption of innocence still prevails in favor of the
respondent.
WHEREFORE, finding respondent Atty. Rolando Dela Cruz guilty of immoral conduct, in
disregard of the Code of Professional Responsibility, he is hereby SUSPENDED from the
practice of law for a period of two (2) years, and another two (2) years for notarizing documents
despite the expiration of his commission or a total of four (4) years of suspension.

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

SO ORDERED.
A.M. No. RTJ-01-1657 February 23, 2004

HEINZ R. HECK, complainant,

vs.
JUDGE ANTHONY E. SANTOS, REGIONAL TRIAL COURT, BRANCH 19,
CAGAYAN DE ORO CITY,1respondent.

DECISION

CALLEJO SR., J.:

May a retired judge charged with notarizing documents without the requisite notary
commission more than twenty years ago be disciplined therefor? This is the novel issue
presented for resolution before this Court.

The instant case arose when in a verified Letter-Complaint dated March 21, 2001 Heinz R.
Heck prayed for the disbarment of Judge Anthony E. Santos, Regional Trial Court, Branch 19,
Cagayan de Oro City.

The complainant alleged that prior to the respondent’s appointment as RTC judge on April 11,
1989, he violated the notarial law, thus:

Judge Santos, based on ANNEX "A," was not duly commissioned as notary public until January
9, 1984 but still subscribed and forwarded (on a non-regular basis) notarized documents to the
Clerk of Court VI starting January 1980 uncommissioned until the 9th of January 1984.

a) Judge Santos was commissioned further January 16th 1986 to December 31st 1987 and
January 6th 1988 to December 31st 1989 but the records fail to show any entry at the
Clerk of Court after December 31st 1985 until December 31st 1989.

b) Judge Santos failed to forward his Notarial Register after the expiration of his
commission in December 1989.2

...

WHEREFORE in light of the foregoing complainant pray[s] to order respondent:

1. To disbar Judge Anthony E. Santos and to prohibit him from all future public service.

2. To forfeit [the] retirement benefits of Judge Santos.

3. To prohibit Judge Santos from future practice of Law.

4. To file a criminal suit against Judge Santos.

 5. To conduct a speedy investigation and not to grant/accept any delaying tactics from
Judge Santos or any agency and or public servants involved in this administrative case.

6. To pay all costs and related costs involved in this administrative case.

and prays for other relief in accordance with equity and fairness based on the premises. 3

The complainant submitted a certification from Clerk of Court, Atty. Beverly Sabio-Beja,
Regional Trial Court, Misamis Oriental, which contained the following:

THIS CERTIFIES that upon verification from the records found and available in this office, the
following data appear:

1. The name Atty. Anthony E. Santos is listed as a duly commissioned notary public in
the following years:

a. January 9, 1984 to December 31, 1985

b. January 16, 1986 to December 31, 1987

c. January 6, 1988 to December 31, 1989

2. Based on the records of transmittals of notarial reports, Atty. Anthony E. Santos

submitted his notarial reports in the ff. years:

a. January 1980 report - was submitted on Feb. 6, 1980

b February to April 1980 report - was submitted on June 6, 1980

c. May to June 1980 report - was submitted on July 29, 1980

d. July to October 1980 report - submitted but no date of submission

e. November to December 1980-no entry

f. January to February 1981 - no entry

g. March to December 1981 - submitted but no date of submission

h. January to December 1982 - submitted but no date of submission

i. January to June 1983 - submitted on January 5, 1984

j. July to December 1983 - no entry

k. January to December 1984 - submitted on January 20, 1986

 l. January to December 1985 - submitted on January 20, 1986

4. Records fail to show any entry of transmittal of notarial documents under the name
Atty. Anthony Santos after December 1985.

5. It is further certified that the last notarial commission issued to Atty. Anthony Santos
was on January 6, 1988 until December 31, 1989.4

In his Answer dated June 13, 2001, the respondent judge categorically denied the charges
against him. He also submitted a certification5 from Clerk of Court, Atty. Sabio-Beja, to prove
that there was no proper recording of the commissioned lawyers in the City of Cagayan de Oro
as well as the submitted notarized documents/notarial register. The respondent further averred
as follows:

That the complainant has never been privy to the documents notarized and submitted by the
respondent before the Office of the Clerk of Court of the Regional Trial Court of Misamis
Oriental, nor his rights prejudiced on account of the said notarized documents and therefore not
the proper party to raise the said issues;

That the complainant was one of the defendants in Civil Case No. 94-334 entitled Vinas
Kuranstalten Gesmbh et al. versus Lugait Aqua Marine Industries, Inc., and Heinz Heck, for
Specific Performance & Sum of Money, filed before the Regional Trial Court, Branch 19,
Cagayan de Oro City, wherein respondent is the Presiding Judge. The undersigned resolved the
case in favor of the plaintiffs.6

Pursuant to the report of the Office of the Court Administrator recommending the need to resort
to a full-blown investigation to determine the veracity of the parties’ assertions, the Court, in a
Resolution dated September 10, 2001, resolved to: (a) treat the matter as a regular
administrative complaint; and (b) refer the case to Associate Justice Edgardo P. Cruz of the
Court of Appeals (CA) for investigation, report and recommendation.7

In his Letters dated December 10, 2001 and February 1, 2002, the complainant requested that
the hearing be held at Cagayan de Oro City. Justice Cruz initially denied the request but upon
the complainant’s insistence, the matter was forwarded to the Court, which favorably acted
thereon in a Resolution dated July 8, 2002.8 The complainant presented his evidence in Cagayan
de Oro City before retired Court of Appeals Justice Romulo S. Quimbo. 9

In a Sealed Report dated August 14, 2003, Investigating Justice Edgardo P. Cruz made the
following recommendation:

It is recommended that [i] respondent (who retired on May 22, 2002) be found guilty of
violation of the Notarial Law by (a) notarizing documents without commission; (b) tardiness in
submission of notarial reports; and (c) non-forwarding of his notarial register to the Clerk of
Court upon expiration of his commission; and [ii] that for these infractions, he be suspended
from the practice of law and barred from being commissioned as notary public, both for one
year, and his present commission, if any, be revoked.10

According to the Investigating Justice, the respondent did not adduce evidence in his defense,
while the complainant presented documentary evidence to support the charges:

It is noteworthy that in his answer, respondent did not claim that he was commissioned as
notary public for the years 1980 to 1983 nor deny the accuracy of the first certification. He
merely alleged that "there was no proper recording of the commissioned lawyers in the City of
Cagayan de Oro nor of the submitted Notarized Documents/Notarial Register." And, as already
observed, he presented no evidence, particularly on his appointment as notary public for 1980 to
1983 (assuming he was so commissioned) and submission of notarial reports and notarial
register.

On the other hand, the second certification shows that "there were only two Record Books
available in the notarial section" of the RTC of Misamis Oriental (Cagayan de Oro City); and
that the "(f)irst book titled Petitions for Notarial Commission contains items on the Name, Date
Commission was issued and Expiration of Commission of the notary public. First entry
appearing was made on December 1982."

If respondent was commissioned in 1980 to 1983, then the "first book" would disclose so (at
least, for the years 1982 and 1983). However, he did not present said book. Neither did he
present a certification from the Clerk of Court, RTC of Misamis Oriental, or documents from
his files showing that he was commissioned in 1980 to 1983. Similarly, he did not submit a
certificate of appointment for all those years. Under Section 238 of the Notarial Law, such
certificate must be prepared and forwarded by the Clerk of Court, RTC, to the Office of the
Solicitor General, together with the oath of office of the notary public.11

Thus, the Investigating Justice concluded, based on the evidence presented by the complainant,
that the respondent notarized documents in 1980 and 1983 without being commissioned as a
notary public therefor, considering that his earliest commission of record was on January 9,
1984.12

The Procedural Issues

Before the Court passes upon the merits of the instant complaint, a brief backgrounder.

On the Applicability of Resolution A.M. No. 02-9-02-SC

On September 17, 2002, we issued Resolution A.M. No. 02-9-02-SC,13 to wit:

Some administrative cases against Justices of the Court of Appeals and the Sandiganbayan;
judges of regular and special courts; and the court officials who are lawyers are based on
grounds which are likewise grounds for the disciplinary action of members of the Bar for
violation of the Lawyer’s Oath, the Code of Professional Responsibility, and the Canons of
Professional Ethics, or for such other forms of breaches of conduct that have been traditionally
recognized as grounds for the discipline of lawyers.

