382 Phil. 8; 97 OG No. 50, 7278 (December 10, 2001)
The failure of the complainant to appear despite due notice and opportunity given to her to substantiate the complaint is very strong indication that complainant is not interested in substantiating the allegations in the complaint.On October 14, 1996, this Court issued a resolution referring the case back to Executive Judge Berba "for further and thorough investigation within thirty (30) days, with notice of hearing properly served on complainant to determine the parties responsible so that proper action can be taken."[4]
The complaint against respondent judge is a matter which has to be proven by clear and convincing evidence. Complainant failed to do so. However, in the light of the explanation of respondent, the investigator submits that respondent should be admonished to be very careful in the future in order not to prejudice any party in the course of the performance of his duties as ex-oficio notary public.[3]
Complainant alleged that the signatures appearing in the questioned documents "Extra Judicial Settlement of Estate With Special Power of Attorney" and "Waiver" both ratified before respondent judge appear to have been signed by only one person. This is belied by a mere comparison of the signatures appearing in both questioned documents and those in the aforesaid Facto de Retro Sale (sic) and Special Power of Attorney. In the absence of any competent evidence presented by complainant to support her said allegation, the presumption of regularity in the performance of official duty in favor of respondent still prevails.On December 6, 1999, the Office of the Court Administrator, pursuant to earlier resolution, submitted its memorandum which we quote in part:
Moreover, if ever as alleged heir complainant (sic) was deprived of her share in the property subject of the questioned documents, such claim may be ventilated in an appropriate forum. It is indeed very hard to arrive at the conclusion under the circumstances and evidence on record that respondent facilitated such alleged deprivation. The records do not show of any proceeding involving the said questioned documents initiated by any of the parties.[5]
We agree with the findings of the Investigating Judge that the accusation of forgery cannot be substantiated without the full cooperation of complainant. Mere suspicion without proof cannot be a basis for conviction. Moreover, complainant’s repeated failure to appear or communicate despite notice gives rise to the presumption that she deliberately failed to prosecute her case.Time and again, the Court has enjoined strict observance of Circular No. 1-90 on the power of Municipal Trial Court (MTC) and Municipal Circuit Trial Court (MCTC) judges to act as notaries public ex officio. Under Section 76 of Republic Act No. 296, as amended, and Section 242 of the Revised Administrative Code, MTC and MCTC judges are empowered to perform the functions of notaries public ex officio. In Circular No. 1-90 however, the Court laid down the following qualifications on the scope of said power, viz:
The foregoing notwithstanding, we find respondent guilty of unauthorized notarization of a private document. It is well settled that municipal judges may not engage in notarial work except as notaries public ex-officio. As notaries public ex-officio, they may engage only in the notarization of documents connected with the exercise of their official functions. They may not, as such notaries public ex-officio, 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. (Balayon, Jr. vs. Ocampo, 218 SCRA 13).
However, taking judicial notice of the fact that there are still municipalities which have neither lawyers nor notaries public, the Supreme Court ruled that MTC and MCTC judges assigned to municipalities or circuits with no lawyers or notaries public may, in their 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 and (2) certification be made in the notarized documents attesting to the lack of any lawyer or notary public in such municipality or circuit. (ibid).
Two of the documents submitted by one Herman P. Periquet, the DAR personnel who frequently asks respondent Judge to notarize DAR documents, show that there are notaries public in the MCTC of Lupon-Banaybanay, to wit:Respondent Judge had therefore no right to notarize the "Extra Judicial Settlement with Special Power of Attorney," a private document, which is not related to the performance of his official function as a judge.
- The Pacto de Retro sale executed by and between Rosita Paquingan and Juanita Tormis last October 25, 1985 was notarized by Atty. Russia S. Mangampo; and
- The first Special Power of Attorney executed by the heirs of Bienvenido Paquingan in favor of Juanita Tormis last March 12, 1994 was notarized by Atty. Leonardo M. Barnes.
Wherefore, it is respectfully recommended that the complaint of forgery be DISMISSED and that Judge Francisco H. Lopez, Jr. be FINED One Thousand Pesos (P1,000.00) for unauthorized notarization of a private document.
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).The reasons that warranted the issuance of said circular need no longer be stated. 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.[6]
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.