LUMBRE V. CA (REMEDIAL)

The extraordinary writ of CERTIORARI may be issued only where it is clearly shown that there is patent and gross abuse of discretion as to amount to an evasion of positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in comtemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility.

Thus, certiorari as a special civil action can prosper only when the following requisites concur:

1. a tribunal, a board, or an officer exercising judicial functions has acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction; and
2. there is no appeal or plain, speedy, and adequate remedy in the ordinary course of law for annulling or modifying the proceeding.

Both requisites are absent in this case.

Non-filing of an appellant's brief or a memorandum of appeal is one of the explicitly recognized grounds to dismiss the appeal, as provided in Section 1(e) Rule 50 of the Rules of Court:

Section 1. Grounds for dismissal of appeal - An appeal may be dismissed by the Court of Appeals on its own motion or on that of the appellee, of the following grounds:

x x x x

(e) Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by these Rules.

Petitioners and their counsel do not deny their procedural infractions, but they as this Court's indulgence to relax the rules. Unfortunately for petitioners, their plea is not entirely for this Court to decide. If we grant this prayer, we would effectively be faulting the CA for its faithful compliance with the rules of procedure.

The 1997 Rules of Civil Procedure, specifically Rules 44 and 50, which are designed for the proper and prompt disposition of cases before the CA, truly cannot be ignored. The rules provide for a system under which suitors may be heard in the correct form and manner at the prescribed time in an orderly confrontation before a judge whose authority is acknowledged. We cannot simply turn a blind eye to, and tolerate, the transgressions of these rules; to do so would be a disavowal of our own pronouncements. In sum, we cannot attribute grave abuse of discretion to the CA which merely followed the said rules in dismissing the appeal.

Finally, if it appears that the consequences for incurring procedural infractions before the CA and for pursuing the wrong remedial tack are ostensibly harsh, it should be remembered that there is no innate right to appeal. APPEAL is a statutory right, which may be exercised only within the prescribed limits. For failure to duly comply with the said Rules and to undertake a timely appeal despite the existence of such remedy, the petitioners must bear the consequences.