FIRST DIVISION
|
TAN TIONG
BIO a.k.a. HENRY TAN, Complainant, - versus - ATTY. RENATO
L. GONZALES, Respondent. |
A.C. No. 6634
Present: PUNO,
C.J., Chairperson, SANDOVAL-GUTIERREZ,
AZCUNA, and
GARCIA, JJ. Promulgated: August
23, 2007 |
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D E C I S I O N
GARCIA,
J.:
Under
consideration is this complaint[1]
for disbarment filed by Tan Tiong Bio, a.k.a. Henry Tan, against Atty. Renato
L. Gonzales for allegedly notarizing a conveying deed
outside the territory covered by his notarial commission and without requiring
the personal presence before him of the signatories to the deed before notarizing
the same, in violation of the Notarial
Law and the lawyer’s oath.
As records reveal, complainant purchased several parcels of land at
the Manila Southwoods Residential Estates (Southwoods, for short), a mix
residential-commercial complex situated in Carmona, Cavite owned/operated by Fil-Estate
Golf and Development, Inc. (FEGDI) and Fil-Estate Properties, Inc. (FEPI). FEPI
has its office at
As
complainant would allege in his Complaint
Affidavit dated P2,068,523, representing the full purchase
price for Lot 10 and after he had signed a deed with the space for the title
number and technical description left in blank, complainant repeatedly asked
for but was not able to secure a certificate of title for the same or a refund
of his payment. The rebuff, according to complainant, impelled him to file a case
for estafa with
the Office of the City Prosecutor of Pasig City.
In connection
with the estafa charge, so complainant claims, Ms. Bondoc, signatory (for FEGDI as vendor) to Deed 1108, executed
a counter-affidavit therein stating that she had not personally met nor transacted
with the complainant either with respect to the negotiations for the sale of the land
covered by TCT No. T-427206 nor during the execution of Deed 1108.
Complainant would add, however, that Ms. Bondoc admitted that she and the
complainant did sign the said deed of sale, but at different times and in
different places, and not in each other’s presence,[4]
like other “signed hundreds of deeds (of sale) over other documents for our
behalf of the President [of Fil-Estate] with buyers [she] had never (even)
met.”[5]
It is on the
basis of Ms. Bondoc’s foregoing statements that complainant initiated the
present disbarment case before the Integrated Bar of the Philippines (IBP), it
being his posture that respondent Gonzales notarized Deed 1108 without requiring
him, or Ms. Bondoc, to appear and acknowledge before him the due and voluntary
execution thereof, a practice not only violative of the Notarial Law, but
detrimental to his interests and those similarly situated as well.
Respondent,
in his Verified Answer,[6]
was less than categorical on the matter of whether or not complainant and Ms. Bondoc,
vis-à-vis Deed
1108, indeed appeared before him and attested to the contents and the truth of
what are stated in the deed. Instead, he alleged as follows:
10. Because of the hundreds of documents I have
notarized, I do not recall with absolute certainty the details of the
notarization ceremony of the Deed of Absolute Sale in question. Nevertheless,
what I do know is that I have personally met both complainant and Atty.
Bondoc and notarized documents which they had acknowledged. Based on the
admissions of both the complainant and Atty. Bondoc that they have not
personally met, it appears that in notarizing the Deed of Absolute Sale in
question, both complainant and Atty. Bondoc appeared before me and signed, but
at different times.
11. As a matter of practice, I require the
personal appearance of all parties who seek to have deeds of sale notarized.
However, the parties need not necessarily sign and acknowledge their acts in
one another’s presence. xxx
xxx xxx xxx
13. Thus, complainant cannot dispute that both
signatories to the Deed of Absolute Sale personally appeared before me ….,
albeit at different times. That is all that is required by law. The fact that
the signatories to the Deed signed and acknowledged the same on different
occasions is of no moment, and certainly does not constitute misconduct on my
part.
x x x x x x x
x x
15. The only basis for the charge of
professional misconduct against me is that I allowed the signatories to
acknowledge their signatures on the Deed of Absolute Sale at different times.
