CIRCULAR NO.

1-90 February 26, 1990
TO: ALL JUDGES OF THE METROPOLITAN TRIAL
COURTS (METC), MUNICIPAL TRIAL COURTS IN
CITIES (MTCC), MUNICIPAL TRIAL COURTS (MTC),
MUNICIPAL CIRCUIT TRIAL COURTS (MCTC)
SHARI'A COURTS, AND THE INTEGRATED BAR OF
THE PHILIPPINES (IBP)
SUBJECT: POWER OF THE MUNICIPAL TRIAL
COURT JUDGES AND MUNICIPAL CIRCUIT TRIAL
COURT JUDGES TO ACT AS NOTARIES PUBLIC EX
OFFICIO
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.

For the information and guidance of all concerned, quoted

hereunder, is the Resolution of the Court En Banc, dated
December 19, 1989, in Administrative Matter No. 89-11-
1303 MTC, "Re: Request for clarification on the power of
municipal trial court judges and municipal circuit trial court
judges to act as Notaries Public Ex Officio":

Acting on a query regarding the power of municipal trial

court judges and municipal circuit trial court judges to act
in the capacity of notaries public ex officio in the light of
the 1989 Code of Judicial Conduct, the Court Resolved to
issue a clarification on the matter.

Municipal trial court (MTC) and municipal circuit trial court

(MCTC) judges are empowered to perform the function of
notaries public ex officio under Section 76 of Republic Act
No. 296, as amended (otherwise known as the Judiciary
Act of 1948) and Section 242 of the Revised
Administrative Code. But the Court hereby lays down the
following qualifications on the scope of this power:

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
[Borne 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).
Cruz v. Centron 442 SCRA 53 (2004) by respondent, no competent evidence was shown that
would directly link her to the said sale.

FACTS:
1. Atty. Centron assisted a certain Gloria Logdat and
Conchita de la Cruz in consummating the sale of a
parcel of land (OCT No. 2186) in the name of one
Joaquina Jabat. Such assistance consisted in
preparing and notarizing the documents of sale.
2. The said sale is illegal because the property
covered by the sale is still the subject of
reconstitution and Extra-Judicial Settlement among
the heirs. As a result of the illegal sale, Logdat and
de la Cruz are charged with estafa through
falsification of public documents. Atty. Centron took
advantage of her being a lawyer to solicit the trust
and confidence of the buyers of the subject parcel
of land.
3. Atty. Centron is involved in the disappearance of
OCT No. 2186, and she refuses to surrender the
title which is in the possession of one of her
relatives.
While it may be logical to assume that Atty. Centron was
the one who prepared the deed of sale since she was the
one who notarized it, we cannot give evidentiary weight to
such a supposition in the absence of any evidence to
support it. Moreover, complainants allegation that Atty.
Centron influenced the buyers is contradicted by the
sworn affidavit of Adelfa Manes, one of the buyers of the
land. Manes attested to the fact that respondent did not
convince nor influence them in buying the subject
property. Likewise, we find no competent evidence to
prove that Atty. Centron is responsible for the alleged loss
of the owners duplicate copy of OCT No. 2186.
Nonetheless, we find that respondent is guilty of violating
Section 41 (as amended by Section 2 of R. A. No. 6733)
and Section 242 of the Revised Administrative Code, in
relation to Sections G, M and N Chapter VIII of the Manual
for Clerks of Court.

4. Hence this case of disbarment was filed by Logdat

and De la Cruz against Atty. Centron
5. In her Comment, Atty. Centron denied any
involvement in the preparation of the documents
and in the consummation of the sale of the parcel
of land covered by OCT No. 2186. She claims that
her only participation in the said sale is that she was
the one who notarized the deed of sale on because
she was requested by the parties to notarize the
same.
Under these provisions, Clerks of Court are notaries
public ex officio, and may thus notarize documents or
administer oaths but only when the matter is related to the
exercise of their official functions. In the present case, it is
not within Atty. Centron competence, as it is not part of
her official function and duty, to notarize the subject deed
of sale. Respondent is guilty of abuse of authority.

6. The Office of the Court Administrator held that Atty. In the present case, it appearing that this is respondents
Centron violated the provisions of Section 242 of first offense of this nature and that she has only notarized
the Revised Administrative Code as well as Section one document, we find the OCAs recommended penalty
G, Chapter VIII of the Manual for Clerks of Court of a fine of P2,000.00 commensurate to the offense
when she notarized a deed of conveyance, a committed.
document which is not connected with the exercise
of her official functions and duties as Ex-Officio
Notary Public. Accordingly, she be fined in the
amount of P2,000.00 and sternly warned.

ISSUE: Whether or not Atty. Centron should be held

liable.

