FIRST DIVISION
[A.M. No. MTJ-96-1076. February
9, 2000]
VENUS P.
DOUGHLAS, complainant, vs. JUDGE FRANCISCO H. LOPEZ, JR., MCTC,
Lupon Banaybanay, Davao Oriental, respondent.
R E S O L U T I O N
KAPUNAN, J.:
On July 31, 1995, a sworn complaint was
filed by Venus P. Doughlas against Municipal Circuit Trial Court Judge
Francisco H. Lopez, Jr. of Lupon, Banaybanay, Davao Oriental alleging an
irregularity in the notarization of a document entitled "Extra Judicial Settlement
of Estate with Special Power of Attorney" by respondent judge. Â h Y
Complainant alleged that she is one of the
heirs of the late Bienvenido Paquingan who owned a parcel of agricultural land
located at Mahayag, Banaybanay, Davao Oriental consisting of 14.5783 hectares.
Said land was covered by Transfer Certificate of Title No. T-6309. To her
surprise and consternation, she recently discovered that the said land was
voluntarily offered for sale under the Comprehensive Agrarian Reform Program of
the Department of Agrarian Reform. The voluntary offer to sell was allegedly
facilitated without the knowledge and consent of the heirs of the late
Bienvenido Paquingan and by virtue of an "Extra Judicial Settlement of
Estate with Special Power of Attorney" purportedly signed by the said
heirs and acknowledged before respondent judge. She averred that a cursory look
at the signatures therein would reveal that the same are forgeries and were
signed by only one person. According to her, all the heirs of the late
Bienvenido Paquingan are residing abroad so it is quite incredible that all of
them arrived at the same time in Banaybanay, Davao and simultaneously secured
residence certificates on the same day, March 12, 1994, as was indicated in the
questioned instrument. To prove her allegations, she submitted (a) an affidavit
executed by her mother and wife of the late Bienvenido Paquingan duly
authenticated by Philippine Consul Antonio S. Curameng of Los Angeles,
California, U.S.A. stating that the former did not return to the Philippines on
March 30, 1994 to sign the questioned document; and (2) an affidavit of one
Perla Bonhoc stating that Juanita Tormis, the late Bienvenido Paquingan’s
administrator, gave her the questioned instrument which bore the forged signatures
of the heirs of the late Bienvenido Paquingan.[1] Sccalr
In his Comment, respondent judge admitted
having notarized the questioned instrument but claimed that he did so only on
an accommodation basis believing that the same was a government transaction. He
maintained that he had been notarizing documents for the Department of Agrarian
Reform in the past. He further contended that he had no participation in the
drafting, preparation and final execution of the questioned document except for
affixing his signature over his already typewritten name. He concluded his
Comment with the resolve to be more meticulous next time around.[2]
In a Resolution dated February 7, 1996, the
Court referred the matter to Executive Judge Ricardo M. Berba, Regional Trial
Court, Branch 5, Mati, Davao Oriental for investigation, report and
recommendation.
The initial investigation set for March 28,
1996 was reset to April 30, 1996 because of the absence of the complainant. On
the appointed date, both parties appeared but the complainant asked for more
time to secure the services of counsel. On May 23, 1996, complainant failed to
appear before the investigation judge. Considering that respondent judge had
already submitted his Comment dated November 14, 1995, the matter was deemed submitted
for resolution. Misedp
In his report and recommendation,
Investigating Judge Berba stated:
The failure of the
complainant to appear despite due notice and opportunity given to her to
substantiate the complaint is very strong indication that complainant is not
interested in substantiating the allegations in the complaint.
The complaint
against respondent judge is a matter which has to be proven by clear and
convincing evidence. Complainant failed to do so. However, in the light of the
explanation of respondent, the investigator submits that respondent should be
admonished to be very careful in the future in order not to prejudice any party
in the course of the performance of his duties as ex-oficio notary public.[3]
On October 14, 1996, this Court issued a
resolution referring the case back to Executive Judge Berba "for further
and thorough investigation within thirty (30) days, with notice of hearing
properly served on complainant to determine the parties responsible so that
proper action can be taken."[4]
In compliance with the above resolution,
notices were sent to the complainant through her representative Fe Sinsosa at
Yellow St., Ma-a, Davao City and to Rosita Paquingan at 2600 Grove St.,
National City, California, U.S.A. Neither of them appeared at the hearing set.
Consequently, Investigating Judge Berba recommended the dismissal of the
complaint ratiocinating that:
Complainant
alleged that the signatures appearing in the questioned documents "Extra
Judicial Settlement of Estate With Special Power of Attorney" and
"Waiver" both ratified before respondent judge appear to have been
signed by only one person. This is belied by a mere comparison of the
signatures appearing in both questioned documents and those in the aforesaid
Facto de Retro Sale (sic) and Special Power of Attorney. In the absence of any
competent evidence presented by complainant to support her said allegation, the
presumption of regularity in the performance of official duty in favor of
respondent still prevails. Edpsc
Moreover, if ever as
alleged heir complainant (sic) was deprived of her share in the property
subject of the questioned documents, such claim may be ventilated in an
appropriate forum. It is indeed very hard to arrive at the conclusion under the
circumstances and evidence on record that respondent facilitated such alleged
deprivation. The records do not show of any proceeding involving the said
questioned documents initiated by any of the parties.[5]
On December 6, 1999, the Office of the Court
Administrator, pursuant to earlier resolution, submitted its memorandum which
we quote in part:
We agree with the
findings of the Investigating Judge that the accusation of forgery cannot be
substantiated without the full cooperation of complainant. Mere suspicion
without proof cannot be a basis for conviction. Moreover, complainant’s
repeated failure to appear or communicate despite notice gives rise to the
presumption that she deliberately failed to prosecute her case.
