A.M. No. MTJ-99-1239




Republic of the Philippines SUPREME COURT FIRST DIVISION A.M. No. MTJ-99-1239 July 29, 2005 (formerly: A.M. OCA IPI No. 97-277-MTJ) VICENTE M. BATIC, Complainant, vs. JUDGE VICTORIO L. GALAPON, JR., Municipal Trial Court of Dulag, Leyte, Respondent. x------------------------------------------------------x A.M. No. MTJ-05-1595 (formerly: A.M No. OCA-IPI No. 98-496-MTJ) HORST FRANZ ELLERT, Complainant, vs. JUDGE VICTORIO L. GALAPON, JR., Municipal Trial Court of Dulag, Leyte, Respondent. x------------------------------------------------------x A.M. No. MTJ-05-1596 (formerly: A.M. OCA-IPI No. 99-670-MTJ) HORST FRANZ ELLERT, Complainant, vs. JUDGE VICTORIO L. GALAPON, JR., Municipal Trial Court of Dulag, Leyte, Respondent. x ---------------------------------------------------------------------------------------- x D E C I S I O N AZCUNA, J.: This involves three administrative complaints filed against Judge Victorio L. Galapon, Jr., of the Municipal Trial Court of Dulag, Leyte. In Administrative Matter No. MTJ-99-1239 (formerly A.M. No. OCA-IPI No. 97-277-MTJ), filed on April 7, 1997, complainant Vicente M. Batic, co-accused in Criminal Case No. 12305 (entitled People of the Philippines v. Vicente Batic and Lualhati Ellert for Grave Coercion) charged respondent judge with graft and corruption, grave abuse of authority, gross ignorance of the law, dishonesty and conduct prejudicial to the best interest of the service. He claims that respondent issued a warrant of arrest against him and his co-accused in the aforesaid case two days before the complaint was filed. As proof, he attached a warrant of arrest dated March 18, 1997 and a complaint dated March 20, 1997. Batic also charged respondent with engaging in unauthorized notarial practice for notarizing a Deed of Absolute Sale between a certain Antonio Caamic and Lualhati V. Ellert on January 25, 1990. In Administrative Matter No. MTJ-05-1595 (formerly A.M. No. OCA-IPI No. 98-496-MTJ), initiated on October 1, 1997 through a letter by complainant Horst Franz Ellert, a French national and husband of Lualhati Ellert, respondent judge was charged with having prepared and notarized one Deed of Sale in the name of Lualhati Ellert, with the document describing the latter as "single." Complainant adds that a certain Attorney Custodio P. Cañete also notarized another Deed of Sale indicating Lualhati Ellert as "single," and that this Atty. Cañete, together with his wife and respondent judge are in connivance towards depriving him of his share in their conjugal properties. In Administrative Matter No. MTJ-05-1596 (formerly A.M. No. OCA-IPI No. 99-670-MTJ), complainant Horst Franz Ellert again filed on January 11, 1999, this time in the form of an Affidavit, a complaint charging respondent with ignorance of the law, grave misconduct and gross negligence in the performance of duties for having prematurely issued and signed a warrant of arrest against his wife and Vicente Batic on March 18, 1997, before a complaint was actually and officially received on March 20, 1997. Upon request by the Court Administrator dated May 26, 1997, Judge Galapon filed his Answer to the first case on June 18, 1997, which Answer he adopted as his Comment to the two other complaints. He also filed an Addendum to Answer and Manifestation dated December 23, 1999. Respondent explains that on March 17, 1997, the complainants in the aforementioned criminal case brought their statements to him and swore to them before him. The following day, March 18, the police department of Dulag, Leyte, brought the complaint in the same criminal case to respondent together with the supporting affidavits. Complainants then swore to their complaint before him. Respondent decided to immediately conduct the preliminary examination because the witnesses resided in a barangay far from the town proper of Dulag and it would be expensive for them to come back on another date. After finding probable cause, he issued an Order on the same day for the issuance of the warrant of arrest for the two accused. However, it was already late in the afternoon so the draft Order and the warrant of arrest could no longer be typed. They were typed the next day. On March 19, 1997, respondent went on leave of absence to attend the graduation of his daughter. On March 20, 1997, he signed the Order together with the warrant and since the draft order was prepared on March 18, 1997 both order and warrant of arrest were dated March 18, 1997. He then brought the records to the table of the clerk of court, Mr. Blandino Bautista, who stamped on all of them the current date. The date "March 20, 1997" marked on the criminal complaint thus only signifies the date when the records were received by the clerk of court from him. Regarding his act of notarization, respondent claims that he did not prepare the document and that his participation was limited to its acknowledgment, for which the corresponding fee was collected by and paid to the clerk of