Bersabal vs. Salvador

Under Section 45 of Republic Act No. 296 as amended by Republic Act No. 6031, the submission of memoranda by the parties on appeal from a city or municipal court is permissive (“may submit”), and a Court of First Instance has no power to dismiss an appeal for the mere failure of an appellant to submit a memorandum; the court’s mandatory duty is to decide the case on the basis of the evidence and records transmitted from the inferior court.

Private respondents Tan That and Ong Pin Tee filed an ejectment suit against petitioner Purita Bersabal in the City Court of Caloocan City. The city court rendered a decision adverse to petitioner on November 25, 1970. Petitioner appealed to the Court of First Instance of Caloocan City. During the pendency of the appeal, the respondent judge issued an order directing the clerk of the city court to transmit the transcripts of stenographic notes and granting both parties 30 days to file memoranda. Petitioner moved ex-parte to be allowed to submit her memorandum within 30 days from notice of the submission of the transcripts; the motion was granted. Before any notice of the submission of transcripts was received, the respondent judge dismissed the appeal for failure to prosecute. Petitioner challenged the dismissal through a petition for certiorari and mandamus.

• The Ejectment Suit: Private respondents Tan That and Ong Pin Tee filed an ejectment suit against petitioner Purita Bersabal in the City Court of Caloocan City, docketed as Civil Case No. 6926. The city court rendered a judgment against petitioner on November 25, 1970.
• Appeal to the CFI: Petitioner appealed to the Court of First Instance of Caloocan City, where the case was docketed as Civil Case No. C-2036.
• CFI Order to Transmit Records and File Memoranda: On March 23, 1971, respondent judge issued an order directing the clerk of the city court to transmit the transcripts of stenographic notes within 15 days and granting both parties 30 days from receipt of the order to file their memoranda. Thereafter, the case would be deemed submitted for decision. Petitioner received a copy of this order on April 17, 1971.
• Petitioner’s Ex-Parte Motion: Because the transcripts had not yet been forwarded, petitioner filed on May 5, 1971 an “Ex-Parte Motion to Submit Memorandum Within 30 Days from Receipt of Notice of Submission of the Transcript of Stenographic Notes.” Respondent judge granted this motion on May 7, 1971.
• Dismissal of Appeal: Before petitioner received any notice that the transcripts had been submitted, respondent judge issued an order dated August 4, 1971, dismissing the appeal “for failure of the defendant-appellant to prosecute her appeal.”
• Motions for Reconsideration: Petitioner filed a motion for reconsideration on September 28, 1971, invoking the granted ex-parte motion. Private respondents opposed. Meanwhile, on October 20, 1971, petitioner submitted her memorandum. The motion for reconsideration was denied on October 30, 1971. Petitioner filed a motion for leave to file a second motion for reconsideration on January 25, 1972; it was denied on March 15, 1972.
• Petition for Certiorari and Mandamus: Petitioner initiated the present petition on March 23, 1972, seeking to annul the orders of August 4, 1971, October 30, 1971, and March 15, 1972, and to compel respondent judge to decide the appeal on the merits based on the evidence and records submitted by the city court.

• Memorandum Optional Under the Statute: Petitioner maintained that Section 45 of the Judiciary Act as amended uses the permissive term “may submit” in relation to memoranda, and the mandatory term “shall decide” with respect to the court’s duty to resolve the case on the basis of the transmitted evidence and records. Thus, the failure to file a memorandum does not constitute failure to prosecute and cannot support a dismissal of the appeal.
• No Notice Triggering the Period to File: Petitioner argued that the respondent judge’s order of May 7, 1971, granted her 30 days from receipt of notice of submission of the transcripts to file her memorandum. Since no such notice was furnished, the period for filing had not commenced and the dismissal was premature.

• Failure to Prosecute Justified Dismissal: Private respondents, and by implication respondent judge, contended that petitioner’s failure to submit a memorandum within the time initially fixed by the March 23, 1971 order amounted to failure to prosecute her appeal, thereby authorizing dismissal under the court’s inherent power to control its proceedings.

