CIVIL PROCEDURE

Atty. Jose A. Parungo

Reporters Abroguea, Christine Joy Bautista, Agustin Aristeo Cario, Katrina Gatchallan, Jan Nanit, John Paul

APPEALS

I. General Principles on Appeal II. Judgments or Orders that are not appealable III. Remedy in case the judgement or final order is not appealable. IV. Appeal from MTC to the RTC Where to Appeal from a Judgment or Final Order of a MTC When to Appeal How to Appeal Perfection of the Appeal Duty of the Clerk of Court When case is deemed submitted for decision Appeal from an order dismissing a case for lack of jurisdiction V. Appeal from the RTC to the CA Modes of Appeal from the decision of RTC Application of Rule 41 When to Appeal How to Appeal VI. Petition for Review from the RTC to the CA Application of Rule 42 When to Appeal

How to Appeal Dismissal of the Appeal VII. Appeals from Quasi-Judicial Bodies

Procedure in the Court of Appeals Rule 44 ORDINARY APPEALED CASES

Section 1. Title of cases Section 2. Counsel and guardians Section 3. Order of transmittal of record Section 4. Docketing of case Section 5. Completion of record Section 6. Dispensing with complete record Section 7. Appellant's brief Section 8. Appellee's brief Section 9. Appellant's reply brief Section 10. Time of filing memoranda in special cases Distinguish Brief from Memorandum. Discuss cases - Napocor vs. Court of Appeals, G.R. No. 137034, February 23, 2004 and Arlyn Pineda vs. Julie C. Arcalas, G.R. No. 170172, November 23, 2007 Section 11. Several appellants or appellees or several counsel for each party Section 12. Extension of time for filing briefs Discuss the case of Ricardo B. Gonzales vs. Court of Appeals, G.R. No. 129090, April 30, 2003 and Jesus A. Casim vs. Bruno Casim Flordeliza, G.R. No. 139511, January 23, 2002 Section 13. Contents of appellant's brief

Discussion of the rationale and purposes of the matters required to be contained in the appellants brief De Liano vs Court of Appeals; GR. No. 142316; November 22, 2001 Section 14. Contents of appellee's brief Section 15. Questions that may be raised on appeal Discuss Commissioner of Internal Revenue vs. Telecommunications Phils., Inc., G.R.No. 163835, July 7, 2010 RULE 45 APPEAL BY CERTIORARI TO THE SUPREME COURT Eastern

Section 1. Filing of petition with Supreme Court. Questions of Fact vs Questions of Law Discuss Yokohama Tire Phil. Inc. vs. Yokohama Employees Union, G.R. No. 163532, March 12, 2010 Exceptions to Conclusiveness of Facts Discuss Vallacar Transit, Inc. vs. Jocelyn Catubig, G.R. No. 175512, May 30, 2011 and Nellie Vda. de Formoso, et al. vs. PNB, et al., G.R. No. 154704, June 1, 2011 Discuss Certiorari as a mode of appeal and distinguish it from original special civil action Review of Judgments, Final Orders, or Resolutions (Rule 64) and Petition for Certiorari (Rule 65) Discuss Rosendo Alba vs. CA, G.R. No. 164041, July 29, 2005 and Ligaya Santos, et al. vs. Domingo I. Orda, Jr., G.R. No. 189402, May 6, 2010

Section 2. Time for filing; extension Discuss Fresh Period Rule - Domingo Neypes v. Court of Appeals, G.R. No. 141524, September 14, 2005 Section 3. Docket and other lawful fees; proof of service of petition

Section 4. Contents of petition Section 5. Dismissal or denial of petition Section 6. Review discretionary Section 7. Pleadings and documents that may be required; sanctions Section 8. Due course; elevation of records Section 9. Rule applicable to both civil and criminal cases

