When Judges Notarize: Limits on Ex Officio Notarial Powers in Property Cases

The Supreme Court's ruling in Doughlas v. Judge Lopez, Jr. (A.M. No. MTJ-96-1076, February 9, 2000) clarifies the boundaries of a judge's power to act as a notary public. The case arose from a complaint alleging that a judge notarized an "Extra Judicial Settlement of Estate with Special Power of Attorney" that purportedly bore forged signatures of heirs residing abroad. While the forgery charge was dismissed for lack of evidence, the Court found the judge liable for a different violation: unauthorized notarization of a private document. This decision serves as an important reminder about the limits of judicial notarial authority, particularly in property-related transactions.

The Facts of the Case

Venus P. Doughlas, an heir of the late Bienvenido Paquingan, filed an administrative complaint against Judge Francisco H. Lopez, Jr. of the Municipal Circuit Trial Court (MCTC) of Lupon, Banaybanay, Davao Oriental. The complainant alleged that a parcel of agricultural land covered by Transfer Certificate of Title No. T-6309 was voluntarily offered for sale under the Comprehensive Agrarian Reform Program without the knowledge and consent of the heirs.

The voluntary offer to sell was allegedly facilitated through an "Extra Judicial Settlement of Estate with Special Power of Attorney" purportedly signed by the heirs and acknowledged before the respondent judge. The complainant claimed the signatures were forgeries, noting that all heirs resided abroad, making it improbable that they all appeared in Banaybanay on the same day to secure residence certificates and sign the document.

The Issue Before the Court

The central question was whether Judge Lopez committed any administrative offense in connection with the notarization of the questioned document. The complainant alleged forgery, while the Office of the Court Administrator raised the separate issue of unauthorized notarization of a private document.

The Ruling: Forgery Dismissed, Unauthorized Notarization Penalized

The Supreme Court dismissed the forgery complaint for lack of clear and convincing evidence. The complainant repeatedly failed to appear at hearings despite due notice, and mere suspicion without proof cannot be a basis for administrative liability.

However, the Court found Judge Lopez liable for unauthorized notarization of a private document. Under Republic Act No. 296, as amended, MTC and MCTC judges are empowered to perform the functions of notaries public ex officio. But Circular No. 1-90 limits this power to the notarization of documents connected only with the exercise of their official functions and duties.

The Court emphasized that judges may not, as notaries public ex officio, undertake the preparation and acknowledgment of private documents, contracts, and other acts of conveyance bearing no direct relation to their judicial functions. The 1989 Code of Judicial Conduct prohibits judges from engaging in the private practice of law and requires them to regulate extra-judicial activities to minimize conflicts with judicial duties.

The Exception for Areas Without Notaries

The Court acknowledged a practical exception: MTC and MCTC judges assigned to municipalities or circuits with no lawyers or notaries public may perform any act within the competency of a regular notary public, provided that:

1. All notarial fees charged are for the account of the Government and turned over to the municipal treasurer; and
2. Certification is made in the notarized documents attesting to the lack of any lawyer or notary public in such municipality or circuit.

In this case, evidence showed that other lawyers in Banaybanay had notarized documents in 1985 and 1994, indicating that notaries were available within the circuit. Even assuming none were available, the judge failed to issue the required certification. The Court thus fined him P1,000.00 and sternly warned that repetition would be dealt with more severely.

Practical Takeaways

• Judges have limited notarial authority. MTC and MCTC judges may notarize only documents connected with their official functions, not private conveyances or settlements.
• The exception is narrow and conditional. Judges in areas without lawyers or notaries may notarize private documents only if fees go to the government and a certification of lack of notaries is attached.
• Forgery claims require clear evidence. Administrative complaints based on suspicion alone, without the complainant's cooperation in substantiating allegations, will not prosper.
• Property documents need careful review. Parties relying on notarized extra-judicial settlements should verify the notary's authority and the authenticity of signatures, especially when heirs reside abroad.
• Unauthorized notarization carries consequences. Even where fraud is not proven, acting beyond notarial authority results in administrative penalties.

This article is general information and not legal advice. For your specific situation, consult a lawyer or ask ASG Legal AI.