Notarial Law Violations

Problem Areas in Legal Ethics

Arellano University School of Law – Arellano Law Foundation
2019-2020

Resolution A.M. No. 02-8-13-SC

05 July 2004
Acting on the compliance dated 05 July 2004 and on the proposed Rules on Notarial Practice of
2004 submitted by the Sub-Committee for the Study, Drafting and Formulation of the Rules
Governing the Appointment of Notaries Public and the Performance and Exercise of Their Official
Functions, of the Committees on Revision of the Rules of Court and on Legal Education and Bar
Matters, the Court Resolved to APPROVE the proposed Rules on Notarial Practice of 2004, with
modifications.

Eligibility requirements to become a notary public

Rule III SECTION 1. Qualifications. - A notarial commission may be issued by an Executive Judge to
any qualified person who submits a petition in accordance with these Rules.
To be eligible for commissioning as notary public, the petitioner:
(1) must be a citizen of the Philippines;
(2) must be over twenty-one (21) years of age;
(3) must be a resident in the Philippines for at least one (1) year and maintains a regular place of
work or business in the city or province where the commission is to be issued;
(4) must be a member of the Philippine Bar in good standing with clearances from the Office of
the Bar Confidant of the Supreme Court and the Integrated Bar of the Philippines; and
(5) must not have been convicted in the first instance of any crime involving moral turpitude.

Notice of Summary Hearing

Rule III SEC. 5. Notice of Summary Hearing. - (a) The notice of summary hearing shall be
published in a newspaper of general circulation in the city or province where the hearing
shall be conducted and posted in a conspicuous place in the offices of the Executive Judge
and of the Clerk of Court. The cost of the publication shall be borne by the petitioner. The notice
may include more than one petitioner.

Stationary office is required

Rule II SEC. 11. Regular Place of Work or Business. - The term "regular place of work or business"
refers to a stationary office in the city or province wherein the notary public renders legal and
notarial services.

Seal of Notarial Office

Rule 7 SEC. 2. Official Seal. - (a) Every person commissioned as notary public shall have a seal of
office, to be procured at his own expense, which shall not be possessed or owned by any other
person. It shall be of metal, circular in shape, two inches in diameter, and shall have the name of
the city or province and the word "Philippines" and his own name on the margin and the roll of
attorney's number on the face thereof, with the words "notary public" across the center. A mark,
image or impression of such seal shall be made directly on the paper or parchment on which the
writing appears.
(b) The official seal shall be affixed only at the time the notarial act is performed and shall be
clearly impressed by the notary public on every page of the instrument or document notarized.
(c) When not in use, the official seal shall be kept safe and secure and shall be accessible only to
the notary public or the person duly authorized by him.
Con’t….
(d) Within five (5) days after the official seal of a notary public is stolen, lost, damaged or other
otherwise rendered unserviceable in affixing a legible image, the notary public, after informing the
appropriate law enforcement agency, shall notify the Executive Judge in writing, providing proper
receipt or acknowledgment, including registered mail, and in the event of a crime committed,
provide a copy or entry number of the appropriate police record. Upon receipt of such notice, if
found in order by the Executive Judge, the latter shall order the notary public to cause notice of
such loss or damage to be published, once a week for three (3) consecutive weeks, in a newspaper of
general circulation in the city or province where the notary public is commissioned. Thereafter, the
Executive Judge shall issue to the notary public a new Certificate of Authorization to Purchase a
Notarial Seal.

Con’t….
(e) Within five (5) days after the death or resignation of the notary public, or the revocation or
expiration of a notarial commission, the official seal shall be surrendered to the Executive Judge
and shall be destroyed or defaced in public during office hours. In the event that the missing, lost
or damaged seal is later found or surrendered, it shall be delivered by the notary public to the
Executive Judge to be disposed of in accordance with this section. Failure to effect such surrender
shall constitute contempt of court. In the event of death of the notary public, the person in
possession of the official seal shall have the duty to surrender it to the Executive Judge.

What is an oath?
Rule II SEC. 2. Affirmation or Oath. - The term "Affirmation" or "Oath" refers to an act in which an
individual on a single occasion:

(a) appears in person before the notary public;

(b) is personally known to the notary public or identified by the notary public through competent
evidence of identity as defined by these Rules; and

(c) avows under penalty of law to the whole truth of the contents of the instrument or document.

Jurat
Rule II SEC. 6. Jurat. - "Jurat" refers to an act in which an individual on a single occasion:
(a) appears in person before the notary public and presents an instrument or document;
(b) is personally known to the notary public or identified by the notary public through competent
evidence of identity as defined by these Rules;
(c) signs the instrument or document in the presence of the notary; and
(d) takes an oath or affirmation before the notary public as to such instrument or document.
A jurat is, among others, an attestation that the person
who presented the instrument or document to be notarized is personally known to the notary
public or identified by the notary public through competent evidence of identity.

