RULE 45 APPEAL BY CERTIORARI TO THE SC Distinguished from RULE 65 G.R. No.

. 172299 April 22, 2008 ALFREDO TAGLE, petitioner, vs.EQUITABLE PCI BANK (Formerly Philippine Commercial International Bank) and the HONORABLE HERMINIA V. PASAMBA, Acting Presiding Judge, Regional Trial Court-Branch 82, City of Malolos, Bulacan, respondents. According to petitioner Alfredo, the subject property is registered in his name and was constituted as a Family Home. That he and his wife never mortgage the property to respondent E-PCI It was Josefino Tagle (Josefino), who was not the owner of the subject property, who mortgaged the same with respondent E-PCI. Josefino was religiously paying the installments on his mortgage obligation and had paid more than half thereof. Josefino, however, passed away. Petitioner Alfredo was then forced to assume Josefinos outstanding mortgage obligation. Even as petitioner Alfredo was already paying Josefinos mortgage obligation in installments, respondent E-PCI still foreclosed the mortgage on the subject property. On the other hand, respondent E-PCI recounts that the subject property was formerly registered in the name of petitioner Alfredo. It was mortgaged, pursuant to a Special Power of Attorney executed by petitioner Alfredo, to secure the obligation of the spouses Josefino and Emma Tagle with respondent E-PCI. Respondent E-PCI foreclosed the mortgage on the subject property upon default in payment by spouses Josefino and Emma, and upon the expiration of the period of redemption. Respondent filed with RTC a Petition for Issuance of Writ of Possession of the subject property. Petitioner Alfredo filed a Motion to Stop Writ of Possession on the ground that the subject property is a Family Home which is exempt from execution, forced sale or attachment. With Article 155 in application, it is crystal clear that this instant case does not fall under the exemptions from execution provided in the Family Code, as the case stemmed from the mortgage transaction entered into between the [herein respondent E-PCI] and [herein petitioner Alfredo and his spouse Arsenia] dating back in (sic) 1997. This fact will militate against the so-called exemption by sheer force of exclusion embodied in said article. Hence, the laws protective mantle cannot be availed of by [petitioner Tagle and his spouse Arsenia]. MR was filed: DENIED Court of Appeals DISMISSED OUTRIGHT. The instant petition is not accompanied by (i) the order denying petitioners motion to exempt from foreclosure of mortgage; and (ii) a relevant and pertinent document, i.e., motion to exempt from foreclosure of mortgage (Sec. 1, Rule 65, in relation to Sec. 3, Rule 46, 1997 Rules of Civil Procedure). MR filed: DENIED. Second MR: Denied Appellant has not cured the formal defects of the petition noted in Our resolution dated September 6, 2005. And, more importantly, a second motion for reconsideration of a final order is not allowed.

RTC: Denied Petitioners motion. The mortgage transaction happened on May 9, 1997, after the effectivity of the Family Code.

Hence, this Petition for Certiorari with Prohibition filed under Rule 65 of the Revised Rules of Court.

ISSUE: Whether or not the present Petition for Certiorari filed under Rule 65 of the Revised Rules of Court is the proper remedy for petitioner HELD: NO. A special civil action for Certiorari, or simply a Petition for Certiorari, under Rule 65 of the Revised Rules of Court is intended for the correction of errors of jurisdiction only or grave abuse of discretion amounting to lack or excess of jurisdiction. Its principal office is only to keep the inferior court within the parameters of its jurisdiction or to prevent it from committing such a grave abuse of discretion amounting to lack or excess of jurisdiction.28 A writ of certiorari may be issued only for the correction of errors of jurisdiction or grave abuse of discretion amounting to lack or excess of jurisdiction. Such cannot be used for any other purpose, as its function is limited to keeping the inferior court within the bounds of its jurisdiction. For a petition for certiorari to prosper, the essential requisites that have to concur are: (1) the writ is directed against a tribunal, a board or any officer exercising judicial or quasi-judicial functions; (2) such tribunal, board or officer has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; and (3) there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law. The phrase "without jurisdiction" means that the court acted with absolute lack of authority 31 or want of legal power, right or authority to hear and determine a cause or causes, considered either in general or with reference to a particular matter. It means lack of power to exercise authority. "Excess of jurisdiction" occurs when the court transcends its power or acts without any statutory authority;33 or results when an act, though within the general power of a tribunal, board or officer (to do) is not authorized, and invalid with respect to the particular proceeding, because the conditions which alone authorize the exercise of the general power in respect of it are wanting. While that of "grave abuse of discretion" implies such capricious and whimsical exercise of judgment as to be equivalent to lack or excess of jurisdiction; simply put, power is exercised in an arbitrary or despotic manner by reason of passion, prejudice, or personal hostility; and such exercise is so patent or so gross as to amount to an evasion of a positive duty or to a virtual refusal either to perform the duty enjoined or to act at all in contemplation of law. In the present case, there is no question that the 6 September 2005 Resolution of the Court of Appeals dismissing petitioner Alfredos petition in CA-G.R. SP No. 90461 is already a disposition on the merits. Therefore, said Resolution, as well as the Resolutions dated 16 February 2006 and 11 April 2006 denying reconsideration thereof, issued by the Court of Appeals, are in the nature of a final disposition of CA-G.R. SP No. 90461 by the appellate court, and which, under Rule 45 of the Revised Rules of Court, are appealable to this Court via a Petition for Review on Certiorari, viz:

SECTION 1. Filing of petition with Supreme Court. A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review oncertiorari. The petition shall raise only questions of law which must be distinctly set forth. (Emphasis supplied.) From the words of Rule 45, it is crystal that decisions (judgments), final orders or resolutions of the Court of Appeals in any case, i.e., regardless of the nature of the action or proceedings involved, may be appealed to this Court by filing a petition for review, which would be but a continuation of the appellate process over the original case. In the case at bar, the assailed Resolutions of the Court of Appeals dismissing petitioner Alfredos petition in CA-G.R. SP No. 90461 were final orders. They were not interlocutory because the proceedings were terminated; and left nothing more to be done by the appellate court. There were no remaining issues to be resolved in CA-G.R. SP No. 90461. Consequently, the proper remedy available to petitioner Alfredo then was to file before this Court a Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court of the assailed Resolutionsof the Court of Appeals, and not a special civil action for certiorari. From the foregoing discussion, it is fairly obvious that the third requisite for a petition for certiorari is wanting, that is, there must be no appeal or any plain, speedy, and adequate remedy in the ordinary course of law. The availability to petitioner Alfredo of the remedy of a petition for review on certiorari from the assailed Resolutions of the Court of Appeals effectively barred his right to resort to a petition for certiorari. Basic is the rule that a writ of certiorari will not issue where the remedy of appeal is available to an aggrieved party. A remedy is considered "plain, speedy and adequate" if it will promptly relieve the petitioner from the injurious effects of the judgment and the acts of the lower court or agency. In this case, appeal was not only available but also a speedy and adequate remedy. Moreover, petitioner Alfredo failed to show circumstances that would justify a deviation from the general rule as to make available to him a petition for certiorari in lieu of making an appeal. Petitioner Alfredo failed to show any valid reason why the issue raised in his petition for certiorari could not have been raised on ordinary appeal by certiorari. He simply argued that the appellate court gravely abuse its discretion which amounted to lack or excess of jurisdiction in dismissing his petition in CA-G.R. SP No. 90461 and not finding that the subject property covered by the Writ of Possession was a Family Home, hence, exempt from execution or forced sale. He did not give a single explanation as to why the errors committed by the Court of Appeals cannot possibly be cured by ordinary appeal under Rule 45 of the Revised Rules of Court. The remedies of appeal in the ordinary course of law and that of certiorari under Rule 65 of the Revised Rules of Court are mutually exclusive and not alternative or cumulative. Time and again this Court has reminded members of the bench and bar that the special civil action of Certiorari cannot be used as a substitute for a lost appeal41 where the latter remedy is available; especially if such loss or lapse was occasioned by ones own negligence or error in the choice of remedies. NOTE: As to the Purpose. Certiorari is a remedy designed for the correction of errors of jurisdiction, not errors of judgment. As to the Manner of Filing. Over an appeal, the CA exercises its appellate jurisdiction and power of review. Over a certiorari, the higher court uses its original jurisdiction in accordance with its power of control and supervision over the proceedings of lower courts. An appeal is thus a continuation of the original suit, while a petition for certiorari is an original and independent action that was not part of the trial that had resulted in the rendition of the judgment or order complained of. The parties to an appeal are the original parties to the action. In contrast, the parties to a petition for certiorari are the aggrieved party (who thereby becomes the petitioner) against the lower court or quasi-judicial agency, and the prevailing parties (the public and the private respondents, respectively). As to the Subject Matter. Only judgments or final orders and those that the Rules of Court so declared are appealable. Since the issue is jurisdiction, an original action for certiorari may be directed against an interlocutory order of the lower court prior to an appeal from the judgment; or where there is no appeal or any plain, speedy or adequate remedy. As to the Period of Filing. Ordinary appeals should be filed within fifteen days from the notice of judgment or final order appealed from. Where a record on appeal is required, the appellant must file a notice of appeal and a record on appeal within thirty days from the said notice of judgment or final order. A petition for review should be filed and served within fifteen days from the notice of denial of the decision, or of the petitioners timely filed motion for new trial or motion for reconsideration. In an appeal by certiorari, the petition should be filed also within fifteen days from the notice of judgment or final order, or of the denial of the petitioners motion for new trial or motion for reconsideration. On the other hand, a petition for certiorari should be filed not later than sixty days from the notice of judgment, order, or resolution. If a motion for new trial or motion for reconsideration was timely filed, the period shall be counted from the denial of the motion. As to the Need for a Motion for Reconsideration. A motion for reconsideration is generally required prior to the filing of a petition for certiorari, in order to afford the tribunal an opportunity to correct the alleged errors. Note also that this motion is a plain and adequate remedy expressly available under the law. Such motion is not required before appealing a judgment or final order. Evidently, therefore, petitioner Alfredo erred in filing a Petition for Certiorari instead of an ordinary appeal bycertiorari, already a sufficient justification for dismissing the instant petition.

