Legal Forms Cases.docx

SECOND DIVISION A.C. No. 7781; September 12, 2008

and correct; and (5) respondent did not ascertain if the purported signatures of each of the complainants appearing in the document belonged to them.

DOLORES L. DELA CRUZ, MILAGROS L. PRINCIPE, NARCISA L. FAUSTINO, JORGE V. LEGASPI, and JUANITO V. LEGASPI, Complainants, v. ATTY. JOSE R. DIMAANO, JR., Respondent.

The Commission concluded that with respondent’s admission of having notarized the document in question against the factual backdrop as thus established, a clear case of falsification and violation of the Notarial Law had been committed when he stated in the Acknowledgment that:

VELASCO, JR., J.: In their complaint for disbarment against respondent Atty. Jose R. Dimaano, Jr., Dolores L. Dela Cruz, Milagros L. Principe, Narcisa L. Faustino, Jorge V. Legaspi, and Juanito V. Legaspi alleged that on July 16, 2004, respondent notarized a document denominated as Extrajudicial Settlement of the Estate with Waiver of Rights purportedly executed by them and their sister, Zenaida V.L. Navarro. Complainants further alleged that: (1) their signatures in this document were forged; (2) they did not appear and acknowledge the document on July 16, 2004 before respondent, as notarizing officer; and (3) their purported community tax certificates indicated in the document were not theirs. According to complainants, respondent had made untruthful statements in the acknowledgment portion of the notarized document when he made it appear, among other things, that complainants “personally came and appeared before him” and that they affixed their signatures on the document in his presence. In the process, complainants added, respondent effectively enabled their sister, Navarro, to assume full ownership of their deceased parents’ property in Tibagan, San Miguel, Bulacan, covered by Transfer Certificate of Title No. T-303936 and sell the same to the Department of Public Works and Highways. In his answer, respondent admitted having a hand in the preparation of the document in question, but admitted having indeed notarized it. He explained that “he notarized the document in good faith relying on the representation and assurance of Zenaida Navarro that the signatures and the community tax certificates appearing in the document were true and correct.” Navarro would not, according to respondent, lie to him having known, and being neighbors of, each other for 30 years. Finally, respondent disclaimed liability for any damage or injury considering that the falsified document had been revoked and canceled. In his Report and Recommendation, the Investigating Commissioner of the Office of the Commission on Bar Discipline, Integrated Bar of the Philippines, found the following as established: (1) the questioned document bore the signatures and community tax certificates of, and purports to have been executed by, complainants and Navarro; (2) respondent indeed notarized the questioned document on July 16, 2004; (3) complainants did not appear and acknowledge the document before respondent on July 16, 2004; (4) respondent notarized the questioned document only on Navarro’s representation that the signatures appearing and community tax certificates were true

BEFORE ME, on this 16th day of July 16, 2004 at Manila, personally came and appeared the above-named persons with their respective Community Tax Certificates as follows: x

x

x

who are known to me to be the same persons who executed the foregoing instrument and they acknowledge to me that the same is their own free act and deed. For the stated infraction, the Commission recommended, conformably with the Court’s ruling in Gonzales v. Ramos, that respondent be suspended from the practice of law for one (1) year; that his notarial commission, if still existing, be revoked; and that he be disqualified for reappointment as notary public for two (2) years. On September 28, 2007, the IBP Board of Governors passed Resolution No. XVIII-2007-147, adopting and approving the report and recommendation of the Commission. We agree with the recommendation of the Commission and the premises holding it together. It bears reiterating that notaries public should refrain from affixing their signature and notarial seal on a document unless the persons who signed it are the same individuals who executed and personally appeared before the notaries public to attest to the truth of what are stated therein, for under Section 1 of Public Act No. 2103 or the Notarial Law, an instrument or document shall be considered authentic if the acknowledgment is made in accordance with the following requirements: (a) The acknowledgment shall be made before a notary public or an officer duly authorized by law of the country to take acknowledgments of instruments or documents in the place where the act is done. The notary public or the officer taking the acknowledgment shall certify that the person acknowledging the instrument or document is known to him and that he is the same person who executed it, and acknowledged that the same is his free act and deed. The certificate shall be made under his official seal, if he is by law required to keep a seal, and if not, his certificate shall so state. Without the appearance of the person who actually executed the document in question, notaries public would be unable to verify the genuineness of the signature of the acknowledging party and to ascertain that the document is the party’s free act or