RULE 46

ORIGINAL CASES

Section 1. Title of cases Section 2. To what actions applicable Section 3. Contents and filing of petition; effect of noncompliance with requirements Section 4. Jurisdiction over person of respondent, how acquired Section 5. Action by the court Procedural Outline 1. Filing of the Petition 2. Order to acquire jurisdiction over respondents or outright dismissal for failure to comply with the requirements as to form and payment of docket and other legal fees 3. Require respondents to comment within 10 days from notice 4. Court may require the filing of a reply or such other pleadings as it may deem necessary 5. Determination of factual issues, the court itself may conduct hearings or delegate the reception of evidence on such issues to any of its members or to an appropriate court or agency Section 6. Determination of factual issues Section 7. Effect of failure to file comment

RULE 47

ANNULMENT OF JUDGMENT OR FINAL ORDERS AND RESOLUTION

Section 1. Coverage Discuss Dare Adventure Farm Corp., vs Court of Appeals, G.R. No. 161122, September 24, 2012 Section 2. Grounds for annulment 1. Extrinsic or collateral fraud -Ma Theresa Chaves Biaco vs. Phil. Countryside Rural Bank, G.R. No. 161417,February 8, 2007 -Ancheta vs Ancheta, G.R. No. 145370, March 4, 2004 2. Lack of jurisdiction over the subject matter and over the person - Republic of the Phil. vs. TAFPA, Inc., G.R. No. 165333, February 9, 2010 Section 3. Period for filing action Section 4. Filing and contents of petition Section 5. Action by the court Section 6. Procedure Section 7. Effect of judgment Section 8. Suspension prescriptive period Section 9. Relief available Section 10. Annulment of judgments or final orders of Municipal Trial Courts

Rule 48 Preliminary Conference Section 1.Preliminary conference. At any time during the pendency of a case, the court may call the parties and their counsel to a preliminary conference.

(a) To consider the possibility of an amicable settlement, except when the case is not allowed by law to be compromised (b) To define, simplify and clarify the issues for determination; (c) To formulate stipulations of facts and admissions of documentary exhibits, limit the number of witnesses to be presented in cases falling within the original jurisdiction of the court, or those within its appellate jurisdiction where a motion for new trial is granted on the ground of newly discovered evidence; and (d) To take up such other matters which may aid the court in the prompt disposition of the case. (Rule 7, CA Internal Rules) (n) Section 2.Record of the conference. The proceedings at such conference shall be recorded and, upon the conclusion thereof, a resolution shall be issued embodying all the actions taken therein, the stipulations and admissions made and the issues defined. (n) Section 3.Binding effect of the results of the conference. Subject to such modifications which may be made to prevent manifest injustice, the resolution in the preceding section shall control the subsequent proceedings in the case unless, within five (5) days from notice thereof, any party shall satisfactorily show valid cause why the same should not be followed. (n) XXX Objective: To explore and utilize all such appropriate means as may assist in the early disposition of the case. Pre-trial (Rule 18) Preliminary Conference (Rule 48) Section 2.Nature and purpose. The pre- Section 1.Preliminary conference. At trial is mandatory. The court shall any time during the pendency of a case, the consider: court may call the parties and their counsel to a preliminary conference. (a) The possibility of an amicable settlement or of a submission to (a) To consider the possibility of an alternative modes of dispute amicable settlement, except when resolution; the case is not allowed by law to be compromised (b) The simplification of the issues; (b) To define, simplify and clarify the issues for determination; (c) The necessity or desirability of amendments to the pleadings; (c) To formulate stipulations of facts and admissions of (d) The possibility of obtaining documentary exhibits, limit the stipulations or admissions of facts number of witnesses to be presented and of documents to avoid

unnecessary proof; (e) The limitation of the number of witnesses; (f) The advisability of a preliminary reference of issues to a commissioner; (g) The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist; (h) The advisability or necessity of suspending the proceedings; and

in cases falling within the original jurisdiction of the court, or those within its appellate jurisdiction where a motion for new trial is granted on the ground of newly discovered evidence; and (d) To take up such other matters which may aid the court in the prompt disposition of the case. (Rule 7, CA Internal Rules) (n)

