J.

BERSAMIN - APPEAL AND REVIEW IN THE PHILIPPINES

Summarized by: Pauline Mariz V. Garcia

HIERARCHY OF COURTS: AN OVERVIEW OF THE PHILIPPINE JUDICIAL SYSTEM

The modern doctrine of bindingness of judicial decisions does not come into existence as long as
the hierarchy of courts remained unsettled, for it is only under a system of hierarchy of courts
that the higher courts bind the lower courts; that the courts of coordinate authority do not bind
each other; and that the one highest court does not bind itself; that where there are two
decisions of the highest court which are in conflict, the judge in a third case should consider the
later decision of the highest court as controlling unless the later decision of the highest court as
controlling unless he is convinced that the latter decision was wrong in not following the earlier
case.

That hierarchy is determinative of the venue of appeals, and should also serve as a general
determinant of the appropriate forum for petitions for the extraordinary writs. ( People v.
Cuaresma, 1989)

Thus, a petition for mandamus brought directly to the SC was rejected because the petitioner
ignored the policy on hierarchy of courts in relation to cases where the Supreme Court had
concurrent jurisdiction with the RTC and the CA. - Manalo v. Gloria

Even if the controversy involves constitutional issues, but is not purely on questions of law, a
direct or immediate resort to the SC is not the proper course of action. Relief should first be
sought from the appropriate executive departments or offices or from the trial courts.

Justice Hugo Gutierrez, Jr. Emphasized this when he said: "Well meaning citizens with only
secondhand knowledge of the events cannot keep on indiscriminately tossing problems of the
executive, the military, and the police to the SC as if we are the repository of all remedies for all
evils. The rules of constitutional litigation have been evolved for an orderly procedure in the
vindication of rights. They should be followed." - Guanzon, et al. V. Maj. Gen. Renato De Villa, et
al)
Ynot v. Intermediate Appellate Court:

"This Court has declared that while lower courts should observe a becoming modesty in
examining constitutional questions, they are nonetheless not prevented from resolving the same
whenever warranted, subject only to review by the highest tribunal. We have jurisdiction under
the Constitution to "review, revise, reverse, modify or affirm on appeal or certiorari, as the law or
rules of court may provide," final judgments and orders of lower courts in, among others, all
cases involving the constitutionality of certain measures. This simply means that the resolution of
such cases may be made in first instance by these lower courts.

"And while it is true that laws are presumed to be constitutional, that presumption is not by
any means conclusive and in fact may be rebutted. Indeed, if there be a clear showing of their
invalidity, and of the need to declare them so, then 'will be the time to make the hammer fall,
and heavily,' to recall Justice Laurel's trenchant warning. Stated otherwise, courts should not
follow the path of least resistance by simply presuming the constitutionality of a law when it is
questioned. On the contrary, they should probe the issue more deeply, to relieve the abscess,
paraphrasing another distinguished jurist, and so heal the wound or excise the affliction.

"Judicial power authorizes this; and when the exercise is demanded, there should be no
shirking of the task for fear of retaliation, or loss of favor, or popular censure, or any other similar
inhibition unworthy of the bench, especially this Court."

In Enrile v. Judge Salazar:

"While litigants should, as a rule, ascend the steps of the judicial ladder, nothing should stop
this Court from taking cognizance of petitions brought before it raising urgent constitutional
issues, any procedural flaw notwithstanding."

The case of Limketkai Sons Milling Inc v. CA, clarified that the composition of the divisions or their
reorganization in membership is "purely an internal matter" which no party in a case may
question.

To be appointed to the SC, a person must be: ( Sec. 7(1),(2), and (3), Art. VIII, Constitution )

- a natural-born citizen of the Philippines

- at least 40 years of age

- must have been for 15 years or more a judge of lower court or engaged in the practice of law in
the Philippines

- a member of the Philippine Bar

- of proven competence, integrity, probity, and independence

A decision or resolution of a division of the SC, when concurred in by a majority of the members
who actually took part in the deliberations on the issues in a case and voted thereon, and in no
case without the concurrence of at least three of such members, is a decision or resolution of the
SC. When the required number is not obtained, the case shall be decided en banc. But no
doctrine or principle of law laid down by the SC in a decision rendered en banc or in division may
be modified or reversed except by the court sitting en banc.

The participation of a Justice of the SC may be disqualified for the reasons stated in Sec. 1, Rule
137, Rules of Court. When his participation is challenged, the Justice sits with the SC and the
question is decided by the SC as a body. If the ground of disqualification is mandatory, the Justice
concerned should inhibit. However, where the motion for disqualification is presented after
decision has been rendered either en banc or in division with the Justice concerned having
participated and cast his vote without any objection from any source, the motion should be
denied because no litigant should be permitted to speculate upon the action of the SC and to
raise an objection of this sort after the decision has been rendered. If the ground for
disqualification is other than mandatory. It is for the Justice concerned alone to determine his
qualification. - Araneta v. Dinglasan

The SC has no original jurisdiction over petitions for declaratory relief even if only questions of
law are involved, since it exercises merely appellate jurisdiction over such petitions. Thus, a
petition for certiorari and prohibition to the declaration of ordinances and their implementing
regulations issued by the Sangguniang Panlungsod of Puerta Princesa City and the Sangguniang
Panlalawigan of Palawan banning certain activities relating to fisheries as unconstitutional, the SC
dismissed the petition in respect of the second set of petitioners who merely claimed that, being
fishermen or marine merchants, they would be adversely affected by the ordinances, because it
was obviously one for declaratory relief.

The Statutory Courts

Below the SC are the statutory courts, or courts established by the statutes.

- CA

- Sandiganbayan
- RTC

- Family Courts

- CTA

- Shari'a Courts

- MTC

- Mu TC

- MCTC

The Court of Appeals

- natural born citizen of the Philippines

- at least 40 years of age

- 15 years or more a judge of a lower court engaged in the practice of law in the Philippines

- a member of the Philippine Bar

- of proven competence, integrity, probity, and independence

It is a well-known canon of construction that apparently conflicting provisions should be

harmonized whenever possible.

