1997 Rules on Civil Procedure 2001 Edition <draft copy. pls.

check for errors>

Rule 32 TRIAL BY COMMI IO!"R

Rule 32 Trial by Commissioner

Trial by commissioner applies when there is something to be tried which requires some technical expertise, 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 then you submit a report. Submit you report, you finding and your recommendation. And that person is known as a commissioner. "C. #. Reference by consent $ By %r&tte' co'se't of (oth part&es) the court *ay order a'y or all of the &ssues &' a case to (e referred to a co**&ss&o'er to (e a+reed upo' (y the part&es or to (e appo&'ted (y the court. As used &' these Rules) the %ord ,co**&ss&o'er- &'cludes a referee) a' aud&tor a'd a' e.a*&'er. This was mentioned when we were talking about pre-trial. This is one of the purpose of a pretrial. That is ule !", Section # $f%& (f) The advisability of a preliminary reference of issues to a commissioner This provision is actually referring to ule '#. !"ample #$% (rof. ) and *agneto had continuous transactions. After a long while, their records do not anymore reconcile. (rof. ) filed a case against *agneto on the ground that *agneto has not yet paid an obligation which is already due. +ased on *agneto,s records, bayad na lahat. -ala na syang 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 will consume a lot of time of the court. The fact that the case involves accounting and the 0udge is not an accountant 1it is different if the 0udge is a 2(A3lawyer, hindi mahirap4, the 0udge then should appoint an accountant to assist him. That accountant is known as the commissioner. That will certainly shorten the time and expedite the resolution of the case. The 0udge can then attend to other cases while the parties are presenting all their invoices and receipts before the accountant3commissioner. !"ample #&% (rof. ) and *agneto are owners of ad0oining properties. *agneto put up a fence. (rof. ) sued *agneto for forcible entry on the ground that *agneto encroached on (rof. ),s ground, and praying for the recovery of, say, #55 meters. *agneto contends that he built the fence on the boundary line. The 0udge will look at the title of the land& 6point degree 7, etc..8 . only surveyor or a geodetic engineer understands that9 :n 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 there is 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 !, trial by commissioner is possible by mutual agreement of the parties. The parties must agree. ;ither you can agree on who is the 2(A, who is the engineer, or you can ask the court to appoint somebody <& Suppose the parties cannot agree, or one party files a motion asking for the appointment of a commissioner. :s the court still empowered to apply ule '#= A. >;S, under section #&

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1997 Rules on Civil Procedure 2001 Edition <draft copy. pls. check for errors>

Rule 32 Trial by Commissioner

"C. 2. $ Reference ordered on motion $ /he' the part&es do 'ot co'se't) the court *ay) upo' the appl&cat&o' of e&ther or of &ts o%' *ot&o') d&rect a refere'ce to a co**&ss&o'er &' the follo%&'+ cases0 a.1 /he' the tr&al of a' &ssue of fact re2u&res the e.a*&'at&o' of a lo'+ accou't o' e&ther s&de) &' %h&ch case the co**&ss&o'er *ay (e d&rected to hear a'd report upo' the %hole &ssue or a'y spec&f&c 2uest&o' &'3ol3ed there&'4 (.1 /he' the tak&'+ of a' accou't &s 'ecessary for the &'for*at&o' of the court (efore 5ud+*e't) or for carry&'+ a 5ud+*e't or order &'to effect4 c.1 /he' a 2uest&o' of fact) other tha' upo' the plead&'+s) ar&ses upo' *ot&o' or other%&se) &' a'y sta+e of a case) or for carry&'+ a 5ud+*e't or order &'to effect. Section ! is reference by consent and Section # is reference ordered on motion. (aragraphs 1a4, 1b4 and 1c4 are the good grounds for a motion to appoint a commissioner. :n 1a4, it requires an examination of a long account. The best example here is example ?! . accounting. :n 1b4 and 1c4, notice that a commissioner may be appointed for carrying a 0udgment or order into effect. Thus, a commissioner, can be appointed not only to help the court render a decision, but also help the court enforce a decision . even if tapos na ang case. +ecause sometimes, problems arise on how to implement a decision of the court. !"ample% There was a case of boundary dispute. (rof. ) built his house near the boundary of his property. According to his neighbor, *agneto, a portion of the house of (rof. ) encroached on his land. About #@ sq. m. lang. (rof. ) lost. The court says to (rof. )& You are directed to return the &' s(. m. )hich you occupied. The sheriff will go there to return the #@ sq. m. -hich part of the house will the sheriff demolish= The sheriff returns to the court because he cannot understand and he does not know how to implement the decision. So, the court solves that by appointing a surveyor as a commissioner to find out where that #@ sq. m. will be taken from the portion of the house. <& Aive other examples of trial by commissioner. A& The following& !.4 Special 2ivil Action of !"propriation under ule BC . when the court has to determine 0ust compensation. Dnder ule BC, it is mandatory for the court to appoint a commissioner in order to determine as to how much the value of the propertyE #.4 Special 2ivil Action of *artition under ule B7. -hen the heirs cannot agree on how to partition a property under co-ownership, the court may appoint a commissioner to study and submit its report. So take note that trial by commissioner is allowed not only for the purpose of the court rendering the 0udgment but also for the purpose of carrying a 0udgement or order into effect. "C. 3. +rder of reference po)ers of the commissioner . 6 /he' a refere'ce &s *ade) the clerk shall forth%&th fur'&sh the co**&ss&o'er %&th a copy of the order of refere'ce. The order *ay spec&fy or l&*&t the po%ers of the co**&ss&o'er) a'd *ay d&rect h&* to report o'ly upo' part&cular &ssues) or to do or perfor* part&cular acts) or to rece&3e a'd report e3&de'ce o'ly) a'd *ay f&. the date for (e+&''&'+ a'd clos&'+ the hear&'+s a'd for the f&l&'+ of h&s report. u(5ect to the spec&f&cat&o's a'd l&*&tat&o's stated &' the order)the co**&ss&o'er has a'd shall e.erc&se the po%er to re+ulate the proceed&'+s &' e3ery hear&'+ (efore h&* a'd to do all acts a'd take all *easures 'ecessary or proper for the eff&c&e't

