[Adm. Case No. 5764.

January 13, 2003]

REUBEN M. PROTACIO, complainant, vs. ATTY. ROBERTO M. MENDOZA, respondent.
DECISION
MENDOZA, J.:

This is a complaint for disbarment against Atty. Roberto M. Mendoza for his alleged failure to require the parties
to a document which he notarized to appear personally before him.
Complainant Reuben M. Protacio alleged that, as president of Jumping Jap Trading Company, Inc. (JJTC, Inc.), he
filed in the Office of the City Prosecutor of Manila on March 7, 2001 a complaint for estafa through falsification of public
documents against the spouses Nobuyasu and Carmencita Nemoto and the Metropolitan Land Corporation. He claimed
that respondent Atty. Roberto M. Mendoza, who served as counsel for the spouses Nemoto in that case, had presented
in the investigation a resolution of the JJTC, Inc., dated March 30, 1998, which purported to have been signed by him
(the complainant), as president/director of JJTC, Inc., and Nobuyasu Nemoto, as director thereof. The resolution had
been notarized by respondent. It reads:

RESOLVED AS IT IS HEREBY RESOLVED THAT Jumping Jap Corporation/Jumping Jap Company transfers, conveys and
assigns unto Carmencita I. Fradejas, all of the said corporations rights and interests over a parcel of land with a
residential house erected thereon, located at #167 (#112) Pili Drive Ayala Alabang Village, Muntinlupa City covered by
TCT No. 205572 issued by the Register of Deeds of Makati registered in the name of Metropolitan Land Corporation with
an area of 618 sq. m.

RESOLVED FINALLY that Reuben Protacio, President of Jumping Jap Trading Corp./Jumping Jap Company whose
specimen signature appears hereinbelow be authorized and empowered for and in behalf of said corporation to execute
the Deed of Assignment transferring, conveying and assigning all of the rights and interests of said corporation subject of
the Deed of Conditional Sale dated 1 December 1997, in favor of Carmencita I. Fradejas.

APPROVED, Manila, 30 March 1998.[1]

Complainant claimed that he did not sign the board resolution nor did he attend a board meeting of the
corporation on the date stated therein (March 30, 1998), and therefore the signature purporting to be his was a forgery.
He alleged that the Notarial Section of the Regional Trial Court of Manila had in fact certified that it did not have a copy
of the board resolution in question because respondent had not submitted his notarial report for March
1998. Furthermore, according to complainant, the records of the Bureau of Immigration and Deportation (BID) showed
thatNobuyasu Nemoto was out of the country on March 30, 1998, having left the Philippines on March 26, 1998 and
having returned only on March 31, 1998. Hence, complainant claimed, it was impossible for Nobuyasu Nemoto to have
attended the supposed board meeting on March 30, 1998 and to have signed the resolution on the same date.
Complainant charged that respondent knowingly and maliciously notarized the said board resolution without the
presence of the party allegedly executing it.
In addition, another document entitled Deed of Assignment, dated April 2, 1998, appeared to have also been
notarized by respondent, purporting to have been signed by complainant as one of the parties therein. The Deed of
Assignment reads:
Know All Men By These Presents:
This Deed of Assignment made and entered into on this 2nd day of April 1998 at Manila by and between:
Jumping Jap Trading Corporation/Jumping Jap Company, a corporation existing under and by virtue of Philippine law, with
business address at No. 310 Galeria de Magallanes Condominium, Magallanes Village, Makati City, here represented by its
President, Reuben Protacio, hereinafter referred to as ASSIGNOR;
- and -
Carmencita I. Fradejas, Filipino, of legal age, single and with residence at #167 (#112) Pili Drive, Ayala Alabang Village,
Muntinlupa City, hereinafter referred to as the ASSIGNEE.
WITNESSETH That
The parties have agreed as follows:
 The ASSIGNOR for value received, hereby transfers, conveys, and assigns unto the ASSIGNEE, her heirs, and successors-in-
interest, all of the formers rights and interests over a parcel of land with a residential house erected thereon, located at #167
(#112) Pili Drive, Ayala Alabang Village, Muntinlupa City, covered by TCT No. 205572 issued by the Register of Deeds of Makati
registered in the name of Metropolitan Land Corporation, with an area of 618 sq.m. and subject of the Deed of Conditional
Sale dated 1 December 1997.
IN WITNESS WHEREOF, the parties have hereunto affixed their signatures on this 2nd day of April, 1998, in Manila. [2]

Complainant denied that he had signed this deed of assignment. He pointed out that the Notarial Section of the
Regional Trial Court of Manila had certified that there was no such document on file in that office as respondent had not
submitted a notarial report for April 1998.[3]
Complainant alleged that respondent should not have notarized any document without first requiring the
presence of the parties to attest to him that it had been duly executed, made voluntarily and with the knowledge of the
parties involved. He asked that respondent be held accountable, and respondent be disbarred from the practice of
law.[4]
In his answer,[5] respondent insisted that on March 30, 1998, the JJTC, Inc. had adopted a board resolution
authorizing the transfer of its rights over some property in favor of one Carmencita Fradejas, who subsequently married
Nobuyasu Nemoto. He insisted that the resolution, dated March 30, 1998, had been signed by complainant and
Nobuyasu Nemoto and later notarized by him (respondent). Respondent said that the document was dated March 30,
1998 because it was prepared on that date, but it was actually signed by the parties therein only on March 31, 1998,
upon the arrival of Nobuyasu Nemoto from Japan. It was alleged that, through inadvertence, respondent failed to
change the date. Respondent maintained that the signature appearing on the board resolution was that of complainant,
who participated in the board meeting. He explained that he failed to submit his notarial report for 1998 because it was
lost when he transferred his residence from Sta. Cruz, Manila to Makati City.
With regard to the Deed of Assignment, respondent claimed that it was executed by complainant in the
presence of respondent and other witnesses. As proof of the authenticity of complainants signature in the Deed of
Assignment, he furnished a letter addressed to the Metropolitan Land Corp., dated April 20, 1998, allegedly prepared by
complainant, in which he (complainant) appeared to be confirming a request he had previously made for the
substitution of the JJTC, Inc. by Carmencita I. Fradejas as vendee in the Deed of Conditional Sale, pursuant to the Deed
of Assignment dated 30 March 1998. The letter reads:
20 April 1998
METROPOLITAN LAND CORP.
Penthouse JMT Corp. Cond.
ADB Ave., Ortigas Center
Pasig City, Philippines
Attention: JOSE MA. V. LAMUG
Managing Director
Dear Mr. Lamug:
This will formalize my request for the change of the name of the Vendee in the Deed of Conditional Sale between
Metropolitan Land Corporation and Jumping Jap Trading Corp/Jumping Jap Company dated 1 December 1997 from
Jumping Jap Trading Corp/Jumping Jap Company to Carmencita I. Fradejas, pursuant to the Deed of Assignment dated 30
March 1998, executed by said corporation in favor of the latter. Enclosed are copies [of] said Deed of Assignment and
Board Resolution authorizing such Deed of Assignment, for your ready reference.
With the aforesaid Deed of Assignment, Jumping Jap Trading Corp/Jumping Jap Company, through the undersigned,
hereby releases Metropolitan Land Corporation from any and all present and future claims arising from the execution of
the above-mentioned Conditional Deed of Sale.
Very truly yours,
(signed)
REUBEN PROTACIO
President[6]

Respondent stated he was ready to submit the original of the Board Resolution and Deed of Assignment to the
National Bureau of Investigation (NBI) for analysis and comparison of the signatures therein with complainants signature
in his Complaint-Affidavit before the Office of the City Prosecutor of Manila to prove the authenticity of complainants
signatures in the questioned documents.
 In his report, dated November 27, 2001, the Investigating Commissioner of the Integrated Bar of the Philippines
(IBP) found respondent to have been negligent in the performance of his duties and obligations as a notary public and
recommended the revocation of his notarial commission for a period of two years.[7] The IBP Board of Governors
adopted and approved the report and recommendation of the Investigating Commissioner, with the modification that
respondents commission as notary public be suspended and that he be disqualified from appointment as notary public
for two years.
The findings of the IBP are supported by the evidence in the record.
Act No. 2103[8] provides:

SECTION 1. (a) 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 person 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.

It is necessary that a party to any document notarized by a notary public appear in person before the latter and
affirm the contents and truth of what are stated in the document.[9] The importance of this requirement cannot be
gainsaid. The acknowledgement of a document is not an empty meaningless act. By it a private document is converted
into a public document, making it admissible in court without further proof of its authenticity. For this reason, it
behooves every notary public to see to it that this requirement is observed and that formalities for the acknowledgment
of documents are complied with.[10]
In this case, Nobuyasu Nemoto, who was allegedly a signatory to a resolution of a corporation, allegedly notarized
by respondent, could not have signed the document on March 30, 1998, the date indicated therein, since he was not
then in the Philippines. Respondents explanation that Nemoto actually signed the document on March 31, 1998, after
arriving from Japan, cannot be accepted. Documents must speak the truth if their integrity is to be preserved. That is
what a notary public vouches for when he states in the jurat that the parties have appeared before him at the time and
in the place he (the notary public) states and that the document is then a free act and deed. It is for this reason that
public documents are given full faith and credit, at least as to their due execution.
Even more serious than the failure of respondent to indicate the true date of the resolution is his failure to file a
copy of the document with the Regional Trial Court of Manila as required by law. Chapter 11 of Act No. 2657
(Administrative Code), as amended, provides:

SEC. 245. Notarial register. Every notary public shall keep a register to be known as the notarial register, wherein record
shall be made of all his official acts as notary; and he shall supply a certified copy of such record, or any part thereof, to
any person applying for it and paying the legal fees therefor.

Such register shall be kept in books to be furnished by the Attorney-General to any notary public upon request and upon
payment of the actual cost thereof, but officers exercising the functions of notaries public ex officio shall be supplied
with the register at Government expense. The register shall be duly paged, and on the first page, the Attorney-General
shall certify the number of pages of which the book consists.

SEC. 246. Matters to be entered therein. The notary public shall enter in such register, in chronological order, the nature
of each instrument executed, sworn to, or acknowledged before him, the person executing, swearing to or
acknowledging the instrument, the witnesses, if any, to the signature, the date of the execution, oath, or
acknowledgment of the instrument, the fees collected by him for his services as notary in connection therewith, and,
when the instrument is a contract, he shall keep a correct copy thereof as part of his records, and shall likewise 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. The notary shall give to each instrument executed, sworn to, or acknowledged
before him a number corresponding to the one in his register, and shall also state on the instrument the page or pages
of his register on which the same is recorded. No blank line shall be left between entries.
....

A certified copy of each months entries as described in this section and a certified copy of any instrument acknowledged
before them shall within the first ten days of the month next following be forwarded by the notaries public to the clerk
of the Court of First Instance of the province and shall be filed under the responsibility of such officer: Provided, That if
there is no entry to certify for the month, the notary shall forward a statement to this effect in lieu of the certified
copies herein required. (Emphasis supplied)

Respondents failure to comply with the duty to file a copy of the resolution with the Regional Trial Court of Manila
and to send to it the entries in his notarial register constitutes a sufficient ground for the revocation of his
commission.[11]
However, we think that the suspension of respondent for one year as a notary public would be more appropriate
considering that there is no competent proof that complainants signature in the documents notarized by respondent
was forged. What was clearly established in this case was respondents failure to submit a copy of the Board Resolution
and the Deed of Assignment notarized to the Regional Trial Court of Manila. In Doughlas v. Lopez, Jr.,[12] the Court
suspended the respondent therein from his commission as notary public for one year, for notarizing the verification of a
motion to dismiss when three of the affiants thereof did not appear before him and for notarizing the same instrument
of which he was one of the signatories. In another case, Coronado v. Felongco,[13] the Court, in suspending the
respondent for two months as a notary public considered the fact that it was his first offense and that he expressed
remorse for his negligence in notarizing a document, not knowing that one of the affiants thereof has died a few days
before the date of notarization
WHEREFORE, in view of the foregoing, respondent Atty. Roberto M. Mendoza is SUSPENDED from his commission
as a notary public for a period of one (1) year with WARNING that a repetition of the same negligent act charged in this
complaint will be dealt with more severely.
SO ORDERED.
A.C. No. 3232 September 27, 1994

ROSITA C. NADAYAG, complainant, vs.ATTY JOSE A. GRAGEDA, respondent.

MELO, J.:

In a letter-complaint dated April 15, 1988, Rosita C. Nadayag charged respondent Atty. A. Grageda, a practicing attorney
and notary public in Iligan City, with conduct unbecoming of a lawyer in connection with a "Pacto de Retro" transaction
wherein complainant was the vendee. Complainant's affidavit, which accompanied her letter-complaint, alleged that
respondent:

. . . prepared and notarized a PACTO DE RETRO sale with me as the Vendee-a-Retro last January 21, 1987 in this
City using Original Certificate of Land Title stolen from the Office of the Register of Deeds herein in Iligan as a
result of which I was swindled in One hundred eight thousand pesos (P108,000.00) because the said land sold to
me by Pacto de Retro was already sold ahead of time to another party, using the owner's duplicate copy of the
title. That during our pacto de retro sale, as I was suspicious already of the appearance of the Original Certificate
of Title, having many annotations and old patches thereof, when I brought the matter to the attention of Atty.
Jose A. Grageda, notarizing the same, he simply answered me that the title was all right and that he told me
further not to worry as he is an attorney and besides he knew very well the Vendor-a- Retro whose business
transactions especially notarial matter has been and in fact always handled by him (Attorney Jose A. Grageda).

That said stolen Original Certificate of Land Title was confiscated by Iligan City Register of Deeds, Attorney
Reynaldo Baguio on the occasion when I applied for registration of my Pacto de Retro. Findings showed that
many other cased of stolen original certificates of land titles have taken place in the said office but the said
Attorney as the Register of Deeds did not prosecute the thieves thereof.

I filed Estafa case against the Vendor-a-Retro together with her accomplices to include said Attorney Jose A.
Grageda, coursing it through the local Barangay Captain last May 1987 yet, then forwarded to the City Fiscal
through the Police Station Commander in June 1987 but that and until the time of this Report was not tried in
Court yet but that the Information did not include said Atty. Jose A. Grageda, hence this report.

Respondent filed his counter-affidavit dated March 29, 1989, pertinently alleging:

6. That they showed me a copy of the title which I examined and found out the title was clear and there was no
annotation or entry so I told them that as far as the title was concern there was no encumbrances or annotation
and can be the subject of the Pacto de Retro;

7. That they insisted that I notarized the document so I proceeded to translate the document in Cebu, Visayan
dialect to make sure that the parties understood the deed and they replied that they understood this and I
asked then further if they have any more to add or delete; they answered that there was no more and they will
sign the same;

8. That I told them to sign the document above their typewritten name which they did and witnessed by the
other person with them who were present, so after their signature in good faith based upon their documents I
notarized the same.

Pursuant to Rule 139-B of the Rules of Court and the resolution of the Court En Banc of April 12, 1988, the case was
referred to the Commission on Bar Discipline of the Integrated Bar of the Philippine (IBP) for investigation, report, and
recommendation.

The IBP Commission on Bar Discipline scheduled hearings for reception of evidence but complainant manifested that she
cannot proceed to Manila and attend to her case due to financial constraints. Upon the other hand, respondent could no
longer be located, having moved without leaving any forwarding address.
Nonetheless, said Commission, on the basis of the complaint and the supporting affidavit, as well as the counter-
affidavit of respondent, found that "there is reason for disciplining the respondent" premised upon the following
observations:

Respondent first admits that he was consulted by the vendor-a-retro and the complainant (vendee-a-retro) on
the matter of the title when he was asked to notarize the Deed of Sale a Retro. He admits that he rendered an
opinion based on the title that was presented to him. It turns out that the title presented to him is the Original
Certificate of Title which only the Register of Deeds has custody of and he should have sensed foul-play or
irregularity. As a lawyer and officer of the court, he should have been alerted and should have reported the
irregularity of an Original Certificate of Title, which should be in the exclusive safekeeping of the Register of
Deeds, in the possession of unauthorized persons. Even if it were the photostat copy of said Original Certificate
of Title that was presented to him, the same did not bear any certification by the Register of Deeds which could
have alerted him of the irregularity. The testimony that the Original was shown to him has not been
controverted. The Vendee was in fact in possession of the Original because it was testified that when the
Register of Deeds found that respondent was in possession, the original certificate was confiscated by the
Register of Deeds.

The Commission takes special note of a notary public acting more than a notary public and goes beyond mere
certification of the presence of the signatories, their having signed, and having contracted. By transcending
these bounds, such notary public has entered the realm of giving "legal advice" — thus "acting also as counsel
aside from notary public" to the parties to the contract.

Treated as counsels for the vendee, he had the legal duty to advice him properly of the irregularities and the
dangers of holding the Original Certificate which should have been in the custody of the Register of Deeds.
Respondent had acted recklessly at the least, in his advise of the vendee. He rendered an opinion that was
irresponsible that his client relied upon — which recklessness is censurable.

A lawyer shall at all times uphold the integrity and dignity of the legal profession. The trust and confidence necessarily
reposed by clients require in the attorney a high standard and appreciation of his duty to his clients, his profession, the
courts and the public. The bar should maintain a high standard of legal proficiency as well as of honesty and fair dealing.
Generally speaking, a lawyer can do honor to the legal profession by faithfully performing his duties to society, to the
bar, to the courts, and to his clients. To this end, nothing should be done by any member of the legal fraternity which
might tend to lessen in any degree the confidence of the public in the fidelity, honesty, and integrity of the profession.
(Marcelo vs. Javier, Sr., 214 SCRA 1 [1992]).

Generally, a lawyer may be disbarred or suspended for any misconduct, whether in his professional or private capacity,
which shows him to be wanting in moral character, in honesty, probity, and good demeanor or unworthy to continue as
an officer of the court. (Marcelo vs. Javier, Sr., supra).

In the case at bar, respondent should have been conscientious in seeing to it that justice permeated every aspect of a
transaction for which his services had been engaged, in conformity with the avowed duties of a worthy member of the
Bar. He should have fully explained the legal intricacies and consequences of the subject transaction as would aid the
parties in making an informed decision. Such responsibility was plainly incumbent upon him, and failing therein, he must
now face the commensurate consequences of his professional indiscretion. After all, notarization is not an empty
routine. Notarization of a private document converts such document into a public one and renders it admissible in court
without further proof of its authenticity.

ACCORDINGLY, and as recommended by the IBP Board of Governors, the Court Resolved to SUSPEND respondent Atty.
Jose A. Grageda from the practice of law for a period of three (3) months commencing from receipt of this Resolution,
with the warning that a repetition of the same or any other misconduct will be dealt with more severely. Let a copy of
this Resolution be spread on the records of said respondent, with copies thereof furnished to the Integrated Bar of the
Philippines and duly circularized to all courts. SO ORDERED.
A.C. No. 3324 February 9, 2000

PASTOR EDWIN VILLARIN, PACIANO DE VEYRA, SR., and BARTOLOME EVAROLO, SR., complainants, vs.ATTY.
RESTITUTO SABATE, JR., respondent.

Complainants Pastor Edwin Villarin, Paciano de Veyra, Sr. and Bartolome Evarolo, Sr. prays that administrative sanctions
be imposed on respondent Atty. Restituto Sabate, Jr. for not having observed honesty and utmost care in the
performance of his duties as notary public.

In their Affidavit-Complaint,1 complainants alleged that through their counsel Atty. Eduardo D. Estores, they filed a
complaint against Paterno Diaz, et al. under SEC Case No. DV091, Region XI Davao Extension Office, Davao City.

Respondents in the SEC Case filed their "Motion to Dismiss With Answer To Villarin's Et. Al., Complaint To The Securities
and Exchange Commission"2 prepared and notarized by Atty. Restituto Sabate, Jr. The verification of the said pleading
reads:

V E R I F I C AT I O N
REPUBLIC OF THE PHILIPPINES)
CAGAYAN DE ORO CITY) S.S.
WE, REV. PASTORS PATERNO M. DIAZ, MANUEL DONATO, ULYSSES CAMAGAY, LEVI PAGUNSAN, ALEJANDRO BOFETIADO, All of legal ages
after having been sworn in accordance with law depose and say:
1. That we were the one who caused the above writings to be written;
2. That we have read and understood all statements therein and believed that all are true and correct to the best of our knowledge and
belief.
IN WITNESS WHEREOF hereunto affixed our signatures on the 6th day of February, 1989 at the City of Cagayan de Oro, Philippines.
By: (Sgd.) Lilian C. Diaz (Sgd.) Camagay (Sgd.) M Donato
By: (Sgd.) Atty. Restituto B. Sabate
(Sgd.) Dr. Levi Pagunsan (Sgd.) Pastor A. Bofetiado
SUBSCRIBED AND SWORN to before the above-named affiants on the 6th day of February, 1989 at the City of Cagayan de Oro,
Philippines.
(Sgd.) RESTITUTO B. SABATE, JR.
Notary Public3

Complainants alleged that the signature of Paterno Diaz was not his, but that of a certain Lilian Diaz; that with regard to
the signatures of Levi Pagunsan and Alejandro Bofetiado, it was Atty. Sabate, Jr. who signed for them; and that herein
respondent Sabate, Jr. made it appear that said persons participated in the said act when in fact they did not do so.
Complainants averred that respondent's act undermined the public's confidence for which reason administrative
sanctions should be imposed against him.

In his Answer,4 respondent alleged that Paterno Diaz, Levi Pagunsan and Alejandro Bofetiado swore to the correctness
of the allegations in the motion to dismiss/pleading for the SEC through their authorized representatives known by their
names as Lilian C. Diaz, wife of Paterno Diaz, and Atty. Restituto B. Sabate, Jr. manifested by the word "By" which
preceded every signature of said representatives. Respondent allegedly signed for and in the interest of his client
backed-up by their authorization5; and Lilian Diaz was authorized to sign for and in behalf of her husband as evidenced
by a written authority.6 Respondent alleged that on the strength of the said authorizations he notarized the said
document.

Respondent also alleged that in signing for and in behalf of his client Pagunsan and Bofetiado, his signature was
preceded by the word "By" which suggests that he did not in any manner make it appear that those persons signed in his
presence; aside from the fact that his clients authorized him to sign for and in their behalf, considering the distance of
their place of residence to that of the respondent and the reglementary period in filing said pleadings he had to reckon
with. Respondent further alleged that the complaint is malicious and anchored only on evil motives and not a sensible
way to vindicate complainants' court losses, for respondent is only a lawyer defending a client and prayed that the case
be dismissed with further award for damages to vindicate his honor and mental anguish as a consequence thereof.
The designated Investigating Commissioner of Integrated Bar of the Philippines recommended that respondent Atty.
Restituto Sabate, Jr. be suspended from his Commission as Notary Public for a period of six (6) months. The Board of
Governors of the Integrated Bar of the Philippines adopted the said recommendation and resolved to suspend the
respondent's Commission for six (6) months for failure to exercise due diligence in upholding his duty as a notary public.

From the facts obtaining, it is apparent that respondent Atty. Restituto Sabate, Jr. notarized the Motion to Dismiss With
Answer prepared by him which pleading he signed for and in behalf of Levi Pagunsan and Alejandro Bofetiado (while
Lilian Diaz signed for her husband Pastor Diaz), three of the respondents in the SEC case, with the word "By" before their
signatures, because he was their counsel in said case and also because he was an officer of the religious sect and
corporation represented by the respondents-Pastors.

But while it would appear that in doing so, he acted in good faith, the fact remains that the same cannot be condoned.
He failed to state in the preliminary statements of said motion/answer that the three respondents were represented by
their designated attorneys-in-fact. Besides, having signed the Verification of the pleading, he cannot swear that he
appeared before himself as Notary Public.1âwphi1.nêt

The function of a notary public is, among others, to guard against any illegal or immoral arrangements.7 That function
would be defeated if the notary public were one of the signatories to the instrument. For then, he would be interested
in sustaining the validity thereof as it directly involves himself and the validity of his own act. It would place him in an
inconsistent position, and the very purpose of the acknowledgment, which is to minimize fraud, would be thwarted.8

Sec. 1 of Public Act No. 2103 provides:

(a) The acknowledgment shall be made before a notary public or an officer duly authorized by law of the country
to take acknowledgment 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 person 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.9

A member of the bar who performs an act as a notary public should not notarize a document unless the persons who
signed the same are the very same persons who executed and personally appeared before said notary public to attest to
the contents and truth of what are stated therein. The acts of affiants cannot be delegated to anyone for what are
stated therein are facts they have personal knowledge of and swore to the same personally and not through any
representative. Otherwise, their representative's names should appear in the said documents as the ones who executed
the same and that is only the time they can affix their signatures and personally appear before the notary public for
notarization of said document.

As a lawyer commissioned as notary public, respondent is mandated to subscribe to the sacred duties pertaining to his
office, such duties being dictated by public policy impressed with public interest. Faithful observance and utmost respect
of the legal solemnity of the oath in an acknowledgment or jurat is sacrosanct. Simply put, such responsibility is
incumbent upon and failing therein, he must now accept the commensurate consequences of his professional
indiscretion.10

That respondent acted the way he did because he was confronted with an alleged urgent situation is no excuse at all. As
an individual, and even more so as a member of the legal profession, he is required to obey the laws of the land at all
times.11 For notarizing the Verification of the Motion to Dismiss With Answer when three of the affiants thereof were
not before him and for notarizing the same instrument of which he was one of the signatories, he failed to exercise due
diligence in upholding his duty as a notary public.

WHEREFORE, for lack of diligence in the observance of the Notarial Law, respondent Atty. Restituto Sabate, Jr. is
SUSPENDED from his Commission as Notary Public for a period of one (1) year. SO ORDERED.
A.C. No. 7036 June 29, 2009

JUDGE LILY LYDIA A. LAQUINDANUM, Complainant, vs.ATTY. NESTOR Q. QUINTANA, Respondent.

DECISION

PUNO, CJ.:

This administrative case against Atty. Nestor Q. Quintana (Atty. Quintana) stemmed from a letter 1 addressed to the
Court filed by Executive Judge Lily Lydia A. Laquindanum (Judge Laquindanum) of the Regional Trial Court of Midsayap,
Cotabato requesting that proper disciplinary action be imposed on him for performing notarial functions in Midsayap,
Cotabato, which is beyond the territorial jurisdiction of the commissioning court that issued his notarial commission, and
for allowing his wife to do notarial acts in his absence.

In her letter, Judge Laquindanum alleged that pursuant to A.M. No. 03-8-02-SC, executive judges are required to closely
monitor the activities of notaries public within the territorial bounds of their jurisdiction and to see to it that notaries
public shall not extend notarial functions beyond the limits of their authority. Hence, she wrote a letter2 to Atty.
Quintana directing him to stop notarizing documents within the territorial jurisdiction of the Regional Trial Court of
Midsayap, Cotabato (which is outside the territorial jurisdiction of the commissioning court that issued his notarial
commission for Cotabato City and the Province of Maguindanao) since certain documents3 notarized by him had been
reaching her office.

However, despite such directive, respondent continuously performed notarial functions in Midsayap, Cotabato as
evidenced by: (1) the Affidavit of Loss of ATM Card4 executed by Kristine C. Guro; and (2) the Affidavit of Loss of Driver’s
License5 executed by Elenita D. Ballentes.

Under Sec. 11, Rule III6 of the 2004 Rules on Notarial Practice, Atty. Quintana could not extend his notarial acts beyond
Cotabato City and the Province of Maguindanao because Midsayap, Cotabato is not part of Cotabato City or the Province
of Maguindanao. Midsayap is part of the Province of Cotabato. The City within the province of Cotabato is Kidapawan
City, and not Cotabato City.

Judge Laquindanum also alleged that, upon further investigation of the matter, it was discovered that it was Atty.
Quintana’s wife who performed notarial acts whenever he was out of the office as attested to by the Joint
Affidavit7executed by Kristine C. Guro and Elenita D. Ballentes.

In a Resolution dated February 14, 2006,8 we required Atty. Quintana to comment on the letter of Judge Laquindanum.

In his Response,9 Atty. Quintana alleged that he filed a petition for notarial commission before Branch 18, Regional Trial
Court, Midsayap, Cotabato. However, the same was not acted upon by Judge Laquindanum for three weeks. He alleged
that the reason for Judge Laquindanum’s inaction was that she questioned his affiliation with the Integrated Bar of the
Philippines (IBP) Cotabato City Chapter, and required him to be a member of IBP Kidapawan City Chapter and to obtain a
Certification of Payments from the latter chapter. Because of this, he opted to withdraw his petition. After he withdrew
his petition, he claimed that Judge Laquindanum sent a clerk from her office to ask him to return his petition, but he did
not oblige because at that time he already had a Commission for Notary Public10 issued by Executive Judge Reno E.
Concha of the Regional Trial Court, Branch 14, Cotabato City.

Atty. Quintana lamented that he was singled out by Judge Laquindanum, because the latter immediately issued notarial
commissions to other lawyers without asking for so many requirements. However, when it came to him, Judge
Laquindanum even tracked down all his pleadings; communicated with his clients; and disseminated information
through letters, pronouncements, and directives to court clerks and other lawyers to humiliate him and be ostracized by
fellow lawyers.
Atty. Quintana argued that he subscribed documents in his office at Midsayap, Cotabato; and Midsayap is part of the
Province of Cotabato. He contended that he did not violate any provision of the 2004 Rules on Notarial Practice, because
he was equipped with a notarial commission. He maintained that he did not act outside the province of Cotabato since
Midsayap, Cotabato, where he practices his legal profession and subscribes documents, is part of the province of
Cotabato. He claimed that as a lawyer of good moral standing, he could practice his legal profession in the entire
Philippines.

Atty. Quintana further argued that Judge Laquindanum had no authority to issue such directive, because only Executive
Judge Reno E. Concha, who issued his notarial commission, and the Supreme Court could prohibit him from notarizing in
the Province of Cotabato.

In a Resolution dated March 21, 2006,11 we referred this case to the Office of the Bar Confidant (OBC) for investigation,
report and recommendation.

In the February 28, 2007 Hearing12 before the OBC presided by Atty. Ma. Crisitina B. Layusa (Hearing Officer), Judge
Laquindanum presented a Deed of Donation,13 which was notarized by Atty. Quintana in 2004.14 Honorata Rosil appears
as one of the signatories of the document as the donor’s wife. However, Honorata Rosil died on March 12, 2003, as
shown by the Certificate of Death15 issued by the Civil Registrar of Ibohon, Cotabato.

Judge Laquindanum testified that Atty. Quintana continued to notarize documents in the years 2006 to 2007 despite the
fact that his commission as notary public for and in the Province of Maguindanao and Cotabato City had already expired
on December 31, 2005, and he had not renewed the same.16 To support her claim, Judge Laquindanum presented the
following: (1) Affidavit of Loss [of] Title17 executed by Betty G. Granada with subscription dated April 8, 2006 at Cotabato
City; (2) Certificate of Candidacy18 of Mr. Elias Diosanta Arabis with subscription dated July 18, 2006; (3) Affidavit of Loss
[of] Driver’s License19 executed by Anecito C. Bernabe with subscription dated February 20, 2007 at Midsayap, Cotabato;
and (4) Affidavit of Loss20 executed by Santos V. Magbanua with subscription dated February 22, 2007 at Midsayap,
Cotabato.

For his part, Atty. Quintana admitted that all the signatures appearing in the documents marked as exhibits of Judge
Laquindanum were his except for the following: (1) Affidavit of Loss of ATM Card21 executed by Kristine C. Guro; and (2)
Affidavit of Loss of Driver’s License22 executed by Elenita D. Ballentes; and (3) Affidavit of Loss23 executed by Santos V.
Magbanua. He explained that those documents were signed by his wife and were the result of an entrapment operation
of Judge Laquindanum: to let somebody bring and have them notarized by his wife, when they knew that his wife is not
a lawyer. He also denied the he authorized his wife to notarize documents. According to him, he slapped his wife and
told her to stop doing it as it would ruin his profession.

Atty. Quintana also claimed that Judge Laquindanum did not act on his petition, because he did not comply with her
requirements for him to transfer his membership to the Kidapawan Chapter, wherein her sister, Atty. Aglepa, is the IBP
President.

On the one hand, Judge Laquindanum explained that she was only performing her responsibility and had nothing against
Atty. Quintana. The reason why she did not act on his petition was that he had not paid his IBP dues, 24which is a
requirement before a notarial commission may be granted. She told his wife to secure a certification of payment from
the IBP, but she did not return.

This was denied by Atty. Quintana, who claimed that he enclosed in his Response the certification of good standing and
payments of his IBP dues. However, when the same was examined, there were no documents attached thereto. Due to
oversight, Atty. Quintana prayed that he be given time to send them later which was granted by the Hearing Officer.

Finally, Atty. Quintana asked for forgiveness for what he had done and promised not to repeat the same. He also asked
that he be given another chance and not be divested of his privilege to notarize, as it was the only bread and butter of
his family.
On March 5, 2007, Atty. Quintana submitted to the OBC the documents25 issued by the IBP Cotabato City Chapter to
prove that he had paid his IBP dues.

In a Manifestation26 dated March 9, 2007, Judge Laquindanum submitted a Certification27 and its entries show that Atty.
Quintana paid his IBP dues for the year 2005 only on January 9, 2006 per Official Receipt (O.R.) No. 610381. Likewise, the
arrears of his IBP dues for the years 1993, 1995, 1996, and 1998 to 2003 were also paid only on January 9, 2006 per O.R.
No. 610387. Hence, when he filed his petition for notarial commission in 2004, he had not yet completely paid his IBP
dues.

In its Report and Recommendation,28 the OBC recommended that Atty. Quintana be disqualified from being appointed
as a notary public for two (2) years; and that if his notarial commission still exists, the same should be revoked for two
(2) years. The OBC found the defenses and arguments raised by Atty. Quintana to be without merit, viz:

Apparently, respondent has extended his notarial acts in Midsayap and Kabacan, Cotabato, which is already outside his
territorial jurisdiction to perform as Notary Public.

Section 11 of the 2004 Rules on Notarial Practice provides, thus:

"Jurisdiction and Term – A person commissioned as notary public may perform notarial acts in any place within the
territorial jurisdiction of the commissioning court for a period of two (2) years commencing the first day of January of
the year in which the commissioning court is made, unless earlier revoked [or] the notary public has resigned under
these Rules and the Rules of Court.

Under the rule[,] respondent may perform his notarial acts within the territorial jurisdiction of the commissioning
Executive Judge Concha, which is in Cotabato City and the [P]rovince of Maguindanao only. But definitely he cannot
extend his commission as notary public in Midsayap or Kabacan and in any place of the province of Cotabato as he is not
commissioned thereat to do such act. Midsayap and Kabacan are not part of either Cotabato City or [P]rovince of
Maguindanao but part of the province of North Cotabato. Thus, the claim of respondent that he can exercise his notarial
commission in Midsayap, Cotabato because Cotabato City is part of the province of Cotabato is absolutely devoid of
merit.

xxxx

Further, evidence on record also shows that there are several documents which the respondent’s wife has herself
notarized. Respondent justifies that he cannot be blamed for the act of his wife as he did not authorize the latter to
notarize documents in his absence. According to him[,] he even scolded and told his wife not to do it anymore as it
would affect his profession.

In the case of Lingan v. Calubaquib et al., Adm. Case No. 5377, June 15, 2006 the Court held, thus:

"A notary public is personally accountable for all entries in his notarial register; He cannot relieve himself of this
responsibility by passing the buck to their (sic) secretaries"

A person who is commissioned as a notary public takes full responsibility for all the entries in his notarial register.
Respondent cannot take refuge claiming that it was his wife’s act and that he did not authorize his wife to notarize
documents. He is personally accountable for the activities in his office as well as the acts of his personnel including his
wife, who acts as his secretary.

Likewise, evidence reveals that respondent notarized in 2004 a Deed of Donation (Rollo, p. 79) wherein, (sic) Honorata
Rosel (Honorata Rosil) one of the affiants therein, was already dead at the time of notarization as shown in a Certificate
of Death (Rollo, p.80) issued by the Civil Registrar General of Libungan, Cotabato.

Sec. 2, (b), Rule IV of the 2004 Rules on Notarial Practice provides, thus[:]
"A person shall not perform a notarial act if the person involved as signatory to the instrument or document (1) is not in
the notary’s presence personally at the time of the notarization; and (2) is not personally known to the notary public
through competent evidence of identity as defined by these Rules."

Clearly, in notarizing a Deed of Donation without even determining the presence or qualifications of affiants therein,
respondent only shows his gross negligence and ignorance of the provisions of the 2004 Rules on Notarial Practice.

xxxx

Furthermore, respondent claims that he, being a lawyer in good standing, has the right to practice his profession
including notarial acts in the entire Philippines. This statement is barren of merit.

While it is true that lawyers in good standing are allowed to engage in the practice of law in the Philippines.(sic)
However, not every lawyer even in good standing can perform notarial functions without having been commissioned as
notary public as specifically provided for under the 2004 Rules on Notarial Practice. He must have submitted himself to
the commissioning court by filing his petition for issuance of his notarial (sic) Notarial Practice. The commissioning court
may or may not grant the said petition if in his sound discretion the petitioner does not meet the required qualifications
for [a] Notary Public. Since respondent herein did not submit himself to the procedural rules for the issuance of the
notarial commission, he has no reason at all to claim that he can perform notarial act[s] in the entire country for lack of
authority to do so.

Likewise, contrary to the belief of respondent, complainant being the commissioning court in Midsayap, Cotabato has
the authority under Rule XI of the 2004 Rules on Notarial Practice to monitor the duties and responsibilities including
liabilities, if any, of a notary public commissioned or those performing notarial acts without authority in her territorial
jurisdiction.29

xxxx

We adopt the findings of the OBC. However, we find the penalty of suspension from the practice of law for six (6)
months and revocation and suspension of Atty. Quintana's notarial commission for two (2) years more appropriate
considering the gravity and number of his offenses.

After a careful review of the records and evidence, there is no doubt that Atty. Quintana violated the 2004 Rules on
Notarial Practice and the Code of Professional Responsibility when he committed the following acts: (1) he notarized
documents outside the area of his commission as a notary public; (2) he performed notarial acts with an expired
commission; (3) he let his wife notarize documents in his absence; and (4) he notarized a document where one of the
signatories therein was already dead at that time.

The act of notarizing documents outside one’s area of commission is not to be taken lightly. Aside from being a violation
of Sec. 11 of the 2004 Rules on Notarial Practice, it also partakes of malpractice of law and falsification. 30Notarizing
documents with an expired commission is a violation of the lawyer’s oath to obey the laws, more specifically, the 2004
Rules on Notarial Practice. Since the public is deceived into believing that he has been duly commissioned, it also
amounts to indulging in deliberate falsehood, which the lawyer's oath proscribes.31 Notarizing documents without the
presence of the signatory to the document is a violation of Sec. 2(b)(1), Rule IV of the 2004 Rules on Notarial
Practice,32 Rule 1.01 of the Code of Professional Responsibility, and the lawyer’s oath which unconditionally requires
lawyers not to do or declare any falsehood. Finally, Atty. Quintana is personally accountable for the documents that he
admitted were signed by his wife. He cannot relieve himself of liability by passing the blame to his wife. He is, thus,
guilty of violating Canon 9 of the Code of Professional Responsibility, which requires lawyers not to directly or indirectly
assist in the unauthorized practice of law.

