[ A.C. No. 12084. June 06, 2018 ]
HERNANIE P. DANDOY, COMPLAINANT, V. ATTY. ROLAND G. EDAYAN, RESPONDENT.
R E S O L U T I O N
This administrative case stemmed from a verified letter-complaint1 dated December 17, 2010 filed by Hernanie P. Dandoy (Dandoy) before the Integrated Bar of the Philippines (IBP) against respondent Atty. Roland G. Edayan (respondent) for violation of Canons 1, 3, and 7 of the Code of Professional Responsibility (CPR).2
In the complaint, Dandoy alleged that on October 17, 2006, respondent notarized: (a) a Special Power of Attorney3 (SPA) executed by his (Dandoy) father, Jacinto S. Dandoy (Jacinto), in favor of a certain Antoine Cyrus C. Garzo (Garzo) granting the latter authority to offer as collateral two (2) parcels of land located in San Juan, Siquijor; and (b) a Deed of Extrajudicial Settlement of Real Estate4 (Deed) of Dandoy's late grandmother, Eutiquia Sumagang, wherein his father was also one of the parties.5 According to Dandoy, Jacinto could not have been present before respondent on October 17, 2006 because he passed away on July 13, 1999.6 He added that, through the SPA and the Deed, Garzo was able to mortgage the two (2) parcels of land as security for a P400,000.00 loan. The mortgage was, however, foreclosed and the mortgaged properties were not redeemed to the great prejudice of Dandoy and his siblings.7 In support thereof, Dandoy attached a certified true copy of the SPA, death certificate of Jacinto stating that he died on July 13, 1999, a copy of the Deed, and a copy of the Deed of Real Estate Mortgage8 dated October 17, 2006 executed by Garzo on behalf of Jacinto and Felipe Dandoy (Felipe), Dandoy's uncle.1âшphi1
In his Sworn Statement9 dated May 22, 2011, respondent admitted to having notarized the two (2) documents, but claimed that he verified the identities of the signatories thereto through their residence certificates. He narrated that on the said date, two (2) persons came to his office claiming to be Jacinto and Felipe and asked him to draft and notarize the SPA and the Deed. He added that Felipe even confirmed the identity of Jacinto in the same manner that the witnesses to the documents, who were likewise present at that time, confirmed the identities of the two. Finally, he submitted that while residence certificates are not mentioned in the list of competent evidence of identity enumerated under Section 12, Rule II of the 2004 Rules on Notarial Practice10 (2004 Notarial Rules), these are still necessary for the proper execution of the notarial act as it is still prescribed by various laws, i.e., Commonwealth Act No. 465,11 the Notarial Law,12 and the Local Government Code.13
The Report and Recommendation of the IBP
In its Report and Recommendation14 dated October 22, 2015, the IBP Investigating Commissioner (IBP-IC) found respondent administratively liable for failure to comply with the 2004 Notarial Rules, and accordingly, recommended that respondent's notarial commission, if existing, be revoked and that he be disqualified from being commissioned as a notary public for a period of two (2) years. 15
The IBP-IC found that respondent failed to confirm the identity of the person claiming to be Jacinto through the competent evidence of identity required by the 2004 Notarial Rules the controlling rules on notarial practice at the time of the notarization of the SPA and the Deed, not the Notarial Law invoked by respondent. In this regard, the IBP-IC pointed out that under the 2004 Notarial Rules, competent evidence of identity includes: (a) a government-issued identification document bearing their respective photographs, which clearly does not include the community tax certificate presented in this case; and (b) affirmation of one credible witness not privy to the instrument, etc. who is personally known to the notary public and who personally knows the individual, which, in this case, was not satisfied by the statements made by Felipe or Garzo as to the identity of Jacinto because they are privy to the Deed and the SPA. Finally, the IBP-IC noted the apparent discrepancy between the signatures affixed by the person claiming to be Jacinto in the SPA and in the Deed which, to the IBP-IC, should have already raised suspicion on respondent's part and prompted him to require a signature and photograph-bearing identification card from said person. Being a notary public, and therefore an officer of the court, the IBP-IC pointed out that respondent must strictly comply with the rules on notarial practice as may be issued by the Court.16
The IBP-IC, however, found the evidence insufficient to show that respondent wilfully and maliciously conspired with Garzo and Felipe in depriving Dandoy and his siblings of their grandmother's property in order to hold him administratively liable under the CPR.17
In a Resolution18 dated February 25, 2016, the IBP Board of Governors adopted the above report and recommendation of the IBP-IC. Dissatisfied, respondent sought reconsideration,19 which the IBP denied in a Resolution20 dated April 20, 2017.
The Issue Before the Court
The issue for the Court's resolution is whether or not the IBP correctly found respondent liable for violation of the 2004 Notarial Rules.