G.R. No. 153653

October 2, 2009

SAN MIGUEL BUKID HOMEOWNERS ASSOCIATION, INC., herein represented by its PRESIDENT, MR. EVELIO BARATA, Petitioner, vs.THE CITY OF MANDALUYONG, represented by the HON. MAYOR BENJAMIN ABALOS, JR.; A.F. CALMA GENERAL CONSTRUCTION, represented by its President, ARMENGO F. CALMA, Respondents.

Petitioner San Miguel Bukid Homeowners Association, Inc. (formerly known as Bukid Neighborhood Landless Association), an association of urban poor dwellers of San Miguel Bukid Compound, Plainview, Mandaluyong City, filed with the Regional Trial Court (RTC) of Mandaluyong City a Complaint for specific performance and damages against respondents City of Mandaluyong (City) and A.F. Calma General Construction (Calma). o It is alleged therein that pursuant to the Citys Land for the Landless Program, petitioner and the City entered into MOA whereby the City purchased lots and then transferred the same to petitioner with a first real estate mortgage in favor of the City. Subsequently, the City and Calma entered into a Contract Agreement for the latter to construct row houses and medium-rise buildings on the aforementioned lots within 540 calendar days for the benefit of petitioners members. In June 1995. Calma began construction, but in June 1996, work on the project was stopped.

Hence, petitioner filed the complaint praying that the City and Calma be ordered to perform their respective undertakings and obligations under the Contract Agreement and to pay petitioner attorneys fees, exemplary damages and litigation expenses. Citys defense: o MOA had already been abrogated due to petitioners failure to secure a loan from the Home Mortgage and Finance Corporation, and that petitioner had no standing or personality to institute the action, as it was not a party to the Contract Agreement.

Calma did not file an Answer. Petitioner filed M to declare DF in default: DENIED BY RTC o It held that a party should only be declared in default in cases showing clear obstinate refusal or inordinate neglect in complying with the Orders of the court. MR likewise denied.

