TAN TIONG BIO A.K.A. HENRY TAN, COMPLAINANT, VS. ATTY. RENATO L. GONZALES, RESPONDENT.

Tan versus Gonzales

The Case

This is an administrative case for disbarment — a disciplinary proceeding, not a civil suit for damages — brought by Tan Tiong Bio, also known as Henry Tan, against Attorney Renato L. Gonzales. The complainant charges the respondent lawyer with notarizing a deed of sale outside the territory covered by his notarial commission and without requiring the signatories to appear personally before him. The case matters because it fixes two rules every reviewee must carry: first, that a notary public may not perform notarial acts beyond the place named in his commission, and second, that the Notarial Law does not require the parties to a conveying instrument to appear before the notary at the same time. It also reminds us that an administrative complaint against a member of the bar does not prescribe.

Procedural History

The complainant filed his complaint affidavit with the Integrated Bar of the Philippines in November 2003. The case was referred to the Commission on Bar Discipline, which conducted a preliminary conference where the parties entered into a stipulation of facts, and thereafter held hearings. Investigating Commissioner Doroteo B. Aguila submitted a report and recommendation dated August 27, 2004, which the IBP Director for Bar Discipline approved and forwarded to the Supreme Court. The Commission recommended that the respondent be held liable for notarizing outside the area covered by his commission, but recommended dismissal of the charge that he notarized the deed without the personal appearance of the signatories. The case reached the Supreme Court as an original administrative matter, and the Court resolved it in a decision promulgated in August 2007.

Facts

The complainant purchased several parcels of land at the Manila Southwoods Residential Estates in Carmona, Cavite, a project owned and operated by Fil-Estate Golf and Development, Incorporated and Fil-Estate Properties, Incorporated. Fil-Estate Properties maintained its office at Renaissance Towers along Meralco Avenue in Pasig City. In one transaction, the complainant, as vendee, signed Deed of Sale Number 1108 covering a lot under the vendor's transfer certificate of title. The name and signature of Alice Odchigue-Bondoc appeared on the deed as the vendor's authorized representative. The respondent, who served as corporate counsel for Fil-Estate Properties and who was appointed and reappointed as notary public for Quezon City from 1996 to 2001, notarized that deed.

In 1995, the complainant made another Southwoods purchase. After paying the full purchase price and signing a deed with the title number and technical description left blank, he could not secure a certificate of title or a refund. This led him to file an estafa complaint with the Office of the City Prosecutor of Pasig City. In that proceeding, Ms. Bondoc executed a counter-affidavit stating that she had not personally met or transacted with the complainant, and that she and the complainant had signed the deed at different times and in different places, not in each other's presence. She added that she had signed hundreds of deeds for the company with buyers she had never met.

Relying on those statements, the complainant filed this disbarment complaint. At the preliminary conference, the parties stipulated that Deed 1108 was duly executed by the complainant and Ms. Bondoc, that the respondent notarized it as Document Number 367, Page 74, Book 8, Series of 2001 of his notarial register, that his notarial appointment covered only Quezon City while the document was notarized in Pasig City, and that the two signatories were not present at the same time when the document was notarized. In his answer, the respondent admitted that he did not recall the details of the notarization ceremony, but maintained that both signatories appeared before him, albeit at different times, and that no law requires their simultaneous appearance.

Issues

• Whether or not the respondent may be held administratively liable for notarizing a deed outside the territory covered by his notarial commission.
• Whether or not the respondent may be held liable for notarizing the deed without requiring the personal appearance before him of the signatories at the same time.
• Whether or not the complainant's delay in filing the complaint, or his motive in doing so, bars the disciplinary action.
• Whether or not the penalty of disbarment is warranted, or whether a lesser penalty suffices.

Applicable Provisions

Rule 1.01 of Canon 1 of the Code of Professional Responsibility provides:

A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

The Court held that notarizing outside one's commission is deliberate falsehood, because the notary makes it appear that he is duly commissioned when he is not, and this falls squarely within the prohibition.

Canon 7 of the Code of Professional Responsibility directs every lawyer to uphold at all times the integrity and dignity of the legal profession, and the Court found this canon likewise violated by the respondent's malpractice as a notary public.

Ruling

On the first issue, the Court ruled against the respondent. He admitted that his commission covered only Quezon City, yet he notarized Deed 1108 in Pasig City, and he further admitted having notarized hundreds of documents in Pasig City during the period of that commission. The Court held that this act partakes of malpractice of law and falsification. Performing a notarial act without a commission violates the lawyer's oath to obey the laws, more specifically the Notarial Law, and making it appear that one is duly commissioned when he is not is deliberate falsehood. The Court stressed that notarization is not an empty, meaningless, routinary act, but is invested with substantive public interest, so that only those who are qualified or authorized may act as notaries public.

On the second issue, the Court ruled in favor of the respondent and dismissed that charge. Being a notarized document, Deed 1108 and the solemnities attending its execution are disputably presumed to be regular. The complainant failed to overcome that presumption with clear and convincing evidence. Ms. Bondoc's counter-affidavit did not necessarily prove that the signatories did not appear before the notary to acknowledge the deed; at most it showed that she had not met the buyers, or that she did not appear together with them before the notarizing officer. The Court noted that the Notarial Law is silent as to whether the parties must be present before the notary at the same time when they acknowledge the deed's due execution.

On the third issue, the Court held that the respondent cannot seek refuge in the complainant's alleged delay or ill motive. The Court's disciplinary authority cannot be defeated or frustrated by a mere delay in filing the complaint or by the complainant's motivation, and an administrative complaint against a member of the bar does not prescribe.

On the fourth issue, the Court held that disbarment was not warranted, since that most severe sanction ought to be imposed only in a clear case of misconduct that seriously affects the respondent's standing and character, and should never be decreed where a lesser penalty such as temporary suspension could accomplish the end desired. Guided by its earlier ruling in Zoreta versus Simpliciano, however, the Court imposed a penalty higher than that recommended by the Commission on Bar Discipline.

Doctrine

A notary public who performs notarial acts outside the territory covered by his commission commits malpractice of law and falsification. He violates his lawyer's oath to obey the laws, more specifically the Notarial Law, and he violates Rule 1.01 of Canon 1 of the Code of Professional Responsibility, which forbids unlawful, dishonest, immoral or deceitful conduct, as well as Canon 7, which commands every lawyer to uphold the integrity and dignity of the legal profession. Notarization is invested with substantive public interest, and only those who are qualified or authorized may act as notaries public.

The Notarial Law does not require the parties to a conveying instrument to appear before the notary public at the same time when they acknowledge its due execution. A notarized deed carries the presumption of regularity, and the certification that the parties personally appeared before the notary must be upheld absent clear and convincing evidence to the contrary.

An administrative complaint against a member of the bar does not prescribe, and neither delay in filing nor the complainant's ill motive defeats the Court's disciplinary authority. Disbarment is imposed only in a clear case of serious misconduct, and where a lesser penalty such as suspension can accomplish the purpose, the lesser penalty is preferred.

Disposition

The Court permanently barred Attorney Renato L. Gonzales from being commissioned as a notary public and suspended him from the practice of law for two years, effective upon receipt of a copy of the decision, with copies furnished to all courts, the Integrated Bar of the Philippines, and the Office of the Bar Confidant.

Remember This

The one line to memorize: notarizing outside one's commission is deliberate falsehood and malpractice, but the Notarial Law does not demand that the signatories appear before the notary at the same time. Examiners use this case to test the limits of a notary's commission, the presumption of regularity of notarized deeds, and the rule that disciplinary complaints against lawyers do not prescribe.