Quilala vs Alcantara GR 132681 December 3,2001

Abellana vs Sps Ponce 437 scra 531

Garcia vs Gatchalian 21 scra 1056
Azuela vs CA 487 scra 119
Dy Jr vs CA 198 scra 826
Santiago vs Pioneer Savings and Loan Bank 157 scra 100

1. [G.R. No. 114829 March 1, 1995]

MAXIMINO GAMIDO Y BUENAVENTURA,
PRISONS (NBP) OFFICIALS, respondents.

petitioner,

vs.

NEW

BILIBID

DAVIDE, JR., J.:

In the Resolution of 7 September 1994, we required Atty. Icasiano M. dela Rea of No.
42 National Road corner Bruger Subdivision, Putatan, Muntinglupa, Metro Manila, to
show cause why no disciplinary action should be taken against him for making it
appear in the jurat of the petition in this case that the petitioner subscribed the
verification and swore to before him, as notary public, on 19 April 1994, when in
truth and in fact the petitioner did not.

In his Explanation of 23 December 1994 which was received by this Court on 25

January 1995, Atty. Icasiano M. dela Rea admitted having executed the jurat without
the presence of petitioner Gamido. He alleges:

Firstly, I must honestly admit that I notarized it not in his presence. I did it in the
honest belief that since it is jurat and not an acknowledgement, it would be alrights
[sic] to do so considering that prior to April 19, 1994 and thereafter, I know Mr.
Gamido since I have been in and out of New Bilibid Prisons, not only because my
office is here only across the Municipal Building of Muntinlupa, Metro Manila but
because I handled a number of cases involving prisoners and guards of NBP as well
as some of its personnels [sic]. That in fact, I attempted to have the document
personally signed by him but considering that I have to strictly observe rules and
regulations of the NBP, particularly on visit, I did not pursue anymore my intention

to have it notarized before me.

Secondly, that in notarizing the document, I honestly feel and by heart and in good
faith, that as a notary public and as a practicing lawyer, I could modestly contribute
in the orderly administration of justice. The Gamido family use to come in the office
and in fact hiring the legal services of the undersigned but I refused to handle since
I am already pre-occupied in other cases of similar importance. That on December
13, 1994 I receive a letter from Mr. Gamido, last paragraph of which is read as
follows:

Sanay po Atty. ay maawa kayo sa akin na nagdudusa nang walang kasalanan. Alang
alang po sa kaawa awa kong familiya, kailangan ang aking kalinga. Ang tulong
ninyo ang siyang daan upang ako ay makaalis sa pagpapahirap nang mga taong
walang puso at kaluluwa, walang awa sa kapwa, at sa sambayanang Pilipino.

Then he apologizes to the Court and assures it that henceforth he would be more
careful and circumspect:

That I am praying for an apology to the Hon. Supreme Court if what I did was wrong
and the Hon. Supreme Court is assured that perhaps what transpired was a wrong
judgment or honest mistake. That the Hon. Chairman and its Hon. Members are
assured that when I signed the petition not in Gamidos presence it is never
intended to do a wrong, to commit illegal or criminal acts but merely in the honest
and sincere belief that it is valid and legal. The Hon. Supreme Court is assured that
it is never intended for malice or for money.

This Hon. Chairman and its Hon. Members are further assured that from hereon, I
am more careful and circumspect in the exercise of this noble and grand profession
and that no amount or consideration will sway or change this conviction. This is my
life. This is the life of my family.

Atty. dela Reas explanation is unsatisfactory; however, his spontaneous voluntary

admission may be considered in mitigation of his liability.

As a notary public for a long time, as evidenced by the fact that his questioned jurat
is indicated to have been entered in Book 45 of his notarial register, he should know
the similarities and differences between a jurat and an acknowledgement.

A jurat which is, normally in this form:

Subscribed and sworn to before me in _______________, this ____ day of ____________,

affiant having exhibited to me his Community (before, Residence) Tax Certificate No.
____________ issued at ______________ on ____________.

is that part of an affidavit in which the officer certifies that the instrument was
sworn to before him (Theobald vs. Chicago Ry. Co., 75 Ill. App. 208). It is not a part
of a pleading but merely evidences the fact that the affidavit was properly made
(Young vs. Wooden, 265 SW 24, 204 Ky. 694). (LORENZO M. TAADA and
FRANCISCO A. RODRIGO, Modern Legal Forms, vol. I, sixth ed., 1985 printing, 31).
The jurat in the petition in the case also begins with the words subscribed and
sworn to me.

To subscribe literally means to write underneath, as ones name; to sign at the end
of a document (Blacks Law Dictionary, Fifth ed., 1279). To swear means to put on
oath; to declare on oath the truth of a pleading, etc. (Id., 1298). Accordingly, in a
jurat, the affiant must sign the document in the presence of and take his oath
before a notary public or any other person authorized to administer oaths.

As to acknowledgment, Section 1 of Public Act No. 2103 provides:

(a) The acknowledgement shall be made before a notary public or an officer duly
authorized by law of the country to take acknowledgments of instruments or
documents in the place where the act is done. The notary public or the officer taking
the acknowledgment shall 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. The certificate shall be made
under his official seal, if he is by law required to keep a seal, and if not, his
certificate shall so state. (See Lorenzo M. Taada and Francisco A. Rodrigo, Modern
Philippine Legal Forms, vol. II, 1964 Fifth ed., 735).

It is obvious that the party acknowledging must likewise appear before the notary
public or any other person authorized to take acknowledgments of instruments or
documents.

The claim or belief of Atty. dela Rea that the presence of petitioner Gamido was not
necessary for the jurat because it is not an acknowledgment is patently baseless. If
this had been his belief since he was first commissioned as a notary public, then he
has been making a mockery of the legal solemnity of an oath in a jurat. Notaries
public and others authorized by law to administer oaths or to take
acknowledgments should not take for granted the solemn duties appertaining to
their offices. Such duties are dictated by public policy and are impressed with public
interest.

His prior acquaintance and friendship with petitioner Gamido provides no excuse for
non-compliance with his duty. If Atty. dela Rea were faithful to his duty as a notary
public and if he wanted to accommodate a friend who was inside a prison, he could
have gone to the latters cell since he openly admitted that he has been in and out
of New Bilibid Prisons, not only because [his] office is here only across the Municipal
Building of Muntinlupa, Metro Manila but because [he] handled a number of cases
involving prisoners and guards of NBP as well as some of its personnels [sic].

Administratively, as a lawyer commissioned as a notary public, Atty. Icasiano M.

dela Rea committed grave misconduct when he agreed to prepare the jurat in the
petition in this case in the absence of petitioner Gamido, thereby making it appear
that the latter personally signed the certification of the petition and took his oath
before him when in truth and in fact the said petitioner did not.

WHEREFORE, for grave misconduct, ATTY. ICASIANO I. DELA REA is hereby FINED in
the sum of FIVE THOUSAND PESOS (P5,000.00), without prejudice to criminal
prosecution as may be warranted under the circumstances. He is WARNED that the
commission of the same or similar acts in the future shall be dealt with more
severely.

Dela Cruz v. Zabala, A.C. No. 6294. November 17, 2004; 442 SCRA 407 (2004)

[A.C. No. 6294. November 17, 2004]

2. ATTY. MINIANO B. DELA CRUZ, complainant, vs. ATTY. ALEJANDRO P.
ZABALA, respondent.
RESOLUTION
QUISUMBING, J.:

In his Letter-Complaint for Disbarment filed before the Committee on Bar Discipline
of the Integrated Bar of the Philippines, complainant Atty. Miniano B. Dela Cruz
charged respondent, Atty. Alejandro P. Zabala, for violating his oath as a notary
public.

Complainant alleged that respondent notarized with unknown witnesses, a fake

deed of sale allegedly executed by two dead people, in gross violation of his oath as
a Commissioned Notary Public in Quezon City.[1]

Complainant averred that he was retained by a certain Demetrio C. Marero last

December 21, 1996, to finance and undertake the filing of a Petition for the
Issuance of a Second Duplicate Original of the Owners copy of Original Certificate
of Title (OCT) No. 4153, in the names of Sps. Pedro Sumulong and Cirila Tapales
before the Regional Trial Court of Antipolo City, Branch 72. The court issued an
Order approving the said petition on March 10, 1997.[2]

On May 20, 1997, complainant purchased the said property from Marero and had
the title transferred to him and his wife. OCT No. 4153 was then cancelled and
replaced by Transfer Certificate of Title (TCT) No. 330000.[3]

The next day, complainant requested a certain Mrs. Adoracion Losloso and Mr.
Nestor Aguirre to register the title in the formers name at the Assessors Office of
Antipolo City. However, they were unable to do so because the property was
already registered in the name of Antipolo Properties, Inc., under TCT No. N-107359.
[4]

On May 27, 1997, respondent notarized a Deed of Absolute Sale over the land
covered by OCT No. 4153, executed by Cirila Tapales and Pedro Sumulong in favor

of the complainant and his wife.[5]

On December 9, 1997, Mr. Marero filed a Complaint for Reconveyance of Title of the
land, subject of the Deed of Sale which was notarized by respondent, with damages
against the complainant and his wife. The Deed of Sale was the same document
Marero used when he filed a complaint for Estafa thru Falsification of Public
Document docketed as I.S. No. 98-16357 before the Quezon City Prosecutors Office
and in a disbarment case docketed as Adm. Case No. 4963 against complainant.[6]

Purportedly, to clear his name, complainant filed this complaint for disbarment
against respondent. According to complainant, respondent notarized an irregular
document where one of the parties to the transaction was already dead, grossly
violating his oath as a notary public.[7]

The IBP then required the respondent to file his answer to the said allegations.

Respondent, in his Answer alleged that as a notary, he did not have to go beyond
the documents presented to him for notarization. In notarial law, he explains, the
minimum requirements to notarize a document are the presence of the parties and
their presentation of their community tax certificate. As long as these requirements
are met, the documents may be notarized. Furthermore, he adds, when he
notarized the Deed of Sale, he had no way of knowing whether the persons who
appeared before him were the real owners of the land or were merely poseurs.[8]

Thereafter, the parties were ordered to appear before the IBP Commission on Bar
Discipline on July 31, 2001 and August 21, 2001, and required to submit their
position papers.

The IBP Commission on Bar Discipline, in its Report dated September 29, 2003,
recommended that respondent be reprimanded for violating Canon 5 of the Code of
Professional Responsibility.[9] The allegations with respect to the prayer for
disbarment were recommended for dismissal for insufficiency of evidence. The
Commissioner held that complainant failed to establish by convincing proof that
respondent had to be disbarred because of his notarial negligence. The alleged
failures of respondent did not indicate a clear intent to engage in unlawful,
dishonest, immoral or deceitful conduct, according to the Commissions Report.

Noteworthy, however, respondent did not deny that he notarized the cited Deed of
Sale under the circumstances alleged by complainant. It appears that there was
negligence on respondents part which, in our view, is quite serious. Thus, we
cannot conclude that he did not violate the Notarial Law,[10] and our rules
regarding Notarial Practice.[11] Nor could we agree that, as recommended by the
IBP, he should only be reprimanded. At least his commission as Notary Public
should be revoked and for two years he should be disqualified from being
commissioned as such.

The IBP noted that on its face, the Deed of Sale was not executed by the purported
vendee and that only Pedro Sumulong appeared and executed the deed even
though the property was co-owned by Pedro Sumulong and Cirila Tapales. In
addition, a copy of the title was not attached to the said Deed of Sale when it was
presented for notarization. The aforementioned circumstances should have alerted
respondent. Given the ease with which community tax certificates are obtained
these days, respondent should have been more vigilant in ascertaining the identity
of the persons who appeared before him.

We have empathically stressed that notarization is not an empty, meaningless

routinary act. It is invested with substantive public interest. It must be underscored
that the notarization by a notary public converts a private document into a public
document, making that document admissible in evidence without further proof of
authenticity thereof. A notarial document is, by law, entitled to full faith and credit
upon its face. For this reason, a notary public must observe with utmost care the
basic requirements in the performance of their duties; otherwise, the confidence of
the public in the integrity of this form of conveyance would be undermined.[12]

Section 1 of Public Act No. 2103 provides,

. . .

(a) The acknowledgment shall be made before a notary public or an officer duly
authorized by law of the country to take acknowledgments of instruments or
documents in the place where the act is done. The notary public or the officer
taking the acknowledgment shall 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. The
certificate shall be made under his official seal, if he is by law required to keep a
seal, and if not, his certificate shall so state. [Emphasis ours.]

A notary public should not notarize a document unless the persons who signed the
same are the very same persons who executed and personally appeared before him
to attest to the contents and the truth of what are stated therein. These acts of the
affiants cannot be delegated because what are stated therein are facts they have
personal knowledge of and are personally sworn to.
Otherwise, their
representatives names should appear in the said documents as the ones who
executed the same.[13]

The function of a notary public is, among others, to guard against any illegal or
immoral arrangements.[14] By affixing his notarial seal on the instrument, he
converted the Deed of Absolute Sale, from a private document into a public
document. In doing so, respondent, in effect, proclaimed to the world that (1) all
the parties therein personally appeared before him; (2) they are all personally
known to him; (3) they were the same persons who executed the instruments; (4)
he inquired into the voluntariness of execution of the instrument; and (5) they
acknowledged personally before him that they voluntarily and freely executed the
same.[15] As a lawyer commissioned to be a notary public, respondent is mandated
to discharge his sacred duties with faithful observance and utmost respect for the
legal solemnity of an oath in an acknowledgment or jurat.[16] Simply put, such
responsibility is incumbent upon him, he must now accept the commensurate
consequences of his professional indiscretion. His act of certifying under oath an
irregular Deed of Absolute Sale without ascertaining the identities of the persons
executing the same constitutes gross negligence in the performance of duty as a
notary public.

WHEREFORE, this Court finds respondent Atty. Alejandro P. Zabala GUILTY of gross
negligence in his conduct as a notary public. His notarial commission, if still
existing, is hereby REVOKED and he is DISQUALIFIED from being commissioned as a
notary public for a period of two (2) years. He is DIRECTED to report the date of his
receipt of this Resolution to the Court within five (5) days from such receipt. Further,
he is ordered to SHOW CAUSE why he should not be subject to disciplinary action as
a member of the Bar.

Let copies of this Resolution be furnished to all the courts of the land as well as the
Integrated Bar of the Philippines, and the Office of the Bar Confidant. Let this
Resolution be also made of record in the personal files of the respondent.

SO ORDERED.

[G.R. No. 129416. November 25, 2004]

3. ZENAIDA B. TIGNO, IMELDA B. TIGNO and ARMI B. TIGNO, petitioners,

vs. SPOUSES ESTAFINO AQUINO and FLORENTINA AQUINO and the
HONORABLE COURT OF APPEALS, respondents.

