Philippine Supreme Court Resolutions


Philippine Supreme Court Resolutions > Year 2008 > December 2008 Resolutions > [A.M. No. MTJ-05-1594 (Formerly OCA I.PI No. 04-1561-MTJ) : December 10, 2008] ARIEL MARSHALL DIVINAGRACIA V. JUDGE EVELIO E. ILANGA :




THIRD DIVISION

[A.M. No. MTJ-05-1594 (Formerly OCA I.PI No. 04-1561-MTJ) : December 10, 2008]

ARIEL MARSHALL DIVINAGRACIA V. JUDGE EVELIO E. ILANGA

Sirs/Mesdames:

Quoted hereunder, for your information, is a resolution of this Court dated 10 December 2008:

A.M. No. MTJ-05-1594 (Formerly OCA I.PI No. 04-1561-MTJ) Ariel Marshall Divinagracia v. Judge Evelio E. Ilanga)

RESOLUTION

Ariel Marshall Divinagracia (complainant) charges Judge Evelio E. Ilanga (respondent) of the Municipal Trial Court (MTC) Dumangas, Iloilo of serious misconduct for undertaking the preparation, notarization and for failure to furnish complainant a copy of a Contract of Lease and Last Will and Testament of Tomas Dequina (Dequina).

In his Complaint dated February 18, 2004, complainant alleges: that respondent notarized a Contract of Lease and Last Will and Testament of Dequina on June 11, 1993; that the notarization of said, documents is not within respondent's official duties and Junctions and has no direct relation to the performance of his duties as judge; that fee notarial fees he collected were not for the account of the government and were not turned over to the municipal treasurer of Dumangas; that there was no certification in the Contract of Lease made by respondent to the effect that there are no lawyers or notary public in said municipality; that respondent's exercise of the functions of a notary public constitutes private practice of law in violation of Canon 5[1] Rule 5.07[2] of the Code of Judicial Conduct and Rule 6.02[3] of the Code of Professional Responsibility; and that on February 4, 2004, complainant's father Manuel Divinagracia wrote respondent a letter requesting for a copy of the Last Will and Testament of Dequina, however respondent failed to give a copy of the document which constitutes serious misconduct. Complainant prays that respondent be dismissed from the judiciary and be disbarred from the practice of law.[4]

Respondent, in his Comment dated June 4, 2004, admits having prepared and notarized the said documents. He explains however that when Dequina and his sister went to him on June 11, 1993, he advised them to go to Iloilo City since he was not generally permitted to prepare and notarize documents. However, the two pleaded that they were too old to travel, with Dequina then being 88 years old and had difficulty walking; respondent, taking pity on the two, acceded to their request He then instructed one of his staff to accompany them to the Office of the Clerk of Court who charged and collected the legal fees and paid the same to the Office of the Municipal Treasurer. He asserts that since his appointment as a judge, he has never engaged in private practice of law and Ms preparation and notarization of the Contract of Lease and Last Will and Testament of Dequina were isolated which he was only persuaded to do because he felt at the time, the strict prohibition of the rules should be relaxed when the actual circumstances beg for an exception. He believes Dequina should not be denied his right to manage his property as well as dispose of it simply because there is no resident notary public in Dumangas at the time. While he admits that the Contract of Lease does not have certification that there was no lawyer or notry public in Dumangas at the time, such failure was merely due to inadvertence, as it was not Ms usual practice to notarize documents, and was not because of any malice or ill motive, for which he begs the forgiveness and indulgence of the Court. As to his failure to give complainant a copy of Dequina's Last Will, respondent explains that he gave all the copies of the documents to Dequina and did not retain a copy thereof as he was not obliged to retain them.[5]

Complainant filed a Reply dated November 4, 2004, claiming that respondent was actually in cahoots with Eddie Dolendo, Escolastica Dolendo Go, Francisco Gaborne and Elias Dolendo in manipulating and forcing Dequina into signing the documents they themselves prepared; that respondent collected a huge sum for the service he rendered, and that at the time of the notarization of the documents, it is not true that there was no notary public in Dumangas.[6]

Respondent filed a Rejoinder dated December 6, 2004, vehemently denying complainant's allegations.[7]

In the Resolution dated June 29, 2005, the Court redocketed the case as a regular administrative matter and required the parties to manifest if they are willing to submit the case for resolution based on the pleadings filed,[8] Complainant manifested his willingness to have the case thus submitted[9] while respondent expressed his desire to have the case tried.[10] The Court on October 5, 2005 then ordered the Executive Judge of the Regional Trial Court (RTC), Dumangas, Iloilo, Branch 68, to conduct an investigation on the matter and submit his report and recommendation thereon.[11]

In his Report dated July 13,2007, Judge Roger B. Patricio found respondent liable for violation of Supreme Court Circular No. 1-90 for notarizing the Last Will and Testament and Contract of Lease of Dequina without a certification that there was no available lawyer or notary public in said place at the time. Judge Patricio did not find respondent liable however of the charge that he collected notanal fees from Dequina or from any person for preparing and notarizing the said documents in view of the absence of competent evidence to substantiate such claim.[12]