17 divisions - Manila - 1st to 5th Judicial Region

18 - 20 divisions - Cebu - 6th to 8th Judicial Region

21st to 23rd division - CDO - 9th to 12th Judicial Region

Whenever demanded by public interest, or whenever justified by an increase in case load, the SC,
upon its own initiative or upon recommendation of the Presiding Justice of Court of Appeals, may
authorize any division of the CA to hold sessions periodically, or for such periods and at such
places as the SC may determine, for the purpose of hearing and deciding cases. Trials or hearings
in the CA must be continuous and must be completed within 3 months unless extended by the CJ
of the SC.

The Sandiganbayan is a "special court, of the same level as the CA and possessing all the inherent
powers of a court of justice,"

The Sandiganbayan has exclusive appellate jurisdiction on appeals from the final judgments,
resolutions, or orders of the RTC whether in the exercise of their own original jurisdiction or their
appellate jurisdiction over the cases enumerated in PD 1606, as amended by RA 8249, if
committed by the officials or employees occupying positions lower than salary grade 27, or not
otherwise covered by the enumeration. The procedure for such appeals or petitions for review
shall follow the procedures prescribed in Batas Pambansa Blg. 129 and the implementing rules
promulgated by the SC relative to appeals or petitions for review to the CA.

The Regional Trial Court

Sec. 4, PD 1606, as amended by Sec. 2, RA 7975

In criminal cases involving public officials and employees where none of the principal accused are
occupying positions corresponding to salary grade 27 or higher, as prescribed in RA 6758, or are
PNP officers occupying the rank of superintendent or higher, or their equivalent, exclusive
jurisdiction shall be vested in the proper RTC if the imposable penalties are imprisonments
exceeding 6 years, irrespective of the amount of fine, and regardless of other imposable
accessory or other penalties, including the civil liability arising from such offenses or predicated
thereon, irrespective of the kind, nature, value or amount thereof.

Decisions of the RTC in such appealed cases such be appealable by petition for review to the CA,
which may give due course only when the petition shows prima facie that the lower court has
committed an error of fact or law that will warrant a reversal or modification or judgment sought
to be reviewed. - Sec. 22, BP 129

"Agrarian dispute" refers to any controversy relating to tenurial arrangements, whether leasehold,
tenancy stewardship or otherwise, over lands devoted to agriculture, including disputes
concerning farmworkers' associations or representation of persons in negotiating, fixing,
maintaining, changing or seeking to arrange terms or conditions of such tenurial arrangements. -
Sec. 3 par (d), RA 6657

Metropolitan, Municipal, and Municipal Circuit Trial Courts

To be appointed as judge of MTC, MeTC, MCTC

- a natural-born citizen of the Philippines

- at least 30 years of age

- for at least 5 years, should have been engaged in the practice of law in the Philippines, or should
have held a public office in the Philippines requiring admission to the practice of law as an
indispensable requisite

Every Metropolitan Trial Judge shall be appointed to a metropolitan area which shall be his
permanent station and his appointment shall state the branch of the court and the seat thereof
to which he shall be originally assigned, but the SC may assign him to any branch within the
metropolitan area as the interest of justice may require and such assignment shall not be
deemed an assignment to another station within the meaning of BP 129.

In actions where several claims or causes of action between the same or different parties are
embodied in the same complaint, the amount of the demand for purposes of determining
jurisdiction shall be the totality of the claims in all the causes of action, irrespective of whether
the causes of action arose out of the same or different transactions.

If the land involved is not declared for taxation purposes, the value of such property shall be
determined by the assessed value of the adjacent lots.

In forcible entry and unlawful detainer, whenever the defendant or defendants should raise the
question of ownership and the question of possession cannot be resolved without deciding the
issue of ownership, the issue of ownership shall be resolved only to determine the issue of
possession. Such judgment shall be conclusive with respect to the possession only and shall in no
wise bind the title or affect the ownership of the land or building; it shall not bar an action
between the same parties respecting title to the land or building.

Family Courts

Exclusive jurisdiction when:

1. Criminal case where one or more of the accused is below 18 years of age but not less than 9
years of age;

2. Petitions for guardianship, custody of children, habeas corpus in relation to the latter;

3. Petitions for adoption of children and the revocation thereof;

4. Complaints for annulment of marriage, declaration of nullity of marriage and those relating to
marital status and property relations of husband and wife or those living together under different
status and agreements, and petitions for dissolution of conjugal partnership of gains;

5. Petitions for support and/or acknowledgment

6. Summary judicial proceedings brought under the provisions of EO No. 209, otherwise known
as the Family Code of the Philippines;

7. Petitions for declaration of status of children as abandoned or neglected children,

8. Petitions for the constitution of the family home

9. Cases against minor cognizable under the Dangerous Drugs Act, as amended;

10. Violations of RA 7610

11. Cases of domestic violence against women and their children

The Family Court is invested with the power to issue the following special provisional
remedies, to wit:

1. In cases of violence among immediate family members living in the same domicile or
household, to issue a restraining order against the accused or defendant upon a verified
application by the complainant or the victim for relief from abuse; and

2. To order the temporary custody of children in all civil actions for their custody; and to
order support pendente lite, including deduction from the salary and use of conjugal home and
other properties in all civil actions for support.

REMEDIES AFTER JUDGMENT

The main task of the judicial process is the orderly and peaceful resolution disputes among the
contending parties according to a set of rules and an evolving body of jurisprudence. A system of
courts is in place to ensure the fairness and reasonableness of the judicial process.
1. Trial Stage - involves itself with the collection of facts, collation of proof, weighing of evidence,
and resolution of the controversy

2. Review Stage - includes all proceedings taken to review, revise, reverse, modify, or affirm the
resolution of the controversy, or, in the proper cases, to remand or to remit.

This principle of liberal construction mandated by the Rules of Court may be invoked in situations
wherein there is some excusable formal deficiency or error in a pleading but not where its
application will "subvert the essence of the proceeding" or result in the utter disregard of the
observance of indispensable technicalities precisely designed to ensure its proper dispensation.