All told, Atty. Quintana fell miserably short of his obligation under Canon 7 of the Code of Professional Responsibility,
which directs every lawyer to uphold at all times the integrity and dignity of the legal profession.
That Atty. Quintana relies on his notarial commission as the sole source of income for his family will not serve to lessen
the penalty that should be imposed on him. On the contrary, we feel that he should be reminded that a notarial
commission should not be treated as a money-making venture. It is a privilege granted only to those who are qualified to
perform duties imbued with public interest. As we have declared on several occasions, 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. The protection of that interest necessarily requires that those not qualified or
authorized to act must be prevented from imposing upon the public, the courts, and the administrative offices in
general. It must be underscored that notarization by a notary public converts a private document into a public
document, making that document admissible in evidence without further proof of the authenticity thereof.33

IN VIEW WHEREOF, the notarial commission of Atty. Nestor Q. Quintana, if still existing, is hereby REVOKED, and he is
DISQUALIFIED from being commissioned as notary public for a period of two (2) years. He is also SUSPENDED from the
practice of law for six (6) months effective immediately, with a WARNING that the repetition of a similar violation will be
dealt with even more severely. He is DIRECTED to report the date of his receipt of this Decision to enable this Court to
determine when his suspension shall take effect.1avvphi1

Let a copy of this decision be entered in the personal records of respondent as a member of the Bar, and copies
furnished the Bar Confidant, the Integrated Bar of the Philippines, and the Court Administrator for circulation to all
courts in the country.

SO ORDERED.
Adm. Case No. 5436 May 27, 2004

ALFREDO BON, complainant, vs.ATTYS. VICTOR S. ZIGA and ANTONIO A. ARCANGEL, respondents.

DECISION

TINGA, J.:

On May 9, 2001, Alfredo Bon (complainant) filed a Complaint1 dated April 3, 2001 for disbarment against the
respondents, Attys. Victor S. Ziga (Ziga) and Antonio A. Arcangel (Arcangel). Allegedly, the respondents, conspiring with
each other and with the use of fraud, intimidation, stealth, deception and monetary consideration, caused Amalia Bon-
Padre Borjal, Teresa Bon-Padre Patenio, Felecito Bon and Angelina Bon (collectively, the Bons) to sign a document
entitled Waiver and Quitclaim. According to the complainant, the Bons signed the Waiver and Quitclaim because of
Ziga’s representation that the document was merely a withdrawal of a previously executed Special Power of Attorney.
As it turned out, the document was a waiver in favor of Ziga of all the properties which the Bons inherited from their
parents and predecessors-in-interest. Attached to the Complaint are Affidavits2 executed by the Bons renouncing
the Waiver and Quitclaim.

Moreover, the complainant claims that the Bons are residents of Manila and did not appear before Arcangel who was
then in Albay to acknowledge the Waiver and Quitclaim. Despite this fact, Arcangel notarized the document and even
made it appear that the Bons personally appeared before him to acknowledge the same.

On November 20, 2001, the respondents filed their Joint Comment3 dated October 6, 2001. According to them, the
allegations in the Complaint that the Bons did not understand the contents of the Waiver and Quitclaim and that they
did not personally appear to acknowledge the same before Arcangel indicate that the cause of action is based on alleged
intrinsic defects in the document. As such, only the parties to the document, i.e., the Bons, whose rights were violated
can file the Complaint. Being a stranger to the allegedly defective document, the complainant cannot file
the Complaint. Besides, Maria Bon Borjal and Rafael Bon-Canafe who are co-signatories to the Waiver and
Quitclaim both declared in their Joint Affidavit4 that Ziga thoroughly explained the contents of the Waiver and
Quitclaim to the Bons before they signed the document. The subscribing witnesses, Rogelio Bon-Borjal and Nida
Barrameda, also declared in their Joint Affidavit5 that the contents of the document were explained to the signatories.

The respondents also aver that it is difficult to believe that the Bons did not understand the contents of the document
they were signing since Amalia and Angelina Bon are both high school graduates, while Teresa Bon is a college
graduate.6 Further, the fact that the Bons admit having accepted ₱5,000.00 from Ziga to sign the Waiver and
Quitclaim precludes them from questioning the document.

For Arcangel’s part, he explains that assuming that he notarized the Waiver and Quitclaim in the absence of the
signatories, his act is merely a violation of the Notarial Law but not a ground for disbarment. He further avers that he
was able to talk to Maria Bon and Rafael Bon-Canafe, both co-signatories to the document, over the phone. Maria Bon
and Rafael Bon-Canafe allegedly declared that they signed the Waiver and Quitclaim. The two, in fact, personally
delivered the document for notarization in his office. Thus, he posits that there was substantial compliance with the
Notarial Law since a notary public’s primordial undertaking is merely to ensure that the signatures on a document are
genuine. As long as they are so, the notary public can allegedly take the risk of notarizing the document although the
signatories are not present.

In conclusion, the respondents aver that the complainant must first prove that the Waiver and Quitclaim is defective
before he can file an administrative case against them.

The complainant filed a Reply, Opposition and Comment to Joint Comment of Respondents7 dated April 5, 2001 asserting
that he has a right to complain over the acquisition of the properties subject of the Waiver and Quitclaimhaving been
mentioned therein. He also avers that he has the right to inform the Court of the deception committed by the
respondents. He further states that the Bons signed the document after having been deceived and intimidated by Ziga
who, he claims, exercises moral ascendancy over the Bons. That the Bons are educated does not necessarily mean they
could not have been intimidated and deceived. He maintains that the Bons were misled into believing that what they
were signing was a withdrawal of a previously issued Special Power of Attorney and were given ₱5,000.00 each to
induce them to sign the Waiver and Quitclaim.

Even assuming that the signatures appearing on the Waiver and Quitclaim are genuine, he asserts that it was still highly
irregular for Arcangel to notarize the document by telephone when it could have been notarized in Manila where the
signatories reside. Lastly, he avers that it is not necessary for a court to declare that the Waiver and Quitclaim is
defective before the instant administrative case can proceed.

The respondents filed their Comment on Complainant’s Reply8 dated April 12, 2002 alleging that in his reply, the
complainant changed his cause of action from fraud and deception to intimidation and moral ascendancy. According to
them, the complainant is incompetent to charge Ziga with intimidation as he was not a party to the document and was
not even present when it was executed. The respondents insist that the only instance when anyone can file a
disbarment complaint against a lawyer is when the ground therefore is a public offense like immorality, misbehavior,
betrayal of trust and the like. When, as in the instant case, the parties to the alleged defective document have not
formally impugned the document themselves, no one else can.

In the Court’s Resolution9 dated July 22, 2002, we referred the case to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation. Citing the Report and Recommendation10 dated November 7, 2002 of its
Investigating Commissioner, the IBP passed Resolution No. XV-2002-60411 on December 14, 2002 dismissing
the Complaint for lack of merit. According to the Report and Recommendation, the Bons’ failure to file the appropriate
action to set aside the Waiver and Quitclaim casts doubt on their claim that Ziga misled or deceived them into signing
the document. As regards Arcangel, the IBP concluded that while he may have been remiss in his duties as a notary
public, the same does not constitute a ground for disbarment.

The complainant filed a Motion for Reconsideration12 dated February 24, 2003 which the IBP denied in Resolution No.
XV-2003-14913 issued on March 22, 2003 since it no longer has jurisdiction to consider and resolve a matter already
endorsed to the Supreme Court. The complainant then filed with this Court a Motion for Re-Examination of the Report
and Recommendation of the Investigating Commissioner of the Integrated Bar of the Philippines14 dated September 10,
2003 mainly rehashing his claim that the respondents induced the Bons to sign the Waiver and Quitclaim by means of
deceit and abuse of moral ascendancy.

We are hard put to ascribe to Ziga the fraud, intimidation, stealth and deception with which the complainant labels his
actuations. The fact that Amalia and Angelina Bon are both high school graduates, while Teresa Bon is a college
graduate15 makes it difficult to believe that they were deceived into thinking that the contents of the Waiver and
Quitclaim were other than what they themselves could have easily ascertained from

a reading of the document. As held by the Court in Bernardo v. Court of Appeals:16

…The rule that one who signs a contract is presumed to know its contents has been applied even to contracts of
illiterate persons on the ground that if such persons are unable to read, they are negligent if they fail to have the
contract read to them. If a person cannot read the instrument, it is as much his duty to procure some reliable
persons to read and explain it to him, before he signs it, as it would be to read it before he signed it if he were
able to do so and his failure to obtain a reading and explanation of it is such gross negligence as will estop him
from avoiding it on the ground that he was ignorant of its contents…17

Besides, the Waiver and Quitclaim is plainly worded. It does not contain complicated terms that might be misconstrued
by anyone who has half the education attained by Amalia, Angelina and Teresa Bon. Moreover, the Bons admitted
therein that in 1930, their predecessors sold to the Ziga family the properties to which they now lay claim. They also
declared in the document that it was only their brother, Alfredo, the complainant in this case, who still claimed rights
over the properties. The relevant provisions of the Waiver and Quitclaim state:
 …1. We are heirs and direct descendants of the late Santiago Bon of Tabaco, Albay;

2. We had been named as formal parties in DARAB Case No. V-RC-010, Albay Branch 11 ’99 entitled Virginia
Desuyo, et al. vs. Alfredo Bon, et al.;

3. We admit that, we the descendants and relatives of the late Santiago Bon do not have any right or interest
anymore over Lots No. 1911, 1917-A, 1917-B, 1970, 1988, all of Tabaco, Cadastre, because the above lots had
been already sold by our predecessor in favor of the Ziga Family, predecessor of Ex-Senator Victor Ziga since
1930, and that the above family had been continuously in possession thereof, thru their tenants since 1930, or
for more than 70 years already, to our exclusion;

4. It is only our brother, Alfredo Bon, who adamantly refuses to admit the above fact and still claim rights over
said properties despite the explanation of our ancestors that the above mentioned lots had been long sold by
our predecessor to the Zigas…18

Significantly, as pointed out by the Investigating Commissioner, the Bons have not filed the appropriate action to set
aside the Waiver and Quitclaim. The complainant, however, explains that they "will pursue that the Waiver and Quit
Claim be annulled by the court"19 in Civil Case No. T-2163 pending with the Regional Trial Court Branch 18, Tabaco City.
That they have yet to do so almost four (4) years after the execution of the Waiver and Quitclaim diminishes, if not
totally discredits, their position that they were defrauded, intimidated and deceived into signing the document.

At this time, all that the complainant offers to boost his claim that Ziga employed deceit in procuring the Bons’
signatures are the latter’s bare allegations to the effect that Ziga told them there was nothing wrong with the document
except that they were withdrawing the Special Power of Attorney. These allegations are belied by the Joint Affidavit20 of
Maria Bon-Borjal and Rafael Bon-Canafe, the Bons’ co-signatories, and the Joint

Affidavit21 of Rogelio Bon Borjal and Nida Barrameda, the subscribing witnesses to the Waiver and Quitclaim, both of
which assert that the contents of the document were sufficiently explained to the Bons.

Given these circumstances, the presumptions that a person takes ordinary care of his concerns;22 that private
transactions have been fair and regular;23 and that acquiescence resulted from a belief that the thing acquiesced in was
conformable to the law or fact24 have not been sufficiently overcome.

However, we do find the act of Arcangel in notarizing the Waiver and Quitclaim without requiring all the persons who
executed the document to personally

appear before him and acknowledge that the same is their free act and deed an unpardonable breach of his duty as a
notary public.

Section 1 of Public Act No. 2103 provides:

(a) The acknowledgement shall be made before a notary public or an officer duly authorized by law of the
country to take acknowledgements of instruments or documents in the place where the act is done. The notary
public or the officer taking the acknowledgement shall certify that the person 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 the official seal, if he is by law required to keep a seal,
and if not, his certificate shall so state.25

The Acknowledgement contained in the Waiver and Quitclaim executed in Ziga’s house in Manila specifically states:
"BEFORE ME, a Notary Public, for and in the above mentioned locality personally appeared…"26 However, the Bons did
not personally appear before Arcangel to acknowledge the document. Arcangel himself admits as much but posits that
he was able to talk to the Bons’ co-signatories over the phone, i.e., Maria Bon and Rafael Bon-Canafe, and that the two
promised to bring the document to Albay for notarization. Hence, Arcangel claims that there was substantial compliance
with the Notarial Law. He adds that as long as the signatures on the instrument are genuine, the notary public can take
the risk of notarizing the document although the signatories are not present.

Arcangel seems to be laboring under a misguided understanding of the basic principles of the Notarial Law. It is well to
remind him that 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 acknowledgement 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.27

Thus, a member of the bar who performs an act as a notary public should not notarize a document unless the persons
who signed the same are the very same persons who executed and personally appeared before him to attest to the
contents and truth of what are stated therein. The acts of the affiants cannot be delegated to anyone for what are
stated therein are facts of which they have personal knowledge. They should swear to the document personally and not
through any representative. Otherwise, their representative’s name should appear in the said documents as the one
who executed the same. That is the only time the representative can affix his signature and personally appear before the
notary public for notarization of the said document.28 Simply put, the party or parties who executed the instrument
must be the ones to personally appear before the Notary Public to acknowledge the document.29

From his admission, we find that Arcangel failed to exercise due diligence in upholding his duty as a notary public. He
violated Rules 1.0130 and 10.0131 of the Code of Professional Responsibility as well. However, his transgression does not
warrant disbarment, which is the severest form of disciplinary sanction.

In Ocampo v. Yrreverre,32 the Court, taking note of the remorseful attitude of the respondent who was found guilty of
breach of the notarial law for notarizing a document in the absence of the signatories, revoked his notarial commission
for a period of two (2) years and suspended him from the practice of law for six (6) months.

WHEREFORE, the Complaint filed against Atty. Victor S. Ziga is DISMISSED for lack of merit.

As regards Atty. Antonio A. Arcangel, his commission as Notary Public, if still existing, is REVOKED. He is DISQUALIFIED
from being commissioned as such for a period of two (2) years. He is also SUSPENDED from the practice of law for six (6)
months effective immediately, with a WARNING that a repetition of a similar violation will be dealt with even more
severely. He is further DIRECTED to report the date of his receipt of this Decision to the Court within five (5) days from
such receipt.

The Clerk of Court of this Court is DIRECTED to immediately circularize this Decision for the proper guidance of all
concerned.

Let copies of this Decision be furnished the Office of the Bar Confidant and the Integrated Bar of the Philippines and
recorded in the personal files of the respondents.

SO ORDERED.
A.C. No. 5838 January 17, 2005

SPOUSES BENJAMIN SANTUYO AND EDITHA SANTUYO, complainants, vs.ATTY. EDWIN A. HIDALGO, respondent.

RESOLUTION

CORONA, J.:

In a verified complaint-affidavit dated September 18, 2001,1 spouses Benjamin Santuyo and Editha Santuyo accused
respondent Atty. Edwin A. Hidalgo of serious misconduct and dishonesty for breach of his lawyer’s oath and the notarial
law.

Complainants stated that sometime in December 1991, they purchased a parcel of land covered by a deed of sale. The
deed of sale was allegedly notarized by respondent lawyer and was entered in his notarial register as Doc. No. 94 on
Page No. 19 in Book No. III, Series of 1991. Complainant spouses averred that about six years after the date of
notarization, they had a dispute with one Danilo German over the ownership of the land. The case was estafathrough
falsification of a public document.

During the trial of the case, German presented in court an affidavit executed by respondent denying the authenticity of
his signature on the deed of sale. The spouses allegedly forged his notarial signature on said deed.2

According to complainants, respondent overlooked the fact that the disputed deed of sale contained all the legal
formalities of a duly notarized document, including an impression of respondent’s notarial dry seal. Not being persons
who were learned in the technicalities surrounding a notarial act, spouses contended that they could not have forged
the signature of herein respondent. They added that they had no access to his notarial seal and notarial register, and
could not have made any imprint of respondent’s seal or signature on the subject deed of sale or elsewhere.3

In his answer4 to the complaint, respondent denied the allegations against him. He denied having notarized any deed of
sale covering the disputed property. According to respondent, he once worked as a junior lawyer at Carpio General and
Jacob Law Office where he was asked to apply for a notarial commission. While he admitted that he notarized several
documents in that office, these, however, did not include the subject deed of sale. He explained that, as a matter of
office procedure, documents underwent scrutiny by the senior lawyers and it was only when they gave their approval
that notarization was done. He claimed that, in some occasions, the secretaries in the law firm, by themselves, would
affix the dry seal of the junior associates on documents relating to cases handled by the law firm. Respondent added
that he normally required the parties to exhibit their community tax certificates and made them personally acknowledge
the documents before him as notary public. He would have remembered complainants had they actually appeared
before him. While he admitted knowing complainant Editha Santuyo, he said he met the latter’s husband and co-
complainant only on November 5, 1997, or about six years from the time that he purportedly notarized the deed of sale.
Moreover, respondent stressed that an examination of his alleged signature on the deed of sale revealed that it was
forged; the strokes were smooth and mild.l^vvphi1.net He suspected that a lady was responsible for forging his
signature.

To further refute the accusations against him, respondent stated that, at the time the subject deed of sale was
supposedly notarized, on December 27, 1991, he was on vacation. He surmised that complainants must have gone to
the law office and enticed one of the secretaries, with the concurrence of the senior lawyers, to notarize the document.
He claimed he was a victim of a criminal scheme motivated by greed.

The complaint was referred to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.
In a report5 it submitted to the Court, the IBP noted that the alleged forged signature of respondent on the deed of sale
was different from his signatures in other documents he submitted during the investigation of the present
case.6 However, it ruled that respondent was also negligent because he allowed the office secretaries to perform his
notarial functions, including the safekeeping of his notarial dry seal and notarial register.7 It thus recommended:
WHEREFORE[,] in view of the foregoing, it is respectfully recommended that respondent’s commission as notary public
be revoked for two (2) years if he is commissioned as such; or he should not be granted a commission as notary public
for two (2) years upon receipt hereof.8

After going over the evidence submitted by the parties, complainants did not categorically state that they appeared
before respondent to have the deed of sale notarized. Their appearance before him could have bolstered this allegation
that respondent signed the document and that it was not a forgery as he claimed. The records show that complainants
themselves were not sure if respondent, indeed, signed the document; what they were sure of was the fact that his
signature appeared thereon. They had no personal knowledge as well as to who actually affixed the signature of
respondent on the deed.1awphi1.nét

Furthermore, complainants did not refute respondent’s contention that he only met complainant Benjamin Santuyo six
years after the alleged notarization of the deed of sale. Respondent’s assertion was corroborated by one Mrs. Lyn Santy
in an affidavit executed on November 17, 20019 wherein she stated that complainant Editha Santuyo had to invite
respondent to her house on November 5, 1997 to meet her husband since the two had to be introduced to each other.
The meeting between complainant Benjamin Santuyo and respondent was arranged after the latter insisted that Mr.
Santuyo personally acknowledge a deed of sale concerning another property that the spouses bought.

In finding respondent negligent in performing his notarial functions, the IBP reasoned out:

xxx xxx xxx.

Considering that the responsibility attached to a notary public is sensitive respondent should have been more discreet
and cautious in the execution of his duties as such and should not have wholly entrusted everything to the secretaries;
otherwise he should not have been commissioned as notary public.

For having wholly entrusted the preparation and other mechanics of the document for notarization to the secretary
there can be a possibility that even the respondent’s signature which is the only one left for him to do can be done by
the secretary or anybody for that matter as had been the case herein.

As it is respondent had been negligent not only in the supposed notarization but foremost in having allowed the office
secretaries to make the necessary entries in his notarial registry which was supposed to be done and kept by him alone;
and should not have relied on somebody else.10

WHEREFORE, respondent Atty. Edwin A. Hidalgo is hereby found GUILTY of negligence in the performance of his duties
as notary public and is hereby SUSPENDED from his commission as a notary public for a period of two years, if he is
commissioned, or if he is not, he is disqualified from an appointment as a notary public for a period of two years from
finality of this resolution, with a warning that a repetition of similar negligent acts would be dealt with more severely.

SO ORDERED.
A.C. No. 6010 August 28, 2006

ST. LOUIS UNIVERSITY LABORATORY HIGH SCHOOL (SLU-LHS) FACULTY and STAFF, Complainant,vs.ATTY. ROLANDO C.
DELA CRUZ, Respondent.

DECISION

CHICO-NAZARIO, J.:

This is a disbarment case filed by the Faculty members and Staff of the Saint Louis University-Laboratory High School
(SLU-LHS) against Atty. Rolando C. Dela Cruz, principal of SLU-LHS, predicated on the following grounds:

1) Gross Misconduct:
From the records of the case, it appears that there is a pending criminal case for child abuse allegedly committed by him
against a high school student filed before the Prosecutor’s Office of Baguio City; a pending administrative case filed by
the Teachers, Staff, Students and Parents before an Investigating Board created by SLU for his alleged unprofessional
and unethical acts of misappropriating money supposedly for the teachers; and the pending labor case filed by SLU-LHS
Faculty before the NLRC, Cordillera Administrative Region, on alleged illegal deduction of salary by respondent.
2) Grossly Immoral Conduct:
In contracting a second marriage despite the existence of his first marriage; and
3) Malpractice:
In notarizing documents despite the expiration of his commission.
According to complainant, respondent was legally married to Teresita Rivera on 31 May 1982 at Tuba, Benguet, before
the then Honorable Judge Tomas W. Macaranas. He thereafter contracted a subsequent marriage with one Mary Jane
Pascua, before the Honorable Judge Guillermo Purganan. On 4 October 1994, said second marriage was subsequently
annulled for being bigamous.
On the charge of malpractice, complainant alleged that respondent deliberately subscribed and notarized certain legal
documents on different dates from 1988 to 1997, despite expiration of respondent’s notarial commission on 31
December 1987. A Certification1 dated 25 May 1999 was issued by the Clerk of Court of Regional Trial Court (RTC),
Baguio City, to the effect that respondent had not applied for commission as Notary Public for and in the City of Baguio
for the period 1988 to 1997. Respondent performed acts of notarization, as evidenced by the following documents:
1. Affidavit of Ownership2 dated 8 March 1991, executed by Fernando T. Acosta, subscribed and sworn to before
Rolando Dela Cruz;
2. Affidavit3 dated 26 September 1992, executed by Maria Cortez Atos, subscribed and sworn to before Rolando Dela
Cruz;
3. Affidavit4 dated 14 January 1992, executed by Fanolex James A. Menos, subscribed and sworn to before Rolando Dela
Cruz;
4. Affidavit5 dated 23 December 1993, executed by Ponciano V. Abalos, subscribed and sworn to before Rolando Dela
Cruz;
5. Absolute Date of Sale6 dated 23 June 1993, executed by Danilo Gonzales in favor of Senecio C. Marzan, notarized by
Rolando Dela Cruz;
6. Joint Affidavit By Two Disinherited Parties7 dated 5 March 1994, executed by Evelyn C. Canullas and Pastora C.
Tacadena, subscribed and sworn to before Rolando Dela Cruz;
7. Sworn Statement8 dated 31 May 1994, executed by Felimon B. Rimorin, subscribed and sworn to before Rolando Dela
Cruz;
8. Deed of Sale9 dated 17 August 1994, executed by Woodrow Apurado in favor of Jacinto Batara, notarized by Rolando
Dela Cruz;
9. Joint Affidavit by Two Disinterested Parties10 dated 1 June 1994, executed by Ponciano V. Abalos and Arsenio C.
Sibayan, subscribed and sworn to before Rolando Dela Cruz;
10. Absolute Deed of Sale11 dated 23 March 1995, executed by Eleanor D.Meridor in favor of Leonardo N. Benter,
notarized by Rolando Dela Cruz;
11. Deed of Absolute Sale12 dated 20 December 1996, executed by Mandapat in favor of Mario R. Mabalot, notarized by
Rolando Dela Cruz;
12. Joint Affidavit By Two Disinterested Parties13 dated 17 April 1996, executed by Villiam C. Ambong and Romeo L.
Quiming, subscribed and sworn to before Rolando Dela Cruz;
13. Conditional Deed of Sale14 dated 27 February 1997, executed by Aurelia Demot Cados in favor of Jose Ma. A.
Pangilinan, notarized by Rolando Dela Cruz;
14. Memorandum of Agreement15 dated 19 July 1996, executed by JARCO represented by Mr. Johnny Teope and AZTEC
Construction represented by Mr. George Cham, notarized by Rolando Dela Cruz.

Quite remarkably, respondent, in his comment, denied the charges of child abuse, illegal deduction of salary and others
which are still pending before the St. Louis University (SLU), National Labor Relations Commission (NLRC) and the
Prosecutor’s Office. He did not discuss anything about the allegations of immorality in contracting a second marriage
and malpractice in notarizing documents despite the expiration of his commission.

After the filing of comment, We referred16 the case to the Integrated Bar of the Philippines (IBP), for investigation,
report and recommendation.

The IBP conducted the mandatory preliminary conference.

The complainants, thereafter, submitted their position paper which is just a reiteration of their allegations in their
complaint.

Respondent, on his part, expressly admitted his second marriage despite the existence of his first marriage, and the
subsequent nullification of the former. He also admitted having notarized certain documents during the period when his
notarial commission had already expired. However, he offered some extenuating defenses such as good faith, lack of
malice and noble intentions in doing the complained acts.

After the submission of their position papers, the case was deemed submitted for resolution.

On 30 March 2005, Commissioner Acerey C. Pacheco submitted his report and recommended that:

WHEREFORE, premises considered, it is respectfully recommended that respondent be administratively penalized for the
following acts:

a. For contracting a second marriage without taking the appropriate legal steps to have the first marriage annulled first,
he be suspended from the practice of law for one (1) year, and

b. For notarizing certain legal documents despite full knowledge of the expiration of his notarial commission, he be
suspended from the practice of law for another one (1) year or for a total of two (2) years.17

On 17 December 2005, the IBP Board of Governors, approved and adopted the recommendation of Commissioner
Pacheco, thus:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the
Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex "A" and, finding the
recommendation fully supported by the evidence on record and the applicable laws and rules, and considering that
Respondent contracted a second marriage without taking appropriate legal steps to have the first marriage annulled,
Atty. Rolando C. dela Cruz is hereby SUSPENDED from the practice of law for one (1) year and for notarizing legal
documents despite full knowledge of the expiration of his notarial commission Atty. Rolando C. dela Cruz is SUSPENDED
from the practice of law for another one (1) year, for a total of two (2) years Suspension from the practice of law.18

This Court finds the recommendation of the IBP to fault respondent well taken, except as to the penalty contained
therein.
At the threshold, it is worth stressing that the practice of law is not a right but a privilege bestowed by the State on
those who show that they possess the qualifications required by law for the conferment of such privilege. Membership
in the bar is a privilege burdened with conditions. A lawyer has the privilege and right to practice law only during good
behavior, and he can be deprived of it for misconduct ascertained and declared by judgment of the court after
opportunity to be heard has been afforded him. Without invading any constitutional privilege or right, an attorney’s
right to practice law may be resolved by a proceeding to suspend, based on conduct rendering him unfit to hold a license
or to exercise the duties and responsibilities of an attorney. It must be understood that the purpose of suspending or
disbarring him as an attorney is to remove from the profession a person whose misconduct has proved him unfit to be
entrusted with the duties and responsibilities belonging to an office of attorney and, thus, to protect the public and
those charged with the administration of justice, rather than to punish an attorney. Elaborating on this, we said on
Maligsa v. Atty. Cabanting,19 that the Bar should maintain a high standard of legal proficiency as well as of honesty and
fair dealing. A lawyer brings honor to the legal profession by faithfully performing his duties to society, to the bar, to the
courts and to his clients. A member of the legal fraternity should refrain from doing any act which might lessen in any
degree the confidence and trust reposed by the public in the fidelity, honesty and integrity of the legal profession.
Towards this end, an attorney may be disbarred or suspended for any violation of his oath or of his duties as an attorney
and counselor, which include statutory grounds enumerated in Section 27, Rule 138 of the Rules of Court, all of these
being broad enough to cover practically any misconduct of a lawyer in his professional or private capacity.

Equally worthy of remark is that the law profession does not prescribe a dichotomy of standards among its members.
There is no distinction as to whether the transgression is committed in the lawyer’s professional capacity or in his
private life. This is because a lawyer may not divide his personality so as to be an attorney at one time and a mere citizen
at another.20 Thus, not only his professional activities but even his private life, insofar as the latter may reflect
unfavorably upon the good name and prestige of the profession and the courts, may at any time be the subject of
inquiry on the part of the proper authorities.21

One of the conditions prior to admission to the bar is that an applicant must possess good moral character. Possession
of such moral character as requirement to the enjoyment of the privilege of law practice must be continuous.
Otherwise, "membership in the bar may be terminated when a lawyer ceases to have good moral conduct."22

In the case at bench, there is no dispute that respondent and Teresita Rivera contracted marriage on 31 May 1982
before Judge Tomas W. Macaranas. In less than a year, they parted ways owing to their irreconcilable differences
without seeking judicial recourse. The union bore no offspring. After their separation in-fact, respondent never knew the
whereabouts of Teresita Rivera since he had lost all forms of communication with her. Seven years thereafter,
respondent became attracted to one Mary Jane Pascua, who was also a faculty member of SLU-LHS. There is also no
dispute over the fact that in 1989, respondent married Mary Jane Pascua in the Municipal Trial Court (MTC) of Baguio
City, Branch 68. Respondent even admitted this fact. When the second marriage was entered into, respondent’s prior
marriage with Teresita Rivera was still subsisting, no action having been initiated before the court to obtain a judicial
declaration of nullity or annulment of respondent’s prior marriage to Teresita Rivera or a judicial declaration of
presumptive death of Teresita Rivera.

Respondent was already a member of the Bar when he contracted the bigamous second marriage in 1989, having been
admitted to the Bar in 1985. As such, he cannot feign ignorance of the mandate of the law that before a second
marriage may be validly contracted, the first and subsisting marriage must first be annulled by the appropriate court.
The second marriage was annulled only on 4 October 1994 before the RTC of Benguet, Branch 9, or about five years
after respondent contracted his second marriage. The annulment of respondent’s second marriage has no bearing to the
instant disbarment proceeding. Firstly, as earlier emphasized, the annulment came after the respondent’s second
bigamous marriage. Secondly, as we held in In re: Almacen, a disbarment case is sui generis for it is neither purely civil
nor purely criminal but is rather an investigation by the court into the conduct of its officers. Thus, if the acquittal of a
lawyer in a criminal action is not determinative of an administrative case against him, or if an affidavit of withdrawal of a
disbarment case does not affect its course, then neither will the judgment of annulment of respondent’s second
marriage also exonerate him from a wrongdoing actually committed. So long as the quantum of proof - clear
preponderance of evidence - in disciplinary proceedings against members of the Bar is met, then liability attaches.23
Section 27, Rule 138 of the Rules of Court cites grossly immoral conduct as a ground for disbarment.

The Court has laid down with a common definition of what constitutes immoral conduct, vis-à-vis, grossly immoral
conduct. Immoral conduct is "that conduct which is willful, flagrant, or shameless, and which shows a moral indifference
to the opinion of the good and respectable members of the community" and what is "grossly immoral," that is, it must
be so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree."24

Undoubtedly, respondent’s act constitutes immoral conduct. But is it so gross as to warrant his disbarment? Indeed, he
exhibited a deplorable lack of that degree of morality required of him as a member of the Bar. In particular, he made a
mockery of marriage which is a sacred institution demanding respect and dignity. His act of contracting a second
marriage while the first marriage was still in place, is contrary to honesty, justice, decency and morality.25

However, measured against the definition, we are not prepared to consider respondent’s act as grossly immoral. This
finds support in the following recommendation and observation of the IBP Investigator and IBP Board of Governors,
thus:

The uncontested assertions of the respondent belies any intention to flaunt the law and the high moral standard of the
legal profession, to wit:

a. After his first failed marriage and prior to his second marriage or for a period of almost seven (7) years, he has not
been romantically involved with any woman;
b. His second marriage was a show of his noble intentions and total love for his wife, whom he described to be very
intelligent person;
c. He never absconded from his obligations to support his wife and child;
d. He never disclaimed paternity over the child and husbandry (sic) with relation to his wife;
e. After the annulment of his second marriage, they have parted ways when the mother and child went to Australia;
f. Since then up to now, respondent remained celibate.26

In the case of Terre v. Terre,27 respondent was disbarred because his moral character was deeply flawed as shown by the
following circumstances, viz: he convinced the complainant that her prior marriage to Bercenilla was null and void ab
initio and that she was legally single and free to marry him. When complainant and respondent had contracted their
marriage, respondent went through law school while being supported by complainant, with some assistance from
respondent’s parents. After respondent had finished his law course and gotten complainant pregnant, respondent
abandoned the complainant without support and without the wherewithal for delivering his own child safely to a
hospital.

In the case of Cojuangco, Jr. v. Palma,28 respondent was also disbarred for his grossly immoral acts such as: first, he
abandoned his lawful wife and three children; second, he lured an innocent young woman into marrying him; third, he
mispresented himself as a "bachelor" so he could contract marriage in a foreign land; and fourth, he availed himself of
complainant’s resources by securing a plane ticket from complainant’s office in order to marry the latter’s daughter. He
did this without complainant’s knowledge. Afterwards, he even had the temerity to assure complainant that "everything
is legal."

Such acts are wanting in the case at bar. In fact, no less than the respondent himself acknowledged and declared his
abject apology for his misstep. He was humble enough to offer no defense save for his love and declaration of his
commitment to his wife and child.

Based on the reasons stated above, we find the imposition of disbarment upon him to be unduly harsh. The power to
disbar must be exercised with great caution, and may be imposed only in a clear case of misconduct that seriously
affects the standing and character of the lawyer as an officer of the Court. Disbarment should never be decreed where
any lesser penalty could accomplish the end desired.29 In line with this philosophy, we find that a penalty of two years
suspension is more appropriate. The penalty of one (1) year suspension recommended by the IBP is too light and not
commensurate to the act committed by respondent.
As to the charge of misconduct for having notarized several documents during the years 1988-1997 after his commission
as notary public had expired, respondent humbly admitted having notarized certain documents despite his knowledge
that he no longer had authority to do so. He, however, alleged that he received no payment in notarizing said
documents.

It has been emphatically stressed that notarization is not an empty, meaningless, routinary act. On the contrary, it is
invested with substantive public interest, such that only those who are qualified or authorized may act as notaries
public. Notarization of a private document converts the document into a public one making it admissible in court
without further proof of its authenticity. A notarial document is by law entitled to full faith and credit upon its face and,
for this reason, notaries public must observe with the 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.30

The requirements for the issuance of a commission as notary public must not be treated as a mere casual formality. The
Court has characterized a lawyer’s act of notarizing documents without the requisite commission to do so as
"reprehensible, constituting as it does not only malpractice but also x x x the crime of falsification of public
documents."31

The Court had occasion to state that where the notarization of a document is done by a member of the Philippine Bar at
a time when he has no authorization or commission to do so, the offender may be subjected to disciplinary action or
one, performing a notarial act without such commission is a violation of the lawyer’s oath to obey the laws, more
specifically, the Notarial Law. Then, too, by making it appear that he is duly commissioned when he is not, he is, for all
legal intents and purposes, indulging in deliberate falsehood, which the lawyer’s oath similarly proscribes. These
violations fall squarely within the prohibition of Rule 1.01 of Canon 1 of the Code of Professional Responsibility, which
provides: "A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct." By acting as a notary public
without the proper commission to do so, the lawyer likewise violates Canon 7 of the same Code, which directs every
lawyer to uphold at all times the integrity and dignity of the legal profession.

In the case of Buensuceso v. Barera,32 a lawyer was suspended for one year when he notarized five documents after his
commission as Notary Public had expired, to wit: a complaint for ejectment, affidavit, supplemental affidavit, a deed of
sale, and a contract to sell. Guided by the pronouncement in said case, we find that a suspension of two (2) years is
justified under the circumstances. Herein respondent notarized a total of fourteen (14) documents33without the
requisite notarial commission.

Other charges constituting respondent’s misconduct such as the pending criminal case for child abuse allegedly
committed by him against a high school student filed before the Prosecutor’s Office of Baguio City; the pending
administrative case filed by the Teachers, Staff, Students and Parents before an Investigating Board created by SLU; and
the pending labor case filed by SLU-LHS Faculty before the NLRC, Cordillera Administrative Region, on alleged illegal
deduction of salary by respondent, need not be discussed, as they are still pending before the proper forums. At such
stages, the presumption of innocence still prevails in favor of the respondent.

WHEREFORE, finding respondent Atty. Rolando Dela Cruz guilty of immoral conduct, in disregard of the Code of
Professional Responsibility, he is hereby SUSPENDED from the practice of law for a period of two (2) years, and another
two (2) years for notarizing documents despite the expiration of his commission or a total of four (4) years of
suspension.

Let copies of this Decision be furnished all the courts of the land through the Court Administrator, as well as the IBP, the
Office of the Bar Confidant, and recorded in the personal records of the respondent.

SO ORDERED.
[A.C. No. 930. December 17, 1970.]
CAYETANO SAMONTE, Complainant, v. ATTY. FRANCISCO E. RODRIGO, JR., Respondent.

DECISION
VILLAMOR, J.:
Complainant seeks in his sworn letter-complaint the disbarment of Atty. Francisco E. Rodrigo, Jr. on the charge that the
latter, in notarizing the last will and testament of Faustino Samonte, complainant’s father, falsely stated in the
acknowledgment clause that the testator exhibited his residence certificate. Attached to the complaint as annexes are a
copy of the will and a certificate by the BIR Collection Agent of Bulacan, Bulacan, to the effect that the residence
certificate in question "has not been taken by the said Faustino Samonte; that both the original and duplicate copies
have not been signed by said Faustino Samonte: that both original and duplicate copies bear no thumbmark; and that
both original and duplicate copies are still intact in the booklet."

In his answer respondent admits that the residence certificate of the late Faustino Samonte was not actually shown to
him, but he alleges that he obtained the data concerning the number, date and place of issue of the residence certificate
from a copy of the testator’s income tax return, which was shown to him. Respondent further alleges that being a client
of the law firm of which he is an associate, a fellow resident of Bulacan, Bulacan, and a close personal friend of
respondent’s parents, Ex-Senator and Mrs. Francisco Soc Rodrigo, the testator was well known to him. Hence, he had no
reason to doubt the truth of the testator’s word that he had secured a residence certificate but had left it in Bulacan.
Respondent explains that he could hardly ask the testator, who was 82 years old, to travel back to Bulacan, look for his
residence certificate, and return to Quezon City where the will was being signed, attested and acknowledged,
considering, particularly, that, as stated above, the necessary data in the residence certificate appear in the testator’s
income tax return, a copy of which is attached to the answer.

