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IS AN EX PARTE RECEPTION OF EVIDENCE BY A NON-LAWYER BRANCH

CLERK OF COURT ALLOWED IN REPLEVIN CASES?

In Civil Case No. M-PSY-12-345678-CV, Judge A issued the following order to wit:
At todays hearing, plaintiffs representative B informed this Court that plaintiff
counsel, Atty. C is available to present the evidence ex parte this afternoon.
In view thereof set the presentation of evidence ex parte this afternoon at 2:00 p.m.
before the Office-in-Charge.
The plaintiff is directed to pay the necessary ex parte fees with the Office of the Clerk of
Court pursuant to Sec. 21 ( c) and 8 ( e), Administrative Circular No. 35 2004 prior to
the reception of the presentation of plaintiffs evidence ex parte.
SO ORDERED.

Similar orders were issued in other numerous civil cases by Judge A.

Judge A was accused of multiple counts of Gross Ignorance of the Law for the
issuance of the foregoing order and similar orders by four Judges and seventy court
employees because it is contrary to Section 9, Rule 30 of the Rules of Court which
reads:

"SECTION 9. Judge to receive evidence, delegation to clerk of court. - The judge of the
court where the case is pending shall personally receive the evidence to be adduced by
the parties. However, in default or ex parte hearings, and in any case where the parties
agree in writing, the court may delegate the reception of evidence to its clerk of court
who is a member of the bar. The clerk of court shall have no power to rule on objections
to any question or to the admission of exhibits, which objections shall be resolved by the
court upon submission of his report and the transcripts within then (10) days from
termination of the hearing, (n)"

According to the complainants, it does not take a genius to read between the lines. The
rule is clear and unmistakable. One need not earn a doctorate degree in law to
understand that only a Clerk of Court, who is a member of the bar, may receive
evidence ex parte. They are very much certain that no basis could be found that will
give some measure of validity to the act so exhibited by Judge A. This matter is too
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basic to require elucidation. The procedure is so simple and the facts so evident as
beyond permissible margins of error, to still err thereon amounts to gross ignorance of
the law. Judge A displayed deplorable deficiency in her grasp of the basic principles of
reception of evidence ex parte by the clerk of court.

Did Judge A commit multiple counts of Gross Ignorance of the Law? The answer is in
the negative.

There is no Gross Ignorance of the Law when Judge A allowed the presentation of ex
parte evidence in Replevin cases before the Officer-in-Charge who is not a lawyer.

The presentation of ex parte evidence before a non-lawyer is allowed under Rule 9,


Section 3 of the Revised Rules of Court to quote:

Sec. 3. Default; declaration of. If the defending party fails to answer within the time
allowed therefor, the court shall, upon motion of the claiming party with notice to the
defending party, and proof of such failure, declare the defending party in default.
Thereupon, the court shall proceed to render judgment granting the claimant such relief
as his pleading may warrant, unless the court in its discretion requires the claimant to
submit evidence. Such reception of evidence may be delegated to the clerk of
court.

This provision is taken in relation with Administrative Circular No. 35-2004, Section 21 (
e) as amended that states: FOR RECEPTION OF EVIDENCE BY THE CLERK OF
COURT, FIVE HUNDRED (P500.00) PESOS that goes to Special Allowance for
Judges (SAJ).

The construction of the Revised Rules of Court is liberal as provided by Section 6


thereof, to quote: Construction. These Rules shall be liberally construed in order to
promote their objective of securing a just, speedy and inexpensive disposition of every
action and proceeding.

Rule 30, Section 9, Revised Rules of Court that states: Sec. 9. Judge to receive
evidence; delegation to clerk of court. The judge of the court where the case is pending
shall personally receive the evidence to be adduced by the parties. However, in default

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or ex parte hearings, and in any case where the parties agree in writing, the court may
delegate the reception of evidence to its clerk of court who is a member of the bar. The
clerk of court shall have no power to rule on objections to any question or to the
admission of exhibits, which objections shall be resolved by the court upon submission
of his report and the transcripts within ten (10) days from termination of the hearing
applies only during trial because the heading of Rule 30 of the same rules is TRIAL,
and the reception of evidence ex parte in Judge As court is due to failure to file
answer by the defendant (s), there is no trial conducted thus Rule 30, Section 9 of
the Revised Rules of Court is not applicable in the ex parte reception of evidence
in Replevin cases.