(i) Such other matters as may aid in the prompt disposition of the action. (1a, R20) Inferior courts to observe the same In the CA, preliminary conference may be procedure in the RTC. availed of not only in original actions but also in cases on appeal wherein a new trial was granted based on newly discovered evidence) Rule 49 Oral Argument Section 1.When allowed. At its own instance or upon motion of a party, the court may hear the parties in oral argument on the merits of a case, or on any material incident in connection therewith. (n) The oral argument shall be limited to such matters as the court may specify in its order or resolution. (1a, R48) Section 2.Conduct of oral argument. Unless authorized by the court, only one counsel may argue for a party. The duration allowed for each party, the sequence of the argumentation, and all other related matters shall be as directed by the court. (n) Section 3.No hearing or oral argument for motions. Motions shall not be set for hearing and, unless the court otherwise directs, no hearing or oral argument shall be allowed in support thereof. The adverse party may file objections to the motion within

five (5) days from service, upon the expiration of which such motion shall be deemed submitted for resolution. (29, R49) XXX Discussions on Rule 49 The Court may allow submission of memoranda in lieu of or in addition to the arguments adduced in the hearing. Motions in the SC and CA do not contain notices of hearing of said motions as no oral arguments will beheard in support thereof (Section 3, Rule 49). Appellate court shall set the hearing with notice to the parties, if it desires to conduct a hearing. If a notice of hearing is appended to the motion, the court may simply disregard the same. Rule 50 Dismissal of Appeal 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, on the following grounds: (a) Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by these Rules; (b) Failure to file the notice of appeal or the record on appeal within the period prescribed by these Rules; (c) Failure of the appellant to pay the docket and other lawful fees as provided in section 5, Rule 40 and section 4 of Rule 41; (Bar Matter No. 803, 17 February 1998) (d) Unauthorized alterations, omissions or additions in the approved record on appeal as provided in section 4 of Rule 44; (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; (f) Absence of specific assignment of errors in the appellant's brief, or of page references to the record as required in section 13, paragraphs (a), (c), (d) and (f) of Rule 44; (g) Failure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order;

(h) Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with orders, circulars, or directives of the court without justifiable cause; and (i) The fact that the order or judgment appealed from is not appealable. (1a) Section 2.Dismissal of improper appeal to the Court of Appeals. An appeal under Rule 41 taken from the Regional Trial Court to the Court of Appeals raising only questions of law shall be dismissed, issues purely of law not being reviewable by said court. Similarly, an appeal by notice of appeal instead of by petition for review from the appellate judgment of a Regional Trial Court shall be dismissed. (n) An appeal erroneously taken to the Court of Appeals shall not be transferred to the appropriate court but shall be dismissed outright. (3a) Section 3.Withdrawal of appeal. An appeal may be withdrawn as of right at any time before the filing of the appellee's brief. Thereafter, the withdrawal may be allowed in the discretion of the court. (4a) XXX Discussions on Rule 50 Other grounds for the dismissal of an appeal are: By agreement of the parties as where the case was amicably settled by them (Arcos vs. Aradales, L-27344, May 28, 1970); Where the appealed case has become moot or academic (Camus vs. CA, L-13125, February 13, 1969; NAWASA vs. Cloribel, L-26753, Nov. 28, 1969); and Where the appeal is frivolous (De la Cruz, et al. vs. Blanco, et al., 73 Phil. 596; Ferniion vs. Sta. Romana, L-19161, April 29, 1966) or dilatory (Soriano vs. Abeto, L-19661, February 28, 1964; Rose Industries, Inc. vs. CA, et al., L-45581, December 29, 1978). Notes: All of the grounds for the dismissal of an appeal are directory and not mandatory. Hence, it is not the ministerial duty of the court to dismiss the appeal. Exception: Section 1(b) it is mandatory. Non-payment of docket and other lawful fees in appeal from MTC to RTC, Rule 41 is silent. However, in an appeal from RTC to CA, failure to pay the docket fee and other lawful fees is a ground for dismissal of the appeal from the CA (Enriquez vs. Enriquez, G.R. No. 139303, August 25, 2005) Rule 50, Section 1(c) Section 1.Grounds for dismissal of appeal. An appeal may be dismissed by the

Rule 41, Section 4 Section 4. Appellate court docket and other lawful fees. Within the period for

taking an appeal, the appellant shall pay to the clerk of the 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 of the record or the record on appeal."

