INSULAR BANK OF ASIA AND AMERICA, PETITIONER, VS. COURT OF APPEALS, E.T. HENRY & CO., INC., SPOUSES ENRIQUE AND LILIA TAN, AND HI-CEMENT CORPORATION, RESPONDENTS.

This is a special civil action of certiorari under Rule 65
of the Rules of Court filed by Insular Bank of Asia and America seeking to
annul and set aside two resolutions of the Court of Appeals, the first, dated
22 May 1991, which denied the motion filed by petitioner bank to dismiss the
appeal of respondents E.T. Henry & Co., Inc. (HENRY & CO., for
brevity), spouses Enrique and Lilia Tan (SPOUSES TAN, for brevity), and
Hi-Cement Corporation (HI-CEMENT, for brevity) from the decision of the trial
court, and the second, dated 21 November 1991, which denied the motion for
reconsideration of the resolution of 22 May 1991.

Petitioner bank filed with the trial court an action to recover a
sum of money against private respondents herein and against Riverside Mills
Corporation, Kanebo Cosmetics Philippines, Inc., Phelips Tanchi, Edward Lee,
Antonio de las Alas and Lourdes de Leon.

On 30 June 1989, the trial court rendered a decision in favor of
petitioner and against the defendants, including private respondents herein.

On 17 July 1989, respondent HI-CEMENT filed a notice of appeal
with the trial court while respondents HENRY & CO. and SPOUSES TAN filed
their notice of appeal on 21 July 1989.

On 21 July 1989, petitioner filed a motion for execution pending
appeal against respondent HI-CEMENT, and in view thereof submitted on 1 August
1989 a motion to defer elevation of records.

In an order dated 25 September 1989, the trial court denied
petitioner’s motion for execution pending appeal.

On 26 March 1991, petitioner filed with the Court of Appeals a
Motion to Dismiss Appeal on the ground of gross inaction on the part of
respondents for having failed to cause the elevation of the records to the
Court of Appeals despite the lapse of more than one (1) year and six (6) months
since they received the 25 September 1989 order of the trial court. Respondents HI-CEMENT, HENRY & CO., and
SPOUSES TAN filed their respective oppositions to the motion to dismiss appeal,
to which petitioner filed a consolidated reply.

On 22 May 1991, the Court of Appeals denied petitioner’s motion
to dismiss appeal thereby upholding respondents’ contention that several
follow-ups were made with the trial court but the records could not be elevated
as the transcripts of stenographic notes were incomplete and the stenographers
who took down the notes were no longer with the branch of the court which heard
the case.^[1]

On 17 June 1991, through a
“Submission and Motion,” respondent HI-CEMENT submitted to the
trial court photocopies of transcripts of stenographic notes in its possession
to assist the trial court in completing the records of the case for elevation
to the Court of Appeals. The
transcripts pertained to six (6) hearing dates. In the motion, respondent HI-CEMENT prayed that petitioner be
directed by the trial court to submit photocopies of the transcripts of
stenographic notes pertaining to two (2) hearing dates.^[2]

On 21 June 1991, petitioner filed a motion for reconsideration of
the order of the Court of Appeals of 22 May 1991 denying its motion to dismiss
appeal. The trial court also ordered
the parties to furnish the court with original duplicate copies of the
transcripts of stenographic notes previously found to be missing from the files
of the trial court.

On 1 July 1991, in its compliance and submission, respondent
HI-CEMENT submitted to the trial court the original duplicate copies of the
transcripts of stenographic notes in its possession pertaining to ten (10)
hearing dates in 1985. However,
HI-CEMENT informed the trial court that it did not have in its possession a
copy of the transcripts for the hearing of 29 April 1986.^[3]

On 13 August 1991, all parties filed with the trial court a joint
manifestation submitting a photocopy of the remaining “missing”
transcript of stenographic notes of the hearing on 29 April 1986.

On 16 August 1991, the trial court issued an order directing the
elevation of the records to the Court of Appeals.

On 21 November 1991, petitioner’s motion for reconsideration of
the order of the Court of Appeals denying the motion to dismiss appeal was
denied; hence, this petition.

The issue before this Court is whether the Court of Appeals
committed grave abuse of discretion in denying the motion of petitioner to
dismiss the appeal of private respondents and in denying the motion to
reconsider the order of denial.

Petitioner contends that the failure of private respondents for one-and-a-half years to take
appropriate and timely steps to ensure the completion of the records in the
trial court so that they may be immediately elevated to the Court of Appeals,
constitutes gross inaction which is a ground to dismiss appeal.

Petitioner further submits that
although some of the transcripts of stenographic notes taken in the court below are missing
hence unavailable, respondent HI-CEMENT
has in its possession duplicate
copies of the missing transcripts which could have been submitted immediately to assist the trial court in completing the records;
consequently, its failure to do so is a deliberate attempt to delay the
proceedings or gross negligence to prosecute its appeal. As basis for its contentions, petitioner
cites the cases of Fagtanac v. Court of Appeals,^[4] Loyola
v. Court of Appeals,^[5] and Estella
v. Court of Appeals,^[6] where
this Court upheld the dismissal of the appeal for failure of the appellants to
prosecute their appeal with reasonable diligence.