court. He says that he was constrained to notarize the document because the only notary public in Dulag, Leyte was not in town and the vendor was compelled to go to him because the vendee was in a hurry. He adds that he at that time sincerely believed that when no notary public is available, the Municipal Trial Courts may act as ex-officio notary public, provided the fees shall be for the government. He finishes his argument by saying that now that there are two notaries public in his municipality, he has refrained from notarizing any deed. Judge Galapon contends lastly that complainant Batic, a "media man," is using his influence to besmirch and destroy his good name, that Lualhati Ellert harbors a vicious grudge against him because he dismissed a complaint she filed against her own brother, and that Horst Ellert has filed several harassment suits against him. Respondent attached supporting affidavits to prove the merits of his case. In Administrative Matter No. MTJ-99-1239, Court Administrator Alfredo L. Benipayo found in his Agenda Report dated September 23, 1999 that respondent’s explanation regarding the disparity on the dates appearing in the documents comprising the record of Criminal Case No. 12305 was plausible and satisfactory. He said that the fact that the warrant of arrest was dated March 18, 1997 while the criminal complaint was filed on March 20, 1997, was an innocuous procedural lapse. The important thing was that the warrant of arrest was not issued or released for implementation before the filing of the complaint. However, citing Circular No. 1-90, the Court Administrator found respondent to have exceeded his authority in acting as notary public ex-officio and notarizing the Deed of Absolute Sale because when he did so, there was a notary public in respondent’s station at Dulag, Leyte in the person of Atty. Celerino Refuerzo. The fact that Atty. Refuerzo was temporarily out of town on January 25, 1990, the date he notarized the questioned Deed of Absolute Sale, did not make the situation fall under the exception contemplated in the Circular. Moreover, the notarized document contained no certification "attesting to the lack of any lawyer or notary public in such municipality or circuit" as required in proviso No. 2 of the exception. Therefore, the Court Administrator recommended that the case be re-docketed as a regular Administrative Matter and that respondent be ordered to pay a fine of Three Thousand Pesos (₱3,000) for unauthorized notarization of a private document, with a warning that commission of the same or similar acts in the future shall be dealt with more severely. This matter was later consolidated by the Court on August 28, 2000 with Administrative Matter No. MTJ-05-1596 upon recommendation by Court Administrator Alfredo L. Benipayo, in his July 24, 2000 Agenda Report finding that the complaint of Mr. Ellert was the same as that of Mr. Batic regarding the issuance of the warrant of arrest. Then, on October 16, 2000, the Court resolved to refer the administrative cases to the Executive Judge of the Regional Trial Court of Tacloban City for investigation, report and recommendation. In Administrative Matter No. MTJ-05-1595, the Officer-in-Charge of the Office of the Court Administrator Bernardo T. Ponferrada, in his May 11, 2000 Agenda Report, finding issues of fact, recommended that the case be referred to the Executive Judge of the Regional Trial Court of Tacloban City for investigation, report and recommendation. This was adopted by the Court in its June 26, 2000 resolution. On March 18, 2004, Executive Judge Santos T. Gil of the Regional Trial Court of Tacloban City submitted his investigation report. He declined conducting an investigation regarding Administrative Matter No. MTJ-05-1596 because it was the same as Administrative Matter No. MTJ-00-1294 (formerly OCA-IPI-00859-MTJ) which was already resolved by the Court. He also did not conduct an investigation regarding Administrative Matter No. MTJ-99-1239 because the same had already been resolved by the Court Administrator on September 23, 1999. However, regarding the notarization of the Deed of Sale between Antonio Caamic and Lualhati V. Ellert, Judge Gil noted that this was not excusable. Nevertheless, in light of the fact that on January 25, 1990 when the Deed was notarized, Circular No. 1-90 had not yet been issued,¹ and since at that time the prohibitions in law as to whether municipal judges can notarize documents were still unclear, Judge Gil said that Judge Galapon in good faith believed that he had the authority to notarize the document. Thus, he recommended that the case against respondent be dismissed. Judge Gil also discussed the effects of respondent having stated in the Deed that Lualhati Ellert was "single," but this matter should be ventilated in the proper court. On June 7, 2004, we referred the cases to the Office of the Court Administrator for its evaluation, report and recommendation. On October 27, 2004, the Office of the