Cruz v. Etulle

THIRD DIVISION

[A.C. No. 12007. January 14, 2019.]

CARLO G. CRUZ, complainant, vs.ATTY. BENJAMIN T. ETULLE, respondent.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Third Division, issued a Resolution dated January 14, 2019, which reads as follows:

"A.C. No. 12007: (CARLO G. CRUZ, complainant, v. ATTY. BENJAMIN T. ETULLE, respondent). — A lawyer commissioned as a notary public has to observe and comply with the requirements of the 2004 Rules on Notarial Practice. His or her failure to do so is not only a transgression of notarial rules, but also a violation of Canon 1 of the Code of Professional Responsibility. 1

Carlo G. Cruz (Carlo) filed an Affidavit-Complaint 2 against Atty. Benjamin T. Etulle (Atty. Etulle) for falsifying public documents and using falsified documents.

Carlo alleged that on April 7, 1992, his father, Agripino Cruz (Agripino), bought lots covered by Transfer Certificate of Title Nos. T-53424 and T-53425 from Marlene L. Yap (Marlene) and Anita L. Yap (Anita). In the Deed of Absolute Sale (first Deed of Absolute Sale), the lots were transferred directly to Agripino's heirs, Carlo, Bernabe G. Cruz (Bernabe), Dennis G. Cruz, and Evelyn G. Cruz (Evelyn). 3 Agripino died on May 18, 2012. 4 The first Deed of Absolute Sale had neither been registered nor have the lots been divided and titled under the names of Agripino's heirs.

On January 15, 2014, Atty. Etulle "initiated and assisted" 5 the filing of a Petition for the Reissuance of Lost Owner's Duplicate Copy of Transfer Certificate of Title No. T-53425 before the Regional Trial Court of Panabo City, Davao Del Norte (the reconstitution case). 6 Attached to the Petition was a Special Power of Attorney, allegedly executed by Anita, appointing Bernabe as her attorney-in-fact. Anita allowed Bernabe to pursue the reissuance of the lost owner's duplicate of Transfer Certificate of Title No. T-53425. She also authorized him to "sell, mortgage, and [hypothecate] said land[.]" 7

Carlo filed an Opposition 8 as soon as he found out about the Petition. He argued that the matter was already covered in SP Pro. Case No. 1799 for the probate of Agripino's will, which was pending before the Regional Trial Court of Tagum City. 9

The reconstitution case was then dismissed. 10

Doubtful, Carlo verified the authenticity of the Special Power of Attorney with the National Archives of the Philippines. He alone concluded that Anita's signature in the Special Power of Attorney was falsified. 11

On June 5, 2014, Carlo was invited for a meeting before the Department of Agrarian Reform Municipal Office regarding the lost owner's duplicate of Transfer Certificate of Title No. T-53425. 12 In the meeting, Carlo was shown a Deed of Absolute Sale (second Deed of Absolute Sale) stating that the land was conveyed only to his mother, Isolde Cruz (Isolde), and Evelyn. 13 EATCcI

Carlo doubted the authenticity of the second Deed of Absolute Sale. This prompted him to check with the National Archives of the Philippines the details of the second Deed of Absolute Sale, which was supposedly notarized by Atty. Etulle on March 5, 2009. Carlo discovered that the document docketed as Doc. No. 452, Page No. 103, Book X, Series of 2009 was not the second Deed of Absolute Sale, but a Special Power of Attorney 14 executed by Fernando Villejo (Villejo) and Eugenio Serado, Jr. (Serado). 15

Carlo also checked the March 5, 2009 Certification issued by the Municipal Agrarian Reform Officer of the Department of Agrarian Reform, which was also supposedly notarized by Atty. Etulle. 16 This Certification was attached to the second Deed of Absolute Sale. He discovered that the document, docketed as Doc. No. 451, Page No. 103, Book No. X, Series of 2009 was not the Certification but a Memorandum of Agreement 17 executed by Villejo and Serado.

