1. MAXIMINO GAMIDO Y BUENAVENTURA, petitioner, vs. NEW BILIBID PRISONS (NBP) OFFICIALS, respondents.

G.R. No. 114829, 1 March 1995.

DAVIDE, JR., J.:

The Supreme court required Atty. Icasiano M. dela Rea to show cause why no disciplinary action should be taken against him for making it appear in the jurat of the petition in this case that petitioner Gambino subscribed the verification when in truth and in fact the petitioner did not.

In his explanation, Atty. dela Rea admitted having executed the jurat without the presence of petitioner, who was imprisoned in the New Bilibid Prisons at the time of notarization. 

He said he did it in the honest belief that since it is jurat and not an acknowledgement, it would be alright to notarize without the petitioner’s presence since he knew the latter. 

ISSUE: W/N executing a jurat without the presence of the person swearing is proper.

RULING: No.

A jurat is that part of an affidavit in which the officer certifies that the instrument was subscribed and sworn to before him. 

Accordingly, in a jurat, the affiant must sign the document in the presence of and take his oath before a notary public or any other person authorized to administer oaths.

An acknowledgment, on the other hand, shall be made before a notary public in which the notary public 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.

It is obvious that the party acknowledging must likewise appear before the notary public or any other person authorized to take acknowledgments of instruments or documents.

The claim or belief of Atty. dela Rea that the presence of petitioner was not necessary for the jurat because it is not an acknowledgment is patently baseless.

His prior acquaintance and friendship with petitioner provides no excuse for non-compliance with his duty. If Atty. dela Rea were faithful to his duty as a notary public and if he wanted to accommodate a friend who was inside a prison, he could have gone to the latter's cell.

Thus, Atty. dela Rea committed grave misconduct when he agreed to prepare the jurat in the petition in this case in the absence of petitioner, making it appear that the latter personally signed the certification of the petition and took his oath before him when in truth and in fact the said petitioner did not.

2. ARNEL S. CRUZ, complainant, vs. ATTY. LUNINGNING Y. CENTRON, Acting Clerk of Court, RTC-OCC, Calapan City, respondent.

R E S O L U T I O N

AUSTRIA-MARTINEZ, J.:

Before us is an administrative matter which stemmed from a letter-complaint dated January 2, 2001, originally filed with the Office of the Ombudsman, by Arnel S. Cruz against Atty. Luningning Y. Centron, Clerk of Court VI, Regional Trial Court, Calapan City, Oriental Mindoro, for acts constitutive of gross misconduct.

In a letter dated January 26, 2001, the Office of the Deputy Ombudsman for Luzon referred the instant matter to the Office of the Court Administrator (OCA) of this Court.[1]

Complainant alleges: Atty. Centron assisted a certain Gloria Logdat and Conchita de la Cruz in consummating the sale of a parcel of land covered by Original Certificate of Title (OCT) No. 2186, in the name of one Joaquina Jabat. Respondents assistance consisted in preparing and notarizing the documents of sale. The said sale is illegal because the property covered by the sale is still the subject of reconstitution and Extra-Judicial Settlement among the heirs. As a result of the illegal sale, Logdat and de la Cruz are charged with estafathrough falsification of public documents. Respondent took

advantage of her being a lawyer to solicit the trust and confidence of the buyers of the subject parcel of land. Respondent is involved in the disappearance of OCT No. 2186, and she refuses to surrender the title which is in the possession of one of her relatives.[2] Complainant prays that respondent be disbarred and removed from office.

In compliance with an Indorsement dated September 24, 2001 of the OCA, respondent filed her Comment dated October 29, 2001, denying involvement in the preparation of the documents and in the consummation of the sale of the parcel of land covered by OCT No. 2186. Respondent claims that her only participation in the said sale is that she was the one who notarized the deed of sale on account that she was requested by the parties to notarize the same because they cannot afford the notarial fee being charged by the notary public they earlier approached. Respondent also denies any involvement in the alleged loss of the owners duplicate copy of OCT No. 2186. She claims that Conchita Acyatan de la Cruz and Gloria Acyatan Salamat-Logdat gave the said certificate of title to their lawyer, Atty. Apolonia A. Comia-Soguilon.[3]

On July 26, 2002, the OCA submitted a report finding the complaint to be without basis. However, the OCA observed that respondent violated the provisions of Section 242 of the Revised Administrative Code as well as Section G, Chapter VIII of the Manual for Clerks of Court when she notarized a deed of conveyance, a document which is not connected with the exercise of her official functions and duties as Ex-Officio Notary Public. Accordingly, the OCA recommended that respondent be fined in the amount of P2,000.00 and sternly warned that a repetition of the same or similar act(s) in the future will be dealt with more severely.