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1997 Rules on Civil Procedure 2001 Edition <draft copy. pls. check for errors>

Rule 32 Trial by Commissioner

perfor*a'ce of h&s dut&es u'der the order. 7e *ay &ssue su(poe'as a'd su(poe'as duces tecum) s%ear %&t'esses) a'd u'less other%&se pro3&ded &' the order of refere'ce) he *ay rule upo' the ad*&ss&(&l&ty of e3&de'ce. The tr&al or hear&'+ (efore h&* shall proceed &' all respects as &t %ould &f held (efore the court. 83a) R331 So a commissioner is parang 0udge rin. :n effect he is an assistant 0udge. +iro mo, he can issue subpoenas, swear witnesses, and unless otherwise provided in the order of reference, may rule upon the admissibility of evidence, of course, sub0ect to the final approval of the court. 2ompare that with ule '5 when there is an e",parte reception of evidence where the clerk of court is delegated to receive evidence. +ut 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 2(Alawyer because he knows about the law on evidence and accounting. Fung boundary conflicts naman, the best commissioner would be a geodetic engineer-lawyer. Gowever, you rarely find that combination. "C. 9. +ath of commissioner. 6 Before e'ter&'+ upo' h&s dut&es the co**&ss&o'er shall (e s%or' to a fa&thful a'd ho'est perfor*a'ce thereof. 8#9) R331 "C. :. *roceedings before commissioner. 6 ;po' rece&pt of the order of refere'ce a'd u'less other%&se pro3&ded there&') the co**&ss&o'er shall forth%&th set a t&*e a'd place for the f&rst *eet&'+ of the part&es or the&r cou'sel to (e held %&th&' te' 8#<1 days after the date of the order of refere'ce a'd shall 'ot&fy the part&es or the&r cou'sel. 8:a) R331 "C. =. -ailure of parties to appear before commissioner . 6 If a party fa&ls to appear at the t&*e a'd place appo&'ted) the co**&ss&o'er *ay proceed ex parte or) &' h&s d&scret&o') ad5our' the proceed&'+s to a future day) +&3&'+ 'ot&ce to the a(se't party or h&s cou'sel of the ad5our'*e't. 8=a) R331 "C. >. Refusal of )itness. 6 The refusal of a %&t'ess to o(ey a su(poe'a &ssued (y the co**&ss&o'er or to +&3e e3&de'ce (efore h&*) shall (e dee*ed a co'te*pt of the court %h&ch appo&'ted the co**&ss&o'er. 8>a) R331 !./0*1!% :, as a commissioner, subpoenaed you and you will not show up. : will report you to the court which appointed me and the court which appointed me will declare you in contempt of court. emember, the commissioner is acting by authority of the 0udge. That,s why he has powers under the law. "C. ?. 2ommissioner shall avoid delays. 6 It &s the duty of the co**&ss&o'er to proceed %&th all reaso'a(le d&l&+e'ce. "&ther party) o' 'ot&ce to the part&es a'd co**&ss&o'er) *ay apply to the court for a' order re2u&r&'+ the co**&ss&o'er to e.ped&te the proceed&'+s a'd to *ake h&s report. 8?a) R331 The commissioner shall expedite the proceedings. Ge should hurry up the report. ec. @. Report of commissioner. 6 ;po' the co*plet&o' of the tr&al or hear&'+ or proceed&'+ (efore the co**&ss&o'er) he shall f&le %&th the court h&s report &'

