OCA CIRCULAR NO. 44-2004, March 19, 2004

For the information and guidance of all concerned, quoted
hereunder is the Decision of the Second Division dated November 11,2003
in Administrative Case No. 6139, to wit:

“Dominador L. Cabanilla, married to Revelina Badua, then a I s
Lieutenant in the Signal Detachment of the Armed Forces of the
Philippines, filed an application for a miscellaneous patent over a
parcel of land with an area of 240 square meters located at No. 25^th Street, 67-B West Rembo, Fort Bonifacio, Rizal.^[1] He was allowed to construct a house on the said lot pending action on his application.^[2]

When Revelina B. Cabanilla died intestate on December 6, 1986,
she was survived by her husband, Dominador and iheir children, namely,
Manuel, Jaime, Leticia, Virginia, and Marissa.^[3]

In February 1998, Dominador sold his right over a 34-square-
meter portion of the said house to his neighbor, Rodolfo Sabangan, for
P20,000.00. Thereafter, Rodolfo brought an” already-signed one-page Deed
of Sale dated February 22, 1988 to Dominador for the latter’s
signature,^[4] Dominador affixed his signature above his typewritten name.^[5]
When he reviewed the said deed, however, Dominador noticed that
contrary to the agreement, it appeared that he was relinquishing his
rights not only over the portion of the house thereon but also the lot
where such portion of the house stood. Dominador, thus, made the
following notation at the bottom of the said deed:

That the vendor is willing to sell his right over a portion of
the house with an area of thirty-four (34) square meters with each
(sic) improvement thereat. 2-20-88.^[6]

Dominador also wrote on the left margin of the deed the words ‘Please change/ and initialed the same, ^[7]
Dominador then returned the deed to Rodolfo. A few days thereafter,
Rodolfo gave Dominador a copy of the said deed However, the deed was not
revised as requested by the latter.^[8] Moreover, appended to the deed as ‘page V thereof
was an acknowledgment containing the names of the Cabanilla children,
including Eddie Cabanilla, Johny Cabanilla, Raul Cabanilla, Diosdado
Cabanilla, Ferdinand Cabanilla and David Cabanilla. It appeared in the
acknowledgment that those listed therein were also vendors of the
property.^[9]

Dominador’s application for a miscellaneous patent was granted.
On March 16,1994, the President of the Philippines issued Miscellaneous
Patent No. 007602-94-207 8 in favor of Dominador L. Cabanilla, who by
then had already retired from the military as a major. On September
5,1995, Original Certificate of Title No. 2222 was issued over the
property in the names of the Cabanilla spouses. ^[10]

Barely a year thereafter, Dominador filed a civil complaint
against Rodolfo for the annulment of the said deed of sale with the
Regional Trial Court (RTC) of Makati City, docketed as Civil Case No.
95-844. However, the defendant Rodolfo Sabangan, a seaman, was on board
an international sea-going vessel and could not be served with summons.
His family engaged the services of respondent Atty. Ana Luz B.
Cristal-Tenorio. The respondent filed on July 17, 1995, a motion for
substituted service of summons.^[11] Nonetheless, the respondent prepared and filed an Answer to the Complaint for and in behalf of Rodolfo.^[12]

On October 16, 1995, Dominador and Jaime, Raul, Manuel, David
and Eddie, all surnamed Cabanilla, and Leticia C. Quirona, Marissa
Cabanilla and Virginia C. Cruz executed a ‘Joint Affidavit of Complaint’
for falsification of a document under Article 171 in relation to
Article 172 of the Revised Penal Code against Rodolfo and the respondent
with the Office of the City Prosecutor of Makati City, docketed as LS.
No. 95K-40216.^[13] In her Counter-Affidavit, the respondent alleged, inter alia, that
the parties to the Deed of Sale appeared before her and acknowledged
the authenticity of their signatures therein, and even showed their
residence certificates which she entered in her notarial register; and
that after finding that everything was in order, she proceeded to
notarize the deed of sale which was prepared by the parties themselves.
She also averred that she exercised due diligence in ascertaining if the
signatures appearing in the deed of sale were authentic and genuine;
that she was not a handwriting expert who could determine if the
signatures appearing in the said document were forged or not; and that
she acted in good faith when she notarized the deed.^[14]