Petitioner elevated to the CA via a petition for certiorari. However, CA dismissed the petition outright because the person who signed the Verification/Certification of Non-Forum Shopping thereof did not appear to be authorized by petitioner. o MR filed: DENIED

HELD: WHETHER CA COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT HELD THAT THE REPRESENTATIVE OF THE PETITIONER WHO SIGNED THE VERIFICATION/CERTIFICATION OF NON-FORUM SHOPPING "DID NOT APPEAR TO BE DULY AUTHORIZED TO DO SO," WHEN IN FACT THE SAID REPRESENTATIVE WAS DULY AUTHORIZED BY THE PETITIONER CORPORATIONS BOARD OF DIRECTORS. Section 1, Rule 65 of the Rules of Court states that certiorari may be resorted to when there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law. Clearly, since the present case involves a final order of dismissal issued by the CA, the proper course of action would have been to file a petition for review on certiorari under Rule 45. Although there are exceptions to the general rule, petitioner utterly failed to allege and prove that the extraordinary remedy of the writ of certiorari should be granted, because an appeal, although available, would be inadequate, insufficient and not speedy enough to address the urgency of the matter. There is nothing in the petition to show that this case qualifies as an exception to the general rule. The circumstances prevailing in this case reveal that whatever grievance petitioner may be suffering from the dismissal of its petition with the CA could be properly addressed through a petition for review on

certiorari.

G.R. No. 129910 September 5, 2006 INTERNATIONAL CORPORATE BANK, INC. vs. COURT OF APPEALS, ET AL. The case originated from an action for collection of sum of money filed by the International Corporate Bank, Inc. ("petitioner") against the Philippine National Bank ("respondent"). The Ministry of Education and Culture issued 15 checks 5 drawn against respondent which petitioner accepted for deposit on various dates. After 24 hours from submission of the checks to respondent for clearing, petitioner paid the value of the checks and allowed the withdrawals of the deposits. However, on 14 October 1981, respondent returned all the checks to petitioner without clearing them on the ground that they were materially altered. Thus, petitioner instituted an action for collection of sums of money against respondent to recover the value of the checks. RTC: In favor of petitioner. Respondent is expected to use reasonable business practices in accepting and paying the checks presented to it. Thus, respondent cannot be faulted for the delay in clearing the checks considering the ingenuity in which the alterations were effected. It observed that there was no attempt from petitioner to verify the status of the checks before petitioner paid the value of the checks or allowed withdrawal of the deposits. Court of Appeals: Reversed. Applying Section 4(c) of Central Bank Circular No. 580, series of 1977. Checks that have been materially altered shall be returned within 24 hours after discovery of the alteration. However, the Court of Appeals ruled that even if the drawee bank returns a check with material alterations after discovery of the alteration, the return would not relieve the drawee bank from any liability for its failure to return the checks within the 24-hour clearing period. Bank cannot be held liable for its failure to return the check in question not later than the next regular clearing. MR Filed: CA Reversed itself and affirmed RTC. Hence, the recourse to this Court. Whether petitioner availed of the wrong mode of appeal under Rule 65? HELD: A petition cannot be subsumed simultaneously under Rule 45 and Rule 65 of the Rules of Court, and neither may petitioners delegate upon the court the task of determining under which rule the petition should fall." The remedies of appeal and certiorari are mutually exclusive and not alternative or successive. However, this Court may set aside technicality for justifiable reasons. The petition before the Court is clearly meritorious. Further, the petition was filed on time both under Rules 45 and 65. Hence, in accordance with the liberal spirit which pervades the Rules of Court and in the interest of justice,we will treat the petition as having been filed under Rule 45.

AGOTE Agote was convicted by the trial court of two (2) crimes (1) illegal possession of firearms under P.D. No. 1866 and (2) violation of COMELEC Resolution No. 2826 on gun ban, were both committed by the petitioner on April 27, 1996. Agote appealed to the trial court but denied petitioners motion. Therefrom, petitioner went to the CA on a petition for certiorari with prayer for a TRO. CA DENIED due to (a) the remedy of certiorari availed of by petitioner is improper since he should have appealed from the July 15, 1999 order of the trial court; and (b) lack of jurisdiction, as the issue involved is a pure question of law cognizable by the Supreme Court. ISSUE: (1) CA erred in dismissing his petition for certiorari; ? (2) whether the courts below erred in not giving Rep. Act No. 8294 a retroactive application. The petition is partly meritorious.

