Sunday, February 05, 2012

Tan vs. Gonzales, A.C. No. 6634

Facts: Under consideration is this complaint for disbarment filed by Tan Tiong Bio, a.k.a. Henry Tan, against Atty. Renato L. Gonzales for allegedly notarizing a conveying deed outside the territory covered by his notarial commission and without requiring the personal presence before him of the signatories to the deed before notarizing the same, in violation of the Notarial Law and the lawyer’s oath.

As records reveal, complainant purchased several parcels of land at the Manila Southwoods Residential Estates (Southwoods, for short), a mix residential-commercial complex situated in Carmona, Cavite owned/operated by Fil-Estate Golf and Development, Inc. (FEGDI) and Fil-Estate Properties, Inc. (FEPI). FEPI has its office at Renaissance Towers, Meralco Avenue, Pasig City. In one of the transactions adverted to, complainant, as vendee, was made to sign and execute Deed of Sale No. 1108 covering a lot described in and covered by the vendor’s Transfer Certificate of Title (TCT) No. T-427206. Following payment of the contract price in full, including miscellaneous expenses, TCT No. 968702 in complainant’s name was delivered to him with the corresponding completed deed of sale. Respondent Renato L. Gonzales, employed as corporate counsel for FEPI and appointed/reappointed from 1996 to 2001 as notary public for Quezon City, was the notarizing officer of Deed 1108 on which the name and signature of Alice Odchigue-Bondoc (Bondoc) appear as the vendor’s authorized representative.

As complainant would allege in his Complaint Affidavit dated November 17, 2003, and its annexes, sometime in 1995, he made another Southwoods purchase covering Lot 10, Block 27, Phase 3 (or Lot 10). Several years following his payment of the amount of P2,068,523, representing the full purchase price for Lot 10 and after he had signed a deed with the space for the title number and technical description left in blank, complainant repeatedly asked for but was not able to secure a certificate of title for the same or a refund of his payment. The rebuff, according to complainant, impelled him to file a case for estafa with the Office of the City Prosecutor of Pasig City.

In connection with the estafa charge, so complainant claims, Ms. Bondoc, signatory (for FEGDI as vendor) to Deed 1108, executed a counter-affidavit therein stating that she had not personally met nor transacted with the complainant either with respect to the negotiations for the sale of the land covered by TCT No. T-427206 nor during the execution of Deed 1108. Complainant would add, however, that Ms. Bondoc admitted that she and the complainant did sign the said deed of sale, but at different times and in different places, and not in each other’s presence, like other “signed hundreds of deeds (of sale) over other documents for our behalf of the President [of Fil-Estate] with buyers [she] had never (even) met.”

Issue: Whether or not there exist a ground for disbarment.

Held: As aptly found by the Investigating Commissioner, delving on the second part of the recommendation, complainant failed to substantiate with competent proof his allegations that respondent performed the notarial procedure on Deed 1108 without his (complainant) being present to acknowledge the due execution thereof. Being a notarized document, Deed 1108 and the solemnities attending its execution are disputably presumed to be regular. Absent convincing evidence to the contrary, the certification in Deed 1108 that the vendor and the vendee personally appeared before the respondent to acknowledge the same must be upheld. As we said in Vda. De Rosales v. Ramos, when a notary certifies to the due execution and delivery of the document under his hand and seal, the document thus notarized is converted into a public document. To us and to the Investigating Commissioner, the declaration of Ms. Bondoc in her counter-affidavit before the prosecutor’s office is not the clear and convincing evidence required to overturn the presumption of regularity. Ms. Bondoc’s declaration that she had not met or dealt directly with Southwoods buyers does not necessarily prove that such buyers and FEPI’s representatives in the purchase did not in fact appear before the notary public to acknowledge the fact of contract execution before him. If at all, Ms. Bondoc’s declaration simply means that she has not personally met the buyers, or, with like effect, that she, as representative of the seller, has not appeared together with the buyers before the notarizing officer. As it were, the Notarial Law is silent as to whether or not the parties to a conveying instrument must be present before the notary public at the same time when they acknowledge its due execution.

There can be quibbling, however, that the respondent breached the injunction against notarizing a document in a place outside one’s commission. As reported by the Investigating Commissioner, respondent acknowledged that from February 1, 1996 to September 30, 2001, within which period Deed 1108 was notarized, his notarial commission then issued was for Quezon City. Deed 1108 was, however, notarized in Pasig City. To compound matters, he admitted having notarized hundreds of documents in Pasig City, where he used to hold office, during the period that his notarial commission was only for and within Quezon City.

Needless to stress, respondent cannot escape from disciplinary action in his capacity as member of the bar and as a notary public. His proven transgression does not, however, merit disbarment, as urged by the complainant. This most severe form of disciplinary sanction ought to be imposed only in a clear case of misconduct that seriously affects the standing and character of a respondent as an officer of the court and as a member of the bar. Disbarment should never be decreed where any lesser penalty, such as temporary suspension, could accomplish the end desired.

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