There are three modes of reviewing on appeal a final order or judgment, to wit:

1. By ordinary appeal

2. By petition for certiorari to the SC under Rule 45 on pure questions of law

3. By petition for review to the CA

Policy Guidelines on Appeals

It is basic that an appeal may be dismissed on the ground that it is improper. According to Sec. 2,
Rule 50, an appeal under Rule 41 taken from the RTC to the CA raising only questions of law
should be dismissed because issues purely of law are not reviewable by the CA; and, if an appeal
from the appellate judgment of the RTC is taken by notice of appeal to the CA, it should also be
dismissed because the proper mode is appeal by petition for review under Rule 42.

Modes of impeaching, annulling, or setting aside a judgment or final order of a court of law or
quasi-judicial body

1. By direct action - SCA of certiorari, if the judgment is issued without or in excess of jurisdiction,
or with grave abuse of discretion amounting to lack of jurisdiction ( Rule 65 )

2. By a collateral attack, if the decision or order should be void on its face or its nullity should
appear from its own recitals

3. By petition for relief from judgment in accordance with the Rule 38, Rues of Court, for which
the grounds are FAMEN

4. By the independent civil action to annul a judgment, where the alleged defect is not apparent
on its face or from the recitals of the judgment

Annulment of Judgment or Final Order (Rule 47)

A. Grounds for Annulment

1. Judgment is void for want of jurisdiction or lack of due process of law; or

2. Judgment was obtained by extrinsic fraud

EXTRINSIC FRAUD - refers to some act or conduct of the prevailing party which has prevented the
aggrieved party from having a trial or presenting his case to the court, or was used to procure
judgment without a fair submission of the controversy. It refers to acts outside the trial and must
be distinguished from

INTRINSIC FRAUD which refers to acts of a party at a trial which prevented a fair and just
determination of the case which could have been litigated and determined at the trial or
adjudication of the case like falsification and false testimony. (Ybanez v. CA)

LACK OF DUE PROCESS - a decision is void for lack of due process if, as a result, a party is deprived
of the opportunity of being heard, as when on the basis of what is presented during a pre-trial
alone the court foregoes the holding of a trial and proceeds to render a decision, or when after
denying the defense motion to dismiss the criminal prosecution the trial court denies the defense
motion to present evidence.

Period for bringing action: extrinsic fraud must be filed within 4 years from discovery of the fraud

If based on lack of jurisdiction, it may be filed at any time before it is barred by laches or estoppel

"It is settled that a party cannot evade or avoid the application of res judicata by simply varying
the form of his action or adopting a different method of presenting his case."

THE REMEDY OF APPEAL

WHAT APPEAL CAN ACHIEVE

An appeal is brought by a party aggrieved by the order or decision and is founded on the belief
that an error or errors have been committed by the court in its adjudication. The appellate court
is thereby given the opportunity to review the order or decision and may thereafter affirm,
modify, or reverse as it deems fit according to the applicable law. If the appellate court should
find that further proceedings are necessary, it may remand or remit the case to the court of
origin for that purpose.

Appeal is not a natural right or a part of due process but a mere statutory privilege to be
exercised only. In the manner and in accordance with the provisions of the law granting the right.

The fundamental nature of appeal as a mere statutory right requires the party seeking to avail
himself of the right to faithfully comply with the rules granting and providing for it. - Almeda vs.
CA July 16, 1998

The right to appeal is a statutory right and one who seeks to avail of this right must strictly
comply with the statutes or rules as they are interdictions against needless delays and for an
orderly discharge of judicial business. In the absence of highly exceptional circumstances
warranting their relaxation, they must remain inviolable.

An appeal as a matter of right refers to the right to seek a review by a superior court of the
judgment on the merits rendered by a trial court. A discretionary appeal is one which the
reviewing court may or may not allow. The former exists in favor of the parties' right after the
trial in the first instance; while the latter is one taken from a decision rendered by a court in the
exercise of its primary appellate jurisdiction, or one taken to the SC.

Pacific Engineering Co., Inc. v. FJ Edwards, Ltd., CA, January 17, 1957

To be entitled to appeal from a judgment or order, the person appealing must have a
present interest in the subject matter of the litigation and must be aggrieved or prejudiced by the
judgment or order.

A party is aggrieved or prejudiced when his interest recognized by law in the subject matter of
the lawsuit is injuriously affected by the judgment or order.
A person declared incompetent to manage his estate may appeal from the judgment by which he
was so declared. - Garcia v. Sweeney

"Party" means not only the Government and the accused but also other persons who may be
affected by the judgment rendered in the criminal proceeding. - People v. Guido

For instance, a party injured by the crime has been held to have the right to appeal from a
resolution of the court which is in derogation of his right to demand civil liability arising from the
offense.

As a general rule, the reinstatement of a criminal case against the accused does not violate his
right against double jeopardy if the dismissal of the information by the trial court is effected at
his own instance.

There are only two instances where double jeopardy will attach notwithstanding the fact that the
case was dismissed with the express consent of the accused:

1. Where the ground for dismissal is insufficiency of evidence of the prosecution;

2. Where the criminal proceedings have been unreasonably prolonged in violation of his right to
speedy trial ( Sta. Rita v. CA )

Does appeal lie in case of an acquittal of the accused?

There is no appeal of the criminal action upon acquittal of the accused. An acquittal becomes
final immediately upon promulgation and cannot be recalled for correction or amendment,
because the constitutional prohibition against placing a person under double jeopardy for the
same offense includes not only a new and independent prosecution but extends as well to an
appeal in the same action after jeopardy had attached. ( RP v CA, People v. Pomeroy, People v.
Bringas)

The right to appeal from an order of dismissal granted by a court on motion of the public
prosecutor may not be asserted by the offended party independently because the right of an
offended party to intervene is subject to the prosecutor's control. To permit the offended party
to appeal from the order of dismissal is tantamount to giving him as much right to the direction
and control of criminal proceedings. The remedy of the offended party is to file a separate civil
action if proper reservation was made therefor.
 A frivolous appeal is one where no error can be brought before the appellate court, or
whose result is obvious and the arguments of error are totally bereft of merit, or which is
prosecuted in bad faith, or which is contrary to established law and unsupported by a reasoned,
colorable argument for change.

