THIRD DIVISION

[G.R. No. 215121. June 23, 2021.]

DR. BENIGNO A. AGBAYANI, JR . , petitioner, vs. PEOPLE OF

THE PHILIPPINES, respondent.

NOTICE

Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution
dated June 23, 2021, which reads as follows: HTcADC

"G.R. No. 215121 (Dr. Benigno A. Agbayani, Jr. v. People of the

Philippines). — Challenged in this Petition for Review on Certiorari 1 are the
April 29, 2014 2 and October 23, 2014 3 Resolutions of the Court of Appeals
(CA) in CA-G.R. CR No. 36468 which denied due course and dismissed
outright the appeal of petitioner Dr. Benigno A. Agbayani, Jr. (Agbayani) for
lack of merit.
The Antecedents:
Agbayani was charged before the Metropolitan Trial Court (MeTC) with
reckless imprudence resulting in serious physical injuries in an Information 4
that reads:
That on or about January 5, 2006, in the City of Manila,
Philippines, the said accused, being then the surgeon and/or
orthopedist of complainant Saul Q. Hofilena, Jr., did then and there
voluntarily but without malice, conduct an operation (arthroscopy)
upon said complainant in a reckless manner by using a medical
instrument (arthroscope) that was not sterilized without taking the
necessary precaution to avoid injury to said complainant, taking into
consideration his employment or occupation and degree of
intelligence, causing as a consequence of his said carelessness,
recklessness, negligence, imprudence and lack of precaution, the said
complainant to suffer serious physical injuries on his left knee which
rendered him incapacitated for work and/or labor for more than thirty
(30) days and in fact said complainant had undergone another
operation at St. Luke's Hospital, Quezon City on his left knee to
remove the infection introduced by the accused and subsequent
operation on his right wrist as a result of walking with a cane for a
prolonged period of time, to the damage and prejudice of said Saul Q.
Hofilena. Jr. 5
Agbayani pleaded not guilty to the crime charged. Thereafter, trial on
the merits ensued.
Ruling of the Metropolitan Trial
Court:

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 On July 29, 2013, the MeTC rendered its Decision 6 finding Agbayani
guilty beyond reasonable doubt of Reckless Imprudence Resulting in Serious
Physical Injuries. The dispositive portion of the judgment reads: 7
WHEREFORE, premises considered, the Court finds the accused
Dr. Benigno A. Agbayani, Jr. guilty beyond reasonable doubt of the
crime of Reckless Imprudence Resulting to Serious Physical Injuries.
Accordingly, the said accused is hereby sentenced to suffer the
penalty of imprisonment of two (2) years of prision correccional
minimum.
SO ORDERED. 8

Petitioner appealed before the RTC on September 3, 2013. Thereafter,

on October 11, 2013, the RTC ordered 9 him to file a memorandum of appeal
as per Section 7 (b), Rule 40 of the Rules of Court. The October 11, 2013
Order was received by petitioner on November 19, 2013. Thus, petitioner
had until December 4, 2013 within which to file his appeal memorandum.
However, instead of filing his appeal memorandum, he filed a motion asking
for an extension of 15 days which was granted by the RTC in its December
16, 2013 Order. Hence, petitioner had until December 19, 2013 within which
to file his appeal memorandum. 10 However, he failed to do so.
Ruling of the Regional Trial Court:
In an Order 11 dated December 23, 2013, the RTC dismissed
petitioner's appeal for failure to file an appeal memorandum within the
reglementary period, viz.: 12
As prayed for, the court favorably acted on accused-appellant's
Motion for Extension of time to file Appeal-Memorandum, by giving
him until December 19, 2013, to file the same. However, accused-
appellant failed to comply with the order of the court dated December
16, 2013.
Rule 40, Section 7(b) of the Rules of Court provides:
Section 7. Procedure in the Regional Trial Court. —
(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.
WHEREFORE, for failure to file his memorandum, the court
orders the appeal DISMISSED. 13
Agbayani filed a motion for reconsideration but it was denied by the
RTC in its February 26, 2014 Order. 14 It held that despite the extension
given to petitioner until December 19, 2013 within which to file his appeal
memorandum, he still failed to submit within the reglementary period.
Instead, he filed two other motions for extension on December 19, 2013 and
January 3, 2014 which were received by the RTC on January 15, 2014 and
January 20, 2014, respectively, through registered mail. CAIHTE

