Divinagracia and Santos Case

7/27/2019 Divinagracia and Santos Case

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G.R. Nos. 186007 & 186016 July 27, 2009

SALVADOR DIVINAGRACIA, JR., Petitioner,vs.COMMISSION ON ELECTIONS and ALEX A.

CENTENA, Respondents.

D E C I S I O N

CARPIO MORALES, J.:

Salvador Divinagracia, Jr. (petitioner) and Alex Centena (privaterespondent) vied for the vice-mayoralty race in Calinog, Iloiloduring the May 14, 2007 Elections wherein petitioner garnered8,141 votes or 13 votes more than the 8,128 votes received byrespondent.

After the proclamation of petitioner as the duly elected vice-mayoron May 16, 2007, private respondent filed with the Regional TrialCourt (RTC) of Iloilo City an election protest, docketed as ElectionCase No. 07-2007, claiming that irregularities attended theappreciation of marked ballots in seven precints.1

By Decision of December 5, 2007, Branch 24 of the RTCdismissed private respondents protest. It ruled that privaterespondent failed to overcome the disputable presumption ofregularity in the conduct of elections2 since no challenge of votes

or objection to the appreciation of ballots was raised before theBoard of Elections Inspectors or the Municipal Board ofCanvassers.

Private respondent and petitioner filed their respective notices ofappeal before the trial court, upon payment of the P1,000 appealfee under Section 9, Rule 14 of the "Rules of Procedure inElection Contests before the Courts involving Elective Municipaland Barangay Officials" (A.M. No. 07-4-15-SC) which took effecton May 15, 2007.

The Comelec, by Order of March 12, 2008, consolidated theappeals of the parties and directed them to file their respectivebriefs.

Meanwhile, the duly elected mayor of Calinog, Teodoro Lao, died

on March 18, 2008. On even date, petitioner assumed office asmayor.

On July 17, 2008, the Comelec Second Division issued its firstassailed resolution declaring private respondent as the dulyelected vice mayor. Thus it disposed:

WHEREFORE, this Commission GRANTS the Appeal in EAC No.A-10-2008, and hereby DECLARES protestant-appellant AlexCentena as the duly elected Vice-Mayor of the Municipality ofCalinog, Iloilo, with a total of 8,130 votes against protestee-

appellee Salvador Divinagracia, Jr.s total of 8,122 votes, or awinning margin of eight (8) votes.

The Decision of the Regional Trial Court of Iloilo City, Branch 24,dated 5 December 2007, is hereby REVERSED and SET ASIDE.

The Appeal in EAC No. A-11-2008 is hereby DENIED for lack ofmerit.

SO ORDERED.3

In reversing the trial courts Decision, the Comelec SecondDivision found the same to be fatally defective in form for non-observance of the prescribed rules4 as it failed to indicate thespecific markings in the contested ballots and merely discussedin a general manner the reasons why those ballots should not bedeclared as "marked."5The Comelec re-appreciated those ballotsand ascertained that respondent was the true winner in theelections for the vice-mayoralty post.

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Petitioner filed a Verified Motion for Reconsideration,alleging, inter alia, that both parties failed to pay the appeal fee/sin the amount of P3,200 under Section 3, Rule 40 of the ComelecRules of Procedure,6 and following Section 9, Rule 22 of thesame Rules, an appeal may be dismissed motu proprio or upon

motion on the ground of failure of the appellant to pay the correctappeal fee.

On January 26, 2009, the Comelec En Bancissued its secondassailed Resolution affirming7the pronouncements of the SecondDivision. It held that petitioner was barred under the doctrine ofestoppel by laches when he failed to raise the question of

jurisdiction when he filed his Appellants and Appellees Briefs.

Hence, the present petition for certiorari and prohibition whichasserts that payment of the appeal fee is a mandatory and

jurisdictional requirement and that the question of jurisdiction maybe raised at any stage of the proceedings. It cites earlier rulingsof the Comelec dismissing analogous cases involving the sameissue of non-payment of appeal fee which, so he contends,contradict the assailed Resolutions.

In support of the issue of whether the Comelec gravely abused itsdiscretion amounting to lack or excess of jurisdiction in issuingthe assailed Resolutions, petitioner submits the followingarguments:

7.1. THE PUBLIC RESPONDENT COMELEC DID NOTACQUIRE JURISDICTION OVER THE APPEALDOCKETED AS EAC NO. A-10-2008 FOR FAILURE OFTHE APPELLANT TO PAY THE FILING FEE/APPEALFEE.

7.2. PAYMENT OF FILING FEE/APPEAL FEE ISMANDATORY AND JURISDICTIONAL, HENCE, CAN BERAISED AT ANY STAGE OF THE PROCEEDINGSPENDING WITH THE SAME COURT/COMELEC.

7.3. THE FLIP-FLOPPING RULINGS OF THE PUBLICRESPONDENT COMELEC SECOND DIVISION IS INDEROGATION OF THE RULES AND THE PROPER

ADMINISTRATION OF JUSTICE.