On February 2, 1996, Assistant City Prosecutor Juan O. Bermejo,
Jr. issued a Resolution dismissing the complaint in IS. No. 95K-40216,
but found probable cause for the filing of an Information for the said
crime against Rodolfo. The Investigating Prosecutor stated that the
respondent acted in good faith in notarizing the said deed.^[15]
An information was filed with the Metropolitan Trial Court of Manila,
docketed as Criminal Case No. 237511 charging Rodolfo with falsification
of a public document. A warrant was issued for his arrest^[16]

Meanwhile, during the pre-trial in Civil Case No. 96-844 on
January 3,1997, Rodolfo failed to appear. The court issued an order
declaring him as in default and authorizing Dominador to adduce his
evidence ex-parte on January 13,1997.^[17]

When the case was called for the reception of evidence ex- parte
on the said date, the court discovered that it had no I yet acquired
jurisdiction over the defendant. The court noted that the respondent,
who appeared as counsel for the defendant, was secured by the
defendant’s wife and not by the defendant himself. The court set aside
its order declaring the defendant as in default. On ‘Joint Motion’ of
the parties, the court issued an order archiving the case for 90 days.^[18]

Dominador and his children, as plaintiffs, filed another civil
complaint against Rodolfo, et al., as defendants, with the RTC of
Makati, docketed as Civil Case No. 97-574, for the annulment of the same
deed of sale. The defendants filed a motion to dismiss the case on the
ground of litis pedentia and forum-shopping. The court issued an Order on June 27, 1997, granting the defendants’ motion and dismissing the case.^[19] The plaintiffs filed a motion for reconsideration, which was, however, denied. ^[20]

On March 20, 2002, Dominador executed an ‘Affidavit of
Complaint’ and filed the same with the Integrated Bar of the
Philippines (IBP). He alleged, inter alia, that contrary to
what the respondent stated in the acknowledgment portion of the deed of
sale, he never met and appeared before her when she notarized the deed,
and that the signatures appearing opposite their respective names were
forgeries.^[21] The complainant appended to his complaint a copy of the deed of sale.^[22] He also submitted a copy of the ‘Joint Affidavit of Complaint’ executed on October 16, 1995.^[23] The complainant prayed for the respondent’s disbarment.

In her Answer with Counterclaim, the respondent alleged, inter alia:

. . . [T]he parties to the Deed of Sale appeared
before the herein Respondent and acknowledged the authenticity of their
signatures before the herein Respondent entered the same document in the
Notarial Register. Thereafter, Respondent, finding that everything is
in order, proceeded to notarized (sic) the Deed of Sale which were
prepared by the parties themselves. ^[24]

The IBP referred the matter to Atty. Wilfredo E.J.E. Reyes as Investigating Commissioner for report and recommendation.

Dominador also filed a criminal complaint for perjury against
the respondent with the Office of the City Prosecutor of Manila,
docketed as IS. No. 02D-14455. The case was assigned to Assistant City
Prosecutor Jesse A. Tiburan for investigation.^[25]

During the hearing on December 5, 2002, only the complainants
Manuel Cabanilla and Marissa Cabanilla appeared. They submitted a copy
of the ‘Joint Affidavit of Complaint’ dated October 1, 2002, where it
was alleged, inter alia, that:

7. That after the death of our mother REVELINA B. CABANILLA last
   December 6, 1986 we become (sic) co- owners of the said property and our
   father DOMINADOR L. CABANILLA cannot sell the same without our consent
   and conformity.

8. That the Sale was made in violations of the existing (sic) of
   our rights as legitimate children of DOMINADOR L. CABANILLA AND REVELINA
   B. CABANILLA.

9. That this is our course of action in our own rights over the
   properties involved independent of the rights of the others over the
   conjugal property.^[26]

The complainants Marissa Cabanilla and Manuel Cabanilla staled
that they did not appear before the respondent on February 22, 1988 ; in
fact, Manuel Cabanilla was out of the country on the said

date.

On January 9, 2002 , the complainants filed their Position
Paper. Complainants Dominador Cabanilla, Leticia C. Quirona, Virginia C.
Cruz and Marissa Cabanilla appeared before the Investigating
Commissioner and identified their signatures in their Joint Affidavit of
Complaint dated October 16, 1995 , and affirmed the contents thereof.

