SECOND DIVISION
[A.M No. MTJ-00-1294. July 31,
2000]
HORST FRANZ
ELLERT, complainant, vs. JUDGE VICTORIO GALAPON JR., Municipal Trial
Court, Dulag, Leyte, respondent.
D E C I S I O N
BUENA, J.:
Before us is a letter-complaint dated
January 8, 2000[1] and an affidavit-complaint dated January 10, 2000,[2] both filed by Horst Franz Ellert, charging Judge
Victorio L. Galapon, Jr. of the Municipal Trial Court at Dulag, Leyte with
grave misconduct, abuse of judicial authority, ignorance of the law, unlawful
notarization, perjury, and false testimony.
This case originated from two (2) cases,
namely: DARAB Case No. VIII-169-L-91 entitled "Lualhati V. Ellert vs.
Marina Roca, et al." and Criminal Case No. 97-07-CR-161 entitled
"People of the Philippines vs. Horst Franz Ellert."
I. Re: DARAB Case No. VIII-169-L-91 entitled
"Lualhati V. Ellert vs. Marina Roca and Odeth Roca".
Complainant alleged that in the
"Answer"[3] filed by Marina Roca and Odeth Roca with the
Department of Agrarian Reform Adjudication Board (DARAB), the signature of
Judge Victorio L. Galapon, Jr., herein respondent, was affixed in the jurat.
In his complaint, Horst Franz Ellert avers
that "a Municipal Trial Court judge is only authorized to administer
oaths, or sign jurats to documents only for submission before his court, in
cases pending before his court, such as complaints for filing with his court,
sworn statements of witnesses in cases pending or to be filed with his court,
affidavits of all kinds, provided that they are for filing/submission to his
court, but definitely, not all other documents. Even as an Ex-Officio Notary
Public, he is authorized to notarize (sign acknowledgments) documents,
conveyances of very limited nature, …"[4]
It is the understanding of the complainant
that not all kinds of documents can be notarized (acknowledged before) by a
Municipal Trial Court judge, like herein respondent. But, despite the fact that
Judge Galapon is not duly authorized even by the Notarial Law to sign a
document such as the aforementioned Answer, respondent knowingly, wilfully,
unlawfully, and feloniously subscribed to, and administered the oaths of Marina
Roca and Odeth Roca by signing the jurat at the bottom of the Verification of
the Answer.
He points out that by unlawfully and
illegally doing so, respondent judge committed grave misconduct, abuse of
judicial authority, and exhibited his ignorance of the law.
II. Re: Criminal Case No. 97-07-CR-161
entitled "People of the Philippines vs. Horst Franz Ellert for Light
Threats.
Complainant Ellert made the following
allegations and rationalizes why it is his opinion that respondent judge gave a
false testimony as well as perjured himself:
1....He
knows respondent Judge as the latter is the complainant in Criminal Case No.
97-07-CR-161 filed with the Municipal Trial Court in Cities at Tacloban City,
Branch I;
2....In
the course of the trial conducted by the said court and presided by Judge
Romulo Casiber, herein respondent falsely stated in his Affidavit-Complaint
that Horst Franz Ellert is a resident of Barangay Tabu, Dulag, Leyte. -- In
other documentary and testimonial evidence, respondent testified and admitted
that Ellert was indeed actually residing at Sitio Payapay, Barangay 90, San
Jose, Tacloban City.
3....Respondent
judge, in the course of his testimony given in open court and under oath, said
that he helped Ellert by writing to the manager of the Development Bank of the
Philippines concerning Ellert’s problem on a piece of land, and also said that
it was because of this letter that the bank returned the amount in the deed of
sale. -- There is a Certification made by the DBP manager that no such letter
was sent to and/or ever received by his office;
4....In
the same judicial proceedings, respondent judge falsely testified under oath
that he first came to know Ellert when Lualhati V. Ellert (wife of herein
complainant) filed a case against her own brother Domingo Villaronte in his
(Judge Galapon) court prior to March 23, 1997 or sometime between 1994 to 1996.
-- When the case between complainant’s late wife and her brother was filed and
pending, complainant Ellert was still out of the country as he was working
overseas and only came to the country occasionally for brief vacations;
5....Judge
Galapon falsely testified and declared in open court that a property involving
the DBP came to his knowledge and attention because it was the subject of a
civil case before his court. -- That property was never the subject of any
civil case before his court or before any other court;
6....Respondent
judge falsely declared and testified that he does not know Barangay Tabu,
Cabatuan, or any other barangay in Dulag, Leyte. -- The Barangay Captain of
Barangay Tabu is the "compadre" of the respondent and, as a
judge of the Municipal Trial Court of Dulag, Leyte, he was even the one who
notarized the Application for Locational Clearance of the Barangay
Chairman/Captain of Barangay Tabu. This was not however submitted to the HLURB
because there was no building permit applied for and issued.
