PACIFIC BANKING CORPORATION, PETITIONERS, VS. COURT OF APPEALS, (FOURTH DIVISION), WILLIAM LOK GO, FRANKLIN LOK GO, NATHALIE LOK GO-ONG AND CARL DICKSON LOK GO, REPRESENTED HERE…

This is a petition for certiorari and mandamus
which finds its roots in Civil Case No. 53009 for annulment of foreclosure,
conveyance and damages. The case was
filed by private respondents against petitioner before the RTC of Pasig, Metro
Manila, Br. 163. On November 15, 1990,
the trial court decided in favor of private respondents, thus:

“WHEREFORE, in view of the foregoing, judgment is hereby
rendered in favor of (private respondents) and against (petitioner):

1. Declaring the foreclosure proceedings
involving the properties covered by TRANSFER CERTIFICATE OF TITLE NOS. 180592
and 180593 (Now TCT Nos. 44528 and 44529) only as null and void, with the
exception of the property covered by TCT No. 1322;

2. Ordering the
Register of Deeds of Rizal (now San Juan, Metro Manila) to cancel TCT Nos.
44528 and 44529 and restoring TCT Nos. 180592 and 180593 in the same faith and credit prior to
the foreclosure proceedings;

3. Ordering (petitioner) to pay attorney’s fees
in the amount of P20,000.00;

4. (Petitioner’s) counterclaim is hereby
Dismissed for lack of merit.

“SO ORDERED.”

On November 26, 1990, petitioner bank filed a notice of appeal
with the RTC. Nine months later, or on
August 16, 1991, private respondents moved respondent court to dismiss the
appeal for failure to prosecute. They
pointed to petitioner’s failure, since the filing of its notice of appeal,
“to cause the lower court to transmit the records of the case to this
Honorable Court within a reasonable period of time.”

Petitioner opposed the motion to dismiss on August 22, 1991. Relevant portions of its opposition read as follows:

“xxx                             xxx                                                 xxx

“2. Contrary to (private respondents’)
accusations, (petitioner) had tried its very best to follow-up the transmission of the entire records of the
case to this Honorable Court. However,
at those moments, the stenographic reporters were not yet through transcribing
the stenographic notes; that it is only now that the transcription was
completed and herein (petitioner) was required to pay the transcripts to be
forwarded to this Honorable Court pursuant to the new policy of the Supreme
Court regarding transcript of stenographic notes on appealed cases.

“xxx                                                       xxx                                                           xxx

“4. Furthermore, (petitioner) would like also to
point out that while it is true that the rules require that party litigants
should see to it that the Court is made aware of any delay in action over their
cases, it also imposes upon the clerk or the Judge of the Court to whom the
appeal is addressed the positive duty to transmit to the Clerk of Court to
which the appeal is taken the complete records of the case. It also imposes upon the stenographers the duty
to transcribe the stenographic notes of the proceedings without unnecessary
delay. However, as stated earlier, the
clerks failed to do their share. Clearly, therefore, (petitioner) should not be punished for this failure
and the appeal should and must not be dismissed simply because of this
reason. x x x.”^[1]

On September 17, 1991, respondent court^[2]
dismissed petitioner’s appeal, docketed as CA-G.R. CV No. 33421, through its
first impugned Resolution. It held, viz.:

“x x x (I)n Sarmiento
v. IAC, 153 SCRA 110, the High Court ruled that while it is the duty of the
clerk of the trial court to immediately transmit to the appellate court the
record on appeal, it is also the duty of the appellant to see to it that the
clerk acts accordingly, and he cannot simply fold his arms and sit idly by and
then wash his hands and say that the delay in the transmittal of the record to
the appellate court is not his fault. Following this ruling of the High Court, and in line with the efforts of all courts to expedite the
disposition of cases, (private respondents) (are) right in saying that
(petitioner) Bank’s conduct is what the late Chief Justice Moran considered in
his Comments on the Rules of Court as ‘slothful’ and warrants dismissal of its
present appeal, especially as said Bank must have not only a house counsel but
retained lawyers to attend to its court cases with diligence and
dispatch.” (Citations omitted.)

On November 8, 1991, respondent court issued its second impugned
Resolution, as it denied petitioner’s motion for reconsideration, thus:

“xxx                                                                    xxx                                                           xxx

“In the instant motion, (petitioner) bank attributes fault for
the delay in its prosecution of this appeal to Rhodora G. Valdez, court aide of
the lower court, who stated in her affidavit attached to the bank’s motion
that:

(1) The transcript of
the stenographic notes were either incomplete or not initialed, and that the
two stenographers who took notes at the hearing of the case and who had been
transferred to the RTC of Makati had allegedly initialed their TSN only in
July, 1991;

(2) That another
stenographer who had transferred to the RTC of Manila submitted the duplicate
of her TSN only on June 19, 1991; and

(3) That upon
completion of the TSN, she (Valdez) failed to forward the records of the case to
this Court at once because of the numerous appeals being prepared by her.