In any of the foregoing instances, the administrative case shall also be considered a disciplinary
action against the respondent justice, judge or court official concerned as a member of the Bar.
The respondent may forthwith be required to comment on the complaint and show cause why
he should not also be suspended, disbarred or otherwise disciplinary sanctioned as a member of
the Bar. Judgment in both respects may be incorporated in one decision or resolution.

Before the Court approved this resolution, administrative and disbarment cases against
members of the bar who were likewise members of the court were treated separately. Thus,
pursuant to the new rule, administrative cases against erring justices of the CA and the
Sandiganbayan, judges, and lawyers in the government service may be automatically treated as
disbarment cases. The Resolution, which took effect on October 1, 2002, also provides that it
shall supplement Rule 140 of the Rules of Court, and shall apply to administrative cases already
filed where the respondents have not yet been required to comment on the complaints.

Clearly, the instant case is not covered by the foregoing resolution, since the respondent filed
his Answer/Comment on June 13, 2001.

The Procedure To Be Followed In Disbarment Cases Involving A Retired Judge For Acts
Committed While He Was Still A Practicing Lawyer

The undisputed facts are as follows: (1) the respondent is a retired judge; (2) the complainant
prays for his disbarment; and (3) the acts constituting the ground for disbarment were
committed when the respondent was still a practicing lawyer, before his appointment to the
judiciary. Thus, the respondent is being charged not for acts committed as a judge; he is
charged, as a member of the bar, with notarizing documents without the requisite notarial
commission therefor.

Section 1, Rule 139-B of the Rules of Court on Disbarment and Discipline of Attorneys
provides:

Section 1. Proceedings for the disbarment, suspension, or discipline of attorneys may be taken
by the Supreme Court motu proprio, or by the Integrated Bar of the Philippines (IBP) upon
verified complaint of any person. The complaint shall state clearly, and concisely the facts
complained of and shall be supported by affidavits of persons having personal knowledge of the
facts therein alleged and/or by such documents as may substantiate said facts.

The IBP Board of Governors may, motu proprio or upon referral by the Supreme Court or by a
Chapter Board of Officers, or at the instance of any person, initiate and prosecute proper
charges against erring attorneys including those in the government service: Provided, however,
That all charges against Justices of the Court of Tax Appeals and lower courts, even if lawyers
are jointly charged with them, shall be filed with the Supreme Court: Provided, further, That
charges filed against Justices and Judges before the IBP, including those filed prior to their
appointment to the Judiciary, shall be immediately forwarded to the Supreme Court for
disposition and adjudication.14

The investigation may thereafter commence either before the Integrated Bar of the Philippines
(IBP), in accordance with Sections 2 to Sections 12 of Rule 139-B, or before the Supreme Court
in accordance with Sections 13 and 14, thus:

Section 13. Supreme Court Investigators. - In proceedings initiated motu proprio by the
Supreme Court or in other proceedings when the interest of justice so requires, the Supreme
Court may refer the case for investigation to the Solicitor General or to any officer of the
Supreme Court or judge of a lower court, in which case the investigation shall proceed in the
same manner provided in Sections 6 to 11 hereof, save that the review of the report shall be
conducted directly by the Supreme Court.

Section 14. Report of the Solicitor General or other Court designated Investigator. Based upon
the evidence adduced at the investigation, the Solicitor General or other Investigator designated
by the Supreme Court shall submit to the Supreme Court a report containing his findings of fact
and recommendations together with the record and all the evidence presented in the
investigation for the final action of the Supreme Court.

It is clear from the Rules then that a complaint for disbarment is cognizable by the Court itself,
and its indorsement to the IBP is not mandatory. The Court may refer the complaint for
investigation, report and recommendation to the Solicitor General, any officer of the court or a
judge of a lower court, on which the Court will thereafter base its final action.15

Although the respondent has already retired from the judiciary, he is still considered as a
member of the bar and as such, is not immune to the disciplining arm of the Supreme Court,
pursuant to Article VIII, Section 616of the 1987 Constitution. Furthermore, at the time of the
filing of the complaint, the respondent was still the presiding judge of the Regional Trial Court,
Branch 19, Cagayan de Oro City. As such, the complaint was cognizable by the Court itself, as
the Rule mandates that in case the respondent is a justice of the Court of Tax Appeals or the
lower court, the complaint shall be filed with the Supreme Court.17

The Substantive Issues

The Retirement Or Resignation Of A Judge Will Not Preclude The Filing Thereafter Of An
Administrative Charge Against Him For Which He Shall Still Be Held Answerable If Found
Liable Therefor

The fact that a judge has retired or has otherwise been separated from the service does not
necessarily divest the Court of its jurisdiction to determine the veracity of the allegations of the
complaint, pursuant to its disciplinary authority over members of the bench. As we held
in Gallos v. Cordero:18
The jurisdiction that was ours at the time of the filing of the administrative complaint was not
lost by the mere fact that the respondent, had ceased in office during the pendency of his case.
The Court retains jurisdiction either to pronounce the respondent public official innocent of the
charges or declare him guilty thereof. A contrary rule would be fraught with injustice and
pregnant with dreadful and dangerous implications... If innocent, respondent public official
merits vindication of his name and integrity as he leaves the government which he has served
well and faithfully; if guilty, he deserves to receive the corresponding censure and a penalty
proper and imposable under the situation.19

However, recognizing "the proliferation of unfounded or malicious administrative or criminal

cases against members of the judiciary for purposes of harassment," we issued A.M. No. 03-10-
01-SC20 which took effect on November 3, 2003. It reads in part:

1. If upon an informal preliminary inquiry by the Office of the Court Administrator, an

administrative complaint against any Justice of the Court of Appeals or Sandiganbayan or
any Judge of the lower courts filed in connection with a case in court is shown to be
clearly unfounded and baseless and intended to harass the respondent, such a finding
should be included in the report and recommendation of the Office of the Court
Administrator. If the recommendation is approved or affirmed by the Court, the
complainant may be required to show cause why he should not be held in contempt of
court. If the complainant is a lawyer, he may further be required to show cause why he or
she should not be administratively sanctioned as a member of the Bar and as an officer of
the court.

2. If the complaint is (a) filed within six months before the compulsory retirement of a
Justice or Judge; (b) for an alleged cause of action that occurred at least a year before
such filing and (c) shown prima facie that it is intended to harass the respondent, it must
forthwith be recommended for dismissal. If such is not the case, the Office of the Court
Administrator must require the respondent to file a comment within ten (10) days from
receipt of the complaint, and submit to the Court a report and recommendation not later
than 30 days from receipt of the comment. The Court shall act on the recommendation
before the date of compulsory retirement of the respondent, or if it is not possible to do
so, within six (6) months from such date without prejudice to the release of the retirement
benefits less such amount as the Court may order to be withheld, taking into account the
gravity of the cause of action alleged in the complaint.

Thus, in order for an administrative complaint against a retiring or retired judge or justice to be
dismissed outright, the following requisites must concur: (1) the complaint must have been filed
within six months from the compulsory retirement of the judge or justice; (2) the cause of action
must have occurred at least a year before such filing; and, (3) it is shown that the complaint
was intended to harass the respondent.

In this case, the Administrative Complaint dated March 21, 2001 was received by the Office of
the Court Administrator on March 26, 2001.21 The respondent retired compulsorily from the
service more than a year later, or on May 22, 2002. Likewise, the ground for disbarment or
disciplinary action alleged to have been committed by the respondent did not occur a year
before the respondent’s separation from the service. Furthermore, and most importantly, the
instant complaint was not prima facie shown to be without merit and intended merely to harass
the respondent. Clearly, therefore, the instant case does not fall within the ambit of the
foregoing resolution.

A Judge May Be Disciplined For Acts Committed Before His Appointment To The Judiciary

It is settled that a judge may be disciplined for acts committed prior to his appointment to the
judiciary.22 In fact, even the new Rule itself recognizes this, as it provides for the immediate
forwarding to the Supreme Court for disposition and adjudication of charges against justices
and judges before the IBP, including those filed prior to their appointment to the judiciary.23 It
need not be shown that the respondent continued the doing of the act or acts complained of; it is
sufficient that the evidence on record supports the charge on the respondent, considering the
gravity of the offense.