The Court's Ruling
The Court affirms the findings and adopts the recommendations of the IBP with modifications.
Time and again, the Court has emphasized that the act of notarization is impressed with public interest. Notarization converts a private document to a public document, making it admissible in evidence without further proof of its authenticity.21 A notarial document is, by law, entitled to full faith and credence.22 As such, a notary public must observe with utmost care the basic requirements in the performance of his duties in order to preserve the confidence of the public in the integrity of the notarial system.23 In this light, the Court has ruled that notaries must inform themselves of the facts they certify to; most importantly, they should not take part or allow themselves to be part of illegal transactions.24
The 2004 Rules on Notarial Practice provides that a notary public should not notarize a document unless the signatory to the document is in the notary's presence personally at the time of the notarization, and personally known to the notary public or otherwise identified through competent evidence of identity.25 Section 12, Rule II of the same rules defines "competent evidence of identity" as follows:
Section 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 photograph and 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. (Emphases and underscoring supplied)
Pursuant to these Rules, a notary public should not notarize a document unless the person who signed the same is the very person who executed and personally appeared before him to attest to the contents and the truth of what are stated therein.26
In this case, respondent, as duly found by the IBP, was remiss in the faithful observance of his duties as a notary public when he failed to confirm the identity of the person claiming to be Jacinto through the competent evidence of identity required by the 2004 Notarial Rules. Jurisprudence27 provides that a community tax certificate or cedula is no longer considered as a valid and competent evidence of identity not only because it is not included in the list of competent evidence of identity under the Rules; but moreso, it does not bear the photograph and signature of the persons appearing before them, which the Rules deem as the more appropriate and competent means by which notaries public can ascertain the person's identity. Records show that Jacinto passed away on July 13, 1999, and therefore, clearly could not have appeared before respondent to sign and execute the two (2) documents. Had respondent been more circumspect in performing his duties as notary public and asked for the photograph-andsignature-bearing identification document required by the 2004 Notarial Rules, he would have immediately discovered that the person before him was not the person whom he purports to be. All told, by accepting the residence certificates presented by the person who claimed to be Jacinto as evidence of identity, respondent made it appear that Jacinto personally appeared before him and subscribed the SPA and the Deed in violation of the 2004 Notarial Rules and to the detriment of Dandoy and his siblings.
Moreover, the statements made by the witnesses to the documents as regards the identity of the persons who claimed to be Felipe and Jacinto and those made by the person purporting to be Felipe as regards the latter do not comply with the 2004 Notarial Rules' requirements on competent evidence of identity. Section 12 clearly states that the credible witness/es making the oath – as to the identity of the individual subscribing the document must: not be a privy to the document, etc.; personally know/s the individual subscribing; and, must either be (a) personally known to the notary public, or (b) must show to the notary public a photograph-and-signature-bearing identification document.(awÞhi( In this case, Felipe and Garzo were both privies to the document, and the records are bereft of any evidence showing that the other witnesses to the document had shown to respondent the documentary identification which the 2004 Notarial Rules require.
Moreover, as a lawyer, respondent is expected at all times to uphold the integrity and dignity of the legal profession and refrain from any act or omission which might erode the trust and confidence reposed by the public in the integrity of the legal profession.28 By notarizing the subject documents, he engaged in unlawful, dishonest, immoral, or deceitful conduct which makes him liable as well for violation of the CPR, particularly Canon 1, Rule 1.01 thereof which provides:
CANON 1 - A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and legal processes.
Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.
As a final note, the Court finds it unfortunate that notwithstanding the findings of the IBP, respondent still fails to recognize the fact that his actions violated the provisions of the 2004 Notarial Rules, as he maintains that the residence certificates presented before him sufficiently complied with the Rules' identification requirements.29 It must be remembered, however, that a lawyer is duty-bound to keep abreast of legal developments;30 the changes in our notarial rules are no exception.
As herein discussed, respondent's failure to properly perform his duty as a notary public resulted not only in damage to those directly affected by the notarized document, but also in undermining the integrity of the office of a notary public and in degrading the function of notarization.31 He should thus be held liable for such negligence not only as a notary public but also as a lawyer. Consistent with prevailing jurisprudence,32 he should be meted out with the modified penalty of immediate revocation of his notarial commission, if any, disqualification from being commissioned as notary public for a period of two (2) years, and suspension from the practice of law for one (1) year.
WHEREFORE, the Court hereby finds respondent Atty. Roland G. Edayan (respondent) GUILTY of violation of the 2004 Rules on Notarial Practice and of the Code of Professional Responsibility. Accordingly, the Court resolves to: SUSPEND him from the practice of law for one (1) year; REVOKE his incumbent commission as a notary public, if any; and, PROHIBIT him from being commissioned as a notary public for two (2) years. He is WARNED that a repetition of the same offense or similar acts in the future shall be dealt with more severely.