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1997 Rules on Civil Procedure 2001 Edition <draft copy. pls. check for errors>

Rule 32 Trial by Commissioner

%r&t&'+ upo' the *atters su(*&tted to h&* (y the order of refere'ce. /he' h&s po%ers are 'ot spec&f&ed or l&*&ted) he shall set forth h&s f&'d&'+s of fact a'd co'clus&o's of la% &' h&s report. 7e shall attach thereto all e.h&(&ts) aff&da3&ts) depos&t&o's) papers a'd the tra'scr&pt) &f a'y) of the test&*o'&al e3&de'ce prese'ted (efore h&*. 8@a) R331 "C. #<. 3otice to parties of the filing of report. 6 ;po' the f&l&'+ of the report) the part&es shall (e 'ot&f&ed (y the clerk) a'd they shall (e allo%ed te' 8#<1 days %&th&' %h&ch to s&+'&fy +rou'ds of o(5ect&o's to the f&'d&'+s of the report) &f they so des&re. O(5ect&o's to the report (ased upo' +rou'ds %h&ch %ere a3a&la(le to the part&es dur&'+ the proceed&'+s (efore the co**&ss&o'er) other tha' o(5ect&o's to the f&'d&'+s a'd co'clus&o's there&' set forth) shall 'ot (e co's&dered (y the court u'less they %ere *ade (efore the co**&ss&o'er. 8#<) R331 Hf course, the parties are given a copy of the report. And if it is against you, you can question the findings of that commissioner. Sometimes, it is very difficult because there is already a court appointed commissioner but you have to get another 2(A to check on his report. "C. ##. Hearing upon report. 6 ;po' the e.p&rat&o' of the per&od of te' 8#<1 days referred to &' the preced&'+ sect&o') the report shall (e set for hear&'+) after %h&ch the court shall &ssue a' order adopt&'+) *od&fy&'+) or re5ect&'+ the report &' %hole or &' part) or reco**&tt&'+ &t %&th &'struct&o's) or re2u&r&'+ the part&es to prese't further e3&de'ce (efore the co**&ss&o'er or the court. 8##a) R331 -hen the commissioner files his report with the court, the court will now schedule it for hearing. The parties will be furnished copies and during the hearing, if you do not agree with the report, you can present ob0ections thereto or criticiIe the report. >ou can defend or attack it. The court will then determine whether to accept the report or not. That,s why under Section !!, the court shall issue an order adopting, modifying, re0ecting the report, in whole or in part, or recommitting 1ibalik4 it to the commissioner with instruction, or requiring the parties to present further evidence. The court is not bound !55J to swallow everything in the report. +ut the court rarely re0ects the report of the commissioner, unless talagang there is no basis for it. 2hances are, when the report has support, talo ka na. Although it is not conclusive. Kow take note that when the court approves a report, the findings of the commissioner becomes the findings of the court. <& So, can the findings of the commissioner on question of fact be questioned by the parties= A& >;S, under Section !!. <& :s there an e"ception that the finding of the commissioner on factual issues become final and no longer be questioned= A& >;S, under Section !#& "C. #2. Stipulations as to findings. 6 /he' the part&es st&pulate that a co**&ss&o'erAs f&'d&'+s of fact shall (e f&'al) o'ly 2uest&o's of la% shall thereafter (e co's&dered. 8#2a) R331 This is the only instance where you cannot question the commissioner,s report . when there is already an agreement beforehand that the findings of fact by the commissioner are final, we accept. So

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1997 Rules on Civil Procedure 2001 Edition <draft copy. pls. check for errors>

Rule 32 Trial by Commissioner

the principle of estoppel applies in this case and only questions of law will then be considered. *eaning, factual issues are binding upon the parties. "C. #3. 2ompensation of commissioner. 6 The court shall allo% the co**&ss&o'er such reaso'a(le co*pe'sat&o' as the c&rcu*sta'ces of the case %arra't) to (e ta.ed as costs a+a&'st the defeated party) or apport&o'ed) as 5ust&ce re2u&res. 8#3) R331 <& :s the commissioner entitled to compensation= A& >;S, of course. *ahirap na trabaho ito. :magine you will hire a reputable 2(A tapos walang bayad= Sinong papayag niyan= <& Gow is the commissioner paid= A& To be taxed as costs against the defeated party, or apportioned. :n most cases it is apportioned . @5-@5 4isa gatos tanan56

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