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 Aggrieved, petitioner filed a petition for review before the CA alleging
grave abuse of discretion on the part of the RTC for dismissing his appeal for
his failure to file an appeal memorandum within the extended period.
Ruling of the Court of Appeals:
The appellate court dismissed 15 petitioner's appeal for lack of merit. It
ruled that the right to appeal is not a natural right nor a part of due process
but a mere statutory privilege which may be exercised only in the manner
and in accordance with the provisions of law. Thus, petitioner must comply
with the requirements of the Rules of Court and failure to do so would result
to the loss of his right to appeal.
Moreover, the appellate court noted that petitioner failed to append to
his petition the following: (a) Information dated January 22, 2006; (b)
petitioner's Affidavits as well as private complainant's Reply Affidavit filed
before the MeTC; (c) witnesses' affidavits; (d) evidence of the prosecution;
(e) petitioner's Comment and Opposition thereto; (f) petitioner's Answer; (g)
RTC Order dated October 11, 2013; (h) petitioner's motions for extension
filed on December 4, 2013, December 19, 2013 and January 3, 2014; (i)
petitioner's motion for reconsideration of the RTC Order dated December 23,
2013; (j) petitioner's Memorandum on Appeal filed on January 10, 2014; and
(k) all other pleadings filed before the lower courts.
Citing Section 2 (d), Rule 42 of the Rules of Court, the appellate court
ruled that the petition for review must be accompanied by clearly legible
duplicate originals or true copies of the judgments or final orders of both the
first level and second level courts, certified correct by the clerk of court of
the RTC, the requisite number of plain copies thereof and of the pleadings
and other material portions of the record as would support the allegations of
the petition. Non-compliance therewith is a ground for dismissal of the
petition as per Section 3 of the same rule.
Moreover, the Rules of Court are designed for the proper and prompt
disposition of cases. Petitioner is mandated to file his appeal memorandum
within 15 days from notice of the clerk of court under Section 7, Rule 40. His
failure to do so shall be a ground for the dismissal of an appeal. The said rule
explicitly provided that "it shall be the duty of the appellant to submit a
memorandum" and "failure to do so shall be a ground for dismissal of the
appeal." It used the word "shall" which means mandatory and compulsory.
Hence, petitioner is duty-bound to submit his memorandum on appeal; it is
not discretionary on his part.
As regards petitioner's motions for extension, the appellate tribunal
held that the grant or denial of motions for extension, including the duration
thereof, lies within the sound discretion of the court, to be exercised in
accordance with the particulars of each case. Hence, petitioner is not
justified to expect that the extension he sought would be granted. While it is
true that rules of procedure are liberally construed to accord litigants ample
opportunity to prove their respective claims and in order to avoid a possible
denial of substantial justice due to legal technicalities, it is also equally true
that an appeal is a statutory right which requires the appellant to strictly
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 comply with the the Rules of Court.
Petitioner's subsequent motion for reconsideration was denied by the
CA in its October 23, 2014 Resolution. 16
Hence, this Petition 17 for Review on Certiorari under Rule 45.
Issues
Petitioner raised the following errors:
I
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ABUSED ITS
DISCRETION AND ERRED IN DISMISSING PETITIONER'S APPEAL FOR
FAILURE TO ATTACH ALL THE PLEADINGS AND DOCUMENTS
PERTINENT TO THE PETITION FOR REVIEW UNDER RULE 42.
II
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ABUSED ITS
DISCRETION AND ERRED IN UPHOLDING RTC'S DISMISSAL OF HIS
APPEAL FOR FAILURE TO FILE THE APPEAL MEMORANDUM WITHIN
THE PERIOD OF EXTENSION ORIGINALLY GRANTED.
III
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ABUSED ITS
DISCRETION AND ERRED IN FAILING TO CONSIDER AND REVERSE
METC'S ERRONEOUS CONVICTION OF PETITIONER FOR RECKLESS
IMPRUDENCE RESULTING IN SERIOUS PHYSICAL INJURIES. 18
Petitioner's Arguments:
Petitioner claims that he submitted the following pertinent documents
in support of his petition under Rule 42, to·wit: (a) December 23, 2013 Order
of the RTC dismissing his appeal; (b) February 26, 2014 Order of the RTC
denying his motion for reconsideration; (c) July 29, 2013 Judgment of the
MeTC; (d) transcript of stenographic notes (TSN) dated May 25, 2012; and
(e) TSN dated June 5, 2009. Petitioner contends that he did not submit the
motions for extension as they were duly mentioned by the RTC in its
February 26, 2014 Order and the said facts were not in dispute. As to the
Information, the same was already set forth in MeTC July 29, 2013 Order. aScITE

