THIRD DIVISION
A.C. No. 11238, September 21, 2016
ATTY. MYLENE S. YUMUL-ESPINA, Complainant, v. ATTY. BENEDICTO D. TABAQUERO, Respondent.
D E C I S I O N
JARDELEZA, J.:
Before us is a complaint for disbarment1 filed by Arty. Mylene S. Yumul-Espina (complainant) against Atty. Benedicto D. Tabaquero (respondent) before the Integrated Bar of the Philippines (IBP). Complainant charged respondent with violating Canon 12 of the Code of Professional Responsibility (CPR), specifically Rules 1.01,3 1.024 and 1.03.5chanrobleslaw
x x x A notary public is duty bound to require the person executing a document to be personally present, to swear before him that he is that person and ask the latter if he has voluntarily and freely executed the same x x x.26chanroblesvirtuallawlibraryMeanwhile, pending resolution of the case by the Investigating Commissioner, complainant executed and filed an Affidavit of Desistance27 which recited, thus:ChanRoblesVirtualawlibrary
3. Moreover, consistent with charity, goodwill and the Christmas spirit, I hereby desist and withdraw the averments I alleged in my Complaint-Affidavit which I filed in connection with above-captioned case. I further request this Honorable Commission to consider my Complaint-Affidavit as withdrawn from the records of above-captioned case, with full knowledge of the legal and other consequences thereof;Respondent also filed and executed his Affidavit of Desistance/Withdrawal28 which stated, thus:ChanRoblesVirtualawlibrary
4. This Affidavit of Desistance may be pleaded as a bar to any existing and/or future criminal, civil and/or administrative cases filed or will be filed against Respondent for the same acts subject of the present Complaint; and cralawlawlibrary
5. I am hereby executing this Affidavit for the purpose of attesting to the truth of the foregoing averments, for the purpose of dismissing above-captioned case and for other legal intents and purposes.
2. I hereby desist and/or withdraw my [unsworn] Counter-Complaint mentioned in my Mandatory Conference Brief dated [July 9,] 2014 and my [unsworn] averments/allegations in my Rejoinder to Reply dated [September 10,] 2014 regarding the alleged violation of duties and/or non-compliance of the Notarial Law by Complainant and request this Honorable Office to consider the same as withdrawn from the records of [the] above-captioned case, with full knowledge of the legal and other consequences thereof;Thus, Investigating Commissioner Eduardo R. Robles, in his Report and Recommendation,29 recommended that the complaint and counter-complaint be dismissed upon the "prodding of the parties." He reasoned that the Commission cannot possibly resolve the controversies after the revelations made by the parties in their Affidavit of Desistance and Affidavit of Desistance/Withdrawal.30chanrobleslaw
3. I expressly declare that the incident was the result of a misapprehension of facts and a simple misunderstanding between Complainant and me;
4. This Affidavit of Desistance and/or Withdrawal may be pleaded as a bar to any existing and/or future criminal, civil and/or administrative cases filed or will be filed against Complainant for the same acts subject of above-captioned case[.]
Laws dealing with double jeopardy or with procedure—such as the verification of pleadings and prejudicial questions, or in this case, prescription of offenses or the filing of affidavits of desistance by the complainant—do not apply in the determination of a lawyer's qualifications and fitness for membership in the Bar.39chanroblesvirtuallawlibraryWe emphasize that a case for disbarment or suspension is not meant to grant relief to a complainant as in a civil case, but is intended to cleanse the ranks of the legal profession of its undesirable members in order to protect the public and the courts.40chanrobleslaw
Sec. 5. Service or dismissal. - x x xThe report and recommendation did not find that there is no compelling reason to continue the proceedings against petitioner and respondent. It merely stated that "[b]esides, this Commission cannot possibly resolve the controversies after the revelations made by the parties in their Affidavit of Desistance and Affidavit of Desistance/Withdrawal. Accordingly, it is hereby recommended that, upon the prodding of the parties themselves, the complaint and the counter-complaint be dismissed."54chanrobleslaw
No investigation shall be interrupted or terminated by reason of the desistance, settlement, compromise, restitution, withdrawal of the charges or failure of the complainant to prosecute the same, unless the Supreme Court motu propio or upon recommendation of the IBP Board of Governors, determines that there is no compelling reason to continue with the disbarment or suspension proceedings against the respondent. (Emphasis supplied.)
