A.C. No. 11079, June 15, 2016
THIRD DIVISION [ A.C. No. 11079, June 15, 2016 ] FEDERICO EVANOSO, SR. VS. ATTY. TEODORO EMBOY.The Court resolves to NOTE:
| (1) | the Notice of Resolution No. XXI-2014-922 dated December 13, 2014 of the Integrated Bar of the Philippines (IBP) Board of Governors adopting and approving the report and recommendation of the investigating commissioner, and dismissing the instant case; and |
| (2) | the letter dated January 11, 2016 of the IBP transmitting the documents pertaining to this case. |
For resolution is a Complaint filed by complainant Federico B. Evanoso, Sr. against Atty. Teodoro A. Emboy for violation of the Code of Professional Responsibility as a lawyer. The complaint was filed directly with the Commission on Bar Discipline (CBD), Integrated Bar of the Philippines (IBP).The Report and Recommendation dated February1, 2014 of Investigating Commissioner Romualdo A. Din, Jr., CBD, IBP, follows:
REPORT AND RECOMMENDATION
x x x x
COMPLAINANT'S POSITION
The charge against the respondent revolves around the circumstances surrounding the contents, execution and notarization of a Deed of Extrajudicial Settlement with Simultaneous Deed of Confirmation of Sale in favor of Pastor Roman C. Cariaga (hereafter "Deed").
The Complaint-Affidavit states than on September 2, 2011, the complainant along with his brother, Rodolfo B. Evanoso, executed the Deed which was prepared and acknowledged by the respondent. It was entered in the respondent's Notarial Register as Doc. No. 480; Page No. 96; Book 333, Series of 2011.
According to the complainant, he and his brother, as the only heirs of their parents, Isrnael Evanoso and Felicula Brudeos who died on April 16, 1991 and June 3, 1984, respectively, should have inherited in equal shares three (3) parcels of land with the following details: 1). Parcel One -A Twenty-Eight Thousand Eight Hundred and Sixty-Three square meters (28.863 sq m) parcel of land covered by TCT No. T-2769 described as Lot A-2, Psd-10-001947 being a portion of Lot A, [LR.C] Psd-277892] situated in Brgy. Mahay, Butuan City, Mindanao; 2) Parcel Two - A Fourteen Thousand Fourteen square meters (14,014 sq m) parcel of land covered by TCT No. T-6664 described as Lot C-2-B, Psd-10-010595, being a portion of Lot C-2-B, Psd-10-006820] situated at Brgy. Mahay, Butuan City, Mindanao; and 3.) Parcel Three - a Ten Thousand Square meter (10,000) parcel of land covered by TCT No. T-2769 described as Lot C-2-B-1, Psd-10-010595 being a portion of C-2-B, Psd-10-006820] situated at: Brgy. Mahay, Butuan City, Mindanao.
The complainant averred that of the three (3) parcels of land, they were supposed to sell only Parcel 3 as above described to Pastor Roman G. Cariaga. But to his dismay, he found out that the Deed which he and his brother signed sold and conveyed all three (3) parcels of land to Pastor Cariaga; hence, the Deed did not reflect the true intention of the sale.
Additionally, the complainant also avers that he was not given the opportunity to read the Deed. Because on September 2, 2011 when he attempted to read the pages of the Deed before signing it, the respondent, in order to facilitate the signing of the Deed told the complainant that there is no need for him to read the Deed because his brother already signed it.
x x x
Lastly, the complainant questions the provision on the Deed which states that the complainant and his brother "affirmed and confirmed the sale of the above parcels of land x x x to Pastor Roman G. Cariaga" by way of [Joint] Affidavit of Confirmation of Deed of Conveyance to Ramon G. Cariaga dated October 5, 2009 (hereafter "Joint Affidavit"). He explains that he has no recollection of ever signing the Affidavit pertained to in the averred provision.
