[G.R. No. 137761.
April 6, 2000] almost six (6) months after the last day to file notice of appeal.
GABRIEL LAZARO and the heirs of FLORENCIA PINEDA and EVA
VIERNES, petitioners, vs. COURT OF APPEALS and Spouses JOSE
and ANITA ALESNA, respondents.
Failure to pay docket and other lawful fees within the prescribed
period is a ground for the dismissal of an appeal. This rule cannot be
suspended by the mere invocation of "the interest of substantial
justice." Procedural rules may be relaxed only in exceptionally
meritorious cases.
The Case
Before us is a Petition for Certiorari under Rule 65 assailing two
Resolution, dated July 31, 1998 and December 28, 1998, both
promulgated by the Court of Appeals[1] (CA) in CA-G.R. CV No.
60094. In the first Resolution, the CA ruled:
"For resolution is a motion to reconsider this Court's Resolution
dismissing the appeal for failure of appellants [herein private
respondents] to pay the prescribed docketing fees pursuant to
Section 4, Rule 41 of the 1997 Rules on Civil Procedure.
"x x x x x x x x x
"Copy of the judgment appealed from was received by appellants
on December 16, 1997 and their notice of appeal was filed on
December 19, 1997.
"The motion for reconsideration of this Court's Resolution was filed
on time, but the attached official receipt No. 2768290 evidencing
payment of the required docketing fees was dated June 26, 1998,
However, appellants prayed that this Court's June 17, 1998
resolution be set aside, lifted, and this appeal reinstated, citing
interest of substantial justice.
"In the light of the foregoing, appellants' June 26, 1998 motion is
hereby GRANTED."[2]
In its second Resolution, the CA denied reconsideration in this wise:
"For all the foregoing, there being no cogent or compelling reason
to warrant reconsideration of this court's resolution dated July 31,
1998, the motion of appellees is hereby DENIED."
The Facts
Before the Regional Trial Court (RTC) of Bayombong, Nueva Vizcaya
(Branch 27), Spouses Jose and Anita Alesna, private respondents
herein, filed a civil action for annulment of title, reconveyance and
damages (with prayer for preliminary injunction)[4] against
Petitioners Gabriel Lazaro and the heirs of Florencia Pineda and Eva
Viernes.
After trial, the RTC rendered judgment in favor of the petitioners.
Thereafter, the private respondents filed a Notice of Appeal before
the trial court.[5]
In a Resolution dated June 17, 1998, the CA[6] dismissed the appeal
for failure of herein private respondents to pay the required docket
fees within the prescribed period. Thereafter, it issued its first
assailed Resolution dated July 31, 1998 granting their Motion for
Reconsideration and reinstating the appeal.
Subsequently, the petitioners also filed their own Motion for
Reconsideration assailing the said Resolution. As earlier stated, the
CA denied their Motion.
Hence, this Petition.
Ruling of the Court of Appeals
In reinstating the appeal despite the failure of herein private
respondents to pay the docket fees within the prescribed period,
the Court of Appeals invoked "the interest of substantial justice." It
did not elaborate however. No specific circumstance or any other
explanation was cited in support of its ruling.
Issue
In their memorandum, petitioners submit for the consideration of
the Court this lone question: "x x x [H]as the respondent appellate
court acted without or in excess of jurisdiction, and/or with grave
abuse of discretion in issuing the questioned Resolutions dated July
31, 1998 and December 28, 1998"?
This Court's Ruling
The Petition is meritorious.
Main Issue: Timely Payment of CA Docket Fees
The Rules of Court, as amended, specifically provides that appellate
court docket and other lawful fees should be paid within the period
for taking an appeal. Hence, Section 4 of Rule 41 reads:
"Section 4. Appellate court docket and other lawful fees. -- Within
the period for taking an appeal,[9] the appellant shall pay to the
clerk of the court which rendered the judgment or final order
appealed from, the full amount of the appellate court docket and
other lawful fees. Proof of payment of said fees shall be transmitted
to the appellate court together with the original record or the
record on appeal."
Contrary to the submission of private respondents that the
aforecited rule is merely directory, the payment of the docket and
other legal fees within the prescribed period is both mandatory and
jurisdictional. Section 1 (c), Rule 50 of the Rules of Court provides:
"Failure of the appellant to pay the docket and other fees as
provided in Section 4 of Rule 41" is a ground for the dismissal of the
appeal. Indeed, it has been held that failure of the appellant to
conform with the rules on appeal renders the judgment final and
executory. Verily, the right to appeal is a statutory right and one
who seeks to avail of that right must comply with the statute or the
rule.
In the present case, the private respondents failed to pay the
required docket fees within the reglementary period. In fact, the
Court notes that they paid the fees only after the CA had dismissed
the appeal, or six months after the filing of the Notice of Appeal.
Clearly, existing jurisprudence and the Rules mandate that the
appeal should be dismissed.
The appellate court nonetheless reinstated the appeal "in the
interest of substantial justice." But as earlier observed, it did not
cite any specific circumstance or any other explanation in support of
its ruling. For their part, private respondents failed to offer a
satisfactory explanation why they paid the docket fees six months
after the prescribed period. Indeed, neither they nor the Court of
Appeals showed fraud, accident, mistake, excusable negligence, or
any other reason to justify the suspension of the aforecited rule.
the CA and the private respondents failed to show that this case is
one such exception.
WHEREFORE, the Petition is hereby GRANTED. The Court of Appeals'
assailed Resolutions, dated July 31, 1998 and December 28, 1998,
are SET ASIDE. The Decision of the Regional Trial Court of
Bayombong, Nueva Vizcaya (Branch 27) in Civil Case No.4058 is
declared FINAL and EXECUTORY. No pronouncement as to costs.

We must stress that the bare invocation of "the interest of SO ORDERED.