Court of Appeals, on its own motion or on that of the appellee, on the following grounds: xxx xxxxxx (c) Failure of the appellant to pay the docket and other lawful fees as provided in section 5, Rule 40 and section 4 of Rule 41; (Bar Matter No. 803, 17 February 1998)

Failure of appellant to serve and file the required number of copies of his brief or memorandum within the reglementary period, ground for dismissal thereof. (Del Mar vs. CA, G.R. No. 139008, March 13, 2002.) Failure on record on appeal to show on its face all the facts reflecting the timelinessof the appeal renders it mandatory for the appeal to be dismissed, as said facts are jurisdictional.

Material data rule has been liberalized starting with the case of Pimentel, et al. vs. CA, et al. L-39684, June 27, 1975). Non-compliance with Sec. 1(a) appeal should not be dismissed but the court should order the amendment and completion thereof. Appellants brief failed to make page references to the record to support their factual allegations and also failed to make a separate statement of facts in violation of Sec. 13[d], Rule 44), the appeal may be properly dismissed. In case of force Majeure, failure to file appellants brief within the reglementary period need not necessarily cause dismissal (Padosas vs. CA, et al., L-30871, April 25, 1974).

Section 2: Circular 2-90 of the SC: Appeals from the RTCs to the SC may be made only by a petition for review on certiorari, except only in criminal cases where the penalty imposed was life imprisonment or reclusion perpetua. Circular 2-90 of the SC: Appeals from the RTCs to the CAs may be taken either by writ of error (ordinary appeal) or by petition for review.

Trial court has jurisdiction to determine whether the appeal is based on pure questions of law or mixed questions of law and fact. A resolution of the CA dismissing the appeal and remanding the case to the trial court is merely interlocutory. A motion for its reconsideration filed a year later may be entertained and granted. (Valdez vs. Bagasao, L-46608, Mar. 8, 1978). Rule 51 Judgment a. When case deemed submitted for judgment i. In ordinary appeals ii. In ordinary action and petitions for review b. By whom rendered c. Quorum and voting in the court d. Disposition of a case e. Form of Decision f. Harmless Errors g. Judgment where there are several parties h. Questions that may be decided Philippine Hawk Corporation v. Vivian Tan Lee Feb 16, 2010, GR 166869 i. Promulgation and notice of judgment j. Entry of judgment and final resolutions k. Execution of judgment

I.

II.

Rule 52- Motion for Reconsideration a. Period of filing b. Second Motion for Reconsideration Systra Philippines vs CIR, GR 176290, Sept 21, 2007 c. Resolution of Motion d. Stay of Execution

III.

Rule 53 - New Trial a. Period of Filing Manuel Yebiernas et al vs. Ester Tanco-Gabaldon et al. GR 178925, June 1, 2011 b. Hearing and orders c. Resolution of motion d. Procedure in new trial

RULE 54 Internal Business SECTION 1. Distribution of Cases Among Divisions. All the cases of the Court of Appeals shall be allotted among the different divisions thereof for hearing and decision. The Court of Appeals, sitting en banc, shall make proper orders or rules to govern the allotment of cases among the different divisions. SECTION 2. Quorum of the Court. A majority of the actual members of the court shall constitute a quorum for its sessions en banc. Three members shall constitute a quorum for the sessions of a division. The affirmative votes of the majority of the members present shall be necessary to pass a resolution of the court en banc. The affirmative votes of three members of a division shall be necessary for the pronouncement of a judgment or final resolution, which shall be reached in consultation before the writing of the opinion by any member of the division Court En Banc Division QUORUM Majority 3 members

In the case of People of the Phil. vs. Gerry Cirilo, G.R. No. 134245, December 1, 2000, wherein the accused-appellant was found guilty of murder, qualified by treachery, and meted the penalty of reclusion perpetua In Marvin Mercado vs. People of the Philippines, G.R. No. 149375, November 26, 2002, where the accused was convicted for carnapping in accordance with Sec. 14 of RA 6538 or the Anti-Carnapping Act of 1972, the Court ruled that the case is not within their jurisdiction as it is not considered reclusion perpetua. Special laws such as RA 6538, provide their own specific penalties for the offenses they punish, which penalties are not taken from nor refer to those in the Revised Penal Code. SECTION 13. Quorum of the Court. . . . .