What is an acknowledgement?
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. (See Section 1,
Rule II of 2004 Rules of Notarial Practice) - Testate Estate of the late Alipio Abada v. Abaja, G.R. No.
147145. January 31, 2005

Duplicate Original copy to be submitted to the COC

Section 2 , Rule VI of the Notarial Rules ; (h) A certified copy of each month's entries and a
duplicate original copy of any instrument acknowledged before the notary public shall, within the
first ten (10) days of the month following, be forwarded to the Clerk of Court and shall be under the
responsibility of such officer. If there is no entry to certify for the month, the notary shall forward a
statement to this effect in lieu of certified copies herein required.

Only documents with acknowledge

It should be clarified, however, that while Basilio had also failed to submit a copy of the Joint
Affidavit to the Clerk of Court of the RTC, and to retain a copy thereof for his own records, the
requirement therefor, as stated under Section 2 (h), 19 Rule VI of the Notarial Rules, applies only to
instruments acknowledged before the notary public. Documents like the Joint Affidavit which
contain a jurat and not an acknowledgment are not required to be forwarded to the Clerk of
Court. Hence, there should be no administrative infraction on this score. Nevertheless, Basilio's
aforediscussed violations of the Notarial Rules are grave enough to warrant sanctions from the
Court. – Atty. Bartolome v. Atty. Basilio, A.C. no. 10783, October 14, 2015

Purpose of acknowledgement in a notarial will

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
testator’s wishes long after his demise and (2) to assure that his estate is administered in the
manner that he intends it to be done. - Manuel L. Lee v. Atty. Regino B. Tambago, A.C. No. 5281,
February 12, 2008)

Notarized document
Petitioner phrases this issue as to whether the will has to be “notarized.” A notarized document
includes one that is subscribed and sworn under oath or one that contains a jurat.– Testate
Estate of the late Alipio Abada v. Abaja, G.R. No. 147145. January 31, 2005

A notary public shall keep only one active notarial register at any given time
Section l(a), Rule VI of the Notarial Practice Rules provides that "a notary public shall keep,
maintain, protect and provide for lawful inspection as provided in these Rules, a chronological
official notarial register of notarial acts consisting of a permanently bound book with numbered
pages." The same section further provides that "a notary public shall keep only one active notarial
register at any given time." On this basis, Atty. Zaide's act of simultaneously keeping several
active notarial registers is a blatant violation of Section 1, Rule VI.

The Notarial Practice Rules strictly requires a notary public to maintain only one active notarial
register and ensure that the entries in it are chronologically arranged. The "one active notarial
register" rule is in place to deter a notary public from assigning several notarial registers to different
offices manned by assistants who perform notarial services on his behalf.

Importance of Notarial registry

The notarial registry is a record of the notary public’s official acts. Acknowledged documents and
instruments recorded in it are considered public documents. If the document or instrument
does not appear in the notarial records and there is no copy of it therein, doubt is engendered
that the document or instrument was not really notarized, so that it is not a public document
and cannot bolster any claim made based on this document. Considering the evidentiary value
given to notarized documents, the failure of the notary public to record the document in his
notarial registry is tantamount to falsely making it appear that the document was
notarized when in fact it was not. xxx. This is a clear violation of the Notarial Law for which he
must be disciplined.

“One active notarial register" rule

The Notarial Practice Rules strictly requires a notary public to maintain only one active notarial
register and ensure that the entries in it are chronologically arranged. The "one active notarial
register" rule is in place to deter a notary public from assigning several notarial registers to different
offices manned by assistants who perform notarial services on his behalf.

Limitation of Notaries public ex-officio

Notaries public ex-officio only in the notarization of documents connected with the exercise of
their official functions. They may not undertake the preparation and acknowledgment of
documents which bear no relation to the performance of their functions as judges. – Ellert v. Judge
Galapon, Jr., A.M No. MTJ-00-1294, July 31, 2000

Changes of Status of Notary

Rule X SECTION 1. Change of Name and Address.
Within ten (10) days after the change of name of the notary public by court order or by
marriage, or after ceasing to maintain the regular place of work or business, the notary
public shall submit a signed and dated notice of such fact to the Executive Judge.
The notary public shall not notarize until:
(a) he receives from the Executive Judge a confirmation of the new name of the notary public
and/or change of regular place of work or business; and
(b) a new seal bearing the new name has been obtained.

The foregoing notwithstanding, until the aforementioned steps have been completed, the notary
public may continue to use the former name or regular place of work or business in
performing notarial acts for three (3) months from the date of the change, which may be
extended once for valid and just cause by the Executive Judge for another period not exceeding
three (3) months.
Resignation as notary public
Rule 10 SEC. 2. Resignation. - A notary public may resign his commission by personally submitting
a written, dated and signed formal notice to the Executive Judge together with his notarial seal,
notarial register and records. Effective from the date indicated in the notice, he shall immediately
cease to perform notarial acts. In the event of his incapacity to personally appear, the submission of
the notice may be performed by his duly authorized representative.

