Tuesday, March 10, 2009

Notary

Among many Filipinos, the special legal nature of notarized documents is not recognized, in the same way that they dishonor the special value of testimonies under oath given in open court. Many lawyers and notaries public are guilty of such an attitude. It should be noted that under the Rules of Evidence, notarized documents are special public documents that require no tedious proof of due execution and technical authentication unlike private documents.

In the case of AVELINO O. ANGELES, et. al. vs. ATTY. AMADO O. IBAÑEZ, A.C. No. 7860, January 15, 2009, the Philippine Supreme Court found respondent Atty. Amado O. Ibañez GUILTY of notarizing an “Extrajudicial Partition with Absolute Sale” in the absence of the affiants.

The Court SUSPENDED him from the practice of law for one year, REVOKED his incumbent notarial commission, if any, and PROHIBITED 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.


The said decision is digested below. Thus:


X x x.


In a Report dated 21 January 2008, IBP Commissioner for Bar Discipline Rico A. Limpingco (Commissioner Limpingco) found that respondent notarized the “Extrajudicial Partition with Absolute Sale” in the absence of affiants and without a notarial commission. Thus:


As stated earlier, the present administrative complaint may seem at first to be one for falsification, land grabbing, etc., but a closer examination of the complainants’ allegations coupled with their own verbal confirmation during the Mandatory Conference, shows that the complainants are actually accusing respondent Atty. Amado Ibañez of notarizing an “Extrajudicial Partition with Absolute Sale” in the City of Manila on 18 February 1979 (entered in his Notarial Book as Doc. No. 735, p. 147 and Book No. II, Series of 1979) without requiring the presence of the parties thereto, and further, for notarizing the said document even if he did not have a notarial commission at that time.

The respondent contends that the complainants have previously filed the same administrative complaint against him, docketed as Administrative Case No. 3581, and that the same was eventually dismissed by the Supreme Court. He alleged that as in this prior complaint, the present case must likewise be dismissed for forum shopping.
It appears, however, that Administrative Case No. 3581 is entirely different and distinct from the present complaint. A reading of the photocopy of IBP Board of Governors Resolution dated 27 June 1999, adopting and approving the attached Report and Recommendation of Comm. Victor Fernandez dismissing Administrative Case No. 3581, entitled “Rosalina Angeles, et al. vs. Atty. Amado Ibañez” (as attached by the respondent himself in his Motion to Dismiss) shows that this earlier complaint pertains to herein respondent’s alleged “land-grabbing” of two (2) parcels of land in Bgy. Zapang, Ternate, Cavite. As stated in the report authored by then Commissioner Victor Fernandez, the earlier administrative case relates to the sale of the said property to the Sps. Danilo Andra and Angela Olano, and its subsequent sale to the respondent, Atty. Amado Ibañez, who for his part later applied for, and was granted, free patent titles over the same. Branding the transaction as land-grabbing, the complainants filed an action in court to recover possession and annul the titles but the case was eventually dismissed by the Supreme Court for lack of merit. The complainants then filed the same complaint with the Office of the Ombudsman, the Dept. of Justice, the Bureau of Internal Revenue and the Supreme Court, which eventually referred the matter to the IBP. In his report, then-Commissioner Victor Fernandez declared that the complainants were engaged in forum-shopping, reasoning that unsuccessful in their effort to obtain the result they desire from the courts, they would attempt to refile their dismissed action under the guise of an administrative case.

The present administrative complaint may be in one way or another related to the alleged land-grabbing which was the subject of Administrative Case No. 3581, but it pertains to an altogether different matter. In the present complaint, respondent Atty. Ibañez is not being accused of land-grabbing or falsification, but rather, for misconduct in notarizing a document.

We would point out that respondent Atty. Amado Ibañez admitted that he did not require the presence of the parties to the document because he was assured as to the authenticity of their signatures. We would also stress that the respondent never denied that he notarized the “Extrajudicial Partition with Absolute Sale,” but claimed that he did so not in Manila as stated in document, but in Cavite where he claimed to be a commissioned notary public; he attributed the mistake to his legal secretary, and he insisted that the sale remained valid despite the defects in notarization.

