Problem Areas in Legal Ethics:

Cases & Commentaries

11. Notarial Law
Atty. Rodel V. Capule, MD, author

Problem Areas in Legal Ethics

Arellano University School of Law – Arellano Law Foundation
2021-2022

WARNING
Unauthorized reproduction or claim of ownership of this original [derivative] work by any person amounts to
copyright infringement.

A.M. No. 20-07-04-SC, otherwise known as the 2020 Interim Rules on Remote Notarization of Paper
Documents (“RON Rules”)(July 14, 2020
SECTION 2. Scope. — These Rules shall be limited to the notarization of paper documents and instruments
with handwritten signatures or marks through the use of videoconferencing facilities as defined herein.
These Rules shall not apply to the execution of notarial wills.

………..
SECTION 3. Localities Where the Rules Apply. — Until the Supreme Court directs otherwise, these Rules
shall apply to permit the performance of notarial acts through the use of videoconferencing facilities in cases
where the notary public or at least one of the principals resides, holds office, or is otherwise
situated in a locality that is under community quarantine due to COVID-19, as directed by the Inter-
Agency Task Force for the Management of Emerging and Infectious Diseases (IATF), the provincial governors
with regard to component cities and municipalities, or mayors of cities and municipalities with regard to
barangays, both governors and mayors having the concurrence of the relevant regional counterpart body of
the IATF.
…………………
SECTION 4. Notarial Commission. — A notary public with a valid and existing notarial commission issued
under the 2004 Rules on Notarial Practice can perform the notarial acts authorized by these Rules.

SECTION 5. Legal Effect and Enforceability. —- Any notarial act performed through the use of
videoconferencing facilities pursuant to these Rules shall have the same validity, force, effect and may be
relied upon to the same extent as any other notarial act performed under the 2004 Rules on Notarial Practice.

…………….
f) “Personal appearance,” “appears in person,” or “in the presence of the notary public” means that the
principal, witnesses, and the notary public can see, hear, and communicate with each other present and
confirm competent evidence of identity to each other in real time er, and through the use of
videoconferencing facilities and other devices or technologies that achieve the same purposes.
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:

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(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:

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(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

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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.

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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:

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“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.

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Sec. 12, as amended, provides:
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, such as but not limited to:
passport,
driver's license,
Professional Regulations Commission ID,
National Bureau of Investigation clearance,
police clearance,
postal ID,
voter's ID,
Barangay certification,
Government Service Insurance System (GSIS) e-card,
Social Security System (SSS) card,
PhilHealth card,
senior citizen card,
Overseas Workers Welfare Administration (OWWA) ID,
OFW ID,
seaman's book,
alien certificate of registration/immigrant certificate of registration,
government office ID,
certificate from the National Council for the Welfare of Disabled Persons (NCWDP), Department of Social
Welfare and Development certification [as amended by A.M. No. 02-8- 13-SC dated February 19, 2008]
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].

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“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.

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 • (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

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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

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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

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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

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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

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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;

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 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,

15
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

Thank you for your attention!!

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