Publication of Resignation
SEC. 3. Publication of Resignation. - The Executive Judge shall immediately order the Clerk of
Court to post in a conspicuous place in the offices of the Executive Judge and of the Clerk of
Court the names of notaries public who have resigned their notarial commissions and the
effective dates of their resignation.

Notarial Certificate
Rule II SEC. 8. Notarial Certificate. - "Notarial Certificate" refers to the part of, or attachment to,
a notarized instrument or document that is completed by the notary public, bears the notary's
signature and seal, and states the facts attested to by the notary public in a particular notarization
as provided for by these Rules.

Information required to be indicated as part of a counsel’s signature

• Apart from the signature itself, additional information is required to be indicated as part of a
counsel’s signature:
(1) Per Rule 7, Section 3 of the Rules of Court, a counsel’s address must be stated;
(2) In Bar Matter No. 1132,40 this court required all lawyers to indicate their Roll of Attorneys
number;
(3) In Bar Matter No. 287,41 this court required the inclusion of the “number and date of their
official receipt indicating payment of their annual membership dues to the Integrated Bar of
the Philippines for the current year”; in lieu of this, a lawyer may indicate his or her lifetime
membership number;
…..
(4) In accordance with Section 139 of the Local Government Code,42 a lawyer must indicate his
professional tax receipt number;
(5) Bar Matter No. 192243 required the inclusion of a counsel’s Mandatory Continuing Legal
Education Certificate of Compliance or Certificate of Exemption; and
(6) This court’s Resolution in A.M. No. 07-6-5-SC44 required the inclusion of a counsel’s contact
details. – Uy v. Atty. Pacifico M. Maghari, III, A.C. No. 10525, September 1, 2015

……..
The inclusion of a counsel’s Roll of Attorneys number, professional tax receipt number, and
Integrated Bar of the Philippines (IBP) receipt (or lifetime membership) number is intended to
preserve and protect the integrity of legal practice.
They seek to ensure that only those who have satisfied the requisites for legal practice are able to
engage in it.
With the Roll of Attorneys number, parties can readily verify if a person purporting to be a
lawyer has, in fact, been admitted to the Philippine bar.

Why CTC is not a valid form of identification

It is apparent that a CTC, which bears no photograph, is no longer a valid form of identification for
purposes of Notarization of Legal Documents. No less than the Supreme Court itself, when it
revoked the Notarial Commission of a member of the Bar in Baylon v. Almo, reiterated this when it
said:

“As a matter of fact, recognizing the established unreliability of a community tax certificate in
proving the identity of a person who wishes to have his document notarized, we did not include
it in the list of competent evidence of identity that notaries public should use in ascertaining the
identity of persons appearing before them to have their documents notarized.”- Amora, Jr. v.
COMELEC, G.R. No. 192280, January 25, 2011

…..
With the professional tax receipt number, they can verify if the same person is qualified to
engage in a profession in the place where he or she principally discharges his or her functions.
With the IBP receipt number, they can ascertain if the same person remains in good standing as a
lawyer. These pieces of information“protect the public from bogus lawyers.”
Paying professional taxes (and the receipt that proves this payment) is likewise compliance with a
revenue mechanism that has been statutorily devolved to local government units.
…….
The inclusion of information regarding compliance with (or exemption from) Mandatory
Continuing Legal Education (MCLE) seeks to ensure that legal practice is reserve only for those
who have complied with the recognized mechanism for “keep[ing] abreast with law and
jurisprudence, maintain[ing] the ethics of the profession[,] and enhanc[ing] the standards of the
practice of law.”
……
The inclusion of a counsel’s address and contact details is designed to facilitate the dispensation of
justice. These pieces of information aid in the service of court processes, enhance compliance with
the requisites of due process, and facilitate better representation of a client’s cause. - Uy v. Atty.
Pacifico M. Maghari, III, A.C. No. 10525, September 1, 2015

Copy Certification
Rule II SEC. 4. Copy Certification. - "Copy Certification" refers to a notarial act in which a notary
public:
(a) is presented with an instrument or document that is neither a vital record, a public record, nor
publicly recordable;
(b) copies or supervises the copying of the instrument or document;
(c) compares the instrument or document with the copy; and
(d) determines that the copy is accurate and complete.

Copy certification is required by rule of evidence

Rule 132 Section 25. What attestation of copy must state. — Whenever a copy of a document or
record is attested for the purpose of evidence, the attestation must state, in substance,:
that the copy is a correct copy of the original, or a specific part thereof, as the case may be.
The attestation must be under the official seal of the attesting officer, if there be any, or if he
be the clerk of a court having a seal, under the seal of such court.

Prima facie evidence of the execution

Rule 132 Section 30. Proof of notarial documents. — Every instrument duly acknowledged or
proved and certified as provided by law, may be presented in evidence without further proof,
the certificate of acknowledgment being prima facie evidence of the execution of the
instrument or document involved.

