Republic of the
Supreme Court
SECOND DIVISION
|
WILLIAM HECTOR MARIA, Petitioners,
- versus -
ATTY. WILFREDO R. CORTEZ, Respondents. |
A.C. No. 7880
Present: CARPIO, J., Chairperson, BRION, PEREZ, SERENO,
and REYES,
JJ. Promulgated: April
11, 2012 |
x----------------------------------------------------------------------------------------x
DECISION
REYES, J.:
This is an administrative complaint[1]
filed by William Hector Maria (William) against respondent Atty. Wilfredo R.
Cortez for having notarized a Special Power of Attorney (SPA) without verifying
the authenticity of the signatures contained therein in violation of the
Notarial Law.
The
factual antecedents are as follows:
Complainant William is a citizen of
Being
confronted with the issue on ownership, Emmanuel presented an SPA allegedly
signed by Gundaway and Namnama, appointing him as their attorney-in-fact in all
transactions pertaining to the subject properties. The SPA was notarized by the respondent and
entered in his Notarial Register as Document No. 1553, Page No. 313, Book No.
XV, Series of 2005.[2]
The
complainant, however, doubted the authenticity of the document as it appeared
to be a mere photocopy. Besides, he
learned that both Gundaway and Namnama were living abroad, who allegedly never
came home to execute an SPA in favor of Emmanuel. Spouses Biteng, however, promised to send
Spouses Maria a duly signed SPA notarized in the
When
Spouses Maria were back in Australia, they received a communication from the
Philippines together with a General Power of Attorney (GPA) signed by Gundaway
and Namnama executed in Daly City, California, USA; but said document was
allegedly not authenticated by the Philippine Embassy.
In the
early part of 2006, Spouses Maria found out that Transfer Certificates of Title
(TCTs) over the subject properties have already been issued in their names but
were in the possession of the Spouses Biteng who refused to deliver to them due
to some misunderstanding. This prompted
the Spouses Maria to get in touch with Gundaway and Namnama in the
On April
4, 2006, the complainant came back to the
In his
Answer,[3]
the respondent asserted that he had no active participation in the sale nor did
he exert any influence over the parties into agreeing to said sale; that his
two well-trusted secretaries carefully scrutinized every document, specifically
the identities of the parties involved and the authenticity of their
signatures, before they were brought to him for his notarial signature.
The
respondent also averred that the SPA he notarized was not the one used in the
registration of the subject properties, since it was replaced with another one
upon the insistence of Spouses Maria, who eventually signed the two (2) Deeds
of Sale on the same day. He even
asseverated that the complainant should not have allowed his wife to sign the
two Deeds of Sale if he doubted the authenticity of the SPA. More importantly, the respondent stressed
that he was merely being implicated in the feud between the parties regarding
the selling price of the subject properties.
The parties have settled their differences and the titles of the land
were finally turned over to Spouses Maria.
In support thereof, he presented the following documents, to wit: (1)
Affidavit executed by Emmanuel stating that Spouses Maria refused to pay the
price they agreed upon and did threaten to declare the transaction illegal by
filing the instant administrative complaint against the respondent; (2) OCTs Nos.
P-69632,[4] P-69595[5]
and P-69635[6] over the
subject properties, issued in the name of Ernita, married to William;[7]
and (3) the Joint Affidavit[8] of
his secretaries attesting to the respondents integrity as a member of the Integrated
Bar of the Philippines (IBP). The respondent,
thus, prayed for the dismissal of the complaint.
The
instant case was referred to the IBP for investigation, report and
recommendation.
The
Investigating Commissioner set the case for mandatory conference on August 4,
2006 which was reset to September 8, 2006.
However, only the respondent was present. In an Order[9]
dated September 8, 2006, the IBP Commission on Bar Discipline terminated the
conference and ordered the parties to submit their respective Position Papers.
