Unauthenticated

A Special Power of Attorney (SPA) executed and acknowledged in the Philippines before a Notary Public is a public document admissible in evidence. Its due execution and authentication need not be proved. But if the said SPA is executed before a Public Notary in a foreign country, is it considered a public document and admissible in evidence? This is answered in this case between Boni represented by his son Philip against the heirs of Gorio.

The case involved a parcel of land (Lot 1199) containing an area of 2,339 square meters co-owned by Gorio, Tony, Pacio, Vic and their sister Mina. On May 16, 1969, they agreed to divide and allot for themselves the said land with Gorio getting two portions. The first portion was allotted to him alone while the second portion was allotted to him, Tony and Pacio. Later on Gorio sold his 1/3 share in the second portion to Boni by virtue of a Deed of Sale dated March 29, 1972. Boni likewise already bought the share of Mina in the land.

When Tony subsequently filed an action for partition of Lot 1199, the existing co-owners entered into a compromise agreement on November 20, 1989 dividing the lot into six portions. Gorio got lot 1199-C with an area of 371 square meters while Boni got lot 1199-D with an area of 482 square meters with the rest being allotted to the other co-owners. Pursuant to this court approved partition, Transfer Certificates of Title were issued in their respective names with Gorio getting TCT No.NT-230248.

Almost 12 years later however or on June 11, 2001, Boni filed an action against Gorio’s eleven heirs to annul TCT No. NT-230248. Since he was by then already residing in the State of Washington U.S.A, he filed the suit through his son, Philip who submitted a Special Power of Attorney allegedly executed by Boni in the State of Washington and acknowledged before Notary Public Phyllis Perry. Boni thru Philip asked among others that 1/3 of said land be surrendered to him because he had bought the same from Gorio by virtue of a Deed of Sale dated March 29, 1972 when the Lot 1199 was not yet divided.

In answer, the heirs asked for the dismissal of the case for lack of cause of action. They contended that Philip instituted the complaint in the name of Boni upon the strength of a Power of Attorney notarized in the US. Such SPA should be presented before a Philippine Consular Officer for authentication. Since it was not duly certified and authenticated, it cannot be duly proved. It is therefore deemed as not having been executed for purposes of an action in behalf of Boni. Without the proper authority Philip cannot institute the action on his own because he is not a party to the Deed of Sale and therefore not a real party in interest. Were the heirs correct?

Yes. A SPA executed in a foreign country is generally not admissible in evidence as a public document in our courts. A certification or authentication by a secretary of the embassy or legation, consul general, consul, vice consul or consular agent or any other officer in the foreign service of the Philippines stationed in the foreign country where the record is kept, and authenticated by the seal of his office, is required pursuant to Rule 132 Section 24 of the Rules of Court. Non-compliance therewith will render the SPA not admissible in evidence.

In this case, there is no such compliance. Hence the SPA cannot be used by Philip to represent his father Boni in this legal action against the heirs. It is thus clear that this case was not filed by the real party-in-interest and sans authority to pursue the case. Philip could not have validly commenced this case. The failure to have the SPA authenticated is not a mere technicality — it is a question of jurisdiction. Jurisdiction over Boni who is the real party in interest was never acquired by the courts. As a result all the proceedings in the lower court are null and void (Heirs of Medina vs. Natividad etc. G.R. No. 177505, November 27, 2008).

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call Tel. 7249445.

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