Republic
of the
Supreme
Court
SECOND DIVISION
RIZALINA L. GEMINA, A.C. No. 6689
Complainant,
Present:
CARPIO, J., Chairperson,
BRION,
- versus - PERALTA,*
PEREZ, and
MENDOZA,
JJ.
Promulgated:
ATTY. ISIDRO S. MADAMBA, August 24, 2011
Respondent.
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D E C I S I O N
BRION, J.:
We review Resolution No. XVIII-2008-101
dated
The
complainant alleged that she is an heir of the registered owner of several
parcels of land located in
1. Waiver of Rights & Interest
2. Affidavit of Buyer/Transferee
3. Deed of Adjudication[3] & Sale
4. Affidavit of Non-Tenancy
5.
Deed of Absolute
The complainant alleged that the
Waiver of Rights and Interests was submitted by Eugenio to the Department of
Agrarian Reform. This document shows that it was entered in the respondents
Notarial Register as Doc. No. 2283, Page No. 252, Book No. VIII, Series of
2003. However, when she went to the
Office of the Clerk of Court (OCC),
Regional Trial Court, Isabela, to request for a copy, she found out that Doc.
No. 2283, Page No. 252, Book No. VIII, Series of 2003 was an Affidavit of
Buyer/Transferee allegedly executed by the Spouses Efren Alonzo and Imelda
Alonzo on
The complainant also asked for a
certified true copy of a Deed of Adjudication and
In another unlawful sale of a parcel
of land, an Affidavit of Non-Tenancy was notarized by the respondent. It was entered
in his Notarial Register as Doc. No. 2448, Page No. 276, Book No. VIII, Series
of 2004. The affidavit referred to a
Deed of Sale involving a 2,500-square meter property. The Deed of Sale was
notarized by the respondent on
In his Comments and Compliance dated
In a resolution dated
In the position paper she submitted
to the IBP, the complainant reiterated her charges against the respondent,
further stating that as a member of the Philippine Bar, the respondent allowed
himself to be used as a Notary Public to illegally enable third parties to
claim rights over properties to which the complainant has hereditary rights. By
notarizing documents through false representations, without the signatories
personally present before him as required under the Notarial Law, the
respondent should be held guilty of dishonesty and conduct unbecoming of a
member of the Philippine Bar.[9]
The respondent likewise reiterated in
his position paper[10] his
explanations contained in his comment submitted to this Court -
Respondent does not deny having affix[ed] his signatures in the subject documents but he was never a participant in the alleged unlawful sale. His participation is limited to the affixing [of] his signature in the subject documents. The alleged manipulation was committed by her [sic] clerk[-]secretary who enjoyed his trust and confidence having been in said position for almost two decades. Said clerk-secretary is responsible for the preparation and entry of the documents in the Notarial Book. As such, he has all the chance to do [the] things he wanted to do, which of course respondent has no least suspicion to suspect him to do illegal and unlawful acts to his Notarial Register.
When respondent was still strong, he personally prepare [sic] document and personally do [sic] the entry of his Notarial Documents in his Notarial Book, but in the early [year] of 1999, his sickness was aggravated and he became insulin dependent. This necessarily weakens his body and eyesight. And so he has no choice except to trust said secretary-clerk for the preparation and entry of notarial documents in his notarial register.
On
In
her Complaint, complainant alleged that she is an heir of a registered owner of
some parcels of land in
Rule
130, Section 14 of the Rules of Court provides that Entries in official
records made in the performance of his duty by a public officer of the
An attorney enjoys the legal presumption that he is innocent of the charges preferred against him until the contrary is proved and that as an officer of the court he has performed his duties in accordance with his oath (Acosta v. Serrano, 75 SCRA 254; Atienza v. Evangelista, 80 SCRA 338). The burden of proof rests upon the complainant to overcome the presumption and establish his charges by a clear preponderance of evidence (Baldoman v. Luspo, 64 SCRA 74; In re De Guzman, 55 SCRA 139).
The IBP Board of Governors, in its
Resolution No. XVIII-2008-101 dated March 6, 2008 adopted and approved
Commissioner Maalas Report and Recommendation, and dismissed the complaint
against the respondent for lack of merit.[12]
We totally disagree with the findings
of Commissioner Maala for the following reasons: First, the IBP cannot inquire into whether the complainant is an
heir of the registered owner of the land. It is not within its authority to
determine whether the complainant has a legal right to the properties involved
in the transactions and to require her to submit proof to that effect. Its
function is limited to disciplining lawyers, and it cannot determine issues of
law and facts regarding the parties legal rights to a dispute. Second, from the respondents own
admissions, it cannot be doubted that he is guilty of the charges against him. His
admissions show that he had notarized documents without reading them and without
ascertaining what the documents purported to be. He had completely entrusted to his secretary
the keeping and the maintenance of his Notarial Register. This eventually
resulted in inaccuracies in the entry of the notarial acts in his Notarial
Register.
The excerpts from the transcript of
stenographic notes taken during the hearing held on
MR. GEMINA:
Your Honor, itong Affidavit of Discrepancy is not an Affidavit of Discrepancy. Minamanipulate niya yong ano This is a Deed of Sale. Pinalitan niya yong ano, eh, document number. This is a Deed of Sale pertaining to the property Noong sinita na namin siya pinalitan naniya, the same number pero iba na ang pangalan. Affidavit of Discrepancy na ang pinalabas. The same document number, page 3, number 8. And we were able to get a copy of these documents.
