ROGELIO B. RAGASAJO, PETITIONER, VS. THE INTERMEDIATE APPELLATE COURT AND THE INTESTATE ESTATE OF FLORENTINO MANUNGAS, REPRESENTED BY ITS ADMINISTRATRIX ENGRACIA N. MANUNGAS, RE…

This is a petition for certiorari and mandamus
seeking the nullification of the Resolutions of the then Intermediate Appellate
Court dated August 10, 1984
and September 27, 1984, in
AC-G.R. No. CV-0719* denying petitioner’s motion for
reconsideration of the Resolution of June
25, 1984, declaring his appeal abandoned, and to command respondent
court to admit petitioner’s brief.

The issue that emerges in this petition is whether or not the right to appeal which had been declared
abandoned for failure to file appellant’s brief within the period prescribed by
the rules may be revived by the
filing of a motion for reconsideration within the reglementary period.

It appears that petitioner filed a civil suit for Cancellation of
Titles** against the Intestate Estate of Florentino
Manungas represented by Administratrix Engracia Manungas before the then Court
of First Instance of Davao, 16th Judicial District.^[1]
The complaint alleged among others
that private respondent unlawfully and wrongfully
prepared a survey plan of Lot 866 by including
11,132 sq. m. of petitioner and fraudulently secured title in her favor.  Respondent vehemently denied the accusation
and alleged otherwise.

After trial on the merits, the court a quo rendered a decision in favor of respondent
and against herein petitioner, the dispositive part of which reads as follows:

“WHEREFORE, judgment is hereby rendered:

1).     Upholding the validity
of TCT Nos. T-30203, T-30204, T-30205, T-30206, T-30207 and T-30208 and
ordering the cancellation of the notice of lis pendens from TCT No. T-30203;

2).     Nullifying OCT No.
P-12853 and ordering the plaintiff and his privies to vacate and surrender the
possession of the lots covered thereby, together with all improvements, free
from liens and encumbrances, to Engracia Vda. de Manungas and the Intestate
Estate of Florentino Manungas who are the true and lawful owners, it appearing
that the said plaintiff was a purchaser and builder in bad faith;

3).     Ordering the plaintiff
to pay to the Manungases nominal damages of P15,000, plus P15,000 moral and
P5,000, exemplary damages, and attorney’s fees of P5,000.

Costs against the
plaintiff.”^[2]

Petitioner appealed to the respondent Intermediate Appellate
Court by filing a notice of appeal.  On November 16, 1983, petitioner
through counsel, Occena Law Office, received a notice requiring him to pay a
docket fee of P68.00 within fifteen (15) days from notice, which the petitioner
complied with on November 24, 1984,
by remitting Postal Money Order, F-5166765 under Office Receipt No.
2526531E.  On December 9, 1983, a notice requiring petitioner
to file the appellant’s brief within forty-five (45) days from receipt was
mailed by the clerk of court of the Intermediate Appellate Court to the Occena
Law Office.^[3]
On December 29, 1983,
petitioner’s counsel received the notice to file brief.^[4]

On April 24, 1984,
without any brief having been filed, and without any motion for extension of
time having been sought by petitioner, private respondent filed an ex-parte
motion to dismiss the appeal.^[5]

In the Resolution of June
25, 1984, respondent court declared the appeal abandoned for
failure of petitioner to file the required brief.^[6]
On July 11, 1984,
petitioner’s counsel received the notice of dismissal.

On July 26, 1984,
petitioner filed with the respondent court a motion for reconsideration of the
Resolution of June 25, 1984,
and for admission of appellant’s brief with one (1) copy of brief attached,
through registered mail, under Registry No. 4954 of Davao City Post Office and
another copy served upon respondents’ counsel under Registry Receipt No.
4953.  On the same date, petitioner filed
with respondent court six (6) more copies of the brief through air cargo under
Airway Bill No. 216733 of the Allied Brokerage Corporation, Davao
City.  On July
30, 1984, respondent court received petitioner’s motion for
reconsideration.^[7]

On August 10, 1984,
respondent court, considering the day of receipt as the date of filing, issued
a resolution^[8]
which reads thus:

“Acting upon the motion for reconsideration filed by counsel
for plaintiff-appellant on July 30,
1984, the Court resolved to deny the motion, the same having been
filed late.”

On August 25, 1984,
petitioner filed a motion for reconsideration of the Resolution of August 10, 1984,^[9]
while private respondent filed a timely opposition thereto.^[10]

On September 27, 1984,
respondent court denied petitioner’s motion of August 25, 1984.^[11]
On October 12, 1984, the
Resolution of June 25, 1984,
became final.