7.4. IN ASSAILING THE RULING TO AFFIRM THESECOND DIVISION RESOLUTION, THE PETITIONERIS NOT BARRED BY ESTOPPEL BECAUSE HISPARTICIPATION IN THE PROCEEDINGS WASDIRECTED BY THE PUBLIC RESPONDENT COMELEC.

7.5. THERE APPEARS TO BE AN INCONSISTENCY INTHE APPLICATION OF THE RULES BETWEEN THEFIRST AND SECOND DIVISION OF THE PUBLICRESPONDENT COMELEC.8

Private respondent filed his Comment of March 17, 2009, whilepetitioner submitted a Reply of May 11, 2009.

Records show that private respondent took his oath of office asvice-mayor and, forthwith successively, as mayor on March 6,2009,9pursuant to the Comelec Order of March 3, 2009 directingthe issuance of a writ of execution.10

The petition lacks merit.

The jurisprudence on payment of filing fees in election cases

metamorphosed in the 1997 case ofLoyola v.Comelec.11In Loyola, the Court did not dismiss the electionprotest for inadequate payment of filing fees arising from theincorrect assessment by the clerk of court, after findingsubstantial compliance with the filing fee requirement in electioncases. The Court noted the clerks ignorance or confusion as towhich between Section 5(a)(11),12Rule 141 of the Rules of Courtand Section 9, Rule 35 of the Comelec Rules of Procedure wouldapply in assessing the filing fee, considering that the particular

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election protest fell within the exclusive original jurisdiction of theRegional Trial Court.

After clarifying the matter, the Court in Loyola warned that thecases cited therein would no longer provide any excuse for such

shortcoming and would now bar any claim of good faith,excusable negligence or mistake in any failure to pay the fullamount of filing fees in election cases which may be filed after thepromulgation of the decision in said case.

Shortly thereafter, in the similar case ofMiranda v.Castillo13which involved two election protests filed on May 24,1995, the Court did not yet heed the Loyola warning and insteadheld that an incomplete payment of filing fee is correctible by thepayment of the deficiency. The Court, nonetheless, reiterated thecaveat in Loyola that it would no longer tolerate any mistake in

the payment of the full amount of filing fees for election casesfiled afterthe promulgation of the Loyola decision on March 25,1997. lavvphil

The force of the Loyola doctrine was strongly felt in the 2000 caseofSoller v. Comelec,14 where the Court ordered the dismissal ofthe therein election protest for, inter alia, incomplete payment offiling fee, after finding aP268 deficiency in the fees paid, similar towhat occurred in Loyola and Miranda. The Court once againclarified that the then P300 filing fee prescribed by the Comelecunder Section 9, Rule 35 of the Comelec Rules of Procedure wasthe correct filing fee that must be paid.

The ripples of the caveat in Loyola continued in Villota v.Commission on Elections15 and Zamoras v. Commission onElections,16both of which involved, this time, the matter of fullpayment of the appeal fee in election contestswithin the five-dayreglementary period.

The petitioner in Villota timely filed a notice of appeal andsimultaneously paid to the trial courts cashier the appeal fees

totaling P170. Four days beyond the reglementary period, thetherein petitioner realized his mistake and again paid to the CashDivision of the Comelec the appeal fees in the sum of P520,pursuant to Sections 3 and 4, Rule 40 of the Comelec Rules ofProcedure, which Sections fix the amount of the fees and the

place of payment thereof. Maintaining that errors in the matter ofnon-payment or incomplete payment of filing fees in electioncases are no longer excusable, the Court sustained theComelecs dismissal of the appeal.

The Court was more emphatic in Zamoras in reiteratingthe Loyola doctrine. In that case, the petitioner failed to fully paythe appeal fees under Comelec Resolution No. 02-0130(September 18, 2002) which amended Section 3, Rule 40 of theComelec Rules of Procedure by increasing the fees to P3,200.There the Court ruled:

x x x A case is not deemed duly registered and docketed until fullpayment of the filing fee. Otherwise stated, the date of thepayment of the filing fee is deemed the actual date of the filing ofthe notice of appeal. x x x

x x x x

x x x The payment of the filing fee is a jurisdictionalrequirement and non-compliance is a valid basis for the dismissalof the case. The subsequent full payment of the filing fee after the

lapse of the reglementary period does not cure the jurisdictionaldefect. x x x17 (Italics in the original, underscoring supplied)

Such has been the jurisprudential landscape governing the matterof payment of filing fees and appeal fees in election cases.

On May 15, 2007, the Court, by A.M. No. 07-4-15-SC, introducedthe "Rules of Procedure in Election Contests before the Courtsinvolving Elective Municipal and Barangay Officials," whichsuperseded Rules 35 and 36 of the Comelec Rules of Procedure

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governing elections protests and quo warranto cases before thetrial courts.18Not only was the amount ofthe filing fee increased from P300 to P3,000 for eachinterest;19the amount of filing fee was determined by the Court,not by the Comelec, which was, to recall, the cause of confusion

in Loyola, Mirandaand Soller.