substantial justice" is not a magic wand that will automatically
compel this Court to suspend procedural rules. "Procedural rules
are not to be belittled or dismissed simply because their non-
observance may have resulted in prejudice to a party's substantive
rights. Like all rules, they are required to be followed except only for
the most persuasive of reasons when they may be relaxed to relieve
a litigant of an injustice not commensurate with the degree of his
thoughtlessness in not complying with the procedure
prescribed."[13] The Court reiterates that rules of procedure,
especially those prescribing the time within which certain acts must
be done, "have oft been held as absolutely indispensable to the
prevention of needless delays and to the orderly and speedy
discharge of business. x x x The reason for rules of this nature is
because the dispatch of business by courts would be impossible,
and intolerable delays would result, without rules governing
practice x x x. Such rules are a necessary incident to the proper,
efficient and orderly discharge of judicial functions."[14] Indeed, in
no uncertain terms, the Court held that the said rules may be
relaxed only in "exceptionally meritorious cases."[15] In this case,
FRANCISCO MAGESTRADO, Petitioner, - versus - PEOPLE OF THE
PHILIPPINES and ELENA M. LIBROJO, Respondents.
G.R. No. 148072 July 10, 2007
This Petition for Review on Certiorari seeks to reverse the (1)
Resolution[1] dated 5 March 2001 of the Court of Appeals in CA-
G.R. SP No. 63293 entitled, Francisco Magestrado v. Hon. Estrella T.
Estrada, in her capacity as the Presiding Judge of Regional Trial
Court, Branch 83 of Quezon City, People of the Philippines and Elena
M. Librojo, which dismissed petitioner Francisco Magestrados
Petition for Certiorari for being the wrong remedy; and (2)
Resolution dated 3 May 2001 of the same Court denying petitioners
motion for reconsideration.
Private respondent Elena M. Librojo filed a criminal complaint for
perjury against petitioner with the Office of the City Prosecutor of
Quezon City, which was docketed as I.S. No. 98-3900.
After the filing of petitioners counter-affidavit and the appended
pleadings, the Office of the City Prosecutor recommended the filing
of an information for perjury against petitioner. Thus, Assistant City
Prosecutor Josephine Z. Fernandez filed an information for perjury
against petitioner with the Metropolitan Trial Court (MeTC) of
Quezon City. Pertinent portions of the information are hereby
quoted as follows:
That on or about the 27th day of December, 1997, in Quezon City,
Philippines, the said accused, did then and there willfully, unlawfully
and feloniously and knowingly make an untruthful statement under
oath upon a material matter before a competent officer authorized
to receive and administer oath and which the law so require, to wit:
the said accused subscribe and swore to an Affidavit of Loss before
Notary Public Erlinda B. Espejo of Quezon City, per Doc. No. 168,
Page No. 35, Book No. CLXXIV of her notarial registry, falsely
alleging that he lost Owners Duplicate Certificate of TCT No. N-
173163, which document was used in support of a Petition For
Issuance of New Owners Duplicate Copy of Certificate of Title and
filed with the Regional Trial Court of Quezon City, docketed as LRC#
Q-10052 (98) on January 28, 1998 and assigned to Branch 99 of the
said court, to which said Francisco M. Mag[e]strado signed and
swore on its verification, per Doc. 413 Page 84 Book No. CLXXV
Series of 1998 of Notary Public Erlinda B. Espejo of Quezon City; the
said accused knowing fully well that the allegations in the said
affidavit and petition are false, the truth of the matter being that
the property subject of Transfer Certificate of Title No. N-173163
was mortgaged to complainant Elena M. Librojo as collateral for a
loan in the amount of P 758,134.42 and as a consequence of which
said title to the property was surrendered by him to the said
complainant by virtue of said loan, thus, making untruthful and
deliberate assertions of falsehoods, to the damage and prejudice of
the said Elena M. Librojo.
The case was raffled to the MeTC of Quezon City, Branch 43, where
it was docketed as Criminal Case No. 90721 entitled, People of the
Philippines v. Francisco Magestrado.
On 30 June 1999, petitioner filed a motion for suspension of
proceedings based on a prejudicial question. Petitioner alleged that
Civil Case No. Q-98-34349, a case for recovery of a sum of money
pending before the Regional Trial Court (RTC) of Quezon City,
Branch 84, and Civil Case No. Q-98- 34308, a case for Cancellation of
Mortgage, Delivery of Title and Damages, pending before the RTC of
Quezon City, Branch 77, must be resolved first before Criminal Case
No. 90721 may proceed since the issues in the said civil cases are
similar or intimately related to the issues raised in the criminal
action.
On 14 July 1999, MeTC-Branch 43 issued an Order denying
petitioners motion for suspension of proceedings, thus:
Acting on the Motion for Suspension of Proceedings filed by the
[herein petitioner Magestrado], thru counsel, and the Comment and
Opposition thereto, the Court after an evaluation of the same, finds
the aforesaid motion without merit, hence, is hereby DENIED, it
appearing that the resolution of the issues raised in the civil actions
is not determinative of the guilt or innocence of the accused.
Hence, the trial of this case shall proceed as previously scheduled
on July 19 and August 2, 1993 at 8:30 in the morning.
On 17 August 1999, a motion[7] for reconsideration was filed by
petitioner but was denied by the MeTC in an Order[8] dated 19
October 1999.
Aggrieved, petitioner filed a Petition for Certiorari[9] under Rule 65
of the Revised Rules of Court, with a prayer for Issuance of a Writ of
Preliminary Injunction before the RTC of Quezon City, Branch 83,
docketed as Civil Case No. Q-99-39358, on the ground that MeTC
Judge Billy J. Apalit committed grave abuse of discretion amounting
to lack or excess of jurisdiction in denying his motion to suspend the
proceedings in Criminal Case No. 90721.
On 14 March 2000, RTC-Branch 83 dismissed the petition and
denied the prayer for the issuance of a writ of preliminary
injunction, reasoning thus:
Scrutinizing the complaints and answers in the civil cases
abovementioned, in relation to the criminal action for PERJURY, this
Court opines and so holds that there is no prejudicial question
involved as to warrant the suspension of the criminal action to
await the outcome of the civil cases. The civil cases are principally
for determination whether or not a loan was obtained by petitioner
and whether or not he executed the deed of real estate mortgage
involving the property covered by TCT No. N-173163, whereas the
criminal case is for perjury which imputes upon petitioner the
wrongful execution of an affidavit of loss to support his petition for
issuance of a new owners duplicate copy of TCT No. 173163.
Whether or not he committed perjury is the issue in the criminal
case which may be resolved independently of the civil cases. Note
that the affidavit of loss was executed in support of the petition for
issuance of a new owners duplicate copy of TCT No. N-173163
which petition was raffled to Branch 99 of the RTC. x x x.
Again, petitioner filed a motion for reconsideration[11] but this was
denied by RTC- Branch 83 in an Order[12] dated 21 December 2000.
Dissatisfied, petitioner filed with the Court of Appeals a Petition for
Certiorari[13] under Rule 65 of the Revised Rules of Court, which
was docketed as CA-G.R. SP No. 63293. Petitioner alleged that RTC
Judge Estrella T. Estrada committed grave abuse of discretion
amounting to lack or excess of jurisdiction in denying the Petition
for Certiorari in Civil Case No. Q-99-39358, and in effect sustaining
the denial by MeTC-Branch 43 of petitioners motion to suspend the
proceedings in Criminal Case No. 90721, as well as his subsequent
motion for reconsideration thereof.
On 5 March 2001, the Court of Appeals dismissed the Petition in CA-
G.R. SP No. 63293 on the ground that petitioners remedy should
have been an appeal from the dismissal by RTC-Branch 83 of his
Petition for Certiorari in Q-99-39358. The Court of Appeals ruled
that:
Is this instant Petition for Certiorari under Rule 65 the correct and
appropriate remedy?
We rule negatively.
The resolution or dismissal in special civil actions, as in the instant
petition, may be appealed x x x under Section 10, Rule 44 of the
1997 Rules of Civil Procedure and not by petition for certiorari
under Rule 65 of the same rules. Thus, the said rule provides:
Section 10. Time for filing memoranda on special cases. In certiorari,
prohibition, mandamus, quo warranto and habeas corpus cases, the
parties shall file in lieu of briefs, their respective memoranda within
a non-extendible period of thirty (30) days from receipt of the
notice issued by the clerk that all the evidence, oral and
documentary, is already attached to the record x x x.
WHEREFORE, in consideration of the foregoing premises, the instant
Petition for Certiorari under Rule 65 of the 1997 Rules of Civil
Procedure is hereby DISMISSED.
The Court of Appeals denied petitioners Motion for
Reconsideration in a Resolution dated 3 May 2001.
Hence, petitioner comes before us via a Petition for Review on
Certiorari under Rule 45 of the Revised Rules of Court raising the
following issues:
1. Whether or not the Orders of Judge Estrella T. Estrada dated
March 14, 2000 denying petitioners Petition for Certiorari under
Rule 65 of the Rules of Court, and her subsequent Order dated
December 21, 2000, denying the Motion for Reconsideration
thereafter filed can only be reviewed by the Court of Appeals thru
appeal under Section 10, Rule 44 of the 1997 Rules of Civil
Procedure.
2. Whether or not Judge Estrella T. Estrada of the Regional Trial
Court, Branch 83, Quezon City, had committed grave abuse of
discretion amounting to lack or in excess of her jurisdiction in
denying the Petition for Certiorari and petitioners subsequent
motion for reconsideration on the ground of a prejudicial question
pursuant to the Rules on Criminal Procedure and the prevailing
jurisprudence.
After consideration of the procedural and substantive issues raised
by petitioner, we find the instant petition to be without merit.
The procedural issue herein basically hinges on the proper remedy
which petitioner should have availed himself of before the Court of
Appeals: an ordinary appeal or a petition for certiorari. Petitioner
claims that he correctly questioned RTC-Branch 83s Order of
dismissal of his Petition for Certiorari in Civil Case No. Q-99-39358
through a Petition for Certiorari before the Court of Appeals.
Private respondent and public respondent People of the Philippines
insist that an ordinary appeal was the proper remedy.
We agree with respondents. We hold that the appellate court did
not err in dismissing petitioners Petition for Certiorari, pursuant to
Rule 41, Section 2 of the Revised Rules of Court (and not under Rule
44, Section 10, invoked by the Court of Appeals in its Resolution
dated 5 March 2001).
The correct procedural recourse for petitioner was appeal, not only
because RTC-Branch 83 did not commit any grave abuse of
discretion in dismissing petitioners Petition for Certiorari in Civil
Case No. Q-99-39358 but also because RTC-Branch 83s Order of
dismissal was a final order from which petitioners should have
appealed in accordance with Section 2, Rule 41 of the Revised Rules
of Court.
An order or a judgment is deemed final when it finally disposes of a
pending action, so that nothing more can be done with it in the trial
court. In other words, the order or judgment ends the litigation in
the lower court. Au contraire, an interlocutory order does not
dispose of the case completely, but leaves something to be done as
regards the merits of the latter.[18] RTC-Branch 83s Order dated 14
March 2001 dismissing petitioners Petition for Certiorari in Civil
Case No. Q-99-39358 finally disposes of the said case and RTC-
Branch 83 can do nothing more with the case.
Under Rule 41 of the Rules of Court, an appeal may be taken from a
judgment or final order that completely disposes of the case, or of a
particular matter therein when declared by the Revised Rules of
Court to be appealable. The manner of appealing an RTC judgment
or final order is also provided in Rule 41 as follows:
Section 2. Modes of appeal.
(a) Ordinary appeal. The appeal to the Court of Appeals in cases
decided by the Regional Trial Court in the exercise of its original
jurisdiction shall be taken by filing a notice of appeal with the court
which rendered the judgment or final order appealed from and
serving a copy thereof upon the adverse party. No record on appeal
shall be required except in special proceedings and other cases of
multiple or separate appeals where the law or these Rules so
require. In such cases, the record on appeal shall be filed and
served in like manner.
Certiorari generally lies only when there is no appeal nor any other
plain, speedy or adequate remedy available to petitioners. Here,
appeal was available. It was adequate to deal with any question
whether of fact or of law, whether of error of jurisdiction or grave
abuse of discretion or error of judgment which the trial court might
have committed. But petitioners instead filed a special civil action
for certiorari.
We have time and again reminded members of the bench and bar
that a special civil action for certiorari under Rule 65 of the Revised
Rules of Court lies only when there is no appeal nor plain, speedy
and adequate remedy in the ordinary course of law. Certiorari
cannot be allowed when a party to a case fails to appeal a judgment
despite the availability of that remedy, certiorari not being a
substitute for lost appeal.
As certiorari is not a substitute for lost appeal, we have repeatedly
emphasized that the perfection of appeals in the manner and within
the period permitted by law is not only mandatory but
jurisdictional, and that the failure to perfect an appeal renders the
decision of the trial court final and executory. This rule is founded
upon the principle that the right to appeal is not part of due process
of law but is a mere statutory privilege to be exercised only in the
manner and in accordance with the provisions of the law. Neither
can petitioner invoke the doctrine that rules of technicality must