deed. Furthermore, notaries public are required by the Notarial Law to certify that the party to the instrument has acknowledged and presented before the notaries public the proper residence certificate (or exemption from the residence certificate) and to enter its number, place, and date of issue as part of certification. Rule II, Section 12 of the 2004 Rules on Notarial Practice now requires a party to the instrument to present competent evidence of identity. Section 12 provides: Section 12. Competent Evidence of Identity. — The phrase “competent evidence of identity” refers to the identification of an individual based on: (a) at least one current identification document issued by an official agency bearing the photograph and signature of the individual, such as but not limited to, passport, driver’s license, PRC ID, NBI clearance, police clearance, postal ID, voter’s ID, Barangay certification, GSIS e-card, SSS card, Philhealth card, senior citizen card, OWWA ID, OFW ID, seaman’s book, alien certificate of registration/immigrant certificate of registration, government office ID, certificate from the National Council for the Welfare of Disabled Persons, DSWD certification (as amended by A.M. No. 02-8-13-SC dated February 19, 2008); or (b) the oath or affirmation of one credible witness not privy to the instrument, document or transaction who is personally known to the notary public and who personally knows the individual, or of two credible witnesses neither of whom is privy to the instrument, document or transaction who each personally knows the individual and shows to the notary public documentary identification. One last note. Lawyers commissioned as notaries public are mandated to discharge with fidelity the duties of their offices, such duties being dictated by public policy and impressed with public interest. It must be remembered that notarization is not a routinary, meaningless act, for notarization converts a private document to a public instrument, making it admissible in evidence without the necessity of preliminary proof of its authenticity and due execution. A notarized document is by law entitled to full credit upon its face and it is for this reason that notaries public must observe the basic requirements in notarizing documents. Otherwise, the confidence of the public on notorized documents will be eroded. WHEREFORE, for breach of the Notarial Law, the notarial commission of respondent Atty. Jose R. Dimaano, Jr., if still existing, is REVOKED. He is DISQUALIFIED from being commissioned as notary public for a period of two (2) years and SUSPENDED from the practice of law for a period of one (1) year, effective upon receipt of a copy of this Decision, with WARNING that a repetition of the same negligent act shall be dealt with more severely. Let all the courts, through the Office of the Court Administrator, as well as the IBP and the Office of the Bar Confidant, be notified of this Decision and be it entered into respondent’s personal record.

SO ORDERED.

JUDGE LILY LYDIA A. LAQUINDANUM v. ATTY. NESTOR Q. QUINTANA, A.C. No. 7036; June 29, 2009 Per C.J. Puno, En Banc This administrative case against Atty. Nestor Q. Quintana (Atty. Quintana) stemmed from a letter addressed to the Court filed by Executive Judge Lily Lydia A. Laquindanum (Judge Laquindanum) of the Regional Trial Court of Midsayap, Cotabato requesting that proper disciplinary action be imposed on him for performing notarial functions in Midsayap, Cotabato, which is beyond the territorial jurisdiction of the commissioning court that issued his notarial commission, and for allowing his wife to do notarial acts in his absence. In her letter, Judge Laquindanum alleged that pursuant to A.M. No. 03-8-02-SC, executive judges are required to closely monitor the activities of notaries public within the territorial bounds of their jurisdiction and to see to it that notaries public shall not extend notarial functions beyond the limits of their authority. Hence, she wrote a letter to Atty. Quintana directing him to stop notarizing documents within the territorial jurisdiction of the Regional Trial Court of Midsayap, Cotabato (which is outside the territorial jurisdiction of the commissioning court that issued his notarial commission for Cotabato City and the Province of Maguindanao) since certain documents notarized by him had been reaching her office. However, despite such directive, respondent continuously performed notarial functions in Midsayap, Cotabato as evidenced by: (1) the Affidavit of Loss of ATM Card executed by Kristine C. Guro; and (2) the Affidavit of Loss of Drivers License executed by Elenita D. Ballentes. Under Sec. 11, Rule III of the 2004 Rules on Notarial Practice, Atty. Quintana could not extend his notarial acts beyond Cotabato City and the Province of Maguindanao because Midsayap, Cotabato is not part of Cotabato City or the Provinceof Maguindanao. Midsayap is part of the Province of Cotabato. The City within the province of Cotabato is Kidapawan City, and not Cotabato City. Judge Laquindanum also alleged that, upon further investigation of the matter, it was discovered that it was Atty. Quintanas wife who performed notarial acts whenever he was out of the office as attested to by the Joint Affidavit executed by Kristine C. Guro and Elenita D. Ballentes. In a Resolution dated February 14, 2006, we required Atty. Quintana to comment on the letter of Judge Laquindanum. In his Response, Atty. Quintana alleged that he filed a petition for notarial commission before Branch 18, Regional Trial Court, Midsayap, Cotabato. However, the same was not acted upon by Judge Laquindanum for three weeks. He alleged that the reason for Judge Laquindanums inaction was that she questioned his affiliation with the