x x x [A]bout the claim of [complainant] that all what she could remember is that there was a man who appeared a foreigner (sic) and claimed to be [Derek]. Noticeably and conformably to the Notarial Law, there is need for personal appearance, positive proofs of identity for the notarization of the document.Thus, complainant's act of notarizing the document without the presence of the affiant is prohibited by the 2004 Rules on Notarial Practice63 which provides:ChanRoblesVirtualawlibrary
What was presented as identification and the claim that a foreigner appeared before her is largely on the basis of a Community Tax Certificate. The Community Tax Certificate that appeared on the Affidavit of Waiver of Rights, and surprisingly obtained by a foreigner who is not qualified to have a Community Tax Certificate, not being a Filipino citizen but a visitor, is entered as having been paid for and issued on September 28, 1999.
This is preposterous in that as the Community Tax Certificate was procured, issued and released on September 28, 1999, [Derek] was not also in the Philippines. x x x62chanroblesvirtuallawlibrary
Rule IV. Powers and Limitations of Notaries PublicThis is the most common violation committed by lawyers. To deter further violations, and in line with existing jurisprudence, we impose the penalties of suspension from the practice of law for six (6) months, revocation of incumbent commission as a notary public, and disqualification from being commissioned as a notary public for a period of two (2) years.
x x x
Sec. 2. Prohibitions. x x x
(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 or otherwise identified by the notary public throug competent evidence of identity as defined by these Rules.
(1) | The complaint agamst respondent Atty. Benedicto D. Tabaquero is DISMISSED for lack of merit. |
(2) | Complainant Atty. Mylene S. Yumul-Espina is GUILTY of violating the 2004 Rules on Notarial Practice. Accordingly, the Court hereby SUSPENDS her from the practice of law for six (6) months; REVOKES her incumbent commission as a notary public; and PROHIBITS her from being commissioned as a notary public for two (2) years, effective immediately. She is WARNED that a repetition of the same offense or similar acts in the future shall be dealt with more severely.67 |
Endnotes:
1Rollo, pp. 2-13.
2 CANON 1 - A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and for legal processes.
3 Rule 1.01 — A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.
4 Rule 1.02 — A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system.
5 Rule 1.03 — A lawyer shall not, for any corrupt motive or interest, encourage any suit or proceeding or delay any man's cause.
6Rollo, pp. 40-41.
7Id. at 81.
8 Falsification of Public Documents by a Private Individual against Shirley Atkinson, Criminal Case No. 13-0449; and Falsification of Public Document by a Notary Public against complainant, Criminal Case No. 13-1324. See Id. at 5-6.
9Id. at 2.
10Id. at 10-11.
11Id. at 6.
12Id. at 40-51.
13Id. at 42.
14Id. at 43-44.
15Id. at 46.
16Id. at 46, 108.
17Id. at 47.
18Id. at 117.
19Id. at 118-125.
20Id. at 122.
21Id. at 128-132.
22Id. at 276-283.
23Id. at 278.
24 A.C. No. 6249, October 14, 2004, 440 SCRA 291.
25cralawred Rollo, p. 280.
26Id.
27Rollo, pp. 303-304.
28Id. at 296-297.
29Id. at 313-315.
30Id. at 315.
31Id. at 311-312.
32Guarin v. Limpin, A.C. No. 10576, January 14, 2015, 745 SCRA 459, 464; Cristobal v. Renta, A.C. No. 9925, September 17, 2014, 735 SCRA 247, 249; Ylaya v. Gacott, A.C. No. 6475, January 30, 2013, 689 SCRA 452, 467; Ventura v. Samson, A.C. No. 9608, November 27, 2012, 686 SCRA 430, 443.
33Office of the Court Administrator v. Liangco, A.C. No. 5355, 662 SCRA 103, December 13, 2011, 662 SCRA 103, 121.
34Id.
