Appellants Brief (William Kho Go)
Appellants Brief (William Kho Go)
COURT OF APPEALS
MANILA
______________ DIVISION
APPELLANTS BRIEF
TABLE OF CONTENTS
Subject
Page
ASSIGNMENT OF ERRORS
PRAYER
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CASES CITED
Martin PeOso & Elizabeth PeOso V. Macrosman Dona
(GR No. 154018)
Tan Tiac Chiong v. Hon. Rodrigo Cosico
(AM No. CA-02-33)
Linda M. Chan Kent v. Dionesio C. Micarez, et al.,
(G.R. No. 185758)
Andrew James Mcburnie v. Eulalio Ganzon,
Egi-Managers, Inc and E. Ganzon, Inc.,
(G.R. Nos. 178034 & 178117 G R. Nos. 186984-85)
Anson Trade Center Inc., Anson Emporium Corporation
& Teddy Keng Sc Chen v. Pacific Banking Corporation
(G.R No. 179999)
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ANNEXES
Complaint dated August 29, 2012
Pre-trial Order dated Sept. 17, 2014
Order dated October 02, 2014
Motion Reconsideration dated Nov. 17, 2014
Comment/Opposition dated Dec. 17, 2014
Order dated January 26, 2014
Notice of Appeal
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A
B
C
D
E
F
H
9. From the Opposition, the plaintiff then filed its Comment thereof;
[Ref: Comment/Opposition dated December 17, 2014 marked as
Annex F]
10. Based on the foregoing pleadings filed by both parties, the
Honorable RTC, denied the Motion for Reconsideration of the plaintiff and
affirmed their previous ruling of dismissing the case;
[Ref: Order dated January 26, 2015 marked as Annex G]
11. Hence, a notice of appeal was filed by herein plaintiff dated
February 06, 2015;
[Ref: Notice of Appeal dated February 06, 2015 marked as Annex
H]
ASSIGNMENT OF ERRORS
a] It is respectfully submitted that the Honorable Lower Court
committed an error when it declared in the subject assailed decision: Acting
on the plaintiffs Motion for Reconsideration, with Opposition from the
defendants, the Court to DENY the Motion for the following reasons: (1) as
correctly pointed out by the defendants, it appearing that counsel for
plaintiff in this case is Atty. Victor Ariel Soliven and suddenly it was Atty.
Nadine Faye Miralles who filed the Motion for Reconsideration without
explaining why Atty. Soliven did not appear (2) again, as correctly argued
by the defendants counsel there was no explanation why the plaintiffs
witness, Michael Alvin A. Gianan, was absent during the hearing on
October 02, 2014, which was one of the reasons why the instant complaint
of the plaintiff was dismissed, and not merely due to the absence of the
plaintiffs counsel; (3) neither was there any representative from the plaintiff
during the said hearing on October 02, 2014 and the same was not also
explained; (4) the alleged absence of Atty. Nadine Faye C. Miralles as
alleged substitute counsel for plaintiff is not also substantiated by evidence.
Except for her self-serving declaration in her affidavit of merit, there is even
no photograph or even police report or traffic incident report that would
support her alleged reason for not coming to court on time; (5) furthermore,
if it were true that there was such incident, as alleged by Atty. Miralles, the
same should have been reported to the Court before the Court have issued
the order on October 02, 2014, and (6) incidentally, contrary to the
allegation of the plaintiffs counsel in her Motion for Reconsideration, this
case is not an ex-parte proceeding because the defendants where never
declared in default. . WHEREFORE, the Motion for Reconsideration of
plaintiff is DENIED for lack of merit and the Order dated October 02, 2014
is MAINTAINED. The Honorable Lower Court decided the case without
considering the merits of the case and deciding the case on the basis of
technicalities.
b] It is respectfully submitted that the Honorable Lower Court
committed an error when it dismissed the case despite the plaintiffappellants willingness intent to prosecute the case.
ARGUMENTS AND DISCUSSION
It is with the foregoing presentation that the herein plaintiff
respectfully raises in issue the dismissal of the instant case in this appeal.
I. It is respectfully submitted that the
Honorable Lower Court committed an
error when it declared the assailed
decision. The Honorable Lower Court
decided the case without considering
the merits of the case and deciding on
the basis of technicalities.
12. Our humble assertion is that the trial court is mandated by law to
try the case and resolve the same in its finality without undue regards to
technicality. The Supreme Court held in a plethora of cases that the primary
duty of the courts is to render or dispense justice and not on technicalities for
litigation is not a game of technicalities and must be avoided when such
technicality would impede the cause of justice. The pertinent portions of
which are quoted hereunder:
XXX XXX
Litigations must be decided on their merits and not on technicality.
Every party litigant must be afforded the amplest opportunity for the
proper and just determination of his cause, free from the unacceptable
plea of technicalities. xxx xxx It is a far better and more prudent course of
action for the court to excuse a technical lapse and afford the parties a
review of the case on appeal to attain the ends of justice rather than
dispose of the case on technicality and cause a grave injustice to the
parties, giving a false impression of speedy disposal of cases while actually
resulting in more delay, if not a miscarriage of justice. (Martin Pe Oso v.
Elizabeth Pe Oso & Macrosman Dona, GR No. 154018 April 03, 2007)
XXX XXX
Litigations should, as much as possible, be decided on the merits
and not on technicalities. Since rules of procedure are mere tools designed
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EXPLANATION
Pursuant to Section 11, Rule 13 of the Rules of Court, 1997 Rules of Civil Procedure, a copy of
this Comment was served to the above adverse parties / counsel by Registered Mail and not by personal
service due to time constraints and the distance of counsels office from the office of the undersigned and
considering further, the shortage of available manpower to effect service of said Comment by personal
delivery.
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