Integrated Bar of the Philippines (IBP) Cotabato City Chapter, and required him to be a member of IBP Kidapawan City Chapter and to obtain a Certification of Payments from the latter chapter. Because of this, he opted to withdraw his petition. After he withdrew his petition, he claimed that Judge Laquindanum sent a clerk from her office to ask him to return his petition, but he did not oblige because at that time he already had a Commission for Notary Public issued by Executive Judge Reno E. Concha of the Regional Trial Court, Branch 14, Cotabato City. Atty. Quintana lamented that he was singled out by Judge Laquindanum, because the latter immediately issued notarial commissions to other lawyers without asking for so many requirements. However, when it came to him, Judge Laquindanum even tracked down all his pleadings; communicated with his clients; and disseminated information through letters, pronouncements, and directives to court clerks and other lawyers to humiliate him and be ostracized by fellow lawyers. Atty. Quintana argued that he subscribed documents in his office at Midsayap, Cotabato; and Midsayap is part of the Province of Cotabato. He contended that he did not violate any provision of the 2004 Rules on Notarial Practice, because he was equipped with a notarial commission. He maintained that he did not act outside the province of Cotabato since Midsayap, Cotabato, where he practices his legal profession and subscribes documents, is part of the province of Cotabato. He claimed that as a lawyer of good moral standing, he could practice his legal profession in the entire Philippines. Atty. Quintana further argued that Judge Laquindanum had no authority to issue such directive, because only Executive Judge Reno E. Concha, who issued his notarial commission, and the Supreme Court could prohibit him from notarizing in the Province of Cotabato. In a Resolution dated March 21, 2006, we referred this case to the Office of the Bar Confidant for investigation, report and recommendation. In the February 28, 2007 Hearing before the OBC presided by Atty. Ma. Crisitina B. Layusa (Hearing Officer), Judge Laquindanum presented a Deed of Donation, which was notarized by Atty. Quintana in 2004. Honorata Rosil appears as one of the signatories of the document as the donors wife. However, Honorata Rosil died on March 12, 2003, as shown by the Certificate of Death issued by the Civil Registrar of Ibohon, Cotabato. Judge Laquindanum testified that Atty. Quintana continued to notarize documents in the years 2006 to 2007 despite the fact that his commission as notary public for and in the Province of Maguindanao and Cotabato City had already expired on December 31, 2005, and he had not renewed the same. To support her claim, Judge Laquindanum presented the following: (1) Affidavit of Loss of Title executed by Betty G. Granada with subscription dated April 8, 2006 at Cotabato City; (2) Certificate of Candidacy of Mr. Elias Diosanta Arabis with subscription dated July 18, 2006; (3) Affidavit of Loss of Drivers License executed by Anecito C. Bernabe with subscription dated February 20, 2007 at

Midsayap, Cotabato; and (4) Affidavit of Loss executed by Santos V. Magbanua with subscription dated February 22, 2007 at Midsayap, Cotabato.

notarial commission still exists, the same should be revoked for two (2) years. The OBC found the defenses and arguments raised by Atty. Quintana to be without merit, viz:

For his part, Atty. Quintana admitted that all the signatures appearing in the documents marked as exhibits of Judge Laquindanum were his except for the following: (1) Affidavit of Loss of ATM Card executed by Kristine C. Guro; and (2) Affidavit of Loss of Drivers License executed by Elenita D. Ballentes; and (3) Affidavit of Loss executed by Santos V. Magbanua. He explained that those documents were signed by his wife and were the result of an entrapment operation of Judge Laquindanum: to let somebody bring and have them notarized by his wife, when they knew that his wife is not a lawyer. He also denied the he authorized his wife to notarize documents. According to him, he slapped his wife and told her to stop doing it as it would ruin his profession.

Apparently, respondent has extended his notarial acts in Midsayap and Kabacan, Cotabato, which is already outside his territorial jurisdiction to perform as Notary Public.

Atty. Quintana also claimed that Judge Laquindanum did not act on his petition, because he did not comply with her requirements for him to transfer his membership to the Kidapawan Chapter, wherein her sister, Atty. Aglepa, is the IBP President. On the one hand, Judge Laquindanum explained that she was only performing her responsibility and had nothing against Atty. Quintana. The reason why she did not act on his petition was that he had not paid his IBP dues, which is a requirement before a notarial commission may be granted. She told his wife to secure a certification of payment from the IBP, but she did not return. This was denied by Atty. Quintana, who claimed that he enclosed in his Response the certification of good standing and payments of his IBP dues. However, when the same was examined, there were no documents attached thereto. Due to oversight, Atty. Quintana prayed that he be given time to send them later which was granted by the Hearing Officer. Finally, Atty. Quintana asked for forgiveness for what he had done and promised not to repeat the same. He also asked that he be given another chance and not be divested of his privilege to notarize, as it was the only bread and butter of his family. On March 5, 2007, Atty. Quintana submitted to the OBC the documents issued by the IBP Cotabato City Chapter to prove that he had paid his IBP dues. In a Manifestation dated March 9, 2007, Judge Laquindanum submitted a Certification and its entries show that Atty. Quintana paid his IBP dues for the year 2005 only on January 9, 2006 per Official Receipt (O.R.) No. 610381. Likewise, the arrears of his IBP dues for the years 1993, 1995, 1996, and 1998 to 2003 were also paid only on January 9, 2006 per O.R. No. 610387. Hence, when he filed his petition for notarial commission in 2004, he had not yet completely paid his IBP dues. In its Report and Recommendation, the OBC recommended that Atty. Quintana be disqualified from being appointed as a notary public for two (2) years; and that if his

Section 11 of the 2004 Rules on Notarial Practice provides, thus:

Jurisdiction and Term A person commissioned as notary public may perform notarial acts in any place within the territorial jurisdiction of the commissioning court for a period of two years commencing the first day of January of the year in which the commissioning court is made, unless earlier revoked or the notary public has resigned under these Rules and the Rules of Court. Under the rule, respondent may perform his notarial acts within the territorial jurisdiction of the commissioning Executive Judge Concha, which is in Cotabato City and the Province of Maguindanao only. But definitely he cannot extend his commission as notary public in Midsayap or Kabacan and in any place of the province of Cotabato as he is not commissioned thereat to do such act. Midsayap and Kabacan are not part of either Cotabato City or Province of Maguindanao but part of the province of North Cotabato. Thus, the claim of respondent that he can exercise his notarial commission in Midsayap, Cotabato because Cotabato City is part of the province of Cotabato is absolutely devoid of merit. Further, evidence on record also shows that there are several documents which the respondents wife has herself notarized. Respondent justifies that he cannot be blamed for the act of his wife as he did not authorize the latter to notarize documents in his absence. According to him, he even scolded and told his wife not to do it anymore as it would affect his profession. In Lingan v. Calubaquib et al. the Court held thus:

A notary public is personally accountable for all entries in his notarial register; He cannot relieve himself of this responsibility by passing the buck to their secretaries A person who is commissioned as a notary public takes full responsibility for all the entries in his notarial register. Respondent cannot take refuge claiming that it was his wifes act and that he did not authorize his wife to notarize documents. He is personally accountable for the activities in his office as well as the acts of his personnel including his wife, who acts as his secretary.