We set the hearing of the case for October 7, 1970, at which complainant’s counsel and respondent appeared. The
parties were allowed to submit their respective memoranda, which are now before this Court.

The correctness of the number, date and place of issue of the testator’s residence certificate is not disputed. Indeed, a
comparison between such data as they appear in the will and in the testator’s income tax return leaves no room for
doubt that they are identical. Complainant nonetheless insists that respondent, in stating in the acknowledgment clause
that the testator exhibited to him his residence certificate, not only deliberately stated a falsehood but also violated
Section 6 of Commonwealth Act 465, which imposes upon the notary public the duty "to require the exhibition of the
residence certificate showing the payment of the residence taxes by such person;" hence, respondent violated his
lawyer’s oath to "do no falsehood" and to "obey the laws."

The particular circumstances of this case preclude us from concluding that a deliberate falsehood and a willful
disobedience of law were committed by Respondent. In the first place, the testator, a man admittedly respected in his
community for his integrity, was well known to respondent and his family. Consequently, respondent had no reason not
to believe him when he said that he had secured a residence certificate but had forgotten to take it with him.
Respondent’s allegation that, having failed to bring his cedula, the testator, who was over 80 years of age at the time,
would have undergone unnecessary travail and difficulty if he had been compelled to go back to Bulacan to fetch his said
cedula, then return to Quezon City, appears to be plausible. In the second place, the required data in the residence
certificate appear in the testator’s income tax return, which was shown to Respondent. Incidentally, the said tax
statement was subscribed and sworn to before Mr. Vicente G. Manalo, the BIR Collection Agent of Bulacan, Bulacan,
who now ironically certifies that the residence certificate described in the statement had neither been signed, thumb-
marked, nor taken by Faustino Samonte. It will be noted that Mr. Manalo does not certify to the lack of payment of the
residence certificate by or in behalf of Faustino Samonte. The date of filing of the income tax return was April 15, 1968;
so is the date of the residence certificate by or in behalf of Faustino Samonte. The date of filing of the income tax return
was April 15, 1968; so is the date of the residence certificate appearing therein. It was thus the last day for filing income
tax returns. In the circumstances it is fair to assume that Faustino Samonte’s representative had to pay for — if not
secure forthwith — a residence certificate for the old man right at the BIR office in order that its pertinent data could be
noted down in the tax statement which he had to file that day. Besides, respondent cannot entirely be blamed for
relying on the income tax return; he had the right to presume that Mr. Manalo had regularly performed his official duty
when he signed the jurat therein containing the number, date and place of issue of Faustino Samonte’s residence
certificate. No cogent reason appears why respondent could not rely on the truth and veracity of the acknowledgment
at the end of the testator’s income tax return, subscribed before no less than the Collection Agent of the BIR at Bulacan,
Bulacan, in charge of issuing residence certificates. At any rate, the requirement of physical exhibition of the residence
certificate is not absolute, its main purpose being to assure payment of the tax by the persons called upon to do so, and
as additional identification of the affiant. As regards the first, the Collection Agent had, by his subscribing the
acknowledgment in the income tax return, given assurance of payment of the tax; and as regards the second,
respondent states that the testator had been his and his father’s client in several cases. What is strange and apparently
unexplainable is the turn-about face on the part of the Collection Agent by executing a certificate to the effect that the
residence certificate in question has never been issued. The cedula having been apparently paid for, it became the
ministerial duty of said official to issue the same. At any rate, the blank forms — original and duplicate — of the same
have not been produced or presented, if only to show that the certificate has actually not been issued. In the third place,
complainant had previously filed with the Office of the City Fiscal of Quezon City a complaint for falsification predicated
on the very incident subject matter of the present administrative proceeding, but that complaint was dismissed on
respondent’s motion. While the dismissal of that criminal complaint is not a bar to the present case, we feel that it is
strongly persuasive in the determination of the present issue.

The act committed by respondent certainly does not call for the penalty of suspension or disbarment in view of
respondent’s clearly proven good faith. This circumstance takes this case away from the ambit of our ruling in Calo v.
Degamo, Adm. Case No. 516, June 27, 1967 (20 SCRA 447), cited by complainant, where the respondent, in order to
merit appointment to the position of chief of police, falsely denied under oath in his information sheet the existence of
any criminal or police record. Nonetheless, respondent’s act connotes a certain degree of lack of resourcefulness in the
performance of his duties as a notary public, for he could have contrived of some means by which the needed residence
certificate could be exhibited to him. In Ramirez v. Ner, Adm. Case No. 500, September 27, 1967 (21 SCRA 267), where
the respondent notarized a deed of sale whose acknowledgment clause recited falsely that both the vendor and the
vendee personally appeared before him, this Court reprimanded the respondent and admonished him to be more
careful. And in Lopez v. Casaclang, Adm. Case No. 589, August 26, 1968 (24 SCRA 731), where the respondent notarized
a power of attorney which, although duly acknowledged by the parties, was known to him not to have been signed by
the principal but by another upon her authority, without such fact being made to appear on the face of the document,
the respondent was reprimanded and warned to be more careful in the performance of his notarial duties. The act
committed by respondent in the case at bar, namely, that of notarizing a will the acknowledgment clause whereof
recites that the testator exhibited his residence certificate, when in truth he did not, considered in light of the facts that
respondent acted in good faith and readily admitted the truth before this Court, is less serious than those in the cases of
Ner and Casaclang. In the premises we believe that an admonition will be sufficient, if only to remind respondent and
other notaries public of the delicate nature of their sworn duties.

IN VIEW OF THE FOREGOING, respondent is hereby admonished to be more careful in the discharge of his notarial
duties, and he is warned that if he commits again the same or similar act, he will be dealt with more severely.
G.R. No. L-40098 August 29, 1975

ANTONIO LIM TANHU, DY OCHAY, ALFONSO LEONARDO NG SUA and CO OYO, petitioners, vs.HON. JOSE R. RAMOLETE
as Presiding Judge, Branch III, CFI, Cebu and TAN PUT, respondents.

BARREDO, J.:

Petition for (1) certiorari to annul and set aside certain actuations of respondent Court of First Instance of Cebu Branch
III in its Civil Case No. 12328, an action for accounting of properties and money totalling allegedly about P15 million
pesos filed with a common cause of action against six defendants, in which after declaring four of the said defendants
herein petitioners, in default and while the trial as against the two defendants not declared in default was in progress,
said court granted plaintiff's motion to dismiss the case in so far as the non-defaulted defendants were concerned and
thereafter proceeded to hear ex-parte the rest of the plaintiffs evidence and subsequently rendered judgment by
default against the defaulted defendants, with the particularities that notice of the motion to dismiss was not duly
served on any of the defendants, who had alleged a compulsory counterclaim against plaintiff in their joint answer, and
the judgment so rendered granted reliefs not prayed for in the complaint, and (2) prohibition to enjoin further
proceedings relative to the motion for immediate execution of the said judgment.

Originally, this litigation was a complaint filed on February 9, 1971 by respondent Tan Put only against the spouses-
petitioners Antonio Lim Tanhu and Dy Ochay. Subsequently, in an amended complaint dated September 26, 1972, their
son Lim Teck Chuan and the other spouses-petitioners Alfonso Leonardo Ng Sua and Co Oyo and their son Eng Chong
Leonardo were included as defendants. In said amended complaint, respondent Tan alleged that she "is the widow of
Tee Hoon Lim Po Chuan, who was a partner in the commercial partnership, Glory Commercial Company ... with Antonio
Lim Tanhu and Alfonso Ng Sua that "defendant Antonio Lim Tanhu, Alfonso Leonardo Ng Sua, Lim Teck Chuan, and Eng
Chong Leonardo, through fraud and machination, took actual and active management of the partnership and although
Tee Hoon Lim Po Chuan was the manager of Glory Commercial Company, defendants managed to use the funds of the
partnership to purchase lands and building's in the cities of Cebu, Lapulapu, Mandaue, and the municipalities of Talisay
and Minglanilla, some of which were hidden, but the description of those already discovered were as follows: (list of
properties) ...;" and that:

13. (A)fter the death of Tee Hoon Lim Po Chuan, the defendants, without liquidation continued the business of
Glory Commercial Company by purportedly organizing a corporation known as the Glory Commercial Company,
Incorporated, with paid up capital in the sum of P125,000.00, which money and other assets of the said Glory
Commercial Company, Incorporated are actually the assets of the defunct Glory Commercial Company
partnership, of which the plaintiff has a share equivalent to one third (¹/3 ) thereof;

14. (P)laintiff, on several occasions after the death of her husband, has asked defendants of the above-
mentioned properties and for the liquidation of the business of the defunct partnership, including investments
on real estate in Hong Kong, but defendants kept on promising to liquidate said properties and just told plaintiff
to

15. (S)ometime in the month of November, 1967, defendants, Antonio Lim Tanhu, by means of fraud deceit and
misrepresentations did then and there, induce and convince the plaintiff to execute a quitclaim of all her rights
and interests, in the assets of the partnership of Glory Commercial Company, which is null and void, executed
through fraud and without any legal effect. The original of said quitclaim is in the possession of the adverse party
defendant Antonio Lim Tanhu.

16. (A)s a matter of fact, after the execution of said quitclaim, defendant Antonio Lim Tanhu offered to pay the
plaintiff the amount P65,000.00 within a period of one (1) month, for which plaintiff was made to sign a receipt
for the amount of P65,000.00 although no such amount was given and plaintiff was not even given a copy of said
document;
 17. (T)hereafter, in the year 1968-69, the defendants who had earlier promised to liquidate the aforesaid
properties and assets in favor among others of plaintiff and until the middle of the year 1970 when the plaintiff
formally demanded from the defendants the accounting of real and personal properties of the Glory Commercial
Company, defendants refused and stated that they would not give the share of the plaintiff. (Pp. 36-37, Record.)

She prayed as follows:

WHEREFORE, it is most respectfully prayed that judgment be rendered:

a) Ordering the defendants to render an accounting of the real and personal properties of the Glory Commercial
Company including those registered in the names of the defendants and other persons, which properties are
located in the Philippines and in Hong Kong;

b) Ordering the defendants to deliver to the plaintiff after accounting, one third (¹/3 ) of the total value of all the
properties which is approximately P5,000,000.00 representing the just share of the plaintiff;

c) Ordering the defendants to pay the attorney of the plaintiff the sum of Two Hundred Fifty Thousand Pesos
(P250,000.00) by way of attorney's fees and damages in the sum of One Million Pesos (P1,000,000.00).

This Honorable Court is prayed for other remedies and reliefs consistent with law and equity and order the
defendants to pay the costs. (Page 38, Record.)

The admission of said amended complaint was opposed by defendants upon the ground that there were material
modifications of the causes of action previously alleged, but respondent judge nevertheless allowed the amendment
reasoning that:

The present action is for accounting of real and personal properties as well as for the recovery of the same with
damages.

An objective consideration of pars. 13 and 15 of the amended complaint pointed out by the defendants to
sustain their opposition will show that the allegations of facts therein are merely to amplify material averments
constituting the cause of action in the original complaint. It likewise include necessary and indispensable
defendants without whom no final determination can be had in the action and in order that complete relief is to
be accorded as between those already parties.

Considering that the amendments sought to be introduced do not change the main causes of action in the
original complaint and the reliefs demanded and to allow amendments is the rule, and to refuse them the
exception and in order that the real question between the parties may be properly and justly threshed out in a
single proceeding to avoid multiplicity of actions. (Page 40, Record.)

In a single answer with counterclaim, over the signature of their common counsel, defendants denied specifically not
only the allegation that respondent Tan is the widow of Tee Hoon because, according to them, his legitimate wife was
Ang Siok Tin still living and with whom he had four (4) legitimate children, a twin born in 1942, and two others born in
1949 and 1965, all presently residing in Hongkong, but also all the allegations of fraud and conversion quoted above, the
truth being, according to them, that proper liquidation had been regularly made of the business of the partnership and
Tee Hoon used to receive his just share until his death, as a result of which the partnership was dissolved and what
corresponded to him were all given to his wife and children. To quote the pertinent portions of said answer:

AND BY WAY OF SPECIAL AND AFFIRMATIVE DEFENSES,

defendants hereby incorporate all facts averred and alleged in the answer, and further most respectfully
declare:
1. That in the event that plaintiff is filing the present complaint as an heir of Tee Hoon Lim Po Chuan, then, she
has no legal capacity to sue as such, considering that the legitimate wife, namely: Ang Siok Tin, together with
their children are still alive. Under Sec. 1, (d), Rule 16 of the Revised Rules of Court, lack of legal capacity to sue
is one of the grounds for a motion to dismiss and so defendants prays that a preliminary hearing be conducted
as provided for in Sec. 5, of the same rule;

2. That in the alternative case or event that plaintiff is filing the present case under Art. 144 of the Civil Code,
then, her claim or demand has been paid, waived abandoned or otherwise extinguished as evidenced by the
'quitclaim' Annex 'A' hereof, the ground cited is another ground for a motion to dismiss (Sec. 1, (h), Rule 16) and
hence defendants pray that a preliminary hearing be made in connection therewith pursuant to Section 5 of the
aforementioned rule;

3. That Tee Hoon Lim Po Chuan was legally married to Ang Siok Tin and were blessed with the following children,
to wit: Ching Siong Lim and Ching Hing Lim (twins) born on February 16, 1942; Lim Shing Ping born on March 3,
1949 and Lim Eng Lu born on June 25, 1965 and presently residing in Hongkong;

4. That even before the death of Tee Hoon Lim Po Chuan, the plaintiff was no longer his common law wife and
even though she was not entitled to anything left by Tee Hoon Lim Po Chuan, yet, out of the kindness and
generosity on the part of the defendants, particularly Antonio Lain Tanhu, who, was inspiring to be monk and in
fact he is now a monk, plaintiff was given a substantial amount evidenced by the 'quitclaim' (Annex 'A');

5. That the defendants have acquired properties out of their own personal fund and certainly not from the funds
belonging to the partnership, just as Tee Hoon Lim Po Chuan had acquired properties out of his personal fund
and which are now in the possession of the widow and neither the defendants nor the partnership have
anything to do about said properties;

6. That it would have been impossible to buy properties from funds belonging to the partnership without the
other partners knowing about it considering that the amount taken allegedly is quite big and with such big
amount withdrawn the partnership would have been insolvent;

7. That plaintiff and Tee Hoon Lim Po Chuan were not blessed with children who would have been lawfully
entitled to succeed to the properties left by the latter together with the widow and legitimate children;

8. That despite the fact that plaintiff knew that she was no longer entitled to anything of the shares of the late
Tee Hoon Lim Po Chuan, yet, this suit was filed against the defendant who have to interpose the following —

COUNTERCLAIM

A. That the defendants hereby reproduced, by way of reference, all the allegations and foregoing averments as
part of this counterclaim; .

B. That plaintiff knew and was aware she was merely the common-law wife of Tee Hoon Lim Po Chuan and that
the lawful and legal is still living, together with the legitimate children, and yet she deliberately suppressed this
fact, thus showing her bad faith and is therefore liable for exemplary damages in an amount which the
Honorable Court may determine in the exercise of its sound judicial discretion. In the event that plaintiff is
married to Tee Hoon Lim Po Chuan, then, her marriage is bigamous and should suffer the consequences thereof;

C. That plaintiff was aware and had knowledge about the 'quitclaim', even though she was not entitled to it, and
yet she falsely claimed that defendants refused even to see her and for filing this unfounded, baseless, futile and
puerile complaint, defendants suffered mental anguish and torture conservatively estimated to be not less than
P3,000.00;
 D. That in order to defend their rights in court, defendants were constrained to engage the services of the
undersigned counsel, obligating themselves to pay P500,000.00 as attorney's fees;

E. That by way of litigation expenses during the time that this case will be before this Honorable Court and until
the same will be finally terminated and adjudicated, defendants will have to spend at least P5,000.00. (Pp. 44-
47. Record.)

After unsuccessfully trying to show that this counterclaim is merely permissive and should be dismissed for non-
payment of the corresponding filing fee, and after being overruled by the court, in due time, plaintiff answered the
same, denying its material allegations.

On February 3, 1973, however, the date set for the pre-trial, both of the two defendants-spouses the Lim Tanhus and Ng
Suas, did not appear, for which reason, upon motion of plaintiff dated February 16, 1973, in an order of March 12, 1973,
they were all "declared in DEFAULT as of February 3, 1973 when they failed to appear at the pre-trial." They sought to
hive this order lifted thru a motion for reconsideration, but the effort failed when the court denied it. Thereafter, the
trial started, but at the stage thereof where the first witness of the plaintiff by the name of Antonio Nuñez who testified
that he is her adopted son, was up for re-cross-examination, said plaintiff unexpectedly filed on October 19, 1974 the
following simple and unreasoned

MOTION TO DROP DEFENDANTS LIM TECK CHUAN AND ENG CHONG LEONARDO

COMES now plaintiff, through her undersigned counsel, unto the Honorable Court most respectfully moves to drop from
the complaint the defendants Lim Teck Chuan and Eng Chong Leonardo and to consider the case dismissed insofar as said
defendants Lim Teck Chuan and Eng Chong Leonardo are concerned.

WHEREFORE, it is most respectfully prayed of the Honorable Court to drop from the complaint the defendants Lim Teck
Chuan and Eng Chong Leonardo and to dismiss the case against them without pronouncement as to costs. (Page 50,
Record.)

which she set for hearing on December 21, 1974. According to petitioners, none of the defendants declared in default were
notified of said motion, in violation of Section 9 of Rule 13, since they had asked for the lifting of the order of default, albeit
unsuccessfully, and as regards the defendants not declared in default, the setting of the hearing of said motion on October
21, 1974 infringed the three-day requirement of Section 4 of Rule 15, inasmuch as Atty. Adelino Sitoy of Lim Teck Chuan
was served with a copy of the motion personally only on October 19, 1974, while Atty. Benjamin Alcudia of Eng Chong
Leonardo was served by registered mail sent only on the same date.

Evidently without even verifying the notices of service, just as simply as plaintiff had couched her motion, and also without
any legal grounds stated, respondent court granted the prayer of the above motion thus:

ORDER

Acting on the motion of the plaintiff praying for the dismissal of the complaint as against defendants Lim Teck Chuan and
Eng Chong Leonardo. —

The same is hereby GRANTED. The complaint as against defendant Lim Teck Chuan and Eng Chong Leonardo is hereby
ordered DISMISSED without pronouncement as to costs.

Simultaneously, the following order was also issued:

Considering that defendants Antonio Lim Tanhu and his spouse Dy Ochay as well as defendants Alfonso Ng Sua and his
spouse Co Oyo have been declared in default for failure to appear during the pre-trial and as to the other defendants the
complaint had already been ordered dismissed as against them.
 Let the hearing of the plaintiff's evidence ex-parte be set on November 20, 1974, at 8:30 A.M. before the Branch Clerk of
Court who is deputized for the purpose, to swear in witnesses and to submit her report within ten (10) days thereafter.
Notify the plaintiff. SO ORDERED.

But, in connection with this last order, the scheduled ex-parte reception of evidence did not take place on November 20,
1974, for on October 28, 1974, upon verbal motion of plaintiff, the court issued the following self-explanatory order: .

Acting favorably on the motion of the plaintiff dated October 18, 1974, the Court deputized the Branch Clerk of
Court to receive the evidence of the plaintiff ex-parte to be made on November 20, 1974. However, on October
28, 1974, the plaintiff, together with her witnesses, appeared in court and asked, thru counsel, that she be
allowed to present her evidence.

Considering the time and expenses incurred by the plaintiff in bringing her witnesses to the court, the Branch
Clerk of Court is hereby authorized to receive immediately the evidence of the plaintiff ex-parte. SO ORDERED.

Upon learning of these orders on October 23, 1973, the defendant Lim Teck Cheng, thru counsel, Atty. Sitoy, filed a
motion for reconsideration thereof, and on November 1, 1974, defendant Eng Chong Leonardo, thru counsel Atty.
Alcudia, filed also his own motion for reconsideration and clarification of the same orders. These motions were denied in
an order dated December 6, 1974 but received by the movants only on December 23, 1974. Meanwhile, respondent
court rendered the impugned decision on December 20, 1974. It does not appear when the parties were served copies
of this decision.

Subsequently, on January 6, 1975, all the defendants, thru counsel, filed a motion to quash the order of October 28,
1974. Without waiting however for the resolution thereof, on January 13, 1974, Lim Teck Chuan and Eng Chong
Leonardo went to the Court of Appeals with a petition for certiorari seeking the annulment of the above-mentioned
orders of October 21, 1974 and October 28, 1974 and decision of December 20, 1974. By resolution of January 24, 1975,
the Court of Appeals dismissed said petition, holding that its filing was premature, considering that the motion to quash
the order of October 28, 1974 was still unresolved by the trial court. This holding was reiterated in the subsequent
resolution of February 5, 1975 denying the motion for reconsideration of the previous dismissal.

On the other hand, on January 20, 1975, the other defendants, petitioners herein, filed their notice of appeal, appeal
bond and motion for extension to file their record on appeal, which was granted, the extension to expire after fifteen
(15) days from January 26 and 27, 1975, for defendants Lim Tanhu and Ng Suas, respectively. But on February 7, 1975,
before the perfection of their appeal, petitioners filed the present petition with this Court. And with the evident intent
to make their procedural position clear, counsel for defendants, Atty. Manuel Zosa, filed with respondent court a
manifestation dated February 14, 1975 stating that "when the non-defaulted defendants Eng Chong Leonardo and Lim
Teck Chuan filed their petition in the Court of Appeals, they in effect abandoned their motion to quash the order of
October 28, 1974," and that similarly "when Antonio Lim Tanhu, Dy Ochay, Alfonso Leonardo Ng Sua and Co Oyo, filed
their petition for certiorari and prohibition ... in the Supreme Court, they likewise abandoned their motion to quash."
This manifestation was acted upon by respondent court together with plaintiffs motion for execution pending appeal in
its order of the same date February 14, 1975 this wise:

ORDER

When these incidents, the motion to quash the order of October 28, 1974 and the motion for execution pending appeal
were called for hearing today, counsel for the defendants-movants submitted their manifestation inviting the attention of
this Court that by their filing for certiorari and prohibition with preliminary injunction in the Court of Appeals which was
dismissed and later the defaulted defendants filed with the Supreme Court certiorari with prohibition they in effect
abandoned their motion to quash.

IN VIEW HEREOF, the motion to quash is ordered ABANDONED. The resolution of the motion for execution pending appeal
shall be resolved after the petition for certiorari and prohibition shall have been resolved by the Supreme Court. SO
ORDERED.
Upon these premises, it is the position of petitioners that respondent court acted illegally, in violation of the rules or
with grave abuse of discretion in acting on respondent's motion to dismiss of October 18, 1974 without previously
ascertaining whether or not due notice thereof had been served on the adverse parties, as, in fact, no such notice was
timely served on the non-defaulted defendants Lim Teck Chuan and Eng Chong Leonardo and no notice at all was ever
sent to the other defendants, herein petitioners, and more so, in actually ordering the dismissal of the case by its order
of October 21, 1974 and at the same time setting the case for further hearing as against the defaulted defendants,
herein petitioners, actually hearing the same ex-parte and thereafter rendering the decision of December 20, 1974
granting respondent Tan even reliefs not prayed for in the complaint. According to the petitioners, to begin with, there
was compulsory counterclaim in the common answer of the defendants the nature of which is such that it cannot be
decided in an independent action and as to which the attention of respondent court was duly called in the motions for
reconsideration. Besides, and more importantly, under Section 4 of Rule 18, respondent court had no authority to divide
the case before it by dismissing the same as against the non-defaulted defendants and thereafter proceeding to hear it
ex-parte and subsequently rendering judgment against the defaulted defendants, considering that in their view, under
the said provision of the rules, when a common cause of action is alleged against several defendants, the default of any
of them is a mere formality by which those defaulted are not allowed to take part in the proceedings, but otherwise, all
the defendants, defaulted and not defaulted, are supposed to have but a common fate, win or lose. In other words,
petitioners posit that in such a situation, there can only be one common judgment for or against all the defendant, the
non-defaulted and the defaulted. Thus, petitioners contend that the order of dismissal of October 21, 1974 should be
considered also as the final judgment insofar as they are concerned, or, in the alternative, it should be set aside together
with all the proceedings and decision held and rendered subsequent thereto, and that the trial be resumed as of said
date, with the defendants Lim Teck Chuan and Eng Chong Leonardo being allowed to defend the case for all the
defendants.

On the other hand, private respondent maintains the contrary view that inasmuch as petitioners had been properly
declared in default, they have no personality nor interest to question the dismissal of the case as against their non-
defaulted co-defendants and should suffer the consequences of their own default. Respondent further contends, and
this is the only position discussed in the memorandum submitted by her counsel, that since petitioners have already
made or at least started to make their appeal, as they are in fact entitled to appeal, this special civil action has no reason
for being. Additionally, she invokes the point of prematurity upheld by the Court of Appeals in regard to the above-
mentioned petition therein of the non-defaulted defendants Lim Teck Chuan and Eng Chong Leonardo. Finally, she
argues that in any event, the errors attributed to respondent court are errors of judgment and may be reviewed only in
an appeal.

After careful scrutiny of all the above-related proceedings, in the court below and mature deliberation, the Court has
arrived at the conclusion that petitioners should be granted relief, if only to stress emphatically once more that the rules
of procedure may not be misused and abused as instruments for the denial of substantial justice. A review of the record
of this case immediately discloses that here is another demonstrative instance of how some members of the bar,
availing of their proficiency in invoking the letter of the rules without regard to their real spirit and intent, succeed in
inducing courts to act contrary to the dictates of justice and equity, and, in some instances, to wittingly or unwittingly
abet unfair advantage by ironically camouflaging their actuations as earnest efforts to satisfy the public clamor for
speedy disposition of litigations, forgetting all the while that the plain injunction of Section 2 of Rule 1 is that the "rules
shall be liberally construed in order to promote their object and to assist the parties in obtaining not only 'speedy' but
more imperatively, "just ... and inexpensive determination of every action and proceeding." We cannot simply pass over
the impression that the procedural maneuvers and tactics revealed in the records of the case at bar were deliberately
planned with the calculated end in view of depriving petitioners and their co-defendants below of every opportunity to
properly defend themselves against a claim of more than substantial character, considering the millions of pesos worth
of properties involved as found by respondent judge himself in the impugned decision, a claim that appears, in the light
of the allegations of the answer and the documents already brought to the attention of the court at the pre-trial, to be
rather dubious. What is most regrettable is that apparently, all of these alarming circumstances have escaped
respondent judge who did not seem to have hesitated in acting favorably on the motions of the plaintiff conducive to
the deplorable objective just mentioned, and which motions, at the very least, appeared to be 'of highly controversial'
merit, considering that their obvious tendency and immediate result would be to convert the proceedings into a one-
sided affair, a situation that should be readily condemnable and intolerable to any court of justice.
Indeed, a seeming disposition on the part of respondent court to lean more on the contentions of private respondent
may be discerned from the manner it resolved the attempts of defendants Dy Ochay and Antonio Lim Tanhu to have the
earlier order of default against them lifted. Notwithstanding that Dy Ochay's motion of October 8, 1971, co-signed by
her with their counsel, Atty. Jovencio Enjambre (Annex 2 of respondent answer herein) was over the jurat of the notary
public before whom she took her oath, in the order of November 2, 1971, (Annex 3 id.) it was held that "the oath
appearing at the bottom of the motion is not the one contemplated by the abovequoted pertinent provision (See. 3,
Rule 18) of the rules. It is not even a verification. (See. 6, Rule 7.) What the rule requires as interpreted by the Supreme
Court is that the motion must have to be accompanied by an affidavit of merits that the defendant has a meritorious
defense, thereby ignoring the very simple legal point that the ruling of the Supreme Court in Ong Peng vs. Custodio, 1
SCRA 781, relied upon by His Honor, under which a separate affidavit of merit is required refers obviously to instances
where the motion is not over oath of the party concerned, considering that what the cited provision literally requires is
no more than a "motion under oath." Stated otherwise, when a motion to lift an order of default contains the reasons
for the failure to answer as well as the facts constituting the prospective defense of the defendant and it is sworn to by
said defendant, neither a formal verification nor a separate affidavit of merit is necessary.

What is worse, the same order further held that the motion to lift the order of default "is an admission that there was a
valid service of summons" and that said motion could not amount to a challenge against the jurisdiction of the court
over the person of the defendant. Such a rationalization is patently specious and reveals an evident failure to grasp the
import of the legal concepts involved. A motion to lift an order of default on the ground that service of summons has not
been made in accordance with the rules is in order and is in essence verily an attack against the jurisdiction of the court
over the person of the defendant, no less than if it were worded in a manner specifically embodying such a direct
challenge.

And then, in the order of February 14, 1972 (Annex 6, id.) lifting at last the order of default as against defendant Lim
Tanhu, His Honor posited that said defendant "has a defense (quitclaim) which renders the claim of the plaintiff
contentious." We have read defendants' motion for reconsideration of November 25, 1971 (Annex 5, id.), but We cannot
find in it any reference to a "quitclaim". Rather, the allegation of a quitclaim is in the amended complaint (Pars. 15-16,
Annex B of the petition herein) in which plaintiff maintains that her signature thereto was secured through fraud and
deceit. In truth, the motion for reconsideration just mentioned, Annex 5, merely reiterated the allegation in Dy Ochay's
earlier motion of October 8, 1971, Annex 2, to set aside the order of default, that plaintiff Tan could be but the common
law wife only of Tee Hoon, since his legitimate wife was still alive, which allegation, His Honor held in the order of
November 2, 1971, Annex 3, to be "not good and meritorious defense". To top it all, whereas, as already stated, the
order of February 19, 1972, Annex 6, lifted the default against Lim Tanhu because of the additional consideration that
"he has a defense (quitclaim) which renders the claim of the plaintiff contentious," the default of Dy Ochay was
maintained notwithstanding that exactly the same "contentions" defense as that of her husband was invoked by her.

Such tenuous, if not altogether erroneous reasonings and manifest inconsistency in the legal postures in the orders in
question can hardly convince Us that the matters here in issue were accorded due and proper consideration by
respondent court. In fact, under the circumstances herein obtaining, it seems appropriate to stress that, having in view
the rather substantial value of the subject matter involved together with the obviously contentious character of
plaintiff's claim, which is discernible even on the face of the complaint itself, utmost care should have been taken to
avoid the slightest suspicion of improper motivations on the part of anyone concerned. Upon the considerations
hereunder to follow, the Court expresses its grave concern that much has to be done to dispel the impression that
herein petitioners and their co-defendants are being railroaded out of their rights and properties without due process of
law, on the strength of procedural technicalities adroitly planned by counsel and seemingly unnoticed and undetected
by respondent court, whose orders, gauged by their tenor and the citations of supposedly pertinent provisions and
jurisprudence made therein, cannot be said to have proceeded from utter lack of juridical knowledgeability and
competence.

–1–

The first thing that has struck the Court upon reviewing the record is the seeming alacrity with which the motion to
dismiss the case against non-defaulted defendants Lim Teck Chuan and Eng Chong Leonardo was disposed of, which
definitely ought not to have been the case. The trial was proceeding with the testimony of the first witness of plaintiff
and he was still under re-cross-examination. Undoubtedly, the motion to dismiss at that stage and in the light of the
declaration of default against the rest of the defendants was a well calculated surprise move, obviously designed to
secure utmost advantage of the situation, regardless of its apparent unfairness. To say that it must have been entirely
unexpected by all the defendants, defaulted and non-defaulted , is merely to rightly assume that the parties in a judicial
proceeding can never be the victims of any procedural waylaying as long as lawyers and judges are imbued with the
requisite sense of equity and justice.

But the situation here was aggravated by the indisputable fact that the adverse parties who were entitled to be notified
of such unanticipated dismissal motion did not get due notice thereof. Certainly, the non-defaulted defendants had the
right to the three-day prior notice required by Section 4 of Rule 15. How could they have had such indispensable notice
when the motion was set for hearing on Monday, October 21, 1974, whereas the counsel for Lim Teck Chuan, Atty. Sitoy
was personally served with the notice only on Saturday, October 19, 1974 and the counsel for Eng Chong Leonardo, Atty.
Alcudia, was notified by registered mail which was posted only that same Saturday, October 19, 1974? According to
Chief Justice Moran, "three days at least must intervene between the date of service of notice and the date set for the
hearing, otherwise the court may not validly act on the motion." (Comments on the Rules of Court by Moran, Vol. 1,
1970 ed. p. 474.) Such is the correct construction of Section 4 of Rule 15. And in the instant case, there can be no
question that the notices to the non-defaulted defendants were short of the requirement of said provision.

We can understand the over-anxiety of counsel for plaintiff, but what is incomprehensible is the seeming inattention of
respondent judge to the explicit mandate of the pertinent rule, not to speak of the imperatives of fairness, considering
he should have realized the far-reaching implications, specially from the point of view he subsequently adopted, albeit
erroneously, of his favorably acting on it. Actually, he was aware of said consequences, for simultaneously with his order
of dismissal, he immediately set the case for the ex-parte hearing of the evidence against the defaulted defendants,
which, incidentally, from the tenor of his order which We have quoted above, appears to have been done by him motu
propio As a matter of fact, plaintiff's motion also quoted above did not pray for it.

Withal, respondent court's twin actions of October 21, 1974 further ignores or is inconsistent with a number of known
juridical principles concerning defaults, which We will here take occasion to reiterate and further elucidate on, if only to
avoid a repetition of the unfortunate errors committed in this case. Perhaps some of these principles have not been
amply projected and elaborated before, and such paucity of elucidation could be the reason why respondent judge must
have acted as he did. Still, the Court cannot but express its vehement condemnation of any judicial actuation that unduly
deprives any party of the right to be heard without clear and specific warrant under the terms of existing rules or
binding jurisprudence. Extreme care must be the instant reaction of every judge when confronted with a situation
involving risks that the proceedings may not be fair and square to all the parties concerned. Indeed, a keen sense of
fairness, equity and justice that constantly looks for consistency between the letter of the adjective rules and these basic
principles must be possessed by every judge, If substance is to prevail, as it must, over form in our courts. Literal
observance of the rules, when it is conducive to unfair and undue advantage on the part of any litigant before it, is
unworthy of any court of justice and equity. Withal, only those rules and procedure informed, with and founded on
public policy deserve obedience in accord with their unequivocal language or words..

Before proceeding to the discussion of the default aspects of this case, however, it should not be amiss to advert first to
the patent incorrectness, apparent on the face of the record, of the aforementioned order of dismissal of October 21,
1974 of the case below as regards non-defaulted defendants Lim and Leonardo. While it is true that said defendants are
not petitioners herein, the Court deems it necessary for a full view of the outrageous procedural strategy conceived by
respondent's counsel and sanctioned by respondent court to also make reference to the very evident fact that in
ordering said dismissal respondent court disregarded completely the existence of defendant's counterclaim which it had
itself earlier held if indirectly, to be compulsory in nature when it refused to dismiss the same on the ground alleged by
respondent Tan that he docketing fees for the filing thereof had not been paid by defendants.

Indeed, that said counterclaim is compulsory needs no extended elaboration. As may be noted in the allegations hereof
aforequoted, it arose out of or is necessarily connected with the occurrence that is the subject matter of the plaintiff's
claim, (Section 4, Rule 9) namely, plaintiff's allegedly being the widow of the deceased Tee Hoon entitled, as such, to
demand accounting of and to receive the share of her alleged late husband as partner of defendants Antonio Lim Tanhu
and Alfonso Leonardo Ng Sua in Glory Commercial Company, the truth of which allegations all the defendants have
denied. Defendants maintain in their counterclaim that plaintiff knew of the falsity of said allegations even before she
filed her complaint, for she had in fact admitted her common-law relationship with said deceased in a document she had
jointly executed with him by way of agreement to terminate their illegitimate relationship, for which she received
P40,000 from the deceased, and with respect to her pretended share in the capital and profits in the partnership, it is
also defendants' posture that she had already quitclaimed, with the assistance of able counsel, whatever rights if any
she had thereto in November, 1967, for the sum of P25,000 duly receipted by her, which quitclaim was, however,
executed, according to respondent herself in her amended complaint, through fraud. And having filed her complaint
knowing, according to defendants, as she ought to have known, that the material allegations thereof are false and
baseless, she has caused them to suffer damages. Undoubtedly, with such allegations, defendants' counterclaim is
compulsory, not only because the same evidence to sustain it will also refute the cause or causes of action alleged in
plaintiff's complaint, (Moran, supra p. 352) but also because from its very nature, it is obvious that the same cannot
"remain pending for independent adjudication by the court." (Section 2, Rule 17.)

The provision of the rules just cited specifically enjoins that "(i)f a counterclaim has been pleaded by a defendant prior
to the service upon him of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's
objection unless the counterclaim can remain pending for independent adjudication by the court." Defendants Lim and
Leonardo had no opportunity to object to the motion to dismiss before the order granting the same was issued, for the
simple reason that they were not opportunity notified of the motion therefor, but the record shows clearly that at least
defendant Lim immediately brought the matter of their compulsory counterclaim to the attention of the trial court in his
motion for reconsideration of October 23, 1974, even as the counsel for the other defendant, Leonardo, predicated his
motion on other grounds. In its order of December 6, 1974, however, respondent court not only upheld the plaintiffs
supposed absolute right to choose her adversaries but also held that the counterclaim is not compulsory, thereby
virtually making unexplained and inexplicable 180-degree turnabout in that respect.

There is another equally fundamental consideration why the motion to dismiss should not have been granted. As the
plaintiff's complaint has been framed, all the six defendants are charged with having actually taken part in a conspiracy
to misappropriate, conceal and convert to their own benefit the profits, properties and all other assets of the
partnership Glory Commercial Company, to the extent that they have allegedly organized a corporation, Glory
Commercial Company, Inc. with what they had illegally gotten from the partnership. Upon such allegations, no judgment
finding the existence of the alleged conspiracy or holding the capital of the corporation to be the money of the
partnership is legally possible without the presence of all the defendants. The non-defaulted defendants are alleged to
be stockholders of the corporation and any decision depriving the same of all its assets cannot but prejudice the
interests of said defendants. Accordingly, upon these premises, and even prescinding from the other reasons to be
discussed anon it is clear that all the six defendants below, defaulted and non-defaulted, are indispensable parties.
Respondents could do no less than grant that they are so on page 23 of their answer. Such being the case, the
questioned order of dismissal is exactly the opposite of what ought to have been done. Whenever it appears to the
court in the course of a proceeding that an indispensable party has not been joined, it is the duty of the court to stop the
trial and to order the inclusion of such party. (The Revised Rules of Court, Annotated & Commented by Senator Vicente
J. Francisco, Vol. 1, p. 271, 1973 ed. See also Cortez vs. Avila, 101 Phil. 705.) Such an order is unavoidable, for the
"general rule with reference to the making of parties in a civil action requires the joinder of all necessary parties
wherever possible, and the joinder of all indispensable parties under any and all conditions, the presence of those latter
being a sine qua non of the exercise of judicial power." (Borlasa vs. Polistico, 47 Phil. 345, at p. 347.) It is precisely " when
an indispensable party is not before the court (that) the action should be dismissed." (People v. Rodriguez, 106 Phil. 325,
at p. 327.) The absence of an indispensable party renders all subsequent actuations of the court null and void, for want
of authority to act, not only as to the absent parties but even as to those present. In short, what respondent court did
here was exactly the reverse of what the law ordains — it eliminated those who by law should precisely be joined.