The Investigating Commissioner submitted his Report dated June 9, 2003
, where he recommended that the respondent’s commission as notary
public be revoked, and that she be disqualified from being appointed as
notary public for a period of two years. On June 21, 2003 , the IBP
Board of Governors approved Resolution No. XV-2003-382, affirming the
said recommendation.

The only issue in this case is whether or not the respondent
notarized the deed of sale without the complainant Dominador L.
Cabanilla and his children (Manuel Cabanilla, et al.) appearing before
her. The complainant asserts that he and Manuel Cabanilla, et a’., never
met the respondent or appeared before her, and that the sigiiatures
appearing on the deed of sale purporting to be theirs are forgeries.
They claim that Manuel Cabanilla, et al, are not parties to the deed,
and that the only parties are Dominador, as vendor and Rodolfo as
vendee. Except for the numbers and dates of issue of the residence
certificates purporting to be those of Dominador and Rodolfo which were
handwritten in the acknowledgment of the deed, the numbers of the
residence certificates of Manuel Cabanilla, et a!., were not completely
indicated therein.

On the other hand, the respondent asserts that although
Dominador appears as the only vendor in the first page of the deed of
sale, Manuel Cabanilla, et al., consented to and approved the deed.
Dominador and Manuel, et al., themselves prepared the deed and brought
it to her for notarization and that she ascertained the authenticity of
the signatures appearing thereon before she notarized the said deed.
She, likewise, contends that Rodolfo, as vendee, took possession of the
property after the deed was executed. Although Dominador was able to
secure title over the entire property, including that portion already
sold under Original Certificate of Title No. 2222, Dominador
nevertheless demanded that Rodolfo vacate the same. Failing to recover
the property he had already sold to Rodolfo, Dominador filed the
complaint for disbarment against the respondent on April 16, 2002 , or
fourteen years from the date of the deed. The respondent asserts that
the only purpose for filing the affidavit-complaint is to recover the
property from Rodolfo. Finally, the respondent claims that it was only
on October 16, 1995, or eight years after the deed of sale was executed,
that Dominador filed a

criminal complaint for falsification of a document against her
and. Rodolfo which, however, was dismissed by Assistant Prosecutor Juan
Bermejo, Jr. for lack of probable cause.

We affirm Resolution No. XV-2003-382 of the IBP Board of

Governors.

Under Section 1 (a) of Act 2103, a notary public taking the
acknowledgment in a document or instrument is mandated to 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. To ‘acknowledge before’ means to avow; to
own as genuine, to assert, to.admit; and ‘before’ means in front or
preceding in space or ahead of.^[27] A party acknowledging must appear before the notary public.^[28]

Every contract, deed or other document acknowledged before a notary public shall have a certification thereon that the parties
thereto have presented their respective residence certificates or are
exempt from tax, and there shall be entered by the notary public as a
part of such certification the number, place of issue and date of each
residence certificate as aforementioned.^[29]
The presentation of the residence certificate is required where a
document is acknowledged before a notary public to ascertain the
identity/identities of the person/s appearing before Mm and to avoid
impostors.^[30] The failure of 3 notary public to comply with the said requirement is sufficient basis for the revocation of his commission.^[31]
A notary public is mandated to exercise the functions of his office and
must observe with utmost care the basic formalities and requisites in
the performance of his duties.^[32] Otherwise, the confidence of the public in the integrity of the deed would be undermined.^[33]
After all, notarization is not an empty routine. It converts a private
document into a public one and renders it admissible in court without
further proof of its authenticity.^[34]

A notary public should not notarize a document unless the
persons who signed the same are the veiy same persons who executed and
personally appeared before the said notary public to attest to the
contents and truth of what are stated therein.^[35]
The presence of the parties to the deed making the acknowledgment will
enable Hie notary public to verify the genuineness of the signature of
the affiant.^[36] A notary public is enjoined from notarizing a fictitious or spurious document.^[37] The function of a notary public is, among others, to guard against any illegal deed.^[38]

In this case, this Court is convinced that the respondent
notarized the deed of sale without the parties therein appearing before
her and acknowledging the same. The respondent failed to exercise the
functions of the office and to comply with the mandates of the law.

