Dizon vs. Cabucana

A notary public is categorically prohibited from notarizing a document unless the signatory personally appears before the notary at the time of notarization, is personally known, or is properly identified through competent evidence of identity. The personal-appearance requirement is a mandatory safeguard that enables the notary to verify the genuineness of the signature and to ascertain that the document is the party’s free and voluntary act and deed. Notarizing a document in the absence of the signatory constitutes false certification and amounts to dishonest and deceitful conduct in violation of Rule 1.01, Canon 1 of the Code of Professional Responsibility.

Complainant Licerio Dizon was a prospective buyer of a parcel of land belonging to the heirs of Florentino Callangan—Susana, Jun, and Angeleta. The heirs were parties in Civil Case No. 1-689, an action pending before the Municipal Trial Court in Cities, Branch I, Santiago City. In the course of that litigation, the heirs executed a compromise agreement, which respondent Atty. Marcelino Cabucana, Jr. notarized. A subsequent judicial inquiry into the voluntariness and due execution of the agreement uncovered that the signatories had not appeared before the notary. The resulting delay in the resolution of the civil case allegedly prejudiced the complainant’s interests as a would-be buyer and prompted the administrative complaint.

• The Complaint and the Underlying Civil Case: Complainant Licerio Dizon was a prospective buyer of a parcel of land owned by the heirs of Florentino Callangan—Susana, Jun, and Angeleta—who were the parties in Civil Case No. 1-689 pending before the Municipal Trial Court in Cities, Branch I, Santiago City (MTCC). The civil case involved recovery of possession and damages.

• The Compromise Agreement and Its Notarization: On November 6, 2003, the Callangan heirs executed a compromise agreement in the MTCC courtroom. The document was notarized on the same day by respondent Atty. Marcelino Cabucana, Jr., who indicated that the instrument was subscribed and sworn to before him.

• Judicial Inquiry into Due Execution: During a hearing conducted on December 11, 2003 regarding the due execution and veracity of the compromise agreement, the signatories testified that they signed the instrument in the courtroom but not in the personal presence of Atty. Cabucana as Notary Public.

• Alleged Prejudice to Complainant: The irregularity in the notarization allegedly caused undue delay in the resolution of Civil Case No. 1-689, resulting in damage and injury to complainant as a would-be buyer. Complainant further alleged that Atty. Cabucana uttered grave threats against him on July 20, 2004, after a hearing in the same case.

• Respondent’s Defense: Atty. Cabucana denied any actionable violation. He asserted that the complaint was a harassing tactic because he was the private prosecutor in a criminal case filed against complainant before the MTCC; that complainant lacked legal standing as a mere “would-be” buyer who was not a party to the compromise agreement; and that any defect in the notarization could not prejudice complainant.

• Violation of Notarial Law: Complainant argued that Atty. Cabucana notarized the compromise agreement in the absence of most of the signatories, contrary to the Notarial Law which requires the personal appearance of all persons executing a document.

• Disciplinary Sanction: Complainant maintained that the respondent’s act of falsifying a public document by misrepresenting the affiants’ personal appearance warranted the imposition of disciplinary sanctions under Rule 138, Section 27 of the Rules of Court and the Code of Professional Responsibility.

• Prejudice: Complainant averred that the irregular notarization caused an unwarranted delay in the resolution of the civil case, to his direct damage and injury as a would-be buyer.

• Lack of Cause of Action: Respondent countered that complainant had no legal interest or standing because he was merely a prospective buyer and not a party to the compromise agreement; thus, he suffered no real injury from any defect in its notarization.

• Harassment: Respondent asserted that the complaint was a retaliatory measure meant to harass him for serving as the private prosecutor in a separate criminal case pending against complainant before the same court.

• No Prejudice Shown: Respondent argued that the pendency of the civil case or any alleged irregularity in the notarization did not translate into legally cognizable damage to the complainant.

• Notarial Misconduct: Whether Atty. Cabucana violated Rule 1.01, Canon 1 of the Code of Professional Responsibility by notarizing a compromise agreement without the personal appearance of all signatories, as required by the Notarial Law and the 2004 Rules on Notarial Practice.

