FIRST DIVISION

[G.R. NO. 151376: February 22, 2006]

FILOMENO G. GONZALES, Petitioner, v. QUIRINO G.
GONZALES, represented by EUFEMIA GONZALES, Respondent.

DECISION

CHICO-NAZARIO, J.:

The Case

Before us is a Petition for Review on Certiorari under Rule 45 of the

Rules of Court, seeking to reverse and set aside, in part, the
Decision1 dated 26 August 1999, and the Resolution2 dated 08
January 2002, both promulgated by the Court of Appeals (CA) in
CA-G.R. SP No. 47348, in so far as the aforesaid decision 1)
reversed and set aside the portion of the Order3 dated 11 November
1997 of Honorable Apolinario D. Bruselas, Jr., presiding judge of
Regional Trial Court (RTC) of Quezon City, Branch 93, dismissing
the appeal filed by herein respondent Quirino G. Gonzales for failure
to file the Memorandum of Appeal within the reglementary period
provided for under Sec. 7 (b) of Rule 40 of the Rules of Civil
Procedure; and 2) directed the RTC to give due course to
respondent's appeal and decide the case based on the records.

The Facts

The present petition stemmed from a complaint4 for ejectment

dated 11 December 1995 filed by herein petitioner Filomeno G.
Gonzales against herein respondent Quirino G. Gonzales before the
Metropolitan Trial Court (MTC) of Quezon City, Branch 35, docketed
as Civil Case No. 35-14327.

During the pendency of the case, on 30 April 1996, respondent

Quirino B. Gonzales passed away. His wife, Eufemia Gonzales, was
substituted in his stead as party defendant.
In a Motion5 dated 10 April 1997, respondent moved to suspend the
proceedings before the MTC on the ground that she instituted before
the RTC of Quezon City, Branch 84, a case for annulment of title,
docketed as Civil Case No. Q-97-30360, against petitioner.

In an Order6 dated 28 April 1997, the MTC denied the

aforementioned motion "as suits for annulment of sale and title
does (sic) not abate ejectment actions respecting the same property
(citations omitted);" and reiterated its earlier order submitting said
case for decision.

In a Decision7 dated 01 August 1997, the MTC rendered judgment in

favor of petitioner, the dispositive part of which states that:

WHEREFORE, in view of the foregoing, judgment is hereby rendered

in favor of the plaintiff Filomeno Gonzales against the defendant
Eufemia Gonzales ordering the latter the following:

1) Ordering the defendant Eufemia Gonzales, and all persons

claiming rights under her to vacate and surrender peacefully the
subject premises to the plaintiff;

2) Ordering the defendant to pay rentals from November 22, 1995

up to the present in the amount of P5,000.00 a month until
defendants have vacated the leased premises, as reasonable
compensation of the use of the premises;

3) To pay the amount of P10,000.00 as attorney's fees, and

4) To pay the cost of suit.8

Respondent seasonably appealed9 the foregoing decision to the RTC,

which docketed the appeal as Civil Case No. Q-97-32061.

In an Order dated 18 September 1997, the RTC of Quezon City,

Branch 93, directed respondent to "x x x submit a memorandum
which shall briefly discuss the errors imputed to the lower court, x x
x."10 Further, it warned the party that "[f]ailure on the part of the
defendant-appellant to file a memorandum as directed x x x shall be
a cause for the dismissal of the appeal."11
Instead of filing the necessary memorandum of appeal, however,
respondent filed a motion to consolidate12 the present case with the
one she instituted against petitioner for annulment of title filed
before the RTC of Quezon City, Branch 84, docketed as Civil Case
No. Q-97-30360.

On 29 October 1997, petitioner filed a Motion for Execution Pending

Appeal13 essentially moving for the immediate execution of the
appealed judgment of the MTC, as provided for under Section 1914,
Rule 70 Rules of Court. The motion alleged as basis respondent's
failure to: 1) file a supresedeas bond; and 2) periodically deposit
the rentals falling due during the pendency of the appeal.

On 31 October 1997, the motion to consolidate the two

abovementioned cases was, denied15 for lack of merit.

On 07 November 1997, the court a quo (RTC) ordered16 the

issuance of the writ of execution.

On 11 November 1997, the court a quo then directed17 the dismissal

of respondent's appeal for failing to file the necessary memorandum
of appeal, to wit:

Before this court is an Appeal from a decision rendered by the

Metropolitan Trial Court, Branch 35, Quezon City, in an action for
Ejectment filed by defendant-appellant through counsel.