In a resolution dated February 17, 2003, we resolved to require the parties to manifest within ten days from notice if they are willing to submit the matter for resolution on the basis of the pleadings filed. In compliance therewith, complainant filed a manifestation dated March 28, 2003, indicating his desire to submit the case for resolution on the basis of the pleadings filed. Respondent failed to file the required manifestation within the period allowed by the Court.

In a Resolution dated March 8, 2004, we required respondent to show cause why she should not be disciplinarily dealt with or held in contempt for her failure to file the required manifestation.

In a Compliance dated May 3, 2004, respondent explained that her failure to timely file her manifestation was brought about by her heavy volume of work and enormous responsibility as Clerk of Court of the Regional Trial Court of Calapan City. She manifested her desire to submit the instant case for resolution on the basis of the pleadings filed.

We agree with the findings and recommendation of the OCA.

In administrative cases for disbarment or suspension against lawyers, the quantum of proof required is clearly preponderant evidence and the burden of proof rests upon the complainant.[4]

In the present case, we find that complainant failed to present clear and preponderant evidence to show that respondent had direct and instrumental participation in the preparation of documents and the subsequent sale of the subject parcel of land covered by OCT No. 2186. Aside from the deed of sale covering the subject parcel of land which was notarized by respondent, no competent evidence was shown that would directly link her to the said sale. While it may be logical to assume that respondent was the one who prepared the deed of sale since she was the one who notarized it, we cannot give evidentiary weight to such a supposition in the absence of any evidence to support it. Moreover, complainants allegation that respondent influenced the buyers of the subject parcel of land is contradicted by the sworn affidavit of Adelfa Manes, who is one of the buyers of the disputed piece of land. Manes attested to the fact that respondent did not convince nor influence them in buying the subject property. Likewise, we find no competent evidence to prove that respondent is responsible for the alleged loss of the owners duplicate copy of OCT No. 2186.

Nonetheless, we find that respondent is guilty of violating Section 41 (as amended by Section 2 of R. A. No. 6733)[5] and Section 242[6] of the Revised Administrative Code, in relation to Sections G,[7] M[8] and N,[9] Chapter VIII of the Manual for Clerks of Court.

Under these provisions, Clerks of Court are notaries public ex officio, and may thus notarize documents or administer oaths but only when the matter is related to the exercise of their official functions. As we held in Astorga vs. Solas,[10] clerks of court should not, in theirex-officio capacity, take part in the execution of private documents bearing no relation at all to their official functions.[11] In the present case, it is not within respondents competence, as it is not part of her

official function and duty, to notarize the subject deed of sale. Respondent is guilty of abuse of authority.

In Astorga,[12] we imposed a fine of P5,000.00 on a clerk of court who was found guilty of notarizing various documents and administering oaths on matters which are alien to his official duties. In the present case, it appearing that this is respondents first offense of this nature and that she has only notarized one document, we find the OCAs recommended penalty of a fine of P2,000.00 commensurate to the offense committed.

WHEREFORE, Atty. Luningning Y. Centron, Clerk of Court, Regional Trial Court of Calapan City, Oriental Mindoro, is found guilty of abuse of authority and is hereby ORDERED to pay a FINE of P2,000.00. She is STERNLY WARNED that a repetition of the same or similar acts in the future shall be dealt with more severely.

SO ORDERED.

3. ZENAIDA B. TIGNO, IMELDA B. TIGNO and ARMI B. TIGNO, petitioners, vs. SPOUSES ESTAFINO AQUINO andFLORENTINA AQUINO and the HONORABLE COURT OF APPEALS, respondents.