He argues that his failure to attach all pleadings and documents is not
a sufficient ground to dismiss the petition. Petitioner cites several instances
in which the Court liberally construed the rules of procedure in order to
advance the cause of substantial justice. Petitioner claims that a relaxation
of the rules is warranted in his case as he is not guilty of the crime charged
and was wrongfully convicted thereof.
Agbayani likewise insists that the prosecution failed to prove that the
arthroscope used on private complainant Saul Q. Hofilena, Jr. (Hofilena, Jr.)
was not sterile. The trial court merely assumed that the arthroscope was not
sterile. Although the MeTC's July 29, 2013 Decision found petitioner to have
failed to prove that he had observed due care and diligence required of him
under the circumstances, it likewise ruled that private complainant failed to
present evidence to establish the standards in medical practice regarding
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 the sterilization of subject instrument.
Moreover, the prosecution failed to prove that the infection on Hofilena,
Jr.'s knee was due to petitioner's alleged negligence during the arthroscopy.
Although it presented pathologist Dr. Debbie Dela Fuente (Dr. Dela Fuente)
to prove that Hofilena, Jr.'s knee was infected as well as the source of its
infection, and medical technologist Christine Marie Javelona Pascual, who
conducted the laboratory test, both medical practitioners did not take a
sample tissue on Hofilena, Jr.'s knee. The prosecution failed to identify and
present the person who allegedly took the sample tissue which was the
subject of the laboratory examination. Thus, the results of the laboratory
test could not serve as proof that Hofilena, Jr.'s knee was actually infected.
Dr. Dela Fuente herself testified that the results of the laboratory
examination could not categorically prove the alleged negligence of
petitioner. Hence, the prosecution failed to prove his guilt beyond
reasonable doubt.
Respondent's Arguments:
On the other hand, the respondent argues that petitioner's failure to
attach the pertinent documents cited by the appellate court in its April 29,
2014 Resolution was fatal to his cause. Petitioner failed to submit all the
lacking requirements without any plausible explanation when he filed a
motion for reconsideration of the April 29, 2014 Resolution.
Respondent insists that petitioner's counsel's excuse of "heavy
workload," "almost daily court hearings," and "submission of equally
important pleadings," as grounds for extension of period to file his appeal
memorandum, were unjustified. The relaxation of procedural rules can only
be made under justifiable circumstances which the petitioner failed to do.
The grant or denial of a motion for extension lies in the sound discretion of
the appellate court in accordance with the particulars of each case. Hence,
petitioner is not justified to presume that his motion for extension would be
granted and for the duration it sought for.
Finally, only questions of law may be raised in a Petition for Review on
Certiorari. It is not the function of the Court to weigh all over again the
evidence already considered in the proceedings before the trial court. The
issue on the sterilization or non-sterilization of the arthroscope used on
Hofilena, Jr.'s knee is obviously factual as it requires a reassessment and re-
evaluation of the the weight, credence and probative value of the evidence
presented by the parties before the MeTC.
Our Ruling
The petition is without merit.
Section 2 (d), Rule 42 of the Rules of Court requires the submission of
clearly legible duplicate originals or true copies of the judgments or final
orders of both lower courts, certified correct by the clerk of court of the RTC,
the requisite number of plain copies thereof and of the pleadings and other
material portions of the record as would support the allegations in the
petition. Agbayani's Petition for Review before the appellate court lacked
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 material portions of the record that would support his allegations in the
petition which, as enumerated by the appellate court, are as follows: (a)
Information dated January 22, 2006; (b) petitioner's Affidavits as well as
private complainant's Reply Affidavit filed before the MeTC; (c) witnesses'
affidavits; (d) evidence of the prosecution; (e) petitioner's Comment and
Opposition thereto; (f) petitioner's Answer; (g) RTC Order dated October 11,
2013; (h) petitioner's motions for extension filed on December 4, 2013,
December 19, 2013 and January 3, 2014; (i) petitioner's motion for
reconsideration of the RTC Order dated December 23, 2013; (j) petitioner's
Memorandum on Appeal filed on January 10, 2014; and (k) all other
pleadings filed before the lower courts.
Petitioner did not deny his omission to attach the above-mentioned
pertinent pleadings and portions of the records to his Petition. When he filed
his motion for reconsideration of the appellate court's April 29, 2014
Resolution, he still failed to attach the following material documents despite
being informed by the appellate court, to wit: (a) petitioner's Affidavits as
well as private complainant's Reply Affidavit filed before the MeTC; (b)
witnesses' affidavits; (c) evidence of the prosecution; (d) petitioner's
Comment and Opposition thereto; and, (e) petitioner's Answer.
I n Barcenas vs. Spouses Tomas , 19 we declared that petitioners are
required by the Rules of Court to provide the appellate court with certified
true copies of the judgments or final orders subject of review, as well as the
material portions of the record. These documents and pleadings are needed
by the reviewing courts in resolving whether to give due course to the
petition. Hence, they should not be perfunctorily ignored or violated. Failure
to comply with these rules hinders the review of cases on the merits and
deprives the appellate court of definitive bases for its rulings, results in
frustrating delays, and disrupts the orderly administration of justice.
Concededly, any infirmity on the form of the petition may be waived to
give the parties a chance to argue their causes and defenses on the merits.
20 The concerned party must, however, offer a satisfactory explanation and

