Ang vs. Gupana

A notary public must personally ascertain that the person acknowledging the instrument is the same person who executed it and that the party appears personally before him; notarizing a document that bears the signature of a deceased person, without the deceased having personally appeared, violates the Notarial Law and constitutes misconduct warranting suspension from the practice of law and revocation of the notarial commission. Further, a lawyer-notary may not delegate to unqualified clerical staff the performance of tasks that the law reserves exclusively to a member of the Bar in good standing, such as verifying the identity of document signatories and making entries in the notarial register.

The controversy stemmed from the estate of Candelaria Magpayo. Complainant Carlito Ang claimed a share in Lot No. 2066-B-2-B under an Extra-judicial Declaration of Heirs and Partition executed by heirs on May 31, 1991. When Ang attempted to secure a certificate of title in his name, he discovered that the mother title had been cancelled and new titles had been issued to other persons. The cancellation was effected through a Deed of Absolute Sale allegedly executed by Candelaria Magpayo on April 17, 1989, and an Affidavit of Loss allegedly executed by the same Candelaria on April 29, 1994. Both documents were prepared and notarized by respondent Atty. James Joseph Gupana. The affidavit of loss was executed three years after Candelaria Magpayo’s death on March 26, 1991. Respondent later acted as attorney-in-fact for the new registered owners and sold Lot No. 2066-B-2-B-4 to a corporation while a civil case involving the property was pending.

• The Extra-judicial Declaration: On May 31, 1991, complainant Carlito Ang, together with Purificacion Diamante and William Magpayo, executed an Extra-judicial Declaration of Heirs and Partition over Lot No. 2066-B-2-B, covered by TCT No. (T-22409)-6433, with an area of 6,258 square meters. Ang was allotted a 2,003-square-meter portion designated as Lot No. 2066-B-2-B-4.

• Discovery of Cancellation and New Titles: When Ang attempted to secure a title in his name, he learned that TCT No. (T-22409)-6433 had already been cancelled. New transfer certificates of title had been issued in the names of William Magpayo, Antonio Diamante, Patricia Diamante, Lolita D. Canque, Gregorio Diamante, Jr., and Fe D. Montero.

• The Questioned Documents: The cancellation of title and issuance of new ones was founded on two instruments both prepared and notarized by respondent Atty. James Joseph Gupana: (a) a Deed of Absolute Sale dated April 17, 1989, purportedly executed by Candelaria Magpayo; and (b) an Affidavit of Loss dated April 29, 1994, also purportedly executed by Candelaria Magpayo. Candelaria Magpayo died on March 26, 1991 — three years before the date of the Affidavit of Loss. A certification from the Office of the Clerk of Court indicated that page 37, Book No. XII, Series of 1989 of respondent’s Notarial Report did not refer to the Deed of Absolute Sale under Doc. No. 181 but to an affidavit.

• The Sale as Attorney-in-Fact: On September 22, 1995, respondent was constituted as attorney-in-fact by the new registered owners (William Magpayo, Antonio Diamante, Patricia Diamante, Lolita Canque, Gregorio Diamante, Jr., and Fe D. Montero) through a Special Power of Attorney. On October 10, 1995, respondent, in that capacity, executed a Deed of Sale conveying Lot No. 2066-B-2-B-4 to Lim Kim So Mercantile Co.

• Pending Civil Case: At the time of the sale, Civil Case No. Man-2202, filed by Ang for annulment of the deed of sale and reconveyance of the same parcel, was pending before Branch 55 of the RTC of Mandaue City, Cebu. During pre-trial, Ang admitted he was not an heir of Candelaria Magpayo but claimed a share as the son of Candelaria’s common-law husband. Consequently, the notice of lis pendens on all four titles was ordered cancelled, although a compromise later restored the annotation on one title (TCT No. 34266).

• Respondent’s Notarial Practice: In his position paper, respondent admitted that it had been his consistent practice to course documents through clerical staff who would investigate whether the documents were complete, inquire as to the identity of signatories, ask the parties to sign, and then forward the documents to him. He would merely inquire about identities before affixing his notarial signature. The clerical staff likewise recorded the entries in his notarial report. Respondent also stated that he did not personally know Candelaria Magpayo before, during, or after the notarization of the questioned documents.

Atty. James Joseph Gupana, as petitioner before the Supreme Court, raised the following arguments:

• Legality of Acting as Attorney-in-Fact: Petitioner argued that being commissioned by his own clients to sell a portion of a parcel of land, part of which was involved in litigation, is not per se illegal or unethical. He claimed that the clients, residing in different provinces, needed his assistance to sell the land.

• Harshness of Penalty: Petitioner contended that even assuming his act was unethical, the penalty of one-year suspension, revocation of notarial commission, and two-year disqualification was unduly harsh and excessive, considering that the act complained of was not unlawful and was done without malice.

• Absence of Unethical Motive: Petitioner maintained that the sale was made after the notice of lis pendens had been lifted from the particular lot, and the complaint was merely a leverage tool employed by Ang because of adverse developments in the civil case.

The IBP Board of Governors, as the body whose resolution was under review, supported the imposition of administrative liability on the following grounds:

• Unethical Conduct as Instrument in Disposal of Litigated Property: The IBP found that petitioner committed an unethical act by allowing himself to be used as an instrument to dispose of property that was the subject of pending litigation, through a deed of sale he executed as attorney-in-fact while fully aware of the pending civil case.

• Violation of Notarial Duties and Delegation of Functions: The IBP determined that petitioner delegated notarial functions to his clerical staff, who verified documents and identities before the papers were brought to him for signature. This delegation, coupled with the forged signatures and the erroneous entry in his notarial register, constituted a breach of the Notarial Law and Rule 9.01 of the Code of Professional Responsibility.

