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[ G.R. No. 136881. February 10, 1999]

LEWELYN TOMADO, et al. vs. CA, et al.

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of thus Court dated FEB 10, 1999.

G.R. No. 136881 (Lewelyn Tomado, et al. vs. Court of Appeals and Delilah Acibido.)

This Petition for Certiorari under Rule 65 assails the Resolution of the Court of Appeals dated July 24, 1998 and October 7, 1998.

Petitioners, all heirs of Agustin Tomado, were the plaintiffs in an action for annulment of title, recovery of shares and damages with Regional Trial Court, Negros Occidental, Branch 61, while private respondent Delilah Acibido (hereafter DELILAH) was the defendant. The action involved a parcel of land located at Hinobaan, Negros Occidental which was the subject of a Contract of Sale between deceased Agustin Tomado and deceased Salvador Acibido, erstwhile husband of DELILAH.

DELILAH filed an Answer with affirmative defenses. The RTC set a preliminary hearing due notice to parties. As petitioners and their counsel failed to appear on the scheduled hearing, the RTC allowed the presentation of DELILAH's evidence on her affirmative defenses, subject however to cross-examination by petitioners.

On the next schedules hearing, petitioners manifested that they would forego cross-examination and stated that they would submit a Written Manifestation within 10 days. The matter of affirmative defenses in favor of DELILAH and dismissed the case on the ground of res judicata.

Their Motion for Reconsideration of the dismissal having been denied, petitioners then intended to appeal to the Court of Appeals. They filed their notice of Appeal within the reglementary period, without however paying the docket and other lawful fees as required by the 1997 Rules of Civil Procedure.1 [Sec 4, Rule 41 of the 1997 Rules of Civil procedure reads:

"Within the period for taking an appeal, the appellant shall pay to the clerk of 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."]

After the lapse of the reglementary period without the docket and other lawful fees having been paid, the Court of Appeals issued the assailed Resolution dated July 24, 1998. IN said Resolution, the CA declared petitioners' appeal as abandoned and ordered it dismissed. Their Motion for Reconsideration was denied by the CA in the second assailed Resolution dated October 7, 1998. Hence, this Petition.

Petitioner admits that they failed to pay the docket and other legal fees as required by the 1997 Rules of Civil Procedure. They plead however that such lapse is merely excusable negligence on the part of their counsel. Counsel for petitioners admits that he was not aware of the change in rules on payment of fees effected by the 1997 Rules. Their counsel offers the excuse that he had no time to study the 1997 Rules as he was in the middle of his campaign for a congressional seat.

Petitioners rely on Aznar vs. Bernad, 2 [161 SCRA 276 (1988).] wherein the Court said that the "strict and rigid applications (of the rules of procedure), which would result in technicalities that tend frustrate rather than promote substantial justice, must always be avoided."3 [Id., at 282-283.]

While indeed rules of procedures should be construed liberally, liberal construction should never be a disguise for the total disregard for such rules. As stated by the Court, rules of procedure are tools to facilitate the adjudication of cases, and courts and litigants alike are enjoined to strictly abide by them.4 [Garbo vs. Court of Appeals, 258 SCRA 159, 163 (1996).] Procedural rules are not to be belittled or taken so lightly as their non-observance may prejudice a party's substantive rights.5 [Galang vs. Court of Appeals, 199 SCRA 683, 689 (1991).]

Petitioners also claim that they were denied due process because they were not given the opportunity to litigate their claim in the RTC. We do not agree. As this Court has stated, "there is no denial of due process where petitioner was given the opportunity to present a defense but waived his right to do so."6 [Palagpag vs. National Labor Relations Commission, 218 SCRA 510,515 (1993).] Petitioners had their chance in the trial court to impugn DELILAH's evidence on her affirmative defenses, which chance they waived voluntarily.

IN VIEW OF THE FOREGOING, the Court Resolved to Dismiss the instant petition for petitioner's failure to sufficiently show that any grave abuse of discretion was committed by the respondent court in rendering the challenged Resolutions which appear to be in accord with the facts and the applicable law and jurisprudence.

Very truly yours,

(Sgd.) VIRGINIA ANCHETA-SORIANO

Clerk of Court

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