CERTIORARI is not a substitute for a lost appeal. It is settled that where appeal would have been
the adequate remedy but was lost through inexcusable negligence, certiorari is not in order and
cannot take the place of appeal. (Limpot v. CA)

When the remedy of appeal is available, the extraordinary remedy of certiorari cannot be
resorted to because the availability of appeal or other equitable remedies proscribes recourse to
the SCA of certiorari.

The remedies of appeal and certiorari are mutually exclusive and not alternative or successive.

Certiorari will issue only to correct errors of jurisdiction. No error or mistake committed by a
court will be corrected by certiorari unless it had acted without jurisdiction or in excess thereof
with such grave abuse of discretion as would amount to lack of jurisdiction.

THE REMEDY OF APPEAL ORDINARY MODE OF APPEAL

The reason why an interlocutory judgment or order is not appealable is to avoid multiplicity of
appeals in a single case.

Factors for determining appealability or reviewability:

The test of finality should be focused on the substance of the decision or order and its legal
effects and consequences, and not on its form and name.

A judgment is appealable if it is one which either terminates the action itself or operates to
vest some right in such manner as to put it out of the power of the court making the order to
place the parties in their original condition. It is that which disposes of the whole subject matter
or terminates the particular proceedings or action, leaving nothing to be done but to enforce by
execution what has been determined.

A final order which is appealable is one which disposes of the whole subject matter or
terminates a particular proceeding or action, leaving nothing to be done but to enforce by
execution what has been determined; an order is merely interlocutory if it does not dispose of a
case completely, but leaves something more to be done upon its merits.

An interlocutory order is intermediate or rendered in the middle of a cause and does not
finally determine or complete the suit but reserves further questions or directions for future
determination. ( Pailano, Jr. V. CA, June 28, 1993)

Exceptions to the Final Judgment Rule

1. Statutory Exception - an appeal from a partial judgment or order rendered for or againstone or
more of several parties, or in separate claims, counterclaims, cross-claims, and third-party
complaints, while the main case is pending, if followed by the trial court.

2. Discretionary Exception - involving the SC's plenary discretion to accept or refuse invocations
of its appellate jurisidction.

3. Collateral order exception - the decision or order determines a matter collateral to the rights
underlying the action and which is too important to be denied review. The invocation of this
exception necessarily depends upon finding that the decision or order being appealed truly
involves collateral matters and is a final determination of those issues.

If there is no consolidation, and the respondent is convicted, an appeal to the proper court may
be taken immediately as in criminal cases.

In habeas corpus cases, the period for appeal shall be 48 hours from the notice of judgment
appealed from.

In criminal cases, the decision is promulgated in open court. The period for appeal should be
"within 15 days from promulgation"

Habaluyas Enterprise, Inc. v. Japzon, no motion for extension of time to file a motion for a new
trial or reconsideration shall be filed with the MeTCs, MTCs, MCTSCs, RTCs and the Ca. Strict
adherence to this prohibition has been consistently enforced. (Uy vs, CA) The Habulayas
prohibition should apply only to cases where ordinary appeals are perfected by mere notice of
appeal, and should not apply to petitions for review, which require careful preparation and
research in order to put up a persuasive and formidable position, involving more time and effort
in the drafting of the petition, as compared to the cases under appeal, where only the
requirement to perfect the appeal is the filing of the notice of appeal.
Where no notice of withdrawal or substitution of counsel was shown, notice to the counsel of
record is for all purposes notice to the client. Such notice is properly sent to the address of the
counsel of record in the absence of due notice to the court of the change of address and the date
of receipt is considered as the starting point from which the period of appeal prescribed by law
shall begin to run.

The 15 day period to appeal from the judgment or final order of a metropolitan or municipal or
municipal circuit trial court to the RTC, and from the final judgment or order of a RTC to the CA in
actions or proceedings originally filed in the RTC, is interrupted by a timely motion for new trial
or for reconsideration unless such motion fails to satisfy the requirements of Rule 37, Rules of
Court.

Where a notice of appeal is defective or erroneous, it is error for the trial court to deny the
motion to correct the notice and to dismiss the appeal on such basis if the appellant explains the
defect or error to be inadvertent or due to excusable negligence and no prejudice would be
caused to the appellant by its disallowance. The remedy is the filing of a corrected notice of
appeal. ( Coco-Chemical Philippines, Inc. v. CA, November 19, 1996)

When the trial court issues an order to amend or reform a record on appeal, it must specify the
matters to be included or excluded and fix the time limit within which the amended record on
appeal should be presented. ( De Castro v. CA ) Such submission of the redrafted record on
appeal as well as its approval are essential to the perfection of an appeal, so that a failure to
comply with the requirements of the rule inevitably results into the finality of the judgment or
final order to be appealed.

A record on appeal is also required in other proceedings where multiple appeals are allowed, like
in actions for recovery of property with accounting, in actions for participation of property with
accounting, and in special civil actions of expropriation and foreclosure of mortgage.

The rationale behind allowing more than one appeal in the same case is to enable the rest of the
case to proceed in the event that a separate and distinct issue is resolved by the court and held
to be final.

Although there was an order issued granting and denying a motion to dismiss, and a partial
judgment rendered upon a motion for judgment on the pleadings, there should be no multiple
appeals from such dispositions - and, therefore, no record on appeal would be necessary to
perfect the appeal. (Roman Catholic Archbishop of Manila v. CA)

Modes of Appeal in Criminal Cases - Sec. 3, Rule 122

PROCEDURE IN ORDINARY APPEALED CASES

Full amount of appellate docket fee and other lawful fees must be paid to clerk of court a quo

- 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. (Sec. 4, Rule 41) The payment of
the docket fees is not required if the appellant was authorized to appeal as an indigent litigant.
( Sec. 21, Rule 3 - INDIGENT PARTY - one who has no money or property sufficient and available
for food, shelter and basic necessities for himself and his family)

Solicitor General is the lawyer of the government

- only the solicitor general can bring or defend actions in behalf of the RP

Steps in the Appellate Process

A. Civil cases:

1. Duty of the Clerk of the trial court

- within 30 days after perfection of the appeal, it shall be the duty of the clerk of the trial court:

A. To verify the correctness of the original record or the record on appeal and to make a
certification of its correctness;

B. To verify the completeness of the records that will be transmitted to the appellate court;

C. If the records be found to be incomplete, to take such measures as may be required to

complete the records, availing of the authority that he or the court may exercise for this purpose;
and

D. To transmit the records to the appellate court.

E. If the efforts to complete the records fail, he shall indicate in his letter of transmittal to the
appellate court the reasons for their non-transmittal, and the steps taken or that could be taken
to have them available.