Another major change introduced by A.M. No. 07-4-15-SC is theimposition of an appeal fee under Section 9 of Rule 14thereof, separate and distinct from, but payable within the sameperiod as, the appeal fee imposed by the Comelec underSections 3 and 4, Rule 40 of the Comelec Rules of Procedure, asamended by Comelec Resolution No. 02-0130. Contrary torespondents contention, the Comelec-prescribed appeal feewas notsuperseded by A.M. No. 07-4-15-SC.

The requirement of these two appeal fees by two differentjurisdictions had caused confusion in the implementation by theComelec of its procedural rules on payment of appeal fees for theperfection of appeals, prompting the Comelec to issue ResolutionNo. 8486 (July 15, 2008) clarifying as follows:

1. That if the appellant had already paid the amount ofP1,000.00 before the Regional Trial Court, Metropolitan TrialCourt, Municipal Trial Court or lower courts within the five-dayperiod, pursuant to Section 9, Rule 14 of the Rules of Procedurein Election Contests Before the Courts Involving ElectiveMunicipal and Barangay Officials (Supreme Court AdministrativeOrder No. 07-4-15) and his Appeal was given due course by theCourt, saidappellant is required to pay the Comelec appealfee of P3,200.00 at the Commission's Cash Division throughthe Electoral Contests Adjudication Department (ECAD) orby postal money order payable to the Commission onElections through ECAD, within a period of fifteen days (15)from the time of the filing of the Notice of Appeal with thelower court. If no payment is made within the prescribedperiod, the appeal shall be dismissed pursuant to Section 9(a)of Rule 22 of the COMELEC Rules of Procedure, which provides:

Sec. 9. Grounds for Dismissal of Appeal. The appeal may bedismissed upon motion of either party or at the instance of theCommission on any of the following grounds:

(a) Failure of the appellant to pay the correct appeal fee; x x x

2. That if the appellant failed to pay the P1,000.00-appeal fee withthe lower court within the five (5) day period as prescribed by theSupreme Court New Rules of Procedure but the case wasnonetheless elevated to the Commission, the appeal shall bedismissed outright by the Commission, in accordance with theaforestated Section 9(a) of Rule 22 of the Comelec Rules ofProcedure. (Emphasis, italics and underscoring supplied)

That Comelec Resolution No. 8486 took effect on July 24,200820or after a party had filed a notice of appeal, as in the case

of petitioner, does not exempt it from paying the Comelec-prescribed appeal fees. The Comelec merely clarifiedthe existing rules on the payment of such appeal fees,and allowed the payment thereof within 15 days from filing thenotice of appeal.

In the recent case ofAguilar v. Comelec,21 the Court harmonizedthe rules with the following ratiocination:

The foregoing resolution is consistent with A.M. No. 07-4-15-SCand the COMELEC Rules of Procedure, as amended. The appeal

to the COMELEC of the trial courts decision in election contestsinvolving municipal and barangay officials is perfected upon thefiling of the notice of appeal and the payment of the P 1,000.00appeal fee to the court that rendered the decision within the five-day reglementary period. The non-payment or the insufficientpayment of the additional appeal fee of P 3,200.00 to theCOMELEC Cash Division, in accordance with Rule 40, Section 3of the COMELEC Rules of Procedure, as amended, does notaffect the perfection of the appeal and does not result inoutright or ipso facto dismissal of the appeal. Following, Rule

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22, Section 9(a) of the COMELEC Rules, the appeal may bedismissed. And pursuant to Rule 40, Section 18 of the samerules, if the fees are not paid, the COMELEC may refuse to takeaction thereon until they are paid and may dismiss the action orthe proceeding. In such a situation, the COMELEC is merely

given the discretion to dismiss the appeal or not. (Italics in theoriginal; emphasis and underscoring supplied)

InAguilar, the Court recognized the Comelecs discretion to allowor dismiss a "perfected" appeal that lacks payment of theComelec-prescribed appeal fee. The Court stated that it wasmore in keeping with fairness and prudence to allow the appealwhich was, similar to the present case, perfected months beforethe issuance of Comelec Resolution No. 8486.

Aguilarhas not, however, diluted the force of Comelec Resolution

No. 8486 on the matter of compliance with the Comelec-requiredappeal fees. To reiterate, Resolution No. 8486 merely clarified therules on Comelec appeal fees which have been existing as earlyas 1993, the amount of which was last fixed in 2002. TheComelec even went one step backward and extended the periodof payment to 15 days from the filing of the notice of appeal.

Considering that a year has elapsed after the issuance on July15, 2008 of Comelec Resolution No. 8486, and to further affirmthe discretion granted to the Comelec which it preciselyarticulated through the specific guidelines contained in saidResolution, the Court now declares, for the guidance of theBench and Bar, that for notices of appeal filed after thepromulgation of this decision, errors in the matter of non-paymentor incomplete payment of the two appeal fees in election casesare no longer excusable.

On the Comelecs application of the doctrine of estoppel bylaches, records show that petitioner raised the issue of lack of

jurisdiction for his and private respondents non-payment of theappeal fee only after the Comelec appreciated the contestedballots and ruled in favor of respondent, an issue which could

have been raised with reasonable diligence at the earliestopportunity. The Court finds the Comelec resolution well-taken.