Carlo also obtained a Certification from the City Treasurer and copies of the Community Tax Certificate Nos. 04363065 and 04363066 that were used in the second Deed of Absolute Sale. He discovered that these were not issued to Isolde and Evelyn, but to Ruel R. Dagan, Sr. and Roque C. Morelos. 18

Carlo prayed that appropriate administrative penalties be meted out to Atty. Etulle for the falsification of these documents. 19

Carlo also filed criminal complaints against Atty. Etulle before the Office of the City Prosecutor of Panabo City, Davao Del Norte. 20 On September 16, 2014, Atty. Etulle filed his Counter-Affidavit 21 to the criminal complaints as his Answer 22 in this case.

Atty. Etulle argued that the docket entries on the two (2) documents were made by his employee, Renato A. Palmaira (Palmaira). Atty. Etulle admitted to the authenticity of his signature on both documents, but pointed out that he neither initialed nor countersigned the superimposed date of March 5, 2009. 23

Further, he stated that the Community Tax Certificates were already filled out when the second Deed of Absolute Sale was brought by the parties for notarization. 24

According to Atty. Etulle, Agripino had disinherited Carlo in his will. Since the first Deed of Absolute Sale included Carlo and exceeded the five (5)-hectare retention limit imposed by the Comprehensive Agrarian Reform Law, Bernabe, Isolde, Evelyn, and a certain Rosemarie Tan (Tan), approached him to rectify the situation. 25

The second Deed of Absolute Sale was thus executed to exclude Carlo, who was disinherited, and to distribute land within retention limit to Agripino's heirs. The Municipal Agrarian Reform Officer Certification was made to reflect compliance under the Comprehensive Agrarian Reform Law. 26

Atty. Etulle further argued:

In actual practice, the writing or stamping of the date, docketing in the Notarial Book, [and] impressing the dry seal are all done by the office employee[;] while it is true and admitted, all these must be done upon supervision of the notary public[;] such act [could] not be done every minute. 27

Atty. Etulle confessed to not supervising his employee, but argued that it did not amount to falsification. 28 He further argued that he checked the signatures of Isolde, Bernabe, Evelyn, and Tan, and looked at each of their government-issued identification cards. He added that he personally knew Municipal Agrarian Reform Officer Roseben Vallar. 29 DHITCc

Atty. Etulle stated that he was in a hurry to catch another appointment in Davao City. Thus, he signed the documents and instructed Palmaira to write the details of Bernabe's, Isolde's, Evelyn's, and Tan's identification cards on the documents, and enter the documents' docket details in his notarial register. 30

Atty. Etulle averred that Carlo had no interest that was prejudiced by the second Deed of Absolute Sale since it was sold to his mother, not to him. Moreover, since Agripino disinherited him before death, Carlo had no right to the land. 31

Finally, Atty. Etulle pointed out that he was not the petitioner in the reconstitution case. He did not know if the Special Power of Attorney was falsified. Atty. Etulle prayed that the Complaint against him be dismissed for lack of factual and legal basis. 32

Palmaira's Affidavit 33 was attached to Atty. Etulle's Answer. He stated that in the last week of January 2014, Bernabe, Isolde, Evelyn, and Tan came to the office to have the second Deed of Absolute Sale and the Municipal Agrarian Reform Officer Certification notarized. After verifying their signatures and checking their identification cards, Atty. Etulle told Palmaira to change the date in the Community Tax Certificates to 2009, but to docket the documents in 2014. Atty. Etulle then signed the documents and left. 34

Left alone in the office, Bernabe asked Palmaira to antedate the documents to conform them to the Department of Agrarian Reform deadline in allowing the direct land transfer of the Comprehensive Agrarian Reform Program transaction. Palmaira agreed in exchange for P4,000.00. 35

On March 26, 2015, a mandatory conference was held, but only Atty. Etulle was present. 36

In its June 20, 2015 Resolution No. XXI-2015-568, 37 the Integrated Bar of the Philippines Board of Governors approved with modification the Report and Recommendation of the Commission on Bar Discipline. It adopted the latter's revocation of Atty. Etulle's commission as notary public and disqualification from commission for two (2) years. It further increased his suspension from three (3) months 38 to six (6) months.