Competent Evidence of Identity

Rule II SEC. 12. Competent Evidence of Identity. - The phrase "competent evidence of identity"
refers to the identification of an individual based on:
(a) at least one current identification document issued by an official agency bearing the
photograph and signature of the individual; or
(b) the oath or affirmation of one credible witness not privy to the instrument, document or
transaction who is personally known to the notary public and who personally knows the individual,
or of two credible witnesses neither of whom is privy to the instrument, document or transaction
who each personally knows the individual and shows to the notary public documentary
identification.

NO current identification document

issued by an official agency
1. the oath or affirmation of one credible witness not privy to the instrument, document or
transaction who is personally known to the notary public and who personally knows the
individual, or
2. the oath or affirmation of two credible witnesses neither of whom is privy to the instrument,
document or transaction who each personally knows the individual and shows to the notary
public documentary identification.

The individual has no current identification document issued by an official agency

• A third party can attest in behalf of the individual under the following:
1. The credible witness is not privy to the instrument, document or transaction.
2. The notary public personally knows the credible witness.
3. The credible witness personally knows the individual.

• The notary public personally knows the third party.

The notary public does not personally knows the third party [two witnesses]
1. The 2 credible witnesses are not privy to the instrument, document or transaction.
2. The 2 credible witnesses each personally knows the individual and
3. Shows to the notary public documentary identification [of their real by showing
current identification document issued by an official agency].

“Signature witnessing"
• Rule II SEC. 14. Signature Witnessing. -The term "signature witnessing" refers to a notarial act
in which an individual on a single occasion:
(a) appears in person before the notary public and presents an instrument or document;
(b) is personally known to the notary public or identified by the notary public through
competent evidence of identity as defined by these Rules; and
(c) signs the instrument or document in the presence of the notary public.
Term
Rule III SEC. 11. Jurisdiction and Term. - A person commissioned as notary public may perform
notarial acts in any place within the territorial jurisdiction of the commissioning court for a period
of two (2) years commencing the first day of January of the year in which the commissioning is
made, unless earlier revoked or the notary public has resigned under these Rules and the Rules of
Court.

Rule III SEC. 7

Form of Notarial Commission

REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT OF ______________

This is to certify that (name of notary public) of (regular place of work or business) in (city or
province) was on this (date) day of (month) two thousand and (year) commissioned by the
undersigned as a notary public, within and for the said jurisdiction, for a term ending the thirty-
first day of December (year).
_______________
Executive Judge

Use of thumb or other mark

Rule IV SECTION 1. Powers. –
xxx
(b) A notary public is authorized to certify the affixing of a signature by thumb or other mark
on an instrument or document presented for notarization if:
(1)the thumb or other mark is affixed in the presence of the notary public and of two (2)
disinterested and unaffected witnesses to the instrument or document;
(2) both witnesses sign their own names in addition to the thumb or other mark;
(3) the notary public writes below the thumb or other mark: "Thumb or other mark affixed by
(name of signatory by mark) in the presence of (names and addresses of witnesses) and
undersigned notary public"; and
(4) the notary public notarizes the signature by thumb or other mark through an acknowledgment,
jurat, or signature witnessing.

Prohibited acts of a notary

• SEC. 2. Prohibitions. –
(a) A notary public shall not perform a notarial act outside his regular place of work or
business; provided, however, that on certain exceptional occasions or situations, a
notarial act may be performed at the request of the parties in the following sites
located within his territorial jurisdiction:
(1) public offices, convention halls, and similar places where oaths of office may be
administered;
(2) public function areas in hotels and similar places for the signing of instruments or
documents requiring notarization;
(3) hospitals and other medical institutions where a party to an instrument or document
is confined for treatment; and
Cont…
 (4) any place where a party to an instrument or document requiring notarization is under
detention.

• (b) A person shall not perform a notarial act if the person involved as signatory to the
instrument or document -

• 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.

When a notary public can sign on behalf of a person

• SECTION 1. Powers. –
xxx
(c) A notary public is authorized to sign on behalf of a person who is physically unable to
sign or make a mark on an instrument or document if:
(1) the notary public is directed by the person unable to sign or make a mark to sign on
his behalf;
(2) the signature of the notary public is affixed in the presence of two disinterested and
unaffected witnesses to the instrument or document;
(3) both witnesses sign their own names ;
(4) the notary public writes below his signature: "Signature affixed by notary in
presence of (names and addresses of person and two [2] witnesses)"; and
(5) the notary public notarizes his signature by acknowledgment or jurat.

Disqualified to perform notarial act

SEC. 3. Disqualifications. - A notary public is disqualified from performing a notarial act if he:
(a) is a party to the instrument or document that is to be notarized;
(b) will receive, as a direct or indirect result, any commission, fee, advantage, right, title, interest,
cash, property, or other consideration, except as provided by these Rules and by law; or
(c) is a spouse, common-law partner, ancestor, descendant, or relative by affinity or consanguinity
of the principal within the fourth civil degree.

No need to show any Government issued I.D.