That petitioners filing of the appellees brief was an invocation ofthe Comelecs jurisdiction and an indication of his active

participation cannot be refuted on the mere asseveration that hewas only complying with the Comelecs directive to file the same.The submission of briefs was ordered precisely because theComelec could not anticipate the claims and defenses that wouldbe raised by the parties. Moreover, in his Verified Motion forReconsideration, petitioner once again pleaded to the Comelec toexercise its jurisdiction by dismissing private respondents appealon the merits.22

The doctrine of estoppel by laches is not new in election cases. Ithas been applied in at least two cases involving the payment of

filing fees.

In Navarosa v. Comelec,23 the therein petitioner questioned thetrial courts jurisdiction over the election protest in the subsequentpetition for certiorari before the Comelec involving the ancillaryissue of execution pending appeal. The petitioner having raisedfor the first time the therein private respondents incompletepayment of the filing fee in her Memorandum submitted to theComelec, the Court applied the doctrine of estoppel in this wise:

In an earlier ruling, the Court held that an election protest is not

dismissible if the protestant, relying on the trial courtsassessment, pays only a portion of the COMELEC filing fee.However, in Miranda v. Castillo, the Court, reiterating Loyola v.Commission on Elections, held that it would no longer tolerate"any mistake in the payment of the full amount of filing fees forelection cases filed after the promulgation of the Loyola decisionon March 25, 1997." Nevertheless, our rulingsin Miranda and Loyola are inapplicable to the present case .

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At no time did petitioner Navarosa ever raise the issue ofrespondent Estos incomplete payment of the COMELEC filingfee during the full-blown trial of the election protest. PetitionerNavarosa actively participated in the proceedings below by filingher Answer, presenting her evidence, and later, seeking a stay of

execution by filing a supersedeas bond. Not only this, she eveninvoked the trial courts jurisdiction by filing a counter-protestagainst respondent Esto in which she must have prayed foraffirmative reliefs.

Petitioner Navarosa raised the issue of incomplete payment ofthe COMELEC filing fee only in her memorandum to respondentEstos petition before the COMELEC Second Division. PetitionerNavarosas conduct estops her from claiming, at such late stage,that the trial court did not after all acquire jurisdiction over theelection protest.Although a party cannot waive jurisdictional

issues and may raise them at any stage of the proceedings,estoppel may bar a party from raising such issues. In PantrancoNorth Express v. Court of Appeals, this Court applied the doctrineof estoppel against a party who also belatedly raised the issue ofinsufficient payment of filing fees to question the courts exerciseof jurisdiction over the case. We held:

The petitioner raised the issue regarding jurisdiction for the firsttime in its Brief filed with public respondent [Court of Appeals] x xx After vigorously participating in all stages of the case before thetrial court and even invoking the trial courts authority in order toask for affirmative relief, the petitioner is effectively barred by

estoppel from challenging the trial courts jurisdiction.

Indeed, in Miranda and Loyola, as in every other case where wesustained the dismissal of the election protest for lack orincomplete payment of the COMELEC filing fee, the protesteetimely raised the non-payment in a motion to dismiss. Before anyrevision of the contested ballots, the protestee filed a petitionforcertiorariquestioning the trial courts jurisdiction before theCOMELEC and eventually before this Court. In contrast, in theinstant case, petitioner Navarosa did not raise the incomplete

payment of the COMELEC filing fee in a motion to dismiss.Consequently, the trial court proceeded with the revision of thecontested ballots and subsequently rendered judgment on theelection protest. Petitioner Navarosa raised for the first time theincomplete payment of the COMELEC filing fee in her

memorandum before the COMELEC Second Division.

Thus, estoppel has set in precluding petitioner Navarosa fromquestioning the incomplete payment of the COMELEC filing fee,and in effect assailing the exercise of jurisdiction by the trial courtover the election protest. The law vests in the trial court

jurisdiction over election protests although the exercise of suchjurisdiction requires the payment of docket and filing fees by theparty invoking the trial courts jurisdiction. Estoppel now preventspetitioner Navarosa from questioning the trial courts exercise ofsuch jurisdiction, which the law and not any act of the parties has

conferred on the trial court. At this stage, the remedy forrespondent Estos incomplete payment is for him to pay the P200deficiency in the COMELEC filing fee. It is highly unjust to theelectorate of Libacao, Aklan, after the trial court has completedrevision of the contested ballots, to dismiss the election protestand forever foreclose the determination of the true winner of theelection for a mere P 200 deficiency in the COMELEC fil ing fee . xx x24(Italics and emphasis in the original; underscoring supplied)

In Villagracia v. Commission on Elections,25 the Court dismissedthe petition after finding that the therein petitioner was estoppedfrom raising the jurisdictional issue for the first time on appeal.

The Court ratiocinated:

Petitioner contends that had public respondent followed thedoctrine in Soller v. COMELEC, it would have sustained the rulingof the First Division that the trial court lacked jurisdiction to hearthe election protest due to private respondents failure to pay thecorrect filing fees.