Atty. Etulle moved for reconsideration, but his motion was denied in the Integrated Bar of the Philippines May 27, 2017 Resolution. 39

This case presents the lone issue of whether or not Atty. Benjamin T. Etulle violated the Code of Professional Responsibility and the 2004 Rules on Notarial Practice.

Based on rules and prevailing jurisprudence, it is clear to this Court that he did.

The 2004 Rules on Notarial Practice provides:

RULE VI

Notarial Register

SECTION 1. Form of Notarial Register. — (a) A notary public shall keep, maintain, protect and provide for lawful inspection as provided in these Rules, a chronological official notarial register of notarial acts consisting of a permanently bound book with numbered pages.

xxx xxx xxx

SECTION 2. Entries in the Notarial Register. —

xxx xxx xxx

(e) The notary public shall give to each instrument or document executed, sworn to, or acknowledged before him a number corresponding to the one in his register, and shall also state on the instrument or document the page/s of his register on which the same is recorded. No blank line shall be left between entries. 40 (Emphasis supplied) cEaSHC

Atty. Etulle violated the 2004 Rules on Notarial Practice when he failed to correctly record the second Deed of Absolute Sale and the Municipal Agrarian Reform Officer Certification in his notarial register. The records show that the document docketed as Doc. No. 452, Page No. 103, Book X, Series of 2009 was not the second Deed of Absolute Sale, but a Special Power of Attorney executed by Villejo and Serado. 41 Similarly, the entry in Doc. No. 451, Page No. 103, Book No. X, Series of 2009 was not the Municipal Agrarian Reform Officer Certification, but a Memorandum of Agreement executed by Villejo and Serado. 42

In Soriano v. Atty. Basco, 43 these are punishable acts:

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. . . . This is a clear violation of the Notarial Law for which he must be disciplined.44 (Emphasis supplied)

Atty. Etulle cannot excuse himself from this transgression by passing the blame to his employee. He himself admitted that he had shortcomings in supervising his employee. He should have made the entries in the notarial register, not Palmaira. 45 Ensuring the accuracy of entries in the notarial register is a duty that is personal to the notary public. 46 This act "cannot be further delegated. It is the notary public alone who is personally responsible for the correctness of the entries in his or her notarial register." 47

Moreover, it behooved Atty. Etulle to update himself with the current requirements of notarial practice. Residence or community tax certificates are no longer competent evidence of identity since August 1, 2004, when the 2004 Rules on Notarial Practice came into effect. 48 In 2008, this Court amended the rules to further define what constitutes competent evidence of identity:

Sec. 12. Competent Evidence of Identity. — The phrase "competent evidence of identity" refers to the identification of an individual based on:

(a) at least one current identification document issued by an official agency bearing the photograph and signature of the individual, such as but not limited to, passport, driver's license, Professional Regulations Commission ID, National Bureau of Investigation clearance, police clearance, postal ID, voter's ID, Barangay certification, Government Service and Insurance System (GSIS) e-card, Social Security System (SSS) card, PhilHealth card, senior citizen card, Overseas Workers Welfare Administration (OWWA) ID, OFW ID, seaman's book, alien certificate of registration/immigrant certificate of registration, government office ID, certification from the National Council for the Welfare of Disabled Persons (NCWDP), Department of Social Welfare and Development (DSWD) certification[.] 49

Atty. Etulle again violated the rules when he notarized documents that listed only the Community Tax Certificates as competent evidence of identity, instead of government-issued identification cards bearing the party's photographs and signatures. Palmaira's statement that Atty. Etulle ordered changing the date in the Community Tax Certificates to 2009 further cemented his ignorance of the rules. 50

Notarization must not be done simply by rote since it protects the public interest of ensuring the authenticity of documents. 51Bote v. Judge Eduardo52 is instructive: CTIEac

Notarization is not an empty, meaningless, routinary act. It is invested with such substantial public interest that only those who are qualified or authorized may act as notaries public. Notarization converts a private document into a public document, making that document admissible in evidence without further proof of its authenticity. For this reason, notaries 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. 53 (Citations omitted)

As a notary public, Atty. Etulle had the duty to ensure that the documents presented to him for notarization were authentic. However, he created doubt on their authenticity when he made a false entry into his docket. This act gravely affects the public, who rely on the documents. It is a glaring violation of the 2004 Rules on Notarial Practice and the Code of Professional Responsibility. 54

In Pitogo v. Atty. Suello, 55 the lawyer failed to enter the details of three (3) documents in his notarial register. This Court declared him guilty of violating the 2004 Rules on Notarial Practice and both Canon 1 56 and Rule 1.01 57 of the Code of Professional Responsibility. He was suspended from the practice of law for three (3) months, his notarial commission was immediately revoked, and he was disqualified from being commissioned as a notary public for one (1) year.

