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1997 Rules on Civil Procedure2001 Edition
<draft copy. pls. check for errors>
Rule 32Trial by Commissioner
Rule 32TRIAL BY COMMISSIONER
Trial by commissioner applies when there is something to be tried which requires some technicalexpertise, like accounting ba, which the court feels it does not possess, and it will be a waste of time if everything will be tried in court. So, the court will refer it to a commissioner,
“You hear that and thenyou submit a report. Submit you report, you finding and your recommendation.” 
And that person isknown as a
commissioner.
SEC. 1.
Reference by consent 
– By written consent of both parties, the courtmay order any or all of the issues in a case to be referred to a commissioner to beagreed upon by the parties or to be appointed by the court. As used in theseRules, the word “commissioner” includes a referee, an auditor and an examiner.
This was mentioned when we were talking about pre-trial. This is one of the purpose of a pre-trial. That is Rule 18, Section 2 [f]:
“(f) The advisability of a preliminary reference of issues to acommissioner; ” 
This provision is actually referring to Rule 32.
Example #1:
Prof. X and Magneto had continuous transactions. After a long while, their records do notanymore reconcile. Prof. X filed a case against Magneto on the ground that Magneto has not yetpaid an obligation which is already due. Based on Magneto’s records, bayad na lahat. Wala nasyang utang. This is a question of accounting.The court will have to determine whose records are correct and accurate – invoices,receipts, etc… must be presented, which might be hundreds or thousands in volume. This willconsume a lot of time of the court.The fact that the case involves accounting and the judge is not an accountant (it is differentif the judge is a CPA/lawyer, hindi mahirap), the judge then should appoint an accountant toassist him. That accountant is known as the commissioner. That will certainly shorten the timeand expedite the resolution of the case.The judge can then attend to other cases while the parties are presenting all their invoicesand receipts before the accountant/commissioner.
Example #2:
Prof. X and Magneto are owners of adjoining properties. Magneto put up a fence. Prof. Xsued Magneto for forcible entry on the ground that Magneto encroached on Prof. X’s ground,and praying for the recovery of, say, 200 meters. Magneto contends that he built the fence onthe boundary line.The judge will look at the title of the land: “point degree 9, etc..” – only surveyor or ageodetic engineer understands that! In this case, the court may appoint a geodetic engineer,order the submission of the titles of the lands to him, he will go to the area, sukat-sukatin niya,and he will draw a sketch and then based on the sketch, he will determine whether or not thereis an encroachment. The appointed surveyor or geodetic engineer is called a commissioner.This is what you call trial by commissioner. And take note that under Section 1, trial bycommissioner is possible by mutual agreement of the parties. The parties must agree. Either you canagree on who is the CPA, who is the engineer, or you can ask the court to appoint somebodyQ: Suppose the parties cannot agree, or one party files a motion asking for the appointment of acommissioner. Is the court still empowered to apply Rule 32?A.YES, under section 2:
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1997 Rules on Civil Procedure2001 Edition
<draft copy. pls. check for errors>
Rule 32Trial by Commissioner
SEC. 2. –
Reference ordered on motion
– When the parties do not consent, the courtmay, upon the application of either or of its own motion, direct a reference to acommissioner in the following cases:a.) When the trial of an issue of fact requires the examination of a long account oneither side, in which case the commissioner may be directed to hear and report uponthe whole issue or any specific question involved therein;b.) When the taking of an account is necessary for the information of the courtbefore judgment, or for carrying a judgment or order into effect;c.) When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of a case, or for carrying a judgment or order into effect.
Section 1 is reference by consent and Section 2 is reference ordered on motion. Paragraphs (a), (b)and (c) are the good grounds for a motion to appoint a commissioner.In (a), it requires an examination of a long account. The best example here is example #1 –accounting.In (b) and (c), notice that a commissioner may be appointed for carrying a judgment or order intoeffect. Thus, a commissioner, can be appointed not only to help the court render a decision, but alsohelp the court enforce a decision – even if tapos na ang case. Because sometimes, problems arise onhow to implement a decision of the court.
Example:
There was a case of boundary dispute. Prof. X built his house near the boundary of his property.According to his neighbor, Magneto, a portion of the house of Prof. X encroached on his land. About25 sq. m. lang. Prof. X lost. The court says to Prof. X:
“You are directed to return the 25 sq. m. whichyou occupied.” 