We disagree. The Sollercase is not on all fours with the case atbar. In Soller, petitioner therein filed with the trial court a motion to

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dismiss private respondents protest on the ground of, amongothers, lack of jurisdiction. In the case at bar, petitioner activelyparticipated in the proceedings and voluntarily submitted to the

jurisdiction of the trial court. It was only after the trial court issuedits decision adverse to petitioner that he raised the issue of

jurisdiction for the first time on appeal with the COMELECs FirstDivision.

While it is true that a court acquires jurisdiction over a case uponcomplete payment of the prescribed filing fee, the rule admits ofexceptions, as when a party never raised the issue of jurisdictionin the trial court. As we stated in Tijam v. Sibonghanoy, et al., viz.:

xxx [I]t is too late for the loser to question the jurisdiction or powerof the court. xxx [I]t is not right for a party who has affirmed andinvoked the jurisdiction of a court in a particular matter to secure

an affirmative relief, to afterwards deny that same jurisdiction toescape a penalty.

It was therefore error on the part of the COMELECs First Divisionto indiscriminately apply Sollerto the case at bar. As correctlypointed out by public respondent in its questionedResolution, viz.:

x x x. Villagracia never assailed the proceedings of the trial courtfor lack of jurisdiction during the proceedings therein. Instead, hefiled an Answer to the Protest on 2 August 2002 and then actively

participated during the hearings and revision of ballots andsubsequently filed his Formal Offer of Exhibits. The issue on thefiling fees was never raised until the Decision adverse to hisinterest was promulgated by the trial court and only on [a]ppeal tothe COMELEC. Necessarily, we apply the case ofAlday vs. FGUInsurance Corporation where the Supreme Court instructed that"although the lack of jurisdiction of a court may be raised at anystage of the action, a party may be estopped from raising suchquestions if he has actively taken part in the very proceedingswhich he questions, belatedly objecting to the courts jurisdictionin the event that the judgment or order subsequently rendered is

adverse to him." Villagracia is therefore estopped fromquestioning the jurisdiction of the trial court only on[a]ppeal.26 (Underscoring supplied)

To allow petitioner to espouse his stale defense at such late

stage of the proceedings would run afoul of the basic tenets offairness. It is of no moment that petitioner raised the matter in amotion for reconsideration in the same appellate proceedings inthe Comelec, and not before a higher court. It bears noting thatunlike appellate proceedings before the Comelec, a motion forreconsideration of a trial courts decision in an election protest isa prohibited pleading,27which explains why stale claims of non-payment of filing fees have always been raised belatedly beforethe appellate tribunal. In appellate proceedings before theComelec, the stage to belatedly raise a stale claim of non-payment of appeal fees to subvert an adverse decision is a

motion for reconsideration. The Commission thus did not gravelyabuse its discretion when it did not countenance the glaringinequity presented by such situation.

More. Petitioner, guilty as he is of the same act that he assails,stands on equal footing with private respondent, for he himselfadmittedly did not pay the appeal fee, yet the Comelec similarlyadjudicated his appeal on the merits, the resolution of which heglaringly does not assail in the present petition. He who comes tocourt must come with clean hands.

Election cases cannot be treated in a similar manner as criminalcases where, upon appeal from a conviction by the trial court, thewhole case is thrown open for review and the appellate court canresolve issues which are not even set forth in thepleadings.28 Petitioner having set his eyes only on the issue ofappeal fees, the present petition must be resolved, as it is herebyresolved, on the basis of such singular ground which, asheretofore discussed, failed to convince the Court.

En passant, appreciation of the contested ballots and electiondocuments involves a question of fact best left to the

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determination of the Comelec, a specialized agency tasked withthe supervision of elections all over the country. In the absence ofgrave abuse of discretion or any jurisdictional infirmity or error oflaw, the factual findings, conclusions, rulings and decisionsrendered by the Comelec on matters falling within its competence

shall not be interfered with by this Court.29

By the assailed Resolutions, the Comelec declared as "marked"those ballots containing the words "Ruby," "Ruby Lizardo" and itsvariants after finding a discernible pattern in the way these wordswere written on the ballots, leading to the conclusion that theywere used to identify the voter. The Comelec found material thefollowing evidence aliunde: the name "Ruby Lizardo" referred to acommunity leader and political supporter of petitioner; said nameand its variants were written on several ballots in differentprecints; and the fact that Ruby Lizardo acted as an assistor in

the elections cannot hold water since an assistor cannot assist inthe preparation of the ballots for more than three times.30 TheComelec did not invalidate the other ballots for absence ofevidencealiunde to prove that the markings therein were used forthe purpose of identifying the voter. It ruled that circles, crossesand lines (e.g., "X" marks) placed on spaces on which the voterhas not voted are considered signs to indicate his desistancefrom voting and should not invalidate the ballot.

Petitioner failed to establish, or even allege, the presence ofgrave abuse of discretion with respect to the substance of theassailed Resolutions. Petitioners silent stance on this point is an

implied waiver of whatever infirmities or errors of law against thesubstantive aspect of the assailed Resolutions, for the Courtabhors a piecemeal approach in the presentation of argumentsand the adjudication thereof.

