DR. BASILIO MALVAR VS. ATTY. CORA JANE P. BALEROS
A.C. No. 11346
March 8, 2017
FACTS:
The complainant is the owner of a parcel of land located in Barangay Pagudpud, San Fernando City, La Union.2On January 7, 2011, the complainant executed a Deed of Absolute Sale3 in favor of Leah Mallari over the said lot for the amount of Five Hundred Thousand Pesos (P500,000.00). This transaction was acknowledged by the children of the complainant through a document denominated as Confirmation of Sale.
The process of conveying the title of the lot in the name of Mallari spawned the legal tussle between the parties. According to the complainant, an agreement was made between him and Mallari wherein he unde1iook to facilitate the steps in order to have the title of the lot transferred under Mallari's name. However, without his knowledge and consent, Mallari who was not able to withstand the delay in the delivery of the title of the land sold to her allegedly filed an Application for Certification of Alienable and Disposable Land6 as a preliminary step for the segregation and titling of the same before the Community Environment and Natural Resources Office of the Department of Environment and Natural Resources (DENR), San Fernando City, La Union using the complainant's name and signing the said application. A civil case for collection of sum of money was instituted by Mallari before the Municipal Trial Court (MTC) of Aringay, La Union seeking reimbursement for the expenses she incurred by reason of the transfer and titling of the property she purchased. A compromise agreement was forged between the parties which failed because two out of the four checks issued by the complainant were unfunded. This prompted Mallari to file a criminal case for violation of Batas Pambansa Bilang 22, otherwise known as The Bouncing Checks Law, against the complainant before the MTC of Aringay, La Union.
The complainant claimed that the respondent, by notarizing the assailed Application for Certification of Alienable and Disposable Land, made it appear that he executed the same when the truth of the matter was he never went to the office of the respondent for he was in Manila at the time of the alleged notarization and was busy performing his duties as a doctor.
On June 15, 2015, Commissioner Maria Angela Esquivel (Commissioner Esquivel) found dent was negligent in the performance of her duties as a notary public and violated the Notarial Rules, thereby recommending disciplinary imposition against her. The pertinent portion of the Report and Recommendation24 reads:
WHEREFORE, in view of the foregoing, it is hereby recommended that the Respondent's a notary public be revoked; that she be disqualified for being a notary public for two (2) years with a stem warning that a repetition of similar offense shall be dealt with more severely.
ISSUE:
Whether or not the respondent is guilty of violating the 2004 Rules on Notarial Practice and the Code of Professional Responsibility.
HELD:
The Court concurs with the conclusion of Commissioner Esquivel that the respondent violated several provisions of the Notarial Rules. The complainant insists that the Application for Certification of Alienable and Disposable Land was notarized sans his presence. An affidavit requiring a jurat which the respondent admittedly signed and notarized on August 18, 2010 forms part of the subject document.
The jurat is that end part of the affidavit in which the notary certifies that the instrument is sworn to before her, thus, making the notarial certification essential. 29 The unsubstantiated claim of the respondent that the complainant appeared before her and signed the contested document in her presence cannot prevail over the evidence supplied by the complainant pointing that it was highly improbable if not impossible for him to appear before the respondent on the date so alleged that the subject document was notarized. The complainant furnished in his Sworn Judicial Affidavit submitted before the court patients' record cards showing that he attended to a number of them on August 18, 2010 in De Los Santos Medical Center, E. Rodriguez, Sr. Avenue, Quezon City.
The respondent indeed transgressed Section 2(b) of Rule IV of the Notarial Rules by affixing her ure and seal on the notarial certificate of the affidavit contained in the Application for Certification of Alienable and Disposable
Land in the absence of the complainant and for failing to ascertain the identity of the affiant which provides:
SEC. 2. Prohibitions.
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(b) 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 through competent evidence of identity as defined by these Rules.
The physical presence of the affiant ensures the proper execution of the duty of the notary public under the law to determine whether the former's signature was voluntarily affixed.
Competent evidence of identity under Section 12 of Rule II of the Notarial
Rules is defined as follows:
Sec. 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 d signature of the individual; 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.
Further, the respondent displayed lack of diligence by the nonobservance of the obligations imposed upon her under Section 2 of Rule VI of the Notarial Rules, to wit:
SEC. 2. Entries in the Notarial Register.
(a) For every notarial act, the notary shall record in the notarial register at the time of notarization the following:
(1) the entry number and page number;
(2) the date and time of day of the notarial act;
(3) the type of notarial act;
( 4) the title or description of the instrument, document or proceeding;
( 5) the name and address of each principal;
( 6) the competent evidence of identity as defined by the Rules if the signatory is not personally known to the notary;
(7) the name and address of each credible witness swearing to or affirming the person's identity;
(8) the fee charged for the notarial act;
(9) the address where the notarization was performed if not in the notary's regular place of business; and
(10) any other circumstance the notary public may deem of significance or relevance.
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( e) The notary public shall give to each instrument or document executed, sworn to, or acknowledged before him a number corresponding to the one in his register, and shall also state on the instrument or document the page/s of his register on which the same is recorded. No blank line shall be left between entries.
The Court finds unacceptable the respondent's defiance of the Notarial Rules. Under the circumstances, the respondent should be made liable not only as a notary public who failed to discharge her duties as such but also as a lawyer who exhibited utter disregard to the integrity and dignity owing to the legal profession. The acts committed by the respondent go beyond being mere lapses in the fulfilment of her duties under the Notarial Rules, they comprehend a parallel breach of the CPR particularly Canon 9, Rule 9.01, Canon 1, Rule 1.01 which provides that "a lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct" and the Lawyer's Oath which amplifies the undertaking to do no. falsehood and adhere to laws and the legal system being one of their primordial tasks as officers of the court. Given the evidentiary value accorded to notarized documents, the failure of the notary public to record the document in her notarial register corresponds to falsely making it appear that the document was notarized when, in fact, it was not.45 It cannot be overemphasized that notaries public are urged to observe with utmost care and utmost fidelity the basic requirements in the performance of their duties; otherwise, the confidence of the public in the integrity of notarized deeds will be undermined.
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