In his Comment dated February 7, 2000,[5] Judge Victorio L. Galapon, Jr. reveals that the
present complaint is perhaps the tenth in a series of continuous and relentless
harassment cases filed against him by Horst Franz Ellert.
He avers that the reason why complainant
Ellert unceasingly vilifies and harasses him is because of the criminal case he
has filed against the latter (Criminal Case No. 97-07-CR-161 entitled
"People of the Philippines vs. Horst Franz Ellert") for Light
Threats, wherein Ellert was duly convicted and sentenced by the court to suffer
imprisonment ranging from five (5) months and eleven (11) days as minimum, to
six (6) months as maximum of Arresto Mayor, and to pay the cost.[6]
To refute each and every allegation made in
the complaints, respondent judge points out that insofar as the residence issue
is concerned, he believed that, at the time the Information in Criminal Case
No. 97-07-CR-161 was filed in court, Ellert’s residence was at Barangay Tabu,
Dulag, Leyte; thus it was the same address he wrote when he executed his affidavit-complaint
to support the criminal case against herein complainant. He did not know that
the complainant has already settled elsewhere. In fact, this issue of residence
was made the basis of another complaint against him.
Respondent judge states that it is highly
incredible for him to state in open court during the hearing of the
aforementioned criminal case that he did not know Barangay Tabu, Dulag, Leyte.
There was an error in the transcription of his testimony, for what he said and
meant was that he did not know the exact place in the barangay where
complainant’s house was situated. While respondent does know the Barangay
Chairman of Tabu, Dulag, Leyte, this person is not his "compadre" as
claimed by Ellert.
Ellert, in his complaint, alleges that
during the hearing of the criminal case, respondent judge stated that it was
because of his (Judge Galapon) letter that the bank returned the amount in the
Deed of Sale. In refutation, Ellert presented a Certification by the
Development Bank of the Philippines to the effect that respondent never
appeared before the DBP nor wrote a letter relative to the property acquired by
a Mrs. Carlota Cabacang.
Respondent judge thus contends that as will
be noticed in the transcript, he did not mention the property of Mrs. Carlota
Cabacang. This is because he was not referring to her land, as he did not know
if Mrs. Cabacang owns a piece of land. Instead, he was referring to a land
subject of Civil Case No. 230 entitled "Development Bank of the
Philippines, represented by Manuel G. Braseleno and Lualhati Ellert vs.
Salvador Corsino" pending before the Municipal Trial Court at Dulag,
Leyte.
According to the respondent, it is not
important whether or not the DBP received the letter adverted to. The fact is
the bank returned the money to Lualhati Ellert as shown in the Order dated
February 26, 1990. As admitted by the DBP, thru its lawyer, the sale was indeed
rescinded. This is a clear case of misinformation resorted to by Ellert.
In all the complaints wherein complainant
Ellert mentioned Criminal Case No. 97-07-CR-161, he never stated that
respondent judge was the private complainant therein nor that he was convicted
by the court.
As to the charge that respondent judge
administered the oath in the Verification portion of the Answer of respondents
Marina Roca and Odeth Roca in DARAB Case No. VIII-159-L-91, respondent judge
candidly admits it. He believes that there was nothing wrong nor was there any
abuse of authority in administering such oath. There never was any malice or
bad faith attending such act. He honestly believes that merely administering an
oath in the jurat is not actionable by any administrative sanction.
Judge Galapon declares that the series of
complaints are the rantings of a depraved mind of a person who is now in
serious jeopardy of going to prison, and who faces deportation as he is now a
convicted felon. Although complainant Ellert appealed his conviction, there is
the danger that his conviction will be sustained.
Respondent judge furthermore says that
Ellert is an alien, whom the country can do without. He has abused all the laws
from which he seeks protection by continuously and relentlessly harassing not
only respondent judge, but also public officials who disagree with him and do
not give in to his demands.
Judge Galapon hopes that the complainant
would be condemned by this Court in the strongest words possible that he will
no longer pose a threat and can no longer continue the ceaseless vilification
and harassment against him. Likewise, respondent hopes that the lawyer helping
the complainant in the harassment campaign against him would be sanctioned.
After all, this lawyer, being an officer of the court, should shield the courts
from fabricated and malicious harassment.
Respondent laments that the time, effort and
money devoted to answering the numerous malicious and fabricated complaints
diminished, to a great extent, the time he could have devoted fruitfully to
studying and deciding cases, especially since he has, for the past three and a
half years, been the Acting Judge of the Municipal Trial Court at Tolosa,
Leyte.