The sheriff will go there to return the 25 sq. m. Which part of the house will the sheriff demolish? The sheriff returns to the court because he cannot understand and he does not know how toimplement the decision. So, the court solves that by appointing a surveyor as a commissioner to findout where that 25 sq. m. will be taken from the portion of the house.Q: Give other examples of trial by commissioner.A: The following:
1.)
Special Civil Action of 
Expropriation
under Rule 67 – when the court has to determine just compensation. Under Rule 67, it is mandatory for the court to appoint a commissioner inorder to determine as to how much the value of the property;
2.)
Special Civil Action of 
Partition
under Rule 69. When the heirs cannot agree on how topartition a property under co-ownership, the court may appoint a commissioner to study andsubmit its report.So take note that trial by commissioner is allowed not only for the purpose of the court rendering the judgment but also for the purpose of carrying a judgement or order into effect.
SEC. 3.
Order of reference; powers of the commissioner 
. - When a reference ismade, the clerk shall forthwith furnish the commissioner with a copy of the order of reference. The order may specify or limit the powers of the commissioner, andmay direct him to report only upon particular issues, or to do or perform particular acts, or to receive and report evidence only, and may fix the date for beginningand closing the hearings and for the filing of his report. Subject to thespecifications and limitations stated in the order,the commissioner has and shallexercise the power to regulate the proceedings in every hearing before him and todo all acts and take all measures necessary or proper for the efficient
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1997 Rules on Civil Procedure2001 Edition
<draft copy. pls. check for errors>
Rule 32Trial by Commissioner
performance of his duties under the order. He may issue subpoenas andsubpoenas
duces tecum
, swear witnesses, and unless otherwise provided in theorder of reference, he may rule upon the admissibility of evidence. The trial or hearing before him shall proceed in all respects as it would if held before thecourt. (3a, R33)
So a commissioner is parang judge rin. In effect he is an assistant judge. Biro mo, he can issuesubpoenas, swear witnesses, and unless otherwise provided in the order of reference, may rule uponthe admissibility of evidence, of course, subject to the final approval of the court.Compare that with Rule 30 when there is an
ex-parte
reception of evidence where the clerk of courtis delegated to receive evidence. But the clerk of court cannot rule on the admissibility of evidence.To my mind, for example, in cases involving accounting, the best commissioner would be a CPA-lawyer because he knows about the law on evidence and accounting. Kung boundary conflicts naman,the best commissioner would be a geodetic engineer-lawyer. However, you rarely find thatcombination.
SEC. 4.
Oath of commissioner 
. - Before entering upon his duties thecommissioner shall be sworn to a faithful and honest performance thereof.(14, R33)SEC. 5.
Proceedings before commissioner 
. - Upon receipt of the order of reference and unless otherwise provided therein, the commissioner shallforthwith set a time and place for the first meeting of the parties or their counsel to be held within ten (10) days after the date of the order of reference and shall notify the parties or their counsel. (5a, R33)SEC. 6.
Failure of parties to appear before commissioner 
. - If a party fails toappear at the time and place appointed, the commissioner may proceed
ex  parte
or, in his discretion, adjourn the proceedings to a future day, givingnotice to the absent party or his counsel of the adjournment. (6a, R33)SEC. 7.
Refusal of witness.
- The refusal of a witness to obey a subpoenaissued by the commissioner or to give evidence before him, shall bedeemed a contempt of the court which appointed the commissioner. (7a,R33)
EXAMPLE:
I, as a commissioner, subpoenaed you and you will not show up. I will report you to thecourt which appointed me and the court which appointed me will declare you in contempt of court.Remember, the commissioner is acting by authority of the judge. That’s why he has powers under thelaw.
SEC. 8.
Commissioner shall avoid delays
. - It is the duty of the commissioner toproceed with all reasonable diligence. Either party, on notice to the parties andcommissioner, may apply to the court for an order requiring the commissioner toexpedite the proceedings and to make his report. (8a, R33)
The commissioner shall expedite the proceedings. He should hurry up the report.
Sec. 9.
Report of commissioner 
. - Upon the completion of the trial or hearing or proceeding before the commissioner, he shall file with the court his report in
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