FIRST DIVISION
FELICIDAD
VDA. DE
BERNARDO,
Complainant,
AC.
No.
3849
June 25, 2003
-versus-
ATTY.
JOSE R.
RESTAURO,
Respondent.
chanroblesvirtualawlibrary
R E S O L U T I O
N
AZCUNA,
J.:
Complainant Felicidad Vda.
de Bernardo (married to the late Alberto Bernardo) and Marcelino G.
Soriano
(married to Hildegarda Mejia) were co-owners of a parcel of land, with
an area of 561 square meters, situated in Davao City, and covered by
TCT
No. T-39100.[1]
On June 8, 1992, complainant
filed a petition for the disbarment or indefinite suspension of
respondent
Atty. Jose R. Restauro of Davao City for malpractice, deceit and grave
misconduct.cralaw:red
Complainant averred
that on July 19, 1990, respondent prepared and notarized a Special
Power
of Attorney[2]
making it appear that she, Felicidad G. Soriano (complainant’s full
maiden
name), her deceased spouse, Alberto Bernardo and Hildegarda Mejia
appointed
Marcelino G. Soriano, Jr. as their attorney-in-fact to sell a parcel of
land situated in Davao City covered by TCT No. T-39100 when they
neither appeared nor executed and acknowledged said document before
respondent.
The Special Power of Attorney was entered in the Notarial Register of
respondent
as Doc. No. 380, Page No. 76, Book No. XIX, Series of 1990.cralaw:red
Complainant further
alleged that her husband, Alberto Bernardo, could not have appeared and
executed said Special Power of Attorney before respondent on July 19,
1990
since her husband died on January 30, 1980 at the Pangasinan Medical
Center,
as evidenced by a death certificate.[3]
Hence, when the Special Power of Attorney was executed, her husband was
dead for more than ten years.chanrobles virtual law library
Complainant also alleged
that to recover her share of the property which was sold to a third
party,
she hired the services of her counsel whom she promised to pay 25
percent
(on a contingent basis) of the value of her share.cralaw:red
Complainant prayed that
respondent be disbarred or indefinitely suspended, and that he be
ordered
to pay the value of her pro indiviso half share of said property, the
attorney’s
fees and the costs of the suit.cralaw:red
In his Answer, respondent
asserted that he would not have known the names of Felicidad Soriano,
Alberto
Bernardo and Hildegarda Mejia if said persons did not go to his office
to request that he prepare the Special Power of Attorney.
Moreover,
he stated that he would not have notarized the document if they did not
appear before him and acknowledge that it was their act and deed. He
also
mentioned that said persons brought with them the title (TCT No.
T-39100)
to the property.cralaw:red
Respondent further averred
that a living Alberto Bernardo appeared before him in Davao City and
signed
the Special Power of Attorney at the time of its execution. He
also
stated that Pangasinan and Davao City are far apart; hence, events
happening
in either places (alluding to the death of complainant’s husband,
Alberto
Bernardo) are not always known to everybody. Atty. Restauro prayed for
the dismissal of the complaint.cralaw:red
On September 14, 1992,
this case was referred by the Court to the Integrated Bar of the
Philippines
for investigation, report and recommendation.cralaw:red
The Investigating Commissioner
set the case for hearing on November 16, 1993. During the
hearing,
only complainant and her counsel were present. Complainant
testified
and identified the documents mentioned in her Complaint.
Thereafter,
she submitted a Formal Offer of Evidence dated November 19, 1993.chanrobles virtual law library
On November 18, 1993,
the Commissioner received from respondent a Manifestation dated
November
9, 1993 stating that he could not attend the hearing set on November
16,
1993 due to previous commitments and that if the hearing could not be
postponed
to a later date, he was waiving his right to attend it.cralaw:red
In his Comments/Objections
on Complainant’s Formal Offer of Evidence, respondent stated that he
acted
in good faith when he prepared the Special Power of Attorney and that
the
persons involved were all present, otherwise, the execution of said
document
would not have been possible. He prayed for the non-admission of
the evidence submitted by complainant.cralaw:red
As directed by the Commissioner,
complainant filed a Memorandum. But respondent did not.cralaw:red
In her Memorandum, complainant
stated that whoever appeared before respondent at the time of the
execution
of the Special Power of Attorney and claimed to be her, Felicidad G.
Soriano,
and her deceased husband, Alberto Bernardo, were impostors. According
to
complainant, respondent could have been in good faith when the supposed
Alberto Bernardo went to his office for the first time for the
preparation
and notarization of the Special Power of Attorney. Nevertheless,
after complainant, through her counsel, had informed respondent
on
May 6, 1992 (nearly 2 years after the execution of said Special Power
of
Attorney) that the persons who appeared before him were impostors,
respondent
was already in bad faith for not contacting said persons and for not
retracting
the unauthorized Special Power of Attorney.chanrobles virtual law library
In her report, the Investigating
Commissioner found that it was not satisfactorily established that
respondent
was a party to the fraudulent execution of said Special Power of
Attorney.