As may he noted from the order of respondent court quoted earlier, which resolved the motions for reconsideration of
the dismissal order filed by the non-defaulted defendants, His Honor rationalized his position thus:
 It is the rule that it is the absolute prerogative of the plaintiff to choose, the theory upon which he predicates his
right of action, or the parties he desires to sue, without dictation or imposition by the court or the adverse party.
If he makes a mistake in the choice of his right of action, or in that of the parties against whom he seeks to
enforce it, that is his own concern as he alone suffers therefrom. The plaintiff cannot be compelled to choose his
defendants, He may not, at his own expense, be forced to implead anyone who, under the adverse party's
theory, is to answer for defendant's liability. Neither may the Court compel him to furnish the means by which
defendant may avoid or mitigate their liability. (Vaño vs. Alo, 95 Phil. 495-496.)

This being the rule this court cannot compel the plaintiff to continue prosecuting her cause of action against the
defendants-movants if in the course of the trial she believes she can enforce it against the remaining defendants
subject only to the limitation provided in Section 2, Rule 17 of the Rules of Court. ... (Pages 6263, Record.)

Noticeably, His Honor has employed the same equivocal terminology as in plaintiff's motion of October 18, 1974 by
referring to the action he had taken as being "dismissal of the complaint against them or their being dropped
therefrom", without perceiving that the reason for the evidently intentional ambiguity is transparent. The apparent idea
is to rely on the theory that under Section 11 of Rule 3, parties may be dropped by the court upon motion of any party at
any stage of the action, hence "it is the absolute right prerogative of the plaintiff to choose—the parties he desires to
sue, without dictation or imposition by the court or the adverse party." In other words, the ambivalent pose is suggested
that plaintiff's motion of October 18, 1974 was not predicated on Section 2 of Rule 17 but more on Section 11 of Rule 3.
But the truth is that nothing can be more incorrect. To start with, the latter rule does not comprehend whimsical and
irrational dropping or adding of parties in a complaint. What it really contemplates is erroneous or mistaken non-joinder
and misjoinder of parties. No one is free to join anybody in a complaint in court only to drop him unceremoniously later
at the pleasure of the plaintiff. The rule presupposes that the original inclusion had been made in the honest conviction
that it was proper and the subsequent dropping is requested because it has turned out that such inclusion was a
mistake. And this is the reason why the rule ordains that the dropping be "on such terms as are just" — just to all the
other parties. In the case at bar, there is nothing in the record to legally justify the dropping of the non-defaulted
defendants, Lim and Leonardo. The motion of October 18, 1974 cites none. From all appearances, plaintiff just decided
to ask for it, without any relevant explanation at all. Usually, the court in granting such a motion inquires for the reasons
and in the appropriate instances directs the granting of some form of compensation for the trouble undergone by the
defendant in answering the complaint, preparing for or proceeding partially to trial, hiring counsel and making
corresponding expenses in the premises. Nothing of these, appears in the order in question. Most importantly, His
Honor ought to have considered that the outright dropping of the non-defaulted defendants Lim and Leonardo, over
their objection at that, would certainly be unjust not only to the petitioners, their own parents, who would in
consequence be entirely defenseless, but also to Lim and Leonardo themselves who would naturally correspondingly
suffer from the eventual judgment against their parents. Respondent court paid no heed at all to the mandate that such
dropping must be on such terms as are just" — meaning to all concerned with its legal and factual effects.

Thus, it is quite plain that respondent court erred in issuing its order of dismissal of October 21, 1974 as well as its order
of December 6, 1974 denying reconsideration of such dismissal. As We make this ruling, We are not oblivious of the
circumstance that defendants Lim and Leonardo are not parties herein. But such consideration is inconsequential. The
fate of the case of petitioners is inseparably tied up with said order of dismissal, if only because the order of ex-
parte hearing of October 21, 1974 which directly affects and prejudices said petitioners is predicated thereon.
Necessarily, therefore, We have to pass on the legality of said order, if We are to decide the case of herein petitioners
properly and fairly.

The attitude of the non-defaulted defendants of no longer pursuing further their questioning of the dismissal is from
another point of view understandable. On the one hand, why should they insist on being defendants when plaintiff
herself has already release from her claims? On the other hand, as far as their respective parents-co-defendants are
concerned, they must have realized that they (their parents) could even be benefited by such dismissal because they
could question whether or not plaintiff can still prosecute her case against them after she had secured the order of
dismissal in question. And it is in connection with this last point that the true and correct concept of default becomes
relevant.
At this juncture, it may also be stated that the decision of the Court of Appeals of January 24, 1975 in G. R. No. SP-03066
dismissing the petition for certiorari of non-defaulted defendants Lim and Leonardo impugning the order of dismissal of
October 21, 1974, has no bearing at all in this case, not only because that dismissal was premised by the appellate court
on its holding that the said petition was premature inasmuch as the trial court had not yet resolved the motion of the
defendants of October 28, 1974 praying that said disputed order be quashed, but principally because herein petitioners
were not parties in that proceeding and cannot, therefore, be bound by its result. In particular, We deem it warranted to
draw the attention of private respondent's counsel to his allegations in paragraphs XI to XIV of his answer, which relate
to said decision of the Court of Appeals and which have the clear tendency to make it appear to the Court that the
appeals court had upheld the legality and validity of the actuations of the trial court being questioned, when as a matter
of indisputable fact, the dismissal of the petition was based solely and exclusively on its being premature without in any
manner delving into its merits. The Court must and does admonish counsel that such manner of pleading, being
deceptive and lacking in candor, has no place in any court, much less in the Supreme Court, and if We are adopting a
passive attitude in the premises, it is due only to the fact that this is counsel's first offense. But similar conduct on his
part in the future will definitely be dealt with more severely. Parties and counsel would be well advised to avoid such
attempts to befuddle the issues as invariably then will be exposed for what they are, certainly unethical and degrading
to the dignity of the law profession. Moreover, almost always they only betray the inherent weakness of the cause of
the party resorting to them.

–2–

Coming now to the matter itself of default, it is quite apparent that the impugned orders must have proceeded from
inadequate apprehension of the fundamental precepts governing such procedure under the Rules of Court. It is time
indeed that the concept of this procedural device were fully understood by the bench and bar, instead of being merely
taken for granted as being that of a simple expedient of not allowing the offending party to take part in the proceedings,
so that after his adversary shall have presented his evidence, judgment may be rendered in favor of such opponent, with
hardly any chance of said judgment being reversed or modified.

The Rules of Court contain a separate rule on the subject of default, Rule 18. But said rule is concerned solely with
default resulting from failure of the defendant or defendants to answer within the reglementary period. Referring to the
simplest form of default, that is, where there is only one defendant in the action and he fails to answer on time, Section
1 of the rule provides that upon "proof of such failure, (the court shall) declare the defendant in default. Thereupon the
court shall proceed to receive the plaintiff's evidence and render judgment granting him such relief as the complaint and
the facts proven may warrant." This last clause is clarified by Section 5 which says that "a judgment entered against a
party in default shall not exceed the amount or be different in kind from that prayed for."

Unequivocal, in the literal sense, as these provisions are, they do not readily convey the full import of what they
contemplate. To begin with, contrary to the immediate notion that can be drawn from their language, these provisions
are not to be understood as meaning that default or the failure of the defendant to answer should be "interpreted as an
admission by the said defendant that the plaintiff's cause of action find support in the law or that plaintiff is entitled to
the relief prayed for." (Moran, supra, p. 535 citing Macondary & Co. v. Eustaquio, 64 Phil. 466, citing with approval
Chaffin v. McFadden, 41 Ark. 42; Johnson v. Pierce, 12 Ark. 599; Mayden v. Johnson, 59 Ga. 105; People v. Rust, 292 111.
328; Ken v. Leopold 21 111. A. 163; Chicago, etc. Electric R. Co. v. Krempel 116 111. A. 253.)

Being declared in default does not constitute a waiver of rights except that of being heard and of presenting evidence in
the trial court. According to Section 2, "except as provided in Section 9 of Rule 13, a party declared in default shall not be
entitled to notice of subsequent proceedings, nor to take part in the trial." That provision referred to reads: "No service
of papers other than substantially amended pleadings and final orders or judgments shall be necessary on a party in
default unless he files a motion to set aside the order of default, in which event he shall be entitled to notice of all
further proceedings regardless of whether the order of default is set aside or not." And pursuant to Section 2 of Rule 41,
"a party who has been declared in default may likewise appeal from the judgment rendered against him as contrary to
the evidence or to the law, even if no petition for relief to set aside the order of default has been presented by him in
accordance with Rule 38.".
In other words, a defaulted defendant is not actually thrown out of court. While in a sense it may be said that by
defaulting he leaves himself at the mercy of the court, the rules see to it that any judgment against him must be in
accordance with law. The evidence to support the plaintiff's cause is, of course, presented in his absence, but the court
is not supposed to admit that which is basically incompetent. Although the defendant would not be in a position to
object, elementary justice requires that, only legal evidence should be considered against him. If the evidence presented
should not be sufficient to justify a judgment for the plaintiff, the complaint must be dismissed. And if an unfavorable
judgment should be justifiable, it cannot exceed in amount or be different in kind from what is prayed for in the
complaint.

Incidentally, these considerations argue against the present widespread practice of trial judges, as was done by His
Honor in this case, of delegating to their clerks of court the reception of the plaintiff's evidence when the defendant is in
default. Such a Practice is wrong in principle and orientation. It has no basis in any rule. When a defendant allows
himself to be declared in default, he relies on the faith that the court would take care that his rights are not unduly
prejudiced. He has a right to presume that the law and the rules will still be observed. The proceedings are held in his
forced absence, and it is but fair that the plaintiff should not be allowed to take advantage of the situation to win by foul
or illegal means or with inherently incompetent evidence. Thus, in such instances, there is need for more attention from
the court, which only the judge himself can provide. The clerk of court would not be in a position much less have the
authority to act in the premises in the manner demanded by the rules of fair play and as contemplated in the law,
considering his comparably limited area of discretion and his presumably inferior preparation for the functions of a
judge. Besides, the default of the defendant is no excuse for the court to renounce the opportunity to closely observe
the demeanor and conduct of the witnesses of the plaintiff, the better to appreciate their truthfulness and credibility.
We therefore declare as a matter of judicial policy that there being no imperative reason for judges to do otherwise, the
practice should be discontinued.

Another matter of practice worthy of mention at this point is that it is preferable to leave enough opportunity open for
possible lifting of the order of default before proceeding with the reception of the plaintiff's evidence and the rendition
of the decision. "A judgment by default may amount to a positive and considerable injustice to the defendant; and the
possibility of such serious consequences necessitates a careful and liberal examination of the grounds upon which the
defendant may seek to set it aside." (Moran, supra p. 534, citing Coombs vs. Santos, 24 Phil. 446; 449-450.) The
expression, therefore, in Section 1 of Rule 18 aforequoted which says that "thereupon the court shall proceed to receive
the plaintiff's evidence etc." is not to be taken literally. The gain in time and dispatch should the court immediately try
the case on the very day of or shortly after the declaration of default is far outweighed by the inconvenience and
complications involved in having to undo everything already done in the event the defendant should justify his omission
to answer on time.

The foregoing observations, as may be noted, refer to instances where the only defendant or all the defendants, there
being several, are declared in default. There are additional rules embodying more considerations of justice and equity in
cases where there are several defendants against whom a common cause of action is averred and not all of them
answer opportunely or are in default, particularly in reference to the power of the court to render judgment in such
situations. Thus, in addition to the limitation of Section 5 that the judgment by default should not be more in amount
nor different in kind from the reliefs specifically sought by plaintiff in his complaint, Section 4 restricts the authority of
the court in rendering judgment in the situations just mentioned as follows:

Sec. 4. Judgment when some defendants answer, and other make difficult. — When a complaint states a
common cause of action against several defendant some of whom answer, and the others fail to do so, the court
shall try the case against all upon the answer thus filed and render judgment upon the evidence presented. The
same proceeding applies when a common cause of action is pleaded in a counterclaim, cross-claim and third-
party claim.

Very aptly does Chief Justice Moran elucidate on this provision and the controlling jurisprudence explanatory thereof
this wise:
Where a complaint states a common cause of action against several defendants and some appear to defend the
case on the merits while others make default, the defense interposed by those who appear to litigate the case
inures to the benefit of those who fail to appear, and if the court finds that a good defense has been made, all of
the defendants must be absolved. In other words, the answer filed by one or some of the defendants inures to
the benefit of all the others, even those who have not seasonably filed their answer. (Bueno v. Ortiz, L-22978,
June 27, 1968, 23 SCRA 1151.) The proper mode of proceeding where a complaint states a common cause of
action against several defendants, and one of them makes default, is simply to enter a formal default order
against him, and proceed with the cause upon the answers of the others. The defaulting defendant merely loses
his standing in court, he not being entitled to the service of notice in the cause, nor to appear in the suit in any
way. He cannot adduce evidence; nor can he be heard at the final hearing, (Lim Toco v. Go Fay, 80 Phil. 166.)
although he may appeal the judgment rendered against him on the merits. (Rule 41, sec. 2.) If the case is finally
decided in the plaintiff's favor, a final decree is then entered against all the defendants; but if the suit should be
decided against the plaintiff, the action will be dismissed as to all the defendants alike. (Velez v. Ramas, 40 Phil.
787-792; Frow v. de la Vega, 15 Wal. 552,21 L. Ed. 60.) In other words the judgment will affect the defaulting
defendants either favorably or adversely. (Castro v. Peña, 80 Phil. 488.)

Defaulting defendant may ask execution if judgment is in his favor. (Castro v. Peña, supra.) (Moran, Rules of
Court, Vol. 1, pp. 538-539.)

In Castro vs. Peña, 80 Phil. 488, one of the numerous cases cited by Moran, this Court elaborated on the
construction of the same rule when it sanctioned the execution, upon motion and for the benefit of the
defendant in default, of a judgment which was adverse to the plaintiff. The Court held:

As above stated, Emilia Matanguihan, by her counsel, also was a movant in the petition for execution Annex 1.
Did she have a right to be such, having been declared in default? In Frow vs. De la Vega, supra, cited as authority
in Velez vs. Ramas, supra, the Supreme Court of the United States adopted as ground for its own decision the
following ruling of the New York Court of Errors in Clason vs. Morris, 10 Jons., 524:

It would be unreasonable to hold that because one defendant had made default, the plaintiff should have a
decree even against him, where the court is satisfied from the proofs offered by the other, that in fact the
plaintiff is not entitled to a decree. (21 Law, ed., 61.)

The reason is simple: justice has to be consistent. The complaint stating a common cause of action against
several defendants, the complainant's rights — or lack of them — in the controversy have to be the same, and
not different, as against all the defendant's although one or some make default and the other or others appear,
join issue, and enter into trial. For instance, in the case of Clason vs. Morris above cited, the New York Court of
Errors in effect held that in such a case if the plaintiff is not entitled to a decree, he will not be entitled to it, not
only as against the defendant appearing and resisting his action but also as against the one who made default. In
the case at bar, the cause of action in the plaintiff's complaint was common against the Mayor of Manila, Emilia
Matanguihan, and the other defendants in Civil Case No. 1318 of the lower court. The Court of First Instance in
its judgment found and held upon the evidence adduced by the plaintiff and the defendant mayor that as
between said plaintiff and defendant Matanguihan the latter was the one legally entitled to occupy the stalls;
and it decreed, among other things, that said plaintiff immediately vacate them. Paraphrasing the New York
Court of Errors, it would be unreasonable to hold now that because Matanguihan had made default, the said
plaintiff should be declared, as against her, legally entitled to the occupancy of the stalls, or to remain therein,
although the Court of First Instance was so firmly satisfied, from the proofs offered by the other defendant, that
the same plaintiff was not entitled to such occupancy that it peremptorily ordered her to vacate the stalls. If in
the cases of Clason vs. Morris, supra, Frow vs. De la Vega, supra, and Velez vs. Ramas, supra the decrees entered
inured to the benefit of the defaulting defendants, there is no reason why that entered in said case No. 1318
should not be held also to have inured to the benefit of the defaulting defendant Matanguihan and the doctrine
in said three cases plainly implies that there is nothing in the law governing default which would prohibit the
court from rendering judgment favorable to the defaulting defendant in such cases. If it inured to her benefit, it
stands to reason that she had a right to claim that benefit, for it would not be a benefit if the supposed
 beneficiary were barred from claiming it; and if the benefit necessitated the execution of the decree, she must
be possessed of the right to ask for the execution thereof as she did when she, by counsel, participated in the
petition for execution Annex 1.

Section 7 of Rule 35 would seem to afford a solid support to the above considerations. It provides that when a
complaint states a common cause of action against several defendants, some of whom answer, and the others
make default, 'the court shall try the case against all upon the answer thus filed and render judgment upon the
evidence presented by the parties in court'. It is obvious that under this provision the case is tried jointly not
only against the defendants answering but also against those defaulting, and the trial is held upon the answer
filed by the former; and the judgment, if adverse, will prejudice the defaulting defendants no less than those
who answer. In other words, the defaulting defendants are held bound by the answer filed by their co-
defendants and by the judgment which the court may render against all of them. By the same token, and by all
rules of equity and fair play, if the judgment should happen to be favorable, totally or partially, to the answering
defendants, it must correspondingly benefit the defaulting ones, for it would not be just to let the judgment
produce effects as to the defaulting defendants only when adverse to them and not when favorable.

In Bueno vs. Ortiz, 23 SCRA 1151, the Court applied the provision under discussion in the following words:

In answer to the charge that respondent Judge had committed a grave abuse of discretion in rendering a default
judgment against the PC, respondents allege that, not having filed its answer within the reglementary period,
the PC was in default, so that it was proper for Patanao to forthwith present his evidence and for respondent
Judge to render said judgment. It should be noted, however, that in entering the area in question and seeking to
prevent Patanao from continuing his logging operations therein, the PC was merely executing an order of the
Director of Forestry and acting as his agent. Patanao's cause of action against the other respondents in Case No.
190, namely, the Director of Forestry, the District Forester of Agusan, the Forest Officer of Bayugan, Agusan, and
the Secretary of Agriculture and Natural Resources. Pursuant to Rule 18, Section 4, of the Rules of Court, 'when
a complaint states a common cause of action against several defendants some of whom answer and the others
fail to do so, the court shall try the case against all upon the answer thus filed (by some) and render judgment
upon the evidence presented.' In other words, the answer filed by one or some of the defendants inures to the
benefit of all the others, even those who have not seasonably filed their answer.

Indeed, since the petition in Case No. 190 sets forth a common cause of action against all of the respondents
therein, a decision in favor of one of them would necessarily favor the others. In fact, the main issue, in said
case, is whether Patanao has a timber license to undertake logging operations in the disputed area. It is not
possible to decide such issue in the negative, insofar as the Director of Forestry, and to settle it otherwise, as
regards the PC, which is merely acting as agent of the Director of Forestry, and is, therefore, his alter ego, with
respect to the disputed forest area.

Stated differently, in all instances where a common cause of action is alleged against several defendants, some of whom
answer and the others do not, the latter or those in default acquire a vested right not only to own the defense
interposed in the answer of their co- defendant or co-defendants not in default but also to expect a result of the
litigation totally common with them in kind and in amount whether favorable or unfavorable. The substantive unity of
the plaintiff's cause against all the defendants is carried through to its adjective phase as ineluctably demanded by the
homogeneity and indivisibility of justice itself. Indeed, since the singleness of the cause of action also inevitably implies
that all the defendants are indispensable parties, the court's power to act is integral and cannot be split such that it
cannot relieve any of them and at the same time render judgment against the rest. Considering the tenor of the section
in question, it is to be assumed that when any defendant allows himself to be declared in default knowing that his
defendant has already answered, he does so trusting in the assurance implicit in the rule that his default is in essence a
mere formality that deprives him of no more than the right to take part in the trial and that the court would deem
anything done by or for the answering defendant as done by or for him. The presumption is that otherwise he would not
-have seen to that he would not be in default. Of course, he has to suffer the consequences of whatever the answering
defendant may do or fail to do, regardless of possible adverse consequences, but if the complaint has to be dismissed in
so far as the answering defendant is concerned it becomes his inalienable right that the same be dismissed also as to
him. It does not matter that the dismissal is upon the evidence presented by the plaintiff or upon the latter's mere
desistance, for in both contingencies, the lack of sufficient legal basis must be the cause. The integrity of the common
cause of action against all the defendants and the indispensability of all of them in the proceedings do not permit any
possibility of waiver of the plaintiff's right only as to one or some of them, without including all of them, and so, as a
rule, withdrawal must be deemed to be a confession of weakness as to all. This is not only elementary justice; it also
precludes the concomitant hazard that plaintiff might resort to the kind of procedural strategem practiced by private
respondent herein that resulted in totally depriving petitioners of every opportunity to defend themselves against her
claims which, after all, as will be seen later in this opinion, the record does not show to be invulnerable, both in their
factual and legal aspects, taking into consideration the tenor of the pleadings and the probative value of the competent
evidence which were before the trial court when it rendered its assailed decision where all the defendants are
indispensable parties, for which reason the absence of any of them in the case would result in the court losing its
competency to act validly, any compromise that the plaintiff might wish to make with any of them must, as a matter of
correct procedure, have to await until after the rendition of the judgment, at which stage the plaintiff may then treat
the matter of its execution and the satisfaction of his claim as variably as he might please. Accordingly, in the case now
before Us together with the dismissal of the complaint against the non-defaulted defendants, the court should have
ordered also the dismissal thereof as to petitioners.

Indeed, there is more reason to apply here the principle of unity and indivisibility of the action just discussed because all
the defendants here have already joined genuine issues with plaintiff. Their default was only at the pre-trial. And as to
such absence of petitioners at the pre-trial, the same could be attributed to the fact that they might not have considered
it necessary anymore to be present, since their respective children Lim and Leonardo, with whom they have common
defenses, could take care of their defenses as well. Anything that might have had to be done by them at such pre-trial
could have been done for them by their children, at least initially, specially because in the light of the pleadings before
the court, the prospects of a compromise must have appeared to be rather remote. Such attitude of petitioners is
neither uncommon nor totally unjustified. Under the circumstances, to declare them immediately and irrevocably in
default was not an absolute necessity. Practical considerations and reasons of equity should have moved respondent
court to be more understanding in dealing with the situation. After all, declaring them in default as respondent court did
not impair their right to a common fate with their children.

–3–

Another issue to be resolved in this case is the question of whether or not herein petitioners were entitled to notice of
plaintiff's motion to drop their co-defendants Lim and Leonardo, considering that petitioners had been previously
declared in default. In this connection, the decisive consideration is that according to the applicable rule, Section 9, Rule
13, already quoted above, (1) even after a defendant has been declared in default, provided he "files a motion to set
aside the order of default, — he shall be entitled to notice of all further proceedings regardless of whether the order of
default is set aside or not" and (2) a party in default who has not filed such a motion to set aside must still be served
with all "substantially amended or supplemented pleadings." In the instant case, it cannot be denied that petitioners had
all filed their motion for reconsideration of the order declaring them in default. Respondents' own answer to the
petition therein makes reference to the order of April 3, 1973, Annex 8 of said answer, which denied said motion for
reconsideration. On page 3 of petitioners' memorandum herein this motion is referred to as "a motion to set aside the
order of default." But as We have not been favored by the parties with a copy of the said motion, We do not even know
the excuse given for petitioners' failure to appear at the pre-trial, and We cannot, therefore, determine whether or not
the motion complied with the requirements of Section 3 of Rule 18 which We have held to be controlling in cases of
default for failure to answer on time. (The Philippine-British Co. Inc. etc. et al. vs. The Hon. Walfrido de los Angeles etc.
et al., 63 SCRA 50.)

We do not, however, have here, as earlier noted, a case of default for failure to answer but one for failure to appear at
the pre-trial. We reiterate, in the situation now before Us, issues have already been joined. In fact, evidence had been
partially offered already at the pre-trial and more of it at the actual trial which had already begun with the first witness
of the plaintiff undergoing re-cross-examination. With these facts in mind and considering that issues had already been
joined even as regards the defaulted defendants, it would be requiring the obvious to pretend that there was still need
for an oath or a verification as to the merits of the defense of the defaulted defendants in their motion to reconsider
their default. Inasmuch as none of the parties had asked for a summary judgment there can be no question that the
issues joined were genuine, and consequently, the reason for requiring such oath or verification no longer holds.
Besides, it may also be reiterated that being the parents of the non-defaulted defendants, petitioners must have
assumed that their presence was superfluous, particularly because the cause of action against them as well as their own
defenses are common. Under these circumstances, the form of the motion by which the default was sought to be lifted
is secondary and the requirements of Section 3 of Rule 18 need not be strictly complied with, unlike in cases of default
for failure to answer. We can thus hold as We do hold for the purposes of the revival of their right to notice under
Section 9 of Rule 13, that petitioner's motion for reconsideration was in substance legally adequate regardless of
whether or not it was under oath.

In any event, the dropping of the defendants Lim and Leonardo from plaintiff's amended complaint was virtually a
second amendment of plaintiffs complaint. And there can be no doubt that such amendment was substantial, for with
the elimination thereby of two defendants allegedly solidarily liable with their co-defendants, herein petitioners, it had
the effect of increasing proportionally what each of the remaining defendants, the said petitioners, would have to
answer for jointly and severally. Accordingly, notice to petitioners of the plaintiff's motion of October 18, 1974 was
legally indispensable under the rule above-quoted. Consequently, respondent court had no authority to act on the
motion, to dismiss, pursuant to Section 6 of Rule 15, for according to Senator Francisco, "(t) he Rules of Court clearly
provide that no motion shall be acted upon by the Court without the proof of service of notice thereof, together with a
copy of the motion and other papers accompanying it, to all parties concerned at least three days before the hearing
thereof, stating the time and place for the hearing of the motion. (Rule 26, section 4, 5 and 6, Rules of Court (now Sec.
15, new Rules). When the motion does not comply with this requirement, it is not a motion. It presents no question
which the court could decide. And the Court acquires no jurisdiction to consider it. (Roman Catholic Bishop of Lipa vs.
Municipality of Unisan 44 Phil., 866; Manakil vs. Revilla, 42 Phil., 81.) (Laserna vs. Javier, et al., CA-G.R. No. 7885, April
22, 1955; 21 L.J. 36, citing Roman Catholic Bishop of Lipa vs. Municipality of Unisan 44 Phil., 866; Manakil vs. Revilla, 42
Phil., 81.) (Francisco. The Revised Rules of Court in the Philippines, pp. 861-862.) Thus, We see again, from a different
angle, why respondent court's order of dismissal of October 21, 1974 is fatally ineffective.

–4–

The foregoing considerations notwithstanding, it is respondents' position that certiorari is not the proper remedy of
petitioners. It is contended that inasmuch as said petitioners have in fact made their appeal already by filing the
required notice of appeal and appeal bond and a motion for extension to file their record on appeal, which motion was
granted by respondent court, their only recourse is to prosecute that appeal. Additionally, it is also maintained that since
petitioners have expressly withdrawn their motion to quash of January 4, 1975 impugning the order of October 28,
1974, they have lost their right to assail by certiorari the actuations of respondent court now being questioned,
respondent court not having been given the opportunity to correct any possible error it might have committed.

We do not agree. As already shown in the foregoing discussion, the proceedings in the court below have gone so far out
of hand that prompt action is needed to restore order in the entangled situation created by the series of plainly illegal
orders it had issued. The essential purpose of certiorari is to keep the proceedings in lower judicial courts and tribunals
within legal bounds, so that due process and the rule of law may prevail at all times and arbitrariness, whimsicality and
unfairness which justice abhors may immediately be stamped out before graver injury, juridical and otherwise, ensues.
While generally these objectives may well be attained in an ordinary appeal, it is undoubtedly the better rule to allow
the special remedy of certiorari at the option of the party adversely affected, when the irregularity committed by the
trial court is so grave and so far reaching in its consequences that the long and cumbersome procedure of appeal will
only further aggravate the situation of the aggrieved party because other untoward actuations are likely to materialize
as natural consequences of those already perpetrated. If the law were otherwise, certiorari would have no reason at all
for being.

No elaborate discussion is needed to show the urgent need for corrective measures in the case at bar. Verily, this is one
case that calls for the exercise of the Supreme Court's inherent power of supervision over all kinds of judicial actions of
lower courts. Private respondent's procedural technique designed to disable petitioners to defend themselves against
her claim which appears on the face of the record itself to be at least highly controversial seems to have so fascinated
respondent court that none would be surprised should her pending motion for immediate execution of the impugned
judgment receive similar ready sanction as her previous motions which turned the proceedings into a one-sided affair.
The stakes here are high. Not only is the subject matter considerably substantial; there is the more important aspect
that not only the spirit and intent of the rules but even the basic rudiments of fair play have been disregarded. For the
Court to leave unrestrained the obvious tendency of the proceedings below would be nothing short of wittingly
condoning inequity and injustice resulting from erroneous construction and unwarranted application of procedural
rules.

–5–

The sum and total of all the foregoing disquisitions is that the decision here in question is legally anomalous. It is
predicated on two fatal malactuations of respondent court namely (1) the dismissal of the complaint against the non-
defaulted defendants Lim and Leonardo and (2) the ex-parte reception of the evidence of the plaintiff by the clerk of
court, the subsequent using of the same as basis for its judgment and the rendition of such judgment.

For at least three reasons which We have already fully discussed above, the order of dismissal of October 21, 1974 is
unworthy of Our sanction: (1) there was no timely notice of the motion therefor to the non-defaulted defendants, aside
from there being no notice at all to herein petitioners; (2) the common answer of the defendants, including the non-
defaulted, contained a compulsory counterclaim incapable of being determined in an independent action; and (3) the
immediate effect of such dismissal was the removal of the two non-defaulted defendants as parties, and inasmuch as
they are both indispensable parties in the case, the court consequently lost the" sine qua non of the exercise of judicial
power", per Borlasa vs. Polistico, supra. This is not to mention anymore the irregular delegation to the clerk of court of
the function of receiving plaintiff's evidence. And as regards the ex-parte reception of plaintiff's evidence and
subsequent rendition of the judgment by default based thereon, We have seen that it was violative of the right of the
petitioners, under the applicable rules and principles on default, to a common and single fate with their non-defaulted
co-defendants. And We are not yet referring, as We shall do this anon to the numerous reversible errors in the decision
itself.

It is to be noted, however, that the above-indicated two fundamental flaws in respondent court's actuations do not call
for a common corrective remedy. We cannot simply rule that all the impugned proceedings are null and void and should
be set aside, without being faced with the insurmountable obstacle that by so doing We would be reviewing the case as
against the two non-defaulted defendants who are not before Us not being parties hereto. Upon the other hand, for Us
to hold that the order of dismissal should be allowed to stand, as contended by respondents themselves who insist that
the same is already final, not only because the period for its finality has long passed but also because allegedly, albeit
not very accurately, said 'non-defaulted defendants unsuccessfully tried to have it set aside by the Court of Appeals
whose decision on their petition is also already final, We would have to disregard whatever evidence had been
presented by the plaintiff against them and, of course, the findings of respondent court based thereon which, as the
assailed decision shows, are adverse to them. In other words, whichever of the two apparent remedies the Court
chooses, it would necessarily entail some kind of possible juridical imperfection. Speaking of their respective practical or
pragmatic effects, to annul the dismissal would inevitably prejudice the rights of the non-defaulted defendants whom
We have not heard and who even respondents would not wish to have anything anymore to do with the case. On the
other hand, to include petitioners in the dismissal would naturally set at naught every effort private respondent has
made to establish or prove her case thru means sanctioned by respondent court. In short, We are confronted with a
legal para-dilemma. But one thing is certain — this difficult situations has been brought about by none other than
private respondent who has quite cynically resorted to procedural maneuvers without realizing that the technicalities of
the adjective law, even when apparently accurate from the literal point of view, cannot prevail over the imperatives of
the substantive law and of equity that always underlie them and which have to be inevitably considered in the
construction of the pertinent procedural rules.

All things considered, after careful and mature deliberation, the Court has arrived at the conclusion that as between the
two possible alternatives just stated, it would only be fair, equitable and proper to uphold the position of petitioners. In
other words, We rule that the order of dismissal of October 21, 1974 is in law a dismissal of the whole case of the
plaintiff, including as to petitioners herein. Consequently, all proceedings held by respondent court subsequent thereto
including and principally its decision of December 20, 1974 are illegal and should be set aside.

This conclusion is fully justified by the following considerations of equity:

1. It is very clear to Us that the procedural maneuver resorted to by private respondent in securing the decision in her
favor was ill-conceived. It was characterized by that which every principle of law and equity disdains — taking unfair
advantage of the rules of procedure in order to unduly deprive the other party of full opportunity to defend his cause.
The idea of "dropping" the non-defaulted defendants with the end in view of completely incapacitating their co-
defendants from making any defense, without considering that all of them are indispensable parties to a common cause
of action to which they have countered with a common defense readily connotes an intent to secure a one-sided
decision, even improperly. And when, in this connection, the obvious weakness of plaintiff's evidence is taken into
account, one easily understands why such tactics had to be availed of. We cannot directly or indirectly give Our assent to
the commission of unfairness and inequity in the application of the rules of procedure, particularly when the propriety
of reliance thereon is not beyond controversy.

2. The theories of remedial law pursued by private respondents, although approved by His Honor, run counter to such
basic principles in the rules on default and such elementary rules on dismissal of actions and notice of motions that no
trial court should be unaware of or should be mistaken in applying. We are at a loss as to why His Honor failed to see
through counsel's inequitous strategy, when the provisions (1) on the three-day rule on notice of motions, Section 4 of
Rule 15, (2) against dismissal of actions on motion of plaintiff when there is a compulsory counterclaim, Section 2, Rule
17, (3) against permitting the absence of indispensable parties, Section 7, Rule 3, (4) on service of papers upon
defendants in default when there are substantial amendments to pleadings, Section 9, Rule 13, and (5) on the unity and
integrity of the fate of defendants in default with those not in default where the cause of action against them and their
own defenses are common, Section 4, Rule 18, are so plain and the jurisprudence declaratory of their intent and proper
construction are so readily comprehensible that any error as to their application would be unusual in any competent
trial court.

3. After all, all the malactuations of respondent court are traceable to the initiative of private respondent and/or her
counsel. She cannot, therefore, complain that she is being made to unjustifiably suffer the consequences of what We
have found to be erroneous orders of respondent court. It is only fair that she should not be allowed to benefit from her
own frustrated objective of securing a one-sided decision.

4. More importantly, We do not hesitate to hold that on the basis of its own recitals, the decision in question cannot
stand close scrutiny. What is more, the very considerations contained therein reveal convincingly the inherent weakness
of the cause of the plaintiff. To be sure, We have been giving serious thought to the idea of merely returning this case
for a resumption of trial by setting aside the order of dismissal of October 21, 1974, with all its attendant difficulties on
account of its adverse effects on parties who have not been heard, but upon closer study of the pleadings and the
decision and other circumstances extant in the record before Us, We are now persuaded that such a course of action
would only lead to more legal complications incident to attempts on the part of the parties concerned to desperately
squeeze themselves out of a bad situation. Anyway, We feel confident that by and large, there is enough basis here and
now for Us to rule out the claim of the plaintiff.

Even a mere superficial reading of the decision would immediately reveal that it is littered on its face with deficiencies
and imperfections which would have had no reason for being were there less haste and more circumspection in
rendering the same. Recklessness in jumping to unwarranted conclusions, both factual and legal, is at once evident in its
findings relative precisely to the main bases themselves of the reliefs granted. It is apparent therein that no effort has
been made to avoid glaring inconsistencies. Where references are made to codal provisions and jurisprudence,
inaccuracy and inapplicability are at once manifest. It hardly commends itself as a deliberate and consciencious
adjudication of a litigation which, considering the substantial value of the subject matter it involves and the
unprecedented procedure that was followed by respondent's counsel, calls for greater attention and skill than the
general run of cases would.
Inter alia, the following features of the decision make it highly improbable that if We took another course of action,
private respondent would still be able to make out any case against petitioners, not to speak of their co-defendants who
have already been exonerated by respondent herself thru her motion to dismiss:

1. According to His Honor's own statement of plaintiff's case, "she is the widow of the late Tee Hoon Po Chuan (Po
Chuan, for short) who was then one of the partners in the commercial partnership, Glory Commercial Co. with
defendants Antonio Lim Tanhu (Lim Tanhu, for short) and Alfonso Leonardo Ng Sua (Ng Sua, for short) as co-partners;
that after the death of her husband on March 11, 1966 she is entitled to share not only in the capital and profits of the
partnership but also in the other assets, both real and personal, acquired by the partnership with funds of the latter
during its lifetime."

Relatedly, in the latter part of the decision, the findings are to the following effect: .

That the herein plaintiff Tan Put and her late husband Po Chuan married at the Philippine Independent Church
of Cebu City on December, 20, 1949; that Po Chuan died on March 11, 1966; that the plaintiff and the late Po
Chuan were childless but the former has a foster son Antonio Nuñez whom she has reared since his birth with
whom she lives up to the present; that prior to the marriage of the plaintiff to Po Chuan the latter was already
managing the partnership Glory Commercial Co. then engaged in a little business in hardware at Manalili St.,
Cebu City; that prior to and just after the marriage of the plaintiff to Po Chuan she was engaged in the drugstore
business; that not long after her marriage, upon the suggestion of Po Chuan the plaintiff sold her drugstore for
P125,000.00 which amount she gave to her husband in the presence of defendant Lim Tanhu and was invested
in the partnership Glory Commercial Co. sometime in 1950; that after the investment of the above-stated
amount in the partnership its business flourished and it embarked in the import business and also engaged in
the wholesale and retail trade of cement and GI sheets and under huge profits;

xxx xxx xxx

That the late Po Chuan was the one who actively managed the business of the partnership Glory Commercial Co.
he was the one who made the final decisions and approved the appointments of new personnel who were taken
in by the partnership; that the late Po Chuan and defendants Lim Tanhu and Ng Sua are brothers, the latter two
(2) being the elder brothers of the former; that defendants Lim Tanhu and Ng Sua are both naturalized Filipino
citizens whereas the late Po Chuan until the time of his death was a Chinese citizen; that the three (3) brothers
were partners in the Glory Commercial Co. but Po Chuan was practically the owner of the partnership having the
controlling interest; that defendants Lim Tanhu and Ng Sua were partners in name but they were mere
employees of Po Chuan .... (Pp. 89-91, Record.)