DECISION

TINGA, J.:

The controversy in the present petition hinges on the admissibility of a single

document, a deed of sale involving interest over real property, notarized by a
person of questionable capacity. The assailed ruling of the Court of Appeals, which
overturned the findings of fact of the Regional Trial Court, relied primarily on the
presumption of regularity attaching to notarized documents with respect to its due
execution. We conclude instead that the document has not been duly notarized and
accordingly reverse the Court of Appeals.

The facts are as follow:

On 11 January 1980, respondent spouses Estafino and Florentina Aquino (the

Aquinos) filed a complaint for enforcement of contract and damages against Isidro
Bustria (Bustria).[1] The complaint sought to enforce an alleged sale by Bustria to
the Aquinos of a one hundred twenty thousand (120,000) square meter fishpond
located in Dasci, Pangasinan. The property was not registered either under the Land
Registration Act or under the Spanish Mortgage Law, though registrable under Act
No. 3344.[2] The conveyance was covered by a Deed of Sale dated 2 September

1978.

Eventually, Bustria and the Aquinos entered into a compromise agreement, whereby
Bustria agreed to recognize the validity of the sale, and the Aquinos in turn agreed
to grant to Bustria the right to repurchase the same property after the lapse of
seven (7) years.

Upon submission, the Court of First Instance of Pangasinan, Branch VII, approved
and incorporated the compromise agreement in a Decision which it rendered on 7
September 1981.

Bustria died in October of 1986.[3] On 1 December 1989, petitioner Zenaida B.

Tigno (Tigno), in substitution of her deceased father Isidro Bustria,[4] attempted to
repurchase the property by filing a Motion for Consignation. She deposited the
amount of Two Hundred Thirty Thousand Pesos (P200,000.00) with the trial court,
now Regional Trial Court (RTC), Branch 55 at Alaminos, Pangasinan. On 18
December 1989, the Aquinos filed an opposition, arguing that the right to
repurchase was not yet demandable and that Tigno had failed to make a tender of
payment. In an Order dated 10 October 1999, the RTC denied the Motion for
Consignation.[5]

In June of 1991, Tigno filed a Motion for a Writ of Execution, which was likewise
opposed by the Aquinos, and denied by the RTC. Then, on 6 September 1991, Tigno
filed an action for Revival of Judgment,[6] seeking the revival of the decision in Civil
Case No. A-1257, so that it could be executed accordingly.[7] The Aquinos filed an
answer, wherein they alleged that Bustria had sold his right to repurchase the
property to them in a deed of sale dated 17 October 1985.[8]

Among the witnesses presented by the Aquinos during trial were Jesus De Francia
(De Francia), the instrumental witness to the deed of sale, and former Judge Franklin
Cario (Judge Cario), who notarized the same. These two witnesses testified as to the
occasion of the execution and signing of the deed of sale by Bustria. Thereafter, in
their Formal Offer of Documentary Evidence, the Aquinos offered for admission as
their Exhibit No. 8, the deed of sale (Deed of Sale)[9] purportedly executed by
Bustria. The admission of the Deed of Sale was objected to by Tigno on the ground
that it was a false and fraudulent document which had not been acknowledged by
Bustria as his own; and that its existence was suspicious, considering that it had

been previously unknown, and not even presented by the Aquinos when they
opposed Tignos previous Motion for Consignation.[10]

In an Order dated 6 April 1994, the RTC refused to admit the Deed of Sale in
evidence.[11] A Motion for Reconsideration praying for the admission of said exhibit
was denied in an Order dated 27 April 1994.[12]

Then, on 18 August 1994, a Decision was rendered by the RTC in favor of Tigno. The
RTC therein expressed doubts as to the authenticity of the Deed of Sale,
characterizing the testimonies of De Francia and Cario as conflicting.[13] The RTC
likewise observed that nowhere in the alleged deed of sale was there any statement
that it was acknowledged by Bustria;[14] that it was suspicious that Bustria was not
assisted or represented by his counsel in connection with the preparation and
execution of the deed of sale[15] or that Aquino had raised the matter of the deed
of sale in his previous Opposition to the Motion for Consignation.[16] The RTC then
stressed that the previous Motion for Execution lodged by Tigno had to be denied
since more than five (5) years had elapsed from the date the judgment in Civil Case
No. A-1257 had become final and executory; but the judgment could be revived by
action such as the instant complaint. Accordingly, the RTC ordered the revival of the
judgment dated 7 September 1981 in Civil Case No. A-1257.[17]

The Aquinos interposed an appeal to the Court of Appeals.[18] In the meantime, the
RTC allowed the execution pending appeal of its Decision.[19] On 23 December
1996, the Court of Appeals Tenth Division promulgated a Decision[20] reversing and
setting aside the RTC Decision. The appellate court ratiocinated that there were no
material or substantial inconsistencies between the testimonies of Cario and De
Francia that would taint the document with doubtful authenticity; that the absence
of the acknowledgment and substitution instead of a jurat did not render the
instrument invalid; and that the non-assistance or representation of Bustria by
counsel did not render the document null and ineffective.[21] It was noted that a
notarized document carried in its favor the presumption of regularity with respect to
its due execution, and that there must be clear, convincing and more than merely
preponderant evidence to contradict the same. Accordingly, the Court of Appeals
held that the RTC erred in refusing to admit the Deed of Sale, and that the
document extinguished the right of Bustrias heirs to repurchase the property.

After the Court of Appeals denied Tignos Motion for Reconsideration,[22] the present
petition was filed before this Court. Tigno imputes grave abuse of discretion and

misappreciation of facts to the Court of Appeals when it admitted the Deed of Sale.
He also argues that the appellate court should have declared the Deed of Sale as a
false, fraudulent and unreliable document not supported by any consideration at all.

The general thrusts of the arguments posed by Tigno are factually based. As such,
they could normally lead to the dismissal of this Petition for Review. However, while
this Court is not ordinarily a trier of facts,[23] factual review may be warranted in
instances when the findings of the trial court and the intermediate appellate court
are contrary to each other.[24] Moreover, petitioner raises a substantial argument
regarding the capacity of the notary public, Judge Cario, to notarize the document.
The Court of Appeals was unfortunately silent on that matter, but this Court will take
it up with definitiveness.

The notarial certification of the Deed of Sale reads as follows:

ACKNOWLEDGMENT

REPUBLIC OF THE PHILIPPINES)

PROVINCE OF PANGASINAN ) S.S.

MUNICIPALITY OF ALAMINOS )

SUBSCRIBED AND SWORN TO before me this 17th day of October 1985 at Alaminos,
Pangasinan both parties known to me to be the same parties who executed the
foregoing instrument.

FRANKLIN CARIO

Ex-Officio Notary Public

Judge, M.T.C.

Alaminos, Pangasinan

There are palpable errors in this certification. Most glaringly, the document is
certified by way of a jurat instead of an acknowledgment. A jurat is a distinct
creature from an acknowledgment. An acknowledgment is the act of one who has
executed a deed in going before some competent officer or court and declaring it to
be his act or deed; while a jurat is that part of an affidavit where the officer certifies
that the same was sworn before him.[25] Under Section 127 of the Land
Registration Act,[26] which has been replicated in Section 112 of Presidential
Decree No. 1529,[27] the Deed of Sale should have been acknowledged before a
notary public.[28]

But there is an even more substantial defect in the notarization, one which is
determinative of this petition. This pertains to the authority of Judge Franklin Cario
to notarize the Deed of Sale.

It is undisputed that Franklin Cario at the time of the notarization of the Deed of
Sale, was a sitting judge of the Metropolitan Trial Court of Alaminos.[29] Petitioners
point out, citing Tabao v. Asis,[30] that municipal judges may not undertake the
preparation and acknowledgment of private documents, contracts, and other acts of
conveyance which bear no relation to the performance of their functions as judges.
[31] In response, respondents claim that the prohibition imposed on municipal court
judges from notarizing documents took effect only in December of 1989, or four
years after the Deed of Sale was notarized by Cario.[32]

Respondents 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.[33] However, as far back as 1980 in Borre v. Moya,[34] the
Court explicitly declared that municipal court judges such as Cario may notarize
only documents connected with the exercise of their official duties.[35] The Deed of
Sale was not connected with any official duties of Judge Cario, 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 Cario 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.

In the instant case, it was not proper that a city judge should notarize documents
involving private transactions and sign the document in this wise: "GUMERSINDO
ARCILLA, Notary Public Ex-Officio, City Judge" (p. 16, Rollo, Annex D of Complaint).
In doing so, he obliterated the distinction between a regular notary and a notary ex
officio.[36]

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.[37] The facts of this case do not warrant a relaxed
attitude towards Judge Carios improper notarial activity. There was no such
certification in the Deed of Sale. Even if one was produced, we would be hard put to
accept the veracity of its contents, considering that Alaminos, Pangasinan, now a
city,[38] was even then not an isolated backwater town and had its fair share of
practicing lawyers.

There may be sufficient ground to call to task Judge Cario, who ceased being a
judge in 1986, for his improper notarial activity. Perhaps though, formal sanction
may no longer be appropriate considering Judge Carios advanced age, assuming he
is still alive.[39] However, this Decision should again serve as an affirmation of the
rule prohibiting municipal judges from notarizing documents not connected with the
exercise of their official duties, subject to the exceptions laid down in Circular No. 190.

Most crucially for this case, we should deem the Deed of Sale as not having been
notarized at all. The validity of a notarial certification necessarily derives from the
authority of the notarial officer. If the notary public does not have the capacity to
notarize a document, but does so anyway, then the document should be treated as
unnotarized. The rule may strike as rather harsh, and perhaps may prove to be
prejudicial to parties in good faith relying on the proferred authority of the notary

public or the person pretending to be one. Still, to admit otherwise would render
merely officious the elaborate process devised by this Court in order that a lawyer
may receive a notarial commission. Without such a rule, the notarization of a
document by a duly appointed notary public will have the same legal effect as one
accomplished by a non-lawyer engaged in pretense.

The notarization of a document carries considerable legal effect. Notarization of a

private document converts such document into a public one, and renders it
admissible in court without further proof of its authenticity.[40] Thus, notarization is
not an empty routine; to the contrary, it engages public interest in a substantial
degree and the protection of that interest requires preventing those who are not
qualified or authorized to act as notaries public from imposing upon the public and
the courts and administrative offices generally.[41]

On the other hand, what then is the effect on the Deed of Sale if it was not
notarized? True enough, from a civil law perspective, the absence of notarization of
the Deed of Sale would not necessarily invalidate the transaction evidenced therein.
Article 1358 of the Civil Code requires that the form of a contract that transmits or
extinguishes real rights over immovable property should be in a public document,
yet it is also an accepted rule that the failure to observe the proper form does not
render the transaction invalid. Thus, it has been uniformly held that the form
required in Article 1358 is not essential to the validity or enforceability of the
transaction, but required merely for convenience.[42] We have even affirmed that a
sale of real property though not consigned in a public instrument or formal writing,
is nevertheless valid and binding among the parties, for the time-honored rule is
that even a verbal contract of sale or real estate produces legal effects between the
parties.[43]

Still, the Court has to reckon with the implications of the lack of valid notarization of
the Deed of Sale from the perspective of the law on evidence. After all, the case
rests on the admissibility of the Deed of Sale.

Clearly, the presumption of regularity relied upon by the Court of Appeals no longer
holds true since the Deed of Sale is not a notarized document. Its proper probative
value is governed by the Rules of Court. Section 19, Rule 132 states:

Section 19. Classes of documents.For the purpose of their presentation in evidence,

documents are either public or private.

Public documents are:

(a) The written official acts, or records of the official acts of the sovereign authority,
official bodies and tribunals, and public officers, whether of the Philippines, or of a
foreign country;

(b) Documents acknowledged before a notary public except last wills and
testaments; and

(c) Public records, kept in the Philippines, of private documents required by law to
be entered therein.

All other writings are private. (Emphasis supplied.)

The Deed of Sale, invalidly notarized as it was, does not fall under the enumeration
of public documents; hence, it must be considered a private document. The nullity
of the alleged or attempted notarization performed by Judge Cario is sufficient to
exclude the document in question from the class of public documents. Even
assuming that the Deed of Sale was validly notarized, it would still be classified as a
private document, since it was not properly acknowledged, but merely subscribed
and sworn to by way of jurat.

Being a private document, the Deed of Sale is now subject to the requirement of
proof under Section 20, Rule 132, which states:

Section 20. Proof of private document.Before any private document offered as

authentic is received in evidence, its due execution and authenticity must be proved
either:

(a) By anyone who saw the document executed or written; or

(b) By evidence of the genuineness of the signature or handwriting of the maker.

Any other private document need only be identified as that which is claimed to be.

The Deed of Sale was offered in evidence as authentic by the Aquinos, who likewise
insist that its enforceability militates against Tignos claim. Correspondingly, the
burden falls upon the Aquinos to prove its authenticity and due execution. The Court
of Appeals clearly erred in not appreciating the Deed of Sale as a private document
and in applying the presumption of regularity that attaches only to duly notarized
documents, as distinguished from private documents.

Did the RTC err then in refusing to admit the Deed of Sale? We hold that it did not.
Section 20, Rule 132 provides ample discretion on the trier of fact before it may
choose to receive the private document in evidence. The RTC wisely refused to
admit the Deed of Sale, taking great lengths as it did to explain its doubts as to its
veracity. The RTC was not convinced of the proffered proof by the Aquinos, and the
exercise of its sound discretion as the primary trier of fact warrants due respect.

The most telling observation of the RTC relates to the fact that for the very first time
respondents alleged the existence of the Deed of Sale when they filed their answer
to petitioners current action to revive judgment.[44] Prior to the initiation of the
present action, Tigno had tried to operationalize and implement the Compromise
Agreement through two judicial means: consignation and execution of judgment.
The Aquinos duly opposed these prior attempts of the petitioner to exercise the
right to repurchase, but they did not raise then the claim that such right to
repurchase was already extinguished by the Deed of Sale. Tigno attempted to
exercise the right to repurchase only a few years after the execution of the Deed of
Sale to which respondents themselves were signatories. Thus, it is incredulous that
the Aquinos did not invoke the Deed of Sale when they opposed in court petitioners
successive attempts at consignation and execution of judgment. The Deed of Sale, if
in existence and valid, would have already precluded Tignos causes of action for
either consignation or execution of judgment. The only believable conclusion, as
drawn by the RTC, was that the Deed of Sale had yet to be created when petitioner
moved in 1990 for consignation and execution of judgmentan existential anomaly if
we were to agree with the respondents that such document had been signed and

notarized back in 1985.

The dubiousness in origin of the Deed of Sale is not alleviated by the other
observations of the RTC. It also pointed to certain incredible aspects in the Aquinos
tale of events. It noted that no receipts were ever presented by the respondents to
evidence actual payment of consideration by them to Bustria, despite the allegation
of the respondents that the amount was covered by seven (7) receipts.[45] The
Aquinos claimed that Bustria kept all the receipts, an assertion which the RTC found
as unbelievable, citing ordinary human nature to ask for receipts for significant
amounts given and to keep the same.[46] In itself, the absence of receipts, or any
proof of consideration, would not be conclusive since consideration is always
presumed. However, given the totality of the circumstances surrounding this case,
the absence of such proof further militates against the claims of the Aquinos.