Where the Court of Appeals finds that the imposable penalty in a criminal case brought to it on appeal is at least reclusion perpetua, death or life imprisonment, then it should impose such penalty, refrain from entering judgment thereon, certify the case and elevate the entire records to this Court for review. This will obviate the unnecessary, pointless and timewasting shuttling of criminal cases between this Court and the Court of Appeals, for by then this Court will acquire jurisdiction over the case from the very inception and can, without bothering the Court of Appeals which has fully completed the exercise of its jurisdiction, do justice in the case. RULE 55 - Publication of Judgments and Final Resolutions SECTION 1. Publication. The judgments and final resolutions of the court shall be published in the Official Gazette and in the Reports officially authorized by the court in the language in which they have been originally written, together with the syllabi therefor prepared by the reporter in consultation with the writers thereof. SECTION 2. Preparation of Opinions for Publication. The reporter shall prepare and publish with each reported judgment and final resolution a concise synopsis of the facts necessary for a clear understanding of the case, the names of counsel, the material and controverted points involved, the authorities cited therein, and a syllabus which shall be confined to points of law. (Sec. 22a, R.A. No. 296) (n) SECTION 3. General Make-Up of Volumes. The published decisions and final resolutions of the Supreme Court shall be called "Philippine Reports," while those of the Court of Appeals shall be known as the "Court of Appeals Reports." Each volume thereof shall contain a table of the cases reported and the cases cited in the opinions, with a complete alphabetical index of the subject maters of the volume. It shall consist of not less than seven hundred pages printed upon good paper, well bound and numbered consecutively in the order of the volumes published. (Sec. 23a, R.A. No. 296) (n) RULE 56 - PROCEDURE IN THE SUPREME COURT A. Original Cases SECTION 1. Only the following cases maybe filed originally with the Supreme Court: 1. Petitions for certiorari 2. Prohibitions 3. Mandamus 4. Quo warranto 5. Habeas corpus 6. Disciplinary proceeding against members of the judiciary and attorneys 7. Cases affecting ambassadors 8. Other public ministers and consuls

Raoul B. Del Mar vs. PAGCOR, G.R. No. 138298, November 29, 2000 SUPREME COURT; MAY TAKE COGNIZANCE OF PETITION IMPROPERLY FILED IF COMPELLING REASONS SO WARRANT; CASE AT BAR. A cursory perusal of the petition filed in G.R. No. 138982 will show that it is actually one for Prohibition under Section 2 of Rule 65 for it seeks to prevent PAGCOR from managing, maintaining and operating jai-alai games. Even assuming, arguendo, that it is an action for injunction, this Court has the discretionary power to take cognizance of the petition at bar if compelling reasons, or the nature and importance of the issues raised, warrant the immediate exercise of its jurisdiction. It cannot be gainsaid that the issues raised in the present petitions have generated an oasis of concern, even days of disquiet in view of the public interest at stake. In Tano, et al. vs. Socrates, et al., this Court did not hesitate to treat a petition for certiorari and injunction as a special civil action for certiorari and prohibition to resolve an issue of far-reaching impact to our people. This is in consonance with our case law now accorded near religious reverence that rules of procedure are but tools designed to facilitate the attainment of justice such that when its rigid application tends to frustrate rather than promote substantial justice, this Court has the duty to suspend their operation. SECTION 2. Rules Applicable. The procedure in original cases for certiorari, prohibition, mandamus, quo warranto and habeas corpus shall be in accordance with the applicable provisions of the Constitution, laws, and Rules 46, 48, 49, 51, 52 and this Rule, subject to the following provisions: a) All references in said Rules to the Court of Appeals shall be understood to also apply to the Supreme Court; b) The portions of said Rules dealing strictly with and specifically intended for appealed cases in the Court of Appeals shall not be applicable; and c) Eighteen (18) clearly legible copies of the petition shall be filed, together with proof of service on all adverse parties. The proceedings for disciplinary action against members of the judiciary shall be governed by the laws and Rules prescribed therefor, and those against attorneys by Rule 139-B, as amended. (n) Republic vs. Carmel Development, Inc., G.R. No. 142572, February 20, 2002 It is well-settled that a legal provision or rule must not be so construed as to make it a useless surplusage, and hence meaningless in the sense of having no effect whatsoever. The phrase "[e]xcept as otherwise provided" means exactly what it says, that is, except as otherwise provided in Rule 46, original actions for certiorari shall be governed by Rule 65. Contrary to Carmel's contention, Rule 46 applies to original actions for certiorari because Section 2 thereof expressly states that "[t]his Rule shall apply to original actions for certiorari, . . .." That Rule 46 applies to actions for certiorari filed before the Court of Appeals can hardly be disputed. Rule 46 should be construed in relation to Rule 65 without rendering any of its provisions useless. This is evident in Section 6 of Rule 65 which provides that "[i]n petitions for certiorari before the Supreme Court and the Court of Appeals, the provision of Section 2, Rule 56, shall be observed." In fine, Rule 46 primarily governs original actions for certiorari filed in the Court of Appeals but Rule 65 generally serves to supplement the same. Rules 46 and 65 co-exist with each other and

