FIRST DIVISION
[A.C. No. 12248. January 11, 2023.][Formerly CBD Case No. 19-5993]
JOELITO JAKOSALEM TALAID, complainant, vs.ATTY. FRANCISCO T. DEL CASTILLO and ATTY. BENBER B. APEPE, respondents.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution dated January 11, 2023which reads as follows: HTcADC
"A.C. No. 12248 [Formerly CBD Case No. 19-5993] (Joelito Jakosalem Talaid v. Atty. Francisco T. Del Castillo and Atty. Benber B. Apepe). — The instant case stemmed from the Verified Administrative Complaint 1 for disbarment filed by complainant Joelito Jakosalem Talaid (complainant) against respondents Atty. Francisco T. Del Castillo (respondent Atty. Del Castillo) and Atty. Benber B. Apepe (respondent Atty. Apepe) 2 for violation of the Code of Professional Responsibility 3 and the 2004 Rules on Notarial Practice, 4 respectively.
Antecedents
Complainant alleged, among others, that a certain Alona Son Abejuela (Abejuela), 5 claiming to be married to him, filed a civil complaint docketed as CV FMY 2018-249 before Branch (Br.) 37, Regional Trial Court (RTC) of Cagayan de Oro City, with respondent Atty. Del Castillo as her counsel. Abejuela previously filed a similar civil complaint docketed as SP FMY Case 2017-079 pending before another family court, at Br. 19 of the same city. In both civil cases, Abejuela similarly claimed that she entered into an alleged Joint Venture Agreement (Agreement) with complainant. However, complainant denied the same and averred that he never executed nor signed the said Agreement, much less appeared before any notary public, 6 in particular, before respondent Atty. Apepe, for purposes of acknowledging the same. The Agreement also did not contain entries as to any community tax certificate, competent evidence of identity of any contracting parties, or signatures of any single instrumental witness, in violation of respondent Atty. Apepe's duties under the Rules on Notarial Practice. 7
With regard to respondent Atty. Del Castillo, complainant insisted that the latter committed forum shopping in two courts, knowing that an earlier case is pending before Br. 19, similar to the one filed later before Br. 37. Respondent Atty. Del Castillo's act of filing multiple actions for the same cause of action, same parties, same issues, and same remedies with the same set of evidence before another RTC of equal jurisdiction is tantamount to forum shopping. By said act, respondent Atty. Del Castillo violated the Lawyer's Oath and committed malpractice by fomenting litigation and abusing court processes for monetary motivations from Abejuela. 8
Further, complainant maintained that respondent Atty. Del Castillo also attempted to build a fictitious case in collusion with respondent Atty. Apepe who, as the notary public, falsely testified on the alleged Agreement between Abejuela and complainant. Thus, complainant asserted that respondents misused and abused court processes as if they were acting with apparent impunity. 9
In the official search conducted by the Office of the Clerk of Court (OCC) (Notarial Division), it appeared that respondent Atty. Apepe, commissioned as a notary public for the year 2010, submitted notarial reports for the month of August 2010. In the OCC's certification, an Agreement between Alona A. Ramirez, also known as Alona Abejuela, and a Joelito Talaid, herein complainant, was not found in respondent Atty. Apepe's notarial report and a "CANCELLED" remark was entered instead relative to a certain Doc. No. 102, Page No. 21, Book No. 1, Series of 2010. 10
For his part, respondent Atty. Apepe claimed that he did not require the presentation of competent evidence of the identity of the parties in the Agreement, i.e., complainant and Abejuela, since they were his former clients and thus, known to him. He further stated that they both sought him to draft and notarize the alleged Agreement because they fully trust him as their mutual counsel. They also requested him to dispense with the attesting of witnesses on the premise that they wanted it to be confidential. However, at the time of the execution of the Agreement, respondent Atty. Apepe's secretary resigned, and he was constrained to ask his wife to be his interim secretary and handle the recording of entries in his notarial register. Unfortunately, his wife died on 29 December 2013. Respondent Atty. Apepe maintained that he did not violate the provision of the Notarial Law. 11
In his defense, respondent Atty. Del Castillo claimed that the issue on forum shopping had already been resolved, with the issuance of the Order 12 dated 10 April 2018 by Br. 37 which ruled out the existence of forum shopping. The said Order was affirmed by the Court of Appeals (CA) in a Decision 13 dated 05 September 2018. As to the issue that he knowingly used a falsified document, Atty. Del Castillo argued that he had every reason to rely on the Agreement being a public document. 14
