[ OCA CIRCULAR NO. 106-2003, August 13, 2003 ]

[ OCA CIRCULAR NO. 106-2003, August 13, 2003 ]

[ OCA CIRCULAR NO. 106-2003, August 13, 2003 ]

TO:

THE COURT OF APPEALS, SANDIGANBAYAN, COURT OF TAX APPEALS, REGIONAL TRIAL COURTS, SHARI'A DISTRICT COURTS, METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURT IN CITIES, MUNICIPAL TRIAL COURT, MUNICIPAL CIRCUIT TRIAL COURTS, SHARI'A CIRCUIT COURTS, THE OFFICE OF THE STATE PROSECUTOR, PUBLIC DEFENDER'S OFFICE AND THE INTEGRATED BAR OF THE PHILIPPINES

SUBJECTS:

SUSPENSION OF ATTY. ALFREDO DATJNGALING NOTARY PUBLIC FOR A PERIOD OF ONE (1) YEAR.

For the information and guidance of all concerned, quoted hereunder is me decision of the Second Division of the Supreme Court in Administrative Case No. 4801, entitled "MENA U. GERONA vs. ATTY. ALFREDO DATINGALING" dated February 27, 2003, to wit:

This is a complaint for disbarment filed by Mena U.Gerona against Alfredo Datingaling for allegedly falsifying a document and notarizing it afterwards.

The complaint, which is in the form of an affidavit concerns a document entitled "Consent to Quarry" purporting to be an agreement complainant Mena U. Gerona and her party, composed of Lucila Umali Magboo, Feliciano U. Umali, Marife Umali, Jovita Galicia, P.J. Galicia, Wendy Sunshine Umali and Aurelia Umasli Miranda, allegedly agreed to allow Ronald Reagan Hernandez, represented by Engr. Bayani N. Melo, of legal age, Filipino, of Alangilan, Batangas City, his heirs, successors, and assigns, to enter or occupy a portion of their property in Anilao East, Mabini, Batangas and engage in a 'QUARRY' business and related activities:

Complainant stated:

That I am filing a case for disbarment against ATTY. ALFREDO DATINGALING of Batangas City whose house is at the back of the Provincial Jail;

That I am constrained to file such disbarment case for the reason that the said ATTY. ALFREDO DATINGALING in notarizing the attached document, Annexes and A-l, made it appear that I together with my brother and sisters appeared before him on July 2,1997 when in truth and in fact we did not and in the said document Arty. Alfredo Datingaling said, and I quote:

BEFORE ME, A NOTARY PUBLIC FOR AND IN THE CITY OF BATANGAS PERSONALLY APPEARED THE FOLLOWING PERSONS, NAMELY:

RONALD REAGAN HERNANDEZ, represented by:

ENGR. BAYANIMELO

LUCILLE U. MAGBOO

MENA U. ENRIQUEZ GERONA

FELICIANO UMALI

JO VITA U. GALICIA

WENDY SUNSHINE UMALI

AURELIA UMALI MIRANDA

KNOWN TO ME AND TO ME KNOWN TO (BE) THE SAME PERSONS WHO EXECUTE(D) THE FOREGOING INSTRUMENT AND THEY ACKNOWLEDGED TO (HAVE) MADE THE SAME AS THEIR FREE AND VOLUNTARY ACT AND DEED.

THE FOREGOING INSTRUMENT RELATES TO A CONSENT TO QUARRY AGREEMENT, CONSISTING) OF TWO (2) PAGES, INCLUDING THE PAGE IN WHICH THE ACKNOWLEDGEMENT (IS) WRITTEN AND HAS BEEN SIGNED BY THE PARTIES TOGETHER WITH THEIR INSTRUMENTAL WITNESSES ON EACH AND EVERY PAGE THEREOF.

WITNESS MY HAND AND SEAL THIS 2 nd DAY OF JULY 1997 AT BATANGAS CITY, PHILIPPINES.