Indeed, there is jurisprudence to the effect that the act complained of must be continuing in
order for the respondent judge to be disciplined therefor. In Sevilla v. Salubre,24 the respondent
judge was charged with violating Canon 16 of the Code of Professional Responsibility, for acts
committed while he was still a practicing lawyer. The respondent therein refused to turn over
the funds of his client despite demands, and persisted in his refusal even after he was appointed
as a judge. However, the Court also stated in this case that the respondent’s subsequent
appointment as a judge will not exculpate him from taking responsibility for the consequences
of his acts as an officer of the court.25

In the case of Alfonso v. Juanson,26 we held that proof of prior immoral conduct cannot be used
as basis for administrative discipline against a judge if he is not charged with immorality prior
to his appointment. We ratiocinated, thus:

...[I]t would be unreasonable and unfair to presume that since he had wandered from the path of
moral righteousness, he could never retrace his steps and walk proud and tall again in that path.
No man is beyond information and redemption. A lawyer who aspires for the exalted position of
a magistrate knows, or ought to know, that he must pay a high price for that honor - his private
and official conduct must at all times be free from the appearance of impropriety. ...27

The Court ruled in that case that the complainant failed to prove the charges by substantial
evidence.28 The complainant therein presented evidence pertaining to the respondent’s previous
indiscretion while still a practicing lawyer; no evidence was, however, adduced to prove that the
latter continued to engage in illicit acts after being appointed to the bench. Thus, the respondent
was exonerated in this case because the complainant failed to present evidence that the
indiscretion continued even after the respondent was appointed to the judiciary.

The practice of law is so ultimately affected with public interest that it is both the right and duty
of the State to control and regulate it in order to promote the public welfare. The Constitution
vests this power of control and regulation in this Court.29 The Supreme Court, as guardian of the
legal profession, has ultimate disciplinary power over attorneys, which authority is not only a
right but a bounden duty as well. This is why respect and fidelity to the Court is demanded of its
members.30

Notarizing Documents Without The Requisite Commission Therefore Constitutes Malpractice, If

Not The Crime Of Falsification Of Public Documents

It must be remembered that notarization is not an empty, meaningless, routinary act. On the
contrary, it is invested with substantive public interest, such that only those who are qualified or
authorized may act as notaries public.31Notarization by a notary public converts a private
document into a public one, making it admissible in evidence without the necessity of
preliminary proof of its authenticity and due execution.32

The requirements for the issuance of a commission as notary public must not be treated as a
mere casual formality.33 The Court has characterized a lawyer’s act of notarizing documents
without the requisite commission therefore as "reprehensible, constituting as it does not only
malpractice, but also the crime of falsification of public documents."34 For such reprehensible
conduct, the Court has sanctioned erring lawyers by suspension from the practice of law,
revocation of the notarial commission and disqualification from acting as such, and even
disbarment.35

In the case of Nunga v. Viray,36 the Court had the occasion to state -

Where the notarization of a document is done by a member of the Philippine Bar at a time when
he has no authorization or commission to do so, the offender may be subjected to disciplinary
action. For one, performing a notarial [act] without such commission is a violation of the
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."37

The importance of the function of a notary public cannot, therefore, be over-emphasized. No

less than the public faith in the integrity of public documents is at stake in every aspect of that
function.38

The Charge Against The Respondent Is Supported By The Evidence On Record

The respondent did not object to the complainant’s formal offer of evidence, prompting the
Investigating Justice to decide the case on the basis of the pleadings filed.39 Neither did he claim
that he was commissioned as notary public for the years 1980 to 1983, nor deny the accuracy of
the first certification. The respondent merely alleged in his answer that "there was no proper
recording of the commissioned lawyers in the City of Cagayan de Oro nor of the submitted
Notarized Documents/Notarial Register." Furthermore, as found by the Investigating Justice,
the respondent presented no evidence of his commission as notary public for the years 1980 to
1983, as well as proof of submission of notarial reports and the notarial register. 40

The respondent in this case was given an opportunity to answer the charges and to controvert
the evidence against him in a formal investigation. When the integrity of a member of the bar is
challenged, it is not enough that he deny the charges; he must meet the issue and overcome the
evidence against him.41

The respondent’s allegation that the complainant was not a party in any of the documents so
notarized, and as such was not prejudiced thereby, is unavailing. An attorney may be disbarred
or suspended for any violation of his oath or of his duties as an attorney and counselor which
include the statutory grounds under Section 27, Rule 13842 of the Revised Rules of Court. Any
interested person or the court motu proprio may initiate disciplinary proceedings. There can be
no doubt as to the right of a citizen to bring to the attention of the proper authority acts and
doings of public officers which citizens feel are incompatible with the duties of the office and
from which conduct the citizen or the public might or does suffer undesirable consequences.43

An Administrative Complaint Against A Member Of The Bar Does Not Prescribe

The qualification of good moral character is a requirement which is not dispensed with upon
admission to membership of the bar. This qualification is not only a condition precedent to
admission to the legal profession, but its continued possession is essential to maintain one’s
good standing in the profession. It is a continuing requirement to the practice of law and
therefore does not preclude a subsequent judicial inquiry, upon proper complaint, into any
question concerning one’s mental or moral fitness before he became a lawyer. This is because
his admission to practice merely creates a rebuttable presumption that he has all the
qualifications to become a lawyer.44 The rule is settled that a lawyer may be suspended or
disbarred for any misconduct, even if it pertains to his private activities, as long as it shows him
to be wanting in moral character, honesty, probity or good demeanor. Possession of good moral
character is not only a prerequisite to admission to the bar but also a continuing requirement to
the practice of law.45

Furthermore, administrative cases against lawyers belong to a class of their own, distinct from
and may proceed independently of civil and criminal cases.46 As we held in the leading case of
In re Almacen:47

[D]isciplinary proceedings against lawyers are sui generis. Neither purely civil nor purely
criminal, they do not involve a trial of an action or a suit, but are rather investigations by the
Court into the conduct of one of its officers. Not being intended to inflict punishment, [they are]
in no sense a criminal prosecution. Accordingly, there is neither a plaintiff nor a prosecutor
therein. [They] may be initiated by the Court motu proprio. Public interest is [their] primary
objective, and the real question for determination is whether or not the attorney is still a fit
person to be allowed the privileges as such. Hence, in the exercise of its disciplinary powers,
the Court merely calls upon a member of the Bar to account for his actuations as an officer of
the Court with the end in view of preserving the purity of the legal profession and the proper
and honest administration of justice by purging the profession of members who by their
misconduct have prove[n] themselves no longer worthy to be entrusted with the duties and
responsibilities pertaining to the office of an attorney. ....48

In a case involving a mere court employee49 the Court disregarded the Court Administrator’s
recommendation that the charge for immorality against the respondent be dismissed on the
ground that the complainants failed to adduce evidence that the respondent’s immoral conduct
was still ongoing. Aside from being found guilty of illicit conduct, the respondent was also
found guilty of dishonesty for falsifying her children’s certificates of live birth to show that her
paramour was the father. The complaint in this case was filed on August 5, 1999, almost twenty
years after the illicit affair ended.50 The Court held that administrative offenses do not
prescribe.51

Pursuant to the foregoing, there can be no other conclusion than that an administrative
complaint against an erring lawyer who was thereafter appointed as a judge, albeit filed only
after twenty-four years after the offending act was committed, is not barred by prescription. If
the rule were otherwise, members of the bar would be emboldened to disregard the very oath
they took as lawyers, prescinding from the fact that as long as no private complainant would
immediately come forward, they stand a chance of being completely exonerated from whatever
administrative liability they ought to answer for. It is the duty of this Court to protect the
integrity of the practice of law as well as the administration of justice. No matter how much
time has elapsed from the time of the commission of the act complained of and the time of the
institution of the complaint, erring members of the bench and bar cannot escape the disciplining
arm of the Court. This categorical pronouncement is aimed at unscrupulous members of the
bench and bar, to deter them from committing acts which violate the Code of Professional
Responsibility, the Code of Judicial Conduct, or the Lawyer’s Oath. This should particularly
apply in this case, considering the seriousness of the matter involved - the respondent’s
dishonesty and the sanctity of notarial documents.