35 See Ventura v. Samson, supra; Gonzales v. Cabucana, Jr., A.C. No. 6836, January 23, 2006, 479 SCRA 320; Rangwani v. Diño, A.C. No. 5454, November 23, 2004, 443 SCRA 408; Reyes-Domingo v. Morales, A.M. No. P-99-1285, October 4, 2000, 342 SCRA 6; Bulado v. Tin, Jr., A.M. No. P-96-1211, March 31, 2000, 329 SCRA 308; Gacho v. Fuentes, Jr., A.M. No. P-98-1265, June 29, 1998, 291 SCRA 474; Dagsa-an v. Conag, A.M. No. P-98-1269, May 13, 1998, 290 SCRA 12; Estreller v. Manatad, Jr., A.M. No. P-94-1034, February 21, 1997, 268 SCRA 608; Sandoval v. Manalo, A.M. No. MTJ-96-1080, August 22, 1996, 260 SCRA 611; Zamora v. Jumamoy, A.M. No. P-93-781, December 2, 1994, 238 SCRA 587; Sy v. Academia, A.M. No. P-87-72, July 3, 1991, 198 SCRA 705; Bais v. Tugaoen, A.M. No. 1294-MJ, March 23, 1979, 89 SCRA 101; and Bolivar v. Simbol, A.C. No. 377, April 29, 1966, 16 SCRA 623.
36Gonzales v. Cabucana, Jr., supra at 332.
37Rangwani v. Diño, supra at 417.
38 A.C. No. 6593, February 4, 2010, 611 SCRA 508.
39Id. at 515-516. Emphasis supplied.
40Ventura v. Samson, supra at 443.
41 See Ocampo v. Domlngnez, A.C. No. 1006, October 17, 1980, 100 SCRA 308; Santos v. De Guzman, A.C. No. 1527, June 19, 1980, 98 SCRA 59; and Santiago v. Bustamante, A.C. No. 827, April 29, 1977, 76 SCRA 527.
42Ocampo v. Dominguez, supra at 311-312.
43 A.C. No. 3037, May 20, 2004, 428 SCRA 563.
44Id. at 565, citing Munar v. Flores, A.C. No. 2112, May 30, 1983, 122 SCRA 448, 452.
45Id. at 566.
46 A.C. No. 1471, January 11, 1979, 88 SCRA 18.
47Id. at 18-19.
48Id. at 20.
49Villamor, Jr. v. Santos, A.C. No. 9868, April 22, 2015, 757 SCRA 1, 7. See also Amatorio v. Yap, A.C. No. 5914, March 11, 2015, 752 SCRA 230; Lanuza v. Magsalin III, A.C. No. 7687, December 3, 2014, 743 SCRA 453; and Joven v. Cruz, A.C. No. 7686, July 31, 2013, 702 SCRA 545.
50Guarin v. Limpin, supra note 32. See also Lanuza v. Magsalin III, supra; Jimenez v. Verano, Jr., A.C. No. 8108, July 15, 2014, 730 SCRA 53; Ylaya v. Gacott, supra note 32; and Arma v. Montevilla, A.C. No. 4829, July 21, 2008, 559 SCRA 1.
51Rollo, pp. 2-13, 40-51, 140-153, 223-238, 267-273, 276-283.
52Id. at 134-135, 294.
53Id. at 89-93.
54Id. at 315.
55Id. at 77-83, 96-107.
56Id. at 110-111.
57Id. at 112-115.
58 See Order dated July 31, 2014 of the IBP Commissioner, id. at 135; and Complainant's Reply (to Respondent's Position Paper), id. at 267.
59Id. at 44-45.
60Id.at 24-38.
61Id. at 6.
62Id. at 27.
63 A.M. No. 02-8-13-SC, August 1, 2004.
64Guevarra v. Eala, A.C. No. 7136, August 1, 2007, 529 SCRA 1, 14, citing Gatchalian Promotions Talents Pool, Inc. v. Naldoza, A.C. No. 4017, September 29, 1999, 315 SCRA 406. See also Mecaral v. Velasquez, A.C. No. 8392, June 29, 2010, 622 SCRA 1.
65Santiago v. Bustamante, supra note 41.
66Santos v. de Guzman, supra note 41.
67 See Sappayani v. Gasmen, A.C. No. 7073, September 1, 2015; Sultan v. Macabanding, A.C. No. 7919, October 8, 2014, 737 SCRA 530; Agbulos v. Viray, A.C. 7350 , February 18, 2013, 690 SCRA 1; and Isenhardt v. Real, A.C. No. 8254, February 15, 2012, 666 SCRA 20.