subsequently comply with the requirements to justify a relaxation of the

rules. 21 Unfortunately, petitioner failed to offer any reasonable justification
or to comply with the deficiencies in his motion for reconsideration
notwithstanding the enumeration of the lacking documents made by the
appellate court.
As regards petitioner's failure to timely submit his appeal
memorandum before the RTC, Section 7 (b), Rule 40 of the Rules of Court
explicitly states that failure of the appellant to file a memorandum within 15
days from filing a notice of appeal shall be a ground for the dismissal or such
appeal. The issue on whether the filing of a memorandum is mandatory or
not has already been settled in Enriquez v. Court of Appeals, 22 viz.: DETACa

Rule 40, Section 7 (b) provides that, "it shall be the duty of
the appellant to submit a memorandum" and failure to do so
"shall be a ground for dismissal of the appeal." The use of the
word "shall" in a statute or rule expresses what is mandatory
and compulsory. Further, the Rule imposes upon an appellant the
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 "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." 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. 23
A perusal of the records reveal that petitioner was granted an
extension of 15 days or until December 19, 2013 within which to file his
appeal memorandum. However, instead of submitting his memorandum,
petitioner filed two more motions for extension with the expectation that the
same would be granted by the RTC. Petitioner should not expect that his
motions for extension would be granted much less for the period sought for.
His counsel's excuse of "heavy workload" does not persuade. It bears
stressing that petitioner had 15 days to file a notice of appeal, another 15
days to file a memorandum from such notice and an extension of 15 days to
file the said memorandum. In sum, petitioner had 45 days to prepare his
appeal memorandum which is more than sufficient for his counsel to
complete the drafting, printing, proofreading and filing of his memorandum.
At this juncture, it must be stressed that an appeal is a statutory right
and the party who intends to appeal must comply with the rules and
procedures governing appeals, otherwise, the right to appeal may be lost. 24
Hence, petitioner has only himself to blame for the dismissal of his appeal.
Finally, petitioner raised the issue of the non-sterilization of the
arthroscope he inserted on Hofilena, Jr.'s knee during the operation which
may have caused the growth of bacterial infection on the latter's knee. Well-
settled is the rule that in a petition for review on certiorari under Rule 45,
this Court only dwells on questions of law and not questions of facts. There is
a question of law when doubts or differences arise as to what law pertains to
a certain state of facts, and a question of fact when the doubt pertains to the