Thus, even the lapse of considerable time, from the commission of the offending act to the
institution of the administrative complaint, will not erase the administrative culpability of a
lawyer who notarizes documents without the requisite authority therefor.

At Most, The Delay In The Institution Of The Administrative Case Would Merely Mitigate The
Respondent’s Liability

Time and again, we have stressed the settled principle that the practice of law is not a right but a
privilege bestowed by the State on those who show that they possess the qualifications required
by law for the conferment of such privilege. Membership in the bar is a privilege burdened with
conditions. A high sense of morality, honesty, and fair dealing is expected and required of a
member of the bar.52 By his actuations, the respondent failed to live up to such standards;53 he
undermined the confidence of the public on notarial documents and thereby breached Canon I
of the Code of Professional Responsibility, which requires lawyers to uphold the Constitution,
obey the laws of the land and promote respect for the law and legal processes. The respondent
also violated Rule 1.01 thereof which proscribes lawyers from engaging in unlawful, dishonest,
immoral or deceitful conduct.54 In representing that he was possessed of the requisite notarial
commission when he was, in fact, not so authorized, the respondent also violated Rule 10.01 of
the Code of Professional Responsibility and his oath as a lawyer that he shall do no falsehood.

The supreme penalty of disbarment is meted out only in clear cases of misconduct that seriously
affect the standing and character of the lawyer as an officer of the court. While we will not
hesitate to remove an erring attorney from the esteemed brotherhood of lawyers where the
evidence calls for it, we will likewise not disbar him where a lesser penalty will suffice to
accomplish the desired end.55 Furthermore, a tempering of justice is mandated in this case,
considering that the complaint against the respondent was filed twenty-four years after the
commission of the act complained of;56 that there was no private offended party who came
forward and claimed to have been adversely affected by the documents so notarized by the
respondent; and, the fact that the respondent is a retired judge who deserves to enjoy the full
measure of his well-earned retirement benefits.57 The Court finds that a fine of P5,000.00 is
justified in this case.

WHEREFORE, respondent Judge Anthony E. Santos is found GUILTY of notarizing

documents without the requisite notarial commission therefor. He is hereby ORDERED to pay a
fine in the amount of Five Thousand Pesos (P5,000.00).

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

A.C. No. 6753 September 5, 2012

MILA VIRTUSIO, Complainant,

vs.
ATTY. GRENALYN V. VIRTUSIO, Respondent.

DECISION

ABAD, J.:

This administrative case concerns a lawyer who failed to use the money given by another to
fund the checks she issued as accommodation party in payment for the property that was
purchased by such person and performed a notarial act without commission.

The Facts and the Case

On June 14, 2005, Mila Virtusio (Mila) filed with this Court a Complaint1 for disbarment
against her husband's distant relative, Atty. Grenalyn V. Virtusio.Mila alleged that sometime in
1999 Atty. Virtusio convinced her to buy a house and lot at North Olympus Subdivision in
Novaliches, Quezon City, from its developer, Stateland Investment Corporation (Stateland).
Mila agreed for Atty. Virtusio to use her personal checks in paying the seller with Mila
reimbursing her. Under this arrangement, Mila gave Atty. Virtusio the following amounts: ₱
95,000.00, ₱ 25,000.00, ₱ 65,000.00, ₱ 64,000.00 and ₱ 64,000.00. All of these were properly
receipted except for the ₱ 95,000.00 for which she got a receipt from her for only ₱
90,000.00.2 On October 25 and November 24, 1999, Mila deposited identical amounts of ₱
64,000.00 each in Atty. Virtusio’s checking account with Equitable Bank.3 In all, Mila gave her
₱ 441,000.00.

To her surprise, however, Mila began receiving letters from Stateland, demanding that she make
good the dishonored checks that it got. When she confronted Atty. Virtusio regarding this, the
latter assured her that she would take care of the problem. But the demand letters persisted.

For fear of losing the property, Mila directly dealt with Stateland in January 2000. She then
found out that her arrearages had come close to ₱ 200,000.00, inclusive of penalty and interest.
In order not to lose the property, Mila and her husband decided to settle their overdue obligation
with money they borrowed at high interest.4 In turn, Stateland turned over to her three checks of
Atty. Virtusio, each for ₱ 71,944.97, with the notation "DAIF."5

Mila further alleged that Atty. Virtusio declined to return to her the money the latter
misappropriated despite demand. Only when Mila threatened to file a case against her did Atty.
Virtusio agree to pay her on February 20, 2001 by executing a deed of sale in her favor covering
her Mazda car. Despite the sale, however, Atty. Virtusio pleaded with Mila and her husband to
let her keep the car meanwhile since she needed it in her work. When she refused to give up the
car, Mila filed a replevin case against Atty. Virtusio that the court eventually decided in Mila’s
favor.6 But, as it turned out, Atty. Virtusio had managed to register the car in her children’s
name and sold it to a third person. Mila filed a case of estafa against Atty. Virtusio7 apart from
the present disbarment case.

Mila claimed that Atty. Virtusio evaded the return of money she misappropriated, impeded the
execution of a final judgment, and engaged in conduct that discredits the legal profession, all in
violation of the Code of Professional Responsibility, rendering her unfit to remain a member of
the bar.8

In a July 27, 2005 Resolution,9 the Court required Atty. Virtusio to comment on the complaint.
She asked for extension of time to comply but did not file her comment just the same. 10 On
Mila’s motion,11 the Court again required Atty. Virtusio to file her comment and to show cause
why she had not complied with its previous orders.12Still, she did not file any comment,
prompting the Court to impose on her on November 15, 2006 a ₱ 500.00 fine. The court again
reiterated its order for her to file her comment.13

With no response, on August 1, 2007, the Court directed the Clerk of Court to resend its
November 15, 2006 Resolution to Atty. Virtusio14 but this was returned unserved with the
notation, "RTS-Person moved out." On December 3, 2007 the Court ordered the resending of
the May 3 and November 15, 2006 Resolutions to Atty. Virtusio, this time at an address in Sta.
Mesa that Mila furnished. When this last resolution was returned unserved with the notation,
"RTS-Unclaimed," the Court issued a Resolution15 on April 30, 2008 that considered Atty.
Virtusio to have waived her right to file a comment considering that she filed none despite
having sought an extension from the Court. The Court also referred the case to the Integrated
Bar of the Philippines (IBP) for investigation, report, and recommendation.

The IBP Investigating Commissioner directed Atty. Virtusio to file a position paper. She filed a
motion for extension of time to file the same but did not.16

Based on the pleadings on hand, the IBP Investigating Commissioner reported having found
that Atty. Virtusio appropriated portions of the money that Mila gave her for payment to
Stateland, thus evidencing her moral unfitness to practice the profession. The Commissioner
recommended the imposition of the penalty of one year suspension from the practice of
law17 with a two-year disqualification from reappointment as Notary Public, given that she had
notarized documents despite the expiration of her notarial commission.18 The IBP Board of
Governors approved the report and recommendation.19

Atty. Virtusio filed a motion for reconsideration of the IBP Investigating Commissioner’s
action on April 30, 2009.20She explained that her failure to file her position paper was brought
about by her belief that she needed to wait for the IBP’s action on her motion for extension of
time to file the same. Thus, she prayed that her attached position paper be admitted and
considered in resolving her motion for reconsideration.21

In her version of the facts, Atty. Virtusio wants to convince the Court that she committed no
intentional wrongs and that she was but a victim of circumstances. Although she admitted using
Mila’s money rather than pay Stateland with it, she explained that, having been busy attending
to her sick son in Manila, she failed to monitor her check disbursements, entrusting it to an
office staff. Only in December 1999 was she able to audit the same and discover the
mismanagement of her funds and its co-mingling with office funds, resulting in overlapping of
accountabilities and non-funding of the checks for Stateland when they fell due.22

On becoming aware of the lapses, however, Atty. Virtusio borrowed ₱ 165,000.00 from Engr.
Marciano de Guzman so she could pay Mila but, having failed to pay him as well, he went after
Mila who was co-maker of the loan. When Atty. Virtusio tried to make further arrangements to
pay what she owed Mila, the latter refused to negotiate and did not acknowledge the past
payments she had already made. When Atty. Virtusio refused to yield to Mila’s demand for
payment of the entire ₱ 165,000.00, she filed a replevin case, a complaint for estafa, and
disbarment charge against her.23