F. The clerk of the lower court shall furnish the parties with the letter of transmittal of the records
to the appellate court ( Sec 10, Rule 41 )

G. Sec. 11, Rule 41 - to attach to the record of the case 5 copies of the transcripts of the
testimonial evidence referred to in the record on appeal

H. The clerk should transmit to the appellate court the original records or the approved record on
appeal within 30 days from the perfection of the appeal, together with the proof of payment of
the appellate court docket and other lawful fees, a certified true copy of the minutes of the
proceedings, the order of its approval, the certificate of correctness, the original documentary
evidence referred to therein, and the original and 3 copies of the transcripts. (Sec. 1, Rule 41)

Lawyer's neglect to file brief for a client is a serious lapse

- a lawyer who fails without justification to file the brief for his client according to the Rules of
Court is guilty of inexcusable negligence. (People v. Villar)

He thereby violates his positive duty to protect the client's interest to the best of his ability and
with utmost diligence. ( Del Rosario v. CA )

He also commits a serious lapse in the duty to the court not to delay litigation but to aid in the
speedy administration of justice. ( In re: Santiago F. Marcos; People v. Daban; People v. Estocada )

In Perla Compania de Seguros Inc. v. Atty. Saquilabon, the lawyer was found guilty of neglect in
the handling of the case of his client because he failed the appeal brief, despite the leniency of
the CA in granting him extensions and reconsidering an earlier dismissal of the appeal for failure
to file the brief.

B. Criminal Cases

1. Upon the filing of the notice of appeal by the accused, the trial court shall direct the
stenographic reporters to transcribe their notes of the proceedings; the stenographic reporters
shall certify to the correctness of the notes and transcripts, which shall consists of the first
original copy and four duplicate copies to be filed with the clerk of the trial court "without
unnecessary delay" - Sec. 7, Rule 122

2. If the appeal is taken by the prosecution, the trial court shall direct the stenographic reporters
to transcribe only the portions of their notes of the proceedings which are specified in writing
upon motion.

3. In case the death penalty is imposed, the stenographic reporters shall file the original and four
copies of the duly certified transcript of their notes of the proceedings with the clerk of the trial
court within 30 days after rendition or promulgation of the sentence of the sentence, whether
the accused has appealed or not. No extension of time for the filing of such transcripts shall be
granted except by the SC and solely upon justifiable grounds. ( Art 47, RPC)

4. Upon appeal being taken, the clerk of court or the judge with whom the notice of appeal has
been filed must transmit within 5 days after the filing of the notice to the clerk of the court to
which the appeal is being taken the complete record in the case, together with the notice of
appeal.

This duty to transmit could not be excused simply because copies of the stenographic notes had
been made by the stenographic notes had not been made by the stenographers. What is required
to be transmitted within 5 days from the filing of the notice of appeal is the complete record, not
the transcripts of stenographic notes. If the transcripts could not be transmitted at the same time
as the record, it could be submitted to the appellate court later. ( Villanueva v. Atty. Pollentes )

5. Sec. 8, Rule 122

6. Sec. 3, Rule 124

7. Sec. 4, Rule 124

8. Sec. 5, Rule 124

En Banc Resolution in A.M. No. 99-2-03-SC entitled: "In Re: Extension of Time to File Comment or
Appellee's Brief by the Office of the Solicitor General" to be effective March 15, 1999

9. Sec. 7, Rule 124

10. Sec. 6, Rule 124

C. Oral Arguments

1. Sec. 1 Rule 49

2. Sec. 2 Rule 49

3. Sec. 3 Rule 49

THE BRIEFS ON APPEAL

The brief is a document prepared by counsel as a basis for oral arguments of a cause in the
appellate court, and contains a statement of the manner in which the questions in controversy
arise upon the appeal; the facts of the case so far as they relate to these questions; a
specification on the part of the plaintiff in error or appellant of the errors alleged to have been
committed by the trial court upon which reversal is asked for; and the arguments consisting of
the propositions of law or fact to be maintained, the reasons upon which they are based, and
citation of authorities in their support.

In most jurisdictions, it is printed, although, in the Philippines, it is permitted to submit the

brief in mimeographed or typewritten form.

PURPOSE: to call the attention of the appellate court to the merits of the controversy and the
vital questions at issue, together with the reasons why the adjudication should be in favor of this
or that litigant.

SUBSIDIARY PURPOSE: to give information to the opposing counsel and to indicate the limits of
the oral arguments, if any, and should serve to make the same clear, logical, and helpful to the
appellate court.

Generally, the issues to be raised during an appeal can be any question of law or of fact that has
been raised in the lower court and which is within the issues framed by the parties, regardless of
whether or not the appellant has filed a motion for new trial in the court below. ( Sec. 15, Rule 44)
The reason for this requirement is that it would be offensive to the basic rules of fair play and
justice to allow the appellant to raise questions which have not been passed upon by the triall
judge. ( Lopez Realty, Inc. Fontecha; Ramos v. IAC July 5, 1989)

Raise-or-waive rule

The nomenclature may not be all that favored for the reason that "forfeit" may be a better
description than "waive." A waiver suggests an intentional relinquishment of a recognized right
while a forfeiture may occur either intentionally or inadvertently. The latter term seems to be
moore fitting, especially if the failure to raise at the trial level was due to mere inadvertence.

Rationale: it is a necessary corollary of our adversary system in which issues are framed by the
litigants and presumed to a court; that fairness to all parties requires a litigant to advance his
contentions at a time when there is an opportunity to respond to them factually, if his opponent
chooses to; that the rule promotes efficient trial proceedings; that reversing for error not
preserved permits the losing side to second-guess its tactical decisions after they do not produce
the desired result; and that there is something unseemly about telling a lower court it was wrong
when it never was presented with the opportunity to be right.