In their respective comments, private respondents contend that
the factual considerations in the cases cited by petitioner are not in pari
causa with those obtaining in the case at bar. They argue that they had not been grossly negligent in
prosecuting their appeal; that the reason for the non-elevation of the records
is that they are incomplete, and as of 22 April 1991, transcripts of
stenographic notes pertaining to eleven (11) hearing dates were not available
or were missing because they were not submitted to the lower court by
stenographer Amor S. Damian who took down those notes. Respondent HI-CEMENT further alleges that
from time to time it made several inquiries with the staff of the trial court
on the elevation of the records. HI-CEMENT also advances the argument that the non-feasance of a
stenographer consisting in the loss or non?transcription of stenographic
notes should not prejudice a litigant’s right to appeal, citing Advincula v.
Intermediate Appellate Court.^[7]
Further, respondents HENRY & CO. and SPOUSES TAN contend that the appeal
should not be dismissed purely on a technical ground because the right to
appeal is an essential part of due process and the judicial system.

We do not find compelling reasons to set aside the assailed
resolutions of the Court of Appeals. Petitioner has not shown sufficient and convincing evidence that the
appellate court gravely abused its discretion in allowing the appeal.

The decisions cited by petitioner in support of its allegations
are not applicable in the case at bar. In Fagtanac v. Court of Appeals^[8], the
Court found that there was failure to prosecute because appellants, before
transmittal of the record on appeal, failed to require the inclusion therein
(which was then required under Sec. 9, Rule 41, of the Rules of Court before
the effectivity of B.P. Blg. 129, Sec. 39) the approval thereof and the
certification on its correctness; that they were remiss in their duty to comply
with the trial court’s order requiring them to include in their record on
appeal the matters therein set forth, so that the records were not accordingly
elevated until the lapse of a considerable length of time.

In Loyola v. Court of Appeals,^[9] the
Court upheld the decision of the Court of Appeals dismissing the appeal on the
ground that for a period of one (1) year and seven (7) months from the date of
approval by the trial court of the record on appeal, the appellants did not do
anything to facilitate the elevation of the records, e.g., filing a motion to
compel the clerk of the trial court concerned to transmit to the appellate
court the original record on appeal. The petitioners’ excuse that the long delay was caused by the lack of
copies of numerous documentary exhibits required to be retained by the trial
court upon transmittal of the record on appeal was not justified because there
was no showing that petitioners exerted efforts to urge the clerk of the trial
court to expedite the preparation of such copies.

In Estella v. Court of Appeals,^[10]
the records show that the trial court had ordered the records forwarded to the appellate court as early as 11 April 1985 and since that date up
to the filing of respondents’ motion
to dismiss appeal, or for a
period of more than one (1) year,
nothing appeared to have been done on
the appeal. In that case, we did
not subscribe to petitioners’ gratuitous
statement that “as the rule now exists, the appellant is justified if he
merely folds his hands after the trial
judge has ordered that the records of
the case be transmitted to the appellate court.” We ruled therein that the appellant has the duty to prosecute his appeal with
reasonable diligence. Thus, in an effort to do away with
the litigant’s complacency and to spur
him into taking the initiative, the
Court of Appeals has placed on the appellant and his counsel the prime responsibility of seeing to it that the appealed case shall be
ready for decision as soon as practicable,
as provided under Art. VII-C, Court of
Appeals Resolution No. 2 dated 6 August 1986.

In Arcega v. Court of Appeals,^[11]
the Court held that petitioners
failed to prosecute their appeal when they
did nothing to effect or facilitate the transmittal of the
records of the case to the appellate
court for almost two (2) years from the issuance of the order to elevate said records to the appellate court.

Likewise, in Mateo v. Court of Appeals,^[12]
the Court affirmed the factual findings of the Court of Appeals showing that
when the records of the case were transmitted to the appellate court, the
latter refused acceptance because some transcripts of stenographic notes were
missing. When this fact was brought to
the attention of petitioner, the latter through counsel undertook to assist in
the completion of the records so that the same would be accepted by the Court
of Appeals and her appeal duly prosecuted. However, petitioner failed to live up to her undertaking.

Clearly, on the basis of the foregoing, gross inaction of a party-appellant
to prosecute his appeal is simply failing to take the appropriate steps with
reasonable diligence to ensure that the record of the case is complete and
seasonably transmitted to the Court of Appeals.