Atty. Virtusio averred that in October 2006 she and Mila entered into a verbal agreement
whereby she would pay her ₱ 200,000.00, with ₱ 87,500.00 up front, in exchange for Mila’s
dismissal of all her actions. Notwithstanding that the compromise agreement had not been
formalized, Atty. Virtusio claimed that it obliterated her liabilities, given that she substantially
settled her obligations to Mila.24

Atty. Virtusio also pointed out, that the charges against her were not born of some professional
relation between Mila and her. She had acted as an accommodation party, allowing Mila to
make use of her personal checks to facilitate the purchase of a property from Stateland. And,
assuming that the predicament she finds herself in has a bearing on her professional conduct,
the same does not amount to grossly immoral conduct since she owned up to her responsibilities
and exerted tireless effort to settle her accounts.25

Further, Atty. Virtusio claimed that she should not be penalized for violation of the notarial law
since this offense did not form part of the original complaint to which she was required to
respond. At any rate, she merely committed an oversight. She had religiously renewed her
notarial commission yearly since May 1995. When she notarized the questioned documents, she
believed in good faith that she had renewed her notarial commission for 2006 and 2007 just as
before. She asked not to be punished for her mistake since it was brought about by her sincere
commitment to extend free legal service to the disadvantaged.26

Lastly, Atty. Virtusio asked the Court to reconsider the harsh penalty imposed on her in the
light of the peculiar circumstances of her case and the good faith she showed.27

On June 26, 2011, the IBP Board of Governors issued Resolution XIX-2011-47728 denying the
motion despite an affidavit of desistance that Mila filed in the meantime.29 As provided in
Section 12(b),30 Rule 139-B of the Rules of Court, the IBP forwarded the instant case to this
Court for final action.

Questions Presented

The questions presented in this case are:

1. Whether or not the IBP erred in finding Atty. Virtusio guilty of grave misconduct in
her dealings with Mila and in notarizing documents without a renewed commission; and

2. Assuming Atty. Virtusio was guilty of some offenses, whether or not the IBP imposed
the appropriate penalties on her.

Rulings of the Court

Lawyers are, as officers of the court and instruments for the administration of justice, expected
to maintain not only legal proficiency but also a high standard of morality, honesty, and fair
dealing. A lawyer’s gross misconduct, whether in his professional or private capacity, is ground
for suspension or disbarment under the principle that, since good moral character is an essential
qualification for the admission to the practice of law, maintaining such trait is a condition for
keeping the privilege.31

By her own account, Atty. Virtusio admitted misusing the money that Mila entrusted to her for
payment to Stateland. Her excuse is that she lost track of her finances and mixed up her office
funds with her personal funds. But this excuse is too thin. She admitted misusing ₱ 165,000.00
of Mila’s money, which is not petty cash. Indeed she tried to borrow money from a third person
to cover it up rather than just offer her shallow excuse to Mila. Atty. Virtusio’s use for personal
purpose of money entrusted to her constitutes dishonest and deceitful conduct under the Code of
Professional Responsibility. It provides:

Rule 1.01 — A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

CANON 7 — A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND

DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES OF THE
INTEGRATED BAR.

Rule 7.03 — A lawyer shall not engage in conduct that adversely reflects on his fitness to
practice law, nor shall he, whether in public or private life, behave in a scandalous manner to
the discredit of the legal profession.

Atty. Virtusio cannot absolve herself of liability by claiming that she failed to attend to her
finances because she had to look after a sick child at that time. Assuming she had such a child,
the fact is that it was not by mere oversight that she failed to finance the checks for Stateland.
For, if this were so, she could have easily rectified her mistake by using her other funds. In
truth, she spent the money that Mila entrusted to her because she had no other funds. Indeed,
she had to borrow money from a third party later to remedy her financial problems.
What is more, supposedly to cover up for her fault, Atty. Virtusio executed a deed of sale
covering her car in Mila’s favor rather than return the money she defalcated. But, again acting
with guile, she withheld possession of the car and transferred its registration in the name of her
children.

Atty. Virtusio is guilty by her above acts of gross misconduct that warrants her suspension for
one year from the practice of law following Section 27,32 Rule 138 of the Rules of Court.

The Court cannot also countenance Atty. Virtusio’s notarization of documents after her notarial
commission had expired. Although the IBP discovered this violation of the notarial law only in
the course of the proceedings and was not a subject matter of Mila’s complaint, it cannot close
its eyes to the same. Besides, Atty. Virtusio had an opportunity to defend herself against this
additional charge.33 Her defense is that she thought that she had renewed her commission.

Again, Atty. Virtusio’s defense is unsubstantial. She did not renew her notarial commission for
two years, 2006 and 2007, not just one. She could not have missed that fact considering that, as
she said, she had been renewing her commission yearly from 1995 to 2005.

A lawyer who notarizes a document without a proper commission violates his lawyer’s oath to
obey the law.1âwphi1 He makes it appear that he is commissioned when he is not. He thus
indulges in deliberate falsehood that the lawyer’s oath forbids. This violation falls squarely
under Rule 1.01 of Canon 1 of the Code of Professional Responsibility and Canon 7 as well. 34 A
proper sanction is authorized.35

Considering, however, that based on the evidence Atty. Virtusio had notarized only two
documents without a proper notarial commission, the Court finds her suspension from notarial
practice for one year adequate.36

That Mila had agreed after some financial settlement to withdraw her complaint against Atty.
Virtusio cannot exempt the latter from the prescribed sanction. She has outraged the country’s
professional code and this demands a measure of justice. As the Court said in Spouses Soriano
v. Atty. Reyes,37 disbarment is a disciplinary action taken for the public good. Consequently, it
is as a rule not subject to some compromise entered into with the complainant. Besides, Mila's
evidence is already a matter of record and the Court cannot simply ignore the same. 38

WHEREFORE, the Court FINDS Atty. Grenalyn V. Virtusio GUILTY of gross misconduct
and violation of the Code of Professional Responsibility and IMPOSES on her the penalty
of SUSPENSION from the practice of law for one year, effective immediately. In addition, the
Court REVOKES any Notarial Commission she may presently have and DISQUALIFIES her
from applying for it for one year also effective immediately. Further, she is WARNED of a
more severe penalty should she commit a similar infraction in the future.

Let cop1es of this Decision be furnished the Office of the Court Administrator, the Integrated
Bar of the Philippines, and the Office of the Bar Confidant. Finally, let this judgment be made
part of Atty. Virtusio's personal record 1n the latter office.
SO ORDERED.
A.C. No. 6963 February 9, 2006

VICTORINA BAUTISTA, Complainant,

vs.
ATTY. SERGIO E. BERNABE, Respondent.

DECISION

YNARES-SANTIAGO, J.:

In a Complaint1 filed before the Commission on Bar Discipline of the Integrated Bar of the
Philippines (IBP) on November 16, 2004, complainant Victorina Bautista2 prays for the
suspension or disbarment of respondent Atty. Sergio E. Bernabe for malpractice and unethical
conduct in the performance of his duties as a notary public and a lawyer.

Complainant alleged that on January 3, 1998, respondent prepared and notarized a Magkasanib
na Salaysay3purportedly executed by Donato Salonga and complainant’s mother, Basilia de la
Cruz.4 Both affiants declared that a certain parcel of land in Bigte, Norzagaray, Bulacan, was
being occupied by Rodolfo Lucas and his family for more than 30 years. Complainant claimed
that her mother could not have executed the joint affidavit on January 3, 1998 because she has
been dead since January 28, 1961.5

In his Answer,6 respondent denied that he falsified the Magkasanib na Salaysay. He disclaimed
any knowledge about Basilia’s death. He alleged that before he notarized the document, he
requested for Basilia’s presence and in her absence, he allowed a certain Pronebo, allegedly a
son-in-law of Basilia, to sign above the name of the latter as shown by the word "by" on top of
the name of Basilia. Respondent maintained that there was no forgery since the signature
appearing on top of Basilia’s name was the signature of Pronebo.