HELD For a question to be one of law, the same must not involve an examination of the probative value of the evidence presented by the litigants or any one of them. Considering that judgments of regional trial courts in the exercise of their original jurisdiction are to be elevated to the Court of Appeals in cases when appellant raises questions of fact or mixed questions of fact and law, while appeals from judgments of the [same courts] in the exercise of their original jurisdiction must be brought directly to the Supreme Court in cases where the appellant raises only questions of law[, petitioner should have appealed the trial courts ruling to this Court by way of a petition for review on certiorari in accordance with Rule 45 of the 1997 Rules of Civil Procedure, as amended, [12] pursuant to Rule 41, Section 2 (c) of the same Rules, viz: SEC. 2. Modes of appeal. (a) xxx xxx xxx (b) xxx xxx xxx (c) Appeal by certiorari. In all cases where only questions of law are raised or involved, the appeal shall be to the Supreme Court by petition for review on certiorari in accordance with Rule 45. By reason, then, of the availability to petitioner of the remedy of a petition for review under Rule 45, his right to resort to a petition for certiorari under Rule 65 was effectively foreclosed, precisely because one of the requirements for the availment of the latter remedy is that there should be no appeal, or any plain, speedy and adequate remedy in the ordinary course of law, the remedies of appeal and certiorari being mutually exclusive and not alternative or successive. As correctly observed by the Court of Appeals, what petitioner should have done was to take an appeal from the trial courts order of July 15, 1999 which denied his motion for reconsideration of the May 18, 1999 judgment of conviction. Petitioners case is worse compounded by the fact that even his period for appeal had already prescribed when he filed with the Court of Appeals his certiorari . The Rollo of said case reveals that petitioner received his copy of the trial courts order denying his motion for reconsideration on July 20, 1999. As the same Rollo shows, it was only on August 23, 1999, or after more than fifteen (15) days when petitioner filed his wrong remedy of certiorari with the appellate court. Be that as it may, the Court feels that it must squarely address the issue raised in this case regarding the retroactivity of Rep. Act No. 8294, what with the reality that the provisions thereof are undoubtedly favorable to petitioner. For this purpose, then, we shall exercise our prerogative to set aside technicalities in the Rules and hold the bull by its horns, so to speak. After all, the power of this Court to suspend its own rules whenever the interest of justice requires is not without legal authority or precedent. Criminal Case No. 96-149820 for illegal possession of firearms is hereby DISMISSED while the judgment of conviction in Criminal Case No. 96-149821 for violation of COMELEC Resolution No. 2826 in relation to Rep. Act No. 7166 (Gun Ban), is AFFIRMED. ===========

BPI vs CA NAPOCOR filed a Complaint for Eminent Domain, seeking to expropriate a portion of petitioner BP) property located in Cavite, for the purpose of constructing and maintaining its Dasmarias-Zapote 230 KV Transmission Line Project. the trial court rendered judgment in favor of BPI After the denial of its motion for reconsideration, NAPOCOR appealed to the CA, which ruled as follows: WHEREFORE, the appealed judgment is hereby REVERSED. A new one is entered ordering plaintiff-appellant NAPOCOR to pay defendant-appellant BPI the amount of P3,000.00 per square meter as just compensation for the expropriated land; and P3,000.00 commissioner's fee to each of the three (3) commissioners. Petitioner BPI moved for the reconsideration of the decision of the Court of Appeals, but the same was denied for lack of merit. ISSUE: whether the CA gravely abused its discretion and seriously erred in fixing the just compensation for the subject property at P3,000.00 per square meter.? NO In petitions for review on certiorari under Rule 45 of the Rules of Court, the general rule is that only questions of law may be raised by the parties and passed upon by this Court. However, this rule admits of exceptions, to wit: (a) where there is grave abuse of discretion; (b) when the finding is grounded entirely on speculations, surmises or conjectures; (c) when the inference made is manifestly mistaken, absurd or impossible; (d) when the judgment of the Court of Appeals was based on a misapprehension of facts; (e) when the factual findings are conflicting; (f) when the Court of Appeals, in making its findings, went beyond the issues of the case and the same are contrary to the admissions of both appellant and appellee; (g) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion; and, (h) where the findings of fact of the Court of Appeals are contrary to those of the trial court, or are mere conclusions without citation of specific evidence, or where the facts set forth by the petitioner are not disputed by the respondent, or where the findings of fact of the Court of Appeals are premised on the absence of evidence and are contradicted by the evidence on record.13 (Emphasis provided) The case at bar falls under one of the exceptions, i.e., where the findings of fact of the Court of Appeals are contrary to those of the trial court. After a careful perusal of the records, SC found no reason to disturb this finding of fact of the Court of Appeals, sufficiently supported as it is, by the evidence on record. the petition for review on certiorari is DENIED ======== LIMITED REVIEW LOCAL SUPERIOR Petitioner Local Superior of the Servants of Charity (Guanellians), Inc. is a religious corporation. Its co-petitioner, Petitioners invited contractors to submit their bids for the construction of structures to be used for their apostolic mission. Jody King Construction & Development Corporation, respondent, being the lowest bidder, was awarded the contract on September 12, 1992. On October 14, 1992, the parties entered into a building contract specifying the scope of works . On October 5, 1993, respondent submitted to petitioners its 12th progress billing. However, petitioners contested the basis of the bill and refused to acknowledge that the same was due and payable. Hence, on September 19, 1994, respondent filed a complaint for breach of contract, specific performance and damages against petitioners Trial court renders judgment in favor of the plaintiff and against the defendant CA affirmed the trial courts Decision but modified the rate of legal interest awarded to respondent The trial court made findings of fact, well supported by the evidence on record, are affirmed by the Court of Appeals These findings should be accorded respect and finality. It is a hornbook doctrine that findings of fact of trial courts are entitled to great weight on appeal and should not be disturbed except for strong and valid reasons because the trial court is in a better position to examine the demeanor of the witnesses while testifying. It is not a function of this Court to analyze and weigh evidence by the parties all over again. Our jurisdiction is in principle limited to reviewing errors of law that might have been committed by the Court of