yield to the broader interest of substantial justice. While every
litigant must be given the amplest opportunity for the proper and
just determination of his cause, free from constraints of
technicalities, the failure to perfect an appeal within the
reglementary period is not a mere technicality. It raises a
jurisdictional problem as it deprives the appellate court of
jurisdiction over the appeal.
The remedies of appeal and certiorari are mutually exclusive and
not alternative or successive.[23] A party cannot substitute the
special civil action of certiorari under Rule 65 of the Rules of Court
for the remedy of appeal. The existence and availability of the right
of appeal are antithetical to the availability of the special civil action
for certiorari.[24] As this Court held in Fajardo v. Bautista:
Generally, an order of dismissal, whether right or wrong, is a final
order, and hence a proper subject of appeal, not certiorari. The
remedies of appeal and certiorari are mutually exclusive and not
alternative or successive. Accordingly, although the special civil
action of certiorari is not proper when an ordinary appeal is
available, it may be granted where it is shown that the appeal would
be inadequate, slow, insufficient, and will not promptly relieve a
party from the injurious effects of the order complained of, or
where appeal is inadequate and ineffectual. Nevertheless, certiorari
cannot be a substitute for the lost or lapsed remedy of appeal,
where such loss is occasioned by the petitioners own neglect or
error in the choice of remedies.
On 21 December 2000, petitioner received a copy of the Order of
the RTC-Branch 83 denying his motion for reconsideration of the
dismissal of his Petition for Certiorari in Civil Case No. Q-99-39358;
hence, he had until 18 January 2001 within which to file an appeal
with the Court of Appeals. The Petition for Certiorari filed by
petitioner on 19 February 2001 with the Court of Appeals cannot be
a substitute for the lost remedy of appeal. As petitioner failed to file
a timely appeal, RTC-Branch 83s dismissal of his Petition for
Certiorari had long become final and executory.
For this procedural lapse, the Court of Appeals correctly denied
outright the Petition for Certiorari filed by petitioner before it.
Moreover, there are even more cogent reasons for denying the
instant Petition on the merits.
In the Petition at bar, petitioner raises several substantive issues.
Petitioner harps on the need for the suspension of the proceedings
in Criminal Case No. 90721 for perjury pending before MeTC-Branch
43 based on a prejudicial question still to be resolved in Civil Case
No. Q-98-34308 (for cancellation of mortgage) and Civil Case No. Q-
98-34349 (for collection of a sum of money) which are pending
before other trial courts.
For clarity, we shall first discuss the allegations of petitioner in his
complaint in Civil Case No. Q-98-34308 (for cancellation of
mortgage) and that of private respondent in her complaint in Civil
Case No. Q-98-34349 (for collection of a sum of money).
Civil Case No. Q-98-34308 is a complaint for Cancellation of
Mortgage, Delivery of Title and Damages filed on 8 May 1988 by
petitioner against private respondent with RTC-Branch 77. 2. As well as to order [herein private respondent] to DELIVER the
Petitioner alleges that he purchased a parcel of land covered by Owners Duplicate Copy of Transfer Certificate of Title No. N-173163
Transfer Certificate of Title No. N-173163 thru private respondent, a to [herein petitioner];
real estate broker. In the process of negotiation, petitioner was
pressured to sign a Deed of Sale prepared by private respondent. 3. Condemning [private respondent] to pay [petitioner] the sums of
Upon signing the Deed of Sale, he noticed that the Deed was a) P100,000.00 as MORAL DAMAGES;
already signed by a certain Cristina Gonzales as attorney-in-fact of
vendor Spouses Guillermo and Amparo Galvez. Petitioner b) P50,000.00 as EXEMPLARY DAMAGES;
demanded from private respondent a special power of attorney and
c) P50,000.00 as Attorneys fees and
authority to sell, but the latter failed to present one. Petitioner
averred that private respondent refused to deliver the certificate of d) Cost of suit.
title of the land despite execution and signing of the Deed of Sale
and payment of the consideration. Petitioner was thus compelled to 4. A general relief is likewise prayed for (sic) just and equitable
engage the services of one Modesto Gazmin, Jr. who agreed, for under the premises.
P100,000.00 to facilitate the filing of cases against private
Civil Case No. Q-98-34349,[26] on the other hand, is a complaint for
respondent; to deliver to petitioner the certificate of title of the
a sum of money with a motion for issuance of a writ of attachment
land; and/or to cancel the certificate of title in possession of private
filed by private respondent against petitioner on 14 May 1988
respondent. However, Mr. Gazmin, Jr., did nothing upon receipt of
before RTC-Branch 84. Private respondent alleges that petitioner
the amount of P100,000.00 from petitioner. In fact, petitioner was
obtained a loan from her in the amount of P758,134.42 with a
even charged with perjury before the Office of the City Prosecutor,
promise to pay on or before 30 August 1997. As security for
all because of Mr. Gazmin, Jr.s wrongdoing. Petitioner further
payment of the loan, petitioner executed a Deed of Real Estate
alleged that he discovered the existence of a spurious Real Estate
Mortgage covering a parcel of land registered under TCT No. N-
Mortgage which he allegedly signed in favor of private respondent.
173163. Petitioner pleaded for additional time to pay the said
Petitioner categorically denied signing the mortgage document and
obligation, to which respondent agreed. But private respondent
it was private respondent who falsified the same in order to justify
discovered sometime in February 1998 that petitioner executed an
her unlawful withholding of TCT No. N-173163 from petitioner.
affidavit of loss alleging that he lost the owners duplicate copy of
Thus, petitioner prayed for:
TCT No. N-173163, and succeeded in annotating said affidavit on
1. The cancellation of Real Estate Mortgage dated August 2, 1997 as the original copy of TCT No. N-173163 on file with the Registry of
null and void; Deeds of Quezon City. Private respondent further alleges that she
also discovered that petitioner filed a petition for issuance of a new
owners duplicate copy of TCT No. N-173163 with the RTC of Quezon
City, Branch 98, docketed as LRC Case No. Q-10052. Private
respondent demanded that petitioner pay his obligation, but the
latter refused to do so. Resultantly, private respondent prayed for
the following:
A. That upon filing of this Complaint as well as the Affidavit
of attachment and a preliminary hearing thereon, as well as bond
filed, a writ of preliminary attachment is (sic) by the Honorable
Court ordering the Sheriff to levy [herein petitioner] property
sufficient to answer [herein private respondents] claim in this
action;
B. That after due notice and hearing, judgment be
rendered in [private respondents] favor as against [petitioner],
ordering the latter to pay the former the sum of P758,134.42 plus
interest thereon at 5% per month from September 1997 up to the
date of actual payment; actual damages in the sums of P70,000.00
each under paragraphs 11 and 12 of the complaint; P200,000.00 as
moral damages; P100,000.00 as exemplary damages; twenty (20%)
of the principal claim as attorneys fees plus P2,500.00 per
appearance honorarium; and P60,000.00 as litigation expense
before this Honorable Court.
[Petitioner] prays for such further relief in law, justice and equity.
As to whether it is proper to suspend Criminal Case No. 90721 for
perjury pending final outcome of Civil Case No. Q-98-34349 and Civil
Case No. Q-98-34308, we take into consideration Sections 6 and 7,
Rule 111 of the Revised Rules of Court, which read:
Sec. 6. Suspension by reason of prejudicial question. A petition for
suspension of the criminal action based upon the pendency of a
prejudicial question in a civil action may be filed in the office of the
prosecutor or the court conducting the preliminary investigation.
When the criminal action has been filed in court for trial, the
petition to suspend shall be filed in the same criminal action at any
time before the prosecution rests.
Sec. 7. Elements of prejudicial question. The elements of a
prejudicial question are: (a) the previously instituted civil action
involves an issue similar or intimately related to the issue raised in
the subsequent criminal action; and (b) the resolution of such issue
determines whether or not the criminal action may proceed.
The rationale behind the principle of suspending a criminal case in
view of a prejudicial question is to avoid two conflicting decisions.
A prejudial question is defined as that which arises in a case the
resolution of which is a logical antecedent of the issue involved
therein, and the cognizance of which pertains to another tribunal.
The prejudicial question must be determinative of the case before
the court but the jurisdiction to try and resolve the question must
be lodged in another court or tribunal. It is a question based on a
fact distinct and separate from the crime but so intimately
connected with it that it determines the guilt or innocence of the
accused.
For a prejudicial question in a civil case to suspend criminal action, it
must appear not only that said case involves facts intimately related
to those upon which the criminal prosecution would be based but
also that in the resolution of the issue or issues raised in the civil
case, the guilt or innocence of the accused would necessarily be
determined.
Thus, for a civil action to be considered prejudicial to a criminal case
as to cause the suspension of the criminal proceedings until the final
resolution of the civil case, the following requisites must be present:
(1) the civil case involves facts intimately related to those upon
which the criminal prosecution would be based; (2) in the resolution
of the issue or issues raised in the civil action, the guilt or innocence
of the accused would necessarily be determined; and (3) jurisdiction
to try said question must be lodged in another tribunal.
If the resolution of the issue in the civil action will not determine the
criminal responsibility of the accused in the criminal action based on
the same facts, or there is no necessity that the civil case be
determined first before taking up the criminal case, therefore, the
civil case does not involve a prejudicial question.[30] Neither is
there a prejudicial question if the civil and the criminal action can,
according to law, proceed independently of each other.[31]
However, the court in which an action is pending may, in the
exercise of sound discretion, and upon proper application for a stay
of that action, hold the action in abeyance to abide by the outcome
of another case pending in another court, especially where the
parties and the issues are the same, for there is power inherent in
every court to control the disposition of cases on its dockets with
economy of time and effort for itself, for counsel, and for litigants.
Where the rights of parties to the second action cannot be properly
determined until the questions raised in the first action are settled,
the second action should be stayed.[32]
The power to stay proceedings is incidental to the power inherent
in every court to control the disposition of the cases on its dockets,
considering its time and effort, those of counsel and the litigants.
But if proceedings must be stayed, it must be done in order to avoid
multiplicity of suits and prevent vexatious litigations, conflicting
judgments, confusion between litigants and courts. It bears
stressing that whether or not the trial court would suspend the
proceedings in the criminal case before it is submitted to its sound
discretion.
Indeed, a judicial order issued pursuant to the courts discretionary
authority is not subject to reversal on review unless it constitutes an
abuse of discretion. As the United States Supreme Court aptly
declared in Landis v. North American Co., the burden of making out
the justice and wisdom from the departure from the beaten truck
lay heavily on the petitioner, less an unwilling litigant is compelled
to wait upon the outcome of a controversy to which he is a
stranger. It is, thus, stated that only in rare circumstances will a
litigant in one case is compelled to stand aside, while a litigant in
another, settling the rule of law that will define the rights of both is,
after all, the parties before the court are entitled to a just, speedy
and plain determination of their case undetermined by the
pendency of the proceedings in another case. After all, procedure
was created not to hinder and delay but to facilitate and promote
the administration of justice.
As stated, the determination of whether the proceedings may be
suspended on the basis of a prejudicial question rests on whether
the facts and issues raised in the pleadings in the civil cases are so
related with the issues raised in the criminal case such that the
resolution of the issues in the civil cases would also determine the
judgment in the criminal case.
A perusal of the allegations in the complaints show that Civil Case
No. Q-98-34308 pending before RTC-Branch 77, and Civil Case No.
Q-98-34349, pending before RTC-Branch 84, are principally for the
determination of whether a loan was obtained by petitioner from
private respondent and whether petitioner executed a real estate
mortgage involving the property covered by TCT No. N-173163. On
the other hand, Criminal Case No. 90721 before MeTC-Branch 43,
involves the determination of whether petitioner committed
perjury in executing an affidavit of loss to support his request for
issuance of a new owners duplicate copy of TCT No. N-173163.
WHEREFORE, premises considered, the assailed Resolutions dated 5
March 2001 and 3 May 2001of the Court of Appeals in CA-G.R. SP
No. 63293 are hereby AFFIRMED and the instant petition is
DISMISSED for lack of merit. Accordingly, the Metropolitan Trial
Court of Quezon City, Branch 43, is hereby directed to proceed with
the hearing and trial on the merits of Criminal Case No. 90721, and
to expedite proceedings therein, without prejudice to the right of
the accused to due process. Costs against petitioner.
SO ORDERED.