How did His Honor arrive at these conclusions? To start with, it is not clear in the decision whether or not in making its
findings of fact the court took into account the allegations in the pleadings of the parties and whatever might have
transpired at the pre-trial. All that We can gather in this respect is that references are made therein to pre-trial exhibits
and to Annex A of the answer of the defendants to plaintiff's amended complaint. Indeed, it was incumbent upon the
court to consider not only the evidence formally offered at the trial but also the admissions, expressed or implied, in the
pleadings, as well as whatever might have been placed before it or brought to its attention during the pre-trial. In this
connection, it is to be regretted that none of the parties has thought it proper to give Us an idea of what took place at
the pre-trial of the present case and what are contained in the pre-trial order, if any was issued pursuant to Section 4 of
Rule 20.

The fundamental purpose of pre-trial, aside from affording the parties every opportunity to compromise or settle their
differences, is for the court to be apprised of the unsettled issues between the parties and of their respective evidence
relative thereto, to the end that it may take corresponding measures that would abbreviate the trial as much as possible
and the judge may be able to ascertain the facts with the least observance of technical rules. In other words whatever is
said or done by the parties or their counsel at the pre- trial serves to put the judge on notice of their respective basic
positions, in order that in appropriate cases he may, if necessary in the interest of justice and a more accurate
determination of the facts, make inquiries about or require clarifications of matters taken up at the pre-trial, before
finally resolving any issue of fact or of law. In brief, the pre-trial constitutes part and parcel of the proceedings, and
hence, matters dealt with therein may not be disregarded in the process of decision making. Otherwise, the real essence
of compulsory pre-trial would be insignificant and worthless.

Now, applying these postulates to the findings of respondent court just quoted, it will be observed that the court's
conclusion about the supposed marriage of plaintiff to the deceased Tee Hoon Lim Po Chuan is contrary to the weight of
the evidence brought before it during the trial and the pre-trial.

Under Article 55 of the Civil Code, the declaration of the contracting parties that they take each other as husband and
wife "shall be set forth in an instrument" signed by the parties as well as by their witnesses and the person solemnizing
the marriage. Accordingly, the primary evidence of a marriage must be an authentic copy of the marriage contract.
While a marriage may also be proved by other competent evidence, the absence of the contract must first be
satisfactorily explained. Surely, the certification of the person who allegedly solemnized a marriage is not admissible
evidence of such marriage unless proof of loss of the contract or of any other satisfactory reason for its non-production
is first presented to the court. In the case at bar, the purported certification issued by a Mons. Jose M. Recoleto, Bishop,
Philippine Independent Church, Cebu City, is not, therefore, competent evidence, there being absolutely no showing as
to unavailability of the marriage contract and, indeed, as to the authenticity of the signature of said certifier, the jurat
allegedly signed by a second assistant provincial fiscal not being authorized by law, since it is not part of the functions of
his office. Besides, inasmuch as the bishop did not testify, the same is hearsay.

As regards the testimony of plaintiff herself on the same point and that of her witness Antonio Nuñez, there can be no
question that they are both self-serving and of very little evidentiary value, it having been disclosed at the trial that
plaintiff has already assigned all her rights in this case to said Nuñez, thereby making him the real party in interest here
and, therefore, naturally as biased as herself. Besides, in the portion of the testimony of Nuñez copied in Annex C of
petitioner's memorandum, it appears admitted that he was born only on March 25, 1942, which means that he was less
than eight years old at the supposed time of the alleged marriage. If for this reason alone, it is extremely doubtful if he
could have been sufficiently aware of such event as to be competent to testify about it.

Incidentally, another Annex C of the same memorandum purports to be the certificate of birth of one Antonio T. Uy
supposed to have been born on March 23, 1937 at Centro Misamis, Misamis Occidental, the son of one Uy Bien, father,
and Tan Put, mother. Significantly, respondents have not made any adverse comment on this document. It is more
likely, therefore, that the witness is really the son of plaintiff by her husband Uy Kim Beng. But she testified she was
childless. So which is which? In any event, if on the strength of this document, Nuñez is actually the legitimate son of Tan
Put and not her adopted son, he would have been but 13 years old in 1949, the year of her alleged marriage to Po
Chuan, and even then, considering such age, his testimony in regard thereto would still be suspect.

Now, as against such flimsy evidence of plaintiff, the court had before it, two documents of great weight belying the
pretended marriage. We refer to (1) Exhibit LL, the income tax return of the deceased Tee Hoon Lim Po Chuan indicating
that the name of his wife was Ang Sick Tin and (2) the quitclaim, Annex A of the answer, wherein plaintiff Tan Put stated
that she had been living with the deceased without benefit of marriage and that she was his "common-law wife". Surely,
these two documents are far more reliable than all the evidence of the plaintiff put together.

Of course, Exhibit LL is what might be termed as pre-trial evidence. But it is evidence offered to the judge himself, not to
the clerk of court, and should have at least moved him to ask plaintiff to explain if not rebut it before jumping to the
conclusion regarding her alleged marriage to the deceased, Po Chuan. And in regard to the quitclaim containing the
admission of a common-law relationship only, it is to be observed that His Honor found that "defendants Lim Tanhu and
Ng Sua had the plaintiff execute a quitclaim on November 29, 1967 (Annex "A", Answer) where they gave plaintiff the
amount of P25,000 as her share in the capital and profits of the business of Glory Commercial Co. which was engaged in
the hardware business", without making mention of any evidence of fraud and misrepresentation in its execution,
thereby indicating either that no evidence to prove that allegation of the plaintiff had been presented by her or that
whatever evidence was actually offered did not produce persuasion upon the court. Stated differently, since the
existence of the quitclaim has been duly established without any circumstance to detract from its legal import, the court
should have held that plaintiff was bound by her admission therein that she was the common-law wife only of Po Chuan
and what is more, that she had already renounced for valuable consideration whatever claim she might have relative to
the partnership Glory Commercial Co.

And when it is borne in mind that in addition to all these considerations, there are mentioned and discussed in the
memorandum of petitioners (1) the certification of the Local Civil Registrar of Cebu City and (2) a similar certification of
the Apostolic Prefect of the Philippine Independent Church, Parish of Sto. Niño, Cebu City, that their respective official
records corresponding to December 1949 to December 1950 do not show any marriage between Tee Hoon Lim Po
Chuan and Tan Put, neither of which certifications have been impugned by respondent until now, it stands to reason
that plaintiff's claim of marriage is really unfounded. Withal, there is still another document, also mentioned and
discussed in the same memorandum and unimpugned by respondents, a written agreement executed in Chinese, but
purportedly translated into English by the Chinese Consul of Cebu, between Tan Put and Tee Hoon Lim Po Chuan to the
following effect:

CONSULATE OF THE REPUBLIC OF CHINA Cebu City, Philippines

TRANSLATION
This is to certify that 1, Miss Tan Ki Eng Alias Tan Put, have lived with Mr. Lim Po Chuan alias TeeHoon since 1949 but it
recently occurs that we are incompatible with each other and are not in the position to keep living together permanently.
With the mutual concurrence, we decided to terminate the existing relationship of common law-marriage and promised not
to interfere each other's affairs from now on. The Forty Thousand Pesos (P40,000.00) has been given to me by Mr. Lim Po
Chuan for my subsistence.
Witnesses:
Mr. Lim Beng Guan Mr. Huang Sing Se
Signed on the 10 day of the 7th month of the 54th year of the Republic of China (corresponding to the year 1965).
(SGD) TAN KI ENG
Verified from the records. JORGE TABAR (Pp. 283-284, Record.)

Indeed, not only does this document prove that plaintiff's relation to the deceased was that of a common-law wife but
that they had settled their property interests with the payment to her of P40,000.

In the light of all these circumstances, We find no alternative but to hold that plaintiff Tan Put's allegation that she is the
widow of Tee Hoon Lim Po Chuan has not been satisfactorily established and that, on the contrary, the evidence on
record convincingly shows that her relation with said deceased was that of a common-law wife and furthermore, that all
her claims against the company and its surviving partners as well as those against the estate of the deceased have
already been settled and paid. We take judicial notice of the fact that the respective counsel who assisted the parties in
the quitclaim, Attys. H. Hermosisima and Natalio Castillo, are members in good standing of the Philippine Bar, with the
particularity that the latter has been a member of the Cabinet and of the House of Representatives of the Philippines,
hence, absent any credible proof that they had allowed themselves to be parties to a fraudulent document His Honor
did right in recognizing its existence, albeit erring in not giving due legal significance to its contents.

2. If, as We have seen, plaintiff's evidence of her alleged status as legitimate wife of Po Chuan is not only unconvincing
but has been actually overcome by the more competent and weighty evidence in favor of the defendants, her attempt
to substantiate her main cause of action that defendants Lim Tanhu and Ng Sua have defrauded the partnership Glory
Commercial Co. and converted its properties to themselves is even more dismal. From the very evidence summarized by
His Honor in the decision in question, it is clear that not an iota of reliable proof exists of such alleged misdeeds.

Of course, the existence of the partnership has not been denied, it is actually admitted impliedly in defendants'
affirmative defense that Po Chuan's share had already been duly settled with and paid to both the plaintiff and his
legitimate family. But the evidence as to the actual participation of the defendants Lim Tanhu and Ng Sua in the
operation of the business that could have enabled them to make the extractions of funds alleged by plaintiff is at best
confusing and at certain points manifestly inconsistent.

In her amended complaint, plaintiff repeatedly alleged that as widow of Po Chuan she is entitled to ¹/3 share of the
assets and properties of the partnership. In fact, her prayer in said complaint is, among others, for the delivery to her of
such ¹/3 share. His Honor's statement of the case as well as his findings and judgment are all to that same effect. But
what did she actually try to prove at the ex- parte hearing?

According to the decision, plaintiff had shown that she had money of her own when she "married" Po Chuan and "that
prior to and just after the marriage of the plaintiff to Po Chuan, she was engaged in the drugstore business; that not long
after her marriage, upon the suggestion of Po Chuan, the plaintiff sold her drugstore for P125,000 which amount she
gave to her husband in the presence of Tanhu and was invested in the partnership Glory Commercial Co. sometime in
1950; that after the investment of the above-stated amount in the partnership, its business flourished and it embarked
in the import business and also engaged in the wholesale and retail trade of cement and GI sheets and under (sic) huge
profits." (pp. 25-26, Annex L, petition.)

To begin with, this theory of her having contributed of P125,000 to the capital of the partnership by reason of which the
business flourished and amassed all the millions referred to in the decision has not been alleged in the complaint, and
inasmuch as what was being rendered was a judgment by default, such theory should not have been allowed to be the
subject of any evidence. But inasmuch as it was the clerk of court who received the evidence, it is understandable that
he failed to observe the rule. Then, on the other hand, if it was her capital that made the partnership flourish, why
would she claim to be entitled to only to ¹/3 of its assets and profits? Under her theory found proven by respondent
court, she was actually the owner of everything, particularly because His Honor also found "that defendants Lim Tanhu
and Ng Sua were partners in the name but they were employees of Po Chuan that defendants Lim Tanhu and Ng Sua had
no means of livelihood at the time of their employment with the Glory Commercial Co. under the management of the
late Po Chuan except their salaries therefrom; ..." (p. 27, id.) Why then does she claim only ¹/3 share? Is this an indication
of her generosity towards defendants or of a concocted cause of action existing only in her confused imagination
engendered by the death of her common-law husband with whom she had settled her common-law claim for
recompense of her services as common law wife for less than what she must have known would go to his legitimate wife
and children?

Actually, as may be noted from the decision itself, the trial court was confused as to the participation of defendants Lim
Tanhu and Ng Sua in Glory Commercial Co. At one point, they were deemed partners, at another point mere employees
and then elsewhere as partners-employees, a newly found concept, to be sure, in the law on partnership. And the
confusion is worse comfounded in the judgment which allows these "partners in name" and "partners-employees" or
employees who had no means of livelihood and who must not have contributed any capital in the business, "as Po
Chuan was practically the owner of the partnership having the controlling interest", ¹/3 each of the huge assets and
profits of the partnership. Incidentally, it may be observed at this juncture that the decision has made Po Chuan play the
inconsistent role of being "practically the owner" but at the same time getting his capital from the P125,000 given to
him by plaintiff and from which capital the business allegedly "flourished."

Anent the allegation of plaintiff that the properties shown by her exhibits to be in the names of defendants Lim Tanhu
and Ng Sua were bought by them with partnership funds, His Honor confirmed the same by finding and holding that "it
is likewise clear that real properties together with the improvements in the names of defendants Lim Tanhu and Ng Sua
were acquired with partnership funds as these defendants were only partners-employees of deceased Po Chuan in the
Glory Commercial Co. until the time of his death on March 11, 1966." (p. 30, id.) It Is Our considered view, however, that
this conclusion of His Honor is based on nothing but pure unwarranted conjecture. Nowhere is it shown in the decision
how said defendants could have extracted money from the partnership in the fraudulent and illegal manner pretended
by plaintiff. Neither in the testimony of Nuñez nor in that of plaintiff, as these are summarized in the decision, can there
be found any single act of extraction of partnership funds committed by any of said defendants. That the partnership
might have grown into a multi-million enterprise and that the properties described in the exhibits enumerated in the
decision are not in the names of Po Chuan, who was Chinese, but of the defendants who are Filipinos, do not necessarily
prove that Po Chuan had not gotten his share of the profits of the business or that the properties in the names of the
defendants were bought with money of the partnership. In this connection, it is decisively important to consider that on
the basis of the concordant and mutually cumulative testimonies of plaintiff and Nuñez, respondent court found very
explicitly that, and We reiterate:
 That the late Po Chuan was the one who actively managed the business of the partnership Glory Commercial Co.
he was the one who made the final decisions and approved the appointments of new Personnel who were taken
in by the partnership; that the late Po Chuan and defendants Lim Tanhu and Ng Sua are brothers, the latter to
(2) being the elder brothers of the former; that defendants Lim Tanhu and Ng Sua are both naturalized Filipino
citizens whereas the late Po Chuan until the time of his death was a Chinese citizen; that the three (3) brothers
were partners in the Glory Commercial Co. but Po Chuan was practically the owner of the partnership having the
controlling interest; that defendants Lim Tanhu and Ng Sua were partners in name but they were mere
employees of Po Chuan; .... (Pp. 90-91, Record.)

If Po Chuan was in control of the affairs and the running of the partnership, how could the defendants have defrauded
him of such huge amounts as plaintiff had made his Honor believe? Upon the other hand, since Po Chuan was in control
of the affairs of the partnership, the more logical inference is that if defendants had obtained any portion of the funds of
the partnership for themselves, it must have been with the knowledge and consent of Po Chuan, for which reason no
accounting could be demanded from them therefor, considering that Article 1807 of the Civil Code refers only to what is
taken by a partner without the consent of the other partner or partners. Incidentally again, this theory about Po Chuan
having been actively managing the partnership up to his death is a substantial deviation from the allegation in the
amended complaint to the effect that "defendants Antonio Lim Tanhu, Alfonso Leonardo Ng Sua, Lim Teck Chuan and
Eng Chong Leonardo, through fraud and machination, took actual and active management of the partnership and
although Tee Hoon Lim Po Chuan was the manager of Glory Commercial Co., defendants managed to use the funds of
the partnership to purchase lands and buildings etc. (Par. 4, p. 2 of amended complaint, Annex B of petition) and should
not have been permitted to be proven by the hearing officer, who naturally did not know any better.

Moreover, it is very significant that according to the very tax declarations and land titles listed in the decision, most if
not all of the properties supposed to have been acquired by the defendants Lim Tanhu and Ng Sua with funds of the
partnership appear to have been transferred to their names only in 1969 or later, that is, long after the partnership had
been automatically dissolved as a result of the death of Po Chuan. Accordingly, defendants have no obligation to
account to anyone for such acquisitions in the absence of clear proof that they had violated the trust of Po Chuan during
the existence of the partnership. (See Hanlon vs. Hansserman and. Beam, 40 Phil. 796.)

There are other particulars which should have caused His Honor to readily disbelieve plaintiffs' pretensions. Nuñez
testified that "for about 18 years he was in charge of the GI sheets and sometimes attended to the imported items of
the business of Glory Commercial Co." Counting 18 years back from 1965 or 1966 would take Us to 1947 or 1948. Since
according to Exhibit LL, the baptismal certificate produced by the same witness as his birth certificate, shows he was
born in March, 1942, how could he have started managing Glory Commercial Co. in 1949 when he must have been
barely six or seven years old? It should not have escaped His Honor's attention that the photographs showing the
premises of Philippine Metal Industries after its organization "a year or two after the establishment of Cebu Can Factory
in 1957 or 1958" must have been taken after 1959. How could Nuñez have been only 13 years old then as claimed by
him to have been his age in those photographs when according to his "birth certificate", he was born in 1942? His Honor
should not have overlooked that according to the same witness, defendant Ng Sua was living in Bantayan until he was
directed to return to Cebu after the fishing business thereat floundered, whereas all that the witness knew about
defendant Lim Teck Chuan's arrival from Hongkong and the expenditure of partnership money for him were only told to
him allegedly by Po Chuan, which testimonies are veritably exculpatory as to Ng Sua and hearsay as to Lim Teck Chuan.
Neither should His Honor have failed to note that according to plaintiff herself, "Lim Tanhu was employed by her
husband although he did not go there always being a mere employee of Glory Commercial Co." (p. 22, Annex the
decision.)

The decision is rather emphatic in that Lim Tanhu and Ng Sua had no known income except their salaries. Actually, it is
not stated, however, from what evidence such conclusion was derived in so far as Ng Sua is concerned. On the other
hand, with respect to Lim Tanhu, the decision itself states that according to Exhibit NN-Pre trial, in the supposed income
tax return of Lim Tanhu for 1964, he had an income of P4,800 as salary from Philippine Metal Industries alone and had a
total assess sable net income of P23,920.77 that year for which he paid a tax of P4,656.00. (p. 14. Annex L, id.) And per
Exhibit GG-Pretrial in the year, he had a net income of P32,000 for which be paid a tax of P3,512.40. (id.) As early as
1962, "his fishing business in Madridejos Cebu was making money, and he reported "a net gain from operation (in) the
amount of P865.64" (id., per Exhibit VV-Pre-trial.) From what then did his Honor gather the conclusion that all the
properties registered in his name have come from funds malversed from the partnership?

It is rather unusual that His Honor delved into financial statements and books of Glory Commercial Co. without the aid of
any accountant or without the same being explained by any witness who had prepared them or who has knowledge of
the entries therein. This must be the reason why there are apparent inconsistencies and inaccuracies in the conclusions
His Honor made out of them. In Exhibit SS-Pre-trial, the reported total assets of the company amounted to
P2,328,460.27 as of December, 1965, and yet, Exhibit TT-Pre-trial, according to His Honor, showed that the total value of
goods available as of the same date was P11,166,327.62. On the other hand, per Exhibit XX-Pre-trial, the supposed
balance sheet of the company for 1966, "the value of inventoried merchandise, both local and imported", as found by
His Honor, was P584,034.38. Again, as of December 31, 1966, the value of the company's goods available for sale was
P5,524,050.87, per Exhibit YY and YY-Pre-trial. Then, per Exhibit II-3-Pre-trial, the supposed Book of Account, whatever
that is, of the company showed its "cash analysis" was P12,223,182.55. We do not hesitate to make the observation that
His Honor, unless he is a certified public accountant, was hardly qualified to read such exhibits and draw any definite
conclusions therefrom, without risk of erring and committing an injustice. In any event, there is no comprehensible
explanation in the decision of the conclusion of His Honor that there were P12,223,182.55 cash money defendants have
to account for, particularly when it can be very clearly seen in Exhibits 11-4, 11-4- A, 11-5 and 11-6-Pre-trial, Glory
Commercial Co. had accounts payable as of December 31, 1965 in the amount of P4,801,321.17. (p. 15, id.) Under the
circumstances, We are not prepared to permit anyone to predicate any claim or right from respondent court's unaided
exercise of accounting knowledge.

Additionally, We note that the decision has not made any finding regarding the allegation in the amended complaint
that a corporation denominated Glory Commercial Co., Inc. was organized after the death of Po Chuan with capital from
the funds of the partnership. We note also that there is absolutely no finding made as to how the defendants Dy Ochay
and Co Oyo could in any way be accountable to plaintiff, just because they happen to be the wives of Lim Tanhu and Ng
Sua, respectively. We further note that while His Honor has ordered defendants to deliver or pay jointly and severally to
the plaintiff P4,074,394.18 or ¹/3 of the P12,223,182.55, the supposed cash belonging to the partnership as of December
31, 1965, in the same breath, they have also been sentenced to partition and give ¹/ 3share of the properties enumerated
in the dispositive portion of the decision, which seemingly are the very properties allegedly purchased from the funds of
the partnership which would naturally include the P12,223,182.55 defendants have to account for. Besides, assuming
there has not yet been any liquidation of the partnership, contrary to the allegation of the defendants, then Glory
Commercial Co. would have the status of a partnership in liquidation and the only right plaintiff could have would be to
what might result after such liquidation to belong to the deceased partner, and before this is finished, it is impossible to
determine, what rights or interests, if any, the deceased had (Bearneza vs. Dequilla 43 Phil. 237). In other words, no
specific amounts or properties may be adjudicated to the heir or legal representative of the deceased partner without
the liquidation being first terminated.

Indeed, only time and the fear that this decision would be much more extended than it is already prevent us from
further pointing out the inexplicable deficiencies and imperfections of the decision in question. After all, what have been
discussed should be more than sufficient to support Our conclusion that not only must said decision be set aside but also
that the action of the plaintiff must be totally dismissed, and, were it not seemingly futile and productive of other legal
complications, that plaintiff is liable on defendants' counterclaims. Resolution of the other issues raised by the parties
albeit important and perhaps pivotal has likewise become superfluous.

IN VIEW OF ALL THE FOREGOING, the petition is granted. All proceedings held in respondent court in its Civil Case No.
12328 subsequent to the order of dismissal of October 21, 1974 are hereby annulled and set aside, particularly the ex-
parte proceedings against petitioners and the decision on December 20, 1974. Respondent court is hereby ordered to
enter an order extending the effects of its order of dismissal of the action dated October 21, 1974 to herein petitioners
Antonio Lim Tanhu, Dy Ochay, Alfonso Leonardo Ng Sua and Co Oyo. And respondent court is hereby permanently
enjoined from taking any further action in said civil case gave and except as herein indicated. Costs against private
respondent.
A.M. No. P-02-1644 November 11, 2004

ARNEL S. CRUZ, complainant,

vs.
ATTY. LUNINGNING Y. CENTRON, Acting Clerk of Court, RTC-OCC, Calapan City, respondent.

RESOLUTION

AUSTRIA-MARTINEZ, J.:

Before us is an administrative matter which stemmed from a letter-complaint dated January 2, 2001, originally filed with
the Office of the Ombudsman, by Arnel S. Cruz against Atty. Luningning Y. Centron, Clerk of Court VI, Regional Trial
Court, Calapan City, Oriental Mindoro, for acts constitutive of gross misconduct.

In a letter dated January 26, 2001, the Office of the Deputy Ombudsman for Luzon referred the instant matter to the
Office of the Court Administrator (OCA) of this Court.1

Complainant alleges: Atty. Centron assisted a certain Gloria Logdat and Conchita de la Cruz in consummating the sale of
a parcel of land covered by Original Certificate of Title (OCT) No. 2186, in the name of one Joaquina Jabat. Respondent’s
assistance consisted in preparing and notarizing the documents of sale. The said sale is illegal because the property
covered by the sale is still the subject of "reconstitution and Extra-Judicial Settlement among the heirs." As a result of
the illegal sale, Logdat and de la Cruz are charged with estafa through falsification of public documents. Respondent
took advantage of her being a lawyer to solicit the trust and confidence of the buyers of the subject parcel of land.
Respondent is involved in the disappearance of OCT No. 2186, and she refuses to surrender the title which is in the
possession of one of her relatives.2 Complainant prays that respondent be disbarred and removed from office.

In compliance with an Indorsement dated September 24, 2001 of the OCA, respondent filed her Comment dated
October 29, 2001, denying involvement in the preparation of the documents and in the consummation of the sale of the
parcel of land covered by OCT No. 2186. Respondent claims that her only participation in the said sale is that she was
the one who notarized the deed of sale on account that she was requested by the parties to notarize the same because
they cannot afford the notarial fee being charged by the notary public they earlier approached. Respondent also denies
any involvement in the alleged loss of the owner’s duplicate copy of OCT No. 2186. She claims that Conchita Acyatan de
la Cruz and Gloria Acyatan Salamat-Logdat gave the said certificate of title to their lawyer, Atty. Apolonia A. Comia-
Soguilon.3

On July 26, 2002, the OCA submitted a report finding the complaint to be without basis. However, the OCA observed
that respondent violated the provisions of Section 242 of the Revised Administrative Code as well as Section G, Chapter
VIII of the Manual for Clerks of Court when she notarized a deed of conveyance, a document which is not connected
with the exercise of her official functions and duties as Ex-Officio Notary Public. Accordingly, the OCA recommended
that respondent be fined in the amount of P2,000.00 and sternly warned that a repetition of the same or similar act(s) in
the future will be dealt with more severely.

In a resolution dated February 17, 2003, we resolved to require the parties to manifest within ten days from notice if
they are willing to submit the matter for resolution on the basis of the pleadings filed. In compliance therewith,
complainant filed a manifestation dated March 28, 2003, indicating his desire to submit the case for resolution on the
basis of the pleadings filed. Respondent failed to file the required manifestation within the period allowed by the Court.
In a Resolution dated March 8, 2004, we required respondent to show cause why she should not be disciplinarily dealt
with or held in contempt for her failure to file the required manifestation.

In a Compliance dated May 3, 2004, respondent explained that her failure to timely file her manifestation was brought
about by her heavy volume of work and enormous responsibility as Clerk of Court of the Regional Trial Court of Calapan
City. She manifested her desire to submit the instant case for resolution on the basis of the pleadings filed.

We agree with the findings and recommendation of the OCA.

In administrative cases for disbarment or suspension against lawyers, the quantum of proof required is clearly
preponderant evidence and the burden of proof rests upon the complainant.4

In the present case, we find that complainant failed to present clear and preponderant evidence to show that
respondent had direct and instrumental participation in the preparation of documents and the subsequent sale of the
subject parcel of land covered by OCT No. 2186. Aside from the deed of sale covering the subject parcel of land which
was notarized by respondent, no competent evidence was shown that would directly link her to the said sale. While it
may be logical to assume that respondent was the one who prepared the deed of sale since she was the one who
notarized it, we cannot give evidentiary weight to such a supposition in the absence of any evidence to support it.
Moreover, complainant’s allegation that respondent influenced the buyers of the subject parcel of land is contradicted
by the sworn affidavit of Adelfa Manes, who is one of the buyers of the disputed piece of land. Manes attested to the
fact that respondent did not convince nor influence them in buying the subject property. Likewise, we find no
competent evidence to prove that respondent is responsible for the alleged loss of the owner’s duplicate copy of OCT
No. 2186.

Nonetheless, we find that respondent is guilty of violating Section 41 (as amended by Section 2 of R. A. No. 6733) 5and
Section 2426 of the Revised Administrative Code, in relation to Sections G,7 M8 and N,9 Chapter VIII of the Manual for
Clerks of Court.

Under these provisions, Clerks of Court are notaries public ex officio, and may thus notarize documents or administer
oaths but only when the matter is related to the exercise of their official functions. As we held in Astorga vs.
Solas,10 clerks of court should not, in their ex-officio capacity, take part in the execution of private documents bearing no
relation at all to their official functions.11 In the present case, it is not within respondent’s competence, as it is not part of
her official function and duty, to notarize the subject deed of sale. Respondent is guilty of abuse of authority.

In Astorga,12 we imposed a fine of P5,000.00 on a clerk of court who was found guilty of notarizing various documents
and administering oaths on matters which are alien to his official duties. In the present case, it appearing that this is
respondent’s first offense of this nature and that she has only notarized one document, we find the OCA’s
recommended penalty of a fine of P2,000.00 commensurate to the offense committed.

WHEREFORE, Atty. Luningning Y. Centron, Clerk of Court, Regional Trial Court of Calapan City, Oriental Mindoro, is found
guilty of abuse of authority and is hereby ORDERED to pay a FINE of P2,000.00. She is STERNLY WARNED that a
repetition of the same or similar acts in the future shall be dealt with more severely.

SO ORDERED.
G.R. No. 129416 November 25, 2004

ZENAIDA B. TIGNO, IMELDA B. TIGNO and ARMI B. TIGNO, petitioners, vs.SPOUSES ESTAFINO AQUINO and
FLORENTINA AQUINO and the HONORABLE COURT OF APPEALS,respondents.

DECISION

TINGA, J.:

The controversy in the present petition hinges on the admissibility of a single document, a deed of sale involving interest
over real property, notarized by a person of questionable capacity. The assailed ruling of the Court of Appeals, which
overturned the findings of fact of the Regional Trial Court, relied primarily on the presumption of regularity attaching to
notarized documents with respect to its due execution. We conclude instead that the document has not been duly
notarized and accordingly reverse the Court of Appeals.

The facts are as follow:

On 11 January 1980, respondent spouses Estafino and Florentina Aquino (the Aquinos) filed a complaint for
enforcement of contract and damages against Isidro Bustria (Bustria).1 The complaint sought to enforce an alleged sale
by Bustria to the Aquinos of a one hundred twenty thousand (120,000) square meter fishpond located in Dasci,
Pangasinan. The property was not registered either under the Land Registration Act or under the Spanish Mortgage Law,
though registrable under Act No. 3344.2 The conveyance was covered by a Deed of Sale dated 2 September 1978.

Eventually, Bustria and the Aquinos entered into a compromise agreement, whereby Bustria agreed to recognize the
validity of the sale, and the Aquinos in turn agreed to grant to Bustria the right to repurchase the same property after
the lapse of seven (7) years.

Upon submission, the Court of First Instance of Pangasinan, Branch VII, approved and incorporated the compromise
agreement in a Decision which it rendered on 7 September 1981.

Bustria died in October of 1986.3 On 1 December 1989, petitioner Zenaida B. Tigno (Tigno), in substitution of her
deceased father Isidro Bustria,4 attempted to repurchase the property by filing a Motion for Consignation. She deposited
the amount of Two Hundred Thirty Thousand Pesos (P200,000.00) with the trial court, now Regional Trial Court (RTC),
Branch 55 at Alaminos, Pangasinan. On 18 December 1989, the Aquinos filed an opposition, arguing that the right to
repurchase was not yet demandable and that Tigno had failed to make a tender of payment. In an Order dated 10
October 1999, the RTC denied the Motion for Consignation.5

In June of 1991, Tigno filed a Motion for a Writ of Execution, which was likewise opposed by the Aquinos, and denied by
the RTC. Then, on 6 September 1991, Tigno filed an action for Revival of Judgment, 6 seeking the revival of the decision in
Civil Case No. A-1257, so that it could be executed accordingly.7 The Aquinos filed an answer, wherein they alleged that
Bustria had sold his right to repurchase the property to them in a deed of sale dated 17 October 1985.8

Among the witnesses presented by the Aquinos during trial were Jesus De Francia (De Francia), the instrumental witness
to the deed of sale, and former Judge Franklin Cariño (Judge Cariño), who notarized the same. These two witnesses
testified as to the occasion of the execution and signing of the deed of sale by Bustria. Thereafter, in their Formal Offer
of Documentary Evidence, the Aquinos offered for admission as their Exhibit No. "8," the deed of sale (Deed of
Sale)9 purportedly executed by Bustria. The admission of the Deed of Sale was objected to by Tigno on the ground that it
was a false and fraudulent document which had not been acknowledged by Bustria as his own; and that its existence
was suspicious, considering that it had been previously unknown, and not even presented by the Aquinos when they
opposed Tigno's previous Motion for Consignation.10

In an Order dated 6 April 1994, the RTC refused to admit the Deed of Sale in evidence. 11 A Motion for Reconsideration
praying for the admission of said exhibit was denied in an Order dated 27 April 1994.12
Then, on 18 August 1994, a Decision was rendered by the RTC in favor of Tigno. The RTC therein expressed doubts as to
the authenticity of the Deed of Sale, characterizing the testimonies of De Francia and Cariño as conflicting.13 The RTC
likewise observed that nowhere in the alleged deed of sale was there any statement that it was acknowledged by
Bustria;14 that it was suspicious that Bustria was not assisted or represented by his counsel in connection with the
preparation and execution of the deed of sale15 or that Aquino had raised the matter of the deed of sale in his previous
Opposition to the Motion for Consignation.16 The RTC then stressed that the previous Motion for Execution lodged by
Tigno had to be denied since more than five (5) years had elapsed from the date the judgment in Civil Case No. A-1257
had become final and executory; but the judgment could be revived by action such as the instant complaint.
Accordingly, the RTC ordered the revival of the judgment dated 7 September 1981 in Civil Case No. A-1257.17

The Aquinos interposed an appeal to the Court of Appeals.18 In the meantime, the RTC allowed the execution pending
appeal of its Decision.19 On 23 December 1996, the Court of Appeals Tenth Division promulgated a Decision20 reversing
and setting aside the RTC Decision. The appellate court ratiocinated that there were no material or substantial
inconsistencies between the testimonies of Cariño and De Francia that would taint the document with doubtful
authenticity; that the absence of the acknowledgment and substitution instead of a jurat did not render the instrument
invalid; and that the non-assistance or representation of Bustria by counsel did not render the document null and
ineffective.21 It was noted that a notarized document carried in its favor the presumption of regularity with respect to its
due execution, and that there must be clear, convincing and more than merely preponderant evidence to contradict the
same. Accordingly, the Court of Appeals held that the RTC erred in refusing to admit the Deed of Sale, and that the
document extinguished the right of Bustria's heirs to repurchase the property.

After the Court of Appeals denied Tigno's Motion for Reconsideration,22 the present petition was filed before this Court.
Tigno imputes grave abuse of discretion and misappreciation of facts to the Court of Appeals when it admitted the Deed
of Sale. He also argues that the appellate court should have declared the Deed of Sale as a false, fraudulent and
unreliable document not supported by any consideration at all.

The general thrusts of the arguments posed by Tigno are factually based. As such, they could normally lead to the
dismissal of this Petition for Review. However, while this Court is not ordinarily a trier of facts, 23 factual review may be
warranted in instances when the findings of the trial court and the intermediate appellate court are contrary to each
other.24 Moreover, petitioner raises a substantial argument regarding the capacity of the notary public, Judge Cariño, to
notarize the document. The Court of Appeals was unfortunately silent on that matter, but this Court will take it up with
definitiveness.

The notarial certification of the Deed of Sale reads as follows:

ACKNOWLEDGMENT
REPUBLIC OF THE PHILIPPINES)
PROVINCE OF PANGASINAN ) S.S.
MUNICIPALITY OF ALAMINOS )
SUBSCRIBED AND SWORN TO before me this 17th day of October 1985 at Alaminos, Pangasinan both parties known to me
to be the same parties who executed the foregoing instrument.
FRANKLIN CARIÑO
Ex-Officio Notary Public
Judge, M.T.C.
Alaminos, Pangasinan
There are palpable errors in this certification. Most glaringly, the document is certified by way of a jurat instead of an
acknowledgment. A jurat is a distinct creature from an acknowledgment. An acknowledgment is the act of one who has
executed a deed in going before some competent officer or court and declaring it to be his act or deed; while a jurat is
that part of an affidavit where the officer certifies that the same was sworn before him.25 Under Section 127 of the Land
Registration Act,26 which has been replicated in Section 112 of Presidential Decree No. 1529, 27 the Deed of Sale should
have been acknowledged before a notary public.28
But there is an even more substantial defect in the notarization, one which is determinative of this petition. This pertains
to the authority of Judge Franklin Cariño to notarize the Deed of Sale.

It is undisputed that Franklin Cariño at the time of the notarization of the Deed of Sale, was a sitting judge of the
Metropolitan Trial Court of Alaminos.29 Petitioners point out, citing Tabao v. Asis,30 that municipal judges may not
undertake the preparation and acknowledgment of private documents, contracts, and other acts of conveyance which
bear no relation to the performance of their functions as judges.31 In response, respondents claim that the prohibition
imposed on municipal court judges from notarizing documents took effect only in December of 1989, or four years after
the Deed of Sale was notarized by Cariño.32

Respondent's contention is erroneous. Municipal Trial Court (MTC) and Municipal Circuit Trial Court (MCTC) judges are
empowered to perform the functions of notaries public ex officio under Section 76 of Republic Act No. 296, as amended
(otherwise known as the Judiciary Act of 1948) and Section 242 of the Revised Administrative Code. 33However, as far
back as 1980 in Borre v. Moya,34 the Court explicitly declared that municipal court judges such as Cariño may notarize
only documents connected with the exercise of their official duties.35 The Deed of Sale was not connected with any
official duties of Judge Cariño, and there was no reason for him to notarize it. Our observations as to the errant judge in
Borre are pertinent in this case, considering that Judge Cariño identified himself in the Deed of Sale as "Ex-Officio Notary
Public, Judge, MTC:"

[A notary ex officio] should not compete with private law practitioners or regular notaries in transacting legal
conveyancing business.

In the instant case, it was not proper that a city judge should notarize documents involving private transactions and sign
the document in this wise: "GUMERSINDO ARCILLA, Notary Public Ex-Officio, City Judge" (p. 16, Rollo, Annex D of
Complaint). In doing so, he obliterated the distinction between a regular notary and a notary ex officio.36

There are possible grounds for leniency in connection with this matter, as Supreme Court Circular No. I-90 permits
notaries public ex officio to perform any act within the competency of a regular notary public provided that certification
be made in the notarized documents attesting to the lack of any lawyer or notary public in such municipality or circuit.
Indeed, it is only when there are no lawyers or notaries public that the exception applies.37The facts of this case do not
warrant a relaxed attitude towards Judge Cariño's improper notarial activity. There was no such certification in the Deed
of Sale. Even if one was produced, we would be hard put to accept the veracity of its contents, considering that
Alaminos, Pangasinan, now a city,38 was even then not an isolated backwater town and had its fair share of practicing
lawyers.

There may be sufficient ground to call to task Judge Cariño, who ceased being a judge in 1986, for his improper notarial
activity. Perhaps though, formal sanction may no longer be appropriate considering Judge Cariño's advanced age,
assuming he is still alive.39 However, this Decision should again serve as an affirmation of the rule prohibiting municipal
judges from notarizing documents not connected with the exercise of their official duties, subject to the exceptions laid
down in Circular No. 1-90.