In its Memorandum dated January 21, 2008, the Office of Hie Court Administrator (OCA)[13] agreed with the Investigating Judge that the preparation and notarization of the subject documents by respondent is considered unauthorized practice of law and respondent's failure to certify in the documents the lack of notaries public in the municipality is in violation of SC Circular No. 1-90. The OCA then recommended that respondent be found guilty of violating SC Circular No. 1-90 and that a penalty of P10,500.00 fine be imposed on him with warning that a repetition of the same or similar offense will be dealt with severely in the future.[14] As to respondent's failure to give complainant's father a copy of the last will and testament, however, the OCA found that respondent is not required under Article 806[15] of the Civil Code to retain a copy thereof.[16]

The Court agrees that respondent failed to fully comply with SC Circular No. 1 -90 but only with respect to respondent's failure to make the required certification.

Supreme Court Circular No. 1-90, "Power of the Municipal Trial Court Judges and Municipal Circuit Trial Court Judges to Act as Notaries Public Ex-Oficio," provides that:

xxxx

MTC and MCTC judges may act as notaries public ex oficio in the notarization of documents connected only in the exercise of their official functions and duties. They may not, as notaries public ex oficio undertake the preparation and acknowledgment of private documents, contracts and other' acts of conveyance which bear no direct relation to the performance of their functions as judges. The 1989 Code of Judicial Conduct not only enjoins judges to regulate their extra-judicial activities in order to minimize the risk of conflict with their judicial duties, but also prohibits them from engaging in the private practice of law.

However, the Court, taking judicial notice of the fact that there are still municipalities which have no lawyers or notaries public, rules that MTC and MCTC judges assigned to municipalities or circuits with no lawyers or notaries public may, in their capacity as notaries public ex oficio perform any act within the competency of a regular notary public, provided that: (1) all notarial fees charged be for the account of the Government and turned over to the municipal treasurer; and, (2) certification be made in the notarized documents attesting to the lack of any lawyer or notary public in such municipality or circuit (Emphasis and underscoring supplied)

From the said provision, it is clear that in municipalities where there are no lawyers or notaries public, MTC judges assigned thereat may, in their capacity as notaries public ex oficio, perform any act within the competency of a regular notary public. That is, in municipalities where there are no other lawyers or notaries, judges may participate in the preparation and acknowledgment of private documents, contracts and other acts of conveyances, which bear no direct relation to the performance of their functions, provided that the following requirements are met: (1) all notarial fees charged be for the account of the Government and turned over to the municipal treasurer; and, (2) a certification be made in the notarized documents attesting to the lack of any lawyer or notary public in such municipality or circuit[17]

Here, respondent prepared and notarized the Contract of Lease and Last Will and Testament of Dequina. Although, such acts have no direct relation to the performance of his functions as a judge, in view of the absence of any notary public in said municipality at the time, which fact was not disproved by any competent evidence, respondent as a notary public ex oficio, acted well within the bounds provided by the circular.

Respondent's only infraction is his failure to make a certification in the said documents attesting to the lack of any lawyer or notary public in such municipality as required by the said rule. Considering that the OCA does not dispute the lack of lawyer or available notary public in Dumangas, Iloilo, respondent deserves merely a reprimand for his neglect.

As there is no evidence presented to support complainant's other charges that he was not furnished a copy of the notarized document, the Investigating Judge and the OCA correctly dismissed the same.

WHEREFORE, the Court finds Judge Evelio E. Ilanga of the Municipal Trial Court, Dumangas, Iloilo, GUILTY for failure to comply with the certification requirement under Supreme Court Circular No. 1-90. He is REPRIMANDED with a stem WARNING that a commission of the same or similar act in the future shall be dealt with more severely.

SO ORDERED.

Very truly yours,

(Sgd.) LUCITA ABJELINA-SORIANO
Clerk of Court

Endnotes:


[1] Canon 5. A judge should regulate extra-judicial activities to minimize the risk of conflict with judicial duties.

[2] Rule 5.07. A judge shall not engage in the private practice of law. Unless prohibited by the Constitution or law, a judge may engage in the practice of any other profession provided that such practice will not conflict or tend to conflict with judicial functions.

[3] Rule 6.02. A lawyer in the government service shall not use his public position to promote or advance his private interests, nor allow the latter to interfere with his public duties.

[4] Rollo, pp.. 1-4.

[5] Rollo, pp. 13-19.

[6] Id. at 21-23.

[7] Id at 33-35.

[8] Id. at 36.

[9] Id.at 38.

[10] Id at 42.

[11] Id at 47
.
[12] Id at 95.

[13] Through Court Administrator Zenaida N. Elepa´┐Żo and Judicial Supervisor Marilou Marzan-Amigan

[14] Rollo II, pp. 82-84.

[15] Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court.

[16] Rollo, p. 83.

[17] Gravela v. Villanueva, 444 Phil.109, 114 (2003).



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