Likewise, evidence reveals that respondent notarized in 2004 a Deed of Donation where Honorata Rosel, one of the affiants therein, was already dead at the time of notarization as shown in a Certificate of Death issued by the Civil Registrar General of Libungan, Cotabato. Sec. 2, (b), Rule IV of the 2004 Rules on Notarial Practice provides, thus:

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 through competent evidence of identity as defined by these Rules. Clearly, in notarizing a Deed of Donation without even determining the presence or qualifications of affiants therein, respondent only shows his gross negligence and ignorance of the provisions of the 2004 Rules on Notarial Practice. Furthermore, respondent claims that he, being a lawyer in good standing, has the right to practice his profession including notarial acts in the entire Philippines. This statement is barren of merit. While it is true that lawyers in good standing are allowed to engage in the practice of law in the Philippines, however, not every lawyer even in good standing can perform notarial functions without having been commissioned as notary public as specifically provided for under the 2004 Rules on Notarial Practice. He must have submitted himself to the commissioning court by filing his petition for issuance of his notarial commission. The commissioning court may or may not grant the said petition if in his sound discretion the petitioner does not meet the required qualifications for a Notary Public. Since respondent herein did not submit himself to the procedural rules for the issuance of the notarial commission, he has no reason at all to claim that he can perform notarial acts in the entire country for lack of authority to do so. Likewise, contrary to the belief of respondent, complainant being the commissioning court in Midsayap, Cotabato has the authority under Rule XI of the 2004 Rules on Notarial Practice to monitor the duties and responsibilities including liabilities, if any, of a notary public commissioned or those performing notarial acts without authority in her territorial jurisdiction. We adopt the findings of the OBC. However, we find the penalty of suspension from the practice of law for six months and revocation and suspension of Atty. Quintana’s

notarial commission for two years more appropriate considering the gravity and number of his offenses. After a careful review of the records and evidence, there is no doubt that Atty. Quintana violated the 2004 Rules on Notarial Practice and the Code of Professional Responsibility when he committed the following acts: (1) he notarized documents outside the area of his commission as a notary public; (2) he performed notarial acts with an expired commission; (3) he let his wife notarize documents in his absence; and (4) he notarized a document where one of the signatories therein was already dead at that time. The act of notarizing documents outside one’s area of commission is not to be taken lightly. Aside from being a violation of Sec. 11 of the 2004 Rules on Notarial Practice, it also partakes of malpractice of law and falsification. Notarizing documents with an expired commission is a violation of the lawyers oath to obey the laws, more specifically, the 2004 Rules on Notarial Practice. Since the public is deceived into believing that he has been duly commissioned, it also amounts to indulging in deliberate falsehood, which the lawyer’s oath proscribes. Notarizing documents without the presence of the signatory to the document is a violation of Sec. 2(b)(1), Rule IV of the 2004 Rules on Notarial Practice, Rule 1.01 of the Code of Professional Responsibility, and the lawyers oath which unconditionally requires lawyers not to do or declare any falsehood. Finally, Atty. Quintana is personally accountable for the documents that he admitted were signed by his wife. He cannot relieve himself of liability by passing the blame to his wife. He is, thus, guilty of violating Canon 9 of the Code of Professional Responsibility, which requires lawyers not to directly or indirectly assist in the unauthorized practice of law. All told, Atty. Quintana fell miserably short of his obligation under Canon 7 of the Code of Professional Responsibility, which directs every lawyer to uphold at all times the integrity and dignity of the legal profession. That Atty. Quintana relies on his notarial commission as the sole source of income for his family will not serve to lessen the penalty that should be imposed on him. On the contrary, we feel that he should be reminded that a notarial commission should not be treated as a money-making venture. It is a privilege granted only to those who are qualified to perform duties imbued with public interest. As we have declared on several occasions, notarization is not an empty, meaningless, routinary act. It is invested with substantive public interest, such that only those who are qualified or authorized may act as notaries public. The protection of that interest necessarily requires that those not qualified or authorized to act must be prevented from imposing upon the public, the courts, and the administrative offices in general. It must be underscored that notarization by a notary public converts a private document into a public document, making that document admissible in evidence without further proof of the authenticity thereof. IN VIEW WHEREOF, the notarial commission of Atty. Nestor Q. Quintana, if still existing, is hereby REVOKED, and he is DISQUALIFIED from being commissioned as

notary public for a period of two years. He is also SUSPENDED from the practice of law for six months effective immediately, with a WARNING that the repetition of a similar violation will be dealt with even more severely. He is DIRECTED to report the date of his receipt of this Decision to enable this Court to determine when his suspension shall take effect. Let a copy of this decision be entered in the personal records of respondent as a member of the Bar, and copies furnished the Bar Confidant, the Integrated Bar of the Philippines, and the Court Administrator for circulation to all courts in the country. SO ORDERED.