Report and Recommendation of the
In the Report and Recommendation 15 dated 19 October 2021, Investigating Commissioner (IC) Bunrofil C. Altares recommended the dismissal of the administrative case against respondent Atty. Del Castillo for lack of merit. The IC held that respondent Atty. Del Castillo cannot be held liable for violating the rules on forum shopping. The issue was laid to rest when the CA affirmed the trial court's finding as to the non-existence of forum shopping. As to the allegation that respondent Atty. Del Castillo violated his lawyer's oath and committed malpractice by fomenting litigation and abusing court processes for monetary motivations from Abejuela, the same remained unsubstantiated and accordingly, the case should be dismissed for lack of evidence. 16
The IC, however, found respondent Atty. Apepe guilty of violating the 2004 Rules on Notarial Practices, particularly Rule VI, Section 2, paragraphs (d) and (h) 17 thereof. As admitted by said respondent, he drafted and notarized the Agreement. While he submitted a notarial report, he failed to include therein the notarized Agreement. He also failed to transmit a duplicate original of the instrument to the Clerk of Court as required by the 2004 Rules on Notarial Practice, and it took him years to realize his failures despite the Agreement having been notarized as far back as 2010. 18 Thus, respondent Atty. Apepe has been negligent in the performance of his functions as a notary public.
In this regard, the IC recommended that respondent Atty. Apepe be disqualified from being commissioned as a Notary Public for a period of two years and his incumbent commission as such be revoked if subsisting. The penalty of reprimand in lieu of suspension from the practice of law was likewise recommended, there being no showing that he deliberately omitted to include in his notarial report the Agreement and that his failure to submit the duplicate copy of the Agreement was intentional. 19
On 18 March 2022, the IBP Board of Governors (BOG) issued a Resolution 20 which resolved to adopt the report and recommendation of the IC to dismiss the complaint against respondent Atty. Del Castillo for lack of merit. In the said Resolution, the IBP Board of Governors also resolved to reverse the findings of the IC as to respondent Atty. Apepe and recommended the dismissal of the complaint against the latter for lack of merit. In an Extended Resolution 21 dated 02 July 2022, the IBP BOG explained that there was no showing of deliberate omission or intention on the part of respondent Atty. Apepe to submit a duplicate copy of the Agreement. Likewise, complainant failed to overcome the burden to clearly and convincingly show why respondent Atty. Apepe should be penalized. Thus, the IBP BOG recommended the dismissal of the complaint against said respondent considering further that the latter satisfactorily explained and defended the allegations against him.
Ruling of the Court
The Court partially adopts the report and recommendation of the IBP BOG.
The issue on the alleged forum shopping committed by respondent Atty. Del Castillo had already been laid to rest with the CA upholding the trial court's Order on the issue of forum shopping. Accordingly, the dismissal of the administrative complaint against respondent Atty. Del Castillo is warranted for lack of merit.
As regards respondent Atty. Apepe, We agree with the earlier findings of the IC that said respondent violated the Notarial Rules with his failure to report the Agreement in the notarial register and submit a copy thereof to the OCC. We stress that a notary public should not trivialize his functions as his powers and duties are impressed with public interest. 22 Notarial acts give private documents a badge of authenticity that the public relies on when they encounter written documents and engage in written transactions. Hence, all notaries public are duty-bound to protect the integrity of notarial acts by ensuring that they perform their duties with utmost care. 23 Respondent Atty. Apepe is expected at all times to be aware of the requirements of his notarial commission.
The notarial commission is a license held personally by the notary public. It 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 24 and the subsequent submission of the documents to the OCC. To be sure, the notary public is mandated to record the entries required for every notarial act at the time of notarization in his or her notarial register. 25 Thus, the act of respondent Atty. Apepe delegating to his wife the recording of the entries in his notarial register constitutes inexcusable negligence.