However, complainant fails to cite any law or rule which obliges a notary
public to require the parties to the instrument to simultaneously
appear before him, as in fact, there is none. Thus, even if I did not require
complainant and Atty. Bondoc to personally appear before me at the same time, I
cannot be faulted for such, as I am not required to do so.[7]
The
respondent parlays in his answer the idea of laches, arguing that the
transaction in question took place in 2001, while complainant initiated the disbarment
charge only in November 2003.
At the
preliminary conference before the IBP Commission on Bar Discipline (Commission),
complainant and respondent entered into the following stipulation of facts, to
wit:
[T]he Deed of
Absolute Sale No. 1108 … was duly executed by Mr. Henry Tan and Atty. Alice
Odchigue-Bondoc as authorized signatory of the seller; that the subject
document was notarized by respondent as document no. 367, page no. 74, book no.
8, series of 2001 of his notarial register; that respondent admits that his
notarial appointment covers Quezon City and that the subject document was
notarized in Pasig City, specifically, at the Renaissance Tower; and that
the parties admit that Atty. Alice Odchigue-Bondoc and Henry Tan Tan were not
present at the same time when the subject document was notarized xxx
(Underscoring added.)
After due hearings,
Investigating Commissioner Doroteo B. Aguila submitted his REPORT AND RECOMMENDATION dated August 27, 2004, which, as approved
by the IBP Director for Bar Discipline, was forwarded to the Court.
In the report, the Commission recommended that
respondent be adjudged liable and penalized for violating the rule proscribing
one from acting as a notary outside the area covered by his commission, but
recommended the dismissal of the complaint insofar as it charges the respondent
for notarizing a document without the personal appearance before him of the
party-signatories thereto.
We agree.
As aptly found
by the Investigating Commissioner, delving on the second part of the
recommendation, complainant failed to substantiate with competent proof his
allegations that respondent performed the notarial procedure on Deed 1108 without his (complainant) being present to
acknowledge the due execution thereof. Being
a notarized document, Deed
1108 and the solemnities attending its execution are disputably presumed
to be regular.[8] Absent
convincing evidence to the contrary, the certification in Deed 1108 that the vendor
and the vendee personally appeared before the respondent to acknowledge the
same must be upheld. As
we said in Vda. De Rosales v. Ramos,[9]
when a notary certifies to the due execution and delivery of the document under
his hand and seal, the document thus notarized is converted into a public
document. To us and to the Investigating Commissioner,[10]
the declaration of Ms. Bondoc in her counter-affidavit before the prosecutor’s
office is not the clear and convincing evidence required to overturn the
presumption of regularity. Ms. Bondoc’s declaration that she had not met or
dealt directly with Southwoods buyers does not necessarily prove that such
buyers and FEPI’s representatives in the purchase did not in fact appear before
the notary public to acknowledge the fact of contract execution before him. If
at all, Ms. Bondoc’s declaration simply means that she has not personally met
the buyers, or, with like effect, that she, as representative of the seller,
has not appeared together with the buyers before the notarizing officer. As it
were, the Notarial Law is silent as to whether or not the parties to a
conveying instrument must be present before the notary public at the same time when they acknowledge its
due execution.
There can
be quibbling, however, that the respondent breached the injunction against
notarizing a document in a place outside one’s commission. As reported by the
Investigating Commissioner, respondent acknowledged that from
While
seemingly appearing to be a harmless incident, respondent’s act of notarizing
documents in a place outside of or beyond the authority granted by his notarial
commission, partakes of malpractice of law and falsification. While perhaps not
on all fours because of the slight dissimilarity in the violation involved,
what the Court said in
Nunga v. Viray [13] is very much apropos:
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.”