First. The respondent notarized the deed of sale despite patent
defects appearing on the face thereof. Dominador is the true and
f<!–wfu! owner of a right over the subject parcel of land and the
house constructed thereon. In the first and second paragraphs of the
deed, Dommador appears to be willing to sell his right over a portion of
the land with an area of thirty-four (34) square meters, more or iesi:.
and a portion of the house, together with its improvements theron. The cited paragraph reads:

That the VENDOR IS the true and lawful owner of right over a
certain parcel of land located at No. 67-B, 25 th Street, West Rembo,
Fort Bonifacio, Makati, Metro Manila, together with its improvements
thereon;

That the VENDOR is willing to sell his right over a portion of
the said parcel of land, with an area of THIRTY- FOUR (34) square
meters, more or less, and a portion of the house together with its
improvements thereon, and the VENDEE is willing to purchase the same;^[39]

However, Dominador encircled the words ‘over a portion of the land with an area of thirty-four (34) square meters’ in the second paragraph, and drew and arrow towards the phrase in the same paragraph which he encircled reading ‘a portion of the house together with its improvements’
to indicate that this was exactly what he was willing to sell to
Rodolfo. This is borne by what Dominador wrote at the bottom of the
page:

That the vendor is willing to sell his right over a portion of
the house with an area of thirty-four (34) square meters with each
(sic) improvement thereat. 2-20-88.^[40]

Dominador drew an arrow from the quoted handwritten provision to
the second paragraph of the deed, to indicate that only a portion of
the house with an area of thirty-four (34) square meters was being sold,
and that the second paragraph should be substituted by the handwritten
provision at the bottom of the deed. Conformably, Dominador also
encircled the words ‘over a portion of the bouse’ in the third paragraph
of the deed which reads:

That for and in consideration of the sum of ___________
(illegible) ____________ Philippine Currency, in hand paid by the VENDEE
to the VENDOR, the VENDOR by these presents, does hereby SELL, TRANSFER
and CONVEY his rights over the said portion of land and a portion of
the house together with its improvements thereon to the said VENDEE, his
assigns and successors- in-interest.^[41]

All the foregoing clearly shows that Dominador had agreed to
convey to Rodolfo only his right over a portion of his house with an
area of 34 square meters, not including the parcel of land where it
stood. He wanted Rodolfo to revise the deed to reflect their true
agreement. This is the reason why Dominador wrote ‘Please change’ on the
left margin of the deed and affixed his initial thereon. All these
could not have escaped the notice of a conscientious and meticulous
notary public. It behooved the respondent to refrain from notarizing the
deed and instead advise the party/parties to revise the same to reflect
their true agreement. By notarizing the deed of sale despite blatant
defects thereon, and despite a party’s express request for its revision,
the respondent demeaned the lofty office of the notary public.

Second. The only vendor appearing on page 1 of the deed is
Dominador Cabanilla. The names of Manuel Cabanilla, et al, do not appear
thereon. Not being vendors, there was no deed or instrument for them to
acknowledge. This notwithstanding, the respondent certified in the
acknowledgment in page 2 of the deed that Manuel Cabauilhi, et al.,
were, likewise, vendors.^[42]

Third. The respondent notarized the deed of sale
without inquiring the parties to show their respective certificates, to
verify their identities and to ascertain the genuineness of the
signatures appearing opposite their respective names. The acknowledgment
in page 2 of the deed of sale reads:

A C K N O W L E D G M E N T

REPUBLIC OF THE PHILIPPINES )
CITY OF MANILA ) S.S.

BEFORE ME, a Notary Public, for and in the above jurisdiction personally appeared:

		(Initial illegible)
DOMINADOR L. CABANILLA	—	RC No. A-1733621 issued on 1 (illegible) 88 at Makati, M.M.
LETICIAC.QUIRONA	—	RC No. (Name) issued on 8 Jan 88 at Quezon City
JAIME CABANILLA	—	RC No. Name and signature (illegible) issued on 9 Jan 88 at (illegible) City
JOHNY CABANILLA	—	RC No. Manuel Cabanilla issued on 7 Jan 88 at Makati City
VIRGINIA CRUZ	—	RC No. Signature (illegible) issued on 6 Jan 88 at Taguig
EDDIE CABANILLA	—	RC No. Signature (illegible) issued on (blank) at (blank)
RAUL CABANILLA	—	RC No. Signature (illegible) issued on 7 Jan 88 at (blank)
DIOSDADO CABANILLA	—	RC No. Signature (illegible) issued on (blank) at (blank)
MARISSA CABANLLA	—	RC No. M. Cabanilla issued on (blank) at (blank)
FERDINAND CABANILLA	—	RC No. Signature (illegible) issued on (blank) at (blank)
DANIEL CABANILLA	—	RC No. Signature (illegible) issued on (blank) at (blank)