• Proper Penalty: Whether the penalty recommended by the IBP Board of Governors—a one-month suspension from the practice of law and a one-year disqualification from re-appointment as notary public—was commensurate to the gravity of the offense.

• Notarial Misconduct: The notarization of the compromise agreement without the signatories’ personal appearance was a direct violation of Section 1 of Public Act No. 2103 (the Notarial Law) and Section 2(b), Rule IV of the 2004 Rules on Notarial Practice, which unequivocally prohibit performing a notarial act when the signatory is not personally present before the notary at the time of notarization and is not personally known or identified through competent evidence of identity. By certifying that the parties personally appeared and acknowledged the instrument as their free act when they had not, Atty. Cabucana made a false statement in a public document, which constitutes dishonest and deceitful conduct squarely within the prohibition of Rule 1.01, Canon 1 of the Code of Professional Responsibility. The personal-appearance requirement is an essential safeguard: it enables the notary to verify the genuineness of the signature and to ascertain that the document is the party’s free and voluntary act and deed.

• Proper Penalty: The recommended one-month suspension from law practice and one-year disqualification from notarial commission were found to be too lenient. The offense strikes at the heart of the integrity of notarized documents and constitutes a serious breach of the lawyer’s oath. Considering the nature and gravity of the misconduct, a three-month suspension from the practice of law, immediate revocation of any incumbent notarial commission, and a two-year prohibition against being commissioned as a notary public were imposed, with a stern warning against repetition.

• Mandatory Personal Appearance for Notarization — A notary public is absolutely prohibited from notarizing a document unless the person executing it is personally present at the time of notarization and is known to the notary or identified through competent evidence of identity. The rule, found in Section 1 of the Notarial Law and Section 2(b), Rule IV of the 2004 Rules on Notarial Practice, is designed to ensure that the notary verifies the genuineness of the signature and the voluntary character of the instrument. A notary who certifies personal appearance when the signatory was absent commits a false certification and is liable for dishonest and deceitful conduct under Rule 1.01, Canon 1 of the Code of Professional Responsibility.

• "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." — The Court reiterated the unequivocal command of the 2004 Rules on Notarial Practice, underscoring the non-delegable duty of personal inspection.

• "As a notary public, Atty. Cabucana should not notarize a document unless the person who signs it is the same person executing it and personally appearing before him to attest to the truth of its contents. This is to enable him to verify the genuineness of the signature of the acknowledging party and to ascertain that the document is the party's free and voluntary act and deed." — This passage articulates the ratio decidendi, clarifying the rationale behind the personal-appearance requirement and why its violation constitutes dishonesty.

N/A — The resolution did not cite or rely on any prior judicial decisions; the legal basis rested exclusively on the Notarial Law, the Rules on Notarial Practice, and the Code of Professional Responsibility.

• Section 1, Public Act No. 2103 (Notarial Law) — The provision requires that acknowledgments be made before a notary public, who must certify that the person acknowledging is personally known to him, personally appeared, and acknowledged the instrument as his free act and deed. The false certification of personal appearance directly violated this requirement.

• Section 2(b), Rule IV, Rules on Notarial Practice of 2004 — This rule expressly forbids a notary from performing a notarial act unless the signatory is personally present at the time of notarization and is identified through personal knowledge or competent evidence of identity. Respondent’s act fell squarely within this prohibition.

• Rule 1.01, Canon 1, Code of Professional Responsibility — This canon prohibits a lawyer from engaging in unlawful, dishonest, immoral, or deceitful conduct. The false notarial certification constituted dishonest and deceitful conduct, triggering disciplinary liability under this provision.

Associate Justice Presbitero J. Velasco, Jr. (Chairperson), Associate Justice Diosdado M. Peralta, Associate Justice Roberto A. Abad, and Associate Justice Marvic Mario Victor F. Leonen. No separate concurring opinions were registered.

N/A — The resolution was unanimous; no dissenting opinions were filed.