WHEREFORE, the petition is DISMISSED for lack of merit. TheJuly 17, 2008 Resolution and the January 26, 2009 Resolution ofthe Commission on Elections are AFFIRMED.

SO ORDERED.

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G.R. No. 155618 March 26, 2003

EDGAR Y. SANTOS, petitioner,vs.COMMISSION ON ELECTIONS (FIRST DIVISION) and PEDROQ. PANULAYA, respondents.

YNARES-SANTIAGO, J.:

Petitioner Edgar Y. Santos and respondent Pedro Q. Panulayawere both candidates for Mayor of the Municipality of Balingoan,Misamis Oriental in the May 14, 2001 elections. On May 16,2001, after the votes were counted and canvassed, the MunicipalBoard of Canvassers proclaimed respondent Panulaya as the

duly elected Mayor.

Petitioner filed an election protest before the Regional Trial Courtof Misamis Oriental, Branch 26, which was docketed as SPLElection Protest No. 1-M(2001). After trial and revision of theballots, the trial court found that petitioner garnered 2,181 voteswhile respondent received only 2,105. Hence, on April 2, 2002, itrendered judgment as follows:

WHEREFORE, judgment is hereby rendered declaringand proclaiming protestant/petitioner Edgar Y. Santos as

the duly elected Municipal Mayor of Balingoan, MisamisOriental, in the mayoralty elections held on May 14, 2001with the plurality of Seventy Six (76) votes over andabove his protagonist-protestee Pedro Q. Panulayasetting aside as null and void the proclamation ofprotestee made by the Municipal Board of Canvassers onMay 16, 2001, ordering to pay protestant/petitioner thecosts and expenses that the latter incurred in this protestin accordance with Section 259 of the Omnibus Election

Code of the Philippines (B.P. 881) and Section 7 of theCOMELEC Resolution 1566, to wit:

xxx xxx xxx.

The Clerk of Court of this Court is hereby directed tofurnish copy of the DECISION to the following: Office ofthe Commission on Elections (COMELEC); Office of theCommission on Audit; Office of the Department of Interiorand Local Government; Office of the SangguniangPanlalawigan of Misamis Oriental, in accordance withSection 15 of the COMELEC Resolution 1566.

SO ORDERED.1

Petitioner thereafter filed a motion for execution pending appeal.

Meanwhile, before the trial court could act on petitioners motion,respondent filed on April 22, 2002 with the Commission onElections (COMELEC) a petition for certiorari, docketed as SPRNo. 20-2002, assailing the decision of the trial court.2 Likewise on

April 22, 2002, respondent appealed the trial courts decision tothe COMELEC, where it was docketed as EAC No. A-12-2002.

The COMELEC, in SPR No. 20-2002, issued a Writ of PreliminaryInjunction, which effectively enjoined the trial court from acting onpetitioners motion for execution pending appeal. Subsequently,on August 19, 2002, the COMELEC dismissed SPR No. 20-2002

after finding that the trial court did not commit grave abuse ofdiscretion in rendering the assailed judgment. Moreover, theCOMELEC held that the remedy from the decision of the court aquo was to file a notice of appeal, which respondent precisely didin EAC No. A-12-2002. Hence, it directed the trial court to disposeof all pending incidents in SPL Election Protest No. 1-M(2001)with dispatch, to wit:

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WHEREFORE, premises considered, the Commission(First Division) RESOLVED as it hereby RESOLVES toDISMISS the instant petition for lack of merit.

ACCORDINGLY, the Writ of Preliminary Injunction issued

on 16 May 2002, as well as the Order issued on 27 April2002 by the Commission (First Division), are hereby setaside and lifted, respectively. The Court a quo is herebydirected to dispose with immediate dispatch all pendingincidents in SPL Election Case No. 1-M (2001) entitled"Edgar Y. Santos, Petitioner/Protestant versus Pedro Q.Panulaya, Respondent/Protestee."

No pronouncement as to cost.

SO ORDERED. (italics ours)3

Thus, on August 20, 2002, the trial court issued an Order asfollows:

WHEREFORE, premises considered, this Court herebyupholds and approves the Motion for Execution Pending

Appeal. Further, finding good reasons therefor, the Courthereby directs and orders the immediate execution of theDecision promulgated on April 18, 2002, and as prayedfor install protestant/petitioner EDGAR Y. SANTOS as theduly elected Mayor of Balingoan, Misamis Oriental, to

take his oath of office and assume the functions andduties of Mayor after he shall have filed a bond of OneHundred Thousand Pesos (P100,000.00).

SO ORDERED.4

After petitioner posted the required bond, the trial court issued theWrit of Execution,5 thereby installing petitioner as MunicipalMayor of Balingoan, Misamis Oriental. Accordingly, petitioner

took his oath of office and thereafter assumed the duties andfunctions of his office.

On August 21, 2002, respondent filed with the COMELEC amotion for reconsideration of the dismissal of his petition in SPR

No. 20-2002.6 After five days, or on August 26, 2002, he filed asupplemental petition in SPR No. 20-2002, 7 wherein he prayed:

WHEREFORE, foregoing premises considered, petitioner[herein respondent] respectfully prays unto this HonorableCommission that the following Orders of the publicrespondent:

1. Resolution dated 20 August 2002;

2. Order dated 20 August 2002;

3. Writ of execution dated 21 August 2002;

Be nullified and set aside.