It is evident that the civil cases and the criminal case can proceed
independently of each other. Regardless of the outcome of the two
civil cases, it will not establish the innocence or guilt of the
petitioner in the criminal case for perjury. The purchase by
petitioner of the land or his execution of a real estate mortgage will
have no bearing whatsoever on whether petitioner knowingly and
fraudulently executed a false affidavit of loss of TCT No. N-173163.

MeTC-Branch 43, therefore, did not err in ruling that the pendency
of Civil Case No. Q-98-34308 for cancellation of mortgage before
the RTC-Branch 77; and Civil Case No. Q-98-34349 for collection of a
sum of money before RTC-Branch 84, do not pose a prejudicial
question in the determination of whether petitioner is guilty of
perjury in Criminal Case No. 90721. RTC-Branch 83, likewise, did not
err in ruling that MeTC-Branch 43 did not commit grave abuse of
discretion in denying petitioners motion for suspension of
proceedings in Criminal Case No. 90721.
G.R. No. 84719 January 25, 1991
YONG CHAN KIM, petitioner, vs. PEOPLE OF THE PHILIPPINES,
HON. EDGAR D. GUSTILO, Presiding Judge, RTC, 6th Judicial
Region, Branch 28 Iloilo City and Court of Appeals (13th Division)
respondents.
This petition seeks the review on certiorari of the following:
1. The decision dated 3 September 1986 of the 15th Municipal
Circuit Trial Court (Guimbal-Igbaras-Tigbauan-Tubungan) in
Guimbal, Iloilo, in Criminal Case No. 628, and the affirming decision
of the Regional Trial Court, Branch XXVIII, Iloilo City, in Criminal Case
No. 20958, promulgated on 30 July 1987;
2. The decision of the Court of Appeals, dated 29 April 1988,
dismissing petitioner's appeal/petition for review for having been
filed out of time, and the resolution, dated 19 August 1988, denying
petitioner's motion for reconsideration.
The antecedent facts are as follows:
Petitioner Yong Chan Kim was employed as a Researcher at the
Aquaculture Department of the Southeast Asian Fisheries
Development Center (SEAFDEC) with head station at Tigbauan,
Province of Iloilo. As Head of the Economics Unit of the Research
Division, he conducted prawn surveys which required him to travel
to various selected provinces in the country where there are
potentials for prawn culture.
On 15 June 1982, petitioner was issued Travel Order No. 2222 which
covered his travels to different places in Luzon from 16 June to 21
July 1982, a period of thirty five (35) days. Under this travel order,
he received P6,438.00 as cash advance to defray his travel
expenses.
Within the same period, petitioner was issued another travel order,
T.O. 2268, requiring him to travel from the Head Station at
Tigbauan, Iloilo to Roxas City from 30 June to 4 July 1982, a period
of five (5) days. For this travel order, petitioner received a cash
advance of P495.00.
On 14 January 1983, petitioner presented both travel orders for
liquidation, submitting Travel Expense Reports to the Accounting
Section. When the Travel Expense Reports were audited, it was
discovered that there was an overlap of four (4) days (30 June to 3
July 1982) in the two (2) travel orders for which petitioner collected
per diems twice. In sum, the total amount in the form of per diems
and allowances charged and collected by petitioner under Travel
Order No. 2222, when he did not actually and physically travel as
represented by his liquidation papers, was P1,230.00.
Petitioner was required to comment on the internal auditor's report
regarding the alleged anomalous claim for per diems. In his reply,
petitioner denied the alleged anomaly, claiming that he made
make-up trips to compensate for the trips he failed to undertake
under T.O. 2222 because he was recalled to the head office and
given another assignment.
In September 1983, two (2) complaints for Estafa were filed against
the petitioner before the Municipal Circuit Trial Court at Guimbal,
Iloilo, docketed as Criminal Case Nos. 628 and 631.
After trial in Criminal Case No. 628, the Municipal Circuit Trial Court
rendered a decision, the dispositive part of which reads as follows:
IN VIEW OF THE FOREGOING CONSIDERATIONS, the court finds the
accused, Yong Chan Kim, guilty beyond reasonable doubt for the
crime of Estafa penalized under paragraph l(b) of Article 315,
Revised Penal Code. Records disclose there is no aggravating
circumstance proven by the prosecution. Neither there is any
mitigating circumstance proven by the accused. Considering the
amount subject of the present complaint, the imposable penalty
should be in the medium period of arresto mayor in its maximum
period to prision correccional in its minimum period in accordance
with Article 315, No. 3, Revised Penal Code. Consonantly, the Court
hereby sentences the accused to suffer an imprisonment ranging
from four (4) months as the minimum to one (1) year and six (6)
months as the maximum in accordance with the Indeterminate
Sentence Law and to reimburse the amount of P1,230.00 to
SEAFDEC.
The surety bond of the accused shall remain valid until final
judgment in accordance herewith.
Costs against the accused.
Criminal Case No. 631 was subsequently dismissed for failure to
prosecute.
Petitioner appealed from the decision of the Municipal Circuit Trial
Court in Criminal Case No. 628. On 30 July 1987, the Regional Trial
Court in Iloilo City in Criminal Case No. 20958 affirmed in toto the
trial court's decision.
The decision of the Regional Trial Court was received by petitioner
on 10 August 1987. On 11 August 1987, petitioner, thru counsel,
filed a notice of appeal with the Regional Trial Court which ordered
the elevation of the records of the case to the then Intermediate
Appellate Court on the following day, 12 August 1987. The records
of the case were received by the Intermediate Appellate Court on 8
October 1987, and the appeal was docketed as CA-G.R. No. 05035.
On 30 October 1987, petitioner filed with the appellate court a
petition for review. As earlier stated, on 29 April 1988, the Court of
Appeals dismissed the petition for having been filed out of time.
Petitioner's motion for reconsideration was denied for lack of merit.
Hence, the present recourse.
On 19 October 1988, the Court resolved to require the respondents
to comment on the petition for review. The Solicitor General filed
his Comment on 20 January 1989, after several grants of extensions
of time to file the same.
In his Comment, the Solicitor General prayed for the dismissal of the
instant petition on the ground that, as provided for under Section
22, Batas Pambansa 129, Section 22 of the Interim Rules and
Guidelines, and Section 3, Rule 123 of the 1985 Rules of Criminal
Procedure, the petitioner should have filed a petition for review
with the then Intermediate Appellate Court instead of a notice of
appeal with the Regional Trial Court, in perfecting his appeal from
the RTC to the Intermediate Appellate Court, since the RTC judge
was rendered in the exercise of its appellate jurisdiction over
municipal trial courts. The failure of petitioner to file the proper
petition rendered the decision of the Regional Trial Court final and
executory, according to the Solicitor General.
Petitioner's counsel submitted a Reply (erroneously termed
Comment)7 wherein she contended that the peculiar circumstances
of a case, such as this, should be considered in order that the
principle barring a petitioner's right of review can be made flexible
in the interest of justice and equity.
In our Resolution of 29 May 1989, we resolved to deny the petition
for failure of petitioner to sufficiently show that the Court of
Appeals had committed any reversible error in its questioned
judgment which had dismissed petitioner's petition for review for
having been filed out of time.
Petitioner filed a motion for reconsideration maintaining that his
petition for review did not limit itself to the issue upon which the
appellate court's decision of 29 April 1988 was based, but rather it
delved into the substance and merits of the case.
On 10 August 1990, we resolved to set aside our resolution
dismissing this case and gave due course to the petition. In the said
resolution, we stated:
In several cases decided by this Court, it had set aside technicalities
in the Rules in order to give way to justice and equity. In the present
case, we note that the petitioner, in filing his Notice of Appeal the
very next day after receiving the decision of the court a quo lost no
time in showing his intention to appeal, although the procedure
taken was not correct. The Court can overlook the wrong pleading
filed, if strict compliance with the rules would mean sacrificing
justice to technicality. The imminence of a person being deprived
unjustly of his liberty due to procedural lapse of counsel is a strong
and compelling reason to warrant suspension of the Rules. Hence,
we shall consider the petition for review filed in the Court of
Appeals as a Supplement to the Notice of Appeal. As the Court
declared in a recent decision, '. . . there is nothing sacred about the
procedure of pleadings. This Court may go beyond the pleadings
when the interest of justice so warrants. It has the prerogative to
suspend its rules for the same purpose. . . . Technicality, when it
deserts its proper office as an aid to justice and becomes its great
hindrance and chief enemy, deserves scant consideration from
courts. [Alonzo v. Villamor, et al., 16 Phil. 315]
Conscience cannot rest in allowing a man to go straight to jail,
closing the door to his every entreaty for a full opportunity to be
heard, even as he has made a prima facie showing of a meritorious
cause, simply because he had chosen an appeal route, to be sure,
recognized by law but made inapplicable to his case, under altered
rules of procedure. While the Court of Appeals can not be faulted
and, in fact, it has to be lauded for correctly applying the rules of
procedure in appeals to the Court of Appeals from decisions of the
RTC rendered in the exercise of its appellate jurisdiction, yet, this
Court, as the ultimate bulwark of human rights and individual
liberty, will not allow substantial justice to be sacrified at the altar
of procedural rigor.
In the same resolution, the parties were required to file their
respective memoranda, and in compliance with said resolution,
petitioner filed his memorandum on 25 October 1989, while private
respondent SEAFDEC filed its required memorandum on 10 April
1990. On the other hand, the Solicitor General filed on 13 March
1990 a Recommendation for Acquittal in lieu of the required charged with the crime of Estafa under Article 315, par. 1(b) of the
memorandum. Revised Penal Code, which reads as follows:

Two (2) issues are raised by petitioner to wit: Art. 315. Swindling (Estafa). Any person who shall defraud
another by any of the means mentioned herein below shall be
I. WHETHER OR NOT THE DECISION (sic) OF THE MUNICIPAL
punished by:
CIRCUIT TRIAL COURT (GUIMBAL, ILOILO) AND THE REGIONAL TRIAL
COURT, BRANCH 28 (ILOILO CITY) ARE SUPPORTED BY THE FACTS xxx xxx xxx
AND EVIDENCE OR CONTRARY TO LAW AND THAT THE TWO
COURTS A QUO HAVE ACTED WITH GRAVE ABUSE OF DISCRETION 1. With unfaithfulness or abuse of confidence, namely:
AMOUNTING TO LACK OF JURISDICTION OR HAVE ACTED WITHOUT (a) xxx xxx xxx
OR IN EXCESS OF JURISDICTION.
(b) By misappropriating or converting, to the prejudice of
II. WHETHER OR NOT THE DECISION OF THE HONORABLE another, money, goods, or any other personal property received by
COURT OF APPEALS IS CONTRARY TO LAW, ESTABLISHED the offender in trust or on commission, or for administration, or
JURISPRUDENCE, EQUITY AND DUE PROCESS. under any other obligation involving the duty to make delivery of; or
The second issue has been resolved in our Resolution dated 10 to return, the same, even though such obligation be fatally or
August 1990, when we granted petitioner's second motion for partially guaranteed by a bond; or by denying having received such
reconsideration. We shall now proceed to the first issue. money, goods, or other property.