In this case, Heneraline Brosas is a sister of Atty. Revilla, Jr.’s wife; Herizalyn Brosas Pedrosa is
his wife’s sister-in-law; and Elmer Alvarado is the live-in houseboy of the Brosas family. Atty.
Revilla, Jr. knows the three affiants personally. Thus, he was justified in no longer requiring
them to show valid identification cards.

But Atty. Revilla, Jr. is not without fault for failing to indicate such fact in the “jurat” of the
complaint-affidavit. No statement was included therein that he knows the three affiants
personally. - Jandoquile v. Atty. Revilla Jr., A.C. No. 9514, April 10, 2013

Disqualification Rule
Let it be impressed that Atty. Revilla, Jr. was clearly disqualified to notarize the complaint-affidavit
of his relatives within the fourth civil degree of affinity. While he has a valid defense as to the
second charge, it does not exempt him from liability for violating the disqualification rule. -
Jandoquile v. Atty. Revilla Jr., A.C. No. 9514, April 10, 2013
Con’t…..
If the notary public knows the affiants personally, he need not require them to show their valid
identification cards. This rule is supported by the definition of a “jurat” under Section 6, Rule II
of the 2004 Rules on Notarial Practice.

A “jurat” refers to an act in which an individual on a single occasion: (a) appears in person before
the notary public and presents an instrument or document; (b) is personally known to the notary
public or identified by the notary public through competent evidence of identity; (c) signs the
instrument or document in the presence of the notary; and (d) takes an oath or affirmation
before the notary public as to such instrument or document. - Jandoquile v. Atty. Revilla Jr., A.C.
No. 9514, April 10, 2013

Con’t….
[C]ompetent evidence of identity is not required in cases where the affiant is personally known
to the Notary Public, which is the case herein. - Amora, Jr. v. COMELEC, G.R. No. 192280, January
25, 2011

Notarization is different from Representation

Complainant accuses respondent of conflict of interest when the latter allegedly notarized a deed
of donation of a parcel of land executed by complainant's family in favor of the Roman
Catholic Church. Eventually, respondent allegedly sought to litigate as counsel for the
opposing parties who are occupants in the lot owned by complainant's family.
Suffice to state that notarization is different from representation. A notary public simply performs
the notarial acts authorized by the Rules on Notarial Practice, namely, acknowledgments, oaths
and affirmations, jurats, signature witnessings, and copy certifications. Legal representation, on
the other hand, refers to the act of assisting a party as counsel in a court action. - Adelpha E.
Malabed v. Atty. Meljohn B. De la Pena, A.C. No. 7594, February 09, 2016

Must be signed in the presence of the notary

By respondent’s admission, the affidavit was already signed by the purported affiant at the time it
was presented to him for notarization. Respondent thus failed to heed his duty as a notary public
to demand that the document for notarization be signed in his presence. - Traya, Jr. v.
Atty.Villamor, A.C. No.4595. February 6, 2004

Notarization of extrajudicial settlement despite absence of an heir

In a nut shell, complainant Souweha charged respondent Atty. Rondez of being a privy, or
instrumental, in the forgery of her signature appearing in the Extrajudicial Settlement of the Estate
of her deceased parents purportedly agreed upon by her father’s (Anastacio Imson) two sets of
children with his first and second wives. She claims that she could not have signed (not has she
authorized anybody to sign in her behalf) said agreement as she was in the United States.
Complainant Souweha thus accused respondent Atty. Rondez, in having notarized the extrajudicial
settlement despite her absence.
……..
Respondent, on the other hand, claimed close friendship with deceased Anastacio Imson and in
having personally informed complainant Souweha during a conference with Anastacio Imson’s
children held after the burial, to secure a tax account number necessary in the preparation of the
extrajudicial settlement, complainant being known to respondent as permanent resident of the
U.S. Respondent also claimed that on the date he presented to the children the deed of
extrajudicial settlement which he prepared for their signatures, two (2) of complainant’s sisters
(Lydia Imson-Sinlao and Flora Imson-Elvina) assured him that the complainant, who had to leave
for the US, had already executed a Special Power of Attorney in their favor to affix her signature on
said deed. Respondent had to leave for a pressing appointment, and when he returned and upon
seeing the signatures of all the children already affixed on the deed, respondent then notarized the
same.

Held:
“From the foregoing premises, herein respondent could not have been at fault or deemed to have
violated his oath as a commissioned notary public on account of complaint’s non-appearance or
absence when she acknowledged the deed of settlement as her voluntary act and deed. Because of
respondent’s close relationship with the Imson family and the assurances of the complainant’s
sister Flora Imson-Elvina and Lydia Imson-Salud ( that they have the written authority of the
complainant to sign on her behalf, respondent thus notarized the questioned document believing
in good faith the representation of complainant’s sisters Flora Imson-Elvina and Lydia Imson-
Sinlao that they have the written authority of their sister Salud Imson-Souweha) - Imson-Souweha
v. Atty. Rondez, A.C. No. 3961. September 18, 1997

Prohibition to do a notarial act even if payment is tendered

Rule IV SEC. 4. Refusal to Notarize. - A notary public shall not perform any notarial act described
in these Rules for any person requesting such an act even if he tenders the appropriate fee
specified by these Rules if:
(a) the notary knows or has good reason to believe that the notarial act or transaction is unlawful or
immoral;
(b) the signatory shows a demeanor which engenders in the mind of the notary public reasonable
doubt as to the former's knowledge of the consequences of the transaction requiring a notarial act;
and
(c) in the notary's judgment, the signatory is not acting of his or her own free will.