hereinafter known as the VENDORS; and RODOLFO RODOLFO with RC
No. 114399500 issued on 1/11/88 at Pateros, M.M., hereinafter known as
the VENDEE, known to me and to me known to be the same persons who
executed the foregoing instrument consisting of two (2) pages including
the page on which this acknowledgment is written and acknowledged before
me that the same are their free voluntary act and deed.

WITNESS MY HAND AND SEAL on the date and place above written.

	(SGD.)
Doc. No. 196	ANA LUZ B. CRISTAL TENORIO
Page No. 40	NOTARY PUBLIC
Book No. I	UNTIL DECEMBER 31, 1988
Series of 1998	PTR NO. 049364- Jan. 19, 1987
	MANILA[43]

The numbers of the residence certificates, the places of issue,
except those of Leticia C. Quirona, Jaime Cabanilla, Johny Cabaniila,
Virginia Cruz, as well as the dates of the said certificates were
issued, except those of Jaime Cabanilla, Johny Cabanilla, Virginia Cruz,
Raul Cabanilla, are not indicated in the acknowledgment. On the spaces
for the numbers of the residence certificates, names/illegible
signatures are written. Although Johny Cabaniila is listed in the
acknowledgment as one of the vendors, ‘Manuel Cabanilla’ is written on
the space meant for his residence certificate number.

Clearly, the respondent violated her duty as a notary public. A
notary public is mandated to discharge sacred duties which are dictated
by public policy and, as such, are impressed with public interest.
Faithful observance and utmost respect of the legal solemnity of an oath
in an acknowledgment or jurat is sacrosanct.^[44] in (his wise, the respondent miserably failed.

What cannot be countenanced is the respondent’s temerity to
falsely state under oath, in her Counter-Affidavit in IS. No. 95K- ‘102 I
6. that those listed in page 2 of the deed of sale showed their
residence certificates to her and that she found the deed of sale in
order.^[45]

Furthermore, the respondent’s reliance on the ruling of this Court in Imson-Souweha vs. Rondez^[46]is
misplaced because the facts ihei uin are markedly different. In the
aforecited case, the facts are as follows; (a) the respondent therein
requested the complainant to secure her tax account number; (b) on the
date when the respondent presented the extrajudicial settlement to the
heirs of the deceased, two of the sisters of the complainant assured the
respondent that they had already executed a special power of attorney
in her favor authorizing the latter to affix her signature on the said
date; (c) because of respondent’s trust and confidence in the heirs of
the deceased, the respondent notarized the deed; (d) by her actuations
subsequent to the notarization of the deed, the complainant ratified the
said deed. The Court agreed with the respondent’s submission therein
that:

If respondent is to be faulted at all, it is simply because of
his complete trust and confidence on the heirs of Anastacio,
particularly Flora Imson-Elvina and Lydia Imson-Sinlao whom the
respondent never suspected would commit the grievous scheme of
misrepresenting themselves as the representatives of the complainant in
the matter of the settlement deed.”^[47]

The respondent cannot seek refuge in the complainant’s delay in
filing the instant complaint for disbarment against her. She cannot,
likewise, invoke the complainant’s ill motive in filing the said
complaint. The Court’s disciplinary authority cannot be defeated or
frustrated by a mere delay in filing the complaint, or by the
complainant’s motivation to do so. The practice of law is so intimately
affected with public interest that it is both a right and a duty of the
State to control and regulate it is order to promote the public welfare.^[48]
By swearing the lawyer’s oath, an attorney become-; a guardian of the
truth and the rule of law, and an indispensable instrument in the fair
and impartial administration of justice – a vital function of democracy a
failure of which is disastrous to society. Any departure from the path
which a lawyer must follow as demanded by the virtues of his profession
shall not be tolerated by this Court as the disciplining authority.^[49]