That is not the point, however. The validity of the transaction covered by the “Extrajudicial Partition with Absolute Sale” is not at issue in this administrative case for that is a matter for the courts to adjudicate, if they have not already done so.

As it is, no less than the respondent himself categorically admitted that he notarized the “Extrajudicial Partition with Absolute Sale” in the absence of the parties thereto. To make matters worse, the certifications submitted by the complainants clearly indicate that respondent Atty. Amado Ibañez did not have any notarial commission whether for Manila or Cavite, in 18 February 1979 when he notarized the subject document. The respondent, for his part, has been completely unable to proffer any kind of proof of his claim that he had a commission as a notary public for and in the Province of Cavite in 1979, or of his submission of notarial reports and notarial register during the said period.

x x x

While the case of respondent Atty. Amado Ibañez is not perfectly identical to the facts and circumstances obtaining in these cases, his act of notarizing a document without the necessary commission is nonetheless clear and undeniable. Guided by the foregoing rulings of the Supreme Court vis-a-vis the facts in the present complaint, it is therefore respectfully recommended that respondent Atty. Amado Ibañez:
1. Be barred from being commissioned as a notary public for a period of two (2) years, and in the event that he is presently commissioned as a notary public, that his commission be immediately revoked and suspended for such period; and
2. Be suspended from the practice of law for a period of one (1) year.

Respectfully submitted. (Emphasis added)



X x x.


We sustain the findings of the IBP and adopt its recommendations with modification. Respondent violated his oath as a lawyer and the Code of Professional Responsibility when he notarized the “Extrajudicial Partition with Absolute Sale” in the absence of the affiants.

Respondent Notarized the “Extrajudicial Partition with Absolute Sale”
in the Absence of the Affiants


Respondent himself admits that he merely relied on the representation of Rosalina Angeles that the signatures appearing on the “Extrajudicial Partition with Absolute Sale” subject of the present complaint are those of her co-heirs. Respondent claims that he reposed confidence upon Rosalina Angeles because she is his confidential secretary. Unfortunately for respondent, he cannot exculpate himself from the consequences of his recklessness and his failure to comply with the requirements of the law by relying on his confidential secretary.

Time and again, we have reminded lawyers commissioned as notaries public that the affiants must personally appear before them. 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.


Section 2(b) of Rule IV of the Rules on Notarial Practice of 2004 reads:

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.

The physical presence of the affiants enables the notary public to verify the genuineness of the signatures of the acknowledging parties and to ascertain that the document is the parties’ free act and deed.

Notarization of a private document converts such document into a public one, and renders it admissible in court without further proof of its authenticity. Courts, administrative agencies and the public at large must be able to rely upon the acknowledgment executed by a notary public and appended to a private instrument. 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.

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.

X x x.

3 comments:

  1. A notary is now a public servant appointed by a state official. This position is important as he provides protection for business deals. Depending on the state, the Notary Public has the power to acknowledge signatures, especially on court papers such as affidavits, conduct oaths and affirmations, and issue subpoenas in lawsuits. For these services, he receives a fee set by the state. To become a notary public in the U.S, the applicant should be at least 18 years of age and a permanent resident of the state in which he wants to be a notary. Notary is a comparatively easy role to secure, in most cases only requiring the applicant to pass a simple test and undergo some form of background check. The rights and privileges of a notary are normally limited to the basic duties of an impartial witness. To be precise, notaries are not licensed to give any form of legal advice, prepare legal documents or otherwise perform law.

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  2. Thank you for this blog. I do have a question though, and i hope to receive a reply from the blogger. What if the person who signed the promissory note for land forclosure was a friend? would that be valid? I asked a friend who live with me in the same house to verify in the accounts consultant agency on what's going on with my account..however the people in the agency told my friend to signed a promissory letter to extend my payment. My friend informed me after it was signed. Would the documents valid? i am the house owner and i did not signed anything.

    I would really appreciate a reply. Thank you.

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