FIRST DIVISION
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GRACE DELA
CRUZ-SILLANO, Complainant, - versus - Respondent. |
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A.C. No. 5851 Present: PUNO, C.J., Chairperson, CARPIO, CORONA, AZCUNA, and TINGA,* JJ. Promulgated: November 25, 2008 |
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D E C I S I O N
CARPIO, J.:
The Case
This is a
complaint filed by Grace Dela Cruz-Sillano (complainant) against Atty. Wilfredo
Paul D. Pangan (respondent) for disbarment for having
conspired in forging a Special Power of Attorney.
The Facts
The facts in
the Report and Recommendation of the Commission on Bar Discipline of the Integrated
Bar of the Philippines (IBP) read as follows:
Respondent
is accused of forging the signature of an affiant [Zenaida
A. Dela Cruz] in a Special Power of Attorney
(SPA). The affiant in this SPA is the
mother of complainant. The SPA appears
to have authorized a certain Ronaldo F. Apostol to “process, claim, receive and encash
checks representing my (affiant’s) benefits arising from my insurance policy
with the Insular Life Assurance Company Ltd.”
Consequently, respondent also stands accused of notarizing a document in
the absence of the affiant. Complainant
specifically alleges:
“That on March 15, 1999, Atty. Pangan conspiring and confederating with the other accused
R.F. Apostol falsified and forged a document
denominated as a Special Power of Attorney (by forgering
[sic] the signature of my deceased mother and notarizing the same), which
empowered the accused Ronaldo F. Apostol
to process, receive claim and encash check
representing benefits arising from the insurance policy of my deceased mother Zenaida Apostol de la Cruz (of
which I am the beneficiary). The accused
successfully encash [sic] the check in the amount of P71,033.53 to my damage and prejudice.”
The
charge of forgery is premised on complainant’s claim that when the SPA was notarized
on 15 March 1999, the affiant therein was bedridden in the United States, who
was sick with malignant cancer of the lungs, and that, in fact, the alleged
affiant died on 27 May 1999 also in the United States. Complainant specifically alleges:
“The accused being both blood
relatives were well aware that my deceased mother who resides in the U.S. of A
has been bedridden for several months as she was diagnosed to be suffering from
Malignant Cancer of the Lungs, prior to her death on
In
his comment Atty. Pangan claims that the “act of
notarizing was done in accordance with law and practice.” Moreover, respondent emphasized that:
“4. Respondent has no participation in the
submission and processing of the insurance proceeds. Respondent Notary Public
could not have made use of the
alleged falsified document. He cannot be
considered as having benefited from the
falsified document as he was never a
grantee nor a beneficiary [in] said document.
He did not benefit from the insurance proceeds. He
never
conspired with anyone in the commission of any crime much less has taken
advantage of his position as notary public to defraud any person or entity.”[1]
The IBP’s Report and Recommendation
In a Report[2] dated
In a Resolution[3] dated
Respondent filed a motion for
reconsideration dated
The Ruling of the Court
We sustain the
findings of the IBP and adopt its recommendations. Respondent violated his oath as a lawyer and
the Code of Professional Responsibility when he made it appear that Zenaida A. Dela Cruz personally
appeared before him and executed a Special Power of Attorney in favor of Ronaldo Apostol.
Respondent Notarized a Special Power of Attorney
in the Absence of the Affiant
Section 1 of
Public Act No. 2103 or the Notarial Law provides:
Sec. 1. (a) The acknowledgement shall be before a notary
public or an officer duly authorized by law of the country to take
acknowledgements of instruments or documents in the place where the act is
done. The notary public or the officer
taking the acknowledgement shall certify that the person acknowledging the
instrument or document is known to him and that he is the same person who executed it, acknowledged that the same is his
free act and deed. The certificate shall
be made under the official seal, if he is required by law to keep a seal, and
if not, his certificate shall so state.
The Code of
Professional Responsibility provides:
Canon 1. A lawyer shall
uphold the Constitution, obey the laws of the land and promote respect for the
law and legal processes.