Prohibition to do a notarial act

• Rule IV SEC. 5. False or Incomplete Certificate. - A notary public shall not:

• execute a certificate containing information known or believed by the notary to be false.

(b) affix an official signature or seal on a notarial certificate that is incomplete.

Notary public should not notarize Improper Instruments or Documents

Rule IV SEC. 6. Improper Instruments or Documents. - A notary public shall not notarize:

(a) a blank or incomplete instrument or document; or

(b) an instrument or document without appropriate notarial certification.

Contents of the Concluding Part of the Notarial Certificate

Rule VIII SEC. 2. Contents of the Concluding Part of the Notarial Certificate. - The notarial
certificate shall include the following:
(a) the name of the notary public as exactly indicated in the commission;
(b) the serial number of the commission of the notary public;
(c) the words "Notary Public" and the province or city where the notary public is commissioned,
the expiration date of the commission, the office address of the notary public; and
(d) the roll of attorney's number, the professional tax receipt number and the place and date of
issuance thereof, and the IBP membership number.

Schedule of fees
RRC 141 Sec. 12. Notaries. -- No notary public shall charge or receive for any service rendered by
him any fee, remuneration or compensation in excess of those expressly prescribed in the following
schedule:
(a) For protests of drafts, bills of exchange, or promissory notes for non-acceptance or non-
payment, and for notice thereof, ONE HUNDRED (P100.00) PESOS;
(b) For the registration of such protest and filing or safekeeping of the same, ONE HUNDRED
(P100.00) PESOS;
(c) For authenticating powers of attorney, ONE HUNDRED (P100.00) PESOS;
(d) For sworn statement concerning correctness of any account or other document, ONE
HUNDRED (P100.00) PESOS;
(e) For each oath of affirmation, ONE HUNDRED (P100.00) PESOS;

……
(f) For receiving evidence of indebtedness to be sent outside, ONE HUNDRED (P100.00)
PESOS;
(g) For issuing a certified copy of all or part of his notarial register or notarial records, for
each page, ONE HUNDRED (P100.00) PESOS;
(h) For taking depositions, for each page, ONE HUNDRED (P100.00) PESOS; and
(i) For acknowledging other documents not enumerated in this section, ONE HUNDRED
(P100.00) PESOS.

Purpose of physical presence

The physical presence of the affiants enables the notary public to verify the genuineness of the
signatures of the acknowledging parties and to ascertain that the document is the parties’ free act
and deed. – Angeles, et. al. v. Atty. Ibañez, A.C. No. 7860 January 15, 2009

Interviewing the contracting parties does not make the parties personally known to the
notary public
That the parties appeared before [notary ex-officio] and that he interviewed them do not make the
parties personally known to him. The parties are supposed to appear in person to subscribe to their
affidavits. To personally know the parties, the notary public must at least be acquainted with them.
Interviewing the contracting parties does not make the parties personally known to the
notary public. – Tupal v. Judge Rojo, A.M. No. MTJ–14–1842, February 24, 2014
Acknowledgement and personal appearance
As it were, the Notarial Law is silent as to whether or not the parties to a conveying instrument
must be present before the notary public at the same time when they acknowledge its due
execution. - Tan Tiong Bio v. Atty. Renato L. Gonzalez, A.C. no. 6634, August 23, 2007

Personal knowledge of a false statement or information

Where admittedly the notary public has personal knowledge of a false statement or information
contained in the instrument to be notarized, yet proceeds to affix his or her notarial seal on it, the
Court must not hesitate to discipline the notary public accordingly as the circumstances of the case
may dictate. Otherwise, the integrity and sanctity of the notarization process may be undermined
and public confidence on notarial documents diminished. - Heirs of the late Sps. Lucas and
Francisca Villanueva v. Atty. Salud P. Beradio, A.C. No. 6270, January 22, 2007)

Personal appearance is required

• Hence, a notary public should not notarize a document unless the persons who signed the
same are the very same persons who executed and personally appeared before him to
attest to the contents and truth of what are stated therein.