“We do not believe the foregoing affidavit of the aide of the
lower court is sufficient to excuse the clear negligence and slothfulness of
(petitioner) bank’s counsel resulting in the unreasonable delay in their
prosecution of said bank’s appeal in this case. For one thing, why should a mere court aide have the duty to
complete the records of a case for purposes of appeal and to forward the same
to this Court? Is this not the duty and
responsibility of the branch clerk of court, or the clerk in charge of civil
cases, whose attention should have been called by counsel if he or she had
neglected said duty and responsibility? And for another thing, initials to or duplicates of the TSN of
stenographers are minor matters that could easily have been obtained with the
exercise of ordinary diligence on the part of appellant bank’s counsel,
especially since the stenographers concerned have been reassigned only in Metro
Manila; and as revealed in (private respondents’) opposition to (petitioner)
bank’s present motion, all the TSN in this case had already been prepared and
finished by the stenographers when said bank filed its memorandum in the trial
court on June 19, 1990 or many months before said court promulgated its
decision of November 26, 1990 in this case. Obviously, then, counsel for (petitioner) bank are merely hiding behind
the skirt of the court aide of the lower court, so to speak, as an excuse for
their obvious indifference and lack of attention
to its present appeal, thus unduly delaying the administration of justice in
this case.

“xxx                                                                    xxx                                                           xxx.”^[3]

Thus, this petition for certiorari and mandamus to
review the two impugned Resolutions of the Court of Appeals. Petitioner raises the following issues:

“1. Whether or not the petitioner was denied of its
right to due process of law when the respondent Court of Appeals dismissed its
appeal on a purely technical ground in utter disregard of the facts and
admonition of this Honorable Court in the Case of Advincula vs. Intermediate
Appellate Court, 147 SCRA 262.

“2. Whether or
not respondent Court of Appeals committed a grave abuse of discretion amounting
to lack of jurisdiction when it refused to apply to the case at bar the rulings
of this Honorable Court in the cases of A-One Feeds, Inc. vs. Court of
Appeals, 100 SCRA 590 and Alonzo vs. Villamor, 16 Phil. 315, and in
applying instead, apparently without the benefit of serious study, the case of Sarmiento
vs. Intermediate Appellate Court, 153 SCRA 110.

“3. Whether or
not the respondent court committed a grave abuse of discretion amounting to
lack of jurisdiction by exhibiting glaring bias in favor of respondents Lok Go,
et al., and extreme prejudice against petitioner.

“4. Whether or
not the respondent Court of Appeals acted without jurisdiction when it decided
the petitioner’s appeal on the merits by declaring that the ‘lower court did
not err in holding that the
mortgage constituted by Lok Ying Ha on said lands in favor of the (petitioner)
bank is null and void,’ an issue which is foreign to the issue of failure to
prosecute which was the sole ground for the motion to dismiss.”

We find for the respondents.

Respondent court did not commit grave abuse of discretion when it
dismissed petitioner’s appeal for failure to prosecute. The undisputed facts show that petitioner
did not pursue its appeal with the zeal and interest required by the
rules. From November 26, 1990, when it
filed its notice of appeal with the RTC, to August 16, 1991, when private
respondents filed their motion to
dismiss with respondent court is a period of nine (9) long months. During this period, petitioner failed to
cause the transmittal of the records of the case to respondent court.

The excuse proffered by petitioner — that the transcripts of stenographic notes had
not been completed — cannot justify the delay in the transmission of the
records of the case. If the minor
functionaries of the trial court were delaying the transcription and completion
of the stenographic notes, petitioner could have informed the trial judge of their neglect of duty via a proper
motion. The records do not show that
even this elementary duty was done
by petitioner. Such nonchalance negates
its interest in speedily prosecuting its appeal with respondent court.

Petitioner has not taken heed of our decision in the early case
of Fagtanac vs. Court of Appeals,
22 SCRA 1227
(1968), viz.:

“A rule long familiar to practitioners in this jurisdiction is
that it is the duty of the appellant to prosecute his appeal with reasonable
diligence. He cannot simply fold his
arms and say that it is the duty of the Clerk of the Court of First Instance
(now Regional Trial Court) xxx to transmit the record on appeal to the
appellate court. It is appellant’s duty
to make the Clerk act and, if
necessary, procure a court order to compel him to act. He cannot idly sit by and wait till this is
done. He cannot afterwards wash his
hands and say that delay in the transmittal of the record on appeal was not
his fault. For, indeed, this duty
imposed upon him was precisely to spur on the slothful.”

WHEREFORE, the instant petition for certiorari
and mandamus is DENIED. The Resolutions of respondent Court
of Appeals dated, September 17, 1991 and November 8, 1991, in CA-G.R. CV No.
33421, are hereby AFFIRMED. Costs against petitioner.

SO ORDERED.

Narvasa, C.J., (Chairman), Padilla, and Regalado, JJ., concur.

Mendoza, J., no part.

^[1]
Opposition To Motion To Dismiss; Rollo, pp. 45­-47.

^[2]
Through its Fourth Division, composed of Associate Justices Vicente V. Mendoza,
Oscar M. Herrera, and Alicia V. Sempio Diy (ponente).

^[3]
Court of Appeals Resolution, dated November 8, 1991, p. 3; Rollo, p. 36.