On April 4, 2005, respondent filed a manifestation7 attaching thereto the affidavit of

desistance8 of complainant which reads in part:

Ako na si, VICTORINA BAUTISTA CAPA, x x x matapos makapanumpa ng naaayon sa batas

ay malaya at kusang loob na nagpapahayag ng mga sumusunod:

1. Na ako ang siyang tumatayong nagrereklamo laban kay Abogado, SERGIO

EXQUIVEL BERNABE, sa isang kaso sa Tanggapan ng Integrated Bar of the
Philippines na may Blg. CBD CASE NO. 04-1371;

2. Na ang nasabing habla ay hindi ko kagustuhan sapagkat iyon ay pinapirmahan lamang

sa akin ni ELISEO OLOROSO at ng kanyang Abogado na si Atty. MARCIAL MORFE
MAGSINO at sa katunayan hindi ako nakaharap sa Notaryo Publiko na si Abogado
CARLITOS C. VILLARIN;
 3. Na ang pagpapapirma sa akin ay isang panlilinlang at ako ay ginawang kasangkapan
para sirain ang magandang pangalan nitong si Abogado SERGIO ESQUIVEL
BERNABE;

4. Na dahil sa ganitong pangyayari, aking hinihiling sa Tanggapan ng Integrated Bar of

the Philippines (IBP) na ang reklamo ko laban sa nasabing Abogado SERGIO
ESQUIVEL BERNABE ay mapawa[la]ng bisa.

In the report dated August 29, 2005, the Investigating Commissioner 9 recommended that:

1. Atty. Sergio Esquibel Bernabe be suspended from the practice of the legal profession
for one (1) month;

2. Any existing commission of Atty. Sergio Esquibel Bernabe as notary public, be

revoked; and

3. Atty. Sergio Esquibel Bernabe be barred from being granted a notarial commission for
a period of one (1) year.10

In a resolution dated October 22, 2005, the Board of Governors of the IBP adopted and
approved the recommendation of the Investigating Commissioner with modification that
respondent be suspended from the practice of law for one year and his notarial commission be
revoked and that he be disqualified for reappointment as notary public for two years.

We agree with the findings and recommendation of the IBP.

The records sufficiently established that Basilia was already dead when the joint affidavit was
prepared on January 3, 1998. Respondent’s alleged lack of knowledge of Basilia’s death does
not excuse him. It was his duty to require the personal appearance of the affiant before affixing
his notarial seal and signature on the instrument.

A notary public should not notarize a document unless the persons who signed the same are the
very same persons who executed and personally appeared before him to attest to the contents
and truth of what are stated therein. The presence of the parties to the deed will enable the
notary public to verify the genuineness of the signature of the affiant.11

Respondent’s act of notarizing the Magkasanib na Salaysay in the absence of one of the affiants
is in violation of Rule 1.01,12 Canon 1 of the Code of Professional Responsibility and the
Notarial Law.13 By affixing his signature and notarial seal on the instrument, he led us to
believe that Basilia personally appeared before him and attested to the truth and veracity of the
contents of the affidavit when in fact it was a certain Pronebo who signed the document.
Respondent’s conduct is fraught with dangerous possibilities considering the conclusiveness on
the due execution of a document that our courts and the public accord on notarized documents.
Respondent has clearly failed to exercise utmost diligence in the performance of his function as
a notary public and to comply with the mandates of the law.14
Respondent was also remiss in his duty when he allowed 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. The acts of the affiants cannot be delegated to anyone for what are stated
therein are facts of which they have personal knowledge. They should swear to the document
personally and not through any representative. Otherwise, their representative’s name should
appear in the said documents as the one who executed the same. That is the only time the
representative can affix his signature and personally appear before the notary public for
notarization of the said document. Simply put, the party or parties who executed the instrument
must be the ones to personally appear before the notary public to acknowledge the document.15

Complainant’s desistance or withdrawal of the complaint does not exonerate respondent or put
an end to the administrative proceedings. A case of suspension or disbarment may proceed
regardless of interest or lack of interest of the complainant. What matters is whether, on the
basis of the facts borne out by the record, the charge of deceit and grossly immoral conduct has
been proven. This rule is premised on the nature of disciplinary proceedings. A proceeding for
suspension or disbarment is not a civil action where the complainant is a plaintiff and the
respondent lawyer is a defendant. Disciplinary proceedings involve no private interest and
afford no redress for private grievance. They are undertaken and prosecuted solely for the
public welfare. They are undertaken for the purpose of preserving courts of justice from the
official ministration of persons unfit to practice in them. The attorney is called to answer to the
court for his conduct as an officer of the court. The complainant or the person who called the
attention of the court to the attorney’s alleged misconduct is in no sense a party, and has
generally no interest in the outcome except as all good citizens may have in the proper
administration of justice.16

We find the penalty recommended by the IBP to be in full accord with recent jurisprudence.
In Gonzales v. Ramos,17 respondent lawyer was found guilty of notarizing the document despite
the non-appearance of one of the signatories. As a result, his notarial commission was revoked
and he was disqualified from reappointment for a period of two years. In addition, he was
suspended from the practice of law for one year.

Finally, it has not escaped our notice that in paragraph 218 of complainant’s affidavit of
desistance, she alluded that Atty. Carlitos C. Villarin notarized her Sinumpaang
Salaysay19 dated November 12, 2004 which was attached to the complaint filed with the
Commission on Bar Discipline of the IBP, without requiring her to personally appear before
him in violation of the Notarial Law. This allegation must likewise be investigated.

WHEREFORE, for breach of the Notarial Law and Code of Professional Responsibility, the
notarial commission of respondent Atty. Sergio E. Bernabe, is REVOKED. He
is DISQUALIFIED from reappointment as Notary Public for a period of two years. He is
also SUSPENDED from the practice of law for a period of one year, effective immediately. He
is further WARNED that a repetition of the same or of similar acts shall be dealt with more
severely. He is DIRECTED to report the date of receipt of this Decision in order to determine
when his suspension shall take effect.
The Commission on Bar Discipline of the Integrated Bar of the Philippines is DIRECTED to
investigate the allegation that Atty. Carlitos C. Villarin notarized the Sinumpaang Salaysay of
Victorina Bautista dated November 12, 2004 without requiring the latter’s personal
appearance.lavvph!1.net

Let copies of this Decision be furnished the Office of the Bar Confidant, the Integrated Bar of
the Philippines, and all courts all over the country. Let a copy of this Decision likewise be
attached to the personal records of the respondent.

SO ORDERED.
G.R. No. 157434 September 19, 2006

SPOUSES CLARO and NIDA BAUTISTA, petitioners,

vs.
BERLINDA F. SILVA, Represented by HERMES J. DORADO, in his capacity as
Attorney-In-Fact, respondent.

DECISION

AUSTRIA-MARTINEZ, J.:

To establish his status as a buyer for value in good faith, a person dealing with land registered
in the name of and occupied by the seller need only show that he relied on the face of the
seller's certificate of title.1 But for a person dealing with land registered in the name of and
occupied by the seller whose capacity to sell is restricted, such as by Articles 166 2 and 1733 of
the Civil Code or Article 1244 of the Family Code, he must show that he inquired into the
latter's capacity to sell in order to establish himself as a buyer for value in good faith. 5 The
extent of his inquiry depends on the proof of capacity of the seller. If the proof of capacity
consists of a special power of attorney duly notarized, mere inspection of the face of such
public document already constitutes sufficient inquiry. If no such special power of attorney is
provided or there is one but there appear flaws in its notarial acknowledgment mere inspection
of the document will not do; the buyer must show that his investigation went beyond the
document and into the circumstances of its execution.

Appealed by Petition for Review on Certiorari under Rule 45 of the Rules of Court are the
November 21, 2001 Decision6 of the Court of Appeals (CA) in CA-G.R. CV No. 487677 which
affirmed in toto the January 10, 1995 Decision of the Regional Trial Court (RTC) in Civil Case
No. 3091-V-89, and the February 27, 2003 CA Resolution which denied the motion for
reconsideration.

