THIRD DIVISION
[A.C. No. 12382. July 8, 2019.]
CRISELDA F. GARMA, complainant, vs.ATTY. JOSELINO A. VIRAY, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution datedJuly 8, 2019, which reads as follows:
"A.C. No. 12382 (CRISELDA F. GARMA, complainant v. ATTY. JOSELINO A. VIRAY, respondent). — The Court resolves to NOTE:
(1) the letter dated October 23, 2018 of Atty. Marlou B. Ubano, Director for Bar Discipline of the Integrated Bar of the Philippines (IBP) Commission on Bar Discipline, transmitting the documents pertaining to the case; and
(2) the Notice of Resolution No. XXII-2017-826 dated March 1, 2017 of the IBP Board of Governors which adopted the findings of fact and recommendation of the investigating commissioner, and dismissing the complaint.
A notarial register enjoys the presumption of regularity and is prima facie evidence of the facts contained within. To contradict the veracity of an entry in a notarial register, the complaining party must present clear and convincing evidence to debunk the presumption in its favor. 1 HTcADC
This Court resolves the Administrative Complaint 2 against Atty. Joselino A. Viray for allegedly violating the 2004 Rules on Notarial Practice.
Quirino Garma, Jr. (Quirino) was the registered owner of a 437-square meter lot in Barangay San Bartolome, Mayantoc, Tarlac, which was covered by Original Certificate of Title No. P-21318. 3 He was married to Manuela Guiang (Guiang) 4 and had two (2) recognized illegitimate children with one Julita Raqueño. 5
In February 2009, Quirino sold the lot to Elvira N. Barcena (Barcena) for P55,000.00. Atty. Joselino A. Viray (Atty. Viray) notarized the Deed of Absolute Sale and attested that Quirino personally appeared before him for the notarization of the Deed. 6 Original Certificate of Title No. P-21318 was canceled 7 and Transfer Certificate of Title No. 444375 8 in Barcena's name was issued in its stead.
On January 10, 2017, Criselda F. Garma (Criselda), Quirino's mother, 9 filed before the Integrated Bar of the Philippines an Administrative Complaint against Atty. Viray. 10
Criselda stated that Quirino was estranged from his wife Guiang, that Barcena was his common-law wife, and that Barcena and Quirino lived in Italy from 2005 until his death in December 21, 2010. 11
Criselda claimed that she only discovered the transfer made to Barcena after her son had died. She averred that her son could not have executed the February 2009 Deed of Absolute Sale in the Philippines as he was in Milan, Italy during the purported date of sale. She added that because of the fraudulent transfer, she and her co-heirs were forced to file an action for Accion Reivindicatoria against Barcena. 12
In the closing statement of her Complaint, Criselda implicated a certain Atty. Simplicio Sevilleja, Sr. (Atty. Sevilleja), stating that his "deliberate failure to perform his duty as a Notary Public, not only caused irreparable damage to me and to my co-heirs, but also undermined the integrity of a Notary Public[.]" 13
On January 24, 2017, Commissioner Narciso A. Tadeo (Commissioner Tadeo) recommended that the Complaint against Atty. Viray be dismissed. 14 CAIHTE
Commissioner Tadeo pointed out that it was unclear who the respondent in the Complaint was, since it referred to both Atty. Viray and Atty. Sevilleja. Moreover, he noted that whether Quirino was in the Philippines when the Deed of Absolute Sale was executed was a prejudicial question that had to be resolved first before passing upon the issue of whether the respondent violated notarial rules. He asserted that the presumption of regularity surrounding a notarized document subsists in the absence of contrary evidence. 15
In its March 1, 2017 Resolution No. XXII-2017-826, 16 the Integrated Bar of the Philippines Board of Governors adopted Commissioner Tadeo's findings of fact and recommendation to dismiss the Complaint.