A perusal of the record reveals that defendant-appellant had failed

to comply with the court order dated 18 September 1997 directing
compliance with Section 7 (b), Rule 40 of the 1997 Rules of Court.

In view thereof, the court hereby orders the dismissal of the

appeal.ςηαñrοblεš νιr†υαl  lαω lιbrαrÿ

On 03 December 1997, respondent filed an Omnibus Urgent Motion

for Reconsideration.18 In said omnibus motion, she prayed for the
reconsideration of the 07 and 11 November 1997 Orders of the
court a quo. As regards the 07 November 1997 Order directing the
issuance of a writ of execution, respondent's counsel argued that
respondent's failure to deposit a supersedeas bond was because of
the exorbitant amount earlier fixed by the MTC for which said
counsel filed a motion to fix supersedeas bond. As regards the 11
November 1997 Order of Dismissal, respondent's counsel explained
the he inadvertently failed to file said appeal memorandum due to
his "voluminous" workload. Respondent's counsel prayed that he be
allowed to submit the required appeal memorandum; or, since he
had already fully discussed respondent's position in the
memorandum19 filed before the MTC, that he be allowed to just
adopt the same respondent's memorandum of appeal.

On 26 November 1997, the court a quo issued the writ of

execution.20

On 10 March 1998, the court a quo denied21 respondent's Omnibus

Urgent Motion for Reconsideration dated 03 December 1997, for
lack of merit and for being merely dilatory. The court also noted the
branch Sheriff's Return indicating implementation of the issued writ
of execution.

On 13 March 1998, petitioner filed an Omnibus Motion22 praying that

the court command the branch Sheriff to fully enforce and execute
the 01 August 1997 Decision of the MTC; and for the court to also
deny and declare respondent's Omnibus Urgent Motion for
Reconsideration as nothing but a dilatory tactic.

On 20 March 1998, an Order23 was issued partially denying the

foregoing omnibus motion for being moot in view of the 10 March
1998 Order. The court a quo, however, granted the prayer to
command the deputy sheriff to fully enforce and execute the MTC
decision considering that the money judgment aspect of the
decision does not appear to have been enforced and executed.

On the same date, 20 March 1998, respondent filed a Motion for

Reconsideration of the Order of the Honorable Court Dated 10
(March) 199824 praying for the reconsideration of the order of the
court a quo denying her Omnibus Urgent Motion for
Reconsideration.
The preceding motion was likewise denied25 by the court a quo for
lack of merit and for being in the nature of a second motion for
reconsideration, which is a prohibited pleading.

Undaunted, respondent subsequently filed a Petition for Review on

Certiorari26 before the CA essentially seeking to annul and set aside:
1) the 10 March 1998 Order of the court a quo  denying her
Omnibus Urgent Motion for Reconsideration; and 2) the 27 March
1998 Order denying her second motion for reconsideration.

In her petition, respondent assigned two errors allegedly committed

by the court a quo: 1) that "the court a quo erred and exercised
grave abuse of its discretion in granting execution pending appeal
there being a pending motion to fix Supersedeas (sic) bond which is
still unresolved by the Court;" and 2) that "the court a quo erred
and gravely abused its discretion in dismissing the appeal there
being a prayer on the part of the defendants-appellants that instead
of filing an appeal brief defendants-appellants will instead adopt the
position paper filed in the Metropolitan Trial Court as their brief on
appeal."

Six days later, or on 14 April 1998, respondent's counsel filed a

Manifestation and Motion to Admit Certified True Xerox Copies of
Annexes27 alleging that he inadvertently failed to file the certified
true copies of the annexes; and moved that he be allowed to submit
the same.

On 26 August 1999, the CA promulgated the assailed Decision,28 the

dispositive part of which states thus:

WHEREFORE, the instant petition is partially GRANTED. Accordingly,

the Order dated November 7, 1997 is hereby AFFIRMED and the
Order dated November 11, 1997 is hereby REVERSED and SET
ASIDE. The public respondent is directed to decide the case on the
basis of the records of the case.

The motion for reconsideration filed by petitioner was subsequently

denied by the CA in its assailed Resolution dated 08 January 2002.

Hence, this petition.

 The Issues

Petitioner now comes to this Court via a Petition for Review

on Certiorari under Rule 45 of the Revised Rules of Court predicated
on the following errors.

I.

THE COURT OF APPEALS ERRED IN GRANTING DUE COURSE TO

THE PETITION AS IT WAS FILED OUT OF TIME, AND THERE WAS NO
COMPLIANCE WITH MANDATORY REQUIREMENTS; and

II.