Civil Case No. 3091-V-89 is a Complaint for Annulment of Deed of Absolute Sale and Transfer
Certificate of Title (TCT) No. V-2765, Reconveyance and Damages filed with the RTC, Branch
171, Valenzuela, Metro Manila by Berlina F. Silva (Berlina), through Hermes Dorado (Dorado)
as Attorney-in-Fact, against Spouses Claro and Nida Bautista (Spouses Bautista). Spouses
Bautista filed their Answer8 and a Third-Party Complaint against Berlina's husband, Pedro M.
Silva (Pedro).9 In an Order dated August 6, 1991, the RTC declared third-party defendant Pedro
in default for failure to file an answer to the Third-Party Complaint.10

The undisputed facts of the case, as found by the RTC, are as follows:

1. That Transfer Certificate of Title No. B-37189 of the Registry of Deeds for xxx Metro
Manila District III over a parcel of land (Lot 42, Block 10, of the subdivision plan (LRC)
Psd-210217, Sheet 2, being a portion of Lot 903, Malinta Estate, LRC Record No. 5941)
situated in xxx Barrio of Parada, Valenzuela, Metro Manila, containing an area of 216
 square meters, more or less, was registered in the names of Spouses Berlina F. Silva and
Pedro M. Silva on August 14, 1980;

2. That on March 3, 1988, Pedro M. Silva, for himself and as attorney-in-fact of his wife
Berlina F. Silva, thru a Special Power of Attorney purportedly executed on November 18,
1987 by Berlina F. Silva in his favor, signed and executed a Deed of Absolute Sale over
the said parcel of land covered by Transfer Certificate of Title No. B-37189 in favor of
defendants-spouses Claro Bautista and Nida Bautista; and

3. That as a consequence, Transfer Certificate of Title No. 37189 was cancelled and in
lieu thereof, Transfer Certificate of Title No. V-2765 of the Registry of Deeds for the
Valenzuela Branch was issued in the names of Spouses Claro Bautista and Nida Bautista
on March 4, 1988.11

Based on the evidence presented, the RTC also found that the signature appearing on the
Special Power of Attorney (SPA) as that of Berlina Silva is a forgery, and that consequently the
Deed of Absolute Sale executed by Pedro in favor of Spouses Bautista is not authorized by
Berlina.12

The RTC rendered judgment on January 10, 1995, the decretal portion of which reads:

WHEREFORE, Judgment is hereby rendered:

1. Declaring the Deed of Absolute Sale dated March 3, 1988 executed by Pedro M. Silva,
for himself and as attorney-in-fact of Berlina F. Silva, in favor of defendants-spouses
Claro Bautista and Nida Bautista over the parcel of land, described and covered by
Transfer Certificate of Title No. B-37189 Metro Manila District III, null and void and the
resulting Transfer Certificate of Title No. V-2765 of Valenzuela Registry in the name of
Spouses Claro Bautista and Nida Bautista cancelled and that Transfer Certificate of Title
No. B-37189 reinstated.

2. Ordering defendants to reconvey the property covered by the said Transfer Certificate
of Title No. V-2765 together with the improvements thereon to the plaintiff.

3. Condemning the defendants to pay the plaintiff the sum of P5,000.00 in the concept of
reasonable attorney's fees and the costs of suit.

Defendants' counterclaim is dismissed.

Judgment on default is hereby entered in favor of the third-party plaintiffs Spouses Claro
Bautista and Nida Bautista against third-party defendants Pedro M. Silva, condemning
the third-party defendant Pedro Silva to indemnify/pay third-party plaintiffs Spouses
Claro Bautista and Nida Bautista the amount of Seventy Thousand Pesos (P70,000.00)
the contract price of the sale of the property, with interest at the legal rate from the date
of the execution of the said document on March 3, 1988 until the amount is fully paid and
 for whatever amount that the third–party plaintiffs were adjudged and paid to the plaintiff
by reason of this decision and the costs of suit.

SO ORDERED.13

Spouses Bautista filed an appeal with the CA which, in its November 21, 2001 Decision,
affirmed in toto the RTC decision;14 and, in a Resolution

dated February 27, 2003, denied the Motion for Reconsideration.15

Hence, the herein petition filed by Spouses Bautista praying that the CA Decision and
Resolution be annulled and set aside on the following grounds:

I. Respondent as represented by Hermes Dorado in his capacity as attorney-in-fact has no

legal authority to file action against spouses petitioners.

II. The petitioners are considered as purchasers in good faith and for value having relied
upon a Special Power of Attorney which appears legal, valid and genuine on its face.

III. Gratia argumenti that the special power of attorney is a forgery and the deed of sale
executed by the husband is null and void, the nullity [thereof] does not include the one
half share of the husband.16

The petition fails for lack of merit.

As to the first ground, petitioners argue that for lack of authority of Dorado to represent
respondent, the latter's Complaint failed to state a cause of action and should have been
dismissed.17

The argument holds no water.

True, there was no written authority for Dorado to represent respondent in the filing of her
Complaint. However, no written authorization of Dorado was needed because the Complaint
was actually filed by respondent, and not merely through Dorado as her attorney-in-fact. As
correctly observed by the CA, respondent herself signed the verification attached to the
Complaint.18 She stated therein that she is the plaintiff in Civil Case No. 3091-V-89 and that she
caused the preparation of the Complaint.19 Respondent also personally testified on the facts
alleged in her Complaint.20 In reality, respondent acted for and by herself, and not through any
representative, when she filed the Complaint. Therefore, respondent being the real party in
interest, by virtue of the then prevailing Articles 16621 and 17322 of the Civil Code, the
Complaint she filed sufficiently stated a cause of action. The sufficiency of the Complaint was
not affected by the inclusion of Dorado as party representative for this was an obvious error
which, under Section 11 of Rule 3,23 is not a ground for dismissal, as it may be corrected by the
court, on its own initiative and at any stage of the action, by dropping such party from the
complaint.24
Anent the second ground, there is no merit to petitioners' claim that they are purchasers in good
faith.

That the SPA is a forgery is a finding of the RTC and the CA on a question of fact.25 The same
is conclusive upon the Court, 26 especially as it is based on the expert opinion of the NBI which
constitutes more than clear, positive and convincing evidence that respondent did not sign the
SPA, and on the uncontroverted Certification of Dorado that respondent was in Germany
working as a nurse when the SPA was purportedly executed in 1987.

The SPA being a forgery, it did not vest in Pedro any authority to alienate the subject property
without the consent of respondent. Absent such marital consent, the deed of sale was a nullity. 27

But then petitioners disclaim any participation in the forgery of the SPA or in the unauthorized
sale of the subject property. They are adamant that even with their knowledge that respondent
was in Germany at the time of the sale, they acted in good faith when they bought the subject
property from Pedro alone because the latter was equipped with a SPA which contains a
notarial acknowledgment that the same is valid and authentic.28 They invoke the status of
buyers in good faith whose registered title in the property is already indefeasible and against
which the remedy of reconveyance is no longer available.29 In the alternative, petitioners offer
that should respondent be declared entitled to reconveyance, let it affect her portion only but not
that of Pedro.30

Whether or not petitioners are buyers for value in good faith is a question of fact not cognizable
by us in a petition for review.31 We resolve only questions of law; we do not try facts nor
examine testimonial or documentary evidence on record. We leave these to the trial and
appellate courts to whose findings and conclusions we accord great weight and respect,
especially when their findings concur.32 We may have at times reversed their findings and
conclusions but we resort to this only under exceptional circumstances as when it is shown that
said courts failed to take into account certain relevant facts which, if properly considered, would
justify a different conclusion.33 No such exceptional circumstance obtains in the present case for
we find the conclusions of the RTC and CA supported by the established facts and applicable
law. However, we do not fully subscribe to some of their views on why petitioners cannot be
considered in good faith, as we will discuss below.

A holder of registered title may invoke the status of a buyer for value in good faith as a defense
against any action questioning his title.34 Such status, however, is never presumed but must be
proven by the person invoking it.35

A buyer for value in good faith is one who buys property of another, without notice that some
other person has a right to, or interest in, such property and pays full and fair price for the same,
at the time of such purchase, or before he has notice of the claim or interest of some other
persons in the property. He buys the property with the well-founded belief that the person
from whom he receives the thing had title to the property and capacity to convey it.36
To prove good faith, a buyer of registered and titled land need only show that he relied on the
face of the title to the property. He need not prove that he made further inquiry for he is not
obliged to explore beyond the four corners of the title.37 Such degree of proof of good faith,
however, is sufficient only when the following conditions concur: first, the seller is the
registered owner of the land; 38 second, the latter is in possession thereof;39 and third, at the time
of the sale, the buyer was not aware of any claim or interest of some other person in the
property,40 or of any defect or restriction in the title of the seller or in his capacity to convey
title to the property.41

Absent one or two of the foregoing conditions, then the law itself puts the buyer on notice and
obliges the latter to exercise a higher degree of diligence by scrutinizing the certificate of title
and examining all factual circumstances in order to determine the seller's title and capacity to
transfer any interest in the property.42 Under such circumstance, it is no longer sufficient for
said buyer to merely show that he relied on the face of the title; he must now also show that he
exercised reasonable precaution by inquiring beyond the title.43 Failure to exercise such degree
of precaution makes him a buyer in bad faith.44

In the present case, petitioners were dealing with a seller (Pedro) who had title to and
possession of the land but, as indicated on the face of his title, whose capacity to sell was
restricted, in that the marital consent of respondent is required before he could convey the
property. To prove good faith then, petitioners must show that they inquired not only into the
title of Pedro but also into his capacity to sell.