The foregoing
notwithstanding, we find respondent guilty of unauthorized notarization of a
private document. It is well settled that municipal judges may not engage in
notarial work except as notaries public ex-officio. As notaries public
ex-officio, they may engage only in the notarization of documents connected
with the exercise of their official functions. They may not, as such notaries
public ex-officio, undertake the preparation and acknowledgment of private
documents, contracts and other acts of conveyance, which bear no relation to
the performance of their functions as judges. (Balayon, Jr. vs. Ocampo, 218
SCRA 13).
However, taking
judicial notice of the fact that there are still municipalities which have
neither lawyers nor notaries public, the Supreme Court ruled that MTC and MCTC
judges assigned to municipalities or circuits with no lawyers or notaries
public may, in their capacity as notaries public ex-officio, perform any act
within the competency of a regular notary public, provided that (1) all
notarial fees charged be for the account of the Government and turned–over to
the municipal treasurer and (2) certification be made in the notarized
documents attesting to the lack of any lawyer or notary public in such
municipality or circuit. (ibid). Scedp
Two of the
documents submitted by one Herman P. Periquet, the DAR personnel who frequently
asks respondent Judge to notarize DAR documents, show that there are notaries
public in the MCTC of Lupon-Banaybanay, to wit:
1........The Pacto de Retro sale executed by and between
Rosita Paquingan and Juanita Tormis last October 25, 1985 was notarized by
Atty. Russia S. Mangampo; and
2........The first Special Power of Attorney executed by the
heirs of Bienvenido Paquingan in favor of Juanita Tormis last March 12, 1994
was notarized by Atty. Leonardo M. Barnes.
Respondent Judge had
therefore no right to notarize the "Extra Judicial Settlement with Special
Power of Attorney," a private document, which is not related to the
performance of his official function as a judge.
Wherefore, it is
respectfully recommended that the complaint of forgery be DISMISSED and that
Judge Francisco H. Lopez, Jr. be FINED One Thousand Pesos (P1,000.00) for
unauthorized notarization of a private document.
Time and again, the Court has enjoined
strict observance of Circular No. 1-90 on the power of Municipal Trial Court
(MTC) and Municipal Circuit Trial Court (MCTC) judges to act as notaries public
ex officio. Under Section 76 of Republic Act No. 296, as amended, and
Section 242 of the Revised Administrative Code, MTC and MCTC judges are
empowered to perform the functions of notaries public ex officio. In
Circular No. 1-90 however, the Court laid down the following qualifications on
the scope of said power, viz:
MTC and MCTC
judges may act as notaries public ex officio in the notarization of documents
connected only with the exercise of their official functions and duties [Borre
v. Mayo, Adm. Matter No. 1765-CFI, October 17, 1980, 100 SCRA 314; Penera v.
Dalocanog, Adm. Matter No. 2113-MJ, April 22, 1981, 104 SCRA 193.] They may
not, as notaries public ex officio, undertake the preparation and
acknowledgment of private documents, contracts and other acts of conveyances
which bear no direct relation to the performance of their functions as judges. The
1989 Code of Judicial Conduct not only enjoins judges to regulate their
extra-judicial activities in order to minimize the risk of conflict with their
judicial duties, but also prohibits them from engaging in the private practice
of law (Canon 5 and Rule 5.07). Misoedp
However, the
Court, taking judicial notice of the fact that there are still municipalities
which have neither lawyers nor notaries public, rules that MTC and MCTC judges
assigned to municipalities or circuits with no lawyers or notaries public may,
in the capacity as notaries public ex officio, perform any act within the
competency of a regular notary public, provided that: (1) all notarial fees
charged be for the account of the Government and turned over to the municipal
treasurer (Lapena, Jr. vs. Marcos, Adm. Matter No. 1969-MJ, June 29, 1982, 114
SCRA 572); and, (2) certification be made in the notarized documents attesting
to the lack of any lawyer or notary public in such municipality or circuit.
The reasons that warranted the issuance of
said circular need no longer be stated. The 1989 Code of Judicial Conduct not
only enjoins judges to regulate their extra-judicial activities in order to
minimize the risk of conflict with their judicial duties but also prohibits
them from engaging in the private practice of law.[6]
Here, as reported by the Court Administrator
in his Memorandum, dated December 6, 1999, two documents submitted by a DAR
employee who frequently requested respondent judge to notarize DAR documents,
were notarized by lawyers in the town of Banaybanay, one in 1985 and the other
in 1994, signifying that there were notaries within the circuit of the
respondent judge. Assuming that there were none, he should have issued a
certification in the document he notarized attesting to that fact, which he did
not.
WHEREFORE, premises considered, the complaint for forgery is
hereby DISMISSED, however, respondent judge FRANCISCO H. LOPEZ, JR. is hereby
ordered to pay a fine of ONE THOUSAND PESOS (P1,000.00) for unauthorized
notarization of a private document. He is STERNLY WARNED that a repetition of
the same or similar acts will be dealt with more severely.
SO ORDERED. Jlexj
Davide, Jr., C.J., (Chairman), Puno,
Pardo, and Ynares-Santiago, JJ., concur.