SECOND DIVISION G.R. No. 129416. November 25, 2004 ZENAIDA B. TIGNO, IMELDA B. TIGNO and ARMI B. TIGNO, petitioners,

vs.

SPOUSES ESTAFINO AQUINO and FLORENTINA AQUINO and the HONORABLE COURT OF APPEALS, respondents. TINGA, J.: The controversy in the present petition hinges on the admissibility of a single document, a deed of sale involving interest over real property, notarized by a person of questionable capacity. The assailed ruling of the Court of Appeals, which overturned the findings of fact of the Regional Trial Court, relied primarily on the presumption of regularity attaching to notarized documents with respect to its due execution. We conclude instead that the document has not been duly notarized and accordingly reverse the Court of Appeals. The facts are as follow: On 11 January 1980, respondent spouses Estafino and Florentina Aquino filed a complaint for enforcement of contract and damages against Isidro Bustria. The complaint sought to enforce an alleged sale by Bustria to the Aquinos of a 120,000 square meter fishpond located in Dasci, Pangasinan. The property was not registered either under the Land Registration Act or under the Spanish Mortgage Law, though registrable under Act No. 3344. The conveyance was covered by a Deed of Sale dated 2 September 1978. Eventually, Bustria and the Aquinos entered into a compromise agreement, whereby Bustria agreed to recognize the validity of the sale, and the Aquinos in turn agreed to grant to Bustria the right to repurchase the same property after the lapse of seven years. Upon submission, the Court of First Instance of Pangasinan, Branch VII, approved and incorporated the compromise agreement in a Decision which it rendered on 7 September 1981. Bustria died in October of 1986. On 1 December 1989, petitioner Zenaida B. Tigno, in substitution of her deceased father Isidro Bustria, attempted to repurchase the property by filing a Motion for Consignation. She deposited the amount of Php200,000.00 with the Regional Trial Court of Alaminos, Pangasinan. On 18 December 1989, the Aquinos filed an opposition, arguing that the right to repurchase was not yet demandable and that Tigno had failed to make a tender of payment. In an Order dated 10 October 1999, the RTC denied the Motion for Consignation. In June of 1991, Tigno filed a Motion for a Writ of Execution, which was likewise opposed by the Aquinos, and denied by the RTC. Then, on 6 September 1991, Tigno

filed an action for Revival of Judgment, seeking the revival of the decision in Civil Case No. A-1257, so that it could be executed accordingly. The Aquinos filed an answer, wherein they alleged that Bustria had sold his right to repurchase the property to them in a deed of sale dated 17 October 1985. Among the witnesses presented by the Aquinos during trial were Jesus De Francia, the instrumental witness to the deed of sale, and former Judge Franklin Cario, who notarized the same. These two witnesses testified as to the occasion of the execution and signing of the deed of sale by Bustria. Thereafter, in their Formal Offer of Documentary Evidence, the Aquinos offered for admission as their Exhibit No. 8, the deed of sale purportedly executed by Bustria. The admission of the Deed of Sale was objected to by Tigno on the ground that it was a false and fraudulent document which had not been acknowledged by Bustria as his own; and that its existence was suspicious, considering that it had been previously unknown, and not even presented by the Aquinos when they opposed Tignos previous Motion for Consignation. In an Order dated 6 April 1994, the RTC refused to admit the Deed of Sale in evidence. A Motion for Reconsideration praying for the admission of said exhibit was denied in an Order dated 27 April 1994. Then, on 18 August 1994, a Decision was rendered by the RTC in favor of Tigno. The RTC therein expressed doubts as to the authenticity of the Deed of Sale, characterizing the testimonies of De Francia and Cario as conflicting. The RTC likewise observed that nowhere in the alleged deed of sale was there any statement that it was acknowledged by Bustria; that it was suspicious that Bustria was not assisted or represented by his counsel in connection with the preparation and execution of the deed of sale or that Aquino had raised the matter of the deed of sale in his previous Opposition to the Motion for Consignation. The RTC then stressed that the previous Motion for Execution lodged by Tigno had to be denied since more than five years had elapsed from the date the judgment in Civil Case No. A-1257 had become final and executory; but the judgment could be revived by action such as the instant complaint. Accordingly, the RTC ordered the revival of the judgment dated 7 September 1981 in Civil Case No. A-1257. The Aquinos interposed an appeal to the Court of Appeals. In the meantime, the RTC allowed the execution pending appeal of its Decision. On 23 December 1996, the Court of Appeals Tenth Division promulgated a Decision reversing and setting aside the RTC Decision. The appellate court ratiocinated that there were no material or substantial inconsistencies between the testimonies of Cario and De Francia that would taint the document with doubtful authenticity; that the absence of the acknowledgment and substitution instead of a jurat did not render the instrument invalid; and that the nonassistance or representation of Bustria by counsel did not render the document null and ineffective. It was noted that a notarized document carried in its favor the presumption of regularity with respect to its due execution, and that there must be clear, convincing and more than merely preponderant evidence to contradict the same. Accordingly, the