Appeals. A fortiori, as in this case, where the factual findings of the trial court are affirmed in toto by the Court of Appeals, there is great reason for not disturbing such findings and for regarding them as not reviewable by this Court. ========================== R47- EXTRINSIC FRAUD ALMA JOSE vs INTRA STRATA ISSUE: RTC no jurisdiction over the persons of herein petitioners since they were not properly served with summons. Hence the Court of Appeals erred in affirming the court a quos Decision? 3. 4. Impropriety of the service of summons voided the default judgment. The same was not a judgment in the contemplation of law, hence, it never bec[a]me final and executory and any action to declare its nullity does not prescribe.[29] Atty. Leonides Bernabe is not the counsel of petitioners [as] he was never hired nor contracted to represent them. Neither did he inform petitioners of the pendency of the case against them.

5. To hold the petitioners liable to the respondent corporation for the amount herein sought to be recovered would result in undue enrichment to the benefit of Intra Strata but to the prejudice of the petitioners because the basis of their alleged liability was already cancelled.
]

The petition is meritorious.

Rule 47 of the Revised Rules on Civil Procedure provides for the remedy of annulment by the Court of Appeals of judgments or final orders and resolutions in civil actions of Regional Trial Courts for which the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available through no fault of the petitioner. The grounds for annulment are extrinsic fraud and lack of jurisdiction. In their petition for annulment of judgment, petitioners anchored it on the ground of lack of jurisdiction over their persons. As reflected above, the CA dismissed the petition on the ground that petitioners had already availed of the remedy of petition for relief from judgment. Section 2, Rule 47 reads: Section 2. Grounds for annulment. The annulment may be based only on the grounds of extrinsic fraud and lack of jurisdiction. Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in a motion for new trial or petition for relief. (Emphasis and underscoring supplied). As the 2nd paragraph of the above-quoted rule clearly provides, it is only extrinsic fraud, not lack of jurisdiction, which is excluded as a valid ground for annulment if it was availed of, or could not have been availed of, in a motion for new trial or petition for relief. Since petitioners anchored their Petition for Relief from Judgment filed before the trial court on the ground of lack of jurisdiction over their persons, they are not barred from filing a petition for annulment of judgment before the CA. As for the CAs application of the doctrine of finality of judgment to bar annulment of the judgment, the same does not lie. If petitioners can prove that they were indeed not duly served with summons, the trial court never acquired jurisdiction over them, hence, the decision against them is not a decision in contemplation of law and could never become final and executory REMANDED ============= GUILLERMO DELA CRUZ,Vs HON. DEODORO J. SISON On March 19, 1998, petitioner filed a Complaint for Accounting, Sum of Money and Damages against respondent bank wherein petitioner sought the return of the sum of P730,000.00, representing the amount deposited by him, together with Adelina Dela Cruz, with respondent bank, as covered by Certificates of Time Deposit . The amount was then withdrawn on August 11, 1986, through Cashiers Check No. 7448 without his knowledge or consent The trial court rendered a decision in favor of petitioner Respondent bank filed before the CA a petition for annulment of judgment with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction, on the grounds of extrinsic fraud and denial of due process. In support of the foregoing, respondent bank alleged that its previous counsels negligence in handling the case constituted extrinsic fraud, and that the trial courts denial of its motion for reconsideration of the trial courts default order dated October 28, 1998, deciding the case without due process, not considering the petition for relief as an adequate remedy, and granting the motion for execution and denying the petition for relief from judgment without the three-day prior notice rule, substantially deprived respondent bank of due process and resulted in a miscarriage of justice. The Court does not agree with respondent bank that its former counsels mishandling of the case amounts to extrinsic fraud. After all, a client is bound by the negligence or mistake of his counsel.[25] While indeed there are cases when the Court declared that gross or reckless negligence of counsel amounts to extrinsic fraud, but this is the exception rather than the general rule. Not all negligence of counsel qualifies as extrinsic fraud, and each case must be considered under its own set of particular circumstances in ascertaining whether a counsels negligence may provide sufficient basis to annul an otherwise final and executory judgment. The complained actions or omissions of the former counsel of respondent bank do not amount to gross or reckless negligence constituting extrinsic fraud. ====== Ramos vs Combong Consolidated cases wherein The decision in Civil Case No. 11085 declared petitioners Rodolfo Ramos, Emma R. Millado and Norma R. Erie as owners pro indiviso of one-half portion of the western side of Lot 196, while private respondents Teresita Medina, Teodoro Medina and Jesus Medina were declared owners of the other half on the eastern portion.

