Fuentes v. Buno 560 SCRA 22 (2008)

FACTS:

1.      Geronimo Fuentes filed a complaint wherein he alleged that he is one of the nine  heirs of Bernardo Fuentes, their father, who owned an agricultural land located at San Jose, Talibon, Bohol.

2.      He also alleged that respondent judge prepared and notarized an "Extra-Judicial Partition with Simultaneous Absolute Deed of Sale" of the said agricultural land, executed by complainant’s mother Eulalia Credo Vda. de Fuentes, widow of Bernardo Fuentes, and Alejandro Fuentes, on his own behalf and on behalf of his brothers and sisters, including Geronimo Fuentes, as heirs/vendors and one Ma. Indira A. Auxtero, as vendee.

3.      In the aforesaid document, the aforementioned agricultural land was sold, transferred and conveyed by the heirs/vendors to the vendee despite the fact that in his Special Power of Attorney (SPA), he merely appointed his brother, Alejandro Fuentes to mortgage said agricultural land but not to partition, much more to sell the same.

4.      According to complainant Geronimo Fuentes respondent judge notarized said document as ex-officio Notary Public, thereby abusing his discretion and authority as well as committing graft and corruption.

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

ISSUE: Whether or not the respondent judge has authority to notarize the documents

RULING: No. While Section 76 of Republic Act No. 296, as amended, and Section 242 of the Revised Administrative Code authorize MTC and MCTC judges to perform the functions of notaries public ex officio, the Court laid down the scope of said authority.

SC Circular No. 1-90 prohibits judges from undertaking the preparation and acknowledgment of private documents, contracts and other deeds of conveyances which have no direct relation to the discharge of their official functions. In this case, respondent judge admitted that he prepared both the document itself, entitled "Extra-judicial Partition with Simultaneous Absolute Deed of Sale" and the acknowledgment of the said document, which had no relation at all to the performance of his function as a judge. These acts of respondent judge are clearly proscribed by the aforesaid Circular.

While it may be true that no notary public was available or residing within respondent judge’s territorial jurisdiction, as shown by the certifications issued by the RTC Clerk of Court and the Municipal Mayor of Talibon, Bohol, SC Circular No. 1-90 specifically requires that a certification attesting to the lack of any lawyer or notary public in the said municipality or circuit be made in the notarized document. Here, no such certification was made in the Extra-Judicial Partition with Simultaneous Deed of Sale. Respondent judge also failed to indicate in his answer as to whether or not any notarial fee was charged for that transaction, and if so, whether the same was turned over to the Municipal Treasurer of Talibon, Bohol. Clearly, then, respondent judge, who was the sitting judge of the MCTC, Talibon-Getafe, Bohol, failed to comply with the aforesaid conditions prescribed by SC Circular No. 1-90, even if he could have acted as notary public ex-officio in the absence of any lawyer or notary public in the municipality or circuit to which he was assigned.