We can appreciate in a similar vein the observation of the Court of Appeals that
Bustria did not bother to seek his lawyers assistance as regards the execution of the
Deed of Sale, considering that the subject property had previously been fiercely
litigated. Although the Court of Appeals was correct in ruling that the document
would not be rendered null or ineffective due to the lack of assistance of counsel,
the implausibility of the scenario strikes as odd and therefore reinforces the version
found by the RTC as credible.

The Court likewise has its own observations on the record that affirm the doubts
raised by the Court of Appeals. Isidro Bustria, who would die in 1986, was already
ninety-three (93) years old when he allegedly signed the Deed of Sale in 1985. Still,
the Aquinos asserted before the RTC that Bustria traveled unaccompanied from his
home in Dasol, Pangasinan, passing through two towns to Alaminos, to execute the
Deed of Sale. Without discrediting the accomplishments of nonagenarians capable
of great physical feats, it should be acknowledged as a matter of general
assumption that persons of Bustrias age are typically sedentary and rarely so
foolhardy as to insist on traveling significant distances alone.

Also of note is the fact that there are glaring differences as to the alleged signature
of Bustria on the Deed of Sale and as it otherwise appears on the judicial record.
Bustrias signature in the 1981 Compromise Agreement is noticeably shaky which is
not surprising, considering that it was subscribed when Bustria was eighty-nine (89)
years old. However, Bustrias signature on the Deed of Sale, which if genuine was
affixed when he was already ninety-three (93) years old, is remarkably steady in its

strokes. There are also other evident differences between Bustrias signature on the
Deed of Sale and on other documents on the record.

Admittedly, these doubts cast above arise in chief from an appreciation of

circumstantial evidence. These have to be weighed against the findings of the Court
of Appeals that the fact that Bustria signed the Deed of Sale was established by the
respective testimonies of witnesses De Francia and Judge Cario. In its own
appreciation of these testimonies, the RTC alluded to notable inconsistencies in their
testimonies. As a final measure of analysis, the Court shall now examine whether
the appellate court was in error in reversing the conclusion of the RTC on these
testimonies.

The inconsistencies cited by the RTC were that De Francia testified that Judge Cario
himself prepared and typed the Deed of Sale in his office, where the document was
signed,[47] while Judge Cario testified that he did not type the Deed of Sale since it
was already prepared when the parties arrived at his office for the signing.[48] On
this point, the Court of Appeals stated with utter nonchalance that a perusal of the
record revealed no material or substantial inconsistencies between the testimonies
of Judge Cario and De Francia.

Strangely, the appellate court made no comment as to the inconsistency pointed

out by the RTC as to who prepared the Deed of Sale. If the only point of
consideration was the due execution of the Deed of Sale, then the Court of Appeals
should have properly come out with its finding. Other variances aside, there are no
contradictions in the testimonies of Judge Cario and De Francia on the question of
whether or not Bustria signed the Deed of Sale.

However, as earlier established, the Deed of Sale is a private document. Thus, not
only the due execution of the document must be proven but also its authenticity.
This factor was not duly considered by the Court of Appeals. The testimonies of
Judge Cario and De Francia now become material not only to establish due
execution, but also the authenticity of the Deed of Sale. And on this point, the
inconsistencies pointed out by the RTC become crucial.

The matter of authenticity of the Deed of Sale being disputed, the identity of the
progenitor of this all-important document is a material evidentiary point. It is
disconcerting that the very two witnesses of the respondent offered to prove the

Deed of Sale, flatly contradict each other on the basis of their own personal and
sensory knowledge. Worse, the purported author of the Deed of Sale disavowed
having drafted the document, notwithstanding the contrary testimony grounded on
personal knowledge by the documentary witness.

Establishing the identity of the person who wrote the Deed of Sale would not
ordinarily be necessary to establish the validity of the transaction it covers.
However, since it is the authenticity of the document itself that is disputed, then the
opposing testimonies on that point by the material witnesses properly raises
questions about the due execution of the document itself. The inconsistencies in the
testimonies of Judge Cario and De Francia are irreconcilable. It is not possible to
affirm the testimony of either without denigrating the competence and credibility of
the other as a witness. If Judge Cario was truthful in testifying that he did not write
the Deed of Sale, then doubt can be cast as to the reliability of the notarial witness
De Francia. It takes a leap of imagination, a high level of gumption, and perverse
deliberation for one to erroneously assert, under oath and with particularities, that a
person drafted a particular document in his presence.

However, if we were to instead believe De Francia, then the integrity of the notary
public, Judge Cario, would be obviously compromised. Assuming that Judge Cario
had indeed authored the Deed of Sale, it would indeed be odd that he would not
remember having written the document himself yet sufficiently recall notarizing the
same. If his testimony as to authorship of the document is deemed as dubious, then
there is all the reason to make a similar assumption as to his testimony on the
notarization of the Deed of Sale.

These inconsistencies are not of consequence because there is need to indubitably

establish the author of the Deed of Sale. They are important because they cast
doubt on the credibility of those witnesses of the Aquinos, presented as they were
to attest to the due execution and authenticity of the Deed of Sale. The Court of
Appeals was clearly in error in peremptorily disregarding this observation of the
RTC.

As a result, we are less willing than the Court of Appeals to impute conclusive value
to the testimonies of de Francia and Judge Cario. The totality of the picture leads us
to agree with the trial court that the Deed of Sale is ineluctably dubious in origin
and in execution. The Court deems as correct the refusal of the RTC to admit the
Deed of Sale, since its due execution and authenticity have not been proven. The

evidence pointing to the non-existence of such a transaction is so clear and

convincing that it is sufficient even to rebut the typical presumption of regularity
arising from the due execution of notarial documents. However, for the reasons
stated earlier, the Deed of Sale is ineluctably an unnotarized document. And the
lower court had more than sufficient basis to conclude that it is a spurious
document.

Since the validity of the Deed of Sale has been successfully assailed, Tignos right to
repurchase was not extinguished at the time of the filing of the Petition for revival of
judgment, as correctly concluded by the RTC. The Court of Appeals being in error
when it concluded otherwise, the reinstatement of the RTC Decision is warranted.

WHEREFORE, the Petition is GRANTED. The assailed Decision dated 23 December

1996 and Resolution dated 9 June 1997 of the Court of Appeals in CA-G.R. CV No.
49879 is REVERSED, and the Decision dated 18 August 1994 of the Regional Trial
Court of Alaminos, Pangasinan, Branch 55, in Civil Case No. A-1918 is REINSTATED.
Costs against respondents.

SO ORDERED.

4. GERONIMO C. FUENTES, Complainant vs. JUDGE ROMUALDO G. BUNO,

Presiding Judge, Municipal Circuit Trial Court (MCTC), Talibon-Getafe,
Bohol,Respondent
A.M. No. MTJ-99-1204, (Formerly OCA IPI No. 97-355-MTJ)
July 28, 2008

DECISION

LEONARDO-DE CASTRO, J.:

This administrative case against Judge Romualdo G. Buno of the 4TH Municipal
Circuit Trial Court (MCTC), Talibon-Getafe, Bohol, stemmed from a complaint filed by
Geronimo C. Fuentes charging him with abuse of discretion and authority and graft
and corruption.

In his complaint, Geronimo Fuentes alleged that he is one of the nine (9) heirs of
Bernardo Fuentes, their father, who owned an agricultural land located at San Jose,
Talibon, Bohol, and that respondent judge prepared and notarized an Extra-Judicial
Partition with Simultaneous Absolute Deed of Sale of the said agricultural land,
executed by complainants mother Eulalia Credo Vda. de Fuentes, widow of Bernardo
Fuentes, and Alejandro Fuentes, on his own behalf and on behalf of his brothers and
sisters, including Geronimo Fuentes, as heirs/vendors and one Ma. Indira A. Auxtero,
as vendee; that in the aforesaid document, the aforementioned agricultural land
was sold, transferred/conveyed by the heirs/vendors to the vendee despite the fact
that in his Special Power of Attorney (SPA), he merely appointed his brother,
Alejandro Fuentes to mortgage said agricultural land but not to partition, much
more to sell the same. According to complainant Geronimo Fuentes respondent
judge notarized said document as ex-officio Notary Public, thereby abusing his
discretion and authority as well as committing graft and corruption.

In his 1st Indorsement dated December 2, 1997, the then Court Administrator
required the respondent to file his comment on the complaint within ten days. In
compliance thereto respondent judge submitted his answer, which prayed for the
dismissal of the complaint. He admitted that on December 24, 1996, while he was

the Presiding Judge of the MCTC, Talibon-Getafe, stationed at Talibon, Bohol, he

notarized an Extra-Judicial Partition of Real Property with Simultaneous Absolute
Deed of Sale, described as Document No. 1158, Series of 1996. He explained his
reasons and related the circumstances surrounding the case as follows:

1. That in the last week of the month of September, 1996, Mrs. Eulalia Vda. de
Fuentes, Alejandro Fuentes together with Mrs. Helen A. Auxtero and Miss Ma. Indira
Auxtero came to my house and requested me to make and prepare a document of
sale between the Heirs of Bernardo Fuentes and Ma. Indira Auxtero as Vendee and
upon verification of the papers they presented to the undersigned it was found out
that the land subject of the sale is a conjugal property of the deceased Bernardo
Fuentes and Eulalia Credo Vda. de Fuentes. Being a conjugal property, the
undersigned advised them to secure special power of attorney for the children of
Bernardo Fuentes who are out of town.

2. On the 20th of December, 1996 Eulalia Vda. de Fuentes and Alejandro Fuentes
came back to the house bringing a special power of attorney executed by Bonifacio
Fuentes, Benjamin Fuentes, Urbano Fuentes, Samuela Fuentes, Rufina Fuentes and
Bernardo Fuentes, Jr. carbon copy of the said Special Power of Attorney herewith
attached as Annex A of the answer. All these special power of attorney empowers
Alejandro Fuentes to execute a Deed of Sale of a parcel of land under Transfer
Certificate of Title No. 24937 registered in the name of Bernardo Fuentes, their
deceased father.

Since no special power of attorney was presented to the undersigned executed by

PO2 Geronimo Fuentes, the undersigned refused to make their document of sale but
Eulalia Vda. de Fuentes and Alejandro Fuentes earnestly requested the undersigned
to make and prepare the necessary document saying that the special power of
attorney of PO2 Geronimo Fuentes is coming and they are in urgent need of the
money and because of their request, the undersigned prepared the document, and
Extra-Judicial Partition of Real Property with Simultaneous Absolute Deed of Sale in
favor of Ma. Indira Auxtero. That PO2 Geronimo Fuentes was included in the Deed of
Sale because of the assurance of Alejandro Fuentes and Eulalia Vda. de Fuentes that
the Special Power of Attorney of PO2 Geronimo Fuentes is coming.

3. That after the necessary document was prepared Eulalia Vda. de Fuentes and
Alejandro Fuentes together with the vendee, Ma. Indira Auxtero signed the
document on December 24, 1996 and on that day the said document was notarized
by the undersigned.

4. That few days after the document was notarized, the undersigned learned that
the Special Power of Attorney executed by PO2 Geronimo Fuentes empowered
Alejandro Fuentes only to mortgage the property so Mrs. Eulalia Vda. de Fuentes,
Alejandro Fuentes and the vendee, Ma. Indira Auxtero were called by the
undersigned about the Special Power of Attorney executed by PO2 Geronimo
Fuentes but Eulalia Fuentes and Alejandro Fuentes explained to the undersigned
that they will be responsible for PO2 Geronimo Fuentes considering that the money
was already spent by them and the vendee, Ma. Indira Auxtero also assured the
undersigned that if PO2 Geronimo Fuentes insists to take back his share, she is
willing and in fact she reserved the share of Geronimo Fuentes, hence, the
transaction was completed.

5. The undersigned is making and notarizing the document outside of office hour
cannot be said to have abuse his discretion and authority since he was earnestly
requested by Eulalia Vda. de Fuentes and Alejandro Fuentes to prepare and
notarized the document with authority from his brothers and sisters and with
respect to Eulalia Vda. de Fuentes, she is selling her share of the conjugal property
which is one-half (1/2) of the entire parcel of land.

In the aforementioned answer, respondent judge contended that he could not be

charged of graft and corruption, since in a municipality where a notary public is
unavailable, a municipal judge is allowed to notarize documents or deeds as exofficio notary public. To support his claim, he presented two certifications: one, from
Atty. Azucena C. Macalolot, Clerk of Court VI of the RTC, Branch 52, Talibon, Bohol,
who certified that according to their records and dockets, no petition for commission
and/or renewal of commission as notary public was granted by the said court for
calendar year 1996 and no appointment as notary public was issued for that year;
and the other, from Mayor Juanario A. Item of Talibon, Bohol who also certified that

no notary public was staying and residing in the Municipality of Talibon, Bohol during
the year 1996.

Respondent judge contended that he did nothing wrong in preparing and notarizing
the said document and that he acted in good faith and in obedience to the earnest
plea of complainants mother and siblings who were in urgent need of money, and
with their assurance that complainants SPA was forthcoming. In his attempt to
explain his lack of malice, respondent judge narrated that after learning that the
SPA only authorized his brother, Alejandro Fuentes to mortgage the property, he
summoned the latter, his mother and the buyer of the land. Alejandro then assured
him that they would be responsible to the complainant and that the buyer was
willing to return complainants share in the property. Respondent further questioned
complainants sincerity in filing the complaint because the latter allegedly wanted
merely the respondent to persuade the buyer to return the whole property to him
instead of his share only.

In its Memorandum Report, the OCA recommended that the present case be redocketed as a regular administrative matter and that respondent be fined in the
amount of P10,000.00 for unauthorized notarization of a private document, the
same to be deducted from his retirement benefit. The said OCA recommendation
was premised on the lack of authority of respondent judge to prepare and notarize
the document in question, which had no direct relation to the performance of his
official functions as a judge.

While Section 76 of Republic Act No. 296,[1] as amended, and Section 242 of the
Revised Administrative Code[2] authorize MTC and MCTC judges to perform the
functions of notaries public ex officio, the Court laid down the scope of said
authority in SC Circular No. 1-90. Pertinently, the said Circular reads:

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. Mayo, Adm. Matter No. 1765-CFI, October 17, 1980, 100 SCRA 314; Penera
v. 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
competency 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
(Lapena, 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.

The above-quoted SC Circular No. 1-90 prohibits judges from undertaking the
preparation and acknowledgment of private documents, contracts and other deeds
of conveyances which have no direct relation to the discharge of their official
functions. In this case, respondent judge admitted that he prepared both the
document itself, entitled Extra-judicial Partition with Simultaneous Absolute Deed of
Sale and the acknowledgment of the said document, which had no relation at all to
the performance of his function as a judge. These acts of respondent judge are

clearly proscribed by the aforesaid Circular.

