Guidelines in confronting the issue of non-filing of the Appellant’s Brief

Petitioner insists that the appeal should not have been dismissed because her failure to file the Appellant’s Brief was not deliberate and intended for delay. She claims that prior to the expiration of the 90-day extension within which to file the brief, she again asked for two more extensions. She explains that the counsel could not prepare the Appellant’s Brief because the law firm was swamped with numerous cases and election related problems which needed his attention.

          We find petitioner’s arguments bereft of merit.

          Section 7, Rule 44 of the Rules of Court provides:

            Sec. 7. Appellant’s Brief. – It shall be the duty of the appellant to file with the court, within forty-five (45) days from receipt of the notice of the clerk that all the evidence, oral and documentary, are attached to the record, seven (7) copies of his legibly typewritten, mimeographed or printed brief, with proof of service of two (2) copies thereof upon the appellee.

          In a Resolution dated December 20, 2006, the CA required petitioner to file the Appellant’s Brief. The notice was received by petitioner on January 5, 2007. However, instead of filing the required brief, petitioner requested for additional time to prepare “due to pressures of work in equally important cases, plus court appearances, preparation of memoranda, conference with other clients.” The CA granted the request and specifically stated that the same was the maximum extension. This notwithstanding, instead of complying with the court’s directive, petitioner again filed two motions for extension, for a total period of sixty (60) days. This time, the CA denied the motions and eventually dismissed the appeal in accordance with Section 1(e),[17] Rule 50 of the Rules of Court.

          Evidently, petitioner’s counsel was negligent in failing to file the required brief not only within 45 days from receipt of the notice but also within the extended period of ninety (90) days granted by the appellate court. He, however, explains that he could not comply with the court’s directive because he had to attend to other cases that he considered more important and urgent than the instant case. Regrettably, such excuse is unacceptable.[18] An attorney is bound to protect his client’s interest to the best of his ability and with utmost diligence. Failure to file brief certainly constitutes inexcusable negligence, more so if the delay results in the dismissal of the appeal.[19] Every member of the Bar should always bear in mind that every case that a lawyer accepts deserves his full attention, diligence, skill, and competence, regardless of its importance, whether he accepts it for a fee or for free.[20] Unfortunately, petitioner is bound by the negligence of her counsel.

          The failure to file the Appellant’s Brief, though not jurisdictional, results in the abandonment of the appeal which may be the cause for its dismissal. It is true that it is not the ministerial duty of the CA to dismiss the appeal. The appellate court has the discretion to do so, and such discretion must be a sound one, to be exercised in accordance with the tenets of justice and fair play, having in mind the circumstances obtaining in each case.[21]

          The question of whether or not to sustain the dismissal of an appeal due to petitioner’s failure to file the Appellant’s Brief had been raised before this Court in a number of cases. In some of these cases, we relaxed the Rules and allowed the belated filing of the Appellant’s Brief. In other cases, however, we applied the Rules strictly and considered the appeal abandoned, which thus resulted in its eventual dismissal. In Government of the Kingdom of Belgium v. Court of Appeals,[22] we revisited the cases which we previously decided and laid down the following guidelines in confronting the issue of non-filing of the Appellant’s Brief:

(1)       The general rule is for the Court of Appeals to dismiss an appeal when no appellant’s brief is filed within the reglementary period prescribed by the rules;

(2)       The power conferred upon the Court of Appeals to dismiss an appeal is discretionary and directory and not ministerial or mandatory;

(3)       The failure of an appellant to file his brief within the reglementary period does not have the effect of causing the automatic dismissal of the appeal;

(4)       In case of late filing, the appellate court has the power to still allow the appeal; however, for the proper exercise of the court’s leniency[,] it is imperative that:

(a)        the circumstances obtaining warrant the court’s liberality;

(b)       that strong considerations of equity justify an exception to the procedural rule in the interest of substantial justice;

(c)        no material injury has been suffered by the appellee by the delay;

(d)       there is no contention that the appellee’s cause was prejudiced;

(e)        at least there is no motion to dismiss filed.

(5)       In case of delay, the lapse must be for a reasonable period; and

(6)       Inadvertence of counsel cannot be considered as an adequate excuse as to call for the appellate court’s indulgence except:

(a)        where the reckless or gross negligence of counsel deprives the client of due process of law;

(b)       when application of the rule will result in outright deprivation of the client’s liberty or property; or

(c)                where the interests of justice so require.

In this case, we find no reason to disturb the appellate court’s exercise of sound discretion in dismissing the appeal. We must emphasize that the right to appeal is not a natural right but a statutory privilege, and it may be exercised only in the manner and in accordance with the provisions of law.[23] The Court cannot say that the issues being raised by petitioner are of such importance that would justify the appellate court to exempt her from the general rule, and give due course to her appeal despite the late filing of her Appellant’s Brief.[24]


About Erineus

Born on December 28, 1965, Surallah, South Cotabato, Southern Mindanao, Philippines.
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