The case was then elevated to this Court. 17
The sole issue for this Court's resolution is whether or not respondent Atty. Joselino A. Viray violated the 2004 Rules on Notarial Practice.
The Complaint is dismissed.
As Commissioner Tadeo has held, whether Quirino was in the Philippines during the execution of the Deed of Absolute Sale still needed to be resolved before respondent may be investigated for violation of the Rules on Notarial Practice.
In Bote v. Judge Eduardo, 18 this Court stated that "[a] notarial register is prima facie evidence of the facts there stated. It has the presumption of regularity and to contradict the veracity of the entry, evidence must be clear, convincing, and more than merely preponderant." 19
Here, complainant failed to support her claim that respondent violated the Rules on Notarial Practice by notarizing the Deed of Absolute Sale even when Quirino was not in the Philippines at that time. She merely stated in her Complaint 20 that she had filed an action for recovery of ownership that was "predicated on the alleged falsification of the Deed of [Absolute] Sale" 21 of the disputed parcel of land. There was no showing that the action had already been resolved, and that the Deed had indeed been falsified. Complainant's statements are mere allegations that remain unsubstantiated by evidence.
Additionally, the Certification 22 from the Bureau of Immigration only certified that Quirino did not arrive in or depart from the Philippines from January 1, 1993 to April 25, 2012:
THIS IS TO CERTIFY THAT the name GARMA, QUIRINO JR. FERNANDO Filipino, born on March 28, 1961 DOES NOT APPEAR in our available Computer Database file of
ARRIVAL from January 01, 1993 to April 25, 2012 DEPARTURE from January 01, 1993 to April 25, 2012 23 (Emphasis in the original)
Quirino might have been in the country around these dates, or he might as well have been abroad. Ultimately, it cannot be concluded from the Certification alone that Quirino was not in the Philippines in February 2009. Hence, the Deed of Absolute Sale remains valid unless proven that it was executed through fraud.
Furthermore, there has apparently been some confusion as to who is actually implicated in this case. aScITE
From the factual milieu alleged by complainant, respondent was the one who notarized the Deed of Absolute Sale. However, in the closing statement of the Complaint, a certain Atty. Sevilleja was implicated for his "deliberate failure to perform his duty as a Notary Public, [which] caused irreparable damage" 24 to complainant. As such, he allegedly "undermined the integrity of a Notary Public and degraded the function of notarization, thus, per prevailing jurisprudence, he should be held liable for such gross negligence, not only as a Notary Public but also, as a lawyer." 25
While the body of the Complaint hurls allegations at respondent, the prayer was directed toward Atty. Sevilleja. To hold respondent accountable, when the disciplinary action prayed for was toward another person, would deprive him of due process.
Complainant had the burden of proof to establish that respondent was guilty of violating the Rules on Notarial Practice. Unfortunately, she failed to discharge this burden.
WHEREFORE, the Administrative Complaint against respondent Atty. Joselino A. Viray is DISMISSED for lack of merit. DETACa
SO ORDERED."
Very truly yours,
(SGD.) WILFREDO V. LAPITANDivision Clerk of Court
Footnotes
1.Bote v. Eduardo, 491 Phil. 198, 202-203 (2005) [Per J. Quisumbing, First Division].
2.Rollo, pp. 2-5.
3.Id. at 9-12.
4.Id. at 6.
5.Id. at 7-8.
6.Id. at 1 ILLEGIBLE PORTION.
7.Id. at 9.
8.Id. at 14.
9.Id. at 6.
10.Id. at 2-5.
11.Id. at 2-3.
12.Id. at 3-4.
13.Id. at 4.
14.Id. at 29.
15.Id.
16.Id. at 27-28.
17.Id. at 26.
18. 491 Phil. 198 (2005) [Per J. Quisumbing, First Division].
19.Id. at 202-203.
20.Rollo, p. 3.
21.Id. at 29.
22.Id. at 22.
23.Id.
24.Id. at 4.
25.Id.