While it may be true that no notary public was available or residing within
respondent judges territorial jurisdiction, as shown by the certifications issued by
the RTC Clerk of Court and the Municipal Mayor of Talibon, Bohol, SC Circular No. 190 specifically requires that a certification attesting to the lack of any lawyer or
notary public in the said municipality or circuit be made in the notarized document.
Here, no such certification was made in the Extra-Judicial Partition with
Simultaneous Deed of Sale. Respondent judge also failed to indicate in his answer
as to whether or not any notarial fee was charged for that transaction, and if so,
whether the same was turned over to the Municipal Treasurer of Talibon, Bohol.
Clearly, then, respondent judge, who was the sitting judge of the MCTC, TalibonGetafe, Bohol, failed to comply with the aforesaid conditions prescribed by SC
Circular No. 1-90, even if he could have acted as notary public ex-officio in the
absence of any lawyer or notary public in the municipality or circuit to which he was
assigned.

Whether or not respondent judge truly acted in good faith when he prepared and
acknowledged the subject document is beside the point since he failed to strictly
observe the requirements of SC Circular No. 1-90. As noted by the then Court
Administrator, the document involved here is Document No. 1158, which shows that
numerous documents were notarized by respondent judge in the year 1996 alone.
Respondent judge was silent as to whether he charged fees when he notarized
documents and if so, whether he turned over the notarial fees to the municipal
treasurer. Moreover, contrary to Rule IV, Sec. 6(a) of the Rules on Notarial Practice
of 2004,[3] respondent notarized the said document without the SPA of the
attorney-in-fact of the vendors which gave rise to the legal problem between the
vendors and the vendee concerning the scope of authority of the aforesaid attorneyin-fact. By failing to comply with the conditions set for SC Circular No. 1-90 and
violating the provision of the Rules on Notarial Practice of 2004, respondent judge
failed to conduct himself in a manner that is beyond reproach and suspicion. Any
hint of impropriety must be avoided at all cost. Judges are enjoined by the Code of
Judicial Conduct to regulate their extra-judicial activities in order to minimize the
risk of conflict with their judicial duties.[4]

Rule 140 of the Rules of Court deals with the administrative sanctions imposable on
erring judges. Violation of Supreme Court rules, directives and circulars is a Less
Serious Charge punishable by suspension from office or a fine of more than
P10,000.00 but not exceeding P20,000.00. However, respondent judges application
for optional retirement had already been approved by the Court en banc on March
10, 1998 in Administrative Matter No. 9449-Ret. and the release of his retirement
benefits was allowed provided that the amount of P20,000.00 was withheld from the
said retirement benefits, pursuant to the Resolution of this Courts Third Division on
June 16, 1999 in this administrative case, formerly docketed as Administrative
Matter OCA IPI No. 97-355-MTJ.

WHEREFORE, respondent Judge ROMUALDO G. BUNO, now retired, of the Municipal

Circuit Trial Court of Talibon-Getafe, Bohol, is found LIABLE for failure to comply with
SC Circular No. 1-90 and the Rules on Notarial Practice. He is hereby ORDERED to
pay a FINE of Twelve Thousand Pesos (P12,000.00), to be deducted from the amount
withheld from his retirement benefits.

SO ORDERED.

5. IN THE MATTER OF THE CHARGES A.M. No. 10-7-17-SC OF PLAGIARISM,

ETC., AGAINST ASSOCIATE JUSTICE MARIANO C. DEL CASTILLO.
October 12, 2010
A.M. No. 10-7-17-SC
DECISION

PER CURIAM:

This case is concerned with charges that, in preparing a decision for the Court, a
designated member plagiarized the works of certain authors and twisted their
meanings to support the decision.

The Background Facts

Petitioners Isabelita C. Vinuya and about 70 other elderly women, all members of
the Malaya Lolas Organization, filed with the Court in G.R. No. 162230 a special civil
action of certiorari with application for preliminary mandatory injunction against the
Executive Secretary, the Secretary of Foreign Affairs, the Secretary of Justice, and
the Office of the Solicitor General.

Petitioners claimed that in destroying villages in the Philippines during World War II,
the Japanese army systematically raped them and a number of other women,
seizing them and holding them in houses or cells where soldiers repeatedly ravished
and abused them.

Petitioners alleged that they have since 1998 been approaching the Executive
Department, represented by the respondent public officials, requesting assistance in
filing claims against the Japanese military officers who established the comfort
women stations. But that Department declined, saying that petitioners individual
claims had already been fully satisfied under the Peace Treaty between the
Philippines and Japan.

Petitioners wanted the Court to render judgment, compelling the Executive

Department to espouse their claims for official apology and other forms of
reparations against Japan before the International Court of Justice and other
international tribunals.

On April 28, 2010, the Court rendered judgment dismissing petitioners action.
Justice Mariano C. del Castillo wrote the decision for the Court. The Court essentially
gave two reasons for its decision: it cannot grant the petition because, first, the
Executive Department has the exclusive prerogative under the Constitution and the
law to determine whether to espouse petitioners claim against Japan; and, second,
the Philippines is not under any obligation in international law to espouse their
claims.

On June 9, 2010, petitioners filed a motion for reconsideration of the Courts

decision. More than a month later on July 18, 2010, counsel for petitioners, Atty.
Herminio Harry Roque, Jr., announced in his online blog that his clients would file a
supplemental petition detailing plagiarism committed by the court under the second
reason it gave for dismissing the petition and that these stolen passages were also
twisted to support the courts erroneous conclusions that the Filipino comfort women
of World War Two have no further legal remedies. The media gave publicity to Atty.
Roques announcement.

On July 19, 2010, petitioners filed the supplemental motion for reconsideration that
Atty. Roque announced. It accused Justice Del Castillo of manifest intellectual theft
and outright plagiarism[1] when he wrote the decision for the Court and of twisting
the true intents of the plagiarized sources to suit the arguments of the assailed
Judgment.[2] They charged Justice Del Castillo of copying without acknowledgement
certain passages from three foreign articles:

a. A Fiduciary Theory of Jus Cogens by Evan J. Criddle and Evan Fox-Descent, Yale
Journal of International Law (2009);

b. Breaking the Silence: Rape as an International Crime by Mark Ellis, Case Western
Reserve Journal of International Law (2006); and

c. Enforcing Erga Omnes Obligations by Christian J. Tams, Cambridge University

Press (2005).

Petitioners claim that the integrity of the Courts deliberations in the case has been
put into question by Justice Del Castillos fraud. The Court should thus address and
disclose to the public the truth about the manifest intellectual theft and outright
plagiarism[3] that resulted in gross prejudice to the petitioners.

Because of the publicity that the supplemental motion for reconsideration

generated, Justice Del Castillo circulated a letter to his colleagues, subsequently
verified, stating that when he wrote the decision for the Court he had the intent to
attribute all sources used in it. He said in the pertinent part:

It must be emphasized that there was every intention to attribute all sources,
whenever due. At no point was there ever any malicious intent to appropriate
anothers work as our own. We recall that this ponencia was thrice included in the
Agenda of the Court en banc. It was deliberated upon during the Baguio session on
April 13, 2010, April 20, 2010 and in Manila on April 27, 2010. Each time,
suggestions were made which necessitated major revisions in the draft. Sources
were re-studied, discussions modified, passages added or deleted. The resulting
decision comprises 34 pages with 78 footnotes.

xxxx

As regards the claim of the petitioners that the concepts as contained in the above
foreign materials were twisted, the same remains their opinion which we do not
necessarily share.[4]

On July 27, 2010, the Court En Banc referred the charges against Justice Del Castillo
to its Committee on Ethics and Ethical Standards, chaired by the Chief Justice, for
investigation and recommendation. The Chief Justice designated retired Justice Jose
C. Vitug to serve as consultant of the Committee. He graciously accepted.

On August 2, 2010, the Committee directed petitioners to comment on Justice Del

Castillos verified letter. When this was done, it set the matter for hearing.

In the meantime, on July 19, 2010, Evan Criddle wrote on his blog that he and his
co-author Evan Fox-Descent (referred to jointly as Criddle-Descent) learned of
alleged plagiarism involving their work but Criddles concern, after reading the
supplemental motion for reconsideration, was the Courts conclusion that
prohibitions against sexual slavery are not jus cogens or internationally binding
norms that treaties cannot diminish.

On July 23, 2010, Dr. Mark Ellis wrote the Court expressing concern that in
mentioning his work, the Court may have misread the argument [he] made in the
article and employed them for cross purposes. Dr. Ellis said that he wrote the article
precisely to argue for appropriate legal remedy for victims of war crimes.

On August 8, 2010, after the referral of the matter to the Committee for
investigation, the Dean of the University of the Philippines (U.P.) College of Law
publicized a Statement from his faculty, claiming that the Vinuya decision was an
extraordinary act of injustice and a singularly reprehensible act of dishonesty and
misrepresentation by the Highest Court of the land. The statement said that Justice

Del Castillo had a deliberate intention to appropriate the original authors work, and
that the Courts decision amounted to an act of intellectual fraud by copying works
in order to mislead and deceive.[5]

On August 18, 2010 Mr. Christian J. Tams wrote Chief Justice Renato C. Corona that,
although relevant sentences in the Courts decision were taken from his work, he
was given generic reference only in the footnote and in connection with a citation
from another author (Bruno Simma) rather than with respect to the passages taken
from his work. He thought that the form of referencing was inappropriate. Mr. Tams
was also concerned that the decision may have used his work to support an
approach to erga omnes concept (obligations owed by individual States to the
community of nations) that is not consistent with what he advocated.

On August 26, 2010, the Committee heard the parties submissions in the summary
manner of administrative investigations. Counsels from both sides were given
ample time to address the Committee and submit their evidence. The Committee
queried them on these.

Counsels for Justice Del Castillo later asked to be heard with the other parties not in
attendance so they could make submissions that their client regarded as sensitive
and confidential, involving the drafting process that went into the making of the
Courts decision in the Vinuya case. Petitioners counsels vigorously objected and the
Committee sustained the objection. After consulting Justice Del Castillo, his counsels
requested the Committee to hear the Justices court researcher, whose name need
not be mentioned here, explain the research work that went into the making of the
decision in the Vinuya case. The Committee granted the request.

The researcher demonstrated by Power Point presentation how the attribution of the
lifted passages to the writings of Criddle-Descent and Ellis, found in the beginning
drafts of her report to Justice Del Castillo, were unintentionally deleted. She tearfully
expressed remorse at her grievous mistake and grief for having caused an
enormous amount of suffering for Justice Del Castillo and his family.[6]

On the other hand, addressing the Committee in reaction to the researchers

explanation, counsel for petitioners insisted that lack of intent is not a defense in
plagiarism since all that is required is for a writer to acknowledge that certain words
or language in his work were taken from anothers work. Counsel invoked the Courts
ruling in University of the Philippines Board of Regents v. Court of Appeals and
Arokiaswamy William Margaret Celine,[7] arguing that standards on plagiarism in
the academe should apply with more force to the judiciary.

After the hearing, the Committee gave the parties ten days to file their respective
memoranda. They filed their memoranda in due course. Subsequently after
deliberation,
the
Committee
submitted
its
unanimous
findings
and
recommendations to the Court.

The Issues

This case presents two issues:

1. Whether or not, in writing the opinion for the Court in the Vinuya case, Justice Del
Castillo plagiarized the published works of authors Tams, Criddle-Descent, and Ellis.

2. Whether or not Justice Del Castillo twisted the works of these authors to make it
appear that such works supported the Courts position in the Vinuya decision.

The Courts Rulings

Because of the pending motion for reconsideration in the Vinuya case, the Court like
its Committee on Ethics and Ethical Standards will purposely avoid touching the
merits of the Courts decision in that case or the soundness or lack of soundness of
the position it has so far taken in the same. The Court will deal, not with the
essential merit or persuasiveness of the foreign authors works, but how the decision
that Justice Del Castillo wrote for the Court appropriated parts of those works and
for what purpose the decision employed the same.

At its most basic, plagiarism means the theft of another persons language,
thoughts, or ideas. To plagiarize, as it is commonly understood according to
Webster, is to take (ideas, writings, etc.) from (another) and pass them off as ones
own.[8] The passing off of the work of another as ones own is thus an indispensable

element of plagiarism.

The Passages from Tams

Petitioners point out that the Vinuya decision lifted passages from Tams book,
Enforcing Erga Omnes Obligations in International Law (2006) and used them in
Footnote 69 with what the author thought was a mere generic reference. But,
although Tams himself may have believed that the footnoting in this case was not
an appropriate form of referencing,[9] he and petitioners cannot deny that the
decision did attribute the source or sources of such passages. Justice Del Castillo did
not pass off Tams work as his own. The Justice primarily attributed the ideas
embodied in the passages to Bruno Simma, whom Tams himself credited for them.
Still, Footnote 69 mentioned, apart from Simma, Tams article as another source of
those ideas.

The Court believes that whether or not the footnote is sufficiently detailed, so as to
satisfy the footnoting standards of counsel for petitioners is not an ethical matter
but one concerning clarity of writing. The statement See Tams, Enforcing Obligations
Erga Omnes in International Law (2005) in the Vinuya decision is an attribution no
matter if Tams thought that it gave him somewhat less credit than he deserved.
Such attribution altogether negates the idea that Justice Del Castillo passed off the
challenged passages as his own.

That it would have been better had Justice Del Castillo used the introductory phrase
cited in rather than the phrase See would make a case of mere inadvertent slip in

attribution rather than a case of manifest intellectual theft and outright plagiarism.
If the Justices citations were imprecise, it would just be a case of bad footnoting
rather than one of theft or deceit. If it were otherwise, many would be target of
abuse for every editorial error, for every mistake in citing pagination, and for every
technical detail of form.