The CA affirmed the trial court's order in a Decision dated June 29, 1998 in CA-G.R. CV No. 53541. Petitioners elevated the CA's decision to this Court docketed as G.R. No. 136376, but the petition was denied On December 23, 1999, petitioners filed a petition for annulment of judgments in Civil Case Nos. 11085 and 402 before the CA. 'In the assailed Resolution dated January 13, 2000, the CA dismissed the petition for their failure to state the material dates showing that it was filed on time and to attach an affidavit of merit. Thus, petitioners seek recourse with this Court through the present petition for review on certiorari, ISSUE: WHETHER OR NOT THE DECISION IN CIVIL CASE NOS. 11085 AND 402 CAN BE ANNULLED ON THE BASIS OF EXTRINSIC FRAUD AND NON-DISCLOSURE BY PRIVATE RESPONDENTS IN BOTH PROCEEDINGS? NO Petitioners further argue that they have a valid ground for the annulment of the decision in Civil Case No. 11085 and the final order in Civil Case No. 402. According to petitioners, private respondents failed to disclose in these cases that petitioners' predecessors, Luis Galvez and Matea Ramos, never transferred the one-half portion of Lot 196 to private respondents' predecessors, as evidenced by Cadastral Decree No. 32855 and reconstituted Transfer Certificate of Title No. T-4809, which are still in the names of Luis Galvez and Matea Ramos. They also contend that the General Powers of Administration and Deed of Sale dated June 18, 1947 relied upon by the trial court in Civil Case No. 11085 was executed in Spanish and it was only recently that petitioners were able to comprehend its contents. Petitioners alleged that said documents did not validly transfer one-half of the property to respondents' predecessor, Pedro Medina.

These, however, do no constitute extrinsic fraud. Extrinsic fraud exists when there is a fraudulent act committed by the prevailing party outside of the trial of the case, whereby the defeated party was prevented from presenting fully his side of the case by fraud or deception practiced on him by the prevailing party. Fraud is regarded as extrinsic where it prevents a party from having a trial or from presenting his entire case to the court, or where it operates upon matters pertaining not to the judgment itself but to the manner in which it is procured. The overriding consideration when extrinsic fraud is alleged is that the fraudulent scheme of the prevailing litigant prevented a party from having his day in court.

By no means were petitioners deprived by respondents of their day in court. Their arguments for the annulment of judgment are evidentiary matters, which should have been earlier brought out before the trial court. Petitioners themselves filed Civil Case No. 11085 against respondents, and they had all the opportunity to raise these matters before the trial court = R50- NON PAYMENT OF FEE CHARLES CU-UNJIENG, By this petition for review on certiorari, petitioner Charles Cu-Unjieng seeks the reversal of the following issuances of the CA in CA-G.R. CV No. 8177-B-UDK, entitled Charles Cu-Unjieng, plaintiff-appellant vs. Union Bank of the Philippines, et al., defendantsappellees, to wit:

1.