Court of Appeals held that the RTC erred in refusing to admit the Deed of Sale, and that the document extinguished the right of Bustrias heirs to repurchase the property. After the Court of Appeals denied Tignos Motion for Reconsideration, the present petition was filed before this Court. Tigno imputes grave abuse of discretion and misappreciation of facts to the Court of Appeals when it admitted the Deed of Sale. He also argues that the appellate court should have declared the Deed of Sale as a false, fraudulent and unreliable document not supported by any consideration at all. The general thrusts of the arguments posed by Tigno are factually based. As such, they could normally lead to the dismissal of this Petition for Review. However, while this Court is not ordinarily a trier of facts, factual review may be warranted in instances when the findings of the trial court and the intermediate appellate court are contrary to each other. Moreover, petitioner raises a substantial argument regarding the capacity of the notary public, Judge Cario, to notarize the document. The Court of Appeals was unfortunately silent on that matter, but this Court will take it up with definitiveness. The notarial certification of the Deed of Sale reads as follows: ACKNOWLEDGMENT REPUBLIC OF THE PHILIPPINES PROVINCE OF PANGASINAN ) S.S. MUNICIPALITY OF ALAMINOS

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It is undisputed that Franklin Cario at the time of the notarization of the Deed of Sale, was a sitting judge of the Metropolitan Trial Court of Alaminos. Petitioners point out, citing Tabao v. Asis, that municipal judges may not undertake the preparation and acknowledgment of private documents, contracts, and other acts of conveyance which bear no relation to the performance of their functions as judges. In response, respondents claim that the prohibition imposed on municipal court judges from notarizing documents took effect only in December of 1989, or four years after the Deed of Sale was notarized by Cario. Respondents contention is erroneous. Municipal Trial Court and Municipal Circuit Trial Court 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. However, as far back as 1980 in Borre v. Moya, the Court explicitly declared that municipal court judges such as Cario may notarize only documents connected with the exercise of their official duties. The Deed of Sale was not connected with any official duties of Judge Cario, and there was no reason for him to notarize it. Our observations as to the errant judge in Borre are pertinent in this case, considering that Judge Cario identified himself in the Deed of Sale as Ex-Officio Notary Public, Judge, MTC: A notary ex officio should not compete with private law practitioners or regular notaries in transacting legal conveyancing business.

)

SUBSCRIBED AND SWORN TO before me this 17 day of October 1985 at Alaminos, Pangasinan both parties known to me to be the same parties who executed the foregoing instrument. FRANKLIN CARIO

Ex-Officio Notary Public

Presiding Judge Municipal Trial Court of Alaminos There are palpable errors in this certification. Most glaringly, the document is certified by way of a jurat instead of an acknowledgment. A jurat is a distinct creature from an acknowledgment. An acknowledgment is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed; while a jurat is that part of an affidavit where the officer certifies that the same was sworn before him. Under Section 127 of the Land Registration Act, which has been replicated in Section 112 of Presidential Decree No. 1529, the Deed of Sale should have been acknowledged before a notary public. But there is an even more substantial defect in the notarization, one which is determinative of this petition. This pertains to the authority of Judge Franklin Cario to notarize the Deed of Sale.

In the instant case, it was not proper that a city judge should notarize documents involving private transactions and sign the document in this wise: “GUMERSINDO ARCILLA, Notary Public Ex-Officio, City Judge.” In doing so, he obliterated the distinction between a regular notary and a notary ex officio. There are possible grounds for leniency in connection with this matter, as Supreme Court Circular No. I-90 permits notaries public ex officio to perform any act within the competency of a regular notary public provided that certification be made in the notarized documents attesting to the lack of any lawyer or notary public in such municipality or circuit. Indeed, it is only when there are no lawyers or notaries public that the exception applies. The facts of this case do not warrant a relaxed attitude towards Judge Carios improper notarial activity. There was no such certification in the Deed of Sale. Even if one was produced, we would be hard put to accept the veracity of its contents, considering that Alaminos, Pangasinan, now a city, was even then not an isolated backwater town and had its fair share of practicing lawyers. There may be sufficient ground to call to task Judge Cario, who ceased being a judge in 1986, for his improper notarial activity. Perhaps though, formal sanction may no longer be appropriate considering Judge Carios advanced age, assuming he is still alive.However, this Decision should again serve as an affirmation of the rule prohibiting

municipal judges from notarizing documents not connected with the exercise of their official duties, subject to the exceptions laid down in Circular No. 1-90.

Public documents are:

Most crucially for this case, we should deem the Deed of Sale as not having been notarized at all. The validity of a notarial certification necessarily derives from the authority of the notarial officer. If the notary public does not have the capacity to notarize a document, but does so anyway, then the document should be treated as unnotarized. The rule may strike as rather harsh, and perhaps may prove to be prejudicial to parties in good faith relying on the proferred authority of the notary public or the person pretending to be one. Still, to admit otherwise would render merely officious the elaborate process devised by this Court in order that a lawyer may receive a notarial commission. Without such a rule, the notarization of a document by a duly appointed notary public will have the same legal effect as one accomplished by a non-lawyer engaged in pretense.

(a) The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country;

The notarization of a document carries considerable legal effect. Notarization of a private document converts such document into a public one, and renders it admissible in court without further proof of its authenticity. Thus, notarization is not an empty routine; to the contrary, it engages public interest in a substantial degree and the protection of that interest requires preventing those who are not qualified or authorized to act as notaries public from imposing upon the public and the courts and administrative offices generally.