Hence, on October 26,
1984, petitioner filed the present petition.*

A perusal of the petition shows that the petitioner’s cause of
action is predicated upon the respondent court’s denial of his motion for
reconsideration of the Resolution of June
25, 1984, declaring petitioner’s appeal abandoned.  It is the position of the petitioner that
with the said denial, respondent court unlawfully deprived him of his right to
appeal considering that his motion for reconsideration was filed in due
time.  Petitioner maintains further that
the respondent court acted with grave abuse of discretion in considering the
day of receipt, July 30, 1984,
as the date of filing, and thus denying his motion for reconsideration,
whereas, he filed his motion on July
26, 1984 through registered mail.

The right to appeal is not a natural right nor part of due
process but merely a statutory privilege and may be exercised only in the
manner and in accordance with the provisions of the law.^[12]
It is the rule in this jurisdiction that an appeal from the Court of
First Instance* to the Court of Appeals may be
taken by filing with the trial court within thirty (30) days^[13]
from notice of order, or judgment a notice of appeal, an appeal bond and a
record on appeal.^[14]
Upon receipt of the printed copies of the record on appeal, the clerk shall
ascertain whether or not the transcript or exhibits have been elevated and if
not, shall cause this to be done.^[15]
Upon receipt of the transcript and exhibits, the clerk shall notify both
parties that all evidence, oral or documentary is already attached to the
record.^[16]
From the notice of the Clerk of Court to the effect that all evidence, oral or
documentary is already attached to the record, it is the duty of the appellant
to file the printed brief with the Court of Appeals.^[17]

The record before Us shows that petitioner failed to comply with
respondent court’s order of December 9, 1984, requiring the filing of
appellants’ brief within forty-five (45) days from receipt thereof, the notice
of which was received by petitioner’s
counsel on December 29, 1984, as per registry return card,^[18]
a xerox copy of which was made part of the record of this case with a
corresponding certification issued by respondent court’s clerk of court.^[19]
Petitioner, instead of asking of this Court and that of the respondent court
for liberality by stating that his failure to do so was due to excusable
oversight, asserted that in fact no such notice to file brief was received in
his office.  This pretension must fall
for as above stated said counsel received said notice to file brief on December 29, 1983 as shown by the
registry return card.

Under Rule 50 of the Rules, one of the grounds by which the Court of Appeals may, on its own motion or
that of the appellee, dismiss the appeal is the failure on the part of appellant
(or his printer) to serve and file the required number of copies of his brief
within the time prescribed by these rules.^[20]
Under the said provision, the Court of Appeals has a discretion to dismiss or
not to dismiss the appeal having
in mind the circumstances obtaining in each case.  In the present case, from the date of receipt
of notice to file brief on December
29, 1983, there being no extension of time sought, the forty-five
(45) days lapsed on February 12, 1984.  Thus the Resolution of respondent court of
June 25, 1984 declaring the appeal abandoned is in order.

It is however the position of the petitioner that his motion for
reconsideration should not have been denied as it was filed in due time.

The petitioner’s motion was filed through registered mail on July 26, 1984, which was the last day
of the 15-day period of appeal since petitioner received notice of the order of
dismissal on July 11, 1984.  The date of mailing shall be considered as
the date of filing^[21]
Contrary to the finding of respondent court, the said motion was filed on time.

In the motion for reconsideration the petitioner failed to show
that it was due to excusable negligence or oversight that the brief was not
filed on time no did petitioner demonstrate the merit of his appeal.  The respondent court therefore did not err in denying the motion for
reconsideration even if We overlook its error in considering the motion to have
been filed out of time.

The court would like to stress that the attempt of counsel for
petitioner to mislead the court by denying he ever received the notice to file
brief when in fact he did is noted with disapproval by the court.  As an officer of the court he must conduct
himself with candor and sincerity towards the courts.  His dedication to the cause of his client is
no excuse.  He does more damage to his
client and to his standing as a member of the Philippine Bar in so doing.  Let this serve as a warning.