• A notary public is duty-bound to require the person executing a document:

1. to be personally present,
2. to swear before him that he is that person and ask the latter if he has voluntarily and freely
executed the same. - (Pantoja-Mumar v. Atty. Flores, A.C. No. 5426, April 3, 2007)

Notarization is not a ministerial duty

In this case, Atty. Gasmen claimed that before the SPA and loan application were notarized, the
proceeds were already released to NGC by AMWSLAI, thus, dispensing with the need for
notarization. Moreover, he insisted that the notarization of said documents was merely done on a
ministerial basis, with proper safeguards, and that it cannot be expected of him to require the
personal appearance of every loan applicant considering the hundreds of loan applications
brought to him for signing. – Sappayani v. Atty. Gasmen, A.C. no. 7073, September 01, 2015

Notarization after the fact prohibited

In this case, Atty. Gasmen claimed that before the SPA and loan application were notarized, the
proceeds were already released to NGC by AMWSLAI, thus, dispensing with the need for
notarization. Moreover, he insisted that the notarization of said documents was merely done on a
ministerial basis, with proper safeguards, and that it cannot be expected of him to require the
personal appearance of every loan applicant considering the hundreds of loan applications brought
to him for signing. – Sappayani v. Atty. Gasmen, A.C. no. 7073, September 01, 2015

No need for notary to retain a copy of the will

On the issue of whether respondent was under the legal obligation to furnish a copy of the
notarized will to the archives division, Article 806 provides:
Art. 806. Every will must be acknowledged before a notary public by the testator and the witness.
The notary public shall not be required to retain a copy of the will, or file another with the
office of the Clerk of Court. (emphasis supplied)
Respondent’s failure, inadvertent or not, to file in the archives division a copy of the notarized will
was therefore not a cause for disciplinary action. (Lee v. Atty. Tambago, A.C. No. 5281, February 12,
2008)

A notary public cannot appear before himself

Respondent also alleged that in signing for and in behalf of his client Pagunsan and Bofetiado, his
signature was preceded by the word "By" which suggests that he did not in any manner
make it appear that those persons signed in his presence; aside from the fact that his clients
authorized him to sign for and in their behalf, considering the distance of their place of residence
to that of the respondent and the reglementary period in filing said pleadings he had to reckon
with.
“xxx having signed the Verification of the pleading, he cannot swear that he appeared before
himself as Notary Public.” – Villarin v. Atty. Sabate, Jr.,A.C. No. 3324 February 9, 2000

Ex officio notaries public

One of the main reasons why these public officers were allowed to perform any notarial act was that
there were still rural areas in the country that did not have regular notaries public.
While some areas had notaries, not all of them kept regular office hours.
Thus, residents of these communities had to travel to the provincial capital or to larger towns
where they could find lawyers who also practiced as notaries.
Consequently, in the interest of public service and in order for the people to have a more
convenient and less expensive option, these public officers were appointed ex officio notaries
public with the authority to perform any act within the competency of regular notaries
public.
As such, their services and the notarial fees they charged were for the account of the
government.
……
As more lawyers and regular notaries public populated far-flung areas, the need for ex officio
notaries public diminished as did their power. Thus, ever since this clarification was made by the
Court in the 1980 case Borre v. Moya, the power of ex officio notaries public have been limited
to notarial acts connected to the exercise of their official functions and duties.

……..
To repeat, the notarization of documents that have no relation to the performance of their official
functions is now considered to be beyond the scope of their authority as notaries public ex officio.
Any one of them who does so would be committing an unauthorized notarial act, which amounts
to engaging in the unauthorized practice of law and abuse of authority.

……..
This means that since the promulgation of that ruling, they have no longer had the authority to
notarize documents that do not bear any relation to the performance of their official
functions, such as contracts and other acts of conveyance, affidavits, certificates of candidacy,
special powers of attorney, pleadings, sworn applications for business permits, or other similar
instruments.

“[M]ust be connected to the exercise of their official functions and duties”

While we agree with her that clerks of court are allowed to perform the notarial act of copy
certification, this act must still be connected to the exercise of their official functions and
duties – meaning to say, it must be done in connection with public documents and records
that are, by virtue of their position, in their custody. - Benito Nate v. Judge Lelu P. Contreras,
A.M. No. RTJ-15-2406 February 18, 2015

This means that since the promulgation of that ruling, they have no longer had the authority to
notarize documents that do not bear any relation to the performance of their official
functions, such as contracts and other acts of conveyance, affidavits, certificates of candidacy,
special powers of attorney, pleadings, sworn applications for business permits, or other similar
instruments.

MTC and MCTC as notaries public ex oficio

Circular No. 1-90 [February 26, 1990] of the Supreme Court provides:
MTC and MCTC judges may act as notaries public ex oficio in the notarization of documents
connected only with the exercise of their official functions and duties. They may not, as
notaries public ex oficio, 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).

………
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 oficio,
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. - A.M. No. MTJ-01-1355. April 20, 2001
…….
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.

Defective notarization
Anent the first assigned error, petitioners are correct in pointing out that notarized documents
carry evidentiary weight conferred upon them with respect to their due execution and enjoy the
presumption of regularity which may only be rebutted by evidence so clear, strong and convincing
as to exclude all controversy as to falsity. However, the presumptions that attach to notarized
documents can be affirmed only so long as it is beyond dispute that the notarization was
regular.