The Deed of Sale, invalidly notarized as it was, does not fall under the enumeration of public documents; hence, it must be considered a private document. The nullity of the alleged or attempted notarization performed by Judge Cario is sufficient to exclude the document in question from the class of public documents. Even assuming that the Deed of Sale was validly notarized, it would still be classified as a private document, since it was not properly acknowledged, but merely subscribed and sworn to by way of jurat.

On the other hand, what then is the effect on the Deed of Sale if it was not notarized? True enough, from a civil law perspective, the absence of notarization of the Deed of Sale would not necessarily invalidate the transaction evidenced therein. Article 1358 of the Civil Code requires that the form of a contract that transmits or extinguishes real rights over immovable property should be in a public document, yet it is also an accepted rule that the failure to observe the proper form does not render the transaction invalid. Thus, it has been uniformly held that the form required in Article 1358 is not essential to the validity or enforceability of the transaction, but required merely for convenience. We have even affirmed that a sale of real property though not consigned in a public instrument or formal writing, is nevertheless valid and binding among the parties, for the time-honored rule is that even a verbal contract of sale or real estate produces legal effects between the parties. Still, the Court has to reckon with the implications of the lack of valid notarization of the Deed of Sale from the perspective of the law on evidence. After all, the case rests on the admissibility of the Deed of Sale.

Being a private document, the Deed of Sale is now subject to the requirement of proof under Section 20, Rule 132, which states:

Clearly, the presumption of regularity relied upon by the Court of Appeals no longer holds true since the Deed of Sale is not a notarized document. Its proper probative value is governed by the Rules of Court. Section 19, Rule 132 states: Section 19. Classes of documents. — For the purpose of their presentation in evidence, documents are either public or private.

(b) Documents acknowledged before a notary public except last wills and testaments; and (c) Public records, kept in the Philippines, of private documents required by law to be entered therein. All other writings are private.

Section 20. Proof of private document. — Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either: (a) By anyone who saw the document executed or written; or (b) By evidence of the genuineness of the signature or handwriting of the maker. Any other private document need only be identified as that which is claimed to be. The Deed of Sale was offered in evidence as authentic by the Aquinos, who likewise insist that its enforceability militates against Tignos claim. Correspondingly, the burden falls upon the Aquinos to prove its authenticity and due execution. The Court of Appeals clearly erred in not appreciating the Deed of Sale as a private document and in applying the presumption of regularity that attaches only to duly notarized documents, as distinguished from private documents. Did the RTC err then in refusing to admit the Deed of Sale? We hold that it did not. Section 20, Rule 132 provides ample discretion on the trier of fact before it may choose to receive the private document in evidence. The RTC wisely refused to admit the Deed

of Sale, taking great lengths as it did to explain its doubts as to its veracity. The RTC

was not convinced of the proffered proof by the Aquinos, and the exercise of its sound discretion as the primary trier of fact warrants due respect. The most telling observation of the RTC relates to the fact that for the very first time respondents alleged the existence of the Deed of Sale when they filed their answer to petitioners current action to revive judgment. Prior to the initiation of the present action, Tigno had tried to operationalize and implement the Compromise Agreement through two judicial means: consignation and execution of judgment. The Aquinos duly opposed these prior attempts of the petitioner to exercise the right to repurchase, but they did not raise then the claim that such right to repurchase was already extinguished by the Deed of Sale. Tigno attempted to exercise the right to repurchase only a few years after the execution of the Deed of Sale to which respondents themselves were signatories. Thus, it is incredulous that the Aquinos did not invoke the Deed of Sale when they opposed in court petitioners successive attempts at consignation and execution of judgment. The Deed of Sale, if in existence and valid, would have already precluded Tignos causes of action for either consignation or execution of judgment. The only believable conclusion, as drawn by the RTC, was that the Deed of Sale had yet to be created when petitioner moved in 1990 for consignation and execution of judgmentan existential anomaly if we were to agree with the respondents that such document had been signed and notarized back in 1985. The dubiousness in origin of the Deed of Sale is not alleviated by the other observations of the RTC. It also pointed to certain incredible aspects in the Aquinos tale of events. It noted that no receipts were ever presented by the respondents to evidence actual payment of consideration by them to Bustria, despite the allegation of the respondents that the amount was covered by seven (7) receipts. The Aquinos claimed that Bustria kept all the receipts, an assertion which the RTC found as unbelievable, citing ordinary human nature to ask for receipts for significant amounts given and to keep the same. In itself, the absence of receipts, or any proof of consideration, would not be conclusive since consideration is always presumed. However, given the totality of the circumstances surrounding this case, the absence of such proof further militates against the claims of the Aquinos. We can appreciate in a similar vein the observation of the Court of Appeals that Bustria did not bother to seek his lawyer’s assistance as regards the execution of the Deed of Sale, considering that the subject property had previously been fiercely litigated. Although the Court of Appeals was correct in ruling that the document would not be rendered null or ineffective due to the lack of assistance of counsel, the implausibility of the scenario strikes as odd and therefore reinforces the version found by the RTC as credible. The Court likewise has its own observations on the record that affirm the doubts raised by the Court of Appeals. Isidro Bustria, who would die in 1986, was already ninetythree (93) years old when he allegedly signed the Deed of Sale in 1985. Still, the Aquinos