RULING: Yes. In the present case, we find that

complainant failed to present clear and preponderant
evidence to show that respondent had direct and
instrumental participation in the preparation of documents
and the subsequent sale of the subject parcel of land
covered by OCT No. 2186. Aside from the deed of sale
covering the subject parcel of land which was notarized
Tigno v. Spouses Aquino 444 SCRA 61 (2004)
FACTS:
1. Spouses Aquino filed a complaint against Isidro
Bustria which sought to enforce an alleged sale by
Bustria to the Aquinos of a 120,000 square meter
fishpond located in Dasci, Pangasinan. The
conveyance was covered by a Deed of Sale dated
2 September 1978.
2. A compromise agreement was entered into
between them whereby Bustria agreed to recognize
the validity of the sale, and the Aquinos agreed to
grant Bustria the right to repurchase the same
property after the lapse of seven 7 years.
3. Bustria died and was substituted by his daughter,
Zenaida B. Tigno. On 1 December 1989, Tigno
attempted to repurchase the property by filing a
Motion for Consignation and depositing 230,000
with the RTC, but this was opposed by the Aquinos
arguing that the right to repurchase was not yet
demandable and that Tigno had failed to make a
tender of payment.
4. RTC denied the Motion for Consignation.
5. Tigno filed an action for Revival of Judgment. The
Aquinos filed an answer wherein they alleged that
Bustria had sold his right to repurchase the property
to them in a deed of sale.
6. Among the witnesses presented by the Aquinos
during trial were Jesus De Francia, the instrumental
witness to the deed of sale, and former Judge
Cariño, who notarized the same. These two
witnesses testified as to the occasion of the
execution and signing of the deed of sale by
Bustria. Thereafter, in their Formal Offer of
Documentary Evidence, the Aquinos offered for
admission the deed of sale purportedly executed by
Bustria
7. The admission of the Deed of Sale was objected to
by Tigno on the ground that it was a false and
fraudulent document which had not been
acknowledged by Bustria as his own; and that its
existence was suspicious, considering that it had
been previously unknown, and not even presented
by the Aquinos when they opposed Tigno's
previous Motion for Consignation.
8. RTC refused to admit the Deed of Sale in evidence.
RTC then ruled in favor of Tigno. The RTC therein
expressed doubts as to the authenticity of the Deed
of Sale, characterizing the testimonies of De
Francia and Cariño as conflicting. The RTC likewise
observed that nowhere in the alleged deed of sale
was there any statement that it was acknowledged
by Bustria; that it was suspicious that Bustria was
not assisted or represented by his counsel in
connection with the preparation and execution of
the deed of sale or that Aquino had raised the
matter of the deed of sale in his previous Opposition
to the Motion for Consignation.
9. CA reversed the decision of RTC and ruled in favor
of Spouses Aquino. The appellate court
ratiocinated that there were no material or
substantial inconsistencies between the
testimonies of Cariño and De Francia that would
taint the document with doubtful authenticity; that
the absence of the acknowledgment and
substitution instead of a jurat did not render the
instrument invalid; and that the non-assistance or
representation of Bustria by counsel did not render
the document null and ineffective. It was noted that
a notarized document carried in its favor the
presumption of regularity with respect to its due
execution, and that there must be clear, convincing
and more than merely preponderant evidence to
contradict the same.
ISSUE: W/N the deed of sale was notarized properly,
hence admissible as evidence
RULING: No. SC ruled in favor of Tigno. RTC decision is
reinstated.
RATIO: The notarial certification of the Deed of Sale
reads as follows:
ACKNOWLEDGMENT
REPUBLIC OF THE PHILIPPINES)
PROVINCE OF PANGASINAN ) S.S.
MUNICIPALITY OF ALAMINOS )
SUBSCRIBED AND SWORN TO before me this 17th day of October 1985 at
Alaminos, Pangasinan both parties known to me to be the same parties who
executed the foregoing instrument.
FRANKLIN CARIÑO
Ex-Officio Notary Public
Judge, M.T.C.
Alaminos, Pangasinan
There are palpable errors in this certification.
Most glaringly, the document is certified by way of a jurat
instead of an acknowledgment. A jurat is a distinct
creature from an acknowledgment. An acknowledgment
is the act of one who has executed a deed in going before
some competent officer or court and declaring it to be his
act or deed; while a jurat is that part of an affidavit where
the officer certifies that the same was sworn before him.