It is further prayed that in the event that the publicrespondent has carried out its Order of ousting petitioner[herein respondent] from his position as Mayor ofBalingoan, Misamis Oriental, that the same be nullifiedand considered of no legal effect. It is likewise prayed thata STATUS QUO ANTE ORDERbe issued by the

Honorable Commission in order to reinstate the petitionerto his rightful position as Mayor of Balingoan, MisamisOriental.

Other reliefs, just and equitable are likewise prayed for.8

Barely two days later, on August 28, 2002, and while his motionfor reconsideration and supplemental petition in SPR No. 20-2002were pending, respondent filed another petition with theCOMELEC, docketed as SPR No. 37-2002.9 The petition

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contained the same prayer as that in the supplemental petitionfiled in SPR 20-2002, viz:

WHEREFORE, foregoing premises considered, petitioner[herein respondent] respectfully prays unto this

Honorable Commission thatimmediately upon the filing ofthe herein petition, the following Orders of the publicrespondent:

1. Resolution dated 20 August 2002;

2. Order dated 20 August 2002;

3. Writ of execution dated 21 August 2002;

Be nullified and set aside.

Pending trial and final judgment, and soon after theissuance, but during the effectivity of the TemporaryRestraining Order, a Writ of Preliminary Injunction beissued prohibiting, restraining and/or enjoining the publicrespondent from further implementing the highly unjust,irregular and oppressive Orders above-quoted;

It is further prayed that in the event that the publicrespondent has carried out its Order of ousting petitioner[herein respondent] from his position as Mayor of

Balingoan, Misamis Oriental, that the same be nullifiedand considered of no legal effect. It is likewise prayedthat a STATUS QUO ANTE ORDER be issued by theHonorable Commission in order to reinstate the petitionerto his rightful position as Mayor of Balingoan, MisamisOriental.

Upon due notice and hearing, judgment be rendered infavor of the petitioner [herein respondent] and against therespondent [herein petitioner] as follows:

1. Making the Writ of Preliminary ProhibitoryInjunction permanent;

2. Declaring Resolution dated 20 August 2002,Order dated 20 August 2002, and Writ of

Execution dated 21 August 2002; as null and voidfor being highly unjust, irregular and oppressivelyprepared in utter violation of the Constitutionalprovisions on equal protection of the laws and dueprocess, and for having been rendered with graveabuse of discretion amounting to lack or excess of

jurisdiction.

3. A writ of Prohibition be issued specificallycommanding public respondent to cease anddesist from further implementing the highly unjust,

irregular and oppressive Orders above-mentionedare concerned (sic); and

4. Ordering the respondents to pay the costs ofsuit.

Such other reliefs and remedies, as are just and equitablein the premises, are likewise prayed for.10

On September 3, 2002, the COMELEC issued the assailed Orderdirecting the parties to maintain the status quo ante and enjoining

petitioner from assuming the functions of Mayor. Pertinent portionof the Order reads:

In the interest of justice and so as not to render moot andacademic the issues raised in the petition, theCommission (First Division) hereby directs the parties tomaintain the status quo ante, which is the conditionprevailing before the issuance and implementation of thequestioned Order of the court a quo dated August 20,2002 and the Writ of Execution issued pursuant thereto

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dated August 21, 2002, in SPL. ELECTION CASE NO. 1-M (2001) entitled "EDGAR Y. SANTOS versus PEDRO Q.PANULAYA." Accordingly, effective immediately, privaterespondent EDGAR Y. SANTOS is hereby ordered tocease and desist from assuming the duties and functions

of the office of Mayor of Balingoan, Misamis Oriental untilfurther orders from this Commission.11

Petitioner filed a motion for reconsideration of the above Order.However, the COMELEC First Division did not refer the saidmotion to the COMELECEn Banc. Hence, petitioner, citing ourruling in Kho v. COMELEC,12brought the instant special civilaction for certiorari with this Court.

Meanwhile, on September 9, 2002, petitioner filed an "OmnibusMotion (1) To Dissolve The Status Quo Order As It Was Based

On An Unverified And Dismissed Petition With Pending MotionFor Reconsideration; And (2) To Refer This Motion To TheCommission En Banc Under Section 2, Rule 3 of the COMELECRules of Procedure."13 On October 14, 2002, the COMELECissued a Resolution in SPR No. 37-2002, the dispositive portionof which states:

WHEREFORE, premises considered, the Petition ishereby GRANTED. Accordingly, the August 20, 2002Resolution of the respondent judge granting the Motionfor Execution Pending Appeal as well as his Order alsodated August 20, 2002 directing the issuance of the Writof Execution and his Writ of Execution dated August 21,2002 are hereby set aside. Private Respondent Edgar Y.Santos is enjoined from assuming the function of mayorof Balingoan, Misamis Oriental until the finaldetermination of the election appeal case.

This resolution shall be immediately executory.