ASSUMING ARGUENDO THAT THE APPEAL WAS PROPERLY

ALLOWED, THE COURT OF APPEALS ERRED IN SETTING ASIDE THE
REGIONAL TRIAL COURT'S DISMISSAL OF THE APPEAL FILED
BEFORE IT BY RESPONDENT, DUE TO RESPONDENT'S FAILURE TO
COMPLY WITH THE ORDER OF THE REGIONAL TRIAL COURT TO
FILE A MEMORANDUM.

Simply put, the present petition raises as a primary issue the

question of whether or not the CA committed reversible error in
reversing and setting aside the order of the court a quo dismissing
respondent's appeal for failure to file the memorandum of appeal.
And, in the event that said order of dismissal is proper, whether or
not the CA committed reversible error in granting due course to
respondent's petition despite its numerous procedural defects.

The Court's Ruling

We grant the petition.

Petitioner faults the appellate court for overlooking "x x x the

significant fact that respondent manifested her intention to adopt
the Position Paper filed before the Metropolitan Trial Court as her
memorandum in the Regional Trial Court, only after the Regional
Trial Court had already issued an order dismissing respondent's
appeal and long after the period to file a Memorandum on (sic)
Appeal had expired."29 For such reason, in issuing said order, the
court a quo only acted in accord with and in compliance to, the clear
and mandatory provisions of the Rules of Court.

Further, petitioner reduces respondent's manifestation as a mere

afterthought; an attempt at circumventing the effects of the Rules.

Respondent, on the other hand, counters that there is nothing in the

Rules of Court that prohibits a party to adopt pleadings and
arguments which were already embodied in the record, fully
discussed and supported by evidence, the appeal in the RTC being a
review of evidence presented before the MTC. She went on further
to rationalize that "(r)ules must not be strictly construed to defeat
substantial right of the litigants. The rules must be interpreted
liberally."

In passing judgment on the petition, the CA agreed in respondent's

assertion that the court a quo erred in dismissing her appeal
considering that she has opted to adopt her position paper filed
before the MTC as her memorandum of appeal.

Moreover, the CA ratiocinated that "[n]othing in the Rules of Court

prohibits adoption of some pleading and arguments which are
already embodied in the record, fully discussed and supported by
evidence, the instant appeal being a review of evidences (sic)
presented before the Metropolitan Trial Court." Adding further, that
"[a]ppeal from the Metropolitan Trial Court to the Regional Trial
Court is merely a review of the records, facts and evidence
submitted (sic) before the Metropolitan Trial Court, hence, if the
parties desire to adopt (the) same argument and evidence
submitted before the Metropolitan Trial Court the appellate court
may consider the same facts and evidence adopted by the party,
the Regional Trial Court being an appellate court and no new
evidence will be presented in the appeal."

The issue of whether or not the CA committed reversible error in

reversing and setting aside the order of the court a quo  dismissing
respondent's appeal for failing to file the memorandum of appeal is
best answered by the Rules of Court, specifically, Section 7 (b) of
Rule 40 of the 1997 Revised Rules of Court, to wit:
SEC. 7. Procedure in the Regional Trial Court.'

x x x x.

(b) Within fifteen (15) days from such notice, it shall be the duty of
the appellant to submit a memorandum which shall briefly discuss
the errors imputed to the lower court, a copy of which shall be
furnished by him to the adverse party. Within fifteen (15) days from
receipt of the appellant's Memorandum, the appellee may file his
memorandum. Failure of the appellant to file a memorandum shall
be a ground for dismissal of the appeal.

x x x x. [Emphasis supplied.]

The present fundamental issue vexing the parties has already been
squarely addressed by this Court in the case of Enriquez v. Court of
Appeals.30  In said case, we had the occasion to elucidate on the
meaning and consequence of the aforequoted provision. For this
reason, we deem it apt to quote in toto pertinent portions of the
ponencia, viz:

The use of the word "shall" in a statute or rule expresses what is

mandatory and compulsory (citation omitted). Further, the Rule
imposes upon an appellant the "duty" to submit his memorandum.
A duty is a "legal or moral obligation, mandatory act, responsibility,
charge, requirement, trust, chore, function commission, debt,
liability, assignment, role, pledge, dictate, office, (and) engagement
(citation omitted)." Thus, under the express mandate of said Rule,
the appellant is duty-bound to submit his memorandum on appeal.
Such submission is not a matter of discretion on his part. His failure
to comply with this mandate or to perform said duty will compel the
RTC to dismiss his appeal.