Court Administrator submitted its Memorandum. It held that the complaints should be dismissed with respect to respondent’s issuance of the warrant of arrest because the inconsistency of the dates in the warrant and criminal complaint are simply procedural lapses made in good faith. However, with regard to the notarization of a Deed of Absolute Sale, it disagreed with the findings and recommendation of Investigating Judge Gil that respondent judge should be exonerated. It reasoned that the rule on the power of the MTC and MCTC judges to act as notaries public ex-officio has been established even before the issuance of Circular No. 1-90 dated 26 February 1990. It cited the cases of Borre v. Moya,² and Penera v. Dalocanog,³ wherein the Court ruled that judges are empowered to perform the functions of notaries public ex-officio, but such authority is limited to the notarization of only those documents connected with the exercise of their official functions. It added that this instance not being the first that respondent committed the infraction, having been found in A.M. No. MTJ-00-1294 (formerly OCA IPI No. 00-859-MTJ – Horst Franz Ellert vs. Judge Galapon, Jr., July 31, 2000) to have engaged in unauthorized notarial work, he should be fined the amount of Eleven Thousand Pesos (₱11,000). We agree in part with the recommendations of the OCA. Section 2, Art. III, of the Constitution lays down the requirements for the issuance of a warrant of arrest, i.e., a warrant of arrest shall issue only upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce.⁴ In the case at hand, the question is not even whether these requisites were met. The question is whether or not Judge Galapon abused his authority when there appeared a discrepancy between the dates the complaint and the warrant of arrest were issued in the criminal case involving the complainants. We believe that respondent judge has sufficiently explained why the warrant of arrest he issued is dated earlier than the complaint. As stressed in his Answer, and as supported by the affidavit of his clerk of court, he issued the order for the issuance of the warrant of arrest after conducting a preliminary examination and finding probable cause only after complainants therein swore to their complaint before him earlier in the same day. Thus, the complaint was actually received by the court on March 18, 1997, and then was put in the possession of the clerk of court on March 20, 1997. The date March 20, 1997 stamped on the complaint suggesting that it was filed after the warrant was issued is, therefore, only the date when the clerk of court officially received the records of the case. It is a mere stamp which respondent judge has shown to be unfortunately inaccurate. Thus, this inconsistency was a mere slip in procedure, committed in good faith and in consideration of the fact that therein complainants lived in a barangay far from the town proper of Dulag. Furthermore, neither Batic’s nor Lualhati Ellert’s’ rights were ever prejudiced. As stated by the OCA in its September 23, 1999 report, the important thing was that the warrant of arrest was not issued or released for implementation before the filing of the complaint. Technical rules must give way to substantive rights. As held in Roberto Fulgencio, et al. v. National Labor Relations Commission and Raycor Aircontrol Systems, Inc.,⁵ "The rules of procedure are merely tools designed to facilitate the attainment of justice. They were conceived and promulgated to effectively aid the court in the dispensation of justice. Courts are not slaves to or robots of technical rules, shorn of judicial discretion. In rendering justice, courts have always been, as they ought to be, conscientiously guided by the norm that on the balance, technicalities take a backseat against substantive rights, and not the other way around. Thus, if the application of the Rules would tend to frustrate rather than promote justice, it is always within our power to suspend the rules, or except a particular case from its operation."⁶ For these reasons, the complaints should be dismissed with regard to the issuance of the warrant of arrest. However, as for respondent’s act of notarizing a private document, the same cannot be countenanced. As Supreme Court Circular No. 1-90 makes clear, it has long been established that municipal trial court and municipal circuit trial court judges are empowered to perform the functions of notaries public ex-officio, but with qualifications. The text of said Circular reads: "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. But the Court hereby lays down the following qualifications on the scope of this power: 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. Moya, Adm. Matter No. 1765-CFI, October 17, 1980, 100 SCRA 314; Penera vs. Dalocanog, Adm. Matter No. 2113-MJ, April 22, 1981, 104 SCRA 193.] They may not, as notaries public ex-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 competence 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 (Lapeña, 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." In Zenaida B. Tigno, et al. v. Spouses Estafino Aquino and Florentina Aquino and the Honorable Court of Appeals,⁷ we held: "Respondent's 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. However, as far back as 1980 in Borre v. Moya, the Court explicitly declared that municipal court judges such as Cariño may notarize only documents connected with the exercise of their official duties. The Deed of Sale was not connected with any official duties of Judge Cariño, 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 Cariño identified himself in the Deed of Sale as "Ex-Officio Notary Public, Judge, MTC:" [A notary ex-officio] should not compete with private law practitioners or regular notaries in transacting legal conveyancing business. . . . 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. The facts of this case do not warrant a relaxed attitude towards Judge Cariño's improper notarial activity. There was no such certification in the Deed of Sale. . . ." Thus, MTC or MCTC judges may notarize only documents connected with the exercise of their official duties, or, in municipalities which have neither lawyers nor notaries public, they may perform any act within the competence of a regular notary public subject to certain requirements. Clearly, then, respondent judge committed unauthorized practice of law, prohibited by Canon 5, Rule 5.07 of the Code of Judicial Conduct. The Rule states: CANON 5 A JUDGE SHOULD REGULATE EXTRA-JUDICIAL ACTIVITIES TO MINIMIZE THE RISK OF CONFLICT WITH JUDICIAL DUTIES . . . PRACTICE OF LAW AND OTHER PROFESSION Rule 5.07. – A judge shall not engage in the private practice of law. . . . While respondent explains that he sincerely believed that when no notary public is available, the Municipal Trial Courts may act as ex-officio notary public, provided the fees shall be for the government, such is not enough to exonerate him from liability. The rule is that municipal court judges may notarize only documents connected with the exercise of their official duties. His acts do not fall under the exception because at the time of his notarization of the Deed of Sale, there was a notary public in Dulag, Leyte in the person of Atty. Refuerzo. Rule 140 of the Rules of Court deals with administrative sanctions for erring judges. Unauthorized practice of law is a Less Serious Charge punishable by suspension from office or a fine of more than ₱10,000 but not exceeding ₱20,000.⁸ Considering that this is not the first time that respondent judge has committed the infraction, being found to have been guilty of the same in A.M. No. MTJ-00-1294 (as adverted to earlier), he should be punished more severely than he was before. A fine of Twenty Thousand Pesos (₱20,000) is in order, with a warning that a repetition of the offense will be punished more harshly. That respondent directed the Clerks of Court of MTC, Dulag, Leyte and of MTC, Tolosa, Leyte, where he is Acting Judge, to stop accepting documents for notarization except those connected with cases to be filed or pending before both courts⁹ does not persuade us to mitigate his liability. He did so after he had committed the violation and after the present complaints had already been filed against him. WHEREFORE, the complaints filed against Judge Victorio L. Galapon, Jr. with respect to the issuance of a warrant of arrest are dismissed. However, on the complaints charging notarization of a private document, respondent judge is found GUILTY of unauthorized notarization of a private document, and hereby ORDERED to pay a FINE of Twenty Thousand Pesos (₱20,000), with a warning that a repetition of the same will be punished more severely. SO ORDERED. ADOLFO S. AZCUNA Associate Justice WE CONCUR: HILARIO G. DAVIDE, JR. Chief Justice Chairman LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO Associate Justice Associate Justice ANTONIO T. CARPIO Associate Justice Footnotes ¹ It was issued on February 26, 1990. ² Adm. Matter No. 1765-CFI, October 17, 1980, 100 SCRA 314. ³ Adm. Matter No. 2113-MJ, April 22, 1981, 104 SCRA 193. ⁴ Diosdado Jose Allado and Roberto L. Mendoza v. Hon. Roberto C. Diokno, Presiding Judge, Br. 62, Regional Trial Court, Makati, Metro Manila, and Presidential Anti-Crime Commission, G.R. No. 113630, May 5, 1994, 232 SCRA 192. ⁵ G.R. No. 141600, September 12, 2003, 411 SCRA 69. ⁶ See also, Antonio T. Donato v. Court Of Appeals, et al., wherein the Court held: "Needless to stress, ‘a litigation is not a game of technicalities.’ When technicality deserts its function of being an aid to justice, the Court is justified in exempting from its operations a particular case. Technical rules of procedure should be used to promote, not frustrate justice." [G.R. No. 129638, December 8, 2003, 417 SCRA 216]. ⁷ G.R. No. 129416, November 25, 2004, 444 SCRA 61. ⁸ SEC. 11, par. B ⁹ As stated in his Memorandum submitted to Judge Gil. The Lawphil Project - Arellano Law Foundation