The Passages from Ellis

and Criddle-Descent

Petitioners also attack the Courts decision for lifting and using as footnotes, without
attribution to the author, passages from the published work of Ellis. The Court made
the following statement on page 27 of its decision, marked with Footnote 65 at the
end:

We fully agree that rape, sexual slavery, torture, and sexual violence are morally
reprehensible as well as legally prohibited under contemporary international law. 65
xxx

Footnote 65 appears down the bottom of the page. Since the lengthy passages in

that footnote came almost verbatim from Ellis article,[10] such passages ought to
have been introduced by an acknowledgement that they are from that article. The
footnote could very well have read:

65 In an article, Breaking the Silence: Rape as an International Crime, Case Western

Reserve Journal of International Law (2006), Mark Ellis said: The concept of rape as
an international crime is relatively new. This is not to say that rape has never been
historically prohibited, particularly in war. But modern-day sensitivity to the crime of
rape did not emerge until after World War II. In the Nuremberg Charter, the word
rape was not mentioned. The article on crimes against humanity explicitly set forth
prohibited acts, but rape was not mentioned by name. (For example, the Treaty of
Amity and Commerce between Prussia and the United States provides that in time
of war all women and children shall not be molested in their persons. The Treaty of
Amity and Commerce, Between his Majesty the King of Prussia and the United
States of America, art. 23, Sept. 10, 1785, U.S.-Pruss., 8 Treaties & Other Int'l
Agreements Of The U.S. 78, 85. The 1863 Lieber Instructions classified rape as a
crime of troop discipline. (Mitchell, The Prohibition of Rape in International
Humanitarian Law as a Norm of Jus cogens: Clarifying the Doctrine, 15 Duke J.
Comp. Intl. L. 219, 224). It specified rape as a capital crime punishable by the death
penalty (Id. at 236). The 1907 Hague Convention protected women by requiring the
protection of their honour. (Family honour and rights, the lives of persons, and
private property, as well as religious convictions and practice, must be respected.
Convention (IV) Respecting the Laws & Customs of War on Land, art. 46, Oct. 18,
1907. General Assembly resolution 95 (I) of December 11, 1946 entitled, Affirmation
of the Principles of International Law recognized by the Charter of the Nrnberg
Tribunal; General Assembly document A/64/Add.1 of 1946; See Agreement for the
Prosecution and Punishment of the Major War Criminals of the European Axis, Aug.
8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279. Article 6(c) of the Charter established
crimes against humanity as the following:

CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement,

deportation, and other inhumane acts committed against any civilian population,
before or during the war, or persecutions on political, racial or religious grounds in
execution of or in connection with any crime within the Jurisdiction of the Tribunal,
whether or not in violation of the domestic law of the country where perpetrated.

The Nuremberg Judgment did not make any reference to rape and rape was not
prosecuted. (Judge Gabrielle Kirk McDonald, The International Criminal Tribunals
Crime and Punishment in the International Arena,7 ILSA J. Intl. Comp. L. 667, 676.)
However, International Military Tribunal for the Far East prosecuted rape crimes,
even though its Statute did not explicitly criminalize rape. The Far East Tribunal held
General Iwane Matsui, Commander Shunroku Hata and Foreign Minister Hirota
criminally responsible for a series of crimes, including rape, committed by persons
under their authority. (The Tokyo Judgment: Judgment Of The International Military
Tribunal For The Far East 445-54 (1977).

The first mention of rape as a specific crime came in December 1945 when
Control Council Law No. 10 included the term rape in the definition of crimes against
humanity. Law No. 10, adopted by the four occupying powers in Germany, was
devised to establish a uniform basis for prosecuting war criminals in German courts.
(Control Council for Germany, Law No. 10: Punishment of Persons Guilty of War
Crimes, Crimes Against Peace and Against Humanity, Dec. 20, 1945, 3 Official
Gazette Control Council for Germany 50, 53 (1946))

The 1949 Geneva Convention Relative to the Treatment of Prisoners of War was
the first modern-day international instrument to establish protections against rape
for women. Geneva Convention Relative to the Protection of Civilian Persons in Time
of War, Aug. 12, 1949, art. 27, 6 U.S.T. 3316, 75 U.N.T.S. 287 (entry into force Oct.
20, 1950) [hereinafter Fourth Geneva Convention].Furthermore, the ICC, the ICTY,
and the International Criminal Tribunal for Rwanda (ICTR) have significantly
advanced the crime of rape by enabling it to be prosecuted as genocide, a war
crime, and a crime against humanity.

But, as it happened, the acknowledgment above or a similar introduction was

missing from Footnote 65.

Next, petitioners also point out that the following eight sentences and their
accompanying footnotes appear in text on pages 30-32 of the Vinuya decision:

xxx In international law, the term jus cogens (literally, compelling law) refers to
norms that command peremptory authority, superseding conflicting treaties and
custom. Jus cogens norms are considered peremptory in the sense that they are
mandatory, do not admit derogation, and can be modified only by general
international norms of equivalent authority.71

Early strains of the jus cogens doctrine have existed since the 1700s,72 but
peremptory norms began to attract greater scholarly attention with the publication
of Alfred von Verdross's influential 1937 article, Forbidden Treaties in International
Law.73 The recognition of jus cogens gained even more force in the 1950s and
1960s with the ILCs preparation of the Vienna Convention on the Law of Treaties
(VCLT).74 Though there was a consensus that certain international norms had
attained the status of jus cogens,75 the ILC was unable to reach a consensus on the
proper criteria for identifying peremptory norms.

After an extended debate over these and other theories of jus cogens, the ILC
concluded ruefully in 1963 that there is not as yet any generally accepted criterion
by which to identify a general rule of international law as having the character of jus
cogens.76 In a commentary accompanying the draft convention, the ILC indicated
that the prudent course seems to be to x x x leave the full content of this rule to be
worked out in State practice and in the jurisprudence of international tribunals.77
Thus, while the existence of jus cogens in international law is undisputed, no
consensus exists on its substance,77 beyond a tiny core of principles and rules.78

Admittedly, the Vinuya decision lifted the above, including their footnotes, from

Criddle-Descents article, A Fiduciary Theory of Jus Cogens.[11] Criddle-Descents

footnotes were carried into the Vinuya decisions own footnotes but no attributions
were made to the two authors in those footnotes.

The Explanation

Unless amply explained, the above lifting from the works of Ellis and CriddleDescent could be construed as plagiarism. But one of Justice Del Castillos
researchers, a court-employed attorney, explained how she accidentally deleted the
attributions, originally planted in the beginning drafts of her report to him, which
report eventually became the working draft of the decision. She said that, for most
parts, she did her research electronically. For international materials, she sourced
these mainly from Westlaw, an online research service for legal and law-related
materials to which the Court subscribes.

In the old days, the common practice was that after a Justice would have assigned a
case for study and report, the researcher would source his materials mostly from
available law books and published articles on print. When he found a relevant item
in a book, whether for one side of the issue or for the other, he would place a strip
of paper marker on the appropriate page, pencil mark the item, and place the book
on his desk where other relevant books would have piled up. He would later
paraphrase or copy the marked out passages from some of these books as he typed
his manuscript on a manual typewriter. This occasion would give him a clear
opportunity to attribute the materials used to their authors or sources.

With the advent of computers, however, as Justice Del Castillos researcher also
explained, most legal references, including the collection of decisions of the Court,
are found in electronic diskettes or in internet websites that offer virtual libraries of
books and articles. Here, as the researcher found items that were relevant to her
assignment, she downloaded or copied them into her main manuscript, a
smorgasbord plate of materials that she thought she might need. The researchers
technique in this case is not too far different from that employed by a carpenter.
The carpenter first gets the pieces of lumber he would need, choosing the kinds and
sizes suitable to the object he has in mind, say a table. When ready, he would
measure out the portions he needs, cut them out of the pieces of lumber he had
collected, and construct his table. He would get rid of the scraps.

Here, Justice Del Castillos researcher did just that. She electronically cut relevant
materials from books and journals in the Westlaw website and pasted these to a
main manuscript in her computer that contained the issues for discussion in her
proposed report to the Justice. She used the Microsoft Word program.[12] Later,
after she decided on the general shape that her report would take, she began
pruning from that manuscript those materials that did not fit, changing the positions
in the general scheme of those that remained, and adding and deleting paragraphs,
sentences, and words as her continuing discussions with Justice Del Castillo, her
chief editor, demanded. Parenthetically, this is the standard scheme that computerliterate court researchers use everyday in their work.

Justice Del Castillos researcher showed the Committee the early drafts of her report
in the Vinuya case and these included the passages lifted from the separate articles
of Criddle-Descent and of Ellis with proper attributions to these authors. But, as it
happened, in the course of editing and cleaning up her draft, the researcher
accidentally deleted the attributions.

First Finding

The Court adopts the Committees finding that the researchers explanation
regarding the accidental removal of proper attributions to the three authors is
credible. Given the operational properties of the Microsoft program in use by the
Court, the accidental decapitation of attributions to sources of research materials is
not remote.

For most senior lawyers and judges who are not computer literate, a familiar
example similar to the circumstances of the present case would probably help
illustrate the likelihood of such an accident happening. If researcher X, for example,
happens to be interested in the inalienable character of juridical personality in
connection with an assignment and if the book of the learned Civilist, Arturo M.
Tolentino, happens to have been published in a website, researcher X would
probably show interest in the following passage from that book:

xxx Both juridical capacity and capacity to act are not rights, but qualities of
persons; hence, they cannot be alienated or renounced.15

xxx

_____________________________

15 3 Von Tuhr 296; 1 Valverde 291.

Because the sentence has a footnote mark (#15) that attributes the idea to other
sources, it is evident that Tolentino did not originate it. The idea is not a product of
his intellect. He merely lifted it from Von Tuhr and Valverde, two reputable foreign
authors.

When researcher X copies and pastes the above passage and its footnote into a
manuscript-in-the-making in his computer, the footnote number would, given the
computer program in use, automatically change and adjust to the footnoting
sequence of researcher Xs manuscript. Thus, if the preceding footnote in the
manuscript when the passage from Tolentino was pasted on it is 23, Tolentinos
footnote would automatically change from the original Footnote 15 to Footnote 24.

But then, to be of use in his materials-gathering scheme, researcher X would have

to tag the Tolentino passage with a short description of its subject for easy
reference. A suitable subject description would be: The inalienable character of
juridical personality.23 The footnote mark, 23 From Tolentino, which researcher X
attaches to the subject tag, serves as reminder to him to attribute the passage in its
final form to Tolentino. After the passage has been tagged, it would now appear like
this:

The inalienable character of juridical personality.23

xxx Both juridical capacity and capacity to act are not rights, but qualities of
persons; hence, they cannot be alienated or renounced.24

xxx

_____________________________

23 From Tolentino.

24 3 Von Tuhr 296; 1 Valverde 291.

The tag is of course temporary and would later have to go. It serves but a marker to
help researcher X maneuver the passage into the right spot in his final manuscript.

The mistake of Justice Del Castillos researcher is that, after the Justice had decided
what texts, passages, and citations were to be retained including those from
Criddle-Descent and Ellis, and when she was already cleaning up her work and
deleting all subject tags, she unintentionally deleted the footnotes that went with
such tagswith disastrous effect.

To understand this, in Tolentinos example, the equivalent would be researcher Xs

removal during cleanup of the tag, The inalienable character of juridical

personality.23, by a simple delete operation, and the unintended removal as well of

the accompanying footnote (#23). The erasure of the footnote eliminates the link
between the lifted passage and its source, Tolentinos book. Only the following would
remain in the manuscript:

xxx Both juridical capacity and capacity to act are not rights, but qualities of
persons; hence, they cannot be alienated or renounced.43

_____________________________

43 3 Von Tuhr 296; 1 Valverde 291.

As it happened, the Microsoft word program does not have a function that raises an
alarm when original materials are cut up or pruned. The portions that remain simply
blend in with the rest of the manuscript, adjusting the footnote number and
removing any clue that what should stick together had just been severed.

This was what happened in the attributions to Ellis and Criddle-Descent. The
researcher deleted the subject tags and, accidentally, their accompanying footnotes
that served as reminder of the sources of the lifted passages. With 119 sources
cited in the decision, the loss of the 2 of them was not easily detectable.

Petitioners point out, however, that Justice Del Castillos verified letter of July 22,
2010 is inconsistent with his researchers claim that the omissions were mere errors
in attribution. They cite the fact that the Justice did not disclose his researchers
error in that letter despite the latters confession regarding her mistake even before
the Justice sent his letter to the Chief Justice. By denying plagiarism in his letter,
Justice Del Castillo allegedly perjured himself and sought to whitewash the case.[13]

But nothing in the July 22 letter supports the charge of false testimony. Justice Del
Castillo merely explained that there was every intention to attribute all sources
whenever due and that there was never any malicious intent to appropriate
anothers work as our own, which as it turns out is a true statement. He recalled how
the Court deliberated upon the case more than once, prompting major revisions in
the draft of the decision. In the process, (s)ources were re-studied, discussions
modified, passages added or deleted. Nothing in the letter suggests a cover-up.
Indeed, it did not preclude a researchers inadvertent error.

And it is understandable that Justice Del Castillo did not initially disclose his
researchers error. He wrote the decision for the Court and was expected to take full
responsibility for any lapse arising from its preparation. What is more, the process of
drafting a particular decision for the Court is confidential, which explained his initial
request to be heard on the matter without the attendance of the other parties.

Notably, neither Justice Del Castillo nor his researcher had a motive or reason for
omitting attribution for the lifted passages to Criddle-Descent or to Ellis. The latter
authors are highly respected professors of international law. The law journals that
published their works have exceptional reputations. It did not make sense to

intentionally omit attribution to these authors when the decision cites an abundance
of other sources. Citing these authors as the sources of the lifted passages would
enhance rather than diminish their informative value. Both Justice Del Castillo and
his researcher gain nothing from the omission. Thus, the failure to mention the
works of Criddle-Decent and Ellis was unquestionably due to inadvertence or pure
oversight.

Petitioners of course insist that intent is not material in committing plagiarism since
all that a writer has to do, to avoid the charge, is to enclose lifted portions with
quotation marks and acknowledge the sources from which these were taken.[14]
Petitioners point out that the Court should apply to this case the ruling in University
of the Philippines Board of Regents v. Court of Appeals and Arokiaswamy William
Margaret Celine.[15] They argue that standards on plagiarism in the academe
should apply with more force to the judiciary.

But petitioners theory ignores the fact that plagiarism is essentially a form of fraud
where intent to deceive is inherent. Their theory provides no room for errors in
research, an unrealistic position considering that there is hardly any substantial
written work in any field of discipline that is free of any mistake. The theory places
an automatic universal curse even on errors that, as in this case, have reasonable
and logical explanations.

Indeed, the 8th edition of Blacks Law Dictionary defines plagiarism as the deliberate
and knowing presentation of another person's original ideas or creative expressions
as one's own.[16] Thus, plagiarism presupposes intent and a deliberate, conscious
effort to steal anothers work and pass it off as ones own.

Besides, the Court said nothing in U.P. Board of Regents that would indicate that an
intent to pass off anothers work as ones own is not required in plagiarism. The Court
merely affirmed the academic freedom of a university to withdraw a masters degree
that a student obtained based on evidence that she misappropriated the work of
others, passing them off as her own. This is not the case here since, as already
stated, Justice Del Castillo actually imputed the borrowed passages to others.

Second Finding

The Court also adopts the Committees finding that the omission of attributions to
Criddle-Descent and Ellis did not bring about an impression that Justice Del Castillo
himself created the passages that he lifted from their published articles. That he
merely got those passages from others remains self-evident, despite the accidental
deletion. The fact is that he still imputed the passages to the sources from which
Criddle-Descent and Ellis borrowed them in the first place.