In order that a person can be convicted under the abovequoted

We find merit in the petition.
provision, it must be proven that he had the obligation to deliver or
It is undisputed that petitioner received a cash advance from private return the same money, good or personal property that he had
respondent SEAFDEC to defray his travel expenses under T.O. 2222. received.
It is likewise admitted that within the period covered by T.O. 2222,
Was petitioner under obligation to return the same money (cash
petitioner was recalled to the head station in Iloilo and given
another assignment which was covered by T.O. 2268. The dispute advance) which he had received? We belive not. Executive Order
arose when petitioner allegedly failed to return P1,230.00 out of the No. 10, dated 12 February 1980 provides as follows:
cash advance which he received under T.O. 2222. For the alleged B. Cash Advance for Travel
failure of petitioner to return the amount of P1,230.00, he was
xxx xxx xxx
4. All cash advances must be liquidated within 30 days after
date of projected return of the person. Otherwise, corresponding
salary deduction shall be made immediately following the expiration
day.
Liquidation simply means the settling of an indebtedness. An
employee, such as herein petitioner, who liquidates a cash advance
is in fact paying back his debt in the form of a loan of money
advanced to him by his employer, as per diems and allowances.
Similarly, as stated in the assailed decision of the lower court, "if the
amount of the cash advance he received is less than the amount he
spent for actual travel . . . he has the right to demand
reimbursement from his employer the amount he spent coming
from his personal funds.12 In other words, the money advanced by
either party is actually a loan to the other. Hence, petitioner was
under no legal obligation to return the same cash or money, i.e., the
bills or coins, which he received from the private respondent.
Article 1933 and Article 1953 of the Civil Code define the nature of a
simple loan.
Art. 1933. By the contract of loan, one of the parties delivers
to another, either something not consumable so that the latter may
use the same for a certain time and return it, in which case the
contract is called a commodatum; or money or other consumable
thing, upon the condition that the same amount of the same kind
and quality shall be paid, in which case the contract is simply called
a loan or mutuum.
Commodatum is essentially gratuitous.
Simple loan may be gratuitous or with a stipulation to pay interest.
In commodatum the bailor retains the ownership of the thing
loaned, while in simple loan, ownership passes to the borrower.
Art. 1953. A person who receives a loan of money or any other
fungible thing acquires the ownership thereof, and is bound to pay
to the creditor an equal amount of the same kind and quality.
The ruling of the trial judge that ownership of the cash advanced to
the petitioner by private respondent was not transferred to the
latter is erroneous. Ownership of the money was transferred to the
petitioner. Even the prosecution witness, Virgilio Hierro, testified
thus:
Q When you gave cash advance to the accused in this Travel
Order No. 2222 subject to liquidation, who owns the funds, accused
or SEAFDEC? How do you consider the funds in the possession of
the accused at the time when there is an actual transfer of cash? . . .
A The one drawing cash advance already owns the money but
subject to liquidation. If he will not liquidate, be is obliged to return
the amount.
Q xxx xxx xxx
So why do you treat the itinerary of travel temporary when in fact
as of that time the accused owned already the cash advance. You
said the cash advance given to the accused is his own money. In
other words, at the time you departed with the money it belongs
already to the accused?
A Yes, but subject for liquidation. He will be only entitled for
that credence if he liquidates.
Q If other words, it is a transfer of ownership subject to a
suspensive condition that he liquidates the amount of cash advance
upon return to station and completion of the travel?

A Yes, sir. (pp. 26-28, tsn, May 8, 1985).

Since ownership of the money (cash advance) was transferred to

petitioner, no fiduciary relationship was created. Absent this
fiduciary relationship between petitioner and private respondent,
which is an essential element of the crime of estafa by
misappropriation or conversion, petitioner could not have
committed estafa.

Additionally, it has been the policy of private respondent that all

cash advances not liquidated are to be deducted correspondingly
from the salary of the employee concerned. The evidence shows
that the corresponding salary deduction was made in the case of
petitioner vis-a-vis the cash advance in question.

WHEREFORE, the decision dated 3 September 1986 of the 15th

Municipal Circuit Trial Court in Guimbal, Iloilo in Criminal Case No.
628, finding petitioner guilty of estafa under Article 315, par. 1 (b) of
the Revised Penal Code and the affirming decision of the Regional
Trial Court, Branch XXVIII, Iloilo City, in Criminal Case No. 20958,
promulgated on 30 July 1987 are both hereby SET ASIDE. Petitioner
is ACQUITTED of criminal charge filed against him.