That aside from the fact that not one of us appeared before Notary Public Alfredo Datingaling at Batangas City on July 2,1997 and we have individual daily time records as we are working in Metro Manila, we have signed each and every document of Annexes A and A-l before him as stated by him in his acknowledgement and clearly page 1 which is Annex A has not been signed by any of us and the name WENDY SUNSHINE UMALI refers to two persons which are my nieces, Wendy is nine (9) years old and Sunshine is twelve (12) years old and both of them have no legal personality to appear before a Notary Public to sign any legal document and moreover RONALD REAGAN HERNANDEZ who appears to have a Residence Certificate No. 8988196 is a son of Elvira Atienza and is only nine (9) years of age and the first page, Annex A has been written on a different typewriter and inserted to the document as the front page and allegedly signed on July 3, 1997 at Batangas City ahead of the notarization of the document which was on July 2, 1997. In short, Atty. Alfredo Datingaling falsified the whole document and he aggravated such act of falsification when he notarized the same; that moreover, it refers to a parcel of land which has never been agreed by the parties;

That for such acts of falsification, I have filed with the City Fiscal's Office of Batangas City a falsification case against Atty. Alfredo Datingaling and his clients, Elvira Atienza, Bayani Melo and Apeionia Bonado. [2]

Complainant charged that despite knowledge of the falsity of the document, respondent, as notary public for Batangas City notarized it on July 3,1997,

This court required respondent Atty. Alfredo Datingaling to comment on the administrative complaint filed against him. In his counter-affidavit dated March 2, 1998, respondent claimed that the complaint is "baseless, out of focus, an afterthought, childish and in the nature of self-indictment" [3] Respondent denied the allegations against him and claimed that complainant had signed the documents on July 2,1997 in Quezon City and had it notarized by respondent the next day (July 3,1997) in Batangas City, x x x

The case was referred to the Integrated Bar of the Philippines (IBP). Thereafter, the IBP Investigating Commissioner, Atty. Renato G. Cunanan, to whom this case was assigned, recommended the suspension of respondent Alfredo Datingaling from the practice of the profession for a period of one year. In his report, Atty. Cunanan stated:

' We are therefore of the impression that, to say the least, the respondent has not shown qualities that endear him to the profession or the Bar. While complainant's present criminal case against the respondent may be pending, and he still enjoys the presumption of innocence so far as Criminal Case No. 9426 (LS.No. 97-3353) is concerned, the fact remains that for purposes of this administrative complaint, the evidence presented by the complainant considered vis-a-vis the unconvincing explanation of the respondent, his silence and failure to file a rejoinder, and the criminal cases filed against him, it is clear that Atty. Alfredo R. Datingaling has violated the Code of Professional Responsibility, more particularly Canons 1 and 7.'

We therefore recommend the suspension of Atty. Alfredo R. Datingaling from the practice of the profession for a period of one (1) year. [7] '

Respondent filed a motion for reconsideration declaring himself innocent and insisting he had no participation in the transactioa In addition, he denied receipt of the resolution requiring him to file a rejoinder. However, his motion was denied by the IBP Board of Governors on the ground that it no longer had jurisdiction over the case as it had already been endorsed to this Court The IBP Board cited Rule 139-B, § 12(b) of the Rules of Court as the basis of this resolution.

Rule 139-B, § 12(b) provides:

Section 12—

Review and decision by the Board

of Governor

(b) if the Board, by the vote of a majority of its total membership, determines that the respondent would be suspended from the practice of law or disbarred, it shall issue a resolution setting forth its findings and recommendations which, together with the whole record of the case, shall forthwith be transmitted to the Supreme Court for final action.

As the provision reads, no mention is made of motions for reconsideration. However, it was held in Haltmao vs. Villanueva [9] that although Rule 139-B, § 12(c) does not mention motions for reconsideration, there is nothing in its text or history which prohibits the filing of such motion. A motion for reconsideration of a resolution of the IBP Board of Governors may be filed within 15 days from notice to a party appealing. Indeed, the filing of such motion before the Board is in fact encouraged before resort is made to this Court as a matter of exhaustion of administrative remedies, to afford the agency rendering the judgment an opportunity to correct any error it may have committed through a misapprehension of facts or misappreciation of the evidence. [10]

Be that as it may and considering that the motion for reconsideration was filed after the records of this case had been forwarded to this Court, we have decided to treat the motion as a petition for review within the contemplation of Rule 139-B, § 12 (b).