D E C I S I O N

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 (the Aquinos) filed a complaint for enforcement of contract and damages against Isidro Bustria (Bustria).[1] The complaint sought to enforce an alleged sale by Bustria to the Aquinos of a one hundred twenty thousand (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.[2] 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 (7) years.

Upon submission, the Court of First Instance of Pangasinan, Branch VII, approved and incorporated the compromise agreement in aDecision which it rendered on 7 September 1981.

Bustria died in October of 1986.[3] On 1 December 1989, petitioner Zenaida B. Tigno (Tigno), in substitution of her deceased father Isidro Bustria,[4] attempted to repurchase the property by filing a Motion for Consignation. She deposited the amount of Two Hundred Thirty Thousand Pesos (P200,000.00) with the trial court, now Regional Trial Court (RTC), Branch 55 at 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.[5]

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,[6] seeking the revival of the decision in Civil Case No. A-1257, so that it could be executed accordingly.[7] 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.[8]

Among the witnesses presented by the Aquinos during trial were Jesus De Francia (De Francia), the instrumental witness to the deed of sale, and former Judge Franklin Cario (Judge 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 (Deed of Sale)[9] 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.[10]

In an Order dated 6 April 1994, the RTC refused to admit the Deed of Sale in evidence.[11] A Motion for Reconsideration praying for the admission of said exhibit was denied in an Order dated 27 April 1994.[12]

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.[13] The RTC likewise observed that nowhere in the alleged deed of sale was there any statement that it was acknowledged by Bustria;[14] 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[15] or that Aquino had raised the matter of the deed of sale in his previous Opposition to the Motion for Consignation.[16] The RTC then stressed that the previous Motion for Execution lodged by Tigno had to be denied since more than five (5) 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.[17]

The Aquinos interposed an appeal to the Court of Appeals.[18] In the meantime, the RTC allowed the execution pending appeal of itsDecision.[19] On 23 December 1996, the Court of Appeals Tenth Division promulgated a Decision[20] reversing and setting aside the RTCDecision. 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 ajurat did not render the instrument invalid; and that the non-assistance or representation of Bustria by counsel did not render the document null and ineffective.[21] 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,[22] 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 thisPetition for Review. However, while this Court is not ordinarily a trier of facts,[23] factual review may be warranted in instances when the findings of the trial court and the intermediate appellate court are contrary to each other.[24] 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 )

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

FRANKLIN CARIOEx-Officio Notary

PublicJudge, M.T.C.

Alaminos, Pangasinan

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.[25] Under Section 127 of the

Land Registration Act,[26] which has been replicated in Section 112 of Presidential Decree No. 1529,[27] the Deed of Sale should have been acknowledged before a notary public.[28]

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.

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.[29] Petitioners point out, citing Tabao v. Asis,[30] 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.[31] 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.[32]

Respondents contention is erroneous. Municipal Trial Court (MTC) and Municipal Circuit Trial Court (MCTC) 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.[33] However, as far back as 1980 in Borre v. Moya,[34] the Court explicitly declared that municipal court judges such as Cario may notarize only documents connected with the exercise of their official duties.[35] TheDeed 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-OfficioNotary Public, Judge, MTC:

[A notary ex officio] should not compete with private law practitioners or regular notaries in transacting legal conveyancing business.

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" (p. 16, Rollo, Annex D of Complaint). In doing so, he obliterated the distinction between a regular notary and a notary ex officio.[36]

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.[37] 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,[38] 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.[39]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.

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.

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.[40] 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.[41]

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.[42] 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.[43]

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.

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.

Public documents are:

(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;

(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. (Emphasis supplied.)

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.

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

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.[44] 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.[45] 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.[46] 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 lawyers 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 ninety-three (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 eighty-nine (89) years old. However, Bustrias signature on the Deed of Sale, which if genuine was affixed when he was already ninety-three (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,[47] 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.[48] 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 dated 23 December 1996 and Resolution dated 9 June 1997 of the Court of Appeals in CA-G.R. CV No. 49879 is

REVERSED, and the Decision dated 18 August 1994 of the Regional Trial Court of Alaminos, Pangasinan, Branch 55, in Civil Case No. A-1918 is REINSTATED. Costs against respondents.