In rules of procedure, an act which is jurisdictional, or of the

essence of the proceedings, or is prescribed for the protection or
benefit of the party affected is mandatory (citation omitted).

The raison d'être for such necessity was likewise made clear in the
same case. The ponencia put it in plain words:
[I]n appeals from inferior courts to the RTC, the appellant's brief is
mandatory for the assignment of errors is vital to the decision of the
appeal on the merits. This is because on appeal only errors
specifically assigned and properly argued in the brief or
memorandum will be considered except those affecting jurisdiction
over the subject matter as well as plain and clerical errors (citation
omitted). Otherwise stated, an appellate court has no power to
resolve an unassigned error, which does not affect the court's
jurisdiction over the subject matter, save for a plain or clerical error
(citation omitted).

It is true that the Rules should be interpreted so as to give litigants

ample opportunity to prove their respective claims and that a
possible denial of substantial justice due to legal technicalities
should be avoided (citation omitted). But it is equally true that an
appeal being a purely statutory right, an appealing party must
strictly comply with the requisites laid down in the Rules of Court
(citation omitted). In other words, he who seeks to avail of the right
to appeal must play by the rules (citation omitted). This the
petitioner failed to do when she did not submit her memorandum of
appeal x x x. That she lost her case is not the trial court's fault but
her own.

Bearing in mind the prior discussion, it was obligatory on the part of

respondent, being the appellant in the court a quo, to submit or file
a memorandum of appeal within fifteen (15) days from receipt of
the order enjoining the filing of said pleading. And failing such duty,
consequently, it was incumbent upon the court a quo to dismiss the
appeal as the Rules unmistakably commanded.

Though, as pointed out by the CA in its decision, nothing in the

aforecited provision prohibits the adoption of a party's position
paper earlier filed, such option must be manifested to the court a
quo during the period within which to file the required memorandum
of appeal. In the case at bar, the records of the case bear out the
fact that when respondent manifested her desire to adopt her
position paper in the MTC, the dismissal of the appeal had already
been ordered. In fact, said manifestation was contained in the same
pleading praying for the reconsideration of the court a quo's order
of dismissal.

That the fundamental cause of the dismissal of respondent's appeal

was due to her failure to file the obligatory memorandum of appeal
within the period allotted was extremely palpable. Respondent's
counsel, Atty. Arturo Z. Temanil, made no secret of the fact that he
neglected to heed the order of the court a quo regarding the
submission of the memorandum of appeal. In the Omnibus Urgent
Motion for Reconsideration,31 filed on 03 December 1997, in praying
for the reconsideration of the Order of Dismissal, among other
things, respondent's counsel tried to excuse his inaction by saying
that his failure to file the memorandum of appeal was inadvertent
and, also, equally due to his "voluminous" workload. He then prayed
that he be allowed to submit the required appeal memorandum; or,
since he had already fully discussed respondent's position in the
memorandum32 filed before the MTC, that he be allowed to just
adopt aforesaid memorandum33 as her appeal memorandum.

In the case at bar, respondent did not even come near to

substantially complying with the requirement of the Rules of Court,
as such, the court a quo had no basis upon which it could actually
and completely dispose of the appeal in view of the absence of
issues or errors raised for its consideration, specifically assigned and
argued before it. All told, therefore, the court a quo, in dismissing
the respondent's appeal, was only being subservient to the mandate
of the Rules of Court, particularly Section 7 (b) of Rule 40.

Verily, We feel the need to articulate a very disturbing observation.

Just why an exceedingly significant fact - the failure of respondent
to submit the mandatory memorandum of appeal within the period
provided for as the fundamental cause of the dismissal of her appeal
- was disregarded disturbs us no end.

Respondent insists on a liberal construction and application of the

Rules of Court so as not to defeat the ends of justice and deprive
her of her substantial right.

We think not.
In extraordinary circumstances and for compelling grounds, we
have disregarded procedural or technical defects in order to set
right an arrant injustice. To our mind, though, respondent was the
least prejudiced by the progression of events in the case at bar. She
has shown no compelling reason or exceptional cause for us to relax
the requirements of Section 7 (b) of Rule 40 of the Rules of Court,
even if we could.