After due consideration of respondent's motion for reconsideration, we find the motion to be without merit

First . As regards the charge of falsification of a public document filed against respondent, the records show that as of the date of filing of respondent's Urgent Motion for Reconsideration on September 16, 2002, the same is still pending trial before Branch 8, Regional Trial Court of Batangas City. [11] Respondent claims that although he notarized the document, he had no participation whatsoever in the transaction. He merely notarized the document on the representation of the persons who appeared before him. [12]

The power to disbar must be exercised with great caution, and only in a clear case of misconduct that seriously affects the standing and character of a respondent as an officer of the court and as a member of the bar. [13] Disbarment should never be decreed where any lesser penalty, such aa temporary suspension, could accomplish the end desired. [14] To be sure, conviction in a criminal case is not necessary for finding a member of the bar guilty in an administrative proceeding. As we have held in Calub v. Suiter [15] the dismissal of a criminal case is not determinative of the liability of the accused for disbarment. In the case at bar, however, the criminal prosecution based on the same acts charged in this case is still pending in the court To avoid contradictory findings, therefore, any administrative disciplinary proceedings for the same act must await the outcome of the criminal case for falsification of a public document.

Second . The findings of IBP Investigating Commissioner, My. Renato Omanan, as to the violation of Act No. 2103 are fully supported by the evidence. Act No. 2103, § l(a) provides:

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 persons 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. [16]

Respondent had a duty to require the persons claiming to have executed the document to appear personally before him and to attest to the contents and truth of what are stated in the document If the parties were represented by other persons, their representatives' names should appear in the said documents as the ones who had executed the same and the latter should be required to affirm their acts. [17] Respondent failed to do this.

Respondent also failed to controvert complainant's evidence that Wendy Sunshine Umali are actually two different persons Wendy and Sunshine, both surnamed Umali; that they were minors at the time of the execution of the aforesaid document; and that their signatures therein had been made by an unidentified persons. It is clear even from the face of the "Consent to Quarry" that Wendy and Sunshine Umali are two different minors, who were represented by a person who signed the document in their behalf, thus lending credence to complainant's claim that the document is fictitious. In fact, the residence certificate number of Wendy Sunshine Umali is not stated in the notarized document In addition, page one of the agreement appears to have been intercalated and to have been typed with a different machine.

The acknowledgment of a document is not an empty act By it a private document is converted into a public document, making it admissible in court without further proof of its authenticity. [18]

The importance of the function of a notary public cannot therefore . be overemphasized No less than the public faith in the integrity of public documents is at stake in every aspect of that function.

However, the suspension of respondent from his commission as a notary public for two years, as recommended by the IBP Board of Governors, is too severe a penalty for what he has committed In Villarin v. Sabate, Jr., [19] this Court suspended respondent's commission as a notary public for one year for notarizing the verification of a motion to dismiss when the fact was that three of the affiants had not appeared i before him and for notarizing the same instrument of which he had been oneC6f the signatories. In accordance with that case, the suspension of respondent from his commission as notary public for one year would be proper.

WHEREFORE, respondent Atty. Alfredo Datingaling is found guilty of violation of Act No. 2103, § l(a) and is hereby SUSPENDED from his commission as notary public for a period of one (1) year, with WARNING that a repetition of the same or similar negligent act charged in this complaint will be dealt with more severely. The charge of falsifying a public document is DISMISSED without prejudice to the filing of an administrative case for the same act should the eyidence warrant such action.

SO ORDERED."

August 13, 2003.

PRESBITERO J. VELASCO, JR.

Court Administrator

[2] Rollo, p. 1.

[3] Counter Affidavit, p. 1; Rollo, p. 6.

[7] Report of the IBP Commissioner, dated November 27, 2001, p. 4.

[9] 253 SCRA 1 (1996)

[10] See id, at p. 6 (citations omitted).

[11] Annes A of Complaint's Urgent Manifestation, Rollo, p. 31; Respondent's Urgent Motion for Reconsideration, p.2.

[12] Respondent's Urgent Motion for Reconsideration, p.2.

[13] Paras v. Paras, 343 SCRA 414 (2000); Tapucar, 293 SCRA 331 (1998).

[14] Id; Resurrection v. Sayson, 300 SCRA 129 (1998).

[15] 323 SCRA (556(2000)

[16] An Act Providing for the Acknowledgment and Authentication of Instruments and Documents Within the Philippine Islands," enacted on January 26,1912.

[17] See Villarinv. Sabate, Jr., 325 SCRA123 (2000).

[18] Protado v. Mendoza, Adm. Case No. 5764, Jaa 13,2002.

[19] 325 SCRA123 (2000).