Respondent’s participation was only in the preparation and notarization
of said document based on the parties’ identification papers and their
representations that they were the persons who they claimed to be. The
notarial acknowledgment of said document showed that the alleged
impostors
presented their Community Tax Certificates bearing the names of
complainant
Felicidad G. Soriano and her deceased husband, Alberto Bernardo.cralaw:red
The Investigating Commissioner
also stated, thus:
It is
noteworthy
to stress here that a notary public is duty bound to require the
person executing a document to be personally present, to swear before
him
that he is that person and ask the latter if he has voluntarily and
freely
executed the same; also to require him to sign in his presence if it is
an affidavit or any other sworn statement. But if it is a
document
with an acknowledgment, it is sufficient that the party thereto
personally
appears before the notary public and acknowledges that he was the one
who
executed such document. It is enough that the Notary Public
requires
the party to produce identification papers like his Community Tax
Certificate,
and I.D. The Notary Public is not obliged to go beyond the
identification
papers/documents presented and to investigate further to ascertain the
real identity of the executing party. What suffices is for the
Notary
Public to determine if he has the required identification papers.
If this were not the rule, no lawyer or any other person authorized to
act as Notary Public would accept the job and perform its functions.chanrobles virtual law library
However,
the
foregoing rule does not disregard the nature of the corresponding
responsibilities
of a Notary Public. His office is [imbued] with public trust and
public service. He is obliged to exercise due diligence in
ascertaining
the true identity of the person executing a document. In this
particular
case, the Notary Public should have exerted utmost efforts to determine
the real identity of the persons executing the Special Power of
Attorney
considering that it was a document which authorizes a certain Marcelino
G. Soriano, Jr. to sell one half of the pro-indiviso share of the
complainant
over a parcel of land situated in Davao City.
On the basis of her
investigation,
the Commissioner recommended the following:
Based on
the
foregoing, it is respectfully recommended that respondent Atty.
Restauro
be penalized for his aforementioned acts and negligence and that the
penalty
of reprimand be meted out on him. It is further recommended that his
Commission
as Notary Public be revoked for an indefinite period until the time
that
he will be able to show to the Honorable Supreme Court that he again
deserves
to be allowed to act as Notary Public in his place.chanrobles virtual law library
Subsequently, the IBP
Board
of Governors adopted the following Resolution of August 3, 2002:
RESOLVED to
ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and
Recommendation of the Investigating Commissioner of the above-entitled
case, herein made part of this Resolution/Decision as Annex "A"; and,
finding
the recommendation fully supported by the evidence on record and the
applicable
laws and rules, and considering respondent’s failure to exercise utmost
diligence in the performance [of] his functions as Notary Public and
for
his disregard without justifiable reason of the Orders of the
Commission,
Respondent is hereby REPRIMANDED with REVOCATION of his Commission as
Notary
Public for an indefinite period until the time that he will be able to
demonstrate to the court that he again deserves to be allowed to act as
Notary Public.
On January 13, 2003,
this
Court noted the aforesaid Resolution.
The principal function
of a notary public is to authenticate documents.[4]
When a notary public certifies to the due execution and delivery of a
document
under his hand and seal, he gives the document the force of evidence.[5]
Indeed, one of the purposes of requiring documents to be acknowledged
before
a notary public, in addition to the solemnity which should surround the
execution and delivery of documents, is to authorize such documents to
be given without further proof of their execution and delivery.[6]
A notarial document is by law entitled to full faith and credit upon
its
face.[7]
Courts, administrative agencies and the public at large must be able to
rely upon the acknowledgment executed before a notary public and
appended
to a private instrument.[8]
Hence, a notary public must discharge his powers and duties, which are
impressed with public interest,[9]
with accuracy and fidelity.cralaw:red
The Court agrees with
the Integrated Bar of the Philippines that in this case, respondent, as
notary public, should have exercised utmost diligence in ascertaining
the
true identity of the persons executing the said Special Power of
Attorney
considering that it authorized Marcelino G. Soriano, Jr. to sell the
pro
indiviso half share of complainant in the land covered by TCT No.
T-39100.chanrobles virtual law library
However, the act of
respondent does not warrant his disbarment or indefinite
suspension.
Considering all the circumstances in this case, particularly the
absence
of any evidence of fraud involved, this Court finds a suspension of six
(6) months as notary public sufficient. 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 a
document before them, especially when it involves disposition of a
property,
as this Court will deal with such cases more severely in the future.cralaw:red
WHEREFORE, respondent
Atty. Jose R. Restauro is hereby SUSPENDED as notary public for six (6)
months for failure to exercise utmost diligence in the performance of
his
functions as notary public, and WARNED that a similar incident in the
future
shall be dealt with more severely.cralaw:red
No costs.cralaw:red
SO ORDERED.cralaw:red
Davide, Jr., (Chairman),
C.J., Vitug, Ynares-Santiago, and Carpio, JJ., concur.
____________________________
Endnotes:
[1]
Exh. "E," Records, Vol. I, p. 7.chanrobles virtual law library
[2]
Exh. "B," Records, Vol. I, pp. 5-6.
[3]
Exh. "C," Records, Vol. I, p. 9.chanrobles virtual law library
[4]
Bernardo vda. de Rosales v. Ramos, Adm. Case No. 5645, July 2, 2002,
citing
Antillon v. Barcelon, 37 Phil. 148, 153 (1917).
[5]
Ibid.chanrobles virtual law library
[6]
Ibid.
[7]
Ibid.chanrobles virtual law library
[8]
Ibid., citing Joson v. Baltazar, Adm. Case No. 575, 194 SCRA 114, 119
(1991).
[9]
Villarin v. Sabate, Jr., 325 SCRA 123, 128 (2000). |