Jurisprudence teaches that a notary public who fails to discharge his duties as such is meted out the following penalties: (1) revocation of notarial commission; (2) disqualification from being commissioned as notary public; and (3) suspension from the practice of law — the terms of which vary based on the circumstances of each case. 26
Respondent Atty. Apepe's failure to submit the agreement Agreement and record its details on his notarial register casts doubt not only on the authenticity of the Agreement, but likewise, on the credibility of the notarial process itself. Said respondent's acts or omissions violate the Notarial Rules as well as Canon 1 of the Code of Professional Responsibility (CPR) which provides that "a lawyer [should] uphold the constitution, obey the laws of the land and promote respect for law and legal processes." 27
In Pitogo v. Atty. Suello, 28 the same violations of Notarial Rules and CPR were meted with the penalty of a one-year suspension of the notarial commission and a three-month suspension of the erring lawyer from the practice of law. We find the same penalties proper under the circumstances.
WHEREFORE, premises considered, the Court hereby RESOLVES to PARTIALLY ADOPT and APPROVE the findings of fact, conclusions of law, and recommendation of the Integrated Bar of the Philippines in its the attached Extended Resolution dated 02 July 2022. Accordingly, the administrative complaint against respondent Atty. Francisco T. Del Castillo is hereby DISMISSED.
Respondent Atty. Benber B. Apepe, on the other hand, is found GUILTY of violating Canon 1 of the Code of Professional Responsibility and the 2004 Rules on Notarial Practice and is hereby SUSPENDED from the practice of law for three months. His incumbent commission as a notary public is REVOKED for one year and he is further PROHIBITED from being commissioned as such for the same period. Respondent Atty. Benber B. Apepe is STERNLY WARNED that a repetition of the same offense or similar acts in the future shall be dealt with more severely.
Let copies of this Resolution be served on the Office of the Bar Confidant, the Integrated Bar of the Philippines, and all courts in the country for their information and guidance and be attached to respondent Atty. Benber B. Apepe's personal records as attorney.
The Notice of Resolution No. CBD-XXV 2022-03-43 dated 18 March 2022 and Extended Resolution dated 02 July 2022 of the Integrated Bar of the Philippines' Board of Governors, transmitted by Letter dated 12 July 2022 of Atty. Avelino B. Sales, Jr., Director for Bar Discipline, Integrated Bar of the Philippines, together with the records and flash drive file, are both NOTED. CAIHTE
SO ORDERED." Hernando, J., on leave.
By authority of the Court:
(SGD.) LIBRADA C. BUENADivision Clerk of Court
By:
MARIA TERESA B. SIBULODeputy Division Clerk of Court
Footnotes
1.Rollo, pp. 2-12.
2. Collectively referred to as respondents.
3. Promulgated 21 June 1988.
4. A.M. No. 02-08-13-SC. Signed 06 July 2004.
5. Also referred to as Alona A. Ramirez in some parts of the records.
6.Rollo, p. 4.
7.Id. at 8.
8.Id. at 4-5.
9.Id. at 6.
10.Id. at 6-7.
11. Position Paper, dated February 6, 2020.
12.Rollo, p. 124-127.
13.Id. at 129-145.
14.Id. at 96-97.
15.Id., unpaginated.
16.Id.
17. SECTION 2. Entries in the Notarial Register. — (a) x x x.
xxx xxx xxx
(d) When the instrument or document is a contract, the notary public shall keep an original copy thereof as part of his or her records and enter in said records a brief description of the substance thereof and shall give to each entry a consecutive number, beginning with number one in each calendar year. He or she shall also retain a duplicate original copy for the Clerk of Court. x x x
(h) A certified copy of each month's entries and a duplicate original copy of any instrument acknowledged before the notary public shall, within the first ten (10) days of the month following, be forwarded to the Clerk of Court and shall be under the responsibility of such officer. If there is no entry to certify for the month, the notary shall forward a statement to this effect in lieu of certified copies herein required.
18.Rollo, unpaginated. See Report and Recommendation, pp. 9-10.
19.Id. at 10.
20.Id.See IBP Resolution, 18 March 2022.
21.Id.See Extended Resolution, 02 July 2022.
22.Gimeno v. Zaide, 759 Phil. 10 (2015).
23.Pitogo v. Suello, 756 Phil. 124 (2015).
24.Agadan v. Kilaan, 20 Phil. 625 (2013).
25. 2004 Rules on Notarial Practice, Rule VI, Sec. 2.
26.Sappayani v. Gasmen, A.C. No. 7073, 768 Phil. 1 (2015).
27.Id.
28. 756 Phil. 124 (2015).