SO ORDERED.
G.R. No. 76221 July 29, 1991
SPOUSES RUBEN AND LUZ GALANG, petitioners, vs.
COURT OF APPEALS AND LEONARDO DE LEON, respondents.
In an ejectment suit filed by private respondent Leonardo de Leon,
owner of a 6-door apartment at 1177 Quiricada Extension, Tondo,
Manila, against petitioners spouses Ruben and Luz Galang, lessee of
one of the units, the Metropolitan Trial Court of Manila, Branch V,
rendered a decision on February 27, 19861 ordering petitioners
herein to vacate the premises in question, to pay P130 per month
from September 1985 until the premises are vacated, and P1,000
attorney's fees.
On appeal by petitioners herein, the Regional Trial Court of Manila,
Branch XL, affirmed on July 22, 1986 the decision of the
Metropolitan Trial Court of Manila.
Dissatisfied, petitioners elevated the case to the Court of Appeals in
a petition for review. After therein respondents' comment was filed,
the petition was given due course in a resolution dated September
1, 1986, which also required petitioners to deposit the amount of
P80.40 for costs within three (3) days from notice thereof, failure of
which, the petition shall be dismissed. Respondents were required
to answer the petition which shall take the place of respondents'
brief within 10 days from receipt of the resolution and copy of the
petition. Within five (5) days from receipt of the respondents'
answer, petitioners may reply thereto.
Petitioners' counsel, Atty. Cirilo Doronila of the Citizens Legal
Assistance Office (now Public Assistance Office) received said
resolution on September 5, 1986. On September 9, 1986, or four (4)
days from receipt, he filed a motion for extension of 30 days from
September 8, 1986 within which to pay costs.
On September 16, 1986, the Court of Appeals promulgated a
resolution dismissing the petition for review for failure of
petitioners to pay the costs of P80.40 within three (3) days from
notice of the resolution of September 1, 1986. The motion of
petitioners for an extention of time to pay costs was likewise denied
in the same resolution for having been filed one (1) day after due
date, hence out of time.
Petitioners filed a motion for reconsideration contending that their
counsel was not able to notify them of the order to pay costs within
three (3) days from September 5, 1986. In a resolution dated
October 9, 1986, the Court of Appeals denied said motion for
reconsideration.
Meanwhile, on the same date, or on October 9, 1986, petitioners
filed a supplemental motion for reconsideration, followed by a
memorandum in support of the motion and supplemental motion
for reconsideration with prayer for the acceptance of the deposit of
P80.40 and for the issuance of a restraining order.
Acting on the pleadings filed by petitioners as wen as private
respondent's opposition to said motion for reconsideration, the
Court of Appeals promulgated a resolution on October 27, 1986
finding no reason to disturb its resolution of October 9, 1986
denying the motion for reconsideration.
Petitioners are now before this Court seeking to set aside the
questioned resolutions of the respondent Court of Appeals dated
September 16, 1986 and October 9, 1986 and praying that
judgment be rendered ordering respondent appellate court to
admit petitioners' payment of P80.40 as costs in C.A.-G.R. No. SP-
09717 and to decide the case on the merits.
Imputing error and grave abuse of discretion on the Court of
Appeals in dismissing the petition for review for non-payment of
P80.40 as costs within three (3) days from notice and in denying the
motion for extension of time to pay costs for being filed one (1) day
late, petitioners claim that there is nothing in the Rules of Court
governing the procedure in the Court of Appeals (Rule 46 to Rule
55) that requires payment of costs within three (3) days from notice
of the order; that the period of three (3) days from notice for a
party-litigant to perform an act is too short a time for counsel to
contact petitioners who were not themselves duly furnished with a
copy of the resolution of September 1, 1986; that under the Rules of
Court, Batas Pambansa Blg. 129, and the Interim Rules and
Guidelines, ten (10) days is the shortest period within which a party-
litigant in the Court of Appeals should perform a required act.
While it is true that litigation is not a game of technicalities and that
the rules of procedure should not be strictly enforced at the cost of
substantial justice, this does not mean that the Rules of Court may
be ignored at will and at random to the prejudice of the orderly
presentation and assessment of the issues and their just resolution.
Justice eschews anarchy. The Court in said case stated, thus:
Rules of procedure are intended to ensure the orderly
administration of justice and the protection of substantive rights in
judicial and extrajudicial proceedings. It is a mistake to purpose (sic)
that substantive law and adjective law are contradictory to each
other or, as has often been suggested, that enforcement of
procedural rules should never be permitted if it will result in
prejudice to the substantive rights of litigants. This is not exactly
true; the to give effect to both kinds of law, as complementing each
other, in the just and speedy resolution of the dispute between the
parties. Observance of both substantive rights is equally guaranteed
by due process whatever the source of such rights, be it the
Constitution itself or only a statute or a rule of court.
It is not entirely correct for petitioners to claim that the dismissal of
the petition for review of the decision of the RTC in cases falling
under the original exclusive jurisdiction of municipal and city courts
on the ground of non-payment of costs within three (3) days from
notice is without authority and legal basis. The Court of Appeals,
pursuant to its rule- making power under Rule 54 of the Rules of
Court, promulgated an en banc Resolution on August 12, 1971
governing the practice to be observed in elevating to the Court of
Appeals for review decisions of CFIs (now RTCs) in cases falling
under the original exclusive jurisdiction of municipal and city courts.
Section 2 of said en banc Resolution provides, thus:
SECTION 2. Upon filing of the petition, the petitioner shall pay
to the Clerk of the Court of Appeals the docketing fee.1wphi1 If the
Court finds that, from the allegations of the petition, the same is not
prima facie meritorious or is intended manifestly for delay, the
Court may outright dismiss the petition, otherwise, the same shall
be given due course, in which case, the petitioner shall deposit the
amount of eighty pesos (P80.00) for cost within three (3) days from
notice of the resolution gluing due course to the petition. Upon the
failure of the petitioner to deposit the amount for costs within the
said period of three (3) days, the petition shall be dismissed.
Section 22 par. (2) of the Interim or Transitory Rules and Guidelines
Relative to the Implementation of the Judiciary Reorganization Act
of 1981 adopted the Resolution dated August 12, 1971 of the Court
of Appeals as the governing rules of procedure in the review of
appealed cases from the Regional Trial Courts.
As quoted above, the rule is clear that upon failure of the petitioner
to deposit the amount for costs within the said period of three (3)
days, the petition shall be dismissed. Records show that petitioners
filed on September 9, 1986, or one (1) day after expiration of the
three (3) day period, a motion for a 30-day extension of time to
deposit costs. Yet even if said motion were granted by the Court of
Appeals, the purchase and payment by petitioner of Money Order
No. 6618804 On October 13, 1986 for costs was five (5) days late
from the expiration of the supposed 30 day extension on October 8,
1986. Manifestly, there was no serious intention on the part of
petitioners to comply in good faith with the order of the Court of
Appeals.
Procedural rules are not to be belittled or dismissed simply because
their non-observance may have resulted in prejudice to a party's
substantive rights. Like all rules, they are required to be followed
except only for the most persuasive of reasons when they may be
relaxed to relieve a litigant of an injustice not commensurate with
the degree of his thoughtlessness in not complying with the
procedure prescribed.
In the instant case, petitioners have not pleaded the most
persuasive of reasons which would make this Court relax the cited
rule of procedure embodied in the August 21, 1971 Resolution of
the Court of Appeals. The attendant circumstances in cases where a
liberal interpretation of the Rules was adopted by the Court are
absent in the instant case. What is obviously clear is that while the
case was on appeal before the Regional Trial Court, petitioners
ignored the order dated May 14, 1986 of the said RTC to file their
memorandum within ten (10) days from notice. The case was thus
decided on July 22, 1986 without petitioners' memorandum.10 Even
that early stage of the case, petitioner's had already chosen to
ignore the order of the Regional Trial Court. The Court cannot now
stamp with approval the second defiance of the rule of procedure
before the Court of Appeals.
The reason cited that petitioners were not themselves furnished
with a copy of the resolution of September 1, 1986 does not call for
a liberal application of the Rules. It is basic that notice to counsel is
notice to the client. Under Section 2 of Rule 13 of the Rules of
Court, if any of the parties in a case has appeared by an attorney or
attorneys, service upon him shall be made upon his attorney or one
of them, unless service upon the party himself is ordered by the
court. No such order to serve copy of the orders, notices, etc. upon
petitioners herein was given by the court.
Even if the deposit of costs were to be allowed by the Court on the
ground of liberal application of the rules, still, the Court in the
exercise of its discretionary power, instead of remanding the case to
the Court of Appeals, finds that the instant petition lacks merit.
The legitimate need of the owner/lessor to repossess his property
for use of any immediate member of his family is a valid ground to
eject petitioners from the questioned premises under Section 5 par.
(c) of Batas Pambansa Blg. 25. The factual question of whether or
not all the requisites provided under Section 5 par. (c) of Batas
Pambansa are present in the instant case was properly addressed
and resolved by the trial court.
Records show that private respondent's sister Consuelo De Leon is
staying with their parents in a rented apartment of only about 48
square meters at 1111 Quiricada Extension, Tondo, Manila.11 The
intended use of the questioned premises by his parents and sister is
a legitimate need under Section 5 par. (c) of B.P. 25 as private
respondent is the one paying for their monthly rentals. The desire of
private respondent to repossess the questioned premises in order
to provide his parents and sister with a decent place to stay must be
given the traditional respect and recognition. Besides, it was not
clearly proven that private respondent is an owner of any other
property in Manila.
inconvenience and expense, but the law, as the Court aptly
observed in Pascua vs. Court of Appeals,15 is on the side of the
lessors, who and so must be upheld. That law, let it be stressed, is
not less humane because it favors the landlord, for social justice is
for fairness to all or it is no justice at all.
WHEREFORE, in view of the foregoing, the petition is DISMISSED for
lack of merit. This decision is immediately executory. Costs against
petitioners.
SO ORDERED.

It is settled that a lease on a month to month basis is a lease

contract with a definite period.12 As this Court ruled in Baens vs.
Court of Appeals,13 even if the month to month arrangement is on
a verbal basis, if it is shown that the lessor needs the property for
his own use or for the use of any immediate member of the family
or for any of the other statutory grounds to eject under Section 5 of
Batas Pambansa Blg. 25, which happens to be applicable, then the
lease is considered terminated as of the end of the month, after
proper notice or demand to vacate has been given.14 As early as
June 7, 1985, private respondents had demanded that petitioners
vacate the premises in question on September 15, 1985. The
ejectment case was filed on October 7, 1985 after a lapse of more
than three (3) months from receipt of said notice.