Most crucially for this case, we should deem the Deed of Sale as not having been notarized at all. The validity of a
notarial certification necessarily derives from the authority of the notarial officer. If the notary public does not have the
capacity to notarize a document, but does so anyway, then the document should be treated as unnotarized. The rule
may strike as rather harsh, and perhaps may prove to be prejudicial to parties in good faith relying on the proferred
authority of the notary public or the person pretending to be one. Still, to admit otherwise would render merely
officious the elaborate process devised by this Court in order that a lawyer may receive a notarial commission. Without
such a rule, the notarization of a document by a duly appointed notary public will have the same legal effect as one
accomplished by a non-lawyer engaged in pretense.

The notarization of a document carries considerable legal effect. Notarization of a private document converts such
document into a public one, and renders it admissible in court without further proof of its authenticity.40 Thus,
notarization is not an empty routine; to the contrary, it engages public interest in a substantial degree and the
protection of that interest requires preventing those who are not qualified or authorized to act as notaries public from
imposing upon the public and the courts and administrative offices generally.41

On the other hand, what then is the effect on the Deed of Sale if it was not notarized? True enough, from a civil law
perspective, the absence of notarization of the Deed of Sale would not necessarily invalidate the transaction evidenced
therein. Article 1358 of the Civil Code requires that the form of a contract that transmits or extinguishes real rights over
immovable property should be in a public document, yet it is also an accepted rule that the failure to observe the proper
form does not render the transaction invalid. Thus, it has been uniformly held that the form required in Article 1358 is
not essential to the validity or enforceability of the transaction, but required merely for convenience. 42 We have even
affirmed that a sale of real property though not consigned in a public instrument or formal writing, is nevertheless valid
and binding among the parties, for the time-honored rule is that even a verbal contract of sale or real estate produces
legal effects between the parties.43

Still, the Court has to reckon with the implications of the lack of valid notarization of the Deed of Sale from the
perspective of the law on evidence. After all, the case rests on the admissibility of the Deed of Sale.

Clearly, the presumption of regularity relied upon by the Court of Appeals no longer holds true since the Deed of Sale is
not a notarized document. Its proper probative value is governed by the Rules of Court. Section 19, Rule 132 states:

Section 19. Classes of documents.—For the purpose of their presentation in evidence, documents are either
public or private.
Public documents are:
(a) The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals,
and public officers, whether of the Philippines, or of a foreign country;
(b) Documents acknowledged before a notary public except last wills and testaments; and
(c) Public records, kept in the Philippines, of private documents required by law to be entered therein.

All other writings are private. (Emphasis supplied.)

The Deed of Sale, invalidly notarized as it was, does not fall under the enumeration of public documents; hence, it must
be considered a private document. The nullity of the alleged or attempted notarization performed by Judge Cariño is
sufficient to exclude the document in question from the class of public documents. Even assuming that the Deed of Sale
was validly notarized, it would still be classified as a private document, since it was not properly acknowledged, but
merely subscribed and sworn to by way of jurat.

Being a private document, the Deed of Sale is now subject to the requirement of proof under Section 20, Rule 132,
which states:

Section 20. Proof of private document.—Before any private document offered as authentic is received in evidence, its
due execution and authenticity must be proved either:
(a) By anyone who saw the document executed or written; or
(b) By evidence of the genuineness of the signature or handwriting of the maker.

Any other private document need only be identified as that which is claimed to be.

The Deed of Sale was offered in evidence as authentic by the Aquinos, who likewise insist that its enforceability militates
against Tigno's claim. Correspondingly, the burden falls upon the Aquinos to prove its authenticity and due execution.
The Court of Appeals clearly erred in not appreciating the Deed of Sale as a private document and in applying the
presumption of regularity that attaches only to duly notarized documents, as distinguished from private documents.

Did the RTC err then in refusing to admit the Deed of Sale? We hold that it did not. Section 20, Rule 132 provides ample
discretion on the trier of fact before it may choose to receive the private document in evidence. The RTC wisely refused
to admit the Deed of Sale, taking great lengths as it did to explain its doubts as to its veracity. The RTC was not
convinced of the proffered proof by the Aquinos, and the exercise of its sound discretion as the primary trier of fact
warrants due respect.

The most telling observation of the RTC relates to the fact that for the very first time respondents alleged the existence
of the Deed of Sale when they filed their answer to petitioner's current action to revive judgment.44 Prior to the initiation
of the present action, Tigno had tried to operationalize and implement the Compromise Agreement through two judicial
means: consignation and execution of judgment. The Aquinos duly opposed these prior attempts of the petitioner to
exercise the right to repurchase, but they did not raise then the claim that such right to repurchase was already
extinguished by the Deed of Sale. Tigno attempted to exercise the right to repurchase only a few years after the
execution of the Deed of Sale to which respondents themselves were signatories. Thus, it is incredulous that the Aquinos
did not invoke the Deed of Sale when they opposed in court petitioner's successive attempts at consignation and
execution of judgment. The Deed of Sale, if in existence and valid, would have already precluded Tigno's causes of action
for either consignation or execution of judgment. The only believable conclusion, as drawn by the RTC, was that the
Deed of Sale had yet to be created when petitioner moved in 1990 for consignation and execution of judgment—an
existential anomaly if we were to agree with the respondents that such document had been signed and notarized back
in 1985.

The dubiousness in origin of the Deed of Sale is not alleviated by the other observations of the RTC. It also pointed to
certain incredible aspects in the Aquinos' tale of events. It noted that no receipts were ever presented by the
respondents to evidence actual payment of consideration by them to Bustria, despite the allegation of the respondents
that the amount was covered by seven (7) receipts.45 The Aquinos claimed that Bustria kept all the receipts, an assertion
which the RTC found as unbelievable, citing ordinary human nature to ask for receipts for significant amounts given and
to keep the same.46 In itself, the absence of receipts, or any proof of consideration, would not be conclusive since
consideration is always presumed. However, given the totality of the circumstances surrounding this case, the absence
of such proof further militates against the claims of the Aquinos.

We can appreciate in a similar vein the observation of the Court of Appeals that Bustria did not bother to seek his
lawyer's assistance as regards the execution of the Deed of Sale, considering that the subject property had previously
been fiercely litigated. Although the Court of Appeals was correct in ruling that the document would not be rendered
null or ineffective due to the lack of assistance of counsel, the implausibility of the scenario strikes as odd and therefore
reinforces the version found by the RTC as credible.

The Court likewise has its own observations on the record that affirm the doubts raised by the Court of Appeals. Isidro
Bustria, who would die in 1986, was already ninety-three (93) years old when he allegedly signed the Deed of Sale in
1985. Still, the Aquinos asserted before the RTC that Bustria traveled unaccompanied from his home in Dasol,
Pangasinan, passing through two towns to Alaminos, to execute the Deed of Sale. Without discrediting the
accomplishments of nonagenarians capable of great physical feats, it should be acknowledged as a matter of general
assumption that persons of Bustria's age are typically sedentary and rarely so foolhardy as to insist on traveling
significant distances alone.

Also of note is the fact that there are glaring differences as to the alleged signature of Bustria on the Deed of Sale and as
it otherwise appears on the judicial record. Bustria's signature in the 1981 Compromise Agreement is noticeably shaky
which is not surprising, considering that it was subscribed when Bustria was eighty-nine (89) years old. However,
Bustria's signature on the Deed of Sale, which if genuine was affixed when he was already ninety-three (93) years old, is
remarkably steady in its strokes. There are also other evident differences between Bustria's signature on the Deed of
Sale and on other documents on the record.

Admittedly, these doubts cast above arise in chief from an appreciation of circumstantial evidence. These have to be
weighed against the findings of the Court of Appeals that the fact that Bustria signed the Deed of Sale was established
by the respective testimonies of witnesses De Francia and Judge Cariño. In its own appreciation of these testimonies, the
RTC alluded to notable inconsistencies in their testimonies. As a final measure of analysis, the Court shall now examine
whether the appellate court was in error in reversing the conclusion of the RTC on these testimonies.
The inconsistencies cited by the RTC were that De Francia testified that Judge Cariño himself prepared and typed the
Deed of Sale in his office, where the document was signed,47 while Judge Cariño testified that he did not type the Deed
of Sale since it was already prepared when the parties arrived at his office for the signing.48 On this point, the Court of
Appeals stated with utter nonchalance that a perusal of the record revealed no material or substantial inconsistencies
between the testimonies of Judge Cariño and De Francia.

Strangely, the appellate court made no comment as to the inconsistency pointed out by the RTC as to who prepared the
Deed of Sale. If the only point of consideration was the due execution of the Deed of Sale, then the Court of Appeals
should have properly come out with its finding. Other variances aside, there are no contradictions in the testimonies of
Judge Cariño and De Francia on the question of whether or not Bustria signed the Deed of Sale.

However, as earlier established, the Deed of Sale is a private document. Thus, not only the due execution of the
document must be proven but also its authenticity. This factor was not duly considered by the Court of Appeals. The
testimonies of Judge Cariño and De Francia now become material not only to establish due execution, but also the
authenticity of the Deed of Sale. And on this point, the inconsistencies pointed out by the RTC become crucial.

The matter of authenticity of the Deed of Sale being disputed, the identity of the progenitor of this all-important
document is a material evidentiary point. It is disconcerting that the very two witnesses of the respondent offered to
prove the Deed of Sale, flatly contradict each other on the basis of their own personal and sensory knowledge. Worse,
the purported author of the Deed of Sale disavowed having drafted the document, notwithstanding the contrary
testimony grounded on personal knowledge by the documentary witness.

Establishing the identity of the person who wrote the Deed of Sale would not ordinarily be necessary to establish the
validity of the transaction it covers. However, since it is the authenticity of the document itself that is disputed, then the
opposing testimonies on that point by the material witnesses properly raises questions about the due execution of the
document itself. The inconsistencies in the testimonies of Judge Cariño and De Francia are irreconcilable. It is not
possible to affirm the testimony of either without denigrating the competence and credibility of the other as a witness.
If Judge Cariño was truthful in testifying that he did not write the Deed of Sale, then doubt can be cast as to the
reliability of the notarial witness De Francia. It takes a leap of imagination, a high level of gumption, and perverse
deliberation for one to erroneously assert, under oath and with particularities, that a person drafted a particular
document in his presence.

However, if we were to instead believe De Francia, then the integrity of the notary public, Judge Cariño, would be
obviously compromised. Assuming that Judge Cariño had indeed authored the Deed of Sale, it would indeed be odd that
he would not remember having written the document himself yet sufficiently recall notarizing the same. If his testimony
as to authorship of the document is deemed as dubious, then there is all the reason to make a similar assumption as to
his testimony on the notarization of the Deed of Sale.

These inconsistencies are not of consequence because there is need to indubitably establish the author of the Deed of
Sale. They are important because they cast doubt on the credibility of those witnesses of the Aquinos, presented as they
were to attest to the due execution and authenticity of the Deed of Sale. The Court of Appeals was clearly in error in
peremptorily disregarding this observation of the RTC.

As a result, we are less willing than the Court of Appeals to impute conclusive value to the testimonies of de Francia and
Judge Cariño. The totality of the picture leads us to agree with the trial court that the Deed of Sale is ineluctably dubious
in origin and in execution. The Court deems as correct the refusal of the RTC to admit the Deed of Sale, since its due
execution and authenticity have not been proven. The evidence pointing to the non-existence of such a transaction is so
clear and convincing that it is sufficient even to rebut the typical presumption of regularity arising from the due
execution of notarial documents. However, for the reasons stated earlier, the Deed of Sale is ineluctably an unnotarized
document. And the lower court had more than sufficient basis to conclude that it is a spurious document.
Since the validity of the Deed of Sale has been successfully assailed, Tigno's right to repurchase was not extinguished at
the time of the filing of the Petition for revival of judgment, as correctly concluded by the RTC. The Court of Appeals
being in error when it concluded otherwise, the reinstatement of the RTC Decision is warranted.

WHEREFORE, the Petition is GRANTED. The assailed Decision dated 23 December 1996 and Resolution dated 9 June
1997 of the Court of Appeals in CA-G.R. CV No. 49879 is REVERSED, and the Decision dated 18 August 1994 of the
Regional Trial Court of Alaminos, Pangasinan, Branch 55, in Civil Case No. A-1918 is REINSTATED. Costs against
respondents. SO ORDERED.

GERONIMO C. FUENTES v. JUDGE ROMUALDO G. BUNO, A.M. No. MTJ-99-1204, July 28, 2008

DECISION
LEONARDO-DE CASTRO, J.:

This administrative case against Judge Romualdo G. Buno of the 4TH Municipal Circuit Trial Court (MCTC), Talibon-
Getafe, Bohol, stemmed from a complaint filed by Geronimo C. Fuentes charging him with abuse of discretion and
authority and graft and corruption.

In his complaint, Geronimo Fuentes alleged that he is one of the nine (9) heirs of Bernardo Fuentes, their father, who
owned an agricultural land located at San Jose, Talibon, Bohol, and that respondent judge prepared and notarized an
Extra-Judicial Partition with Simultaneous Absolute Deed of Sale of the said agricultural land, executed by complainants
mother Eulalia Credo Vda. de Fuentes, widow of Bernardo Fuentes, and Alejandro Fuentes, on his own behalf and on
behalf of his brothers and sisters, including Geronimo Fuentes, as heirs/vendors and one Ma. Indira A. Auxtero, as
vendee; that in the aforesaid document, the aforementioned agricultural land was sold, transferred/conveyed by the
heirs/vendors to the vendee despite the fact that in his Special Power of Attorney (SPA), he merely appointed his
brother, Alejandro Fuentes to mortgage said agricultural land but not to partition, much more to sell the
same. According to complainant Geronimo Fuentes respondent judge notarized said document as ex-officio Notary
Public, thereby abusing his discretion and authority as well as committing graft and corruption.
In his 1st Indorsement dated December 2, 1997, the then Court Administrator required the respondent to file his
comment on the complaint within ten days. In compliance thereto respondent judge submitted his answer, which
prayed for the dismissal of the complaint. He admitted that on December 24, 1996, while he was the Presiding Judge of
the MCTC, Talibon-Getafe, stationed at Talibon, Bohol, he notarized an Extra-Judicial Partition of Real Property with
Simultaneous Absolute Deed of Sale, described as Document No. 1158, Series of 1996. He explained his reasons and
related the circumstances surrounding the case as follows:
1. That in the last week of the month of September, 1996, Mrs. Eulalia Vda. de Fuentes, Alejandro
Fuentes together with Mrs. Helen A. Auxtero and Miss Ma. Indira Auxtero came to my house and
requested me to make and prepare a document of sale between the Heirs of Bernardo Fuentes and Ma.
Indira Auxtero as Vendee and upon verification of the papers they presented to the undersigned it was
found out that the land subject of the sale is a conjugal property of the deceased Bernardo Fuentes and
Eulalia Credo Vda. de Fuentes. Being a conjugal property, the undersigned advised them to secure
special power of attorney for the children of Bernardo Fuentes who are out of town.
2. On the 20th of December, 1996 Eulalia Vda. de Fuentes and Alejandro Fuentes came back to the house
bringing a special power of attorney executed by Bonifacio Fuentes, Benjamin Fuentes, Urbano Fuentes,
Samuela Fuentes, Rufina Fuentes and Bernardo Fuentes, Jr. carbon copy of the said Special Power of
Attorney herewith attached as Annex A of the answer. All these special power of attorney empowers
Alejandro Fuentes to execute a Deed of Sale of a parcel of land under Transfer Certificate of Title No.
24937 registered in the name of Bernardo Fuentes, their deceased father.
Since no special power of attorney was presented to the undersigned executed by PO2 Geronimo
Fuentes, the undersigned refused to make their document of sale but Eulalia Vda. de Fuentes and
Alejandro Fuentes earnestly requested the undersigned to make and prepare the necessary document
saying that the special power of attorney of PO2 Geronimo Fuentes is coming and they are in urgent
 need of the money and because of their request, the undersigned prepared the document, and Extra-
Judicial Partition of Real Property with Simultaneous Absolute Deed of Sale in favor of Ma. Indira
Auxtero. That PO2 Geronimo Fuentes was included in the Deed of Sale because of the assurance of
Alejandro Fuentes and Eulalia Vda. de Fuentes that the Special Power of Attorney of PO2 Geronimo
Fuentes is coming.
3. That after the necessary document was prepared Eulalia Vda. de Fuentes and Alejandro Fuentes
together with the vendee, Ma. Indira Auxtero signed the document on December 24, 1996 and on that
day the said document was notarized by the undersigned.
4. That few days after the document was notarized, the undersigned learned that the Special Power of
Attorney executed by PO2 Geronimo Fuentes empowered Alejandro Fuentes only to mortgage the
property so Mrs. Eulalia Vda. de Fuentes, Alejandro Fuentes and the vendee, Ma. Indira Auxtero were
called by the undersigned about the Special Power of Attorney executed by PO2 Geronimo Fuentes but
Eulalia Fuentes and Alejandro Fuentes explained to the undersigned that they will be responsible for
PO2 Geronimo Fuentes considering that the money was already spent by them and the vendee, Ma.
Indira Auxtero also assured the undersigned that if PO2 Geronimo Fuentes insists to take back his share,
she is willing and in fact she reserved the share of Geronimo Fuentes, hence, the transaction was
completed.
5. The undersigned is making and notarizing the document outside of office hour cannot be said to have
abuse his discretion and authority since he was earnestly requested by Eulalia Vda. de Fuentes and
Alejandro Fuentes to prepare and notarized the document with authority from his brothers and sisters
and with respect to Eulalia Vda. de Fuentes, she is selling her share of the conjugal property which is
one-half (1/2) of the entire parcel of land.
In the aforementioned answer, respondent judge contended that he could not be charged of graft and
corruption, since in a municipality where a notary public is unavailable, a municipal judge is allowed to notarize
documents or deeds as ex-officio notary public. To support his claim, he presented two certifications: one, from Atty.
Azucena C. Macalolot, Clerk of Court VI of the RTC, Branch 52, Talibon, Bohol, who certified that according to their
records and dockets, no petition for commission and/or renewal of commission as notary public was granted by the said
court for calendar year 1996 and no appointment as notary public was issued for that year; and the other, from Mayor
Juanario A. Item of Talibon, Bohol who also certified that no notary public was staying and residing in the Municipality of
Talibon, Bohol during the year 1996.
Respondent judge contended that he did nothing wrong in preparing and notarizing the said document and that
he acted in good faith and in obedience to the earnest plea of complainants mother and siblings who were in urgent
need of money, and with their assurance that complainants SPA was forthcoming. In his attempt to explain his lack of
malice, respondent judge narrated that after learning that the SPA only authorized his brother, Alejandro Fuentes to
mortgage the property, he summoned the latter, his mother and the buyer of the land. Alejandro then assured him that
they would be responsible to the complainant and that the buyer was willing to return complainants share in the
property.Respondent further questioned complainants sincerity in filing the complaint because the latter allegedly
wanted merely the respondent to persuade the buyer to return the whole property to him instead of his share only.
In its Memorandum Report, the OCA recommended that the present case be re-docketed as a regular administrative
matter and that respondent be fined in the amount of P10,000.00 for unauthorized notarization of a private document,
the same to be deducted from his retirement benefit. The said OCA recommendation was premised on the lack of
authority of respondent judge to prepare and notarize the document in question, which had no direct relation to the
performance of his official functions as a judge.
While Section 76 of Republic Act No. 296,[1] as amended, and Section 242 of the Revised Administrative
[2]
Code authorize MTC and MCTC judges to perform the functions of notaries public ex officio, the Court laid down the
scope of said authority in SC Circular No. 1-90. Pertinently, the said Circular reads:

MTC and MCTC judges may act as notaries public ex officio in the notarization of documents
connected only with the exercise of their official functions and duties [Borre v. Mayo, Adm. Matter No.
1765-CFI, October 17, 1980, 100 SCRA 314; Penera v. Dalocanog, Adm. Matter No. 2113-MJ, April 22,
 1981, 104 SCRA 193]. They may not, as notaries public ex officio, undertake the preparation and
acknowledgment of private documents, contracts and other acts of conveyances which bear no direct
relation to the performance of their functions as judges. The 1989 Code of Judicial Conduct not only
enjoins judges to regulate their extra-judicial activities in order to minimize the risk of conflict with their
judicial duties, but also prohibits them from engaging in the private practice of law (Canon 5 and Rule
5.07).

However, the Court, taking judicial notice of the fact that there are still municipalities which
have neither lawyers nor notaries public, rules that MTC and MCTC judges assigned to municipalities or
circuits with no lawyers or notaries public may, in the capacity as notaries public ex officio, perform any
act within the competency of a regular notary public, provided that: (1) all notarial fees charged be for
the account of the Government and turned over to the municipal treasurer (Lapena, Jr. vs. Marcos,
Adm. Matter No. 1969-MJ, June 29, 1982, 114 SCRA 572); and, (2) certification be made in the notarized
documents attesting to the lack of any lawyer or notary public in such municipality or circuit.

The above-quoted SC Circular No. 1-90 prohibits judges from undertaking the preparation and acknowledgment of
private documents, contracts and other deeds of conveyances which have no direct relation to the discharge of their
official functions. In this case, respondent judge admitted that he prepared both the document itself, entitled Extra-
judicial Partition with Simultaneous Absolute Deed of Sale and the acknowledgment of the said document, which had no
relation at all to the performance of his function as a judge. These acts of respondent judge are clearly proscribed by the
aforesaid Circular.
While it may be true that no notary public was available or residing within respondent judges territorial
jurisdiction, as shown by the certifications issued by the RTC Clerk of Court and the Municipal Mayor of Talibon, Bohol,
SC Circular No. 1-90 specifically requires that a certification attesting to the lack of any lawyer or notary public in the said
municipality or circuit be made in the notarized document. Here, no such certification was made in the Extra-Judicial
Partition with Simultaneous Deed of Sale. Respondent judge also failed to indicate in his answer as to whether or not
any notarial fee was charged for that transaction, and if so, whether the same was turned over to the Municipal
Treasurer of Talibon, Bohol. Clearly, then, respondent judge, who was the sitting judge of the MCTC, Talibon-Getafe,
Bohol, failed to comply with the aforesaid conditions prescribed by SC Circular No. 1-90, even if he could have acted as
notary public ex-officio in the absence of any lawyer or notary public in the municipality or circuit to which he was
assigned.
Whether or not respondent judge truly acted in good faith when he prepared and acknowledged the subject document
is beside the point since he failed to strictly observe the requirements of SC Circular No. 1-90. As noted by the then
Court Administrator, the document involved here is Document No. 1158, which shows that numerous documents were
notarized by respondent judge in the year 1996 alone. Respondent judge was silent as to whether he charged fees when
he notarized documents and if so, whether he turned over the notarial fees to the municipal treasurer. Moreover,
contrary to Rule IV, Sec. 6(a) of the Rules on Notarial Practice of 2004,[3] respondent notarized the said document
without the SPA of the attorney-in-fact of the vendors which gave rise to the legal problem between the vendors and
the vendee concerning the scope of authority of the aforesaid attorney-in-fact. By failing to comply with the conditions
set for SC Circular No. 1-90 and violating the provision of the Rules on Notarial Practice of 2004, respondent judge failed
to conduct himself in a manner that is beyond reproach and suspicion. Any hint of impropriety must be avoided at all
cost.Judges are enjoined by the Code of Judicial Conduct to regulate their extra-judicial activities in order to minimize
the risk of conflict with their judicial duties.[4]

Rule 140 of the Rules of Court deals with the administrative sanctions imposable on erring judges. Violation of
Supreme Court rules, directives and circulars is a Less Serious Charge punishable by suspension from office or a fine of
more than P10,000.00 but not exceeding P20,000.00. However, respondent judges application for optional retirement
had already been approved by the Court en banc on March 10, 1998 in Administrative Matter No. 9449-Ret. and the
release of his retirement benefits was allowed provided that the amount of P20,000.00 was withheld from the said
retirement benefits, pursuant to the Resolution of this Courts Third Division on June 16, 1999 in this administrative case,
formerly docketed as Administrative Matter OCA IPI No. 97-355-MTJ.
 WHEREFORE, respondent Judge ROMUALDO G. BUNO, now retired, of the Municipal Circuit Trial Court of
Talibon-Getafe, Bohol, is found LIABLE for failure to comply with SC Circular No. 1-90 and the Rules on Notarial
Practice. He is hereby ORDERED to pay a FINE of Twelve Thousand Pesos (P12,000.00), to be deducted from the amount
withheld from his retirement benefits. SO ORDERED.
A.C. No. 7184 September 17, 2014

FELIPE B. ALMAZAN, SR., Complainant, vs.ATTY. MARCELO B. SUERTE-FELIPE, Respondent.

RESOLUTION

PERLAS-BERNABE, J.:

This is an administrative case against respondent Atty. Marcelo B. Suerte-Felipe (respondent) for malpractice as a notary
public, among others.

The Facts

In a Complaint1 dated April 27, 2006, complainant Felipe B. Almazan, Sr. (complainant) charged respondent, previously
of the Public Attorney's Office,2 for malpractice and gross negligence in the performance of his duty as a notary public
and/or lawyer, alleging that the latter, despite not having been registered as a notary public for the City of Marikina,
notarized the acknowledgment of the document entitled "Extra judicial Settlement of the Estate of the Deceased Juliana
P. Vda. De Nieva"3 dated "25th day of 1999" (subject document), stating that he is a "notary public for and in the City of
Marikina."4 Said document was one of the attachments to the Amended Complaint5dated August 14, 2003 filed in Civil
Case No. 03-849-MK entitled "Esperanza Nieva Dela Cruz[(as represented by respondent)] v. Brita T. Llantada[(as
represented by complainant)]." To prove his claim, complainant attached a Certification6 dated May 26, 2005 issued by
the Office of the Clerk of Court of the Regional Trial Court (RTC) of Marikina City, certifying that per the court’s record,
respondent is not a commissioned notary public for the Cityof Marikina from March 30, 1994 to the date of issuance. In
a Resolution7 dated July 5, 2006, the Court required respondent to file his Comment8 which he eventually submitted on
February 13, 2007 after proper service. In said pleading, respondent admitted that he indeed notarized the
acknowledgment of the subject document but denied that he was not commissioned as a notary public at that time. 9 To
prove his defense, he attached a Certification10dated August 23, 2006 issued by the Office of the Clerk of Court of the
RTC of Pasig City, certifying the fact of his appointment as notary public for the City of Pasigand in the Municipalities of
Taguig, Pateros, San Juan, and Mandaluyong for the years 1998-1999 under Appointment No. 98.11 Further, respondent,
thru the comment, incorporated his own administrative complaint against complainant for malpractice and harassment
of a fellow lawyer in view of the filing of the instant administrative case against him.12

In response, complainant filed a Reply13 dated April 26, 2007 asserting that he has the legitimate rightto file the
administrative complaint against respondent for his unlawful act of notarization, which is not an act of harassment as
respondent claims. He alsodraws attention to the fact that the subject document was incompletely dated and yet
notarized by respondent.14 In a Resolution15 dated July 11, 2007, the Court,inter alia, referred the case to the Integrated
Bar of the Philippines (IBP) for investigation, report, and recommendation. Eventually, both parties appeared during the
mandatory conference held on April 30, 2008.16

The Report and Recommendation of the IBP

In a Report and Recommendation17 dated September 22, 2008, the IBP Investigating Commissioner foundrespondent
guilty for violating the Notarial Law and the lawyer’s oath, reasoning that he could not notarize the acknowledgment of
the subject document inMarikina City as it was outside the territorial limits of his jurisdiction. To this end, the
Investigating Commissioner pointed out that in the acknowledgment of the subject document, it was categorically
stated that respondent is a notary public for and in the City of Marikina, Province ofRizal, of which he was not, hence,
violating the Notarial Law. Moreover,respondent likewise violated the lawyer’s oath, specifically its mandate for lawyers,
to obey the laws and do no falsehood.18

In view of the foregoing, it was thus recommended that respondent be suspended for a period of two (2) years from the
practice of law. However, since it does not appear that he was still commissioned as a notary public, the Investigating
Commissioner did not recommend that he be disqualified as such.19
In a Resolution20 dated October 9, 2008, the IBP Board of Governors adopted and approved the Report and
Recommendation of the Investigating Commissioner with modification, decreasing the penalty of suspension to one (1)
year, with immediate revocation of notarial commission if presently commissioned, and disqualification from being
commissioned as a notary public for two (2) years.

On reconsideration,21 the IBP Board of Governors, in a Resolution22 dated March 8, 2014, modifiedthe penalty stated in
its previous resolution, imposing, instead, the penalty ofreprimand with warning, and disqualification from being
commissioned as a notary public for the decreased period of one (1) year.

The Issue Before the Court: The essential issue in this case is whether or not respondent should be held administratively
liable.

The Court’s Ruling: The Court concurs with the findings of the IBP except as to the penalty.

As the Investigating Commissioner correctly observed, respondent, who himself admitted that he was commissioned as
notary public only in the City of Pasig and the Municipalities of Taguig, Pateros, San Juan, and Mandaluyong for the years
1998-1999, could not notarize the subject document’s acknowledgment in the City ofMarikina, as said notarial act is
beyond the jurisdiction of the commissioning court, i.e.,the RTC of Pasig. The territorial limitation of a notary public’s
jurisdiction is crystal clear from Section 11, Rule III of the 2004 Rules on Notarial Practice: 23 Sec. 11. Jurisdiction and
Term– A person commissioned as notary public may perform notarial acts in any place within the territorial jurisdiction
of the commissioning courtfor a period of two (2) years commencing the first day of January of the year in which the
commissioning court is made, unless either revoked or the notary public has resigned under these Rules and the Rules of
Court. (Emphasis supplied)

Said principle is equally echoed in the Notarial Law found in Chapter 12, Book V, Volume I of the Revised Administrative
Code of 1917, as amended,24 of which Section 240, Article II states:

Sec. 240. Territorial jurisdiction. – The jurisdiction of a notary public in a province shall be co-extensive with the
province. The jurisdiction of a notary public in the City of Manila shall be co-extensive with said city. No notary shall
possess authority to doany notarial act beyond the limits of his jurisdiction. (Emphases supplied)

For misrepresenting in the said acknowledgment that he was a notary public for and in the City of Marikina, when it is
apparent and, in fact, uncontroverted that he was not, respondent further committed a form of falsehood which is
undoubtedly anathemato the lawyer’s oath. Perceptibly, said transgression also runs afoul of Rule 1.01, Canon 1 of the
Code of Professional Responsibility which provides that "[a] lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct."

In the case of Tan Tiong Bio v. Atty. Gonzales,25 citing Nunga v. Atty. Viray,26 the Court instructively expounded on
infractions similar to that of respondent:

While seemingly appearing to be a harmless incident, respondent’s act of notarizing documents in a place outside of or
beyond the authority granted by his notarial commission, partakes of malpractice of law and falsification. While perhaps
not on all fours because of the slight dissimilarity inthe violation involved, what the Court said in Nunga v. Virayis very
much apropos: Where the notarization of a document is done by a member of the Philippine Bar at a time when he has
no authorization or commission todo so, the offender may be subjected to disciplinary action. For one, performing a
notarial [act] without such commission is a violation of the lawyer’s oath to obey the laws, more specifically, the Notarial
Law. Then, too, by making it appear that he is duly commissioned when he is not, he is, for all legal intents and purposes,
indulging in deliberate false hood, which the lawyer’s oath similarly proscribes. These violations fall squarely within the
prohibition of Rule 1.01 of Canon 1 of the Code of Professional Responsibility, which provides: "A lawyer shall not
engage in unlawful, dishonest, immoral or deceitful conduct."

It cannot be over-emphasized that notarization isnot an empty, meaningless, routinary act. Far from
it.1âwphi1 Notarization is invested with substantive public interest, such that only those who are qualified or authorized
may act as notaries public. Hence, the requirements for the issuance of a commission as notary public are treated with a
formality definitely more than casual.27 (Emphases supplied)

With respondent’s liability herein established, and considering further the attendant circumstances of this case, take for
instance, that he is a first time offender and that he had already acknowledged his wrongdoings, 28 the Court finds that
suspension for a period of six (6) months29 from the practice of law would suffice as a penalty. In addition, he is
disqualified from being commissioned as a notary public for a period of one (1) year and, his notarial commission, if
currently existing, is hereby revoked.30

WHEREFORE, respondent Atty. Marcelo B. Suerte-Felipe is found GUILTY of malpractice as a notary public,and violating
the lawyer’s oath as well as Rule 1.01, Canon 1 of the Code of Professional Responsibility. Accordingly, he is SUSPENDED
from the practice of law for a period of six (6) months, effective upon his receipt of this Resolution, with a STERN
WARNING that a repetition of the same orsimilar acts will be dealt with more severely. He is likewise DISQUALIFIED from
being commissioned as a notary public for a period of one (1) year and his notarial commission, if currently existing, is
hereby REVOKED.

Let copies of this Resolution be furnished the Office of the Bar Confidant, to be appended to respondent's personal
record as attorney. Further, let copies of this Resolution be furnished the Integrated Bar of the Philippines and the Office
of the Court Administrator, which is directed to circulate them to all the courts in the country for their information and
guidance.

SO ORDERED.
G.R. No. 193978 February 28, 2012

JELBERT B. GALICTO, Petitioner, vs.H.E. PRESIDENT BENIGNO SIMEON C. AQUINO III, in his capacity as President of the
Republic of the Philippines; ATTY. PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary; and FLORENCIO B.
ABAD, in his capacity as Secretary of the Department of Budget and Management, Respondents.

RESOLUTION

BRION, J.:

Before us is a Petition for Certiorari and Prohibition with Application for Writ of Preliminary Injunction and/or
Temporary Restraining Order,1 seeking to nullify and enjoin the implementation of Executive Order No. (EO) 7 issued by
the Office of the President on September 8, 2010. Petitioner Jelbert B. Galicto asserts that EO 7 is unconstitutional for
having been issued beyond the powers of the President and for being in breach of existing laws.

The petitioner is a Filipino citizen and an employee of the Philippine Health Insurance Corporation (PhilHealth).2 He is
currently holding the position of Court Attorney IV and is assigned at the PhilHealth Regional Office CARAGA.3

Respondent Benigno Simeon C. Aquino III is the President of the Republic of the Philippines (Pres. Aquino); he issued EO
7 and has the duty of implementing it. Respondent Paquito N. Ochoa, Jr. is the incumbent Executive Secretary and, as
the alter ego of Pres. Aquino, is tasked with the implementation of EO 7. Respondent Florencio B. Abad is the incumbent
Secretary of the Department of Budget and Management (DBM) charged with the implementation of EO 7.4

The Antecedent Facts

On July 26, 2010, Pres. Aquino made public in his first State of the Nation Address the alleged excessive allowances,
bonuses and other benefits of Officers and Members of the Board of Directors of the Manila Waterworks and Sewerage
System – a government owned and controlled corporation (GOCC) which has been unable to meet its standing
obligations.5 Subsequently, the Senate of the Philippines (Senate), through the Senate Committee on Government
Corporations and Public Enterprises, conducted an inquiry in aid of legislation on the reported excessive salaries,
allowances, and other benefits of GOCCs and government financial institutions (GFIs).6

Based on its findings that "officials and governing boards of various [GOCCs] and [GFIs] x x x have been granting
themselves unwarranted allowances, bonuses, incentives, stock options, and other benefits [as well as other] irregular
and abusive practices,"7 the Senate issued Senate Resolution No. 17 "urging the President to order the immediate
suspension of the unusually large and apparently excessive allowances, bonuses, incentives and other perks of members
of the governing boards of [GOCCs] and [GFIs]."8

Heeding the call of Congress, Pres. Aquino, on September 8, 2010, issued EO 7, entitled "Directing the Rationalization of
the Compensation and Position Classification System in the [GOCCs] and [GFIs], and for Other Purposes." EO 7 provided
for the guiding principles and framework to establish a fixed compensation and position classification system for GOCCs
and GFIs. A Task Force was also created to review all remunerations of GOCC and GFI employees and officers, while
GOCCs and GFIs were ordered to submit to the Task Force information regarding their compensation. Finally, EO 7
ordered (1) a moratorium on the increases in the salaries and other forms of compensation, except salary adjustments
under EO 8011 and EO 900, of all GOCC and GFI employees for an indefinite period to be set by the President, 9 and (2) a
suspension of all allowances, bonuses and incentives of members of the Board of Directors/Trustees until December 31,
2010.10

EO 7 was published on September 10, 2010.11 It took effect on September 25, 2010 and precluded the Board of
Directors, Trustees and/or Officers of GOCCs from granting and releasing bonuses and allowances to members of the
board of directors, and from increasing salary rates of and granting new or additional benefits and allowances to their
employees.
The Petition

The petitioner claims that as a PhilHealth employee, he is affected by the implementation of EO 7, which was issued
with grave abuse of discretion amounting to lack or excess of jurisdiction, based on the following arguments:

I. EXECUTIVE ORDER NO. 7 IS NULL AND VOID FOR LACK OF LEGAL BASIS DUE TO THE FOLLOWING GROUNDS:

A. P.D. 985 IS NOT APPLICABLE AS BASIS FOR EXECUTIVE ORDER NO. 7 BECAUSE THE GOVERNMENT-
OWNED AND CONTROLLED CORPORATIONS WERE SUBSEQUENTLY GRANTED THE POWER TO FIX
COMPENSATION LONG AFTER SUCH POWER HAS BEEN REVOKED BY P.D. 1597 AND R.A. 6758.

B. THE GOVERNMENT-OWNED AND CONTROLLED CORPORATIONS DO NOT NEED TO HAVE ITS

COMPENSATION PLANS, RATES AND POLICIES REVIEWED BY THE DBM AND APPROVED BY THE
PRESIDENT BECAUSE P.D. 1597 REQUIRES ONLY THE GOCCs TO REPORT TO THE OFFICE TO THE
PRESIDENT THEIR COMPENSATION PLANS AND RATES BUT THE SAME DOES NOT GIVE THE PRESIDENT
THE POWER OF CONTROL OVER THE FISCAL POWER OF THE GOCCs.

C. J.R. NO. 4, [SERIES] 2009 IS NOT APPLICABLE AS LEGAL BASIS BECAUSE IT HAD NOT RIPENED INTO X X
X LAW, THE SAME NOT HAVING BEEN PUBLISHED.

D. ASSUMING ARGUENDO THAT J.R. NO. 1, S. 2004 (sic) AND J.R. 4, S. 2009 ARE VALID, STILL THEY ARE
NOT APPLICABLE AS LEGAL BASIS BECAUSE THEY ARE NOT LAWS WHICH MAY VALIDLY DELEGATE
POWER TO THE PRESIDENT TO SUSPEND THE POWER OF THE BOARD TO FIX COMPENSATION.

II. EXECUTIVE ORDER NO. 7 IS INVALID FOR DIVESTING THE BOARD OF DIRECTORS OF [THE] GOCCS OF THEIR
POWER TO FIX THE COMPENSATION, A POWER WHICH IS A LEGISLATIVE GRANT AND WHICH COULD NOT BE
REVOKED OR MODIFIED BY AN EXECUTIVE FIAT.