…….
A defective notarization will strip the document of its public character and reduce it to a private
instrument. Consequently, when there is a defect in the notarization of a document, the clear and
convincing evidentiary standard normally attached to a duly-notarized document is dispensed
with, and the measure to test the validity of such document is preponderance of evidence.
While indeed a notarized document enjoys the presumption of regularity, the fact that a deed is
notarized is not a guarantee of the validity of its contents. The presumption is not absolute and
may be rebutted by clear and convincing evidence to the contrary. – Sps. Martires v. Chua, G.R. No.
174240, March 20, 2013

Effect of an error in the notarial inscription

An examination of the alleged contract of sale shows three (3) dates:
• In witness whereof, I have hereunto affixed my signature this 8th day of December 1999 in
Tabaco, Albay, Philippines;
2. Before me, this 7th day of December, 1990 in Tabaco, Albay; and xxx
3. Doc. No. 587;
Page No. 12;
 Book No. 4;
Series of 1990.

……..
The document was dated 1999, but the date in the acknowledgment and notarial reference was an
earlier date, 1990. The ex-oficio notary public, Judge Base, was not presented to explain the
apparent material discrepancy of the dates appearing on the questioned document. This only
confirms the claim of Aquiles that he signed the receipt representing his loan at the bodega of Sia
Ko Pio sometime in 1990, and not at the office of Judge Base in 1999.

…….
La Suerte insists that the discrepancy on the dates was a mere clerical error that did not invalidate
the deed of sale. It is worthy to stress that a notarial document is evidence of the facts in the clear
unequivocal manner therein expressed and has in its favor the presumption of regularity. While it
is true that an error in the notarial inscription does not generally invalidate a sale, if indeed it took
place, the same error can only mean that the document cannot be treated as a notarial document
and thus, not entitled to the presumption of regularity. The document would be taken out of the
realm of public documents whose genuineness and due execution need not be proved. – Riosa v.
Tabaco La Suerte Corporation (La Suerte), G.R. No. 203786, October 23, 2013

WON a special power of attorney executed in a foreign country is admissible in evidence as

a public document in courts
Mrs. Priscilla L. Ty the supposed attorney-in-fact, contends that inasmuch as the special power of
attorney in question is notarized, it is a public document which should be admitted in evidence
without need of authentication and/or proof of due execution.
On the other hand, the private respondent argues that the same cannot be considered as a public
document because its authenticity has not been proved by Mrs. Ty in accordance with the
procedure prescribed under the Rules of Court.– Lopez, represented by Priscilla Ty as her attorney
in fact v. Court of Appeals, G.R. No. 77008 December 29, 1987

……
Section 25, Rule 132 of the Rules of Court provides-
Sec. 25. Proof of public or official record. — An official record or an entry therein, when admissible
for any purpose, may be evidenced by an official publication thereof or by a copy attested by the
officer having the legal custody of the record, or by his deputy, and accompanied, if the record is
not kept in the Philippines, with a certificate that such officer has the custody. If the office in which
the record is kept is in a foreign country, the certificate may be made by a secretary of embassy or
legation consul general, consul, vice consul, or consular agent or by any officer in the foreign service
of the Philippines stationed in the foreign country in which the record is kept, and authenticated
by the seal of his office.

……..
When the special power of attorney is executed and acknowledged before a notary public or other
competent official in a foreign country, it cannot be admitted in evidence unless it is certified as
such in accordance with the foregoing provision of the rules by a secretary of embassy or legation,
consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the
Philippines stationed in the foreign country in which the record is kept of said public document
and authenticated by the seal of his office. A city judge-notary who notarized the document, as in
this case, cannot issue such certification.

Notarized document still hearsay evidence

Basic is the rule that, while affidavits may be considered as public documents if they are
acknowledged before a notary public, these Affidavits are still classified as hearsay evidence. The
reason for this rule is that they are not generally prepared by the affiant, but by another one who
uses his or her own language in writing the affiant’s statements, parts of which may thus be either
omitted or misunderstood by the one writing them. Moreover, the adverse party is deprived of the
opportunity to cross-examine the affiants. For this reason, affidavits are generally rejected for being
hearsay, unless the affiants themselves are placed on the witness stand to testify thereon. –
Republic v. Sps. Gimenez, G.R. No. 174673, January 11, 2016

Senior Citizen card

Heirs of Amada Zaulda v. Zaulda, which concerned the Court of Appeals' prior determination that
a senior citizen card is not among the competent evidence of identity recognized in the
2004 Rules on Notarial Practice, referred to the more basic consideration that a defect in a
pleading's verification is merely formal, and not jurisdictional or otherwise fatal:
Even assuming that a photocopy of competent evidence of identity was indeed required, non-
attachment thereof would not render the petition fatally defective. It has been consistently held
that verification is merely a formal, not jurisdictional, requirement, affecting merely the form of
the pleading such that non-compliance therewith does not render the pleading fatally defective. –
Cortal, et. al. v. Inaki A. Larrazabal Enterprises, et. al., G.R. No. 199107, August 30, 2017

Thank you for your attention!!