But there is an even more substantial defect in
the notarization, one which is determinative of this
petition. This pertains to the authority of Judge Franklin
Cariño to notarize the Deed of Sale.
It is undisputed that Franklin Cariño at the time of
the notarization of the Deed of Sale, was a sitting judge of
the Metropolitan Trial Court of Alaminos. Municipal Trial
Court (MTC) and Municipal Circuit Trial Court (MCTC)
judges are empowered to perform the functions of
notaries public ex officio under Section 76 of Republic Act
No. 296, as amended (otherwise known as the Judiciary
Act of 1948) and Section 242 of the Revised
Administrative Code. However, as far back as 1980 in
Borre v. Moya, the Court explicitly declared that municipal
court judges such as Cariño may notarize only documents
connected with the exercise of their official duties. The
Deed of Sale was not connected with any official duties of
Judge Cariño, and there was no reason for him to notarize
it.
was not properly acknowledged, but merely subscribed
and sworn to by way of jurat.
Being a private document, the Deed of Sale is
now subject to the requirement that before any private
document offered as authentic is received in evidence, its
due execution and authenticity must be proved.
The Deed of Sale was offered in evidence by
Aquinos, hence, the burden falls upon the Aquinos to
prove its authenticity and due execution. However, the SC
observed that no receipts were ever presented by the
respondents to evidence actual payment of consideration
by them to Bustria, despite the allegation of the
respondents that the amount was covered by seven
receipts. Also of note is the fact that there are glaring
differences as to the alleged signature of Bustria on the
Deed of Sale and as it otherwise appears on the judicial
record.

Most crucially for this case, we should deem the

Deed of Sale as not having been notarized at all. The
validity of a notarial certification necessarily derives from
the authority of the notarial officer. If the notary public
does not have the capacity to notarize a document, but
does so anyway, then the document should be treated as
unnotarized.

What then is the effect on the Deed of Sale if it

was not notarized? True enough, from a civil law
perspective, the absence of notarization of the Deed of
Sale would not necessarily invalidate the transaction
evidenced therein. Article 1358 of the Civil Code requires
that the form of a contract that transmits or extinguishes
real rights over immovable property should be in a public
document, yet it is also an accepted rule that the failure to
observe the proper form does not render the transaction
invalid. Thus, it has been uniformly held that the form
required in Article 1358 is not essential to the validity or
enforceability of the transaction, but required merely for
convenience.

The Deed of Sale, invalidly notarized as it was,

does not fall under the enumeration of public documents;
hence, it must be considered a private document. The
nullity of the alleged or attempted notarization performed
by Judge Cariño is sufficient to exclude the document in
question from the class of public documents. Even
assuming that the Deed of Sale was validly notarized, it
would still be classified as a private document, since it
Fuentes v. Buno 560 SCRA 22 (2008) Sale" and the acknowledgment of the said document,
which had no relation at all to the performance of his
function as a judge. These acts of respondent judge are
FACTS: clearly proscribed by the aforesaid Circular.

1. Geronimo Fuentes filed a complaint wherein he

alleged that he is one of the nine heirs of Bernardo
Fuentes, their father, who owned an agricultural
land located at San Jose, Talibon, Bohol.
2. He also alleged that respondent judge prepared
and notarized an "Extra-Judicial Partition with
Simultaneous Absolute Deed of Sale" of the said
agricultural land, executed by complainant’s mother
Eulalia Credo Vda. de Fuentes, widow of Bernardo
Fuentes, and Alejandro Fuentes, on his own behalf
and on behalf of his brothers and sisters, including
Geronimo Fuentes, as heirs/vendors and one Ma.
Indira A. Auxtero, as vendee.
3. In the aforesaid document, the aforementioned
agricultural land was sold, transferred and
conveyed by the heirs/vendors to the vendee
despite the fact that in his Special Power of Attorney
(SPA), he merely appointed his brother, Alejandro
Fuentes to mortgage said agricultural land but not
to partition, much more to sell the same.
While it may be true that no notary public was available or
residing within respondent judge’s territorial jurisdiction,
as shown by the certifications issued by the RTC Clerk of
Court and the Municipal Mayor of Talibon, Bohol, SC
Circular No. 1-90 specifically requires that a certification
attesting to the lack of any lawyer or notary public in the
said municipality or circuit be made in the notarized
document. Here, no such certification was made in the
Extra-Judicial Partition with Simultaneous Deed of Sale.
Respondent judge also failed to indicate in his answer as
to whether or not any notarial fee was charged for that
transaction, and if so, whether the same was turned over
to the Municipal Treasurer of Talibon, Bohol. Clearly,
then, respondent judge, who was the sitting judge of the
MCTC, Talibon-Getafe, Bohol, failed to comply with the
aforesaid conditions prescribed by SC Circular No. 1-90,
even if he could have acted as notary public ex-officio in
the absence of any lawyer or notary public in the
municipality or circuit to which he was assigned.

4. According to complainant Geronimo Fuentes

respondent judge notarized said document as ex-
officio Notary Public, thereby abusing his discretion
and authority as well as committing graft and
corruption.

5. In defense, respondent judge contended that he

could not be charged of graft and corruption, since
in a municipality where a notary public is
unavailable, a municipal judge is allowed to
notarize documents or deeds as ex-officio notary
public.

