Respondent violated his oath as a lawyer and the Code of Professional Responsibility[11] when he made it appear that complainant personally appeared before him and subscribed an SPA authorizing her brother to mortgage her property.
It cannot be overemphasized that a notary public should not notarize a document unless the person who signs it is the same person who executed it, personally appearing before him to attest to the contents and the truth of what are stated therein. This 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.[12]
Section 1, Public Act No. 2103, otherwise known as the Notarial Law states:
The acknowledgement shall be before a notary public or an officer duly authorized by law of the country to take acknowledgements of instruments or documents in the place where the act is done. The notary public or the officer taking the acknowledgement shall certify that the person acknowledging the instrument or document is known to him and that he is the same person who executed it, acknowledged that the same is his free act and deed. The certificate shall be made under the official seal, if he is required by law to keep a seal, and if not, his certificate shall so state.
Such requirement of affiant’s personal appearance was further emphasized in Section 2 (b) of Rule IV of the Rules on Notarial Practice of 2004 which provides that:
A person shall not perform a notarial act if the person involved as signatory to the instrument or document –
(1) is not in the notary’s presence personally at the time of the notarization; and
(2) is not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity as defined by these Rules.
Respondent insists that complainant appeared before him and subscribed to the SPA subject of the instant case. His contention, however, cannot prevail over the documentary evidence presented by complainant that she was not in the Philippines on 14 September 2000, the day the SPA was allegedly notarized. Respondent may have indeed met complainant in person during the period the latter was allegedly introduced to him by Spouses Gusi but that did not change the fact established by evidence that complainant was not in the personal presence of respondent at the time of notarization. It is well settled that entries in official records made in the performance of a duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated.[13] This principle aptly covers the Certification from the BID that complainant left the Philippines on 4 August 2000 and arrived back only on 1 July 2001.
Respondent’s contention was further negated when he claimed that complainant presented to him the original TCT of the property subject of the SPA. A perusal of the TCT would reveal that ownership of the property was transferred to complainant only on 10 January 2001. Thus, it could not have been presented to respondent by complainant on 14 September 2000.
The allegation of respondent that there were other documents subscribed by complainant during the interim of 4 August 2000 and 1 July 2001 or the time that she was supposed to be in Germany deserves scant consideration. Such allegation was refuted during the hearing before the Investigating Commissioner when counsel for complainant informed Commissioner Funa that those documents are subjects of criminal and civil cases pending before the Regional Trial Courts of Pasig, Antipolo and Quezon City,[14] where the documents are being contested for being spurious in character.
Anent respondent’s claim of prescription of the offense pursuant to Section 1, Rule VIII of the Rules of Procedure[15] of the Commission on Bar Discipline, we agree with the Investigating Commissioner that the rule should be construed to mean two years from the date of discovery of the professional misconduct. To rule otherwise would cause injustice to parties who may have discovered the wrong committed to them only at a much later date. In this case, the complaint was filed more than three years after the commission of the act because it was only after the property was foreclosed that complainant discovered the SPA.
The duties of a notary public is dictated by public policy and impressed with public interest.[16] It is not a meaningless ministerial act of acknowledging documents executed by parties who are willing to pay the fees for notarization. It is of no moment that the subject SPA was not utilized by the grantee for the purpose it was intended because the property was allegedly transferred from complainant to her brother by virtue of a deed of sale consummated between them. What is being penalized is respondent’s act of notarizing a document despite the absence of one of the parties. By notarizing the questioned document, he engaged in unlawful, dishonest, immoral or deceitful conduct.[17] 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 in notarized documents will be undermined.[18]
In a catena of cases,[19] we ruled that a lawyer commissioned as notary public having thus failed to discharge his duties as a notary public, the revocation of his notarial commission, disqualification from being commissioned as a notary public for a period of two years and suspension from the practice of law for one year, are in order.
WHEREFORE, the notarial commission of respondent Atty. Leonardo M. Real is hereby REVOKED. He is DISQUALIFIED from reappointment as notary public for a period of two (2) years andSUSPENDED from the practice of law for a period of one (1) year, effective immediately. He is WARNED that a repetition of the same or similar offense in the future shall be dealt with more severely. He is directed to report the date of receipt of this Decision in order to determine the date of effectivity of his suspension.
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