Judge Victorio L. Galapon, Jr. prays for the
dismissal of the complaints filed by complainant Horst Franz Ellert.
The act of notarizing a pleading in a case
which is not pending before the sala of Judge Victorio L. Galapon, Jr.
constitutes an unlawful practice of law. Deputy Court Administrator Bernardo T.
Ponferrada, in his memorandum dated March 13, 2000,[7] thus recommended that the respondent be ordered to
pay the fine of Five Thousand Pesos (P5,000.00) with a warning that
repetition of similar acts in the future will be dealt with more severely.
We find respondent guilty of the charge
against him, that he engaged in unauthorized notarial work.
Circular No. I-90 specifically delineates
the power of Municipal Trial Court Judges and Municipal Circuit Trial Court
Judges to act as notaries public ex officio, thus:
"Municipal
trial court (MTC) and municipal circuit trial court (MCTC) judges are empowered
to perform the functions of notaries public ex officio under Section 76 of
Republic Act No. 296, as amended (otherwise known as the Judiciary Act of 1948)
and Section 242 of the Revised Administrative Code. But the Court hereby lays
down the following qualifications on the scope of this power:
"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).
"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."[8]
Judges of the Municipal Trial Courts or
Municipal Circuit Trial Courts may perform their functions as notaries public ex-officio
only in the notarization of documents connected with the exercise of their
official functions. They may not undertake the preparation and acknowledgment
of documents which bear no relation to the performance of their functions as
judges.
Undoubtedly, the Answer filed with the DARAB
that was notarized by respondent judge is a perfect example of a document which
bears no relation to the performance of Judge Galapon’s functions as a judge.
Since respondent's actuation of notarizing the aforestated pleading is not in
connection with the exercise of his official duties, consequently, he acted
beyond the scope of his authority as notary public ex-officio.
Circular No. 1-90 clearly provides that it
is only when there are no lawyers or notaries public in the municipality or
circuit that an MTC and MCTC judge may act as a notary public provided that,
the notarial fees are turned over to the government and a certification is made
in the notarized documents attesting to the lack of any lawyer or notary public
in such municipality or circuit.
In the case at bar, there is no showing that
there was no lawyer or notary public in Dulag, Leyte. Therefore, respondent
judge’s action as a notary public cannot qualify as an exception to Circular
No. 1-90.
The defense interposed by the respondent
that he sees nothing wrong with what he has done, nor that he abused his
authority when he notarized the subject pleading, is unmeritorious. Judge
Galapon should know what the duties of a judge acting as an ex-officio notary
public are, and, if he was uncertain of what they are, he should have first
verified from the Office of the Court Administrator the extent of his authority
to notarize documents.
As to the charge of False Testimony and
Perjury, the complainant is advised to institute a criminal case with the
proper trial court.
In Circular No. 30-91 which outlined the
Guidelines on the Functions of the Office of the Court Administrator, we read:
I. ...General Considerations
A. ...The
Supreme Court exercises administrative supervision over all lower courts. In
the discharge of its administrative functions, the Court is assisted by the
Court Administrator and the Deputy Court Administrators (P.D. No. 828, as
amended by P.D. No. 842). The Court thus acts through the court administrators
in the exercise of its administrative functions. (See A.M. No. 343-RTJ In Re:
Regional Trial Court Judge of Balanga, Bataan).
xxx
C. ...The
work attended to by the Office of the Court Administrator, either on its
responsibility or with the approval of the Court En Banc, may be
classified into the following categories:
1. ...Judicial
discipline of lower court justices, judges and personnel;
xxx
II. ...Matters to be attended by the Court En Banc
A. ...Disciplinary
Matters
1....Justices and Judges --
Judicial discipline matters involving the justices and judges of all
lower courts (Court of Appeals, Sandiganbayan, Court of Tax Appeals, Regional
Trial Courts, Metropolitan Trial Courts, MTCC, MTC, Shari’a Courts) filed with
the Office of the Court Administrator or the lower courts shall be immediately
referred to the Court En Banc for appropriate action.
The Office of the Court Administrator, as
the name suggests, deals mainly with administrative functions of the courts. It
can act on matters concerning the judicial discipline of judges of the MTC,
among others. Criminal cases are out of its hands.
WHEREFORE, for unauthorized notarization which constitutes an
unlawful practice of law, respondent Judge Victorio L. Galapon, Jr. of the
Municipal Trial Court at Dulag, Leyte is hereby ordered to pay a FINE of Five
Thousand Pesos (P5,000.00). He is further warned that a repetition of
the same or similar infractions will be dealt with more severely.
SO ORDERED.
Mendoza, Quisumbing, and De Leon, Jr., JJ., concur.
Bellosillo, J., (Chairman), on official leave.