According to petitioners, to determine Pedro's capacity to sell, they conducted the following
forms of inquiry: first, they inspected the photocopy of the SPA presented to them by
Pedro;45 second, they brought said copy to Atty. Lorenzo Lucero (the notary public who
prepared the deed of sale) and asked whether it was genuine;46 and third, they inspected the
original copy of the SPA after they advanced payment of Php55,000.00 to Pedro.47 Essentially,
petitioners relied on the SPA, specifically on its notarial acknowledgment which states that
respondent appeared before the notary public and acknowledged having executed the SPA in
favor of Pedro.

The RTC and CA, however, found such inquiry superficial. They expected of petitioners an
investigation not only into the whereabouts of respondent at the time of the execution of the
SPA48 but also into the genuineness of the signature appearing on it.49

We find such requirements of the RTC and CA too stringent that to adopt them would be to
throw commerce into madness where buyers run around to probe the circumstances surrounding
each piece of sales document while sellers scramble to produce evidence of its good order.
Remember that it is not just any scrap of paper that is under scrutiny but a SPA, the execution
and attestation of which a notary public has intervened.

To what extent, therefore, should an inquiry into a notarized special power of attorney go in
order for one to qualify as a buyer for value in good faith?
We agree with one author who said:

x x x To speak of "notice", as applied to the grantee, is to follow the language of the

Statue of Elizabeth. Its proviso protects the man who purchases "upon good
consideration and bona fide * * * not having at the time * * * any manner of notice or
knowledge." The term "notice", however, is really but an approach to the test of good
faith, and all modern legislation tends toward that point.

Thus, some present day statutes (outside of the Uniform Law) may speak of notice, actual
and constructive, and define both terms, but they should be "liberally construed, so as to
protect bona fide purchaser for value." They may require the grantee to have
"knowledge" of the debtor's intent, but save for technical purposes of pleading, the term
is read in the light of the rules we are studying. It comes always to a question of the
grantee's good faith as distinct from mere negligence. 50

There must, indeed, be more than negligence. There must be a conscious turning away
from the subject x x x. As put by the Supreme Court, the grantee must take the
consequences if he "chooses to remain ignorant of what the necessities of the case
require him to know." The search, therefore, is described by the question, did the
grantee make a choice between not knowing and finding out the truth; or were the
circumstances such that he was not faced with that choice? (Emphasis ours)

This means that no automatic correlation exists between the state of forgery of a document and
the bad faith of the buyer who relies on it. A test has to be done whether the buyer had a choice
between knowing the forgery and finding it out, or he had no such choice at all.

When the document under scrutiny is a special power of attorney that is duly notarized, we
know it to be a public document where the notarial acknowledgment is prima facie evidence of
the fact of its due execution.51 A buyer presented with such a document would have no choice
between knowing and finding out whether a forger lurks beneath the signature on it. The
notarial acknowledgment has removed that choice from him and replaced it with a presumption
sanctioned by law that the affiant appeared before the notary public and acknowledged that he
executed the document, understood its import and signed it. In reality, he is deprived of such
choice not because he is incapable of knowing and finding out but because, under our notarial
system, he has been given the luxury of merely relying on the presumption of regularity of a
duly notarized SPA. And he cannot be faulted for that because it is precisely that fiction of
regularity which holds together commercial transactions across borders and time.

In sum, all things being equal, a person dealing with a seller who has possession and title to the
property but whose capacity to sell is restricted, qualifies as a buyer in good faith if he proves
that he inquired into the title of the seller as well as into the latter's capacity to sell; and that in
his inquiry, he relied on the notarial acknowledgment found in the seller's duly notarized special
power of attorney. He need not prove anything more for it is already the function of the notarial
acknowledgment to establish the appearance of the parties to the document, its due execution
and authenticity.52
Note that we expressly made the foregoing rule applicable only under the operative words "duly
notarized" and "all things being equal." Thus, said rule should not apply when there is an
apparent flaw afflicting the notarial acknowledgment of the special power of attorney as would
cast doubt on the due execution and authenticity of the document; or when the buyer has actual
notice of circumstances outside the document that would render suspect its genuineness.

In Domingo v. Reed,53 we found that the special power of attorney relied upon by the buyers
contained a defective notarial acknowledgment in that it stated there that only the agent-wife
signed the document before the notary public while the principal-husband did not. Such flaw
rendered the notarial acknowledgment of no effect and reduced the special power of attorney
into a private document. We declared the buyer who relied on the private special power of
attorney a buyer in bad faith.

In Lao v. Villones-Lao,54 and Estacio v. Jaranilla,55 we found that the buyers knew of
circumstances extrinsic to the special power of attorney which put in question the actual
execution of said document. In Domingo Lao, the buyer knew that the agent-wife was estranged
from the principal-husband but was living within the same city. In the Estacio case, we found
admissions by the buyers that they knew that at the time of the purported execution of the
special power of attorney, the alleged principal was not in the Philippines. In both cases we held
that the buyers were not in good faith, not because we found any outward defect in the notarial
acknowledgment of the special powers of attorney, but because the latter had actual notice of
facts that should have put them on deeper inquiry into the capacity to sell of the seller.

In the present case, petitioners knew that Berlina was in Germany at the time they were buying
the property and the SPA relied upon by petitioners has a defective notarial acknowledgment.
The SPA was a mere photocopy56 and we are not convinced that there ever was an original copy
of said SPA as it was only this photocopy that was testified to by petitioner Nida Bautista and
offered into evidence by her counsel.57 We emphasize this fact because it was actually this
photocopy that was relied upon by petitioners before they entered into the deed of sale with
Pedro. As admitted to by petitioner Nida Bautista, upon inspection of the photocopy of the SPA,
they gave Pedro an advanced payment of Php55,000.00; this signifies that, without further
investigation on the SPA, petitioners had agreed to buy the subject property from Pedro.

But then said photocopy of the SPA contains no notarial seal. A notarial seal is a mark, image
or impression on a document which would indicate that the notary public has officially signed
it.58 There being no notarial seal, the signature of the notary public on the notarial certificate
was therefore incomplete. The notarial certificate being deficient, it was as if the notarial
acknowledgment was unsigned. The photocopy of the SPA has no notarial acknowledgment to
speak of. It was a mere private document which petitioners cannot foist as a banner of good
faith.

All told, it was not sufficient evidence of good faith that petitioners merely relied on the
photocopy of the SPA as this turned out to be a mere private document. They should have
adduced more evidence that they looked beyond it. They did not. Instead, they took no
precautions at all. They verified with Atty. Lucero whether the SPA was authentic but then the
latter was not the notary public who prepared the document. Worse, they purposely failed to
inquire who was the notary public who prepared the SPA. Finally, petitioners conducted the
transaction in haste. It took them all but three days or from March 2 to 4, 1988 to enter into the
deed of sale, notwithstanding the restriction on the capacity to sell of Pedro.59 In no way then
may petitioners qualify as buyers for value in good faith.

That said, we come to the third issue on whether petitioners may retain the portion of Pedro
Silva in the subject property. Certainly not. It is well-settled that the nullity of the sale of
conjugal property contracted by the husband without the marital consent of the wife affects the
entire property, not just the share of the wife.60 We see no reason to deviate from this rule.

WHEREFORE, the petition is hereby DENIED. The Decision dated November 21, 2001 and
Resolution dated February 27, 2003 of the Court of Appeal are AFFIRMED.

Costs against petitioners.

SO ORDERED.