It cannot
be over-emphasized that notarization is not an empty, meaningless, routinary
act. Far from it. Notarization is invested with
substantive public interest, such that only those who are qualified or
authorized may act as notaries public.[14]
Hence, the requirements for the issuance of a commission as notary public are
treated with a formality definitely more than casual.[15]
For all legal intents and purposes,
respondent, by performing through the years notarial acts in
To be sure, respondent cannot
plausibly seek refuge in the complainant’s alleged delay in filing the instant
complaint for disbarment. He cannot, as a means to defeat the present charge,
invoke the complainant’s ill-motive in filing said complaint. We have, time and
again, held that the Court’s disciplinary authority cannot be defeated or
frustrated by a mere delay in filing the complaint, or by the complainant’s
motivation to do so. The practice of law is so delicately affected by public
interest that it is both a right and a duty of the State to control and
regulate it in order to protect and promote public welfare.[16]
Indeed, we have held that an administrative complaint against a member of the
bar does not prescribe.[17]
Needless to
stress, respondent cannot escape from disciplinary action in his capacity as
member of the bar and as a notary public. His proven transgression does not,
however, merit disbarment, as urged by the complainant. This most severe form
of disciplinary sanction ought to be imposed only in a clear case of misconduct
that seriously affects the standing and character of a respondent as an officer
of the court and as a member of the bar. Disbarment should never be decreed
where any lesser penalty, such as temporary suspension, could accomplish the
end desired.[18]
The IBP Report recommended the revocation
of respondent’s commission as a notary public (in any jurisdiction), if still
existing, and that he henceforth be
disqualified from being commissioned as such for a period of one (1) year. A one-month suspension from the practice of
law for violation of Canon 1[19]
and Rule 1.01[20] of the
Code of Professional Responsibility is also recommended for the respondent.
In Zoreta v. Simpliciano,[21] the
Court meted the penalty of two (2) years suspension from law practice on Atty. Simpliciano as well as his permanent disqualification from
being commissioned as notary public for notarizing several documents after his
commission as notary public had already expired.
Considering the circumstances and the
extent of respondent’s willful malfeasance, and guided by Zoreta, a penalty higher than that recommended by the IBP
Commission on Bar Discipline ought to be imposed.
WHEREFORE, respondent Atty. Renato L. Gonzales is PERMANENTLY BARRED
from being commissioned as Notary Public.
He is furthermore SUSPENDED
from the practice of law for a period of two (2) years, effective upon receipt
of a copy of this Decision.
Let copies of this Decision be
furnished all the courts of the land, through the Office of the Court
Administrator, as well as the Integrated Bar of the
SO ORDERED.
CANCIO C. GARCIA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
Chairperson
|
ANGELINA
SANDOVAL-GUTIERREZ Associate Justice |
RENATO C. CORONA Associate Justice |
ADOLFO S. AZCUNA
Associate Justice
[1] Dated
[2] Entered as Document No. 367, Page 74, Book 8, series of 2001 in respondent’s Notarial Register.
[3] Rollo, pp. 99-10.
[4]
[5]
[6]
[7]
[8] Mendozona v. Ozamiz, G.R. No. 143370,
[9] Adm.
Case No. 5645,
[10] Citing Lorena v. Encomienda, A.M. No. MTJ-99-1177, February 8, 1999, 302 SCRA 632; Salame v. Court of Appeals, G.R. No. 104373, December 22, 1994, 239 SCRA 366; Causapin v. Court of Appeals, G.R. No. 107432, July 4, 1994, 233 SCRA 615; rollo, page unnumbered.
[11] TSN,
[12] TSN, April 19, 2004, pp. 7-8, 22, 25, 28-29, 39, 42; Respondent’s Position Paper, p. 8, rollo, p. 115.
[13] A.C. No. 4758,
[14] Maligsa
v. Cabanting, A.M. No. 4539,
[15] Heck
v.
[16] Cabanilla
v. Tenorio, A.C. No. 6139,
[17] Supra note 14.
[18]
[19] Canon 1 – A lawyer shall … promote respect for law and legal processes.
[20] Rule 1.01.- A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.
[21] A.C. No. 6492,