The respondent undermined the confidence of the public on
notarial documents and thereby breached Canon I of the Code of
Professional Responsibility which requires lawyers to uphold the
Constitution, obey the laws of the land and promote respect for the law
and legal processes, when she notarized a Deed of Absolute Sale which
was patently defective. She also violated Rule 1.01 thereof, which
proscribes lawyers from engaging in unlawful, dishonest, immoral or
deceitful conduct.^[50] In
acknowledging that the parties personally came and appeared before her,
the respondent also made an untruthful statement, thus violating Rule
10.01 of the Code of Professional Responsibility and her oath as a
lawyer that she shall do no falsehood.^[51]

WHEREFORE, for breach of notarial law, the commission of
respondent Atty. Ana Luz B. Cristal-Tenorio, as Notary Public, if still
existing, is REVOKED. She is DISQUALIFIED from being commissioned as such for a period of Two (2) Years.

Respondent Atty. Ana Luz B. Cristal-Tenorio is also SUSPENDED
from the practice of law for a period of One (l)year effective
immediately for violation of Rule 10.01 of the Code of Professional
Responsibility. She is DIRECTED to report the date of
her receipt of this Decision to the Court to enable it to determine the effectivity of the revocation of her notarial commission, her
disqualification from being commissioner as notary public, as well as her
suspension from the practice of law.

Let copies of this Decision be furnished the Office of the Bar Confidant and the Integrated Bar of the Philippines.

SO ORDERED.”

Copy of the decision was received by respondent on December 11, 2003, as shown by Registry Receipt No. 63420.

__19__March 2004.

 ^[2] Ibid.

 ^[3] Id. at 61-62.

 ^[4] Id. at 5 & 8.

 ^[5] Id. at 6.

 ^[6] Id. at 6,8.

 ^[7] Id.

 ^[8] Id. at 5 & 8.

 ^[9] Id. at 6-7.

 ^[10]
Id. at 6-8.

 ^[11] Id. at 71.

 ^[12] Id. at 26.

 ^[13] Records, pp. 8-9.

 ^[14] Id. at 10-11.

 ^[15] Id. at 28-30.

 ^[16] Id. at 70.

 ^[17] Id. at 26.

 ^[18] Id.

 ^[19] Id. at 27.

 ^[20] Id. (Except Diosdado Cabanilla and Johny Cabanilla).

 ^[21] Rollo, p. 5.

 ^[22]
Id. at 6-7.

 ^[23] Id. at 8-9.

 ^[24] Id. at 20.

 ^[25] Id. at 46.

 ^[26] Id. at 62.

 ^[27] Cruz v. Villasor, 54 SCRA 31 (1973).

 ^[28] Coronado v. Felongco, 344 SCRA 565 (2000).

 ^[29]
Article VII, Section 251, Revised Administrative Code.

 ^[30]
Guerrero v. Hcmondo, 68 3CRA76 (1975),.

 ^[31] Section 247, par. 5(h), Revised Administrative Code; Guerrero v. Bernardo, supra.

 ^[32] Ramirez. Ner, 21 SCRA207 (1967).

 ^[33] Ibid.

 ^[34] Conrado v. Felongco, supra,

 ^[35] Villarin v. Sabate, Jr., 325 SCRA 123 (2000).

 ^[36] Maligsa v. Cabantitig, 272 SCRA408 (1997).

 ^[37] Ibid.

 ^[38] Vailes v. Arzaga-Quijano, 318 SCRA 411 (1999)

 ^[39] Rollo, p. 6.

 ^[40] Ibid. (Underscoring supplied)

 ^[41] Id.

 ^[42] Galumpines vs. Court of Appeals, 336 SCRA 538 (2000).

 ^[43] Rollo, p.7.

 ^[44] Arrieta v. Llosa, 282 SCRA 248 (1997).

 ^[45] Rollo, p.10.

 ^[46] 279 SCRA 258 (1997).

 ^[47] Id. at 264.

 ^[48]
Mevilla v. Salubre, 348 SCRA 592 (2000).

 ^[49] Radjaie v. Manese, A. C. No. 4958, April 3, 2003.

 ^[50] Aquino v. Manese, A. C. No. 4958, April 3, 2003.

 ^[51] Fidgencio v. Atty. Martin, A. C. No. 3223, May 29, 2003.