As early as 1997, the dismissal of the respondent's appeal had

already become a fact. By the undue delay of putting to rest the
final judgment in his favor, petitioner has suffered an injustice. We
must state here for the respondent and her counsel and all others
similarly inclined to resort to the same or related scheme or
stratagem that this Court cannot condone or tolerate any abuse of
the judicial process.34

"The Court views with disfavor the unjustified delay in the

termination of cases. Litigation must end and terminate sometime
and somewhere and it is essential to an effective and efficient
administration of justice that, once a judgment has become final,
the winning party be not, through a mere subterfuge, deprived of
the fruits of the verdict. Courts must therefore guard against any
scheme calculated to bring about that result. Constituted as they
are to put an end to controversies, courts should frown upon any
attempt to prolong them."35

Let it be stressed once again that "[t]here should be a greater

awareness on the part of litigants that the time of the judiciary,
much more so of this Court, is too valuable to be wasted or frittered
away by efforts, far from commendable, to evade the operation of a
decision final and executory, especially so, where, as shown in the
present case, the clear and manifest absence of any right calling for
vindication, is quite obvious and indisputable. x x x. The aim of a
lawsuit is to render justice to the parties according to law.
Procedural rules are precisely designed to accomplish such worthy
objective. Necessarily, therefore, any attempt to pervert the ends
for which they are intended deserves condemnation."36

Lawyers, as officers of the court, have an obligation to aid in the

proper administration of justice. They fail to carry out this sworn
duty by filing pointless petitions that only add to the workload of the
judiciary. A prudent examination or analysis of the facts and the law
should advise them when a case, such as this, should not be
permitted to be filed to merely clutter the already congested judicial
dockets. Petitions such as the one filed before the CA in the case at
bar, assailing the order of dismissal by the court a quo, do nothing
to advance the cause of law or their clients for the sheer lack of
merit hardly deserve the attention of the courts as they are not
even worth the paper they are printed on.

Prescinding from all of the above, we see no reason to further

discuss the procedural issue raised in the petition. In fine, it was
extremely grave error for the CA to reverse and set aside the court
a quo's 11 November 1997 Order of Dismissal which was in full
accord with law and jurisprudence.

WHEREFORE, in view of the foregoing, the instant petition is

GRANTED. The Decision dated 26 August 1999, and the Resolution
dated 08 January 2002, both rendered by the Court of Appeals in
CA-G.R. SP No. 47348, are hereby REVERSED and SET ASIDE.
Accordingly, the Order of Dismissal of the Regional Trial Court dated
11 November 1997 is REINSTATED. Costs against respondent
Eufemia Gonzales.

SO ORDERED.

Endnotes:

1
 Penned by Associate Justice Demetrio G. Demetria and concurred in by Associate Justices Jesus M. Elbinias and Ramon A.
Barcelona; Annex "D" of the Petition; rollo, pp. 23-29.

2
 Annex "E" of the Petition; rollo, pp. 30-31.

3
 Records, p. 246.

4
 Id., pp. 1-7.

5
 Records, pp. 138-139.
6
 Id., p. 158.

7
 Penned by Hon. Gregorio D. Dayrit, Presiding Judge, MTC, Br. 35 - Q.C.; Id., pp. 172-176.

8
 Id., p. 176.

9
 Notice of Appeal dated 11 August 1997; Id., p. 177.

10
 Id., p. 185.

11
 Id.

12
 Id., pp. 186-187

13
 Id., pp. 238-240.

14
 Section 19. Immediate execution of judgment. xxx

xxxx

x x x Should the defendant fail to make the payment above prescribed from time during the pendency of the appeal, the
appellate court, upon motion of the plaintiff, and upon proof of such failure, shall order the execution of the judgment
appealed from with respect to the restoration of possession, x x x.

15
 Records, p. 237.

16
 Id., p. 245.

17
 Id., p. 246.

18
 Id., pp. 248-252.

19
 Position paper.

20
 Records, pp. 253(a) -253(b).

21
 Id., p. 262.

22
 Id., pp. 265-270.

23
 Id., p. 276.

24
 Id., pp. 277-282.

25
 In an Order dated 27 March 1998; Id., p. 284.

26
 CA rollo, pp. 08-52.

27
 Id., pp. 56-65.

28
 Id., pp. 164-169.

29
 Petition, p. 13; rollo, p. 48.

30
 444 Phil. 419, 428 (2003).
31
 Records, pp. 248-252.

32
 Position paper.

33
 Id.

34
 Chua Huat, et al., v. Courtof Appeals, et al., GR No. 53851 & 63863, July 09, 1991, 199 SCRA 1, 15.

 Lim v. Jabalde, G.R. No. 36786, April 17, 1989, 172 SCRA 211, 224, citing Banogan v. Serna, G.R. No. L-35469, October
35

09, 1987, 154 SCRA 593, 597.

36
 Rubenito v. Lagata, G.R. No. 140959, December 21, 2004, 447 SCRA 417, 426.