Nevertheless the court examined the judgment of the lower court
sought to be reviewed, wherein the trial court found, among others, that
contrary to the claim of petitioner that the transfer certificates of title
covering the properties of private respondent had encroached upon the titled
properties of petitioner, it is the certificates of title covering
the properties of petitioner that encroached into the properties of private
respondent by an area of approximately 11,132 square meters.^[22]
On the assumption that this finding of the lower court is supported by the evidence, and considering the
contention of petitioner in his appeal brief filed in the Court of Appeals that
his property covered by TCT No. T-12852
has an area of 5,695 square meters while his property covered by OCT
P-12853 has an area of 34,118 square meters, or a total of 39,813 square meters
for both properties,^[23]
then the trial court appears to have committed an error in cancelling said OCT.
No. P-12853 of petitioner and awarding possession and ownership of the entire property to private respondent.  Only the portion of the said property of
private respondent encroached upon by petitioner should be returned to said
respondent and only to this extent should the title of petitioner be cancelled
and nullified.

Unfortunately, since the judgment has now become final, the
herein petition may not be given due course under the circumstances of the case
so that this apparent injustice that appears to have been committed cannot be
corrected in this proceeding.  Indeed
petitioner did not even raise this issue in the petition.  Nevertheless, at the time of enforcement of
the judgment petitioner may invoke the power
of the lower court to correct the ambiguity in the dispositive part
and/or such clerical error therein so that it may conform to the findings and
conclusion of the Court as embodied in the body of the judgment.^[24]

WHEREFORE, the petition is DISMISSED for lack of merit
without pronouncement as to costs.

SO ORDERED.

Teehankee, C.J., Narvasa, Cruz, and
Paras, JJ., concur.

* Penned by Justice Jorge R. Coquia, concurred into by
Justices Mariano Zosa and Floreliana Castro Bartolome.

** TCT Nos. 30203; T-30204;
T-30205; T-30206; T-30207 & T-30208.

^[1]
Docketed as Civil Case No. 1330.

^[2]
Pages 110-124, Rollo, Decision,
Civil Case No. 1330, Appendix 7,
Private Respondent.

^[3]
Pages 98-99, Rollo, Appendix 1, Respondent.

^[4]
Page 100, Rollo, Xerox copy of the registry return card with
corresponding certification issued by the
clerk of court.

^[5]
P. 101, Rollo, Appendix 3, Respondent.

^[6]
Pp. 32-33, Rollo, Annexes A &
B, Petition.

^[7]
Pp. 13-15, Rollo, Annex A, Petition.

^[8]
Pp. 107, Rollo, Appendix 5, Respondent.

^[9]
Pp. 16-18, Rollo, Annex B, Petition.

^[10]
Pp. 101-102, Rollo, Appendix 3,
Respondent.

^[11]
P. 37, Rollo.

* After the filing of this
petition, antecedent facts followed:

On November 26, 1984, Entry of Judgment
and the entire records of the case were sent to the Court of origin (Page 32, Rollo,
Annex A, Comment);

On January 23, 1984, the court of origin
issued the writ of execution;

On February 4, 1985, petitioner filed a
Motion To Set Aside Void and Unwarranted Writ;

On February 15, 1985, respondent filed a
comment thereto.

Note:  To date, no resolution has yet been issued on
this particular matter.

^[12]
Velasco vs. CA, 51 SCRA 439; Bello
vs. Fernando, 4 SCRA 135; Aguilar and Canapao vs. Navarro, 55
Phil. 898, 904.

* Now the Regional Trial
Court, Section 13, Batas Pambansa Blg. 129.

^[13]
Section 3, Rule 41, has been modified by Section 39 BP Blg. 129, otherwise
known as the Judiciary Act of 1981.  The
period within which an appeal may be taken has been reduced to 15 days, except habeas corpus
cases.

^[14]
Section 3, Rule 41, Revised Rules of Court.

^[15]
Section 8, Rule 46, Revised Rules of Court.

^[16]
Section 9, Rule 46, Revised Rules of Court.

^[17]
Section 10, Rule 46, Revised Rules of Court.

^[18]
Supra.

^[19]
Supra.

^[20]
Section 1(f), Rule 50

^[21]
Section 1, Rule 13, Revised Rules of Court.

^[22]
P. 122, Rollo; p. 13, Decision.

^[23]
P. 36, Brief of Petitioner, p. 189, Rollo.

^[24]
Ilacad vs. Court of Appeals, August 26, 1977, 78 SCRA 308 citing Padua vs.
Robles; Locsin vs. Paredes and Hodges, G.R. No. 45030, March 28, 1936,
63 Phil. 91; Republic vs. De los Angeles, Oct. 4, 1971, 41 SCRA 427, 443
& 444; Filipino Legion Corp. vs. Court of Appeals, G.R. L-22364,
April 30, 1974, 36 SCRA 675, 691-692.