Moreover, Rule 30, Section 9 of the same rules applies only to second level courts not
to the first level courts. The bases are:

(a) All branch clerk of courts in the Regional Trial Courts are lawyers; and
(b) Rule 5, Section 1 of the Revised Rules of Court viz: Section 1. Uniform
procedure. The procedure in the Municipal Trial Courts shall be the same as in the
Regional Trial Courts, except (a) where a particular provision expressly or impliedly
applies only to either of said courts, or (b) in civil cases governed by the Rule on
Summary Procedure.

The provision of Rule 30, Section 9 of the Revised Rules of Court mentioned of a
branch clerk of court who is a lawyer that is definitely referring to a Regional Trial
Court therefore the import is that it will not apply to branch clerk of court of first
level court because its branch clerk of court need not be a lawyer.

The Supreme Court, particularly all judges were benefited by the lawful orders in
allowing reception of evidence ex parte by an Officer-in-Charge who is a non- lawyer
because the plaintiffs-banks paid the amount of Five Hundred Pesos (P500.00) for each
Replevin case augmenting the Special Allowance for Judges (SAJ). The plaintiffs-banks
paid the late unremitted legal fees pertaining to the reception of evidence ex parte
covering the one (1) year period. What is the bad intention of the four Judges and
seventy court employees in charging Judge A administratively because of the
collection of the unremitted legal fees that will benefit the judiciary, particularly the
judges, including them? Instead of them cooperating and helping Judge A to recover
the unremitted legal fees, they mercilessly subjected Judge A to unfounded and
fabricated administrative cases thereby making the work of Judge A more difficult and
more stressful.
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An ex parte reception of evidence by a non-lawyer clerk of court is allowed under Rule
9, Section 3 of the Revised Rules of Court and Administrative Circular No. 35-2004,
Section 21 (e ) finds support in Administrative Circular No. 37-93, to quote:

ADMINISTRATIVE CIRCULAR NO. 37-93 May 28, 1993

TO: COURT OF APPEALS, SANDIGANBAYAN, COURT OF TAX APPEALS,


REGIONAL TRIAL COURTS, METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL
COURTS IN CITIES, MUNICIPAL TRIAL COURTS, MUNICIPAL CIRCUIT TRIAL
COURTS, SHARI'A DISTRICT COURTS AND SHARI'A CIRCUIT COURTS

ALL PRESIDING JUSTICES/JUDGES AND ALL CLERKS OF COURT OF AFORESAID


COURTS

ALL MEMBERS OF THE GOVERNMENT PROSECUTION SERVICE ALL MEMBERS


OF THE INTEGRATED BAR OF THE PHILIPPINES SUBJECT: AMENDMENT TO
MANUAL FOR CLERKS OF COURT RE: DELEGATION OF RECEPTION OF
EVIDENCE IN CASE OF DEFAULT

Section F, 1. of the Manual for Clerks of Court (pp. 75-76) is hereby amended to read
as follows:

1. In Default Cases. When a defendant is declared in default (for failure to file


answers), or considered as in default (For failure to appear at the pre-trial), the Court
may now authorize the Clerk of Court to receive evidence ex parte. The contrary
doctrine laid down in Lim Tanhu vs. Ramolete 1 has been overruled in Gochangco v.
CFI of Negros Occidental. 2