Principal rationale: Judicial economy

(1) if the losing side can obtain an appellate reversal because of error not objected to, the parties
and public are put to the expense of retrial that could have been avoided had an objection been
made; and

(2) if an issue had been raised in the trial court, it could have been raised in the trial court, it
could have been resolved there, and the parties and public would be spared the expense of an
appeal. (State v. Applegate)

THE BRIEF OF APPEAL

Kinds of Briefs:

1. Appellant's Brief

2. Appellee's Brief

3. Reply Brief

Only reversible errors should be assigned. A reversible error is an error sufficiently serious or
grave and is prejudicial to the substantial rights of the appellant.

The Statement of Facts, which shall be a clear and concise statement in a narrative form of the
facts admitted by both parties and of those in controversy, together with the substance of the
proof relating thereto in sufficient detail to make it clearly intelligible, with page references to the
record.

A point without merit deserves no place in the brief.

Unnecessary repetition is objectionable in a brief.

"Cf." - compared with

An appellee who has not himself appealed cannot obtain from the appellate court any
affirmative relief other than those granted in the decision of the court below.
ESSENTIALS OF BRIEF MAKING

He who can "well state the facts is a man of rare ability"

Stare decisis et non quieta movere - to adhere to precedent and not to unsettle things which are
settled. It simply means that a principle underlying the decision in one case will be deemed of
imperative authority, controlling the decisions of like cases in the same court and in lower courts
within the same jurisdiction, unless and until the decision in question is reversed or overruled by
a court of competent authority. A single decision does not necessarily create a precedent to be
followed.

Doctrine of precedent

"Like cases should be decided alike"

Obiter dicta - by the way; incidentally or collaterally

An expression of opinion on a point involved in a case, argued by counsel and deliberately passed
upon by the SC, although not essential to the disposition of the case, if a dictum, should be
considered judicial dictum, as distinguished from a mere obiter dictum, which is an expression
originating alone with the jurist writing the opinion as an argument or illustration. Such judicial
dictum is entitled to much weight and should be followed unless found to be erroneous. With
greater reason is this so in the case of an expression which is expressly declared by the SC to be
announced as a guide for future conduct. Such a statement of a rule of practice for the guidance
of inferior courts and of the Bar is not obiter dictum.

Dissents as authority

- the unanimous opinion of the SC whether en banc or in division, is naturally higher in rank and
value than one where there has been a dissent. The existence of a dissent in a decision indicates
that the consideration of a case, however thorough, might not have been sufficient to carry
conviction to the minds of the jurists in the SC. True it is, indeed, that "the closeness of the
division attests the measure of the doubt." The weight of the ratio decidendi is accordingly
lessened by the dissent.

DISMISSAL AND REINSTATEMENT OF APPEALS

Motions to dismiss appeals relate to lack of jurisdiction on the part of the appellate court or to
the failure to observe the law or the rules governing appeals or to causes arising subsequent to
the judgment or order from which the appeal is taken. (Velasco v. Rosenberg)

Accordingly, a rule that merely confers the power to dismiss the appeal, like Sec. 1, Rule 50, Rules
of Court, should be construed as not imposing a duty; it is not mandatory but merely directory,
requiring in its application a great amount of circumspection after consideration of all the
attendant circumstances. ( Advincula v. IAC)

Failure of the appellant to pay the docket and other lawful fees as provided in Sec. 5, Rule 40, and
in Sec. 4, Rule 41

The payment is considered mandatory and jurisdictional and the failure to make it is cause for
the dismissal of the appeal. (Pedrosa v. Hill)

The payment of only 1/2 or less than the full amount of the docket fee within the reglementary
period is insufficient because no appeal was deemed perfected. (Lee v. Republic of the
Philippines)

Because an indigent litigant is exempt from the payment of legal fees, an appeal taken by him
cannot be dismissed upon this ground. (De Guzman v. IAC)

A frivolous appeal is one presenting no justifiable question, or one so readily recognizable as

devoid of merit on the face of the record that there is little, if any, prospect that it can even
succeed. ( De la Cruz v. Blanco )

Any withdrawal of the appeal during its pendency on the appellate court comes within the sound
discretion of said court.

St. Martin Funeral Home v. NLRC, September 16, 1998

- that the remedy of the aggrieved party to review a decision of the NLRC was to timely file a
motion for reconsideration of the decision and then seasonably avail himself of the SCA of
certiorari under Rule 65 within the reglementary period of 60 days from notice of the decision;
Appeals of decisions, resolutions, or orders of the Ombudsman in administrative cases should be
taken to the CA under Rule 43, Sec. 27, RA 6770 ( The Ombudsman Act of 1987), which requires
such appeals to be taken to the SC by petition for review on certiorari under Rule 45, has been
declared invalid and unconstitutional in

Fabian v. Desierto, September 16, 1998

- on the ground that said law, being a statute increasing the appellate jurisdiction of the SC, was
enacted without the advice and consent of the SC as provided for in Sec. 30, Art. VI, of the 1987
Constitution.

OTHER MODES OF APPEAL

Errors reviewable are those committed by respondent court

Averments of the petition determined the nature of action

Review under Rule 45 is not proper mode to review judgments and Final Orders of quasi-judicial
bodies

Congress cannot increase appellate jurisdiction of SC without its advice and consent

In the case of Fabian v. Desierto, the SC declared Sec. 27, RA 6770, Sec. 7, Rule III, of AO No.
07 (Rules of Procedure of the Office of the Ombudsman), and any other provisions of law or
issuances implementing RA 6770 (insofar as they provide for appeals in administrative
disciplinary cases) to be invalid and of no further force and effect on the ground that RA 6770
was enacted in violation of the proscription in Sec. 30, Art. VI, of the 1987 Constitution against a
law increasing the appellate jurisdiction of the SC "without its advice and consent."