truth or falsity of alleged facts. 25 Obviously, the sterilization or non-
sterilization of the arthroscope is a question of fact as it involved a review of
the probative value of the evidence presented before and considered by the
MeTC. Besides, petitioner had the opportunity to raise factual issues before
the RTC and CA. However, he failed to take advantage of the opportunity
when he unjustifiably and unmeritoriously failed to submit an appeal
memorandum.
In fine, we hold that the appellate court committed no reversible error
when it dismissed outright petitioner's appeal for lack of merit. However, We
deem it necessary to modify the penalty imposed by the MeTC. Article 365 of
the Revised Penal Code provides that:
ART. 365. Imprudence and negligence. — Any person
who, by reckless imprudence, shall commit any act which, had
it been intentional, would constitute a grave felony, shall
suffer the penalty of arresto mayor in its maximum period to
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 prision correccional in its minimum period ; if it would have
constituted a less grave felony, the penalty of arresto mayor in its
minimum and medium periods shall be imposed. x x x
Considering the circumstances of this case and applying the
Indeterminate Sentence Law, We deem it proper to impose the penalty of
one (1) month and one (1) of arresto mayor, as minimum, to one (1) year
and one (1) day of prision correccional, as maximum.
WHEREFORE, the Petition for Review on Certiorari is hereby DENIED.
The April 29, 2014 and October 23, 2014 Resolutions of the Court of Appeals
(CA) in CA-G.R. CR No. 36468 are hereby AFFIRMED with MODIFICATION
that Benigno A. Agbayani, Jr. shall suffer the penalty of imprisonment of one
(1) month and one (1) day of arresto mayor, as minimum, to one (1) year
and one (1) day of prision correccional, as maximum. HEITAD

SO ORDERED."

By authority of the Court:

(SGD.) MISAEL DOMINGO C. BATTUNG

III
Division Clerk of Court

Footnotes
1. Rollo , pp. 12-46.

2. CA rollo, pp. 279-299; penned by Associate Justice Ramon M. Bato, Jr. and
concurred in by Associate Justices Rodil V. Zalameda (now a member of the
Court) and Maria Elisa Sempio Diy.
3. Id. at 204.
4. Id. at 160-161.

5. Id. at 160.
6. Id. at 43-51.
7. Id. at 51.
8. Id.

9. Id. at 62.
10. Id. at 40.
11. Id.
12. Id.
13. Id.

14. Id. at 41-42.

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 15. Supra note 2.
16. Supra note 3.
17. Supra note 1.

18. Id. at 19-20.

19. 494 Phil. 565 (2005).
20. Id.
21. Id.
22. 444 Phil. 419 (2003).

23. Id.
24. Spouses Lebin v. Mirasol, 672 Phil. 477, 494 (2011).
25. Barcenas v. Spouses Tomas, supra note 19, citing Spouses Calvo v. Spouses
Vergara, 423 Phil. 939, 947, (2001) citing Reyes v. Court of Appeals , 328
Phil. 171, 179 (1996); China Road and Bridge Corporation v. Court of
Appeals, 401 Phil. 590 (2000).

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