should be construed so as to give effect to every provision of both rules. Clearly, it was error for the Court of Appeals to dismiss the petition for certiorari filed by the Department of Education on the ground that it was accompanied by mere duplicate originals instead of certified true copies of the assailed orders. This simply means that "the following rules which are of primary governance in the Court of Appeals, viz.: Rule 46 (Original Actions in the Court of Appeals), Rule 48 (Preliminary Conference), Rule 49 (Hearings on Oral Argument), Rule 51 (Judgment), and Rule 52 (Motion for Reconsideration) have been expressly made applicable to original actions in the Supreme Court save for those portions which deal strictly with and are specifically intended for appealed cases in the Court of Appeals." B. Appealed Cases SECTION 3. Mode of Appeal. An appeal to the Supreme Court may be taken only by a petition for review on certiorari, except in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment. (n) SECTION 4. Procedure. The appeal shall be governed by and disposed of in accordance with the applicable provisions of the Constitution, laws, Rules 45, 48, Sections 1, 2, and 5 to 11 of Rule 51, 52 and this Rule. (n) SECTION 5. Grounds for dismissal of appeal: 1. Failure to take the appeal within the reglementary period; 2. Lack of merit in the petition; 3. Failure to pay the requisite docket fee and other lawful fess or to make a deposit for costs; 4. Failure to comply with the requirements regarding proof of service and contents of and the documents which should accompany the petition; 5. Failure to comply with any circular, directive or order of the Supreme Court without justifiable cause; 6. Error in the choice of mode of appeal; and 7. The fact that the case is not appealable to the Supreme Court People of the Philippines vs. Johnny Dela Concha, G.R. No. 140205, September 3, 2002 states that an appeal taken either to this Court or to the CA by the wrong mode or inappropriate mode shall be dismissed. Five Star Marketing Co., Inc. vs. James L. Booc, G.R. No. 143331, October 5, 2007 a wrong or inappropriate mode of appeal, as in this case, merits an outright dismissal. Emelinda V. Abedes vs. Court of Appeals, et al., G.R. No. 174373, October 15, 2007 A petition under Rule 65 is an independent action that cannot be availed of as a substitute for the lost remedy of an ordinary appeal, including that under Rule 45, especially if such loss or lapse was occasioned by one's own neglect or error in the choice of remedies. And