• Effect of Non-Filing of Memorandum: Whether, under the second paragraph of Section 45 of Republic Act No. 296, as amended by Republic Act No. 6031, the mere failure of an appellant to file a memorandum on time empowers the Court of First Instance to dismiss the appeal for failure to prosecute, or whether the court is mandated to decide the appealed case on the basis of the evidence and records transmitted from the inferior court.

• Effect of Non-Filing of Memorandum: The dismissal of the appeal was annulled. Section 45 of Republic Act No. 296, as amended, provides that Courts of First Instance “shall decide” appealed cases on the basis of transmitted evidence and records, while the parties “may submit” memoranda. The word “may” is permissive and confers discretion; “shall” is imperative and imposes a mandatory duty. Because the submission of a memorandum is optional, an appellant’s non-submission does not authorize dismissal of the appeal. The court’s mandatory obligation is to decide the case on the available evidence and records. Furthermore, petitioner’s period to file the memorandum had been made to run from notice of the submission of transcripts, and no such notice was ever sent; the dismissal was therefore premature. The challenged orders were declared void, and the CFI was directed to resolve the appeal on the merits.

• Permissive “May” vs. Mandatory “Shall” in Statutory Construction — “May” is generally permissive and operates to confer discretion; “shall” is imperative and imposes a duty that may be enforced. Under Section 45 of the Judiciary Act as amended, “may submit” renders the filing of memoranda optional for the parties, while “shall decide” imposes on the Court of First Instance the non-discretionary duty to decide the appealed case on the basis of the transmitted evidence and records, irrespective of whether memoranda are filed.
• Protection of the Right to Appeal — Courts should proceed with caution so that a party is not deprived of the right to appeal except for weighty reasons. A summary dismissal of an appeal before the appellant has been afforded a full opportunity to comply with procedural requirements, where the delay is attributable to circumstances beyond the appellant’s control, constitutes reversible error.

• “The foregoing provision is clear and leaves no room for doubt. It cannot be interpreted otherwise than that the submission of memoranda is optional on the part of the parties.”
• “As a general rule, the word ‘may’ when used in a statute is permissive only and operates to confer discretion; while the word ‘shall’ is imperative, operating to impose a duty which may be enforced.”
• “A contrary interpretation would be unjust and dangerous as it may defeat the litigant’s right to appeal granted to him by law.”

• Dizon vs. Encarnacion, L-18615, Dec. 24, 1963, 9 SCRA 714 — Cited as authority for the general rule on statutory construction distinguishing permissive “may” from imperative “shall.”
• Republic vs. Rodriguez, L-26056, May 29, 1969, 28 SCRA 378 — Relied upon for the principle that courts must exercise caution so that a party is not deprived of the right to appeal except for weighty reasons.
• Municipality of Tiwi, Albay vs. Cirujales, L-37520, Dec. 26, 1973, 54 SCRA 390 — Invoked to support the ruling that a summary dismissal of an appeal before the records are received and without considering unavoidable circumstances not attributable to the appellant is precipitate and must be set aside.

• Section 45, paragraph 2, Republic Act No. 296 (Judiciary Act of 1948), as amended by Republic Act No. 6031 — Provides that “Courts of First Instance shall decide such appealed cases on the basis of the evidence and records transmitted from the city or municipal courts: Provided, That the parties may submit memoranda and/or brief with oral argument if so requested ….” Applied to hold that the filing of memoranda is permissive, not mandatory, and that the court’s duty to decide on the transmitted evidence and records is compulsory.

Muñoz Palma, Fernandez, and Guerrero, JJ., concurred.

Justice Teehankee filed a separate concurring opinion. He agreed with setting aside the dismissal because petitioner had not received notice of the submission of transcripts and thus could not be deemed to have failed to prosecute. He expressed serious doubt, however, about the majority’s ratio decidendi that a Court of First Instance is entirely without power to dismiss an appeal for failure to submit a memorandum. In his view, when the court “requests” a memorandum, such request is tantamount to a requirement for proper prosecution of the appeal, and willful failure to comply may justify dismissal under the analogous provisions of Rule 50, Section 1, and Rule 40, Section 9 of the Rules of Court, which authorize dismissal of an appeal for failure to prosecute.