CASE BRIEF 2018-0001

“A document should not be notarized unless the person who is executing it is personally or physically present before the notary public.”

CASE: Romeo A. Almario vs. Atty. Dominica Llera-Agno (A.C. No. 10689 January 8, 2018)

PONENTE: Del Castillo, J.:

SUBJECT:

  1. 2004 Rules on Notarial Practice: Acknowledgment– Purpose of personal appearance of affiant.

FACTS:        Atty. Dominica L. Agno notarized and acknowledged a SPA. This was questioned by complainant Romeo Almario contending that the said SPA was falsified because one of the affiants therein, Francisca A. Mallari, could not possibly have executed the same because she was in Japan at the time the SPA was executed, as certified to by the Bureau of Immigration. Hence, he filed a case of disbarment.

In her Answer, Atty. Agno admitted her infraction but prayed for the dismissal of the complaint and offered the following arguments (1) this is her first offense since she was first commissioned as a notary public in 1973; (2) the case involved only one document; (3) the notarization was done in good faith; (4) the civil case wherein the questioned SP A was used ended in a Compromise Agreement; and finally (5) she is already 71 years old and is truly sorry for what she had done, and promises to be more circumspect in the performance of her duties as a notary public.

The IBP Board of Governors recommended the penalty of six (6) months suspension as a Notary Public.

In her Petition for Review, Atty. Agno prayed that the penalty recommended by the IBP be lowered.

ISSUE:

  1. What is/are the importance of affiant’s personal appearance when a document is notarized?
  2. What is the appropriate penalty to be meted out against Atty. Agno?

RULING:

1. The importance of the affiant’s personal appearance when a document is notarized is underscored by Section 1, Rule II of the 2004 Rules on Notarial Practice which states:

SECTION 1. Acknowledgment. – ‘Acknowledgment’ refers to an act in which an individual on a single occasion:

a) appears in person before the notary public and presents an integrally complete instrument or document;
b)is attested to be personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; and
(c) represents to the notary public that the signature on the instrument or document was voluntarily affixed by him for the purposes stated in the instrument or document, declares that he has executed the instrument or document as his free and voluntary act and deed, and, if he acts in a particular representative capacity, that he has the authority to sign in that capacity.

Furthermore, Section 2(b), Rule 1V of the same Rules provides that:

(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.

These provisions mandate the notary public to require the physical or personal presence of the person/s who executed a document, before notarizing the same. In other words, a document should not be notarized unless the person/s who is/are executing it is/are personally or physically present before the notary public. The personal and physical presence of the parties to the deed is necessary to enable the notary public to verify the genuineness of the signature/s of the affiant/s therein and the due execution of the document.

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 and voluntary act and deed.

2. The Court opts to suspend Atty. Agno as a notary public for two months, instead of six months as the IBP had recommended. We are impelled by the following reasons for taking this course of action: first, the apparent absence of bad faith in her notarizing the SP A in question; second, the civil case wherein the flawed SP A was used ended up in a judicial Compromise Agreement; and finally, this is her first administrative case since she was commissioned as a Notary Public in 1973. In addition, Atty. Agno invites our attention to the fact that she is already in the twilight years of her life.

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THINGS DECIDED:

A)      ‘Acknowledgment’ refers to an act in which an individual on a single occasion (a) appears in person before the notary public and presents an integrally complete instrument or document; (b) is attested to be personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; and (c) represents to the notary public that the signature on the instrument or document was voluntarily affixed by him for the purposes stated in the instrument or document, declares that he has executed the instrument or document as his free and voluntary act and deed, and, if he acts in a particular representative capacity, that he has the authority to sign in that capacity.

B)       A document should not be notarized unless the person/s who is/are executing it is/are personally or physically present before the notary public.

C)      The purpose in requiring the appearance of the affiant 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 and voluntary act and deed.

‘Stand by things decided’ ~ Stare Decisis


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