under Section 5 (f) of Rule 56 of the Rules of Court, an error in the choice or mode of appeal, as in this case, merits an outright dismissal. People of the Philippines vs. Court of Appeals, et al., G.R. No. 172989, June 19, 2007 At the outset, it must be stated that the petition suffers from a fatal infirmity. Petitioner's remedy from the adverse decision of the Court of Appeals would have been to file a petition for review on certiorari under Rule 45 within 15 days after notice of denial of its motion for partial reconsideration. This is the proper remedy of a party aggrieved by a decision of the Court of Appeals. However, instead of a petition for review under Rule 45, petitioner filed a petition for certiorari under Rule 65 alleging grave abuse of discretion on the part of the Court of Appeals when it substituted the penalty of imprisonment with a fine of P200,000.00 for each case. Purificacion Perez-Rosario vs. Court of Appeals, G.R. No. 140796, June 30, 2006 Petition originated from an action for ejectment filed with the DARAB principally on the grounds of non-payment of lease rentals and sub-leasing without the knowledge and consent of the owners of a parcel of agricultural land. Under Rule 65, the petitioners must show that they have no plain, speedy, and adequate remedy in the ordinary course of law against the error that they seek to correct. A remedy is considered "plain, speedy, and adequate" if it will promptly relieve the petitioners from the injurious effects of the judgment and the acts of the lower court or agency. 13 In this case, an appeal under Rule 45 by way of petition for review on certiorari was not only available but also a speedy and adequate remedy. 14 When the petitioners received on November 15, 1999 a copy of the CA Resolution dated November 8, 1999 denying their Motion for Reconsideration, and absent any motion for extension, they had until November 30, 1999, or 15 days later, within which to perfect their appeal. They did not. What they chose to do was to file a "Petition for Certiorari" "based on Section 1, Rule 65" on December 7, 1999, repeating in essence the issues and arguments already heard by the CA. The petitioners cannot lodge a special civil action of certiorari to make good the loss of the right of ordinary appeal. In view of this serious procedural error, the instant petition should be dismissed. SECTION 6. Disposition of Improper Appeal. Except as provided in Section 3, Rule 122 regarding appeals in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment, an appeal taken to the Supreme Court by notice of appeal shall be dismissed. An appeal by certiorari taken to the Supreme Court from the Regional Trial Court submitting issues of fact may be referred to the Court of Appeals for decisions or appropriate action. The determination of the Supreme Court on whether or not issues of fact are involved shall be final. (n) SECTION 7. Procedure if Opinion is Equally Divided. Where the court en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall again

be deliberated on, and if after such deliberation no decision is reached, the original action commenced in the court shall be dismissed; in appealed cases, the judgment or order appealed from shall stand affirmed; and on all incidental matters, the petition or motion shall be denied. (11a) Isagani Cruz vs. Secretary of DENR, G.R. No. 135385, December 6, 2000 If the voting of the Court en banc results in a tie, the motion for reconsideration is deemed denied. The Court's prior majority action on the main decision stands affirmed. This clarificatory Resolution applies to all cases heard by the Court en banc, which includes not only cases involving the constitutionality of a law, but also, as expressly stated in Section 4 (2), Article VIII of the Constitution, "all other cases which under the Rules of Court are required to be heard en banc." League of Cities of the Phil., et al. vs. COMELEC, et al., G.R. Nos. 176951, 177499 and 178056, August 24, 2010 The En Banc Resolution of 26 January 1999 in A.M. No. 99-1-09-SC, reads: A MOTION FOR THE CONSIDERATION OF A DECISION OR RESOLUTION OF THE COURT EN BANC OR OF A DIVISION MAY BE GRANTED UPON A VOTE OF A MAJORITY OF THE MEMBERS OF THE EN BANC OR OF A DIVISION, AS THE CASE MAY BE, WHO ACTUALLY TOOK PART IN THE DELIBERATION OF THE MOTION. IF THE VOTING RESULTS IN A TIE, THE MOTION FOR RECONSIDERATION IS DEEMED DENIED. (Emphasis supplied) The clear and simple language of the clarificatory en banc Resolution requires no further explanation. If the voting of the Court en banc results in a tie, the motion for reconsideration is deemed denied. The Court's prior majority action on the main decision stands affirmed. 4 This clarificatory Resolution applies to all cases heard by the Court en banc, which includes not only cases involving the constitutionality of a law, but also, as expressly stated in Section 4 (2), Article VIII of the Constitution, "all other cases which under the Rules of Court are required to be heard en banc."