Now, that declaration does not reflect long observed and established judicial practice
with respect to default cases. It is not quite consistent, too, with the several explicitly
authorized instances under the Rules where the function of receiving evidence and
even of making recommendatory findings of facts on the basis thereof may be
delegated to commissioners, inclusive of the Clerk of Court. These instances are set out
in Rule 33, treating of presentation of evidence before commissioners, etc., in particular
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situations, such as when the trial of an issue of fact requires the examination of a long
account, or when the taking of an account is necessary for the information of the court,
or when issues of fact arise otherwise than upon the pleadings or while carrying a
judgment or order into effect; Rules 67 and 69, dealing with submission of evidence also
before commissioners in special civil actions of eminent domain and partition,
respectively; Rule 86 regarding trials of contested claims in judicial proceedings for the
settlement of a decedent's estate; Rule 136 empowering the clerk of court, when
directed by the judge inter alia to receive evidence relating to the accounts of executors,
administrators, guardians, trustees and receivers, or relative to the settlement of the
estates of the deceased persons, or to guardianships, trusteeships, or receiverships. In
all these instances, the competence of the clerk of court is assumed. Indeed, there
would seem, to be sure, nothing intrinsically wrong in allowing presentation of evidence
ex parte before a Clerk of Court. Such a procedure certainly does not foreclose relief to
the party adversely affected who, for valid cause and upon appropriate and seasonable
application, may bring about the undoing thereof or the elimination of prejudice thereby
caused to him; and it is, after all, the Court itself which is duty bound and has the
ultimate responsibility to pass upon the evidence received in this manner, discarding in
the process such proofs as are incompetent and then declare what facts have thereby
been established. In considering and analyzing the evidence preparatory to rendition of
judgment on the merits, it may not unreasonably be assumed that any serious error in
the ex parte presentation of evidence, prejudicial to any absent party, will be detected
and duly remedied by the Court, and/or may always, in any event; be drawn to its
attention by any interested party. 3
For your information and guidance. May 28, 1993.
(Sgd.) ANDRES R. NARVASA
Chief Justice
Footnotes
1 66 SCRA 453 (1975).
2 L-49396, January 15, 1988 (157 SCRA 200)
3 (Reiterated in Monserrate v. Court of Appeals, 178 SCRA 153 [1989]); Heirs of the
late Jesus Tan v. Sales, G.R. No. 53546, June 28, 1992; 210 SCRA 303.

As observed by the late Chief Justice Fred Ruiz Castro in his ponencia in Laulan vs.
Malpaya, 65 SCRA 494,499-500 No provision of law or principle of public policy
prohibits a court from authorizing its clerk of court to receive the evidence of a party
litigant. After all the reception of evidence by the clerk of court constitutes but a
ministerial task the taking down of the testimony of the witnesses and the marking of
the pieces of documentary evidence, if any, adduced by the party present. This task of
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receiving evidence precludes, on the part of the clerk of court, the exercise of judicial
discretion usually called for when the other party who is present objects to questions
propounded and to the admission of the documentary evidence preferred (Wack Wack
Golf and country Club, Inc. vs. court of Appeals, 106 Phil. 501). More importantly, the
duty to render judgment on the merits of the case still rests with the judge who is
obliged to personally and directly prepare the decision based upon the evidence
reported (Province of Pang vs. Palisoc, 6 SCRA 299) his observation supported
Judge A that there is no law expressly prohibiting the delegation of reception of
evidence by the first level court to a branch clerk of court or officer-in-charge.

The cited jurisprudences by the Honorable Office of the Court Administrator such as
Paco vs. Quilala AM No. RTJ-02-1699, October 15, 2003 and Concerned Lawyers of
Bulacan vs. Pornillos AM No. RTJ-09-2183, July 7, 2009, are inapplicable to the facts of
Judge As trial courts civil cases where the parties have been declared in default
under Rule 9, Section 3 of the Revised Rules of Court and they were required to pay ex
parte reception of evidence fee under Administrative Circular No. 35-2004, Section 21
(e ).

To re-quote the following jurisprudences quoted by four Judges and seventy court
employees charging Judge A of having committed Gross Ignorance of the Law when
they are the ones who committed Gross Ignorance of the Law, which apply to all of
them not to Judge A in this administrative case:

Though not every judicial error bespeaks ignorance of the law and that, if committed in
good faith, does not warrant administrative sanction, the same applies only in cases
within the parameters of tolerable misjudgment. Where the law is straightforward and
facts so evident, not to know it or to act as if one does not know it constitutes ignorance
of the law.