ISSUE: Whether or not the respondent judge has

authority to notarize the documents

RULING: No. While Section 76 of Republic Act No. 296,

as amended, and Section 242 of the Revised
Administrative Code authorize MTC and MCTC judges to
perform the functions of notaries public ex officio, the
Court laid down the scope of said authority.

SC Circular No. 1-90 prohibits judges from undertaking

the preparation and acknowledgment of private
documents, contracts and other deeds of conveyances
which have no direct relation to the discharge of their
official functions. In this case, respondent judge admitted
that he prepared both the document itself, entitled "Extra-
judicial Partition with Simultaneous Absolute Deed of
Lee vs Tambago 544 SCRA 393 (2008)
FACTS:
1. Complainant, Manuel L. Lee, charged respondent,
Atty. Regino B. Tambago, with violation of Notarial
Law and the Ethics of the legal profession for
notarizing a wil.
2. The will was alleged to be spurious in nature in
containing forged signatures of his father, the
decedent, Vicente Lee Sr. and two other witnesses,
which were also questioned for the absence of
notation of the Residence Certificates that are
known to be a copy of their respective voter's
affidavit.
3. In addition to such, the contested will was executed
and acknowledged before respondent on June 30,
1965 but bears a Residence Certificate by the
Testator dated January 5, 1962, which was never
submitted for filing to the Archives Division of the
Records Management and Archives Office of the
National Commission for Culture and Arts (NCAA).
4. Respondent refuted that all allegations were falsely
given because he allegedly exercised his duties as
Notary Public with due care and with due regards to
the provision of existing law and had complied with
elementary formalities in the performance of his
duties and that the complaint was filed simply to
harass him based on the result of a criminal case
against him filed by complainant in the Ombudsman
that did not prosper.
5. However, he did not deny the contention of non-
filing a copy to the Archives Division of NCAA.
6. In a resolution, the court referred the case to the
IBP and the decision of which found respondent
guilty of violations of pertinent provisions of the old
Notarial Law as found in the Administrative Code.
The violation constituted an infringement of legal
ethics, particularly Canon 1 and Rule 1.01of the
Code of Professional Responsibility (CPR).
7. Thus, the investigating commissioner of the IBP
Commission on Bar Discipline recommended the
suspension of respondent for a period of three
months.
8. The IBP Board of Governors adopted and
approved, with modifications, the recommendation
of the CBD and ruled that Atty. Tambago is
suspended from the practice of law for one year and
his notarial commission is Revoked and
Disqualified from reappointment as Notary Public
for two years.
ISSUE: Whether or not Atty. Tambago acted negligently
in exercising his duties as Notary Public.
RULING: No. Respondent, as notary public, evidently
failed in the performance of the elementary duties of his
office. The Court finds that he acted very irresponsibly in
notarizing the will in question. Such recklessness
warrants the less severe punishment of suspension from
the practice of law. It is, as well, a sufficient basis for the
revocation of his commission and his perpetual
disqualification to be commissioned as a notary public.
The Civil Code requires that a will must be
acknowledged before a notary public by the testator and
the witnesses. The importance of this requirement is
highlighted by the fact that it was segregated from the
other requirements under Article 805 and embodied in a
distinct and separate provision.
An acknowledgment is the act of one who has
executed a deed in going before some competent officer
or court and declaring it to be his act or deed. It involves
an extra step undertaken whereby the signatory actually
declares to the notary public that the same is his or her
own free act and deed. The acknowledgment in a notarial
will has a two-fold purpose: (1) to safeguard the testators
wishes long after his demise and (2) to assure that his
estate is administered in the manner that he intends it to
be done.
A cursory examination of the acknowledgment of
the will in question shows that this particular requirement
was neither strictly nor substantially complied with. For
one, there was the conspicuous absence of a notation of
the residence certificates of the notarial witnesses
Noynay and Grajo in the acknowledgment. Similarly, the
notation of the testators old residence certificate in the
same acknowledgment was a clear breach of the law.
These omissions by respondent invalidated the will.
Notaries public must observe with utmost care
and utmost fidelity the basic requirements in the
performance of their duties, otherwise, the confidence of
the public in the integrity of notarized deeds will be
undermined.
Defects in the observance of the solemnities
prescribed by law render the entire will invalid. This
carelessness cannot be taken lightly in view of the
importance and delicate nature of a will, considering that
the testator and the witnesses, as in this case, are no
longer alive to identify the instrument and to confirm its
contents. Accordingly, respondent must be held
accountable for his acts. The validity of the will was
seriously compromised as a consequence of his breach
of duty.
These gross violations of the law also made
respondent liable for violation of his oath as a lawyer and
constituted transgressions of Section 20 (a), Rule 138 of
the Rules of Court and Canon 1 and Rule 1.01of the CPR.