Rule 1.01. A lawyer
shall not engage in unlawful, dishonest, immoral or deceitful conduct.
Moreover, Section 2(b) of Rule IV of
the Rules on Notarial Practice of 2004 emphasizes the
necessity of the affiant’s personal appearance before the notary public:
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 competent evidence of identity as defined by these Rules.
In the present case, respondent does
not deny notarizing the questioned Special Power of Attorney. Moreover, instead
of exculpating respondent, the affidavits presented by respondent prove that
affiant was not in the personal presence of respondent at the time of the
notarization.
Ronaldo F. Apostol, respondent’s co-accused in the criminal complaint
for estafa through falsification filed before the
1. I
was appointed by my Aunt Zenaida Apostol-Dela
Cruz to process and claim her benefits arising from her insurance policy with
the Insular Life Assurance Company, Ltd.;
2. Pursuant
to this authority I caused the preparation of a Special Power of Attorney
authorizing me to process, claim, receive and encash said insurance policy;
3. I
proceeded to the law office of a distant relative – Atty. Wilfredo
Paul D. Pangan to have the said Special Power of
Attorney notarized;
4. Atty.
Pangan was, however, not present in their office so I
asked the staff how I can facilitate the notarization of the said document;
5. The
staff told me that as long as the grantor will appear in their office they can
vouched [sic] the due execution of the document and they will just include the
documents among the “for signature” so that Atty. Pangan
can sign them when he comes back from a hearing;
6. I
left the law office and fetch [sic] an aunt of mine. When I returned to the office, I told the
staff that my aunt is too sick to alight from the car;
7. Being
a known relative of Atty. Pangan in the law office I
was able to convince the staff that said aunt was indeed the one who executed
the document;
8. The
following day I returned to the law office and the staff gave me the notarized
Special Power of Attorney;
9. That
I have not paid for said notarization as I have been engaging the services of
Atty. Pangan for free;
10. When
a feud between me and my cousin who is in the United States developed and their
[sic] was a lack of communication between us, I was surprised that the matter
of claiming the insurance policy was brought when almost everybody in our
immediate family knew that I caused the claiming of the said insurance and hold
it in trust until we can communicate with my cousin;
11. In
fairness to Atty. Pangan, he has nothing to do with
whatever wrongdoings I have committed in the claiming of the insurance policy;
12. The
claiming was done in good faith as no one else in the immediate family can
process the same;
x x x.[4]
(Emphases added)
Laila N. Mesiano and Manolito F. Farnal, members of the staff of respondent’s law office,
also executed a joint affidavit in ostensible support for respondent.
2. Among
our duties is to
prepare notarial documents for
signature of our two (2) notaries public, Atty. Tiburcio
A. Edaño, Jr. and Atty. Wilfredo
Paul D. Pangan;
3. The
two are very strict in requiring the personal appearance of signatories to
documents especially in documents requiring acknowledgments;
4. Even
those documents which were left by clients for notarials
and those which we brought to them while they were having hearing in the nearby
Hall of Justice were notarized only if we will vouched [sic] that the said
client indeed personally appeared in our office and executed the said document;
5. This
practice in notarizing documents are relaxed only in
cases where mere jurat were required;
x x x.[5]
Respondent’s comment gives us an
insight as to how the present administrative complaint arose:
6. If
there was fraud, it may not have even been committed in the execution of the
Special Power of Attorney nor in the processing of the claim but in the way the
insurance proceeds was shared. Will complainant question the execution of
the alleged document had the grantee turned over to her the insurance proceed
[sic]? If respondent has conspired with
said grantee in the commission of the fraudulent act, he would not have
notarized the document and let other notary public do the notarizing.
7. Respondent has always accommodated his relatives in their legal problems for free. The imputation upon him of any wrong doings in his practice as notary public is only a result of the existing feud between the heirs of the deceased and her relatives.[6]
In his
defense, respondent objected to the evidence presented against him thus:
All
the exhibits were not properly identified and their execution
were not proven by the complainant.