asserted before the RTC that Bustria traveled unaccompanied from his home in Dasol, Pangasinan, passing through two towns to Alaminos, to execute the Deed of Sale. Without discrediting the accomplishments of nonagenarians capable of great physical feats, it should be acknowledged as a matter of general assumption that persons of Bustrias age are typically sedentary and rarely so foolhardy as to insist on traveling significant distances alone. Also of note is the fact that there are glaring differences as to the alleged signature of Bustria on the Deed of Sale and as it otherwise appears on the judicial record. Bustrias signature in the 1981 Compromise Agreement is noticeably shaky which is not surprising, considering that it was subscribed when Bustria was 89 years old. However, Bustrias signature on the Deed of Sale, which if genuine was affixed when he was already 93 years old, is remarkably steady in its strokes. There are also other evident differences between Bustrias signature on the Deed of Sale and on other documents on the record. Admittedly, these doubts cast above arise in chief from an appreciation of circumstantial evidence. These have to be weighed against the findings of the Court of Appeals that the fact that Bustria signed the Deed of Sale was established by the respective testimonies of witnesses De Francia and Judge Cario. In its own appreciation of these testimonies, the RTC alluded to notable inconsistencies in their testimonies. As a final measure of analysis, the Court shall now examine whether the appellate court was in error in reversing the conclusion of the RTC on these testimonies. The inconsistencies cited by the RTC were that De Francia testified that Judge Cario himself prepared and typed the Deed of Sale in his office, where the document was signed, while Judge Cario testified that he did not type the Deed of Sale since it was already prepared when the parties arrived at his office for the signing. On this point, the Court of Appeals stated with utter nonchalance that a perusal of the record revealed no material or substantial inconsistencies between the testimonies of Judge Cario and De Francia. Strangely, the appellate court made no comment as to the inconsistency pointed out by the RTC as to who prepared the Deed of Sale. If the only point of consideration was the due execution of the Deed of Sale, then the Court of Appeals should have properly come out with its finding. Other variances aside, there are no contradictions in the testimonies of Judge Cario and De Francia on the question of whether or not Bustria signed the Deed of Sale. However, as earlier established, the Deed of Sale is a private document. Thus, not only the due execution of the document must be proven but also its authenticity. This factor was not duly considered by the Court of Appeals. The testimonies of Judge Cario and De Francia now become material not only to establish due execution, but also the authenticity of the Deed of Sale. And on this point, the inconsistencies pointed out by the RTC become crucial.

The matter of authenticity of the Deed of Sale being disputed, the identity of the progenitor of this all-important document is a material evidentiary point. It is disconcerting that the very two witnesses of the respondent offered to prove the Deed of Sale, flatly contradict each other on the basis of their own personal and sensory knowledge. Worse, the purported author of the Deed of Sale disavowed having drafted the document, notwithstanding the contrary testimony grounded on personal knowledge by the documentary witness. Establishing the identity of the person who wrote the Deed of Sale would not ordinarily be necessary to establish the validity of the transaction it covers. However, since it is the authenticity of the document itself that is disputed, then the opposing testimonies on that point by the material witnesses properly raises questions about the due execution of the document itself. The inconsistencies in the testimonies of Judge Cario and De Francia are irreconcilable. It is not possible to affirm the testimony of either without denigrating the competence and credibility of the other as a witness. If Judge Cario was truthful in testifying that he did not write the Deed of Sale, then doubt can be cast as to the reliability of the notarial witness De Francia. It takes a leap of imagination, a high level of gumption, and perverse deliberation for one to erroneously assert, under oath and with particularities, that a person drafted a particular document in his presence. However, if we were to instead believe De Francia, then the integrity of the notary public, Judge Cario, would be obviously compromised. Assuming that Judge Cario had indeed authored the Deed of Sale, it would indeed be odd that he would not remember having written the document himself yet sufficiently recall notarizing the same. If his testimony as to authorship of the document is deemed as dubious, then there is all the reason to make a similar assumption as to his testimony on the notarization of the Deed of Sale. These inconsistencies are not of consequence because there is need to indubitably establish the author of the Deed of Sale. They are important because they cast doubt on the credibility of those witnesses of the Aquinos, presented as they were to attest to the due execution and authenticity of the Deed of Sale. The Court of Appeals was clearly in error in peremptorily disregarding this observation of the RTC. As a result, we are less willing than the Court of Appeals to impute conclusive value to the testimonies of de Francia and Judge Cario. The totality of the picture leads us to agree with the trial court that the Deed of Sale is ineluctably dubious in origin and in execution. The Court deems as correct the refusal of the RTC to admit the Deed of Sale, since its due execution and authenticity have not been proven. The evidence pointing to the non-existence of such a transaction is so clear and convincing that it is sufficient even to rebut the typical presumption of regularity arising from the due execution of notarial documents. However, for the reasons stated earlier, the Deed of Sale is ineluctably an unnotarized document. And the lower court had more than sufficient basis to conclude that it is a spurious document.

Since the validity of the Deed of Sale has been successfully assailed, Tignos right to repurchase was not extinguished at the time of the filing of the Petition for revival of judgment, as correctly concluded by the RTC. The Court of Appeals being in error when it concluded otherwise, the reinstatement of the RTC Decision is warranted. WHEREFORE, the Petition is GRANTED. The assailed Decision and Resolution of the Court of Appeals is REVERSED, and the Decision of the Regional Trial Court is REINSTATED. SO ORDERED.