SO ORDERED.4. Fuentes v. Buno, A.M. No. MTJ-99-1204 (Formerly OCA IPI No. 97-355-MTJ), July 28, 2008; 560 SCRA 22 (2008)Posted on June 20, 2012 by albinoski2005      Rate This

FIRST DIVISION [A.M. No. MTJ-99-1204 (Formerly OCA IPI No. 97-355-MTJ), July 28, 2008]GERONIMO C. FUENTES, COMPLAINANT, VS. JUDGE ROMUALDO G. BUNO, PRESIDING JUDGE, MUNICIPAL CIRCUIT TRIAL COURT (MCTC), TALIBON-GETAFE, BOHOL, RESPONDENT.D E C I S I O NLEONARDO-DE CASTRO, J.:This administrative case against Judge Romualdo G. Buno of the 4TH Municipal Circuit Trial Court (MCTC), Talibon-Getafe, Bohol, stemmed from a complaint filed by Geronimo C. Fuentes charging him with abuse of discretion and authority and graft and corruption.In his complaint, Geronimo Fuentes alleged that he is one of the nine (9) heirs of Bernardo Fuentes, their father, who owned an agricultural land located at San Jose, Talibon, Bohol, and that respondent judge prepared and notarized an “Extra-Judicial Partition with Simultaneous Absolute Deed of Sale” of the said agricultural land, executed by complainant’s mother Eulalia Credo Vda. de Fuentes, widow of Bernardo Fuentes, and Alejandro Fuentes, on his own behalf and on behalf of his brothers and sisters, including Geronimo Fuentes, as heirs/vendors and one Ma. Indira A. Auxtero, as vendee; that in the aforesaid document, the aforementioned agricultural land was sold, transferred/conveyed by the heirs/vendors to the vendee despite the fact that in his Special Power of Attorney (SPA), he merely appointed his brother, Alejandro Fuentes to mortgage said agricultural land but

not to partition, much more to sell the same. According to complainant Geronimo Fuentes respondent judge notarized said document as ex-officio Notary Public, thereby abusing his discretion and authority as well as committing graft and corruption.In his 1st Indorsement dated December 2, 1997, the then Court Administrator required the respondent to file his comment on the complaint within ten days. In compliance thereto respondent judge submitted his answer, which prayed for the dismissal of the complaint. He admitted that on December 24, 1996, while he was the Presiding Judge of the MCTC, Talibon-Getafe, stationed at Talibon, Bohol, he notarized an Extra-Judicial Partition of Real Property with Simultaneous Absolute Deed of Sale, described as Document No. 1158, Series of 1996. He explained his reasons and related the circumstances surrounding the case as follows:1. That in the last week of the month of September, 1996, Mrs. Eulalia Vda. de Fuentes, Alejandro Fuentes together with Mrs. Helen A. Auxtero and Miss Ma. Indira Auxtero came to my house and requested me to make and prepare a document of sale between the Heirs of Bernardo Fuentes and Ma. Indira Auxtero as Vendee and upon verification of the papers they presented to the undersigned it was found out that the land subject of the sale is a conjugal property of the deceased Bernardo Fuentes and Eulalia Credo Vda. de Fuentes. Being a conjugal property, the undersigned advised them to secure special power of attorney for the children of Bernardo Fuentes who are out of town.2. On the 20th of December, 1996 Eulalia Vda. de Fuentes and Alejandro Fuentes came back to the house bringing a special power of attorney executed by Bonifacio Fuentes, Benjamin Fuentes, Urbano Fuentes, Samuela Fuentes, Rufina Fuentes and Bernardo Fuentes, Jr. carbon copy of the said Special Power of Attorney herewith attached as Annex “A” of the answer. All these special power of attorney empowers Alejandro Fuentes to execute a Deed of Sale of a parcel of land under Transfer Certificate of Title No. 24937 registered in the name of Bernardo Fuentes, their deceased father.Since no special power of attorney was presented to the undersigned executed by PO2 Geronimo Fuentes, the undersigned refused to make their document of sale but Eulalia Vda. de Fuentes and Alejandro Fuentes earnestly requested the undersigned to make and prepare the necessary document saying that the special power of attorney of PO2 Geronimo Fuentes is coming and they are in urgent need of the