III. EXECUTIVE ORDER NO. 7 IS BY SUBSTANCE A LAW, WHICH IS A DEROGATION OF CONGRESSIONAL

PREROGATIVE AND IS THEREFORE UNCONSTITUTIONAL.

IV. THE ACTS OF SUSPENDING AND IMPOSING MORATORIUM ARE ULTRA VIRES ACTS BECAUSE J.R. NO. 4 DOES
NOT EXPRESSLY AUTHORIZE THE PRESIDENT TO EXERCISE SUCH POWERS.

V. EXECUTIVE ORDER NO. 7 IS AN INVALID ISSUANCE BECAUSE IT HAS NO SUFFICIENT STANDARDS AND IS
THEREFORE ARBITRARY, UNREASONABLE AND A VIOLATION OF SUBSTANTIVE DUE PROCESS.

VI. EXECUTIVE ORDER NO. 7 INVOLVES THE DETERMINATION AND DISCRETION AS TO WHAT THE LAW SHALL BE
AND IS THEREFORE INVALID FOR ITS USURPATION OF LEGISLATIVE POWER.

VII. CONSISTENT WITH THE DECISION OF THE SUPREME COURT IN PIMENTEL V. AGUIRRE CASE, EXECUTIVE
ORDER NO. 7 IS ONLY DIRECTORY AND NOT MANDATORY.12

The Case for the Respondents

On December 13, 2010, the respondents filed their Comment. They pointed out the following procedural defects as
grounds for the petition’s dismissal: (1) the petitioner lacks locus standi; (2) the petitioner failed to attach a board
resolution or secretary’s certificate authorizing him to question EO 7 in behalf of PhilHealth; (3) the petitioner’s
signature does not indicate his PTR Number, Mandatory Continuing Legal Education (MCLE) Compliance Number and
Integrated Bar of the Philippines (IBP) Number; (4) the jurat of the Verification and Certification of Non-Forum Shopping
failed to indicate a valid identification card as provided under A.M. No. 02-8-13-SC; (5) the President should be dropped
as a party respondent as he is immune from suit; and (6) certiorari is not applicable to this case.13
The respondents also raised substantive defenses to support the validity of EO 7. They claim that the President exercises
control over the governing boards of the GOCCs and GFIs; thus, he can fix their compensation packages. In addition, EO
7 was issued in accordance with law for the purpose of controlling the grant of excessive salaries, allowances, incentives
and other benefits to GOCC and GFI employees. They also advocate the validity of Joint Resolution (J.R.) No. 4, which
they point to as the authority for issuing EO 7.14

Meanwhile, on June 6, 2011, Congress enacted Republic Act (R.A.) No. 10149,15 otherwise known as the "GOCC
Governance Act of 2011." Section 11 of RA 10149 expressly authorizes the President to fix the compensation framework
of GOCCs and GFIs.

The Court’s Ruling

We resolve to DISMISS the petition for its patent formal and procedural infirmities, and for having been mooted by
subsequent events.

A. Certiorari is not the proper remedy.

Under the Rules of Court, petitions for Certiorari and Prohibition are availed of to question judicial, quasi-judicial and
mandatory acts. Since the issuance of an EO is not judicial, quasi-judicial or a mandatory act, a petition for certiorari and
prohibition is an incorrect remedy; instead a petition for declaratory relief under Rule 63 of the Rules of Court, filed with
the Regional Trial Court (RTC), is the proper recourse to assail the validity of EO 7:

Section 1. Who may file petition. Any person interested under a deed, will, contract or other written instrument, whose
rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation may,
before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of
construction or validity arising, and for a declaration of his rights or duties, thereunder. (Emphases ours.)

Liga ng mga Barangay National v. City Mayor of Manila16 is a case in point.17 In Liga, we dismissed the petition for
certiorari to set aside an EO issued by a City Mayor and insisted that a petition for declaratory relief should have been
filed with the RTC. We painstakingly ruled:

After due deliberation on the pleadings filed, we resolve to dismiss this petition for certiorari.

First, the respondents neither acted in any judicial or quasi-judicial capacity nor arrogated unto themselves any judicial
or quasi-judicial prerogatives. A petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure is a special civil
action that may be invoked only against a tribunal, board, or officer exercising judicial or quasi-judicial functions.

Section 1, Rule 65 of the 1997 Rules of Civil Procedure provides:

SECTION 1. Petition for certiorari. — When any tribunal, board or officer exercising judicial or quasi-judicial functions has
acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such
incidental reliefs as law and justice may require.

Elsewise stated, for a writ of certiorari to issue, the following requisites must concur: (1) it must be directed against a
tribunal, board, or officer exercising judicial or quasi-judicial functions; (2) the tribunal, board, or officer must have acted
without or in excess of jurisdiction or with grave abuse of discretion amounting [to] lack or excess of jurisdiction; and (3)
there is no appeal or any plain, speedy, and adequate remedy in the ordinary course of law.
A respondent is said to be exercising judicial function where he has the power to determine what the law is and what
the legal rights of the parties are, and then undertakes to determine these questions and adjudicate upon the rights of
the parties.

Quasi-judicial function, on the other hand, is "a term which applies to the actions, discretion, etc., of public
administrative officers or bodies … required to investigate facts or ascertain the existence of facts, hold hearings, and
draw conclusions from them as a basis for their official action and to exercise discretion of a judicial nature."

Before a tribunal, board, or officer may exercise judicial or quasi-judicial acts, it is necessary that there be a law that
gives rise to some specific rights of persons or property under which adverse claims to such rights are made, and the
controversy ensuing therefrom is brought before a tribunal, board, or officer clothed with power and authority to
determine the law and adjudicate the respective rights of the contending parties.

The respondents do not fall within the ambit of tribunal, board, or officer exercising judicial or quasi-judicial functions. As
correctly pointed out by the respondents, the enactment by the City Council of Manila of the assailed ordinance and the
issuance by respondent Mayor of the questioned executive order were done in the exercise of legislative and executive
functions, respectively, and not of judicial or quasi-judicial functions. On this score alone, certiorari will not lie.

Second, although the instant petition is styled as a petition for certiorari, in essence, it seeks the declaration by this
Court of the unconstitutionality or illegality of the questioned ordinance and executive order. It, thus, partakes of the
nature of a petition for declaratory relief over which this Court has only appellate, not original, jurisdiction. Section 5,
Article VIII of the Constitution provides:

Sec. 5. The Supreme Court shall have the following powers:

(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over
petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the Rules of Court may
provide, final judgments and orders of lower courts in:

(a) All cases in which the constitutionality or validity of any treaty, international or executive agreement,
law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. (Italics
supplied).

As such, this petition must necessar[ily] fail, as this Court does not have original jurisdiction over a petition for
declaratory relief even if only questions of law are involved.18

Likewise, in Southern Hemisphere Engagement Network, Inc. v. Anti Terrorism Council,19 we similarly dismissed the
petitions for certiorari and prohibition challenging the constitutionality of R.A. No. 9372, otherwise known as the
"Human Security Act of 2007," since the respondents therein (members of the Anti-Terrorism Council) did not exercise
judicial or quasi-judicial functions.

While we have recognized in the past that we can exercise the discretion and rulemaking authority we are granted
under the Constitution,20 and set aside procedural considerations to permit parties to bring a suit before us at the first
instance through certiorari and/or prohibition,21 this liberal policy remains to be an exception to the general rule, and
thus, has its limits. In Concepcion v. Commission on Elections (COMELEC),22 we emphasized the importance of availing of
the proper remedies and cautioned against the wrongful use of certiorari in order to assail the quasi-legislative acts of
the COMELEC, especially by the wrong party. In ruling that liberality and the transcendental doctrine cannot trump
blatant disregard of procedural rules, and considering that the petitioner had other available remedies (such as a
petition for declaratory relief with the appropriate RTC under the terms of Rule 63 of the Rules of Court), as in this case,
we categorically ruled:
The petitioner’s unusual approaches and use of Rule 65 of the Rules of Court do not appear to us to be the result of any
error in reading Rule 65, given the way the petition was crafted. Rather, it was a backdoor approach to achieve what the
petitioner could not directly do in his individual capacity under Rule 65. It was, at the very least, an attempted bypass of
other available, albeit lengthier, modes of review that the Rules of Court provide. While we stop short of concluding that
the petitioner’s approaches constitute an abuse of process through a manipulative reading and application of the Rules
of Court, we nevertheless resolve that the petition should be dismissed for its blatant violation of the Rules. The
transgressions alleged in a petition, however weighty they may sound, cannot be justifications for blatantly disregarding
the rules of procedure, particularly when remedial measures were available under these same rules to achieve the
petitioner’s objectives. For our part, we cannot and should not – in the name of liberality and the "transcendental
importance" doctrine – entertain these types of petitions. As we held in the very recent case of Lozano, et al. vs.
Nograles, albeit from a different perspective, our liberal approach has its limits and should not be abused.23 [emphasis
supplied]

B. Petitioner lacks locus standi.

"Locus standi or legal standing has been defined as a personal and substantial interest in a case such that the party has
sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the
question on standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of
difficult constitutional questions."24 This requirement of standing relates to the constitutional mandate that this Court
settle only actual cases or controversies.25

Thus, as a general rule, a party is allowed to "raise a constitutional question" when (1) he can show that he will
personally suffer some actual or threatened injury because of the allegedly illegal conduct of the government; (2) the
injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by a favorable action.26

Jurisprudence defines interest as "material interest, an interest in issue and to be affected by the decree, as
distinguished from mere interest in the question involved, or a mere incidental interest. By real interest is meant a
present substantial interest, as distinguished from a mere expectancy or a future, contingent, subordinate, or
consequential interest."27

To support his claim that he has locus standi to file the present petition, the petitioner contends that as an employee of
PhilHealth, he "stands to be prejudiced by [EO] 7, which suspends or imposes a moratorium on the grants of salary
increases or new or increased benefits to officers and employees of GOCC[s] and x x x curtail[s] the prerogative of those
officers who are to fix and determine his compensation."28 The petitioner also claims that he has standing as a member
of the bar in good standing who has an interest in ensuring that laws and orders of the Philippine government are legally
and validly issued and implemented.

The respondents meanwhile argue that the petitioner is not a real party-in-interest since future increases in salaries and
other benefits are merely contingent events or expectancies.29 The petitioner, too, is not asserting a public right for
which he is entitled to seek judicial protection. Section 9 of EO 7 reads:

Section 9. Moratorium on Increases in Salaries, Allowances, Incentives and Other Benefits. –Moratorium on increases in
the rates of salaries, and the grant of new increases in the rates of allowances, incentives and other benefits, except
salary adjustments pursuant to Executive Order No. 8011 dated June 17, 2009 and Executive Order No. 900 dated June
23, 2010, are hereby imposed until specifically authorized by the President. [emphasis ours]

In the present case, we are not convinced that the petitioner has demonstrated that he has a personal stake or material
interest in the outcome of the case because his interest, if any, is speculative and based on a mere expectancy. In this
case, the curtailment of future increases in his salaries and other benefits cannot but be characterized as contingent
events or expectancies. To be sure, he has no vested rights to salary increases and, therefore, the absence of such right
deprives the petitioner of legal standing to assail EO 7.
It has been held that as to the element of injury, such aspect is not something that just anybody with some grievance or
pain may assert. It has to be direct and substantial to make it worth the court’s time, as well as the effort of inquiry into
the constitutionality of the acts of another department of government. If the asserted injury is more imagined than real,
or is merely superficial and insubstantial, then the courts may end up being importuned to decide a matter that does not
really justify such an excursion into constitutional adjudication.30 The rationale for this constitutional requirement of
locus standi is by no means trifle. Not only does it assure the vigorous adversary presentation of the case; more
importantly, it must suffice to warrant the Judiciary’s overruling the determination of a coordinate, democratically
elected organ of government, such as the President, and the clear approval by Congress, in this case. Indeed, the
rationale goes to the very essence of representative democracies.31

Neither can the lack of locus standi be cured by the petitioner’s claim that he is instituting the present petition as a
member of the bar in good standing who has an interest in ensuring that laws and orders of the Philippine government
are legally and validly issued. This supposed interest has been branded by the Court in Integrated Bar of the Phils. (IBP)
v. Hon. Zamora,32 "as too general an interest which is shared by other groups and [by] the whole citizenry."33 Thus, the
Court ruled in IBP that the mere invocation by the IBP of its duty to preserve the rule of law and nothing more, while
undoubtedly true, is not sufficient to clothe it with standing in that case. The Court made a similar ruling in Prof. David v.
Pres. Macapagal-Arroyo34 and held that the petitioners therein, who are national officers of the IBP, have no legal
standing, having failed to allege any direct or potential injury which the IBP, as an institution, or its members may suffer
as a consequence of the issuance of Presidential Proclamation No. 1017 and General Order No. 5.35

We note that while the petition raises vital constitutional and statutory questions concerning the power of the President
to fix the compensation packages of GOCCs and GFIs with possible implications on their officials and employees, the
same cannot "infuse" or give the petitioner locus standi under the transcendental importance or paramount public
interest doctrine. In Velarde v. Social Justice Society,36 we held that even if the Court could have exempted the case from
the stringent locus standi requirement, such heroic effort would be futile because the transcendental issue could not be
resolved any way, due to procedural infirmities and shortcomings, as in the present case. 37 In other words, giving due
course to the present petition which is saddled with formal and procedural infirmities explained above in this
Resolution, cannot but be an exercise in futility that does not merit the Court’s liberality. As we emphasized in Lozano v.
Nograles,38 "while the Court has taken an increasingly liberal approach to the rule of locus standi, evolving from the
stringent requirements of ‘personal injury’ to the broader ‘transcendental importance’ doctrine, such liberality is not
to be abused."39

Finally, since the petitioner has failed to demonstrate a material and personal interest in the issue in dispute, he cannot
also be considered to have filed the present case as a representative of PhilHealth. In this regard, we cannot ignore or
excuse the blatant failure of the petitioner to provide a Board Resolution or a Secretary’s Certificate from PhilHealth to
act as its representative.

C. The petition has a defective jurat.

The respondents claim that the petition should be dismissed for failing to comply with Section 3, Rule 7 of the Rules of
Civil Procedure, which requires the party or the counsel representing him to sign the pleading and indicate an address
that should not be a post office box. The petition also allegedly violated the Supreme Court En Banc Resolution dated
November 12, 2001, requiring counsels to indicate in their pleadings their Roll of Attorneys Number, their PTR Number
and their IBP Official Receipt or Lifetime Member Number; otherwise, the pleadings would be considered unsigned and
dismissible. Bar Matter No. 1922 likewise states that a counsel should note down his MCLE Certificate of Compliance or
Certificate of Exemption in the pleading, but the petitioner had failed to do so.40

We do not see any violation of Section 3, Rule 7 of the Rules of Civil Procedure as the petition bears the petitioner’s
signature and office address. The present suit was brought before this Court by the petitioner himself as a party litigant
and not through counsel. Therefore, the requirements under the Supreme Court En Banc Resolution dated November
12, 2001 and Bar Matter No. 1922 do not apply. In Bar Matter No. 1132, April 1, 2003, we clarified that a party who is
not a lawyer is not precluded from signing his own pleadings as this is allowed by the Rules of Court; the purpose of
requiring a counsel to indicate his IBP Number and PTR Number is merely to protect the public from bogus lawyers. A
similar construction should be given to Bar Matter No. 1922, which requires lawyers to indicate their MCLE Certificate of
Compliance or Certificate of Exemption; otherwise, the provision that allows parties to sign their own pleadings will be
negated.

However, the point raised by the respondents regarding the petitioner’s defective jurat is correct. Indeed, A.M. No. 02-
8-13-SC, dated February 19, 2008, calls for a current identification document issued by an official agency bearing the
photograph and signature of the individual as competent evidence of identity. Nevertheless, we hasten to clarify that
the defective jurat in the Verification/Certification of Non-Forum Shopping is not a fatal defect, as we held in In-N-Out
Burger, Inc. v. Sehwani, Incorporated.41 The verification is only a formal, not a jurisdictional, requirement that the Court
may waive.

D. The petition has been mooted by supervening events.

Because of the transitory nature of EO 7, it has been pointed out that the present case has already been rendered moot
by these supervening events: (1) the lapse on December 31, 2010 of Section 10 of EO 7 that suspended the allowances
and bonuses of the directors and trustees of GOCCs and GFIs; and (2) the enactment of R.A. No. 10149 amending the
provisions in the charters of GOCCs and GFIs empowering their board of directors/trustees to determine their own
compensation system, in favor of the grant of authority to the President to perform this act.

With the enactment of the GOCC Governance Act of 2011, the President is now authorized to fix the compensation
framework of GOCCs and GFIs. The pertinent provisions read:

Section 5. Creation of the Governance Commission for Government-Owned or -Controlled Corporations. — There is
hereby created an advisory, monitoring, and oversight body with authority to formulate, implement and coordinate
policies to be known as the Governance Commission for Government-Owned or-Controlled Corporations, hereinafter
referred to as the GCG, which shall be attached to the Office of the President. The GCG shall have the following powers
and functions:

xxxx

h) Conduct compensation studies, develop and recommend to the President a competitive compensation and
remuneration system which shall attract and retain talent, at the same time allowing the GOCC to be financially sound
and sustainable;

xxxx

Section 8. Coverage of the Compensation and Position Classification System. — The GCG, after conducting a
compensation study, shall develop a Compensation and Position Classification System which shall apply to all officers
and employees of the GOCCs whether under the Salary Standardization Law or exempt therefrom and shall consist of
classes of positions grouped into such categories as the GCG may determine, subject to approval of the President.

Section 9. Position Titles and Salary Grades. — All positions in the Positions Classification System, as determined by the
GCG and as approved by the President, shall be allocated to their proper position titles and salary grades in accordance
with an Index of Occupational Services, Position Titles and Salary Grades of the Compensation and Position Classification
System, which shall be prepared by the GCG and approved by the President.

xxxx

[N]o GOCC shall be exempt from the coverage of the Compensation and Position Classification System developed by the
GCG under this Act.

As may be gleaned from these provisions, the new law amended R.A. No. 7875 and other laws that enabled certain
GOCCs and GFIs to fix their own compensation frameworks; the law now authorizes the President to fix the
compensation and position classification system for all GOCCs and GFIs, as well as other entities covered by the law. This
means that, the President can now reissue an EO containing these same provisions without any legal
constraints.1âwphi1

A moot case is "one that ceases to present a justiciable controversy by virtue of supervening events, so that a
declaration thereon would be of no practical use or value."42 "[A]n action is considered ‘moot’ when it no longer
presents a justiciable controversy because the issues involved have become academic or dead[,] or when the matter in
dispute has already been resolved and hence, one is not entitled to judicial intervention unless the issue is likely to be
raised again between the parties x x x. Simply stated, there is nothing for the x x x court to resolve as [its] determination
x x x has been overtaken by subsequent events."43

This is the present situation here. Congress, thru R.A. No. 10149, has expressly empowered the President to establish
the compensation systems of GOCCs and GFIs. For the Court to still rule upon the supposed unconstitutionality of EO 7
will merely be an academic exercise. Any further discussion of the constitutionality of EO 7 serves no useful purpose
since such issue is moot in its face in light of the enactment of R.A. No. 10149. In the words of the eminent constitutional
law expert, Fr. Joaquin Bernas, S.J., "the Court normally [will not] entertain a petition touching on an issue that has
become moot because x x x there would [be] no longer x x x a ‘flesh and blood’ case for the Court to resolve."44

All told, in view of the supervening events rendering the petition moot, as well as its patent formal and procedural
infirmities, we no longer see any reason for the Court to resolve the other issues raised in the certiorari petition.

WHEREFORE, premises considered, the petition is DISMISSED. No costs.

SO ORDERED.

SEPARATE OPINION

CORONA, C.J.:

Most GOCCs are incurring significant financial losses. Budgetary support to the total government corporate sector
(including government financial institutions, social security institutions, and GOCCs providing goods and services to the
public) amounted to P80.4 billion during 2000–2004. In addition, indirect support, in the form of guarantees on GOCC
obligations, is also in the billions of pesos. In the past 5 years, there has been a noticeable increase in the aggregate
deficit of the 14 monitored GOCCs1 , bringing their financial viability into question. While the 14 monitored GOCCs’
current and capital expenditures fluctuated around 6% of GDP, revenues have fallen from 5% to 4.1% of GDP over 2000–
2004, increasing the deficit of the monitored GOCCs from 0.6% to 1.8% of GDP over the same period. In 2004, the
monitored GOCCs’ consolidated deficit was P85.4 billion, a more than fourfold increase from the 2000 level of P19.2
billion. The 2004 deficit is already about the same size as the potential new revenues collected through the expanded
value-added tax law. There are various reasons for the ballooning GOCC deficits, including (i) failure to adjust tariff rates,
(ii) large capital requirements, and (iii) operational and management inefficiencies.2

Accountability in public office requires rationality and efficiency in both administrative and financial operations of all
government offices, government-owned and controlled corporations (GOCCs) included. As a corollary, public funds must
be utilized in a way that will promote transparency, accountability and prudence.

The nation was recently informed that GOCCs, most of which enjoyed privileges not afforded to other offices and
agencies of the National Government, suffer from serious fiscal deficit. Yet, officers and employees of these GOCCs
continue to receive hefty perks and excessive allowances presenting a stark disconnect and causing the further
depletion of limited resources. In the face of such situation, where the President as Chief Executive makes a decisive
move to stave off the financial hemorrhage and administrative inefficiency of government corporations, the Court
should not invalidate the Chief Executive’s action without a clear showing of grave abuse of discretion on his part.

Factual Antecedents
In his first State of the Nation Address, President Benigno Simeon C. Aquino III exposed anomalies in the financial
management of the Metropolitan Waterworks and Sewerage System, the National Power Corporation and the National
Food Authority. These revelations prompted the Senate to conduct legislative inquiries on the matter of the activities of
GOCCs. Appalled by its findings, the Senate issued Resolution No. 17, s. 2010, urging the President to order the
immediate suspension of the unusually large and excessive allowances, bonuses, incentives and other perks of members
of the governing boards of GOCCs and government financial institutions (GFIs). Thus, on September 8, 2010, President
Benigno Simeon C. Aquino III issued Executive Order No. 73 (EO 7) strengthening the supervision of the compensation
levels of GOCCs and GFIs by controlling the grant of excessive salaries, allowances, incentives and other benefits.4

EO 7 imposes a moratorium on increases in salaries, allowances, incentives and other benefits of GOCCs and GFIs,
except salary adjustments pursuant to EO 8011 dated June 17, 2009 and EO 900 dated June 23, 2010. 5 It suspended the
allowances, bonuses and other perks enjoyed by the boards of directors/trustees of GOCCs and GFIs until December 31,
2010, pending the issuance of new policies and guidelines on the compensation packages of GOCCs and GFIs.6 In
addition, it provides for the creation of a Task Force on Corporate Compensation (TFCC) to undertake a review of all
remunerations granted to members of the board of directors, officers and rank-and-file employees, as well as
discretionary funds of GOCCs and GFIs.7 It mandates the submission of information on all personnel remuneration from
all GOCCs and GFIs to the TFCC.8 Lastly, it establishes guiding principles as well as a total compensation framework for
the rationalization of the compensation and position classification system in GOCCs and GFIs.9

The constitutionality of EO 7 is now being challenged by petitioner Jelbert B. Galicto who brings this petition for
certiorari and prohibition in his capacity as a lawyer and as an employee of the Philippine Health Insurance Corporation
(PhilHealth) Regional Office–Butuan City. Essentially, he questions the authority of the President to issue EO 7. He
likewise assails the constitutionality of EO 7 for allegedly violating his right to property without due process of law.

The ponencia of Justice Arturo D. Brion dismisses the petition for being replete with formal and procedural defects and
for having been rendered moot by supervening events.

I agree with the ponencia’s thorough discussion and correct disposition. Nevertheless, I am submitting this opinion to
express my thoughts on matters which I believe to be equally important considerations in the resolution of this case.

Fundamental considerations governing the exercise of the power of judicial review require the Court to exercise
restraint in nullifying the act of a co-equal and coordinate branch. Here, the justiciability doctrines of standing and
mootness work against petitioner.

Moreover, a careful consideration of the respective arguments of the parties compels sustaining the validity of EO 7. The
President as Chief Executive has the legal authority to issue EO 7. Furthermore, petitioner failed to show that the
President committed grave abuse of discretion in directing the rationalization of the compensation and position
classification system in GOCCs and GFIs.

Lack of Standing and Mootness

The power of judicial review is a sword that must be unsheathed with restraint. To ensure this, certain justiciability
doctrines must be complied with as a prerequisite for the Court’s exercise of its awesome power to declare the act of a
co-equal branch invalid for being unconstitutional. These doctrines are important as they are intertwined with the
principle of separation of powers.10 They help define the judicial role; they determine when it is appropriate for courts
to review (a legal issue) and when it is necessary to defer to the other branches of government.11

Among the justiciability doctrines are standing and mootness. Petitioner failed to observe both.

Courts do not decide all kinds of cases dumped on their laps and do not open their doors to all parties or entities
claiming a grievance.12 Locus standi is intended to assure a vigorous adversary presentation of the case. More
importantly, it warrants the judiciary’s overruling the determination of a coordinate, democratically elected organ of
government. It thus goes to the very essence of representative democracies.13
Petitioner, for himself, asserts his right to question the constitutionality of EO 7 on two grounds. First, as an employee of
PhilHealth, he allegedly stands to be prejudiced by EO 7 insofar as it suspends or imposes a moratorium on the grant of
salary increases and other benefits to employees and officials of GOCCs and GFIs and curtails the prerogatives of the
officers responsible for the fixing and determination of his compensation. Second, as a lawyer, he claims to have an
interest in making sure that laws and orders by government officials are legally and validly issued and implemented.

Petitioner cannot sufficiently anchor his standing to bring this action on account of his employment in PhilHealth, a
GOCC covered by EO 7. He cannot reasonably expect this Court to symphatize with his lament that the law impedes or
threatens to impede his right to receive future increases as well as the right of members of the board of directors of
Philhealth to allowances and bonuses.

The irreducible minimum condition for the exercise of judicial power is a requirement that a party "show he personally
has suffered some actual or threatened injury" to his rights.14 A party who assails the constitutionality of a statute or an
official act must have a direct and personal interest. He must show not only that the law or any governmental act is
invalid, but also that he sustained or is in immediate danger of sustaining some direct injury as a result of its
enforcement, and not merely that he suffers thereby in some indefinite way. He must show that he has

been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected
to some burdens or penalties by reason of the statute or act complained of.15

For this reason, petitioner’s reliance on his status as PhilHealth employee, without more, is a frail thread that fails to
sustain the burden of locus standi required of anyone who may properly invoke the Court’s power of judicial review.

EO 7 simply imposes a moratorium on increases in salaries, allowances and other benefits of officials and employees of
GOCCs and GFIs and directs the suspension of all allowances bonuses and incentives of GOCC and GFI officials.
Moratorium is defined as an authorized postponement in the performance of an obligation or a suspension of a specific
activity.16 Section 9 of EO 7 is not a permanent prohibition on petitioner’s perceived right to receive future increases.
Nor is it an absolute ban on salary increases as it ensures that, like all other officials and employees of the government,
officials and employees of GOCCs and GFIs will continue to enjoy the salary increases mandated under EO 8011 dated
June 17, 2009 and EO 900 dated June 23, 2010.

While one’s employment is a constitutionally-protected property right, petitioner does not claim that his employment is
at risk under EO 7. Petitioner is simply concerned about his entitlement to future salary increases. However, a public
officer has a vested right only to salaries already earned or accrued.17 Salary increases are a mere expectancy.18 They are
by nature volatile and dependent on numerous variables, including the company’s fiscal situation, the employee’s future
performance on the job, or the employee’s continued stay in a position.19 Thus, petitioner does not have a "right" to an
increase in salary. There is no vested right to salary increases.20 There must be a lawful decree or order supporting an
employee’s claim.21 In this case, petitioner failed to point to any lawful decree or order supporting his entitlement to
future increases in salary, as no such decree or order yet exists.

It is, however, contended that petitioner does not claim any right to any future increase. He merely seeks to remove any
legal impediment to his receiving future increases.1âwphi1 It is asserted that, without the legal impediment provided
under Section 9 of EO 7, any future increase in petitioner’s compensation will simply depend on the usual factors
considered by the proper authorities. I fear this view is misleading and incorrect.

It is misleading because, by re-working the concept of injury, it diverts the focus from the required right-centric
approach to the concept of injury as an element of locus standi. Injury or threat of injury, as an element of legal
standing, refers to a denial of a right or privilege. It does not include the denial of a reasonable expectation.

The argument is likewise incorrect because petitioner’s reasonable expectation of any future salary increase is subject to
presidential approval. Even without Section 9 of EO 7, the President may disallow any salary increase in RA 6758 22 -
exempt entities. Section 9 of Joint Resolution No. 4, Section 59 of the General Provisions of RA 9970 23and Section 56 of
the General Provisions of RA 1014724 expressly confer on the President the authority to approve or disapprove "any
grant of or increase in salaries, allowances, and other fringe benefits" in entities exempt from the coverage of RA 6758.
The approval of the President, upon the favorable recommendation of the Department of Budget and Management
(DBM), is among the "usual factors" that will determine any future salary increase that may be reasonable expected to
be received by petitioner.

Petitioner cannot also lay claim to any direct personal injury to his right or interest arising from the suspension under
Section 10 of EO 7 of allowances and bonuses enjoyed by the board of directors/trustees of GOCCs and GFIs. He is not a
member of the board of directors of Philhealth.

Neither can petitioner rely on his membership in the Philippine Bar to support his legal standing. Mere interest as a
member of the Bar25 and an empty invocation of a duty in "making sure that laws and orders by officials of the Philippine
government are legally issued and implemented" does not suffice to clothe one with standing.26

It is clear from the foregoing that petitioner failed to satisfy the irreducible minimum condition that will trigger the
exercise of judicial power. Lacking a leg on which he may base his personality to bring this action, petitioner’s claim of
sufficient standing should fail.

Even assuming that petitioner had standing at the time he commenced this petition, subsequent events have rendered
his petition moot.

For one, the effectivity of the suspension of allowances and bonuses enjoyed by the board of directors/trustees of
GOCCs and GFIs under Section 10 of EO 7 already lapsed on December 31, 2010.27 Thus, a review of the constitutionality
of that provision is no longer necessary and its invalidation improper. The unnecessary invalidation of Section 10 of EO 7
might not only betray injudiciousness on the part of the Court but also needlessly put the Chief Executive, the head of a
co-equal branch, in a bad light for issuing an invalid provision. Thus, the undue disregard of the mootness doctrine in
connection with Section 10 of EO 7 would inflict severe collateral damage to judicial modesty and inter-branch courtesy.

Moreover, as the ponencia correctly ruled, the enactment of RA28 1014929 has rendered the issue as to the validity of EO
7 effectively moot. With RA 10149, Congress affirmed the power of the President as enunciated in EO 7 to set guidelines
and components of a rationalized compensation and position classification for all GOCC and GFI employees.

If a case is moot, there is no longer an actual controversy between adverse litigants.30 Also, if events subsequent to the
initiation of the lawsuit have resolved the matter, then the decision of the court on that issue is not likely to have any
meaningful effect.31

With the recognition that RA 10149 mooted the challenge to EO 7, the Court must act with circumspection and
prudence, bearing in mind that due respect for a co-equal branch necessitates that the presumption of legality and
constitutionality afforded to the said provisions should no longer be disturbed.

Consistency with Existing Laws

Sections 2 to 6 of EO 7 is an enumeration of the guidelines and components of a rationalized compensation and position
classification for GOCCs and GFIs that the President intends to establish. In particular, Section 2 provides the guiding
principles; Section 3 discusses the total compensation framework; Section 4 pertains to the standard components of the
compensation and position classification system; Section 5 involves the rationalization of indirect compensation and
Section 6 lists the considerations in setting compensation levels.

Petitioner claims that these provisions are invalid because they violate existing laws, namely Section 16(n) of RA
787532 (the charter of Philhealth) and Section 9 of Joint Resolution No. 433 of the Senate and the House of
Representatives.

Petitioner finds fault in the failure of EO 7 to correctly distinguish between GOCCs and GFIs that have been exempted by
law from RA 6758, as amended, and those that are within its coverage.
RA 6758, as amended, vests the Department of Budget and Management (DBM), which is under the control of the
President, the authority to establish and administer a compensation and position classification system. On the other
hand, Section 16(n) of RA 7875 gives the board of directors of Philhealth the authority to appoint its own personnel and
to fix their compensation, with the exception of the Philhealth president whose appointment and compensation require
approval of the President. For petitioner, EO 7 violates Section 16(n) of RA 7875 by vesting on the DBM and the
President the power to determine the compensation of Philhealth employees.

Joint Resolution No. 4 authorizes the President to modify the compensation and position classification system under RA
6758 of civilian personnel, among others. Section 9 of Joint Resolution No. 4 recognizes the distinct character of exempt
entities and provides that such entities shall be governed by their respective compensation and position classification
system. For petitioner, by using the guidelines, standards and components of standardized compensation framework
provided under Joint Resolution No. 4 and applying them to all GOCCs and GFIs, EO 7 contravenes Joint Resolution No. 4
itself. In particular, EO 7 disregards the substantial distinction made under Section 9 of Joint Resolution No. 4 insofar as
the right of exempt GOCCs to set their own compensation and position classification systems is concerned.

Petitioner is wrong. EO 7 is consistent with laws, including RA 7875 and Joint Resolution No. 4.

True, Congress carved exceptions to RA 6758, as amended, when it created GOCCs and GFIs which have been granted
the authority to determine their own compensation and position classification system. Philhealth, governed by RA 7875,
is one of these RA 6758-exempt entities.

It is likewise true that Section 9 of Joint Resolution No. 4 recognizes the authority granted to exempt entities like
Philhealth to determine their own compensation and position classification system. Nonetheless, the said provision also
provides that exempt entities "shall observe the policies, parameters and guidelines governing position classification,
salary rates, categories and rates of allowances, benefits and incentives prescribed by the President."

For purposes of clarity, Section 9 of Joint Resolution No. 4 provides:

(9) Exempt Entities ― Government agencies which by specific provision/s of laws are authorized to have their own
compensation and position classification system shall not be entitled to the salary adjustments provided herein. Exempt
entities shall be governed by their respective Compensation and Position Classification System: Provided, That such
entities shall observe the policies, parameters and guidelines governing position classification, salary rates, categories
and rates of allowances, benefits and incentives prescribed by the President: Provided, further, That any increase in the
existing salary rates thereof shall be subject to the approval by the President, upon the recommendation of the DBM:
Provided, finally, That exempt entities which still follow the salary rates for positions covered by [RA 6758], as amended,
are entitled to the salary adjustments due to the implementation of this Joint Resolution, until such time that they have
implemented their own compensation and position classification system. (Emphasis supplied)

Provisions of law should be read and understood in their entirety and all parts thereof should be seen as constituting a
coherent whole. In this context, the recognition under Section 9 of Joint Resolution No. 4 of the authority granted to
exempt entities like Philhealth to determine their own compensation and position classification system seeks to exclude
them from the salary adjustments provided in Joint Resolution No. 4. This would have the effect of retaining the existing
compensation levels in the said exempt entities at that time. It would prevent both diminution, in case their existing
compensation levels are higher than the salary adjustments, and also increase, which would have enlarged the pay
disparity between those covered by RA 6758 and exempt entities. To ensure observance of the distinction between RA
6758-covered and RA 6758-exempt entities and, at the same time, forestall any unnecessary or excessive dissimilarity in
compensation and position classification systems may occur as a result of the distinctions, exempt entities are required
to observe the policies, parameters and guidelines governing position classification, salary rates, categories and rates of
allowances, benefits and incentives prescribed by the President. This is a recognition by Congress of the authority of the
President to issue policies, parameters and guidelines that will govern the determination by exempt entities of their
respective compensation and position classification systems. As a further safeguard against any abuse or misuse of their
exclusion from RA 6758, any increase in existing salary rates of exempt entities are mandated to have the imprimatur of
the President, upon the recommendation of the DBM. This second proviso complements and enhances the first proviso.
It gives the President the opportunity to ascertain whether salary increases in exempt entities are in accordance with the
prescribed policies, parameters and guidelines on compensation and position classification system. As a final proviso,
exempt entities which still follow the salary rates for positions covered by RA 6758 are entitled to the salary adjustments
under Joint Resolution No. 4, until such time as they have implemented their own compensation and position
classification system. Again, this acknowledges the status of exempt entities and prevents the effective diminution of
their salary rates.

Taken as a cohesive whole, Section 9 of Joint Resolution No. 4 pertains to the effect on and applicability to RA 6758-
exempt entities of the salary adjustments provided under the said Joint Resolution. It prohibits RA 6758-exempt entities
from availing of the beneficial effects of the salary adjustments provided therein, unless such entities still follow the
salary rates for positions covered by RA 6758 and only "until such time that they have implemented their own
compensation and position classification system." However, there is nothing there which limits or constricts the power
of the President as Chief Executive to prescribe such policies, parameters and guidelines which in his discretion would
best serve public interest by regulating the compensation and position classification system of RA 6758-exempt entities.
There is nothing there that prevents or prohibits him from adopting the same or similar policies, parameters and
guidelines provided for in the said Joint Resolution. Viewed in this light, Sections 2 to 6 of EO 7 cohere with the
objectives of Joint Resolution No. 4 and other laws relevant to it.

Petitioner further asserts as invalid insofar as Philhealth is concerned the second proviso in Section 9 of Joint Resolution
No. 4. The said proviso requires that any increase in the existing salary rates in RA 6758-exempt entities shall be subject
to the approval by the President, upon the recommendation of the DBM. For petitioner, this proviso amends or repeals
the grant of authority under RA 7875 to fix the compensation of Philhealth’s personnel to Philhealth’s board of directors.
Petitioner, however, maintains that a joint resolution cannot be used to repeal another law simply because it is not a
law.

Under the Rules of both the Senate and the House of Representatives,34 a joint resolution, like a bill, is required to be
enrolled, examined, undergo three readings and signed by the presiding officer of each House. A joint resolution, like a
bill, is also presented to the President for approval. There is no real difference between a bill and a joint resolution. 35 A
joint resolution also satisfies the two requisites before a bill becomes law – approval by both Houses of Congress after
three readings and approval by the President. Thus, a joint resolution, upon approval by the President, is law. Even the
Rules of the House of Representatives acknowledge this:

SEC. 58. Third Reading. x x x

No bill or joint resolution shall become law unless it passes three (3) readings on separate days and printed copies
thereof in its final form are distributed to the Members three (3) days before its passage except when the President
certifies to the necessity of its immediate enactment to meet a public calamity or emergency. (Emphasis supplied)

Joint Resolution No. 4 was approved by both Houses of Congress after three readings. President Gloria Macapagal-
Arroyo approved it on June 17, 2009. It was published in the Manila Times on June 20, 2009 and in Volume 105, No. 34
of the Official Gazette on August 24, 2009. It is therefore a law.