He intimated that in order to verify the existence of the Joint Affidavit, the complainant's wife requested for a copy of the same with the Office of the Clerk of Court of the Regional Trial Court of Butuan City. But instead of being issued a copy thereof, the Clerk of Court gave her a Certification stating that the Joint Affidavit was not in their file, xxx
In view thereof, the complainant concludes his Complaint-Affidavit by stressing that the Deed does not reflect his true intention of selling only one parcel of land to Pastor Cariaga, the provision on the confirmation of sale was false and that had he read the Deed he would not have signed it and that the respondent used his profession as a lawyer to defraud him at the time that the questionable deed was signed thereby depriving him of his ownership over the lands.
RESPONDENT'S POSITION
x x x x
In his Answer, the respondent avers that not only was the complainant able to read all the pages of the Deed but the contents thereof were thoroughly explained by the respondent to the complainant, his wife and daughter at the latter's house in Emenville Subdivision, Ambago, Butuan City sometime in the last week of August 2011 when the respondent. Pastor Cariaga and some other people went there. The respondent added that he explained to them that the complainant was to confirm the sale of his parents Ismael Evanoso and Felicula Burdeos of the aforesaid three (3) parcels in Mahay xxx because the Joint Affidavit of Confirmation of Sale Rodolfo and the Complainant executed was not contained in the proper document, a Deed of Extrajudicial Settlement of the Estate of the Late Spouses so that the Confirmation of Sale of the three parcels may be registered and the title transferred to Pastor Cariaga.
The respondent adds that even after the contents of the Deed were explained to the complainant, he asked for and was given more time to think over and discuss the matter with his wife and children. Thus, the Deed was only signed on September 2, 2011 at the respondent's office. At the respondent's office in the presence of Pastor Cariaga and Elenita, the Pastor's Assistant, the complainant declared that he would sign the Deed if he was paid Fifty Thousand pesos (Php50,000.00) to which Pastor Cariaga readily agreed to.
To corroborate the respondent's statements, the Affidavit of Pastor Roman Cariaga, reiterating the respondent's statements, was attached to his Answer as Annex "l". Pastor Cariaga's Affidavit, in turn, has a copy of the Deed with the corresponding copy of the Joint-Affidavit attached thereto as Annex "A".
Part of the respondent's statements which Pastor Cariaga corroborated in his Affidavit was the Fifty Thousand Pesos (Php50,000.00) payment he made in favor of the complainant. As proof thereof, Pastor Cariaga's Affidavit attached as Annexes "B" and "D" One Network Bank, a rural bank in Agusan Del Sur checks issued in the name of the complainant Federico B. Evanoso, Sr. Two checks were issued to the amount of Php25,000.00 each dated September 7, 2011 and September 14, 2011 with Pastor Cariaga as one of the signatories.
Also attached as Annexes "C" and "E" were check vouchers dated September 7, 2011 and September 14, 2011, respectively, duly explaining that the aforementioned checks were paid to the complainant as a consideration for the reconstruction of the Deed of Sale of the Mahay Property.
Pastor Cariaga also stated in his Affidavit that the Joint-Affidavit was executed and signed because the Deed of Sale Transferring the parcels of land from the complainant's parents to Pastor Cariaga and which was signed by the Complainant's father, Ismael Evanoso, got burned and could no longer be located.
Finally, the respondent asserts that the administrative case filed against him is premature, made in bad faith, merely to besmirch his name, reputation and good standing in the community. He points out that the same was not even previously filed or referred to the Grievance Committee of the IBP of Agusan del Norte, Butuan City. He asks that the complaint against him be dismissed for being baseless, false, and fabricated.
CONCLUSION AND RECOMMENDATION
The question before this Commission is whether or not the respondent violated the Code of Professional Responsibility. The provisions of the Code which are pertinent to the case at fore are Canon 1 and Rule 1.01 thereof, which states, that:In Resolution No. XXI-2014-922, the Board of Governors of the IBP adopted and approved the Report and Recommendation of the Investigating Commissioner, and the case against the respondent is dismissed.
Canon I - A lawyer shall uphold the Constitution, obey the laws of the land and promote respect for law and legal processes.Nevertheless, the Commission finds that the pieces of evidence submitted by the Complainant are not preponderant evidence sufficient to sanction the respondent for violating the Code of Professional Responsibility.
Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.