money and because of their request, the undersigned prepared the document, and Extra-Judicial Partition of Real Property with Simultaneous Absolute Deed of Sale in favor of Ma. Indira Auxtero. That PO2 Geronimo Fuentes was included in the Deed of Sale because of the assurance of Alejandro Fuentes and Eulalia Vda. de Fuentes that the Special Power of Attorney of PO2 Geronimo Fuentes is coming.3. That after the necessary document was prepared Eulalia Vda. de Fuentes and Alejandro Fuentes together with the vendee, Ma. Indira Auxtero signed the document on December 24, 1996 and on that day the said document was notarized by the undersigned.4. That few days after the document was notarized, the undersigned learned that the Special Power of Attorney executed by PO2 Geronimo Fuentes empowered Alejandro Fuentes only to mortgage the property so Mrs. EulaliaVda. de Fuentes, Alejandro Fuentes and the vendee, Ma. Indira Auxtero were called by the undersigned about the Special Power of Attorney executed by PO2 Geronimo Fuentes but Eulalia Fuentes and Alejandro Fuentes explained to the undersigned that they will be responsible for PO2 Geronimo Fuentes considering that the money was already spent by them and the vendee, Ma. Indira Auxtero also assured the undersigned that if PO2 Geronimo Fuentes insists to take back his share, she is willing and in fact she reserved the share of Geronimo Fuentes, hence, the transaction was completed.5. The undersigned is making and notarizing the document outside of office hour cannot be said to have abuse his discretion and authority since he was earnestly requested by Eulalia Vda. de Fuentes and Alejandro Fuentes to prepare and notarized the document with authority from his brothers and sisters and with respect to Eulalia Vda. de Fuentes, she is selling her share of the conjugal property which is one-half (1/2) of the entire parcel of land.In the aforementioned answer, respondent judge contended that he could not be charged of graft and corruption, since in a municipality where a notary public is unavailable, a municipal judge is allowed to notarize documents or deeds as ex-officio notary public. To support his claim, he presented two certifications: one, from Atty. Azucena C. Macalolot, Clerk of Court VI of the RTC, Branch 52, Talibon, Bohol, who certified that according to their records and dockets, no petition for commission and/or renewal of commission as notary public was

granted by the said court for calendar year 1996 and no appointment as notary public was issued for that year; and the other, from Mayor Juanario A. Item of Talibon, Bohol who also certified that no notary public was staying and residing in the Municipality of Talibon, Bohol during the year 1996.Respondent judge contended that he did nothing wrong in preparing and notarizing the said document and that he acted in good faith and in obedience to the earnest plea of complainant’s mother and siblings who were in urgent need of money, and with their assurance that complainant’s SPA was forthcoming. In his attempt to explain his lack of malice, respondent judge narrated that after learning that the SPA only authorized his brother, Alejandro Fuentes to mortgage the property, he summoned the latter, his mother and the buyer of the land. Alejandro then assured him that they would be responsible to the complainant and that the buyer was willing to return complainant’s share in the property. Respondent further questioned complainant’s sincerity in filing the complaint because the latter allegedly wanted merely the respondent to persuade the buyer to return the whole property to him instead of his share only.In its Memorandum Report, the OCA recommended that the present case be re-docketed as a regular administrative matter and that respondent be fined in the amount of P10,000.00 for unauthorized notarization of a private document, the same to be deducted from his retirement benefit. The said OCA recommendation was premised on the lack of authority of respondent judge to prepare and notarize the document in question, which had no direct relation to the performance of his official functions as a judge.While Section 76 of Republic Act No. 296,[1] as amended, and Section 242 of the Revised Administrative Code[2]authorize MTC and MCTC judges to perform the functions of notaries public ex officio, the Court laid down the scope of said authority in SC Circular No. 1-90. Pertinently, the said Circular reads:MTC and MCTC judges may act as notaries public ex officio in the notarization of documents connected only with the exercise of their official functions and duties [Borre v. Mayo, Adm. Matter No. 1765-CFI, October 17, 1980, 100 SCRA 314; Penera v. Dalocanog, Adm. Matter No. 2113-MJ, April 22, 1981, 104 SCRA 193]. They may not, as notaries publicex officio, undertake the preparation and acknowledgment of private documents, contracts and other acts of conveyances 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 (Canon 5 and Rule 5.07).However, the Court, taking judicial notice of the fact that there are still municipalities which have neither lawyers nor notaries public, rules that MTC and MCTC judges assigned to municipalities or circuits with no lawyers or notaries public may, in the capacity as notaries public ex officio, 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 (Lapena, Jr. vs. Marcos, Adm. Matter No. 1969-MJ, June 29, 1982, 114 SCRA 572); and, (2) certification be made in the notarized documents attesting to the lack of any lawyer or notary public in such municipality or circuit.The above-quoted SC Circular No. 1-90 prohibits judges from undertaking the preparation and acknowledgment of private documents, contracts and other deeds of conveyances which have no direct relation to the discharge of their official functions. In this case, respondent judge admitted that he prepared both the document itself, entitled “Extra-judicial Partition with Simultaneous Absolute Deed of Sale” and the acknowledgment of the said document, which had no relation at all to the performance of his function as a judge. These acts of respondent judge are clearly proscribed by the aforesaid Circular.While it may be true that no notary public was available or residing within respondent judge’s territorial jurisdiction, as shown by the certifications issued by the RTC Clerk of Court and the Municipal Mayor of Talibon, Bohol, SC Circular No. 1-90 specifically requires that a certification attesting to the lack of any lawyer or notary public in the said municipality or circuit be made in the notarized document. Here, no such certification was made in the Extra-Judicial Partition with Simultaneous Deed of Sale. Respondent judge also failed to indicate in his answer as to whether or not any notarial fee was charged for that transaction, and if so, whether the same was turned over to the Municipal Treasurer of Talibon, Bohol. Clearly, then, respondent judge, who was the sitting judge of the MCTC, Talibon-Getafe, Bohol, failed to comply with the aforesaid conditions prescribed by SC Circular No. 1-90, even if he could have acted as notary public ex-officioin the absence of any lawyer or notary public in the municipality or circuit to which he was assigned.