This is best illustrated in the familiar example above. After the deletion of the
subject tag and, accidentally, its footnote which connects to the source, the lifted
passage would appear like this:

xxx Both juridical capacity and capacity to act are not rights, but qualities of
persons; hence, they cannot be alienated or renounced.43

_____________________________

43 3 Von Tuhr 296; 1 Valverde 291.

Although the unintended deletion severed the passages link to Tolentino, the
passage remains to be attributed to Von Tuhr and Valverde, the original sources that
Tolentino himself cites. The text and its footnote reference cancel out any
impression that the passage is a creation of researcher X. It is the same with the
passages from Criddle-Descent and Ellis. Because such passages remained
attributed by the footnotes to the authors original sources, the omission of
attributions to Criddle-Descent and Ellis gave no impression that the passages were
the creations of Justice Del Castillo. This wholly negates the idea that he was
passing them off as his own thoughts.

True the subject passages in this case were reproduced in the Vinuya decision
without placing them in quotation marks. But such passages are much unlike the
creative line from Robert Frost,[17] The woods are lovely, dark, and deep, but I have
promises to keep, and miles to go before I sleep, and miles to go before I sleep. The
passages here consisted of common definitions and terms, abridged history of
certain principles of law, and similar frequently repeated phrases that, in the world
of legal literature, already belong to the public realm.

To paraphrase Bast and Samuels,[18] while the academic publishing model is based
on the originality of the writers thesis, the judicial system is based on the doctrine
of stare decisis, which encourages courts to cite historical legal data, precedents,
and related studies in their decisions. The judge is not expected to produce original
scholarship in every respect. The strength of a decision lies in the soundness and
general acceptance of the precedents and long held legal opinions it draws from.

Third Finding

Petitioners allege that the decision twisted the passages from Tams, CriddleDescent, and Ellis. The Court adopts the Committees finding that this is not so.
Indeed, this allegation of twisting or misrepresentation remains a mystery to the
Court. To twist means to distort or pervert the meaning of.[19] For example, if one
lifts the lyrics of the National Anthem, uses it in his work, and declares that Jose
Palma who wrote it did not love his country, then there is twisting or
misrepresentation of what the anthems lyrics said. Here, nothing in the Vinuya
decision said or implied that, based on the lifted passages, authors Tams, CriddleDescent, and Ellis supported the Courts conclusion that the Philippines is not under
any obligation in international law to espouse Vinuya et al.s claims.

The fact is that, first, since the attributions to Criddle-Descent and Ellis were
accidentally deleted, it is impossible for any person reading the decision to connect
the same to the works of those authors as to conclude that in writing the decision
Justice Del Castillo twisted their intended messages. And, second, the lifted
passages provided mere background facts that established the state of international
law at various stages of its development. These are neutral data that could support
conflicting theories regarding whether or not the judiciary has the power today to
order the Executive Department to sue another country or whether the duty to

prosecute violators of international crimes has attained the status of jus cogens.

Considering how it was impossible for Justice Del Castillo to have twisted the
meaning of the passages he lifted from the works of Tams, Criddle-Descent, and
Ellis, the charge of twisting or misrepresentation against him is to say the least,
unkind. To be more accurate, however, the charge is reckless and obtuse.

No Misconduct

On occasions judges and justices have mistakenly cited the wrong sources, failed to
use quotation marks, inadvertently omitted necessary information from footnotes or
endnotes. But these do not, in every case, amount to misconduct. Only errors that
are tainted with fraud, corruption, or malice are subject of disciplinary action.[20]
This is not the case here. Justice Del Castillos acts or omissions were not shown to
have been impelled by any of such disreputable motives.[21] If the rule were
otherwise, no judge or justice, however competent, honest, or dedicated he may be,
can ever hope to retire from the judiciary with an unblemished record.[22]

No Inexcusable Negligence

Finally, petitioners assert that, even if they were to concede that the omission was
the result of plain error, Justice Del Castillo is nonetheless guilty of gross
inexcusable negligence. They point out that he has full control and supervision over
his researcher and should not have surrendered the writing of the decision to the
latter.[23]

But this assumes that Justice Del Castillo abdicated the writing of the Vinuya
decision to his researcher, which is contrary to the evidence adduced during the
hearing. As his researcher testified, the Justice set the direction that the research
and study were to take by discussing the issues with her, setting forth his position
on those issues, and reviewing and commenting on the study that she was putting
together until he was completely satisfied with it.[24] In every sense, Justice Del
Castillo was in control of the writing of the report to the Court, which report
eventually became the basis for the decision, and determined its final outcome.

Assigning cases for study and research to a court attorney, the equivalent of a law
clerk in the United States Supreme Court, is standard practice in the high courts of
all nations. This is dictated by necessity. With about 80 to 100 cases assigned to a
Justice in our Court each month, it would be truly senseless for him to do all the
studies and research, going to the library, searching the internet, checking
footnotes, and watching the punctuations. If he does all these by himself, he would
have to allocate at least one to two weeks of work for each case that has been
submitted for decision. The wheels of justice in the Supreme Court will grind to a
halt under such a proposition.

What is important is that, in this case, Justice Del Castillo retained control over the
writing of the decision in the Vinuya case without, however, having to look over his
researchers shoulder as she cleaned up her draft report to ensure that she hit the
right computer keys. The Justices researcher was after all competent in the field of
assignment given her. She finished law from a leading law school, graduated third in

her class, served as Editor-in Chief of her schools Law Journal, and placed fourth in
the bar examinations when she took it. She earned a masters degree in
International Law and Human Rights from a prestigious university in the United
States under the Global-Hauser program, which counsel for petitioners concedes to
be one of the top post graduate programs on International Law in the world. Justice
Del Castillo did not exercise bad judgment in assigning the research work in the
Vinuya case to her.

Can errors in preparing decisions be prevented? Not until computers cease to be

operated by human beings who are vulnerable to human errors. They are hypocrites
who believe that the courts should be as error-free as they themselves are.

Incidentally, in the course of the submission of petitioners exhibits, the Committee

noted that petitioners Exhibit J, the accusing statement of the Faculty of the U.P.
College of Law on the allegations of plagiarism and misinterpretation, was a mere
dummy. The whole of the statement was reproduced but the signatures portion
below merely listed the names of 38 faculty members, in solid rows, with the letters
Sgd or signed printed beside the names without exception. These included the
name of retired Supreme Court Justice Vicente V. Mendoza, a U.P. professor.

Because the Committee declined to admit a mere dummy of Exhibit J, it directed

Atty. Roque to present the signed copy within three days of the August 26 hearing.
[25] He complied. As it turned out, the original statement was signed by only a
minority of the faculty members on the list. The set of signatories that appeared like
solid teeth in the dummy turned out to be broken teeth in the original. Since only 37
out of the 81 on the list signed the document, it does not appear to be a statement
of the Faculty but of just some of its members. And retired Justice V. V. Mendoza did
not sign the statement, contrary to what the dummy represented. The Committee
wondered why the Dean submitted a dummy of the signed document when U.P. has
an abundance of copying machines.

Since the above circumstances appear to be related to separate en banc matter

concerning the supposed Faculty statement, there is a need for the Committee to
turn over the signed copy of the same to the en banc for its consideration in relation
to that matter.

WHEREFORE, in view of all of the above, the Court:

1. DISMISSES for lack of merit petitioner Vinuya, et al.s charges of plagiarism,

twisting of cited materials, and gross neglect against Justice Mariano C. del Castillo;

2. DIRECTS the Public Information Office to send copies of this decision to Professors
Evan J. Criddle and Evan Fox-Descent, Dr. Mark Ellis, and Professor Christian J. Tams
at their known addresses;

3. DIRECTS the Clerk of Court to provide all court attorneys involved in legal
research and reporting with copies of this decision and to enjoin them to avoid
editing errors committed in the Vinuya case while using the existing computer
program especially when the volume of citations and footnoting is substantial; and

4. Finally, DIRECTS the Clerk of Court to acquire the necessary software for use by
the Court that can prevent future lapses in citations and attributions.

Further, the Court DIRECTS the Committee on Ethics and Ethical Standards to turn
over to the en banc the dummy as well as the signed copy of petitioners Exhibit J,
entitled Restoring Integrity, a statement by the Faculty of the University of the
Philippines College of Law for the en bancs consideration in relation to the separate
pending matter concerning that supposed Faculty statement.

SO ORDERED.

6.

FIRST DIVISION

[A.C. No. 6294. November 17, 2004]

ATTY. MINIANO B. DELA CRUZ, complainant, vs. ATTY. ALEJANDRO

P. ZABALA, respondent.
RESOLUTION
QUISUMBING, J.:

In his Letter-Complaint for Disbarment filed before the Committee on Bar

Discipline of the Integrated Bar of the Philippines, complainant Atty. Miniano B. Dela
Cruz charged respondent, Atty. Alejandro P. Zabala, for violating his oath as a notary
public.
Complainant alleged that respondent notarized with unknown witnesses, a fake
deed of sale allegedly executed by two dead people, in gross violation of his oath as a
Commissioned Notary Public in Quezon City.[1]

Complainant averred that he was retained by a certain Demetrio C. Marero last

December 21, 1996, to finance and undertake the filing of a Petition for the Issuance of
a Second Duplicate Original of the Owners copy of Original Certificate of Title (OCT)
No. 4153, in the names of Sps. Pedro Sumulong and Cirila Tapales before the Regional
Trial Court of Antipolo City, Branch 72. The court issued an Order approving the said
petition on March 10, 1997.[2]
On May 20, 1997, complainant purchased the said property from Marero and had
the title transferred to him and his wife. OCT No. 4153 was then cancelled and replaced
by Transfer Certificate of Title (TCT) No. 330000. [3]
The next day, complainant requested a certain Mrs. Adoracion Losloso and Mr.
Nestor Aguirre to register the title in the formers name at the Assessors Office of
Antipolo City. However, they were unable to do so because the property was already
registered in the name of Antipolo Properties, Inc., under TCT No. N-107359. [4]
On May 27, 1997, respondent notarized a Deed of Absolute Sale over the land
covered by OCT No. 4153, executed by Cirila Tapales and Pedro Sumulong in favor of
the complainant and his wife.[5]
On December 9, 1997, Mr. Marero filed a Complaint for Reconveyance of Title of
the land, subject of the Deed of Sale which was notarized by respondent, with damages
against the complainant and his wife. The Deed of Sale was the same document
Marero used when he filed a complaint for Estafa thru Falsification of Public Document
docketed as I.S. No. 98-16357 before the Quezon City Prosecutors Office and in a
disbarment case docketed as Adm. Case No. 4963 against complainant. [6]
Purportedly, to clear his name, complainant filed this complaint for disbarment
against respondent. According to complainant, respondent notarized an irregular
document where one of the parties to the transaction was already dead, grossly
violating his oath as a notary public. [7]
The IBP then required the respondent to file his answer to the said allegations.
Respondent, in his Answer alleged that as a notary, he did not have to go beyond
the documents presented to him for notarization. In notarial law, he explains, the
minimum requirements to notarize a document are the presence of the parties and their
presentation of their community tax certificate. As long as these requirements are met,
the documents may be notarized. Furthermore, he adds, when he notarized the Deed of
Sale, he had no way of knowing whether the persons who appeared before him were
the real owners of the land or were merely poseurs. [8]
Thereafter, the parties were ordered to appear before the IBP Commission on Bar
Discipline on July 31, 2001 and August 21, 2001, and required to submit their position
papers.
The IBP Commission on Bar Discipline, in its Report dated September 29, 2003,
recommended that respondent be reprimanded for violating Canon 5 of the Code of
Professional Responsibility.[9] The allegations with respect to the prayer for disbarment
were recommended for dismissal for insufficiency of evidence. The Commissioner held
that complainant failed to establish by convincing proof that respondent had to be

disbarred because of his notarial negligence. The alleged failures of respondent did not
indicate a clear intent to engage in unlawful, dishonest, immoral or deceitful conduct,
according to the Commissions Report.
Noteworthy, however, respondent did not deny that he notarized the cited Deed of
Sale under the circumstances alleged by complainant. It appears that there was
negligence on respondents part which, in our view, is quite serious. Thus, we cannot
conclude that he did not violate the Notarial Law, [10] and our rules regarding Notarial
Practice.[11] Nor could we agree that, as recommended by the IBP, he should only be
reprimanded. At least his commission as Notary Public should be revoked and for two
years he should be disqualified from being commissioned as such.
The IBP noted that on its face, the Deed of Sale was not executed by the purported
vendee and that only Pedro Sumulong appeared and executed the deed even though
the property was co-owned by Pedro Sumulong and Cirila Tapales. In addition, a copy
of the title was not attached to the said Deed of Sale when it was presented for
notarization. The aforementioned circumstances should have alerted respondent. Given
the ease with which community tax certificates are obtained these days, respondent
should have been more vigilant in ascertaining the identity of the persons who appeared
before him.
We have empathically stressed that notarization is not an empty, meaningless
routinary act. It is invested with substantive public interest. It must be underscored that
the notarization by a notary public converts a private document into a public document,
making that document admissible in evidence without further proof of authenticity
thereof. A notarial document is, by law, entitled to full faith and credit upon its face. For
this reason, a notary public must observe with utmost care the basic requirements in the
performance of their duties; otherwise, the confidence of the public in the integrity of this
form of conveyance would be undermined.[12]
Section 1 of Public Act No. 2103 provides,
...

(a) The acknowledgment shall be made before a notary public or an officer duly
authorized by law of the country to take acknowledgments of instruments or
documents in the place where the act is done. The notary public or the officer taking
the acknowledgment shall 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. The certificate shall be made
under his official seal, if he is by law required to keep a seal, and if not, his certificate
shall so state. [Emphasis ours.]
A notary public should not notarize a document unless the persons who signed the
same are the very same persons who executed and personally appeared before him to
attest to the contents and the truth of what are stated therein. These acts of the affiants
cannot be delegated because what are stated therein are facts they have personal
knowledge of and are personally sworn to. Otherwise, their representatives names
should appear in the said documents as the ones who executed the same. [13]

The function of a notary public is, among others, to guard against any illegal or
immoral arrangements.[14] By affixing his notarial seal on the instrument, he converted
the Deed of Absolute Sale, from a private document into a public document. In doing so,
respondent, in effect, proclaimed to the world that (1) all the parties therein personally
appeared before him; (2) they are all personally known to him; (3) they were the same
persons who executed the instruments; (4) he inquired into the voluntariness of
execution of the instrument; and (5) they acknowledged personally before him that they
voluntarily and freely executed the same.[15] As a lawyer commissioned to be a notary
public, respondent is mandated to discharge his sacred duties with faithful observance
and utmost respect for the legal solemnity of an oath in an acknowledgment or jurat.
[16]
Simply put, such responsibility is incumbent upon him, he must now accept the
commensurate consequences of his professional indiscretion. His act of certifying under
oath an irregular Deed of Absolute Sale without ascertaining the identities of the
persons executing the same constitutes gross negligence in the performance of duty as
a notary public.
WHEREFORE, this Court finds respondent Atty. Alejandro P. Zabala GUILTY of
gross negligence in his conduct as a notary public. His notarial commission, if still
existing, is hereby REVOKED and he is DISQUALIFIED from being commissioned as a
notary public for a period of two (2) years. He is DIRECTED to report the date of his
receipt of this Resolution to the Court within five (5) days from such receipt. Further, he
is ordered to SHOW CAUSE why he should not be subject to disciplinary action as a
member of the Bar.
Let copies of this Resolution be furnished to all the courts of the land as well as the
Integrated Bar of the Philippines, and the Office of the Bar Confidant. Let this Resolution
be also made of record in the personal files of the respondent.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio, and Azcuna, JJ., concur.