Controlling are the Supreme Court's rulings in the case of Violeta Flores Alitagtag vs. Atty. Virgilio R. Garcia which expressly states that: "In disbarment proceedings, the burden of proof rests upon the complainant, and for the court to exercise its disciplinary powers, the case against the respondent must be established by clear, convincing and satisfactory proof. Considering the serious consequence of the disbarment or suspension of a member of the Bar, this Court has consistently held that clear preponderant evidence is necessary to justify the imposition of the administrative penalty."
As well as in the case of Siao Aba, et al vs. Attys. Salvador De Guzman, Jr., et al where the Supreme Court held that: "x x x the burden of proof rests upon the complainant to prove the allegations in his complaint. The evidence required in suspension and disbarment proceedings is preponderance of evidence."
Aside from the bare allegations of the complainant no other proof, except for the Deed which was duly acknowledged by both parties and the Certificate which does not prove the non-existence of the Joint-Affidavit, was presented by him to support his statements. Neither does he adduce any evidence to prove the respondent's act of defrauding him. The Deed itself does not contain any provision tantamount to defrauding.
The Certificate attached to the Complaint-Affidavit which the complainant offers as evidence to prove that he has no recollection of singing the Joint-Affidavit and impliedly that the Joint-Affidavit does not exist, fails to concretely establish such an allegation, especially when the respondent was able to provide this Commission with a copy of the same by way of an attachment to the Affidavit of Pastor Cariaga.
An analysis of the Joint-Affidavit shows that the signature of the complainant appearing therein bares a striking resemblance to his signature in the [Complaint-Affidavit] and the Deed which he acknowledges he signed.
Correspondingly, the Certification offered by the complainant only proves tow things: 1) that the Joint-Affidavit does not exist in the file of [the] Office of the Clerk of Court of Butuan City; and 2.) that the same does not exist in their file because the Notarial Book (Book 10) of Atty. John Gil S. Unay, Sr., who notarized the Joint Affidavit was not submitted to the said Office of the Clerk of Court, to wit:
This is to certify that the document "'Affidavit of Confirmation of Deed of Conveyance" known as Document No. 13; Book X, Series of 2009, notarized by Notary Public Atty. John Gil S. Unay, Sr., is not on our file and despite diligent efforts it could neither be found.At best, what the Certification proves is that the Office of the Clerk of Court of Butuan City does not have a copy of the Joint Affidavit because Atty. Unay did not submit a copy of the same. This, in the absence of any other proof evidencing non-existence of the Joint-Affidavit, is not sufficient evidence to prove the complainant's claim that he does not have any recollection of signing the Joint-Affidavit or that it does not exist.
Based on the transmittal letter submitted to this office on January 4, 2011 by Atty. John Gil S. Unay, Sr. dated January 3, 2011, the Notarial Reports numbered Book No. X of the Year 2009 was not included in the list.
Finally, the allegations of the complainant were refuted by the respondent in his Answer and were even backed by corroborating testimony, i.e., the Affidavit of Pastor Roman G. Cariaga and supporting documents, i.e., the Joint-Affidavit and the checks evidencing payment to the complainant.
Thus, considering the foregoing, the presumption of innocence afforded to lawyers in disbarment and suspension proceedings stands, to wit: "The Court has consistently held that in suspension or disbarment proceedings against lawyers, the lawyer enjoys the presumption of innocence x x x."
Parenthetically, the Commission calls the attention of the respondent, as Notary Public, to the 2004 Rules of Notarial Practice which has superseded certain practices on the practice of notarizing and which, among others, mandates the use of government-issued IDs as proof of identity of affiants having documents notarized.
WHEREFORE, in view of the foregoing, it is respectfully recommended that the administrative case against Atty. Teodoro A. Emboy be dismissed for lack of evidence.
x x x x[1]
Finding the recommendation of the IBP to be fully supported by the evidence on record and applicable laws, the Court RESOLVES to DISMISS the case against Atty. Teodoro A. Emboy and consider the same as CLOSED and TERMINATED.
SO ORDERED.
[1] Rollo, pp. 62-68. (Citations omitted)