In
fact the original nor a certified true copy of the questioned Special Power of
Attorney was never presented. The complainant never appeared to identify
her complaint affidavit. The Certificate
of Death is a mere xerox copy. The alleged record of the
criminal case allegedly filed were mere xerox
copies and the alleged passport was not properly identified by the issuing
authority.
In
view if the foregoing, it is respectfully submitted that the said exhibits are
inadmissible in evidence.
The
purpose for which the said exhibits was [sic] being
offered is likewise being objected to.
The
records of the criminal case does [sic] not prove that the accused have
committed the crime charged. They are
presumed innocent until proven otherwise.
The
death certificate of the alleged signatory does not show that she could not
have signed the alleged document as the face of the questioned document showed
that it was executed before the alleged passing of the signatory.
The
passport does not readily show that the signatory could not have signed the
said document nor will it conclusively tell that the signatory could not have
signed the said document.
The
hospital records does [sic] not show that the
signatory could not have possibly executed the said document.
The
check voucher does not show that the herein respondent was not a party thereto.
The questioned Special Power of Attorney alone does not prove that the signature appearing thereon in [sic] not the signature of the signatory.[7]
The complaint before us is an
administrative case where a fact is deemed established if it is supported by
substantial evidence, or that amount of relevant evidence which a reasonable
mind might accept to justify a conclusion.[8] Aside from his lame objections, respondent
does not categorically deny notarizing the questioned Special Power of Attorney
in the absence of the affiant. The
seriousness of respondent’s omission is not lessened by his claim that he “has
always accommodated his relatives in their legal problems for free.”
The
Court is aware of the practice of not a few lawyers commissioned as notary
public to authenticate documents without requiring the physical presence of
affiants. However, the adverse
consequences of this practice far outweigh whatever convenience is afforded to
the absent affiants. Doing away with the
essential requirement of physical presence of the affiant does not take into
account the likelihood that the documents may be spurious or that the affiants
may not be who they purport to be. 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 purpose of this requirement is to enable
the notary public to verify the genuineness of the signature of the
acknowledging party and to ascertain that the document is the party’s free act
and deed.[9]
Notarization
is not an empty, meaningless, routinary act. On the contrary, it is invested with
substantial 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.
As
a lawyer commissioned to be a notary public, respondent is mandated to
discharge his sacred duties which are dictated by public policy and, as such,
impressed with public interest. Faithful
observance and utmost respect of the legal solemnity of an oath in an
acknowledgment or jurat is sacrosanct.[10]
Respondent’s
failure to perform his duty as a notary public resulted not only in damaging
complainant’s rights but also in undermining the integrity of a notary public
and in degrading the function of notarization.
Hence, respondent should be liable for such negligence, not only as a
notary public but also as a lawyer.[11] Respondent must accept the consequences of
his professional indiscretion. Thus,
under the facts and circumstances of the case, respondent’s notarial
commission should not only be suspended but respondent must also be suspended
from the practice of law.
WHEREFORE,
the Court finds respondent Atty. Wilfredo Paul D. Pangan GUILTY of violating the Code of Professional
Responsibility. Accordingly, the Court SUSPENDS
him from the practice of law for one year; REVOKES his incumbent notarial commission, if any; and PROHIBITS him from
being commissioned as a notary public for one year, effective immediately, with
a stern warning that a repetition of the same or similar offense 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
attorney. Likewise, copies shall be furnished
to the Integrated Bar of the
SO ORDERED.
ANTONIO
T. CARPIO
Associate
Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
Chairperson
RENATO C. CORONA ADOLFO S. AZCUNA
Associate Justice
Associate Justice
DANTE O. TINGA
Associate Justice
* As replacement of Justice Teresita J. Leonardo-De Castro who is on official leave per Special Order No. 539.
[1] Rollo, pp. 80-81.
[2]
[3]
[4]
[5]
[6]
[7]
[8] Sec. 5, Rule 133, Rules of Court.
[9] Bernardo
v. Atty. Ramos, 433 Phil. 8, 16 (2002).
[10] Arrieta
v. Llosa, 346 Phil. 932, 937-938 (1997).
[11] Follosco v. Atty. Mateo, 466 Phil. 305, 313 (2004).