In his report,[10] Investigating
Commissioner Acerey C. Pacheco found the respondent administratively liable for
having notarized the SPA in the absence of the alleged affiants and without
knowing whether or not the signatures appearing therein belong to the supposed
affiants. As it appeared, the signatures
were falsified considering that Gundaway and Namnama were not aware of such
SPA. The Investigating Commissioner
further stated that it was of no moment that such SPA was not utilized in
registering the sale as alleged by the respondent. The mere fact that the respondent notarized
such SPA with an acknowledgement that these affiants have personally appeared
before him as a Notary Public when in fact, they did not, makes the respondent
administratively liable. Thus, the
Investigating Commissioner recommended that the respondent be reprimanded and
denied commission as a notary public for a period of one (1) year.[11]
The IBP
Board of Governors adopted the report and recommendation and issued Resolution
No. XVIII-2007-275 dated November 2, 2007 which states:
RESOLVED to ADOPT
and APPROVE, as it is hereby unanimously ADOPTED and APPROVED, the Report and
Recommendation of the Investigating Commissioner of the above-entitled case,
herein made part of this Resolution as Annex "A"; and, finding the
recommendation fully supported by the evidence on record and the applicable
laws and rules, and for respondents violation of the Rules on Notarial
Practice, Atty. Wilfredo R. Cortez is hereby REPRIMANDED and DISQUALIFIED from being
Commissioned as Notary Public for one (1) year.[12]
A motion
for reconsideration was promptly filed by the respondent, pleading that the
penalty of disqualification from being commissioned as notary public for one
year was too harsh. He reiterated that
he was a victim of circumstances considering that the instant administrative
case merely arose from the misunderstanding between the parties. The respondent alleged that he has not
committed any fraud, dishonesty or deliberate injustice to anyone. For the past twenty years (20) engaging in
notarial works, he has not committed any kind of misconduct which may destroy
his honor and reputation as a member of the legal profession.[13]
In Resolution
No. XIX-2011-399 dated June 26, 2011, the IBP Board of Governors denied the
respondents motion for reconsideration which was duly noted by the Court in a
resolution issued on October 12, 2011.
The
findings of the IBP are well-taken.
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.[14]
Rule IV,
Section 2(b) of the 2004 Rules on Notarial Practice reads:
Section 2. Prohibitions
x x x x
(b) A person shall not perform a notarial
act if the person involved as signatory to the instrument or document
(1) is not in the notarys 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
instant case, it was clearly established that the respondent notarized the
subject SPA without having Gundaway and Namnama personally appear before him as
required by law. In his Answer, he
stated that he merely relies on his two secretaries in scrutinizing all
contents of documents including the authenticity of its signatories before the
documents are brought to him for his notarial signature. This was what actually transpired with regard
to the subject SPA when Emmanuel went to the respondents office to have the
SPA notarized. The secretaries were
familiar with Emmanuel for being a long time Barangay Chairman. With the
secretaries assurance that they knew Emmanuel in person, the respondent
affixed his notarial signature on the SPA without even requiring the physical
presence of Gundaway and Namnama whose names appear as signatories on the SPA.
The
respondents excuse that the SPA was never used or has been replaced during the
registration of the subject lands is of no moment. The fact remains that the SPA was notarized
without complying with the requirements of the law.
It should be noted that a notary
publics function should not be trivialized and a notary public must discharge
his powers and duties which are impressed with public interest, with accuracy
and fidelity.[15] 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.[16]
We agree
with the IBP that the
respondents Answer to the complaint, is virtually an admission that he failed
to exercise the due diligence required of him in the performance of the duties
of notary public. Such negligence can
not be countenanced and definitely warrants sanction from the Court. In imposing the penalty, the Court is mindful
that removal from the Bar should not really be decreed when any punishment less
severe - reprimand, temporary suspension or fine - would accomplish the
end desired.[17]
Considering the circumstances of the
case, particularly the absence of bad faith and the fact that this is the first
infraction lodged against him for the past 20 years, the Court finds that a
suspension of six (6) months as notary public would suffice. The respondent, and for that matter, all
notaries public, are hereby cautioned to be very careful and diligent in
ascertaining the true identities of the parties executing the document before
them, especially when it involves disposition of a property, as this Court will
deal with such cases more severely in the future.[18]
WHEREFORE, premises considered,
respondent Atty.
Wilfredo R. Cortez is hereby REPRIMANDED
and DISQUALIFIED from being commissioned
as Notary Public for six (6) months.
SO ORDERED.
BIENVENIDO L. REYES
Associate
Justice
WE
CONCUR:
ANTONIO T. CARPIO
Associate Justice
|
ARTURO D.
BRION Associate Justice |
JOSE Associate Justice |
MARIA
Associate Justice
[1] Rollo, pp. 2-5.
[2]
[3]
[4]
[5]
[6]
[7]
[8]
[9]
[10]
[11]
[12]
[13]
[14] Sajid D. Agagon v. Atty. Artemio F. Bustamante, A.C. No. 5510, December 10, 2007.
[15] Follosco v. Atty. Mateo, 466 Phil. 305, 312 (2004). (Citation omitted)
[16] Heirs of the Late Spouses Lucas and Francisca Villanueva v. Beradio, A.C. No. 6270, January 22, 2007, 512 SCRA 17, 22.
[17] Rizalina
L. Gemina v. Atty. Isidro
[18] Vda. de Bernardo, v. Atty. Restauro, 452 Phil. 745, 752 (2003).