Resolution[1] dated May 10,1999, dismissing, for non-payment of docket and other lawful fees, petitioners appeal from an earlier decision of the Regional Trial Court at Malolos, Bulacan which dismissed his complaint for specific performance and damages against respondent Union Bank of the Philippines and others; petitioner is now with us via the present recourse seeking a relaxation of procedural rules and ultimately the reversal and setting aside of the assailed twin resolutions of the appellate court. SC was not persuaded. Doctrinally entrenched is the pronouncement that the right to appeal is merely statutory and a party seeking to avail of that right must comply with the statute or rules. Rule 41, Section 4, of the 1997 Rules of Civil Procedure provides: SEC. 4. Appellate court docket and other lawful fees. Within the period for taking an appeal, 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. Well-settled is the rule that payment of the docket and other legal fees within the prescribed period is both mandatory and jurisdictional, noncompliance with which is fatal to an appeal. For, to stress, appeal is not a matter of right, but a mere statutory privilege.

An ordinary appeal from a decision or final order of the RTC to the CA must be made within fifteen (15) days from notice. And within this period, the full amount of the appellate court docket and other lawful fees must be paid to the clerk of the court which rendered the judgment or final order appealed from. Time and again, this Court has consistently held that full payment of docket fees within the prescribed period is mandatory for the perfection of an appeal. Without such payment, the appeal is not perfected and the appellate court does not acquire jurisdiction to entertain the appeal, thereby rendering the decision sought to be appealed final and executory. For sure, nonpayment of the appellate court docket and other lawful fees within the reglementary period as provided under Section 4, Rule 41, supra, is a ground for the dismissal of an appeal under Section 1(c) of Rule 50, to wit: SECTION 1. Grounds for dismissal of appeal.- An appeal may be dismissed by the Court of Appeals, on its own motion or on that of the appellee, on the following grounds: xxx xxx xxx

c. Failure of the appellant to pay the docket and other lawful fees as provided in section 4 of Rule 41; xxx This Court has invariably sustained the CAs dismissal on technical grounds under the aforequoted provision unless considerations of equity and substantial justice present cogent reasons to hold otherwise. True, the rules may be relaxed but only for persuasive and weighty reasons, to relieve a litigant of an injustice commensurate with his failure to comply with the prescribed procedure.[ SC emphasized that invocation of substantial justice is not a magical incantation that will automatically compel this Court to suspend procedural rules. Rules of procedure are not to be belittled or dismissed simply because their non-observance may have resulted in prejudice to a partys substantive rights. Like all rules, they are required to be followed. So it must be here. ======= NON FILING OF BRIEF BACHRACH The threshold issue the case presents is whether the CA erred in dismissing the petitioners appeal on the ground that no brief was timely filed. The petition is devoid of merit. Rule 50, Section 1 of the Rules of Court enumerates the grounds for the dismissal of appeals; paragraph (e) thereof provides that an appeal shall be dismissed upon

[f]ailure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by these Rules.

In a long line of cases, this Court has held that the CAs authority to dismiss an appeal for failure to file the appellants brief is a matter of judicial discretion. Thus, a dismissal based on this ground is neither mandatory nor ministerial; the fundamentals of justice and fairness must be observed, bearing in mind the background and web of circumstances surrounding the case.

In the present case, the petitioner blames its former handling lawyer for failing to file the appellants brief on time. This lawyer was allegedly transferring to another law office at the time the appellants brief was due to be filed. In his excitement to transfer to his new firm, he forgot about the appeal and the scheduled deadline; he likewise forgot his responsibility to endorse the case to another lawyer in the law office. We note as a last point that the original 45-day period for the appellant to submit its brief expired on April 6, 2002. Petitioner seasonably filed its motion for extension on April 4, 2002. It was only on November 11, 2002, about seven (7) months later, that the CA dismissed the appeal. Absolutely nothing appeared to have been done in the interim, not even in terms of noting that no appeal brief had been filed. Thus, the petitioner simply took too long to rectify its mistake; by the time that it acted, it was simply too late.