Atty. Etulle's acts must be met with the appropriate penalty. His transgression was compounded when he notarized documents by virtue only of community tax certificates. Atty. Etulle's failure to update himself of the requirements of the rules merits a heavier penalty from this Court. DcHSEa

WHEREFORE, Atty. Benjamin T. Etulle is ordered SUSPENDED from the practice of law for six (6) months. His notarial commission is ordered IMMEDIATELY REVOKED, if presently commissioned. Further, he is DISQUALIFIED from being commissioned as a notary public for two (2) years.

SO ORDERED."

Very truly yours,

(SGD.) WILFREDO V. LAPITANDivision Clerk of Court

 

Footnotes

1.Ferguson v. Atty. Ramos, A.C. No. 9209, April 18, 2017, <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2017/april2017/9209.pdf> [Per Curiam, En Banc].

2.Rollo, pp. 3-7.

3.Id. at 8-10.

4.Id. at 11.

5.Id. at 3.

6.Id. at 12-14.

7.Id. at 15.

8.Id. at 27-31.

9.Id. at 28.

10.Id. at 38.

11.Id. at 4.

12.Id. at 44.

13.Id. at 62.

14.Id. at 45.

15.Id. at 5.

16.Id. at 6, 46, and 57. The Affidavit-Complaint stated that the Certification was dated 2005; however, the notarial register and Atty. Etulle's Counter-Affidavit show the year 2009.

17.Id. at 46.

18.Id. at 47-49.

19.Id. at 6.

20.Id. at 83.

21.Id. at 57-61.

22.Id. at 55-56.

23.Id. at 58.

24. Id.

25. Id. at 59-60 and 62.

26. Id.

27. Id. at 58.

28. Id.

29. Id. at 60.

30. Id.

31. Id. at 59.

32. Id. at 59-60.

33. Id. at 62-64.

34. Id. at 62-63.

35. Id. at 63.

36. Id. at 94.

37. Id. at 149-150.

38. Id. at 153.

39. Id. at 147-148.

40. NOTARIAL PRAC. RULE, Rule VI, secs. 1 and 2.

41. Rollo, p. 45.

42. Id. at 46.

43. 507 Phil. 410 (2005) [Per J. Garcia, Third Division].

44. Id. at 415.

45. Rollo, p. 58.

46. Agadan, et al. v. Atty. Kilaan, 720 Phil. 625, 632 (2013) [Per J. Del Castillo, Second Division].

47. Pitogo v. Atty. Suello, 756 Phil. 124, 133-134 (2015) [Per J. Leonen, Second Division] citing Agadan, et al. v. Atty. Kilaan, 720 Phil. 625 (2013) [Per J. Del Castillo, Second Division].

48. NOTARIAL PRAC. RULE, Rule XIII, sec. 2.

49. Adm. Matter No. 02-8-13-SC (2008).

50. Rollo, p. 62.

51. Angeles, et al. v. Atty. Ibañez, 596 Phil. 99, 109-110 (2009) [Per J. Carpio, First Division].

52. 491 Phil. 198 (2005) [Per J. Quisumbing, First Division].

53. Id. at 203.

54. Pitogo v. Atty. Suello, 756 Phil. 124 (2015) [Per J. Leonen, Second Division].

55. Id.

56. CODE OF PROFESSIONAL RESPONSIBILITY, Canon 1 provides:

   CANON 1 — A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and for legal processes.

57. CODE OF PROFESSIONAL RESPONSIBILITY, Rule 1.01 provides:

   RULE 1.01 A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.