• Sale as Attorney-in-Fact: Whether respondent’s act of selling a parcel of land as attorney-in-fact of his clients while a civil case involving the same property was pending constitutes unethical conduct warranting administrative sanction.

• Notarial Duties: Whether respondent violated his duties as a notary public and the Code of Professional Responsibility by (a) notarizing an Affidavit of Loss executed by a person who had already died three years earlier, and (b) delegating to unqualified clerical staff the verification of documents, the inquiry into the identities of signatories, and the recording of entries in his notarial register.

• Sale as Attorney-in-Fact: The act of selling the property as attorney-in-fact was not, under the circumstances, unethical. The Court found that there was no more notice of lis pendens annotated on the particular lot that was sold. Furthermore, no sufficient evidence was presented to prove that the Deed of Absolute Sale executed by Candelaria Magpayo on April 17, 1989, was antedated. Hence, liability could not be predicated on the sale alone.

• Notarial Duties: Respondent was held administratively liable for violating his notarial duties. The jurat of the Affidavit of Loss stated that Candelaria Magpayo subscribed to the affidavit before respondent on April 29, 1994, yet she had died on March 26, 1991. By notarizing a document that bore the signature of a deceased person who could not have personally appeared, respondent violated Section 1 of Public Act No. 2103 (the Notarial Law), which requires the notary public to certify that the person acknowledging the instrument is known to him and is the same person who executed it, and that the party personally appeared. Notarization is not an empty, meaningless, routinary act; it converts a private document into a public document entitled to full faith and credit upon its face. Respondent’s admission that he never knew Candelaria personally confirmed that she could not have appeared before him. Respondent likewise violated Rule 9.01, Canon 9 of the Code of Professional Responsibility, which prohibits a lawyer from delegating to any unqualified person the performance of any task which by law may only be performed by a member of the Bar in good standing. By relying on clerical staff to determine the completeness of documents, to verify the identities of signatories, and to record notarial entries, respondent trivialized the notarial function and failed to observe the utmost care demanded by public policy. The gravity of the misconduct warranted a one-year suspension from the practice of law, revocation of his notarial commission, and a two-year disqualification from reappointment as notary public.

• Notarization is invested with substantive public interest — Notarization is not an empty, meaningless, or routinary act. It converts a private document into a public document, making it admissible in evidence without further proof of authenticity, and entitles it to full faith and credit upon its face. A notary public must therefore observe with utmost care the basic requirements of the law, particularly the personal appearance of the person executing the document, in order to verify the genuineness of the signature and ascertain that the document is the party’s free act and deed. The public must be able to rely on the acknowledgment executed by the notary public.

• A lawyer-notary bears a graver responsibility — Where the notary public is a lawyer, a graver responsibility is placed upon his shoulders by reason of his solemn oath to obey the laws and to do no falsehood or consent to the doing of any. The Code of Professional Responsibility commands him not to engage in unlawful, dishonest, immoral, or deceitful conduct and to uphold at all times the integrity and dignity of the legal profession.

• Non-delegability of notarial functions — A lawyer shall not delegate to any unqualified person the performance of any task which by law may only be performed by a member of the Bar in good standing. Tasks such as verifying the identity of document signatories and recording entries in the notarial register are reserved to the notary public personally. Delegation of these functions to clerical staff constitutes misconduct.

• 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. Notarization converts a private document into a public document thus making that document admissible in evidence without further proof of its authenticity. 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. For this reason notaries 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. (quoting Bernardo v. Atty. Ramos, 433 Phil. 8, 15-16 (2002))

• Where the notary public is a lawyer, a graver responsibility is placed upon his shoulder by reason of his solemn oath to obey the laws and to do no falsehood or consent to the doing of any. The Code of Professional Responsibility also commands him not to engage in unlawful, dishonest, immoral or deceitful conduct and to uphold at all times the integrity and dignity of the legal profession. (quoting Flores v. Chua, 366 Phil. 132, 153 (1999))

• Bernardo v. Atty. Ramos, 433 Phil. 8 (2002) — Followed. The Court relied on this case for the definitive statement on the significance of notarization and the duty of a notary public to ensure the personal appearance of the executing party.

• Coronado v. Atty. Felongco, 398 Phil. 496 (2000) — Followed. Cited for the requirement under Section 1 of Public Act No. 2103 that the party acknowledging the document must appear before the notary public.

• Flores v. Chua, 366 Phil. 132 (1999) — Followed. Applied to emphasize the heightened responsibility of a lawyer-notary.

• Lanuzo v. Atty. Bongon, 587 Phil. 658 (2008) — Cited as an instance where similar penalties were imposed for analogous infractions.

• Section 1, Public Act No. 2103 (Notarial Law) — Mandates that the acknowledgment of an instrument be made before a notary public who must certify that the person acknowledging is known to him and is the same person who executed it, and that the party personally appeared. Applied to hold that notarizing an affidavit of a deceased person who could not have personally appeared violates this provision.

• Rule 9.01, Canon 9, Code of Professional Responsibility — Prohibits a lawyer from delegating to any unqualified person the performance of any task which by law may only be performed by a member of the Bar in good standing. Applied to the respondent’s practice of allowing clerical staff to verify identities and record entries, tasks that require the personal discharge of the notary public.

Chief Justice Maria Lourdes P. A. Sereno, Associate Justice Teresita J. Leonardo-De Castro, Associate Justice Lucas P. Bersamin, and Associate Justice Bienvenido L. Reyes concurred.