Whether or not respondent judge truly acted in good faith when he prepared and acknowledged the subject document is beside the point since he failed to strictly observe the requirements of SC Circular No. 1-90. As noted by the then Court Administrator, the document involved here is Document No. 1158, which shows that numerous documents were notarized by respondent judge in the year 1996 alone. Respondent judge was silent as to whether he charged fees when he notarized documents and if so, whether he turned over the notarial fees to the municipal treasurer. Moreover, contrary to Rule IV, Sec. 6(a) of the Rules on Notarial Practice of 2004,[3] respondent notarized the said document without the SPA of the attorney-in-fact of the vendors which gave rise to the legal problem between the vendors and the vendee concerning the scope of authority of the aforesaid attorney-in-fact. By failing to comply with the conditions set for SC Circular No. 1-90 and violating the provision of the Rules on Notarial Practice of 2004, respondent judge failed to conduct himself in a manner that is beyond reproach and suspicion. Any hint of impropriety must be avoided at all cost. Judges are enjoined by the Code of Judicial Conduct to regulate their extra-judicial activities in order to minimize the risk of conflict with their judicial duties.[4]

Rule 140 of the Rules of Court deals with the administrative sanctions imposable on erring judges. Violation of Supreme Court rules, directives and circulars is a Less Serious Charge punishable by suspension from office or a fine of more than P10,000.00 but not exceeding P20,000.00. However, respondent judge’s application for optional retirement had already been approved by the Court en banc on March 10, 1998 in Administrative Matter No. 9449-Ret. and the release of his retirement benefits was allowed provided that the amount of P20,000.00 was withheld from the said retirement benefits, pursuant to the Resolution of this Court’s Third Division on June 16, 1999 in this administrative case, formerly docketed as Administrative Matter OCA IPI No. 97-355-MTJ.WHEREFORE, respondent Judge ROMUALDO G. BUNO, now retired, of the Municipal Circuit Trial Court of Talibon-Getafe, Bohol, is found LIABLE for failure to comply with SC Circular No. 1-90 and the Rules on Notarial Practice. He is hereby ORDERED to pay a FINE of Twelve Thousand Pesos (P12,000.00), to be deducted from the amount withheld from his retirement benefits.SO ORDERED.