EXCEPTIONS: WHEN FINDINGS OF FACT OF CA, REVIEWED

The SC may review the findings of fact of the CA in the following cases:

1. When the factual findings of the CA and the trial court are contradictory;

2. When the findings are grounded entirely on speculation, surmises, or conjectures;

3. When the inference made by the CA from its findings of fact is manifestly mistaken,
absurd, or impossible;

4. When there is grave abuse of discretion in the appreciation of facts;

 5. When the CA, in making its findings, went beyond the issues of the case, and such
findings are contrary to the admissions of both appellant and appellee;

6. When the judgment of the CA is premised on a misapprehension of facts;

7. When the CA fails to notice certain relevant facts which, if properly considered, will justify
a different conclusion;

8. When the findings of fact are themselves conflicting;

9. When the findings of fact are conclusions without citation of the specific evidence on
which they are based; and

10. When the findings of fact of the CA are premised on the absence of evidence but such
findings are contradicted by the evidence on record ( Sta. Maria v. CA, January 28, 1998)

Where a petition for review on certiorari was earlier dismissed by the SC on the ground that
there was no reversible error committed by the CA, another petition based on substantially the
same grounds will not be entertained because it is settled that the dismissal of the first petition
was an adjudication on the merits of a controversy, which means that the SC agrees with the
findings and conclusions of the CA or that the decision sought to be reviewed was correct.
(Macapagal v. CA, January 28, 1988)

CERTIORARI IN RULE 45 CERTIORARI IN RULE 65

mode of appeal Original special civil action

limited to questions of law acts of the lower court done

without or in excess of
jurisdiction or with grave
abuse of discretion

involves the review of a generally directed at an

judgment, final order, or interlocutory order of the
resolution on the merits court prior to appeal of the
judgment on the main case

the period to file the appeal must be filed seasonably,

on certiorari is 15 days from without undue delay, and
the notice of the judgment, before the act, order, or
final order, or resolution of the proceeding sought to be
denial of the motion for new reviewed or set aside
trial or reconsideration becomes a fait accompli that
its reversal shall have become
CERTIORARI IN RULE 45 CERTIORARI IN RULE 65

academic, but not later than

60 days from notice of the
judgment, order or resolution
of the judgment, order or
resolution to be assailed.

the parties are the original the parties are the aggrieved
parties in the action who party against the lower court
thereby become petitioner or quasi-judicial agency or
(appellant) and respondent body and the prevailing party
(appellee), without joining the in the lower court or agency,
lower court or judges thereof who thereby become the
either as petitioners or petitioner and the
respondents respondents, respectively

the prior filing of a motion for a motion for reconsideration is

reconsideration is not a condition precedent (Villa
required Rey Transit v. Bello), subject to
certain exceptions

the appellate court exercises the superior court exercises

appellate jurisdiction and original jurisdiction under its
power of review power of control and
supervision over the orders of
the lower court

DECISION MAKING: CONTENT, FORM AND STYLE

EXCEPTION: TO MAKE THE JUDGMENT CONFORM TO PREVAILING CIRCUMSTANCES

There may be modifications to make a final decision conform to the prevailing circumstances. In
Industrial Timber Corp., et. Al., v. NLRC, et al., the SC held:

"It is true that after a judgment has become final and executory, it can no longer be modified or
otherwise disturbed. However, this principle admits of exceptions, as where facts and
circumstances transpire which render its execution impossible or unjust and it therefore becomes
necessary, in the interest of justice, to direct its modification in order to harmonize the
disposition with the prevailing circumstances. ( Seaven Carrier, Inc. v. GTI Sportswear Corp.,)

GENERAL RULE: that once a judgment becomes final and executory, said judgment can no longer
be disturbed, altered or modified.

EXCEPTIONS: in the higher interest of justice, to direct its modification in order to harmonize the
disposition with the prevailing circumstances or whenever it is necessary to accomplish the aims
of justice

EXCEPTION: The Slip Rule - To correct clerical errors and ambiguities in decision

Where the dispositive portion of a final and executory judgment contains a clerical error or an
ambiguity arising from an inadvertent omission, the error or an ambiguity arising from an
inadvertent omission, the error or ambiguity may be clarified by reference to the body of the
decision itself. This is generally known as the slip rule - so called because the clerical mistakes or
errors arise from accidental slip or omission.

The slip rule is applicable only for purpose of rectification to allow the judge or court to correct a
formal order which by accident or error does not reflect the actual decision; but it cannot entitle
the judge or court to reconsider a final and regular decision or order, even if obtained by fraud.
The rule cannot also be used where the amendment of the decision or order cannot be made
without injustice or prejudice being occasioned against the other parties.

MOTIONS FOR RECONSIDERATION

ONLY ONE MOTION FOR RECONSIDERATION IS ALLOWED FROM APPEAL

A party may move for the reconsideration of the decision of the appellate court only once. A
second motion for reconsideration of a judgment or final resolution by the same party shall not be
entertained. ( Sec. 2, Rule 52)

REASON FOR PROHIBITION AGAINST SECOND MOTION FOR RECONSIDERATION

In Ortigas and Company Limited Partnership v. Judge Velasco, CJ Narvasa, resolving the
motion to cite a respondent for filing several motions following the denial of the first motion for
reconsideration, explained the reason for the prohibition against a second motion for
reconsideration in appeals before the SC thus:

"The filing of a motion for reconsideration authorized by Rue 52 of the Rules of Court,
does not impose on the Court the obligation to deal individually and specifically with the
grounds relied upon therefor, in much the same way that the Court does in its judgment or final
order as regards the issues raised and submitted for decision. This would be a raised and
submitted for decision. This would be a useless formality of ritual invariably involving merely
a reiteration of the reasons already set forth in the judgment or final order for rejecting the
arguments advanced by the movant; and it would be needless act, too, with respect to issues
raised for the first time, these being, as above stated, deemed waived because not asserted at
the first opportunity. It suffices for the Court to deal generally and summarily with the motion
for reconsideration, and merely state a legal ground for its denial (Sec. 14, Art. VIII,
Constitution) xxx"

"The denial of a motion for reconsideration signifies that the grounds relied upon have
been found, upon due deliberation, to be without merit, as not being of sufficient weight to
warrant a modification of the judgment or final order. It means not only that the grounds relied
upon are lacking in merit but also that any other, not so raised, is deemed waived and may no
longer be set up in a subsequent motion or application to overturn the judgment; and this is true,
whatever may be the title given to such motion or application, whether it be "second motion for
reconsideration" or "motion for clarification" or "plea for due process" or "prayer for a second
look," or "motion to defer, or set aside, entry of judgment," or "motion to refer case to Court En
Banc," etc.