As law, Joint Resolution No. 4 may therefore amend or repeal RA 7875, if the second proviso of Section 9 indeed it
modifies RA 7875. However, the said proviso may be read in a way that does not require it to be seen as an implied
amendment of RA 7875. It can be simply read as a necessary adjunct of the authority to prescribe policies, parameters
and guidelines on compensation and position classification system for exempt entities. Without it, the President would
have no way to check if the prescribed policies, parameters and guidelines are actually observed.

Nevertheless, Section 59 of the General Provisions of RA 9970 and Section 56 of the General Provisions of RA 10147
identically provide:

SEC. 59. Special Compensation and Other Benefits. GOCCs, including GFIs, who are exempt from, or are legally enjoying
special compensation and other benefits which are subject to those authorized under R.A. No. 6758, as amended, shall
be governed by such special laws: PROVIDED, That they shall observe the policies, parameters and guidelines governing
position classification, salary rates, categories and rates of allowances, benefits, and incentives prescribed by the
President; PROVIDED, FURTHER, That they shall submit their existing compensation and position classification systems
and their implementation status to the DBM; PROVIDED, FURTHERMORE, That any grant of or increase in salaries,
allowances, and other fringe benefits shall be subject to the approval of the President, upon favorable recommendation
of the DBM: PROVIDED, FINALLY, That they shall not be entitled to benefits accruing to government employees covered
by R.A. No. 6758, as amended, if they are already receiving similar or equivalent benefits under their own compensation
scheme. (Emphasis supplied)

Section 59 of the General Provisions of RA 9970 and Section 56 of the General Provisions of RA 10147 completely
debunk the conclusion that Sections 2 to 6 violate existing laws. Specifically with respect to all RA 6758-exempt GOCCs
and GFIs, they recognize the authority of the President as exercised in Sections 2 to 6 of EO 7 to prescribe policies,
parameters and guidelines governing position classification, salary rates, categories and rates of allowances, benefits,
and incentives. Specifically with respect to all RA 6758-exempt GOCCs and GFIs, they acknowledge the President’s power
to approve or disapprove "any grant of or increase in salaries, allowances, and other fringe benefits."

Joint Resolution No. 4, Section 59 of the General Provisions of RA 9970 and Section 56 of the General Provisions of RA
10147 reinforce the rule that "sound management and effective utilization of financial resources of government are
basically executive functions."36 As a necessary incident thereof, the President as Chief Executive has the legal
competence to exercise his power of control of all the executive departments, bureaus and offices, 37 including GOCCs
and GFIs.38 EO 7 is simply an exercise by the President of that power of control.

In sum, the guidelines in Sections 2 to 6 of EO 7 are

within the bounds of authority conferred on the President by the Constitution and various laws. Such regulatory powers
cover all GOCCs and GFIs, regardless of coverage in or exemption from the salary standardization laws. In issuing EO 7,
the President does not encroach on the authority of the legislature to make laws as he is merely enforcing the law:

While Congress is vested with the power to enact laws, the President executes the laws. The executive power is vested
in the President. It is generally defined as the power to enforce and administer the laws. It is the power of carrying (out)
the laws into practical operation and enforcing their due observance.39

It is fundamental that no person shall be deprived of life, liberty or property without due process of law.40 Hence, the
premise of a valid due process claim, whether substantive or procedural, is the dispossession of life or liberty or
property. Where there is no deprivation of life, liberty or property, no meaningful claim of denial of due process may be
made.

As discussed earlier, the imposition of a moratorium on increases in salaries, allowances and other benefits of officers
and employees of GOCCs and GFIs, except salary adjustments under EO 8011 dated June 17, 2009 and EO 900 dated
June 23, 2010, does not constitute a deprivation of property. In fact, it ensures that, like all other officials and employees
of the government, officials and employees of GOCCs and GFIs will continue to enjoy the salary increases granted under
EO 8011 dated June 17, 2009 and EO 900 dated June 23, 2010.

More importantly, the right of a public officer to receive compensation can only arise out of the rendition of the public
services related to his or her office.41 The right to compensation arises out of the performance by the public officer of his
duties.42 Thus, a public officer’s right to salary is limited only to salaries which he has already earned or accrued for
services rendered.43 Other than that, a public officer does not have a vested right to salary and his compensation may be
altered, decreased or discontinued, in the absence of a constitutional prohibition.44

If no vested right to salary generally pertains to a public officer, there is no cogent reason to support the claim to a right
to future salary increase. The grant of any salary increase in the future is something that is merely anticipatory of a
prospective benefit, something that is contingent on various factors. That is why it is a mere expectancy,45which does
not give rise to a vested right.46
Furthermore, the measure undertaken by the President seeks to impose a moratorium only on increases which are not
authorized by existing legislation sanctioning salary adjustments.

On the matter of the suspension of allowances and bonuses (which is already moot as it was expressly made effective
until December 31, 2010 only),47 its context shows that it was meant to arrest the questionable practice by members of
the board of directors/trustees of GOCCs and GFIs granting numerous and excessive allowances, bonuses, incentives and
other benefits to themselves. The President’s action as Chief executive was simply a decisive response to Senate issued
Resolution No. 17, s. 2010 urging him to act on the matter and an exercise of his control and oversight powers.

More importantly, there could have been no violation of substantive due process as petitioner, or anybody for that
matter, cannot properly claim a right to receive bonuses. A bonus is not a demandable and enforceable obligation.48By
definition, a "bonus" is a gratuity or act of liberality of the giver which cannot be demanded as a matter of right by the
recipient.49 It is something given in addition to what is

ordinarily received by or strictly due to the recipient. The grant thereof is basically a management prerogative which
cannot be forced upon the employer who may not be obliged to assume the onerous burden of granting bonuses or
other benefits aside from the employee’s basic salaries or wages, especially so if it is incapable of doing so.50 Thus, there
can be no oppression to speak of even if these privileges (bonuses, allowances and incentives) cease to be given. All the
more reason should the President’s judgment as Chief Executive be

accorded respect if he directs the temporary stoppage of the grant of bonuses when he deems it to be prejudicial to
public interest or too onerous because of the government’s fiscal condition.

It is therefore clear that the suspension of the grant of bonuses and the imposition of a moratorium on salary increases
under EO 7 do not deprive petitioner of any property right. As such, any declaration that such suspension or moratorium
violates substantive due process cannot be justified.

Moreover, as already discussed, Section 59 of the General Provisions of RA 9970 and Section 56 of the General
Provisions of RA 10147 expressly recognize the President’s power to approve or disapprove "any grant of or increase in
salaries, allowances, and other fringe benefits" in all RA 6758-exempt GOCCs and GFIs, including Philhealth. The power
to approve or disapprove covers the lesser power to suspend the grant of allowances and bonuses or impose a
moratorium on salary increases.

All told, the act of the President as Chief Executive in issuing EO 7 was not oppressive, arbitrary, capricious or whimsical.
No grave abuse of discretion may be imputed to the President. Thus, as the President’s official act which enjoys the
presumption of constitutionality and regularity, EO 7 should be accorded due respect and its validity sustained.

A Final Word

Accountability of public office is a safeguard of representative democracy. All who serve in government must always be
aware that they are exercising a public trust. They must bear in mind that public funds are scarce resources and should
therefore be used prudently and judiciously. Hence, where there are findings that government funds are being wasted
due to operational inefficiency and lack of fiscal responsibility in the executive departments, bureaus, offices or
agencies, the President as Chief Executive should not be deprived of the authority to control, stop, check or at least
manage the situation. Absent any showing of grave abuse of discretion on his part, the Court should recognize in the
President as Chief Executive the power and duty to protect and promote public interest thru the rationalization of the
compensation and position classification system in executive departments, bureaus, offices and agencies, including
GOCCs and GFIs.

Accordingly, I vote that the petition be DISMISSED.

G.R. No. 114829 March 1, 1995

MAXIMINO GAMIDO Y BUENAVENTURA, petitioner, vs.NEW BILIBID PRISONS (NBP) OFFICIALS, respondents.

DAVIDE, JR., J.:

In the Resolution of 7 September 1994, we required Atty. Icasiano M. dela Rea of No. 42 National Road corner Bruger
Subdivision, Putatan, Muntinglupa, Metro Manila, to show cause why no disciplinary action should be taken against him
for making it appear in the jurat of the petition in this case that the petitioner subscribed the verification and swore to
before him, as notary public, on 19 April 1994, when in truth and in fact the petitioner did not.

In his Explanation of 23 December 1994 which was received by this Court on 25 January 1995, Atty. Icasiano M. dela Rea
admitted having executed the jurat without the presence of petitioner Gamido. He alleges:

Firstly, I must honestly admit that I notarized it not in his presence. I did it in the honest belief that since it
is jurat and not an acknowledgement, it would be alrights [sic] to do so considering that prior to April 19, 1994
and thereafter, I know Mr. Gamido since I have been in and out of New Bilibid Prisons, not only because my
office is here only across the Municipal Building of Muntinlupa, Metro Manila but because I handled a number of
cases involving prisoners and guards of NBP as well as some of its personnels [sic]. That in fact, I attempted to
have the document personally signed by him but considering that I have to strictly observe rules and regulations
of the NBP, particularly on visit, I did not pursue anymore my intention to have it notarized before me.

Secondly, that in notarizing the document, I honestly feel and by heart and in good faith, that as a notary public
and as a practicing lawyer, I could modestly contribute in the orderly administration of justice. The Gamido
family use to come in the office and in fact hiring the legal services of the undersigned but I refused to handle
since I am already pre-occupied in other cases of similar importance. That on December 13, 1994 I receive a
letter from Mr. Gamido, last paragraph of which is read as follows:

Sanay po Atty. ay maawa kayo sa akin na nagdudusa nang walang kasalanan. Alang alang po sa kaawa
awa kong familiya, kailangan ang aking kalinga. Ang tulong ninyo ang siyang daan upang ako ay makaalis
sa pagpapahirap nang mga taong walang puso at kaluluwa, walang awa sa kapwa, at sa sambayanang
Pilipino.

Then he apologizes to the Court and assures it that henceforth he would be more careful and circumspect:

That I am praying for an apology to the Hon. Supreme Court if what I did was wrong and the Hon. Supreme
Court is assured that perhaps what transpired was a wrong judgment or honest mistake. That the Hon.
Chairman and its Hon. Members are assured that when I signed the petition not in Gamido's presence it is never
intended to do a wrong, to commit illegal or criminal acts but merely in the honest and sincere belief that it is
valid and legal. The Hon. Supreme Court is assured that it is never intended for malice or for money.

This Hon. Chairman and its Hon. Members are further assured that from hereon, I am more careful and
circumspect in the exercise of this noble and grand profession and that no amount or consideration will sway or
change this conviction. This is my life. This is the life of my family.

Atty. dela Rea's explanation is unsatisfactory; however, his spontaneous voluntary admission may be considered in
mitigation of his liability.

As a notary public for a long time, as evidenced by the fact that his questioned jurat is indicated to have been entered in
Book 45 of his notarial register, he should know the similarities and differences between a jurat and
an acknowledgement.

A jurat which is, normally in this form:

 Subscribed and sworn to before me in _______________, this ____ day of ____________, affiant having
exhibited to me his Community (before, Residence) Tax Certificate No. ____________ issued at
______________ on ____________.

"is that part of an affidavit in which the officer certifies that the instrument was sworn to before him (Theobald vs.
Chicago Ry. Co., 75 Ill. App. 208). It is not a part of a pleading but merely evidences the fact that the affidavit was
properly made (Young vs. Wooden, 265 SW 24, 204 Ky. 694)." (LORENZO M. TAÑADA and FRANCISCO A.
RODRIGO, Modern Legal Forms, vol. I, sixth ed., 1985 printing, 31). The jurat in the petition in the case also begins with
the words "subscribed and sworn to me."

To subscribe literally means to write underneath, as one's name; to sign at the end of a document (Black's Law
Dictionary, Fifth ed., 1279). To swear means to put on oath; to declare on oath the truth of a pleading, etc. (Id., 1298).
Accordingly, in a jurat, the affiant must sign the document in the presence of and take his oath before a notary public or
any other person authorized to administer oaths.

As to acknowledgment, Section 1 of Public Act No. 2103 provides:

(a) The acknowledgement 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 person 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. (See Lorenzo M. Tañada and Francisco A. Rodrigo, Modern Philippine
Legal Forms, vol. II, 1964 Fifth ed., 735).

It is obvious that the party acknowledging must likewise appear before the notary public or any other person authorized
to take acknowledgments of instruments or documents.

The claim or belief of Atty. dela Rea that the presence of petitioner Gamido was not necessary for the jurat because it is
not an acknowledgment is patently baseless. If this had been his belief since he was first commissioned as a notary
public, then he has been making a mockery of the legal solemnity of an oath in a jurat. Notaries public and others
authorized by law to administer oaths or to take acknowledgments should not take for granted the solemn duties
appertaining to their offices. Such duties are dictated by public policy and are impressed with public interest.

His prior acquaintance and friendship with petitioner Gamido provides no excuse for non-compliance with his duty. If
Atty. dela Rea were faithful to his duty as a notary public and if he wanted to accommodate a friend who was inside a
prison, he could have gone to the latter's cell since he openly admitted that he has "been in and out of New Bilibid
Prisons, not only because [his] office is here only across the Municipal Building of Muntinlupa, Metro Manila but
because [he] handled a number of cases involving prisoners and guards of NBP as well as some of its personnels [sic]."

Administratively, as a lawyer commissioned as a notary public, Atty. Icasiano M. dela Rea committed grave misconduct
when he agreed to prepare the jurat in the petition in this case in the absence of petitioner Gamido, thereby making it
appear that the latter personally signed the certification of the petition and took his oath before him when in truth and
in fact the said petitioner did not.

WHEREFORE, for grave misconduct, ATTY. ICASIANO I. DELA REA is hereby FINED in the sum of FIVE THOUSAND PESOS
(P5,000.00), without prejudice to criminal prosecution as may be warranted under the circumstances. He is WARNED
that the commission of the same or similar acts in the future shall be dealt with more severely. SO ORDERED.
G.R. No. 192280 January 25, 2011

SERGIO G. AMORA, JR., Petitioner, vs.COMMISSION ON ELECTIONS and ARNIELO S. OLANDRIA, Respondents.

DECISION

NACHURA, J.:

Before us is a petition for certiorari under Rule 64, in relation to Rule 65, of the Rules of Court, seeking to annul and set
aside the Resolutions dated April 29, 20101 and May 17, 2010,2 respectively, of the Commission on Elections (COMELEC)
in SPA No. 10-046 (DC).

First, the undisputed facts.

On December 1, 2009, petitioner Sergio G. Amora, Jr. (Amora) filed his Certificate of Candidacy (COC) for Mayor of
Candijay, Bohol. At that time, Amora was the incumbent Mayor of Candijay and had been twice elected to the post, in
the years 2004 and 2007.

To oppose Amora, the Nationalist People’s Coalition (NPC) fielded Trygve L. Olaivar (Olaivar) for the mayoralty post.
Respondent Arnielo S. Olandria (Olandria) was one of the candidates for councilor of the NPC in the same municipality.

On March 5, 2010, Olandria filed before the COMELEC a Petition for Disqualification against Amora. Olandria alleged
that Amora’s COC was not properly sworn contrary to the requirements of the Omnibus Election Code (OEC) and the
2004 Rules on Notarial Practice. Olandria pointed out that, in executing his COC, Amora merely presented his
Community Tax Certificate (CTC) to the notary public, Atty. Oriculo Granada (Atty. Granada), instead of presenting
competent evidence of his identity. Consequently, Amora’s COC had no force and effect and should be considered as not
filed.

Amora traversed Olandria’s allegations in his Answer cum Position Paper.3 He countered that:

1. The Petition for Disqualification is actually a Petition to Deny Due Course or cancel a certificate of candidacy.
Effectively, the petition of Olandria is filed out of time;
2. Olandria’s claim does not constitute a proper ground for the cancellation of the COC;
3. The COC is valid and effective because he (Amora) is personally known to the notary public, Atty. Granada,
before whom he took his oath in filing the document;
4. Atty. Granada is, in fact, a close acquaintance since they have been members of the League of Muncipal
Mayors, Bohol Chapter, for several years; and
5. Ultimately, he (Amora) sufficiently complied with the requirement that the COC be under oath.

As previously adverted to, the Second Division of the COMELEC granted the petition and disqualified Amora from
running for Mayor of Candijay, Bohol.

Posthaste, Amora filed a Motion for Reconsideration4 before the COMELEC en banc. Amora reiterated his previous
arguments and emphasized the asseverations of the notary public, Atty. Granada, in the latter’s affidavit,5 to wit:

1. The COMELEC’s (Second Division’s) ruling is contrary to the objectives and basic principles of election laws
which uphold the primacy of the popular will;
2. Atty. Granada states that while he normally requires the affiant to show competent evidence of identity, in
Amora’s case, however, he accepted Amora’s CTC since he personally knows him;
3. Apart from the fact that Amora and Atty. Granada were both members of the League of Municipal Mayors,
Bohol Chapter, the two consider each other as distant relatives because Amora’s mother is a Granada;
 4. It is a matter of judicial notice that practically everybody knows the Mayor, most especially lawyers and
notaries public, who keep themselves abreast of developments in local politics and have frequent dealings with
the local government; and
5. In all, the COC filed by Amora does not lack the required formality of an oath, and thus, there is no reason to
nullify his COC.

Meanwhile, on May 10, 2010, national and local elections were held. Amora obtained 8,688 votes, equivalent to 58.94%
of the total votes cast, compared to Olaivar’s 6,053 votes, equivalent to only 41.06% thereof. Subsequently, the
Muncipal Board of Canvassers of Candijay, Bohol, proclaimed Amora as the winner for the position of Municipal Mayor
of Candijay, Bohol.6

A week thereafter, or on May 17, 2010, in another turn of events, the COMELEC en banc denied Amora’s motion for
reconsideration and affirmed the resolution of the COMELEC (Second Division). Notably, three (3) of the seven (7)
commissioners dissented from the majority ruling. Commissioner Gregorio Larrazabal (Commissioner Larrazabal) wrote
a dissenting opinion, which was concurred in by then Chairman Jose A.R. Melo and Commissioner Rene V. Sarmiento.

In denying Amora’s motion for reconsideration and upholding Olandria’s petition for disqualification of Amora, the
COMELEC ratiocinated, thus:

[Amora] himself admitted in his Motion that the Second Division was correct in pointing out that the CTC is no longer a
competent evidence of identity for purposes of notarization.

The COC therefore is rendered invalid when [petitioner] only presented his CTC to the notary public. His defense that he
is personally known to the notary cannot be given recognition because the best proof [of] his contention could have
been the COC itself. However, careful examination of the jurat portion of the COC reveals no assertion by the notary
public that he personally knew the affiant, [petitioner] herein. Belated production of an Affidavit by the Notary Public
cannot be given weight because such evidence could and should have been produced at the earliest possible
opportunity.

The rules are absolute. Section 73 of the Election Code states:

"Section 73. Certificate of Candidacy. – No person shall be eligible for any elective public office unless he files a sworn
certificate of candidacy within the period fixed herein."
Under the 2004 Rules on Notarial Practice of 2004 (Rules), the requirements of notarization of an oath are:
"Section 2. Affirmation or Oath. – The term ‘Affirmation’ or ‘Oath’ refers to an act in which an individual on a single
occasion:
(a) appears in person before the notary public;
(b) is personally known to the notary public or identified by the notary public through competent evidence of
identity as defined by these Rules; and
(c) avows under penalty of law to the whole truth of the contents of the instrument or document."
The required form of identification is prescribed in [S]ection 12 of the same Rules, to wit:
"Section 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. x x x."

It is apparent that a CTC, which bears no photograph, is no longer a valid form of identification for purposes of
Notarization of Legal Documents. No less than the Supreme Court itself, when it revoked the Notarial Commission of a
member of the Bar in Baylon v. Almo, reiterated this when it said:

"As a matter of fact, recognizing the established unreliability of a community tax certificate in proving the identity of a
person who wishes to have his document notarized, we did not include it in the list of competent evidence of identity
that notaries public should use in ascertaining the identity of persons appearing before them to have their documents
notarized."

Seeking other remedies, [Amora] maintained that Section 78 of the Election Code governs the Petition. Said section
provides that:

"Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. – A verified petition seeking to deny due
course or to cancel a certificate of candidacy may be filed by the person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due
notice and hearing, not later than fifteen days before the election."

[Amora] however failed to note that the Petition relies upon an entirely different ground. The Petition has clearly stated
that it was invoking Section 73 of the Election Code, which prescribes the mandatory requirement of filing a sworn
certificate of candidacy. As properly pointed out by [Olandria], he filed a Petition to Disqualify for Possessing Some
Grounds for Disqualification, which, is governed by COMELEC Resolution No. 8696, to wit:

"B. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SECTION 68 OF THE OMNIBUS ELECTION CODE AND PETITION
TO DISQUALIFY FOR LACK OF QUALIFICATIONS OR POSSESSING SOME GROUNDS FOR DISQUALIFICATION

1. A verified petition to disqualify a candidate pursuant to Section 68 of the OEC and the verified petition to disqualify a
candidate for lack of qualifications or possessing some grounds for disqualification may be filed on any day after the last
day for filing of certificates of candidacy but not later than the date of proclamation;

xxxx

3. The petition to disqualify a candidate for lack of qualification or possessing some grounds for disqualification, shall be
filed in ten (10) legible copies, personally or through a duly authorized representative, by any person of voting age, or
duly registered political party, organization or coalition of political parties on the ground that the candidate does not
possess all the qualifications as provided for by the Constitution or by existing law or who possesses some grounds for
disqualification as provided for by the Constitution or by existing law."

xxxx

Finally, we do not agree with [Amora] when he stated that the Second Division’s Resolution "practically supplanted
congress by adding another ground for disqualification, not provided in the omnibus election code or the local
government code. The constitution is very clear that it is congress that shall prescribe the qualifications (and
disqualifications) of candidates for local government positions." These grounds for disqualification were laid down in
both laws mentioned by [Amora] and COMELEC Resolution 8696.7

Hence, this petition for certiorari imputing grave abuse of discretion to the COMELEC. On June 15, 2010, we issued a
Status Quo Ante Order and directed respondents to comment on the petition. As directed, Olandria and the COMELEC
filed their respective Comments8 which uniformly opposed the petition. Thereafter, Amora filed his Reply.9

Amora insists that the Petition for Disqualification filed by Olandria is actually a Petition to Deny Due Course since the
purported ground for disqualification simply refers to the defective notarization of the COC. Amora is adamant that
Section 73 of the OEC pertains to the substantive qualifications of a candidate or the lack thereof as grounds for
disqualification, specifically, the qualifications and disqualifications of elective local officials under the Local Government
Code (LGC) and the OEC. Thus, Olandria’s petition was filed way beyond the reglementary period of twenty-five (25)
days from the date of the filing of the disputed COC.

Moreover, Amora maintains that his COC is properly notarized and not defective, and the presentation of his CTC to the
notary public to whom he was personally known sufficiently complied with the requirement that the COC be under oath.
Amora further alleges that: (1) Olaivar, his opponent in the mayoralty post, and likewise a member of the NPC, is
purportedly a fraternity brother and close associate of Nicodemo T. Ferrer (Commissioner Ferrer), one of the
commissioners of the COMELEC who disqualified him; and (2) Olaivar served as Consultant for the COMELEC, assigned to
the Office of Commissioner Ferrer.

Olandria and the COMELEC reiterated the arguments contained in the COMELEC en banc resolution of May 17, 2010.

Amora’s petition is meritorious.

We find that the COMELEC ruling smacks of grave abuse of discretion, a capricious and whimsical exercise of judgment
equivalent to lack of jurisdiction. Certiorari lies where a court or any tribunal, board, or officer exercising judicial or
quasi-judicial functions has acted without or in excess of jurisdiction or with grave abuse of discretion.10

In this case, it was grave abuse of discretion to uphold Olandria’s claim that an improperly sworn COC is equivalent to
possession of a ground for disqualification. Not by any stretch of the imagination can we infer this as an additional
ground for disqualification from the specific wording of the OEC in Section 68, which reads:

SEC. 68. Disqualifications. – Any candidate who, in an action or protest in which he is party is declared by final decision
of a competent court guilty of, or found by the Commission of having: (a) given money or other material consideration
to influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of
terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code;
(d) solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of
Sections 80, 83, 85, 86, and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a
candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or an
immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person
has waived his status as a permanent resident or immigrant of a foreign country in accordance with the residence
requirement provided for in the elections laws.

and of Section 40 of the LGC, which provides:

SEC. 40. Disqualifications. – The following persons are disqualified from running for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by
one (1) year or more of imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or nonpolitical cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue
to avail of the same right after the effectivity of this Code; and
(g) The insane or feeble-minded.

It is quite obvious that the Olandria petition is not based on any of the grounds for disqualification as enumerated in the
foregoing statutory provisions. Nowhere therein does it specify that a defective notarization is a ground for the
disqualification of a candidate. Yet, the COMELEC would uphold that petition upon the outlandish claim that it is a
petition to disqualify a candidate "for lack of qualifications or possessing some grounds for disqualification."

The proper characterization of a petition as one for disqualification under the pertinent provisions of laws cannot be
made dependent on the designation, correctly or incorrectly, of a petitioner. The absurd interpretation of Olandria,
respondent herein, is not controlling; the COMELEC should have dismissed his petition outright.

A petition for disqualification relates to the declaration of a candidate as ineligible or lacking in quality or
accomplishment fit for the position of mayor. The distinction between a petition for disqualification and the formal
requirement in Section 73 of the OEC that a COC be under oath is not simply a question of semantics as the statutes list
the grounds for the disqualification of a candidate.

Recently, we have had occasion to distinguish the various petitions for disqualification and clarify the grounds therefor
as provided in the OEC and the LGC. We declared, thus:

To emphasize, a petition for disqualification on the one hand, can be premised on Section 12 or 68 of the OEC, or
Section 40 of the LGC. On the other hand, a petition to deny due course to or cancel a CoC can only be grounded on a
statement of a material representation in the said certificate that is false. The petitions also have different effects. While
a person who is disqualified under Section 68 is merely prohibited to continue as a candidate, the person whose
certificate is cancelled or denied due course under Section 78 is not treated as a candidate at all, as if he/she never filed
a CoC. Thus, in Miranda v. Abaya, this Court made the distinction that a candidate who is disqualified under Section 68
can validly be substituted under Section 77 of the OEC because he/she remains a candidate until disqualified; but a
person whose CoC has been denied due course or cancelled under Section 78 cannot be substituted because he/she is
never considered a candidate.11

Apart from the qualifications provided for in the Constitution, the power to prescribe additional qualifications for
elective office and grounds for disqualification therefrom, consistent with the constitutional provisions, is vested in
Congress.12 However, laws prescribing qualifications for and disqualifications from office are liberally construed in favor
of eligibility since the privilege of holding an office is a valuable one.13 We cannot overemphasize the principle that
where a candidate has received popular mandate, all possible doubts should be resolved in favor of the candidate’s
eligibility, for to rule otherwise is to defeat the will of the people.14

In stark contrast to the foregoing, the COMELEC allowed and confirmed the disqualification of Amora although the latter
won, and was forthwith proclaimed, as Mayor of Candijay, Bohol.

Another red flag for the COMELEC to dismiss Olandria’s petition is the fact that Amora claims to personally know the
notary public, Atty. Granada, before whom his COC was sworn. In this regard, the dissenting opinion of Commissioner
Larrazabal aptly disposes of the core issue:

With all due respect to the well-written Ponencia, I respectfully voice my dissent. The primary issue herein is whether it
is proper to disqualify a candidate who, in executing his Certificate of Candidacy (COC), merely presented to the Notary
Public his Community Tax Certificate.

The majority opinion strictly construed the 2004 Rules on Notarial Practice (the "2004 Notarial Rules") when it provided
that valid and competent evidence of identification must be presented to render Sergio G. Amora, Jr.’s [petitioner’s]
COC valid. The very wording of the 2004 Notarial Rules supports my view that the instant motion for reconsideration
ought to be granted, to wit:

Section 2. Affirmation or Oath . – The term "Affirmation" or "Oath" refers to an act in which an individual on a single
occasion:

(a) appears in person before the notary public;

(b) is personally known to the notary public or identified by the notary public through competent evidence of
identity as defined by these Rules; and

(c) avows under penalty of law to the whole truth of the contents of the instrument or document.

As quoted supra, competent evidence of identity is not required in cases where the affiant is personally known to the
Notary Public, which is the case herein. The records reveal that [petitioner] submitted to this Commission a sworn
affidavit executed by Notary Public Oriculo A. Granada (Granada), who notarized [petitioner’s] COC, affirming in his
affidavit that he personally knows [petitioner].
[Respondent], on the other hand, presented no evidence to counter Granada’s declarations. Hence, Granada[’s]
affidavit, which narrates in detail his personal relation with [petitioner], should be deemed sufficient.

The purpose of election laws is to give effect to, rather than frustrate, the will of the voters.1âwphi1 The people of
Candijay, Bohol has already exercised their right to suffrage on May 10, 2010 where [petitioner] was one of the
candidates for municipal mayor. To disqualify [petitioner] at this late stage simply due to an overly strict reading of the
2004 Notarial Rules will effectively deprive the people who voted for him their rights to vote.

The Supreme Court’s declaration in Petronila S. Rulloda v. COMELEC et al. must not be taken lightly:

Technicalities and procedural niceties in election cases should not be made to stand in the way of the true will of the
electorate. Laws governing election contests must be liberally construed to the end that the will of the people in the
choice of public officials may not be defeated by mere technical objections.

Election contests involve public interest, and technicalities and procedural barriers must yield if they constitute an
obstacle to the determination of the true will of the electorate in the choice of their elective officials. The Court frowns
upon any interpretation of the law that would hinder in any way not only the free and intelligent casting of the votes in
an election but also the correct ascertainment of the results.15

Our ruling herein does not do away with the formal requirement that a COC be sworn. In fact, we emphasize that the
filing of a COC is mandatory and must comply with the requirements set forth by law.16

Section 2 of the 2004 Rules on Notarial Practice lists the act to which an affirmation or oath refers:

Sec. 2. Affirmation or Oath. — The term "Affirmation" or "Oath" refers to an act in which an individual on a single
occasion:

(a) appears in person before the notary public;

(b) is personally known to the notary public or identified by the notary public through competent evidence of
identity as defined by these Rules; and

(c) avows under penalty of law to the whole truth of the contents of the instrument or document.

In this case, however, contrary to the declarations of the COMELEC, Amora complied with the requirement of a sworn
COC. He readily explained that he and Atty. Granada personally knew each other; they were not just colleagues at the
League of Municipal Mayors, Bohol Chapter, but they consider each other as distant relatives. Thus, the alleged defect in
the oath was not proven by Olandria since the presentation of a CTC turned out to be sufficient in this instance. On the
whole, the COMELEC should not have brushed aside the affidavit of Atty. Granada and remained inflexible in the face of
Amora’s victory and proclamation as Mayor of Candijay, Bohol.

WHEREFORE, the petition is GRANTED. The Resolutions of the Commission on Elections in SPA No. 10-046 (DC) dated
April 29, 2010 and May 17, 2010, respectively, are ANULLED and SET ASIDE. SO ORDERED.
A.C. No. 7350 February 18, 2013

PATROCINIO V. AGBULOS, Complainant, vs.ATTY. ROSELLER A. VIRAY, Respondent.

DECISION

PERALTA, J.:

The case stemmed from a Complaint1 filed before the Office of the Bar Confidant (OBC) by complainant Mrs. Patrocinio
V. Agbulos against respondent Atty. Roseller A. Viray of Asingan, Pangasinan, for allegedly notarizing a document
denominated as Affidavit of Non-Tenancy2 in violation of the Notarial Law. The said affidavit was supposedly executed
by complainant, but the latter denies said execution and claims that the signature and the community tax certificate
(CTC) she allegedly presented are not hers. She further claims that the CTC belongs to a certain Christian
Anton. 3 Complainant added that she did not personally appear before respondent for the notarization of the document.
She, likewise, states that respondent's client, Rolando Dollente (Dollente), benefited from the said falsified affidavit as it
contributed to the illegal transfer of a property registered in her name to that of Dollente.4

In his Comment,5 respondent admitted having prepared and notarized the document in question at the request of his
client Dollente, who assured him that it was personally signed by complainant and that the CTC appearing therein is
owned by her.6 He, thus, claims good faith in notarizing the subject document.

In a Resolution7 dated April 16, 2007, the OBC referred the case to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation or decision.

After the mandatory conference and hearing, the parties submitted their respective Position Papers.8 Complainant
insists that she was deprived of her property because of the illegal notarization of the subject document.9Respondent,
on the other hand, admits having notarized the document in question and asks for apology and forgiveness from
complainant as a result of his indiscretion.10

In his report, Commissioner Dennis A. B. Funa (Commissioner Funa) reported that respondent indeed notarized the
subject document in the absence of the alleged affiant having been brought only to respondent by Dollente. It turned
out later that the document was falsified and the CTC belonged to another person and not to complainant. He further
observed that respondent did not attempt to refute the accusation against him; rather, he even apologized for the
complained act.11 Commissioner Funa, thus, recommended that respondent be found guilty of violating the Code of
Professional Responsibility and the 2004 Rules on Notarial Practice, and that he be meted the penalty of six (6) months
suspension as a lawyer and six (6) months suspension as a Notary Public.12

On April 15, 2008, the IBP Board of Governors issued Resolution No. XVIII-2008-166 which reads:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with modification, the Report and
Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as
Annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and
rules, and considering Respondent’s violation of the Code of Professional Responsibility and 2004 Rules on Notarial
Practice, Atty. Roseller A. Viray is hereby SUSPENDED from the practice of law for one (1) month.13

Respondent moved for the reconsideration of the above decision, but the same was denied. The above resolution was
further modified in Resolution No. XX-2012-117, dated March 10, 2012, to read as follows:

RESOLVED to DENY Respondent’s Motion for Reconsideration, and unanimously MODIFY as it is hereby MODIFIED
Resolution No. XVIII- 2008-166 dated April 15, 2008, in addition to Respondent’s SUSPENSION from the practice of law
for one (1) month, Atty. Roseller A. Viray is hereby SUSPENDED as Notary Public for six (6) months. (Emphasis in the
original)
The findings of the IBP are well taken.

Section 2 (b) of Rule IV of the 2004 Rules on Notarial Practice emphasizes the necessity of the affiant’s personal
appearance before the notary public:14

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(b) A person shall not perform a notarial act if the person involved as signatory to the instrument or document –

(1) is not in the notary’s presence personally at the time of the notarization; and

(2) is not personally known to the notary public or otherwise identified by the notary public through
competent evidence of identity as defined by these Rules.

Moreover, Section 12,15 Rule II, of the 2004 Rules on Notarial Practice defines the "competent evidence of identity"
referred to above.

In this case, respondent admits that not only did he prepare and notarize the subject affidavit but he likewise notarized
the same without the affiant’s personal appearance. He explained that he did so merely upon the assurance of his client
Dollente that the document was executed by complainant. In notarizing the document, respondent contented himself
with the presentation of a CTC despite the Rules’ clear requirement of presentation of competent evidence of identity
such as an identification card with photograph and signature. With this indiscretion, respondent failed to ascertain the
genuineness of the affiant’s signature which turned out to be a forgery. In failing to observe the requirements of the
Rules, even the CTC presented, purportedly owned by complainant, turned out to belong to somebody else.

To be sure, a notary public should not notarize a document unless the person who signed the same is the very same
person who executed and personally appeared before him to attest to the contents and the truth of what are stated
therein.16 Without the appearance of the person who actually executed the document in question, the notary public
would be unable to verify the genuineness of the signature of the acknowledging party and to ascertain that the
document is the party’s free act or deed.17

As aptly observed by the Court in Dela Cruz-Sillano v. Pangan:18

The Court is aware of the practice of not a few lawyers commissioned as notary public to authenticate documents
without requiring the physical presence of affiants. However, the adverse consequences of this practice far outweigh
whatever convenience is afforded to the absent affiants. Doing away with the essential requirement of physical
presence of the affiant does not take into account the likelihood that the documents may be spurious or that the
affiants may not be who they purport to be. A notary public should not notarize a document unless the persons who
signed the same are the very same persons who executed and personally appeared before him to attest to the contents
and truth of what are stated therein. The purpose of this requirement is to enable the notary public to verify the
genuineness of the signature of the acknowledging party and to ascertain that the document is the party’s free act and
deed.19

The Court has repeatedly emphasized in a number of cases20 the important role a notary public performs, to wit:

x x x [N]otarization is not an empty, meaningless routinary act but one invested with substantive public interest. The
notarization by a notary public converts a private document into a public document, making it admissible in evidence
without further proof of its authenticity. A notarized document is, by law, entitled to full faith and credit upon its face. It
is for this reason that a notary public must observe with utmost care the basic requirements in the performance of his
duties; otherwise, the public’s confidence in the integrity of a notarized document would be undermined.21

Respondent’s failure to perform his duty as a notary public resulted not only damage to those directly affected by the
notarized document but also in undermining the integrity of a notary public and in degrading the function of
notarization.22 He should, thus, be held liable for such negligence not only as a notary public but also as a lawyer.23The
responsibility to faithfully observe and respect the legal solemnity of the oath in an acknowledgment or jurat is more
pronounced when the notary public is a lawyer because of his solemn oath under the Code of Professional Responsibility
to obey the laws and to do no falsehood or consent to the doing of any.24 Lawyers commissioned as notaries public are
mandated to discharge with fidelity the duties of their offices, such duties being dictated by public policy and impressed
with public interest.251âwphi1

As to the proper penalty, the Court finds the need to increase that recommended by the IBP which is one month
suspension as a lawyer and six months suspension as notary public, considering that respondent himself prepared the
document, and he performed the notarial act without the personal appearance of the affiant and without identifying her
with competent evidence of her identity. With his indiscretion, he allowed the use of a CTC by someone who did not
own it. Worse, he allowed himself to be an instrument of fraud. Based on existing jurisprudence, when a lawyer
commissioned as a notary public fails to discharge his duties as such, he is meted the penalties of revocation of his
notarial commission, disqualification from being commissioned as a notary public for a period of two years, and
suspension from the practice of law for one year.26

WHEREFORE, the Court finds respondent Atty. Roseller A. Viray GUILTY of breach of the 2004 Rules on Notarial Practice
and the Code of Professional Responsibility. Accordingly, the Court SUSPENDS him from the practice of law for one (1)
year; REVOKES his incumbent commission, if any; and PROHIBITS him from being commissioned as a notary public for
two (2) years, effective immediately. He is WARNED that a repetition of the same or similar acts in the future shall be
dealt with more severely.

Let all the courts, through the Office of the Court Administrator, as well as the IBP and the Office of the Bar Confidant,
be notified of this Decision and be it entered into respondent's personal record. SO ORDERED.