While the sympathies of the Court are with the lessees, who must
now face displacement and relocation with all their attendant
GREGORIO DIMARUCOT y GARCIA, Petitioner, - versus - PEOPLE
OF THE PHILIPPINES
G.R. No. 183975 September 20, 2010
For resolution in this petition for review on certiorari under Rule 45
of the 1997 Rules of Civil Procedure, as amended, is the
Resolution[1] dated July 23, 2008 of the Court of Appeals (CA) in CA-
G.R. CR No. 30466 denying petitioners omnibus motion to
reconsider the August 29, 2007 Resolution dismissing his appeal, to
expunge the same from the Book of Entries of Judgment, and to
give petitioner a period of thirty (30) days within which to file the
appellants brief.
The antecedents:
Petitioner is the accused in Criminal Case No. 98-M-98 for
Frustrated Murder in the Regional Trial Court (RTC) of Malolos,
Bulacan, under the following Information:
That on or about the 18th day of August, 1997, in the municipality
of Malolos, province of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused,
armed with an iron pipe and with intent to kill one Angelito Rosini y
Go, did then and there wilfully, unlawfully and feloniously, with
treachery and evident premeditation, attack, assault and hit with
the said iron pipe the said Angelito Rosini y Go, hitting him on his
head, thereby inflicting upon him physical injuries, which ordinarily
would have caused the death of the said Angelito Rosini y Go, thus
performing all acts of execution which should have produced the
crime of murder as a consequence, but nevertheless did not
produce it by reason of causes independent of his will, that is, by
the timely and able medical assistance rendered to the said Angelito
Rosini y Go which prevented his death.
Contrary to law.
After trial, on September 11, 2006, the RTC promulgated its
Decision[3] convicting petitioner of frustrated homicide, and
sentencing him as follows:
WHEREFORE, finding accused GREGORIO aka GEORGE DIMARUCOT
y GARCIA liable of (sic) the lesser offense of Frustrated Homicide,
this Court hereby sentences him to an indeterminate penalty of four
(4) years and two (2) months and one (1) day, as minimum, to eight
(8) years and one (1) day, as maximum, of imprisonment.
Accused is further directed to pay complainant Angelito Rosini y Go,
actual damages broken down as follows: the amount of Nineteen
Thousand One Hundred Ten Pesos and Sixty Five Centavos
(P19,110.65) for the hospitalization/medical bills and the amount of
Thirty Six Thousand Pesos (P36,000.00) as loss of income.
With costs against the accused.
SO ORDERED.
Upon receiving the notice to file appellants brief, petitioner thru his
counsel de parte requested and was granted additional period of
twenty (20) days within which to file said brief.[5] This was followed
by three (3) successive motions for extension which were all
granted by the CA. On August 29, 2007, the CA issued a Resolution
dismissing the appeal, as follows:
Considering the JRD verification report dated July 24, 2007 that the
accused-appellant failed to file his appellants brief within the
reglementary period which expired on June 6, 2007, his appeal is
considered ABANDONED and thus DISMISSED, pursuant to Sec. 1
(e), Rule 50, 1997 Revised Rules of Civil Procedure.
SO ORDERED.
Petitioner filed a motion for reconsideration,[8] his counsel
admitting that he was at fault in failing to file the appellants brief
due to personal problems emanating from his [counsels] wifes
recent surgical operation. It was thus prayed that the CA allow
petitioner to file his appellants brief which counsel undertook to
submit within seven (7) days or until October 4, 2007. By
Resolution[9] dated November 27, 2007, the CA, finding the
allegations of petitioner unpersuasive and considering that the
intended appellants brief was not at all filed on October 4, 2007,
denied the motion for reconsideration. As per Entry of Judgment,
the Resolution of August 29, 2007 became final and executory on
January 4, 2008.[10]
On May 8, 2008, petitioner filed an Omnibus Motion (1) To
Reconsider August 29, 2007 Resolution, (2) To Expunge The Same
From Book Of Entries Of Judgment, and (3) To Give Accused-
Appellant A Final Period Of Thirty Days To File Appellants Brief.
Petitioner reiterated that his failure to file the appeal brief was
solely the fault of his lawyer who is reportedly suffering from
personal problems and depression. He also cited his advanced age
(he will turn 76 on May 30, 2008) and medical condition
(hypertension with cardiovascular disease and pulmonary
emphysema), attaching copies of his birth certificate, medical
certificate and certifications from the barangay and church minister.
In the assailed Resolution dated July 23, 2008, the CA denied the
omnibus motion holding that petitioner is bound by the mistakes
and negligence of his counsel, such personal problems of a counsel
emanating from his wifes surgical operation are not considered
mistake and/or negligence contemplated under the law as to
warrant reconsideration of the dismissal of petitioners appeal for
failure to file appellants brief. Thus, when appellant did not file a
petition before this Court to assail the validity of the August 29,
2007 and November 27, 2007 resolutions, the August 29, 2007
resolution attained finality and entry of judgment thereof is in
order.
The petition has no merit.
Section 8, paragraph 1, Rule 124 of the Revised Rules of Criminal
Procedure, as amended, provides:
SEC. 8. Dismissal of appeal for abandonment or failure to prosecute.
The Court of Appeals may, upon motion of the appellee or motu
proprio and with notice to the appellant in either case, dismiss the
appeal if the appellant fails to file his brief within the time
prescribed by this Rule, except where the appellant is represented
by a counsel de oficio.
xxxx
It is clear under the foregoing provision that a criminal case may be
dismissed by the CA motu proprio and with notice to the appellant if
the latter fails to file his brief within the prescribed time. The phrase
with notice to the appellant means that a notice must first be
furnished the appellant to show cause why his appeal should not be
dismissed.
In the case at bar, there is no showing that petitioner was served
with a notice requiring him to show cause why his appeal should not
be dismissed for failure to file appellants brief. The purpose of such
a notice is to give an appellant the opportunity to state the reasons,
if any, why the appeal should not be dismissed because of such
failure, in order that the appellate court may determine whether or
not the reasons, if given, are satisfactory.
Notwithstanding such absence of notice to the appellant, no grave
abuse of discretion was committed by the CA in considering the
appeal abandoned with the failure of petitioner to file his appeal
brief despite four (4) extensions granted to him and non-compliance
to date. Dismissal of appeal by the appellate court sans notice to
the accused for failure to prosecute by itself is not an indication of
grave abuse. Thus, although it does not appear that the appellate
court has given the appellant such notice before dismissing the
appeal, if the appellant has filed a motion for reconsideration of, or
to set aside, the order dismissing the appeal, in which he stated the
reasons why he failed to file his brief on time and the appellate
court denied the motion after considering said reasons, the
dismissal was held proper. Likewise, where the appeal was
dismissed without prior notice, but the appellant took no steps
either by himself or through counsel to have the appeal reinstated,
such an attitude of indifference and inaction amounts to his
abandonment and renunciation of the right granted to him by law
to prosecute his appeal.
Here, the Court notes the repeated non-observance by petitioner
and his counsel of the reglementary periods for filing motions and
perfecting appeal. While still at the trial stage, petitioners motion to
admit and demurrer to evidence was denied as it was not
seasonably filed (petitioner was granted fifteen (15) days from
August 8, 2001 within which to file demurrer to evidence but filed
his motion to dismiss only on September 4, 2001), in accordance
with Section 23, Rule 119 of the Revised Rules of Criminal
Procedure, as amended.[16] Before the CA, petitioner and his
counsel filed no less than four (4) motions for extension to file brief,
which was never filed nor attached in the motion for
reconsideration of the August 29, 2007 Resolution dismissing the
appeal. The last extension given expired on June 6, 2007, without
any brief submitted by petitioner or his counsel. And even when he
filed the Omnibus Motion on May 8, 2008, still no appellants brief
was attached by petitioner. Neither did petitioner file any petition
before this Court questioning the validity of the August 29, 2007
resolution and the November 27, 2007 denial of his motion for
reconsideration. The dismissal of his appeal having become final, it
was indeed too late in the day for petitioner to file the Omnibus
Motion on May 8, 2008, which was four (4) months after the finality
of the resolution dismissing the appeal.
Having been afforded the opportunity to seek reconsideration and
setting aside of the motu proprio dismissal by the CA of his appeal
for non-filing of the appeal brief, and with his subsequent inaction
to have his appeal reinstated after the denial of his motion for
reconsideration, petitioner cannot impute error or grave abuse on
the CA in upholding the finality of its dismissal order. Non-
compliance with the requirement of notice or show cause order
before the motu proprio dismissal under Section 8, paragraph 1 of
Rule 124 had thereby been cured.[17] Under the circumstances, the
petitioner was properly declared to have abandoned his appeal for
failing to diligently prosecute the same.
Petitioner cannot simply harp on the mistakes and negligence of his
lawyer allegedly beset with personal problems and emotional
depression. The negligence and mistakes of counsel are binding on
the client.[18] There are exceptions to this rule, such as when the
reckless or gross negligence of counsel deprives the client of due
process of law, or when the application of the general rule results in
the outright deprivation of ones property or liberty through a
technicality. However, in this case, we find no reason to exempt
petitioner from the general rule.[19] The admitted inability of his
counsel to attend fully and ably to the prosecution of his appeal and
other sorts of excuses should have prompted petitioner to be more
vigilant in protecting his rights and replace said counsel with a more
competent lawyer. Instead, petitioner continued to allow his
counsel to represent him on appeal and even up to this Court,
apparently in the hope of moving this Court with a fervent plea for
relaxation of the rules for reason of petitioners age and medical
condition. Verily, diligence is required not only from lawyers but
also from their clients.[20]
Negligence of counsel is not a defense for the failure to file the
appellants brief within the reglementary period. Thus, we explained
in Redea v. Court of Appeals:
In seeking exemption from the above rule, petitioner claims that he
will suffer deprivation of property without due process of law on
account of the gross negligence of his previous counsel. To him, the
negligence of his former counsel was so gross that it practically
resulted to fraud because he was allegedly placed under the
impression that the counsel had prepared and filed his appellants
brief. He thus prays the Court reverse the CA and remand the main
case to the court of origin for new trial.
Admittedly, this Court has relaxed the rule on the binding effect of
counsels negligence and allowed a litigant another chance to
present his case (1) where the reckless or gross negligence of
counsel deprives the client of due process of law; (2) when
application of the rule will result in outright deprivation of the
clients liberty or property; or (3) where the interests of justice so
require. None of these exceptions obtains here.
For a claim of counsels gross negligence to prosper, nothing short
of clear abandonment of the clients cause must be shown. Here,
petitioners counsel failed to file the appellants brief. While this
omission can plausibly qualify as simple negligence, it does not
amount to gross negligence to justify the annulment of the
proceeding below. (Emphasis supplied.)
The right to appeal is not a natural right and is not part of due
process. It is merely a statutory privilege, and may be exercised only
in accordance with the law. The party who seeks to avail of the
same must comply with the requirements of the Rules. Failing to do
so, the right to appeal is lost.
Strict compliance with the Rules of Court is indispensable for the
orderly and speedy disposition of justice. The Rules must be
followed, otherwise, they will become meaningless and useless.
WHEREFORE, the petition is DENIED for lack of merit. The
Resolution dated July 23, 2008 of the Court of Appeals in CA-G.R. CR
No. 30466 is AFFIRMED.

SO ORDERED.