In the present case, the Court of Appeals found that private
respondents could not be faulted for the delay in the transmission of the
records to the appellate court; that despite several follow-ups made by private
respondents with the trial court, the records could not be elevated as the transcripts
of stenographic notes were not complete as the stenographers who took down the
notes were no longer with the branch of the court that heard the case. The Court of Appeals also found that
substantial justice would be served if the appeal of private respondents were
allowed.^[13]

In imputing grave abuse of discretion to the Court of Appeals in
arriving at its conclusion, petitioner contends that only one stenographer is
involved in the missing transcripts; that the transcripts for eleven (11)
hearings reported missing had already been transcribed by the stenographer
prior to the decision of the trial court on 30 June 1989, and that respondent
HI-CEMENT has in its possession duplicate copies of the missing transcripts and
so it could have submitted them immediately to the trial court to complete the
records.

The rule is settled that in certiorari proceedings under
Rule 65 of the Rules of Court, questions of fact are not generally permitted,
the inquiry being limited essentially to whether public respondent acted
without or in excess of its jurisdiction or with grave abuse of
discretion. In the case before us, this
Court will not engage in a review of facts found by the Court of Appeals unless
the errors of law and fact are so serious and prejudicial as to amount to grave
abuse of discretion. Mere error of
judgment cannot be a proper subject of the special civil action of certiorari. The only question involved in certiorari
is jurisdiction, either want of jurisdiction or excess thereof.

As determined by the Court of Appeals, the records of Civil Case
No. 42791 were not elevated immediately to the Court of Appeals because they
were not yet complete. The reason
therefor is found in the certification of the branch clerk of court dated 22
April 1991 to the effect that the transcripts of the stenographic notes of the
proceedings held on the eleven (11) hearing dates from 19 March 1985 to 29
April 1986 had not been submitted by stenographer Amor S. Damian who took down
those notes, and the trial court had no available transcripts of those
notes. Notwithstanding this problem,
which apparently was not known to private respondents as the reason for the
non-completion of the records until 22 April 1991 when the hearing dates
covered by the missing transcripts were specified by the clerk of court, the
Court of Appeals found that private respondents exerted reasonable efforts in
pursuing the elevation of records by persistent follow-ups with the trial
court. Since this factual finding is
binding upon this Court, there is no basis to conclude that there was gross
inaction on the part of private respondents.

Quite interestingly, when petitioner filed its motion to dismiss
appeal, there was yet no order issued by the trial court to the clerk of court
to elevate the records of the case, unlike in the cases cited by petitioner^[14]
where the appellants did nothing at all to facilitate the elevation of the
records despite the issuance by the trial court of an order directing the
forwarding of the records to the Court of Appeals.

Under the facts of this case, it is evident that the trial court
tried to complete its records initially without the assistance of the
parties. However, when it realized that
the missing transcripts could no longer be found, it issued an order on 21 June
1991 directing the parties to furnish the court with duplicate original copies
of the transcripts previously found to be missing from the files of the trial
court.

The records also show that when private respondents were informed
of the missing transcripts of stenographic notes, private respondents submitted
duplicate copies pertaining to
ten (10) hearing dates. On 13 August
1991, private respondents even entered into a joint manifestation with petitioner stating that the latter was submitting the photocopy of the
remaining missing transcript of the hearing of 29 April 1986. Petitioner then was aware that the records
could not be immediately completed without the assistance not only of private
respondents but also of itself.

In the recent case of Goulds Pumps (Phils.), Inc. v. Court of
Appeals,^[15]
this Court sustained the Court of Appeals when the latter refused the outright
dismissal of the appeal due to appellant’s failure to cause the elevation of
the records to it as we upheld as final and conclusive its factual finding that
the appellant was not to blame for the delay. Similarly, in the case before us, since we find that the factual
findings of the appellate court are supported by substantial evidence, they may
no longer be reviewed by this Court. Further, this Court ruled that the dismissal of an appeal purely on a
technical ground is frowned upon, its policy being to encourage hearings of
appeals on their merits.

WHEREFORE, the petition is DISMISSED and the assailed
resolutions of the Court of Appeals of 22 May 1991 and 21 November 1991 are
AFFIRMED. Costs against petitioner.

SO ORDERED.

Cruz, (Chairman), and
Davide, Jr., JJ., concur.

Quiason, J., no part.

^[1]
Rollo, p. 38.

^[2]
Rollo, p. 110.

^[3]
Rollo, pp. 131-132.

^[4]
Nos.
L-26922-23, 21 March 1968, 22 SCRA 1227.

^[5]
No.
L-27465, 31 August 1971, 40 SCRA 562.

^[6]
G.R.
No. 76884, 28 May 1990, 185 SCRA 732.

^[7]
G.R. No. 75310, 16 January
1987, 147 SCRA 262.

^[8]
See Note 4.

^[9]
See Note 5.

^[10]
See Note 6.

^[11]
G.R. No. 79043, 28 October
1988, 166 SCRA 773.

^[12]
G.R.
No. 97839, 22 April 1993.

^[13]
Rollo, p. 38.

^[14]
See Notes 4, 5 and 6.

^[15]
G.R.
No. 102748, 30 June 1993.