The suspension in the practice of law, the revocation of his notarial commission, and his disqualification from being commissioned as notary public shall take effect immediately upon receipt of this Resolution by respondent. He is DIRECTED to immediately file a Manifestation to the Court that his suspension has started, copy furnished all courts and quasi-judicial bodies where he has entered his appearance as counsel.
Let copies of this Resolution be furnished to: the Office of the Bar Confidant to be appended to respondent's personal record as an attorney; the Integrated Bar of the Philippines for its information and guidance; and the Office of the Court Administrator for circulation to all courts in the country. SO ORDERED.
Carpio* (Chairperson), Peralta, Caguioa, and Reyes, Jr., JJ., concur.
* Senior Associate Justice (Per Section 12, Republic Act No. 296, The Judiciary Act of 1948, As Amended)
1 Rollo, pp. 4-10.
2 See Dandoy's Position Paper dated July 8, 2015 (id. at 26-33), where he likewise charged respondent for violation of the 2004 Rules on Notarial Practice.
3 Id. at 6.
4 Id. at 8.
5 See id. at 4.
6 See Jacinto's Death Certificate issued on December 16, 2010; id. at 7.
7 Id. at 4.
8 Id. at 10.
9 Id.at 11-14.
10 Section 12, Rule II of the 2004 Notarial Rules reads:
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 photograph and 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.
Section 12(a) of Rule II was amended in the February 19, 2008 Resolution of the Court En Banc; it now reads:
"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 photograph and signature of the individual, such as but not limited to, passport, driver's license, Professional Regulations Commission ID, National Bureau of Investigation clearance, police clearance, postal ID, voter's ID, Barangay certification, Government Service and Insurance System (GSIS) e-card, Social Security System (SSS) card, Philhealth card, senior citizen card, Overseas Workers Welfare Administration (OWWA) ID, OFW ID, seaman's book, alien certificate of registration/immigrant certificate of registration, government office ID, certification from the National Council for the Welfare of Disable Persons (NCWDP), Department of Social Welfare and Development (DSWD) certification; or
x x x x."
11 Otherwise known as "AN ACT TO IMPOSE A RESIDENCE TAX," effective on January 1, 1940.
12 See Chapter 11, Title IV of Act No. 2711, otherwise known as "AN ACT AMENDING THE ADMINISTRATIVE CODE," approved on March 10, 1917.
13 See rollo, pp. 11-12.
14 Id. at 58-64. Penned by Commissioner Joel L. Bodegon. Prior thereto, Dandoy filed a Manifestation dated August 28, 2015 (id. at 74-75), manifesting that it was impossible for Felipe to have helped Garzo because at the time of the execution of the subject documents, he was terminally ill and was confined to his bed; he died soon after on February 10, 2007 as evidenced by copy of his death certificate (id. at 76).
15 See id. at 64.
16 See id. at 61-64.
17 See id. at 60-61.
18 Id. at 56-57.
19 See Motion for Reconsideration dated July 7, 2016; id. at 65-67.
20 Id. at 86-87.
21 Gaddi v. Velasco, 742 Phil. 810, 815 (2014); citation omitted.
22 See id.
23 See id. See also Bartolome v. Basilio, 771 Phil. 1, 5 (2015) and Baysac v. Aceron-Papa, A.C. No. 10231, August 10, 2016, 800 SCRA I, 11-12.
24 See Bartolome v. Basilio, id. at 9. See also Sultan v. Macabanding, 745 Phil. 12, 20 (2014).
25 See Section 2(b), Rule IV of the 2004 Rules on Notarial Practice.
26 Bartolome v. Basilio, supra note 23, at 9.
27 See Baysac v. Atty. Aceron-Papa, supra note 23, at 11 and Agbulos v. Viray, 704 Phil. 1 (2013).
28 See Sappayani v. Gasmen, 768 Phil. 1, 8-9 (2015).
29 See rollo, pp. 48-49 and 66.
30 See Canon 5 of the Code of Professional Responsibility.
31 See Baysac v. Aceron-Papa, supra note 23, at 11-12; Bartolome v. Basilio, supra note 23, at 10; and Sappayani v. Gasmen, supra note 28, at 8.
32 See the following cases where the Court imposed similar penalty for violation of the 2004 Rules on Notarial Practice: Baysac v. Aceron-Papa, supra note 23; Bartolome v. Basilio, supra note 23; Dizon v. Cabucana, Jr., 729 Phil. 109 (2014); Sappayani v. Gasmen, supra note 28; and Isenhardt v. Real, 682 Phil. 19 (2012).
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