7.

Republic

of

SUPREME
Manila

the

Philippines
COURT

FIRST DIVISION
A.C. No. 5281

February 12, 2008

MANUEL
vs.
ATTY. REGINO B. TAMBAGO, respondent.

L.

LEE, petitioner,

RESOLUTION
CORONA, J.:
In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee charged respondent Atty.
Regino B. Tambago with violation of the Notarial Law and the ethics of the legal profession for
notarizing a spurious last will and testament.

In his complaint, complainant averred that his father, the decedent Vicente Lee, Sr., never executed
the contested will. Furthermore, the spurious will contained the forged signatures of Cayetano
Noynay and Loreto Grajo, the purported witnesses to its execution.
In the said will, the decedent supposedly bequeathed his entire estate to his wife Lim Hock Lee,
save for a parcel of land which he devised to Vicente Lee, Jr. and Elena Lee, half-siblings of
complainant.
The will was purportedly executed and acknowledged before respondent on June 30,
1965.1 Complainant, however, pointed out that the residence certificate 2 of the testator noted in the
acknowledgment of the will was dated January 5, 1962. 3 Furthermore, the signature of the testator
was not the same as his signature as donor in a deed of donation 4 (containing his purported genuine
signature). Complainant averred that the signatures of his deceased father in the will and in the deed
of donation were "in any way (sic) entirely and diametrically opposed from (sic) one another in all
angle[s]."5
Complainant also questioned the absence of notation of the residence certificates of the purported
witnesses Noynay and Grajo. He alleged that their signatures had likewise been forged and merely
copied from their respective voters affidavits.
Complainant further asserted that no copy of such purported will was on file in the archives division
of the Records Management and Archives Office of the National Commission for Culture and the Arts
(NCCA). In this connection, the certification of the chief of the archives division dated September 19,
1999 stated:
Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an AFFIDAVIT executed by
BARTOLOME RAMIREZ on June 30, 1965 and is available in this Office[s] files.6
Respondent in his comment dated July 6, 2001 claimed that the complaint against him contained
false allegations: (1) that complainant was a son of the decedent Vicente Lee, Sr. and (2) that the
will in question was fake and spurious. He alleged that complainant was "not a legitimate son of
Vicente Lee, Sr. and the last will and testament was validly executed and actually notarized by
respondent per affidavit7 of Gloria Nebato, common-law wife of Vicente Lee, Sr. and corroborated by
the joint affidavit8 of the children of Vicente Lee, Sr., namely Elena N. Lee and Vicente N. Lee, Jr.
xxx."9
Respondent further stated that the complaint was filed simply to harass him because the criminal
case filed by complainant against him in the Office of the Ombudsman "did not prosper."
Respondent did not dispute complainants contention that no copy of the will was on file in the
archives division of the NCCA. He claimed that no copy of the contested will could be found there
because none was filed.
Lastly, respondent pointed out that complainant had no valid cause of action against him as he
(complainant) did not first file an action for the declaration of nullity of the will and demand his share
in the inheritance.
In a resolution dated October 17, 2001, the Court referred the case to the Integrated Bar of the
Philippines (IBP) for investigation, report and recommendation.10
In his report, the investigating commissioner found respondent guilty of violation of pertinent
provisions of the old Notarial Law as found in the Revised Administrative Code. The violation
constituted an infringement of legal ethics, particularly Canon 1 11 and Rule 1.0112 of the Code of
Professional Responsibility (CPR).13 Thus, the investigating commissioner of the IBP Commission on
Bar Discipline recommended the suspension of respondent for a period of three months.
The IBP Board of Governors, in its Resolution No. XVII-2006-285 dated May 26, 2006, resolved:
[T]o ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with
modification, the Report and Recommendation of the Investigating Commissioner of the
above-entitled case, herein made part of this Resolution as Annex "A"; and, finding the

recommendation fully supported by the evidence on record and the applicable laws and
rules, and considering Respondents failure to comply with the laws in the discharge of his
function as a notary public, Atty. Regino B. Tambago is hereby suspended from the practice
of law for one year and Respondents notarial commission is Revoked and
Disqualified fromreappointment as Notary Public for two (2) years. 14
We affirm with modification.
A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a
certain degree the disposition of his estate, to take effect after his death. 15 A will may either be
notarial or holographic.
The law provides for certain formalities that must be followed in the execution of wills. The object of
solemnities surrounding the execution of wills is to close the door on bad faith and fraud, to avoid
substitution of wills and testaments and to guarantee their truth and authenticity.16
A notarial will, as the contested will in this case, is required by law to be subscribed at the end
thereof by the testator himself. In addition, it should be attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.17
The will in question was attested by only two witnesses, Noynay and Grajo. On this circumstance
alone, the will must be considered void. 18 This is in consonance with the rule that acts executed
against the provisions of mandatory or prohibitory laws shall be void, except when the law itself
authorizes their validity.
The Civil Code likewise requires that a will must be acknowledged before a notary public by the
testator and the witnesses.19 The importance of this requirement is highlighted by the fact that it was
segregated from the other requirements under Article 805 and embodied in a distinct and separate
provision.20
An acknowledgment is the act of one who has executed a deed in going before some competent
officer or court and declaring it to be his act or deed. It involves an extra step undertaken whereby
the signatory actually declares to the notary public that the same is his or her own free act and
deed.21 The acknowledgment in a notarial will has a two-fold purpose: (1) to safeguard the testators
wishes long after his demise and (2) to assure that his estate is administered in the manner that he
intends it to be done.
A cursory examination of the acknowledgment of the will in question shows that this particular
requirement was neither strictly nor substantially complied with. For one, there was the conspicuous
absence of a notation of the residence certificates of the notarial witnesses Noynay and Grajo in the
acknowledgment. Similarly, the notation of the testators old residence certificate in the same
acknowledgment was a clear breach of the law. These omissions by respondent invalidated the will.
As the acknowledging officer of the contested will, respondent was required to faithfully observe the
formalities of a will and those of notarization. As we held in Santiago v. Rafanan:22
The Notarial Law is explicit on the obligations and duties of notaries public. They are
required to certify that the party to every document acknowledged before him had presented
the proper residence certificate (or exemption from the residence tax); and to enter its
number, place of issue and date as part of such certification.
These formalities are mandatory and cannot be disregarded, considering the degree of importance
and evidentiary weight attached to notarized documents. 23 A notary public, especially a lawyer,24 is
bound to strictly observe these elementary requirements.
The Notarial Law then in force required the exhibition of the residence certificate upon notarization of
a document or instrument:
Section 251. Requirement as to notation of payment of [cedula] residence tax. Every
contract, deed, or other document acknowledged before a notary public shall have certified
thereon that the parties thereto have presented their proper [cedula] residence certificate or

are exempt from the [cedula] residence tax, and there shall be entered by the notary public
as a part of such certificate the number, place of issue, and date of each [ cedula] residence
certificate as aforesaid.25
The importance of such act was further reiterated by Section 6 of the Residence Tax Act 26 which
stated:
When a person liable to the taxes prescribed in this Act acknowledges any document before
a notary public xxx it shall be the duty of such person xxx with whom such transaction is had
or business done, to require the exhibition of the residence certificate showing payment of
the residence taxes by such person xxx.
In the issuance of a residence certificate, the law seeks to establish the true and correct identity of
the person to whom it is issued, as well as the payment of residence taxes for the current year. By
having allowed decedent to exhibit an expired residence certificate, respondent failed to comply with
the requirements of both the old Notarial Law and the Residence Tax Act. As much could be said of
his failure to demand the exhibition of the residence certificates of Noynay and Grajo.
On the issue of whether respondent was under the legal obligation to furnish a copy of the notarized
will to the archives division, Article 806 provides:
Art. 806. Every will must be acknowledged before a notary public by the testator and the
witness. The notary public shall not be required to retain a copy of the will, or file
another with the office of the Clerk of Court. (emphasis supplied)
Respondents failure, inadvertent or not, to file in the archives division a copy of the notarized will
was therefore not a cause for disciplinary action.
Nevertheless, respondent should be faulted for having failed to make the necessary entries
pertaining to the will in his notarial register. The old Notarial Law required the entry of the following
matters in the notarial register, in chronological order:
1. nature of each instrument executed, sworn to, or acknowledged before him;
2. person executing, swearing to, or acknowledging the instrument;
3. witnesses, if any, to the signature;
4. date of execution, oath, or acknowledgment of the instrument;
5. fees collected by him for his services as notary;
6. give each entry a consecutive number; and
7. if the instrument is a contract, a brief description of the substance of the instrument. 27
In an effort to prove that he had complied with the abovementioned rule, respondent contended that
he had crossed out a prior entry and entered instead the will of the decedent. As proof, he presented
a photocopy of his notarial register. To reinforce his claim, he presented a photocopy of a
certification28 stating that the archives division had no copy of the affidavit of Bartolome Ramirez.
A photocopy is a mere secondary evidence. It is not admissible unless it is shown that the original is
unavailable. The proponent must first prove the existence and cause of the unavailability of the
original,29 otherwise, the evidence presented will not be admitted. Thus, the photocopy of
respondents notarial register was not admissible as evidence of the entry of the execution of the will
because it failed to comply with the requirements for the admissibility of secondary evidence.
In the same vein, respondents attempt to controvert the certification dated September 21,
199930 must fail. Not only did he present a mere photocopy of the certification dated March 15,
2000;31 its contents did not squarely prove the fact of entry of the contested will in his notarial
register.

Notaries public must observe with utmost care 32 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.33
Defects in the observance of the solemnities prescribed by law render the entire will invalid. This
carelessness cannot be taken lightly in view of the importance and delicate nature of a will,
considering that the testator and the witnesses, as in this case, are no longer alive to identify the
instrument and to confirm its contents. 34 Accordingly, respondent must be held accountable for his
acts. The validity of the will was seriously compromised as a consequence of his breach of duty.35
In this connection, Section 249 of the old Notarial Law provided:
Grounds for revocation of commission. The following derelictions of duty on the part of a
notary public shall, in the discretion of the proper judge of first instance, be sufficient ground
for the revocation of his commission:
xxx

xxx

xxx

(b) The failure of the notary to make the proper entry or entries in his notarial register
touching his notarial acts in the manner required by law.
xxx

xxx

xxx

(f) The failure of the notary to make the proper notation regarding cedula certificates. 36
These gross violations of the law also made respondent liable for violation of his oath as a lawyer
and constituted transgressions of Section 20 (a), Rule 138 of the Rules of Court 37 and Canon 138 and
Rule 1.0139 of the CPR.
The first and foremost duty of a lawyer is to maintain allegiance to the Republic of the Philippines,
uphold the Constitution and obey the laws of the land.40 For a lawyer is the servant of the law and
belongs to a profession to which society has entrusted the administration of law and the
dispensation of justice.41
While the duty to uphold the Constitution and obey the law is an obligation imposed on every citizen,
a lawyer assumes responsibilities well beyond the basic requirements of good citizenship. As a
servant of the law, a lawyer should moreover make himself an example for others to
emulate.42 Being a lawyer, he is supposed to be a model in the community in so far as respect for the
law is concerned.43
The practice of law is a privilege burdened with conditions. 44 A breach of these conditions justifies
disciplinary action against the erring lawyer. A disciplinary sanction is imposed on a lawyer upon a
finding or acknowledgment that he has engaged in professional misconduct. 45 These sanctions
meted out to errant lawyers include disbarment, suspension and reprimand.
Disbarment is the most severe form of disciplinary sanction. 46 We have held in a number of cases
that the power to disbar must be exercised with great caution 47 and should not be decreed if any
punishment less severe such as reprimand, suspension, or fine will accomplish the end
desired.48 The rule then is that disbarment is meted out only in clear cases of misconduct that
seriously affect the standing and character of the lawyer as an officer of the court. 49
Respondent, as notary public, evidently failed in the performance of the elementary duties of his
office. Contrary to his claims that he "exercised his duties as Notary Public with due care and with
due regard to the provision of existing law and had complied with the elementary formalities in the
performance of his duties xxx," we find that he acted very irresponsibly in notarizing the will in
question. Such recklessness warrants the less severe punishment of suspension from the practice of
law. It is, as well, a sufficient basis for the revocation of his commission 50 and his perpetual
disqualification to be commissioned as a notary public.51
WHEREFORE, respondent Atty. Regino B. Tambago is hereby found guilty of professional
misconduct. He violated (1) the Lawyers Oath; (2) Rule 138 of the Rules of Court; (3) Canon 1 and

Rule 1.01 of the Code of Professional Responsibility; (4) Art. 806 of the Civil Code and (5) the
provisions of the old Notarial Law.
Atty. Regino B. Tambago is hereby SUSPENDED from the practice of law for one year and his
notarial commission REVOKED. Because he has not lived up to the trustworthiness expected of him
as a notary public and as an officer of the court, he is PERPETUALLY DISQUALIFIED from
reappointment as a notary public.
Let copies of this Resolution be furnished to all the courts of the land, the Integrated Bar of the
Philippines and the Office of the Bar Confidant, as well as made part of the personal records of
respondent.
SO ORDERED.

8.
Republic
SUPREME
Manila

of

the

Philippines
COURT

SECOND DIVISION
A.C. No. 7781

September 12, 2008

DOLORES L. DELA CRUZ, MILAGROS L. PRINCIPE, NARCISA L. FAUSTINO, JORGE V.