COMM. PANTALEON:
You can submit that also.
ATTY. MADAMBA:
That is really true, Your Honor, because I have said I am not the one anymore preparing my reports on notarial. I relied on my secretary. So everything there will present to me and I sign it believing that all are clear.
COMM. PANTALEON:
So you admit that particular allegation.
ATTY. MADAMBA:
Yes, that I have notarized that two documents.
MR. GEMINA:
Not only that, Your Honor, there are several documents we can prove.
ATTY. MADAMBA:
Well, I have already submitted.
The Court is likewise convinced that the
respondent notarized the Waiver of Rights and Interests executed by one Juanito
Peniera without asking for proof of identity, relying merely on assurances and
his belief that the person before him was a wise man.[14] It
was shown during the hearing on
COMM. PANTALEON:
Right now, what is your evidence to show that this person did not personally appear before the respondent?
MR. GEMINA:
Can I talk, your Honor?
COMM. PANTALEON:
What is your name?
MR. GEMINA:
I am Candido Gemina, Jr., husband of the complainant. The signature of Juanito Peniera was a forgery. In fact, we also filed a case against Francisco Eugenio and he was sentenced to jail on that matter.
COMM. PANTALEON:
On this document?
MR. GEMINA:
Yes, on that document.
COMM. PANTALEON:
Why do you say that the signature of Juanito Peniera in this case was forged?
MR. GEMINA:
He testified in court in
COMM. PANTALEON:
Juanito Peniera testified in court?
MR. GEMINA:
Yes, sir.
The IBP resolution, based wholly on
Commissioner Maalas Report and Recommendation, totally missed and disregarded
the submitted evidence and the respondents testimony during the hearing of the
complaint. The IBP apparently had
treated the respondent with exceptional leniency. In our view, the respondents
age and sickness cannot be cited as reasons to disregard the serious lapses he
committed in the performance of his duties as a lawyer and as a notary public.
The inaccuracies in his Notarial Register entries and his failure to enter the
documents that he admittedly notarized constitute dereliction of duty as a
notary public. He cannot escape liability by putting the blame on his secretary.
The lawyer himself, not merely his secretary, should be held accountable for
these misdeeds.[16]
A notary public is empowered to
perform a variety of notarial acts, most common of which are the
acknowledgement and affirmation of documents or instruments. In the performance of these notarial acts,
the notary public must be mindful of the significance of the notarial seal
affixed on documents. The notarial seal converts a document from a private to a
public instrument, after which it may be presented as evidence without need for
proof of its genuineness and due execution. Thus, notarization should not be treated
as an empty, meaningless or routinary act. A notary public exercises duties
calling for carefulness and faithfulness. Notaries must inform themselves of
the facts they certify to; most importantly, they should not take part or allow
themselves to be part of illegal transactions.[17]
Canon 1 of the Code of Professional
Responsibility requires every lawyer to uphold the Constitution, obey the laws
of the land, and promote respect for the law and legal processes. The Notarial
Law and the 2004 Rules on Notarial Practice, moreover, require a duly
commissioned notary public to make the proper entries in his Notarial Register
and to refrain from committing any dereliction or any act which may serve as cause
for the revocation of his commission or the imposition of administrative
sanctions.[18]
Under the 2004 Rules on Notarial
Practice, the respondents failure to make the proper entry or entries in his
Notarial Register of his notarial acts, his failure to require the presence of
a principal at the time of the notarial acts, and his failure to identify a
principal on the basis of personal knowledge by competent evidence are grounds
for the revocation of a lawyers commission as a notary public.[19]
WHEREFORE, the
Court finds respondent Atty. Isidro S. Madamba GUILTY of violating the Notarial Law, the 2004 Rules on Notarial
Practice and the Code of Professional Responsibility, and hereby orders the REVOCATION of his notarial commission,
if still existing. He is further SUSPENDED
indefinitely from reappointment as a Notary Public. Considering the seriousness
of his violations, he deserves disbarment from the practice of law but taking
into account his old age and sickness, the Court, for humanitarian reasons,
hereby orders his SUSPENSION from
the practice of law for a period of one (1) year.
Let copies of this Decision be
furnished the Integrated Bar of the
SO ORDERED.
ARTURO D. BRION
Associate Justice
WE
CONCUR:
|
ANTONIO T. CARPIO Associate Justice Chairperson |
|
|
DIOSDADO M. PERALTA
Associate Justice |
JOSE Associate Justice |
JOSE CATRAL
Associate Justice
*
Designated additional Member vice Associate Justice Maria Lourdes P.A. Sereno
per Special Order No. 1067 dated
[1] Rollo, p. 123.
[2]
[3] Referred to as Adjunction in the complaint.
[4] Rollo, p. 11.
[5]
[6]
[7]
[8]
[9]
[10]
[11]
[12] Supra note 1.
[13] Rollo, pp. 82-84.
[14]
[15]
[16] Aquino v. Pascua, A.C. No. 5095,
November 28, 2007, 539 SCRA 1; and Agagon
v. Bustamante, A.C. No. 5510,
[17] Agagon v. Bustamante, supra.
[18] Ibid.
[19] Section 1, Rule 41, 2004 Rules on Notarial Practice.