Xx xx xx

"While the denial of a motion for reconsideration of a judgment or final order is normally
accompanied by the modifier "final" or "with finality," there may be a denial not so qualified.
That is of no consequence. By no means may it be taken as indicating any uncertainty or
indecisiveness on the part of the Court regarding its denial of reconsideration, or an
encouragement or expectation of a second motion for reconsideration. The modifier serves
simply too emphasize the import and effect of the denial of the motion for reconsideration; that
in the Court's considered view, nothing more is left to be discussed, clarified or done in the case,
all issues raised having been passed upon and definitely resolved, and any other which could
have been raised having been waived and no longer being available as ground for a second
motion. A denial with finality stresses that the case is considered closed."

APPELLATE DECISION MAKING: PRINCIPLES AND GUIDELINES

Dual Function of Appellate Court

An appellate court serves a dual function:

1. The review for correctness function - whereby the case is reviewed on appeal to assure that
substantial justice has been done

2. The institutional function - refers to the progressive development of the law for general
application in the judicial system

Differently stated, the review for correctness function is concerned with the justice of the
particular case while institutional function is concerned with the articulation and application of
constitutional principles, the authoritative interpretation of statutes, and the formulation of
policy within the proper sphere of the judicial function.

The duality relates to the dual function of all adjudication in the common law system. The
first pertains to the doctrine of res judicata, which decides the case and settles the controversy;
the second is the doctrine of stare decisis, which pertains to the precedential vaue of the case
which assists in deciding future similar cases by the application of the rule or principle derived
from the earlier case.

With each level of appellate structure, the review for correctness function diminishes and
the institutional function, which concerns itself with uniformity of judicial administration and the
progressive development of the law, increases.

The "Harmless Error" Rule

It is not enough for counsel of the appellant to point out errors to the appellate court, for there
must be a persuasive demonstration that the errors were reversible. An error is considered
reversible only if it sufficiently serious or grave that the substantial rights of the appellant are
prejudiced. Rule 51, Sec. 6

GENERAL RULES:

The appellate court, as a rule, can consider only matters which are contained in the records of
the trial court on record on appeal. Ordinarily, the original records of the trial court are brought
to the appellate court during the appeal, unless the case is one where the appeal should be by
record on appeal, or by petition for review.

The rule that only evidence formally offered before the trial court can be considered may be
relaxed provided two requisites are present:
1. The evidence must have been duly identified by testimony duly recorded; and

2. The evidence must have been incorporated in the records of the case

EXCEPTION:

Matters of Jurisdiction

Judicial Notice

Published Data of a generally factual nature (The Brandeis Brief)

- Muller v. Oregon came at a time when the US SC was consistently ruling state laws limiting
working hours to be unconstitutional on the ground that they infringed the liberty of contract
without due process of law. The most well-known decision of this genre was the infamous
Lochner v. New York. Brandeis' brief was uncommon for it departed from the usual style in that it
contained only two pages of legal arguments but had a section of 95 pages long and fifteen pages
of state and foreign laws that limited women's working hours.

Offer of Proof / Excluded Evidence

- to preserve the record by making an offer of proof, or tender of excluded evidence.

This rule on offer of proof or tender of excluded evidence serves a two-fold purpose,
namely:

(1) to inform the trial court what is expected to be proved; and

(2) to procure exceptions to the exclusion of the offered evidence so that the appellate court may
be enabled to determine from the record whether the evidence is competent or not.

Change of Theory Not Allowed on appeal: exceptions

- " comprehensive and orderly mental arrangement of principles and facts, conceived and
constructed for the purpose of securing a judgment or decree of a court in favor of a litigant."

There are recognized exceptions to the ban against change of theory on appeal, namely:

1. Where the change involved only a question of law

2. Where the new theory is advanced as a basis for affirmance, rather than reversal, of the
judgment on appeal;

3. Where the matter was one of great public interest, and

4. Where substantial justice required that the inquiry not be restricted

"While a lawyer is not supposed to know all the laws, he is expected to take such reasonable
precaution in the discharge of his duty to his client and for his professional guidance as will not
make him, who is sworn to uphold the law, a transgressor of its precepts."

The determination of issues at the pre-trial conference bars the consideration of other questions
on appeal, because pre-trial is primarily intended to make certain that all issues necessary to the
disposition of a case are properly raised; thus, to avoid surprises, the parties are expected to
disclose at pre-trial all issues of law and fact which they intend to raise at the trial, except such as
may involve privileged or impeaching matters.

Decisions of Trial Courts, Always Presumed Correct

Generally, findings on credibility of trial court not disturbed on appeal

EFFECTS OF JUDGMENTS

Res Judicata - matter adjudged; a thing judicially acted upon or decided; a thing or matter settled
by judgment

- it is to the interest of the public that there should be an end to litigation by the same parties
over a subject once fully and fairly adjudicated.

Two grounds embodied in various maxims of the common law:

1. Public policy and necessity - which makes it to the interest of the State that there should be an
end to litigation

2. Hardship on the individual that he should be vexed twice for one and the same cause

The doctrine is also known as estoppel per rem judicatam and involves both cause of action
estoppel and issue estoppel.

PURPOSE:
1. To prevent unnecessary proceedings involving expenses to the parties and wastage of the
court's time which could be used by others; and

2. To avoid state litigations as well as to enable the defendant to know the extent of the claims
being made arising out of the same single incident

Conclusiveness of Judgment - means that an issue actually and directly passed upon and
determined in a former suit cannot again be drawn in question in any future action between the
same parties involving a different cause of action. It is also known as collateral estoppel or
preclusion of issues, as distinguished from preclusion of claims, or res judicata.

In Kilosbayan, Inc. v. Morato, the doctrine of conclusiveness of judgment was held subejct to
the exception that a question might be reopened if it was a legal question and the two actions
involved substantially different claims.

To adhere to precedent and not to unsettle things which are settled. - Stare Decisis

Final Judgments not to be disturbed but respected, even if wrong

Effect of Reversal of Judgment - Sec. 5, Rule 39

- there is no need for the appellate court to specify in its judgment reversing the judgment or
final order of the court a quo the restitution of property whose possession has been given to a
party upon of writ of execution issued pending appeal.