LEGASPI,
and
JUANITO
V.
LEGASPI,complainants,
vs.
ATTY. JOSE R. DIMAANO, JR., respondent.
DECISION
VELASCO, JR., J.:
In their complaint for disbarment against respondent Atty. Jose R. Dimaano, Jr., Dolores L. Dela
Cruz, Milagros L. Principe, Narcisa L. Faustino, Jorge V. Legaspi, and Juanito V. Legaspi alleged
that on July 16, 2004, respondent notarized a document denominated asExtrajudicial Settlement of
the Estate with Waiver of Rights purportedly executed by them and their sister, Zenaida V.L.
Navarro. Complainants further alleged that: (1) their signatures in this document were forged; (2)
they did not appear and acknowledge the document on July 16, 2004 before respondent, as
notarizing officer; and (3) their purported community tax certificates indicated in the document were
not theirs.
According to complainants, respondent had made untruthful statements in the acknowledgment
portion of the notarized document when he made it appear, among other things, that complainants
"personally came and appeared before him" and that they affixed their signatures on the document
in his presence. In the process, complainants added, respondent effectively enabled their sister,
Navarro, to assume full ownership of their deceased parents property in Tibagan, San Miguel,
Bulacan, covered by Transfer Certificate of Title No. T-303936 and sell the same to the Department
of Public Works and Highways.
In his answer, respondent admitted having a hand in the preparation of the document in question,
but admitted having indeed notarized it. He explained that "he notarized [the] document in good faith
relying on the representation and assurance of Zenaida Navarro that the signatures and the
community tax certificates appearing in the document were true and correct." Navarro would not,
according to respondent, lie to him having known, and being neighbors of, each other for 30 years.
Finally, respondent disclaimed liability for any damage or injury considering that the falsified
document had been revoked and canceled.
In his Report and Recommendation, the Investigating Commissioner of the Office of the Commission
on Bar Discipline, Integrated Bar of the Philippines (IBP), found the following as established: (1) the

questioned document bore the signatures and community tax certificates of, and purports to have
been executed by, complainants and Navarro; (2) respondent indeed notarized the questioned
document on July 16, 2004; (3) complainants did not appear and acknowledge the document before
respondent on July 16, 2004; (4) respondent notarized the questioned document only on Navarros
representation that the signatures appearing and community tax certificates were true and correct;
and (5) respondent did not ascertain if the purported signatures of each of the complainants
appearing in the document belonged to them.
The Commission concluded that with respondents admission of having notarized the document in
question against the factual backdrop as thus established, a clear case of falsification and violation
of the Notarial Law had been committed when he stated in the Acknowledgment that:
Before me, on this 16th day of July 16, 2004 at Manila, personally came and appeared the
above-named persons with their respective Community Tax Certificates as follows:
xxxx
who are known to me to be the same persons who executed the foregoing instrument and
they acknowledge to me that the same is their own free act and deed. x x x
For the stated infraction, the Commission recommended, conformably with the Courts ruling
in Gonzales v. Ramos,1 that respondent be suspended from the practice of law for one (1) year; that
his notarial commission, if still existing, be revoked; and that he be disqualified for reappointment as
notary public for two (2) years. On September 28, 2007, the IBP Board of Governors passed
Resolution No. XVIII-2007-147, adopting and approving the report and recommendation of the
Commission.
We agree with the recommendation of the Commission and the premises holding it together. It bears
reiterating that notaries public should refrain from affixing their signature and notarial seal on a
document unless the persons who signed it are the same individuals who executed and personally
appeared before the notaries public to attest to the truth of what are stated therein, for under Section
1 of Public Act No. 2103 or the Notarial Law, an instrument or document shall be considered
authentic if the acknowledgment is made in accordance with the following requirements:
(a) The acknowledgment shall be made before a notary public or an officer duly authorized
by law of the country to take acknowledgments of instruments or documents in the place
where the act is done. The notary public or the officer taking the acknowledgment shall
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. The certificate shall be made under his official seal, if he is by law required to keep a
seal, and if not, his certificate shall so state.2
Without the appearance of the person who actually executed the document in question, notaries
public would be unable to verify the genuineness of the signature of the acknowledging party and to
ascertain that the document is the partys free act or deed. 3 Furthermore, notaries public are required
by the Notarial Law to certify that the party to the instrument has acknowledged and presented
before the notaries public the proper residence certificate (or exemption from the residence
certificate) and to enter its number, place, and date of issue as part of certification. 4 Rule II, Sec. 12
of the 2004 Rules on Notarial Practice5 now requires a party to the instrument to present competent
evidence of identity. Sec. 12 provides:
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, drivers
license, Professional Regulations Commission ID, National Bureau of Investigation
clearance, police clearance, postal ID, voters ID, Barangay certification, Government
Service Insurance System (GSIS) e-card, Social Security System (SSS) card, Philhealth

card, senior citizen card, Overseas Workers Welfare Administration (OWWA) ID, OFW ID,
seamans book, alien certificate of registration/immigrant certificate of registration,
government office ID, certificate from the National Council for the Welfare of Disabled
Persons (NCWDP), Department of Social Welfare and Development certification [as
amended by A.M. No. 02-8-13-SC dated February 19, 2008]; 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.
One last note. Lawyers commissioned as notaries public are mandated to discharge with fidelity the
duties of their offices, such duties being dictated by public policy and impressed with public interest.
It must be remembered that notarization is not a routinary, meaningless act, for notarization converts
a private document to a public instrument, making it admissible in evidence without the necessity of
preliminary proof of its authenticity and due execution. 6 A notarized document is by law entitled to full
credit upon its face and it is for this reason that notaries public must observe the basic requirements
in notarizing documents. Otherwise, the confidence of the public on notorized documents will be
eroded.
WHEREFORE, for breach of the Notarial Law, the notarial commission of respondent Atty. Jose R.
Dimaano, Jr., if still existing, isREVOKED. He is DISQUALIFIED from being commissioned as notary
public for a period of two (2) years and SUSPENDED from the practice of law for a period of one (1)
year, effective upon receipt of a copy of this Decision, with WARNING that a repetition of the same
negligent act shall be dealt with more severely.
Let all the courts, through the Office of the Court Administrator, as well as the IBP and the Office of
the Bar Confidant, be notified of this Decision and be it entered into respondents personal record.
SO ORDERED.
Quisumbing,Chairperson Carpio-Morales, Tinga, Brion, JJ., concur.
9.
SUPREME
Manila

Republic

of

the

Philippines
COURT

SECOND DIVISION
A.C. No. 5645

July 2, 2002

ROSALINDA
BERNARDO
vs.
ATTY. MARIO G. RAMOS, respondent.

VDA

DE

ROSALES, complainant,

BELLOSILLO, J.:
This complaint for disbarment was filed in behalf of complainant Rosalinda Bernardo Vda. de
Rosales by the National Bureau of Investigation (NBI) against respondent Atty. Mario G. Ramos for
violation of Act No. 2711 of the Revised Administrative Code of 1917, Title IV, Ch. 11, otherwise
know as the Notarial Law, particularly Secs. 245 and 246 thereof.
In September 1990 Manuel A. Bernardo, brother of complainant Rosalinda Bernardo Vda. de
Rosales, borrowed from Rosalinda the Original Transfer Certificate of Title No. 194464 covering Lot
No. 1-B-4-H in her name. The lot measures 112 square meters and is located at the back of
Manuel's house on Fabie Street, Paco, Metro Manila. On 25 November 1990 Rosalinda sold this lot
to one Alfredo P. Castro. When she asked her brother Manuel to return her title he refused.
On 22 October 1990 Rosalinda executed an Affidavit of Loss of her title and presented the affidavit
to the Register of Deeds of Manila.

On 3 September 1991 the Register of Deeds informed Rosalinda that her title to the property was
already transferred to Manuel by virtue of a Deed of Absolute Sale she purportedly executed in favor
of Manuel on 5 September 1990. The document was notarized by respondent Atty. Mario G. Ramos
on 1 October 1990 and entered in his Notarial Register as Doc. No. 388, Page No. 718, Book No.
10, Series of 1990. Rosalinda however denied having signed any deed of sale over her property in
favor of Manuel.
On 3 September 1991 Rosalinda filed with the NBI a complaint for falsification of public document
against her brother Manuel. The NBI invited respondent Atty. Ramos for questioning. The complaint
alleged among others that on 12 September 1991 Atty. Mario G. Ramos executed an affidavit before
the NBI admitting that when Manuel presented the purported Deed of Absolute Sale to him for
notarization, he (Atty. Ramos) found some defects in the document and that complainant Rosalinda
was not around. The NBI Questioned Documents Division also compared Rosalinda's signature
appearing in the Deed of Absolute Sale with samples of her genuine signature, and found that the
signature in the purported Deed of Absolute Sale and her genuine signatures were not written by
one and the same person.
On 5 October 1992 the NBI transmitted its findings to the Office of the City Prosecutor of Manila with
the recommendation that Manuel and Atty. Ramos be prosecuted for Falsification of Public
Document under Art. 172 in relation to Art. 171 of The Revised Penal Code, and that Atty. Ramos be
additionally charged with violation of the Notarial Law.
The NBI also transmitted to the Integrated Bar of the Philippines (IBP) Commission on Bar Discipline
(CBD) photocopies of the NBI investigation report and its annexes, and a verified complaint 1 for
disbarment signed by Rosalinda. The CBD received the records on 5 October 1992. On the same
date, the CBD through Commissioner Victor C. Fernandez directed respondent to submit an answer
to the complaint within fifteen (15) days from notice.
Respondent admitted in his Answer 2 that he had affixed his signature on the purported Deed of
Absolute Sale but failed to enter the document in his Notarial Registry Book. He also admitted
executing before the NBI on 12 September 1991 an affidavit regarding the matter. Respondent
prayed for the dismissal of the complaint since according to him he only inadvertently signed the
purported Deed of Absolute Sale and/or that his signature was procured through mistake, fraud,
undue influence or excusable negligence, claiming that he simply relied on the assurances of
Manuel that the document would not be used for purposes other than a loan between brother and
sister, and that he affixed his signature thereon with utmost good faith and without intending to
obtain personal gain or to cause damage or injury to another.
The CBD set the case for hearing on 3 March 2000, 28 April 2000, 16 June 2000 and 5 October
2000. Complainant never appeared. The records show that the notices sent to her address at 1497
Fabie Street, Paco, Manila, were returned unclaimed.3
On 26 January 2002 the IBP Board of Governors approved the report and recommendation of the
CBD through Commissioner Fernandez that the case against respondent be dismissed in view of
complainant's failure to prosecute and for lack of evidence on record to substantiate the
complaint.4 The Investigating Commissioner found that the notices sent to complainant were
returned unclaimed with the annotation "moved out," and that she did not leave any forwarding
address, and neither did she come to the CBD to inquire about the status of her case. From these
actuations, he concluded that complainant had lost interest in the further prosecution of this
case,5 and so recommended its dismissal.
We cannot wholly agree with the findings and recommendation of the Investigating Commissioner. It
is clear from the pleadings before us that respondent violated the Notarial Law in failing to register in
his notarial book the deed of absolute sale he notarized, which fact respondent readily admitted.
The Notarial Law is explicit on the obligations and duties of a notary public. It requires him to keep a
notarial register where he shall record all his official acts as notary,6 and specifies what information

with regard to the notarized document should be entered therein. 7 Failure to perform this duty results
in the revocation of his commission as notary public.8
The importance attached to the act of notarization cannot be overemphasized. Notarization is not an
empty, meaningless, routinary act. It is invested with substantive public interest, such that only those
who are qualified or authorized may act as notaries public. 9 Notarization converts a private
document into a public document thus making that document admissible in evidence without further
proof of its authenticity.10 A notarial document is by law entitled to full faith and credit upon its face.
Courts, administrative agencies and the public at large must be able to rely upon the
acknowledgment executed by a notary public and appended to a private instrument. 11
For this reason notaries public must observe with utmost care the basic requirements in the
performance of their duties.12 Otherwise, the confidence of the public in the integrity of this form of
conveyance would be undermined.13 Hence a notary public should not notarize a document unless
the persons who signed the same are the very same persons who executed and personally
appeared before him to attest to the contents and truth of what are stated therein. 14 The purpose of
this requirement is to enable the notary public to verify the genuineness of the signature of the
acknowledging party and to ascertain that the document is the party's free act and deed. 15
The notary public is further enjoined to record in his notarial registry the necessary information
regarding the document or instrument notarized and retain a copy of the document presented to him
for acknowledgment and certification especially when it is a contract. 16 The notarial registry is a
record of the notary public's official acts. Acknowledged documents and instruments recorded in it
are considered public documents. If the document or instrument does not appear in the notarial
records and there is no copy of it therein, doubt is engendered that the document or instrument was
not really notarized, so that it is not a public document and cannot bolster any claim made based on
this document. Considering the evidentiary value given to notarized documents, the failure of the
notary public to record the document in his notarial registry is tantamount to falsely making it appear
that the document was notarized when in fact it was not.
We take note of respondent's admission in his Answer that he had affixed his signature in the
purported Deed of Absolute Sale but he did not enter it in his notarial registry. This is clearly in
violation of the Notarial Law for which he must be disciplined.
Respondent alleges that he merely signed the Deed of Absolute Sale inadvertently and that his
signature was procured through mistake, fraud, undue influence or excusable negligence as he
relied on the assurances of Manuel A. Bernardo, a kababayan from Pampanga, that the document
would not be used for any illegal purpose.
We cannot honor, much less give credit to this allegation. That respondent notarized the document
out of sympathy for his kababayan is not a legitimate excuse. It is appalling that respondent did
away with the basics of notarial procedure in order to accommodate the alleged need of a friend and
client. In doing so, he displayed a decided lack of respect for the solemnity of an oath in a notarial
document. He also exhibited his clear ignorance of the importance of the office of a notary public.
Not only did he violate the Notarial Law, he also did so without thinking of the possible damage that
might result from its non-observance.
The principal function of a notary public is to authenticate documents. When a notary public certifies
to the due execution and delivery of the document under his hand and seal he gives the document
the force of evidence. Indeed, one of the purposes of requiring documents to be acknowledged
before a notary public, in addition to the solemnity which should surround the execution and delivery
of documents, is to authorize such documents to be given without further proof of their execution and
delivery.17 Where the notary public is a lawyer, a graver responsibility is placed upon him by reason
of his solemn oath to obey the laws and to do no falsehood or consent to the doing of any. 18 Failing
in this, he must accept the consequences of his unwarranted actions.

From his admissions we find that Atty. Mario G. Ramos failed to exercise the due diligence required
of him in the performance of the duties of notary public. We do not agree however that his
negligence should merit disbarment, which is the most severe form of disciplinary sanction.
Disbarment should never be imposed unless it is evidently clear that the lawyer, by his serious
misconduct, should no longer remain a member of the bar. Removal from the bar should not really
be decreed when any punishment less severe - reprimand, temporary suspension or fine - would
accomplish the end desired.19 Under the circumstances, imposing sanctions decreed under the
Notarial Law and suspension from the practice of law would suffice.
WHEREFORE, for lack of diligence in the observance of the Notarial Law, the commission of
respondent Atty. Mario G. Ramos as Notary Public, if still existing, is REVOKED and thereafter Atty.
Ramos should beDISQUALIFIED from reappointment to the office of Notary Public.
Respondent Atty. Mario G. Ramos is also SUSPENDED from the practice of law for a period of six
(6) months effective immediately. He is DIRECTED to report to this Court his receipt of this Decision
to enable it to determine when his suspension shall have taken effect.
The Clerk of Court of this Court is DIRECTED to immediately circularize this Decision for the proper
guidance of all concerned.
Let copies of this Decision be furnished the Office of the Bar Confidant and the Integrated Bar of the
Philippines.
SO ORDERED.