As former Chief Justice Narvasa puts it:


"The ignorant judge is as great a bane to his people and country as the corrupt jurist,
and the one who has not the strength and courage of his convictions is as great an evil
as the one or the other."

In the case of Macalintal versus Teh, Supreme Court enunciated that:

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When the inefficiency springs from a failure to consider so basic and elemental a rule, a
law or principle in the discharge of his duties, a judge is either too incompetent and
undeserving of the position and title he holds or he is too vicious that the oversight or
omission was deliberately done in bad faith and in grave abuse of judicial authority. In
both instances, the judge's dismissal is in order. After all, faith in the administration of
justice exists only if every party -litigant is assured that occupants of the bench cannot
justly be accused of deficiency in their grasp of legal principles."
"The duties and responsibilities of a judge are not strictly confined to judicial functions.
He should ever be aware of the fact that he has to deal with his fellow judges. He and
the others are looked upon as the living symbols of justice in their territorial jurisdiction.
They owe each other utmost respect; anything less than that would diminish the public's
confidence in the ability of the court to administer justice."
No matter how much effort one would try to exert in rummaging the corpus of our
reports and/or the local codes of laws or the plethora of statute books, we are very
much certain that there is no place in the judiciary for those who cannot meet the
exacting standards of judicial conduct and integrity. Enough is enough; a notorious
judge is not worthy to wear the sacred robe of justice.

The actual case is OCA IPI No. 11-2378-MTJ Judge Bibiano Colasito, Vice Executive
Judge Bonifacio Pascua, Judge Restituto Mangalindan Jr. , Judge Catherine Manodon,
Miguel Infante, Emma Annie Arafiles, Racquel Diano, Pedro Doctolero Jr., Lydia Casas,
Auxencio Clemente, Ma. Cecilia Gertrudes R. Salvador, Zenaida N. Geronimo, Virginia
D. Galang, Elsa Garnet, Amor Abad, Emelina J. San Miguel, Maxima C. Sayo, Romer
H. Aviles, Froilan Robert L. Tomas, Dennis M. Echegoyen, Norman Garcia, Noel Labid,
Eleanor N. Bayog, Leilani A. Tejero Lopez, Ana Maria V. Francisco, Soledad J.
Bassig, Marissa Mashhoor Rastgooy, Marie Luz M. Obida, Evelyn P. Depalobos,
Joseph B. Pamatmat, Zenaida N. Geronimo, Benjie V. Ore, Fortunato E. Diezmo,
Nomer B. Villanueva, Edwina A. Jurok, Fatima V. Rojas, Eduardo E. Ebreo, Ronalyn T.
Almarvez, Ma. Victoria C. Ocampo, Elizabeth Lipura, Mary Ann J. Cayanan, Manolo
Manuel E. Garcia, Petronilo C. Primacio Jr., Edward Eric Santos, Armina B. Almonte,
Elizabeth G. Villanueva, Erwin Russ B. Ragasa, Bien T. Camba, Marlon M. Suligan,
Chanda B. Tolentino, Ferdinand R. Molina, Lanie F. Aguinaldo, Jasmine L. Lindain,
Emilio P. Domine, Arnold P. Obial, Ricardo E. Lampitoc, Jerome H. Aviles, Ana Lea M.
Estacio, Cristina E. Lampitoc, Melanie DC Begasa, Evangeline M. Ching, Karla Mae
Pacunayen, Ronaldo S. Quijano, Domingo H. Hocosol, Edwin P. Ubana, Marvin O.
Balicuatro, Ma. Luz D. Dionisio, Maribel A. Molina, Sevilla B. Del Castillo, Aida Josefina
Ignacio, Benigno A. Marzan, Ignacio Gonzales, Lawrence D. Perez, and Edmundo
Vergara vs. Judge Eliza B. Yu
The Philippine Supreme Court sustained the legal arguments of Judge Eliza B. Yu.