The Department of Interior and Local Government (DILG)is hereby requested to assist in the peaceful and orderlyimplementation of this Resolution.

SO ORDERED.14

The petition is impressed with merit.

It is at once apparent from the records, as shown above, thatrespondent was guilty of forum-shopping when he instituted SPRNo. 37-2002 with the COMELEC. Forum-shopping is an act of aparty against whom an adverse judgment or order has beenrendered in one forum of seeking and possibly getting a favorableopinion in another forum, other than by appeal or special civilaction for certiorari. It may also be the institution of two or moreactions or proceedings grounded on the same cause on the

supposition that one or the other court would make a favorabledisposition. For it to exist, there should be (a) identity of parties,or at least such parties as would represent the same interest inboth actions; (b) identity of rights asserted and relief prayed for,the relief being founded on the same facts; and (c) identity of thetwo preceding particulars such that any judgment rendered in theother action will, regardless of which party is successful, amountto res judicata in the action under consideration.15

In the case at bar, respondent obtained an adverse decisionwhen his petition in SPR No. 20-2002 was dismissed by theCOMELEC. He thereafter filed a motion for reconsideration and asupplemental petition, praying for the nullification of the trialcourts order for the execution of its decision pending appeal. Twodays after filing the supplemental petition, and while the samewas very much pending before the COMELEC, he filed a whollyseparate petition for certiorari, docketed as SPR No. 37-2002,wherein he pleaded the same reliefs prayed for in thesupplemental petition. This is plainly evident from the respectiveprayers in the supplemental petition and the petition for certiorarias reproduced hereinabove. In doing so, respondent, beforeallowing the COMELEC to fully resolve the incidents in SPR No.

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20-2002, both of which were at his own instance, sought toincrease his chances of securing a favorable decision in anotherpetition. He filed the second petition on the supposition that theCOMELEC might look with favor upon his reliefs.

Forum-shopping is considered a pernicious evil; it adverselyaffects the efficient administration of justice since it clogs thecourt dockets, unduly burdens the financial and human resourcesof the judiciary, and trifles with and mocks judicialprocesses.16 The most important factor in determining theexistence of forum shopping is the vexation caused the courtsand parties-litigants by a party who asks different courts to rule onthe same or related causes or grant the same or substantially thesame reliefs.17

Considering that respondent was indubitably guilty of forum-

shopping when he filed SPR No. 37-2002, his petition shouldhave been dismissed outright by the COMELEC.18 Willful anddeliberate forum-shopping is a ground for summary dismissal ofthe case, and constitutes direct contempt of court. 19

The petition for certiorari in SPR No. 37-2002 assailed the trialcourts orders for the execution of its decision pending appeal.The grant of execution pending appeal was well within thediscretionary powers of the trial court. In order to obtain theannulment of said orders in a petition for certiorari, it must first beproved that the trial court gravely abused its discretion. He shouldshow not merely a reversible error committed by the trial court,but a grave abuse of discretion amounting to lack or excess of

jurisdiction. "Grave abuse of discretion" implies such capriciousand whimsical exercise of judgment as is equivalent to lack of

jurisdiction, or where the power is exercised in an arbitrary ordespotic manner by reason of passion or personal hostility whichmust be so patent and gross as to amount to an invasion ofpositive duty or to a virtual refusal to perform the duty enjoined orto act at all in contemplation of law. Mere abuse of discretion isnot enough.20

We find that no grave abuse of discretion was committed by thetrial court. In its order granting execution pending appeal, it held:

It is of judicial notice that for the public official elected lastMay 14, 2001 elections only a short period is left. Relative

to this Courts jurisdiction over the instant case, thesettled rule that the mere filing of the notice of appealdoes not divest the trial court of its jurisdiction over thecase and to resolve pending incidents, i.e., motion forexecution pending appeal (Asmala vs. COMELEC, 289SCRA 745) need not be overemphasized. 21

However, the COMELEC set aside the aforesaid order, sayingthat shortness of term alone is not a good reason for execution ofa judgment pending appeal. We disagree.

While it was indeed held that shortness of the remaining term ofoffice and posting a bond are not good reasons, we clearly statedin Fermo v. COMELEC22 that:

A valid exercise of the discretion to allow executionpending appeal requires that it should be based "upongood reasons to be stated in a special order." Thefollowing constitute "good reasons" and a combination oftwo or more of them will suffice to grant executionpending appeal: (1.) public interest involved or will of theelectorate; (2.) the shortness of the remaining portion ofthe term of the contested office; and (3.) the length of timethat the election contest has been pending (italicssupplied). 23

The decision of the trial court in Election Protest No. 1-M(2001)was rendered on April 2, 2002, or after almost one year of trialand revision of the questioned ballots. It found petitioner as thecandidate with the plurality of votes. Respondent appealed thesaid decision to the COMELEC. In the meantime, the three-yearterm of the Office of the Mayor continued to run. The will of the

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electorate, as determined by the trial court in the election protest,had to be respected and given meaning. The Municipality ofBalingoan, Misamis Oriental, needed the services of a mayoreven while the election protest was pending, and it had to be thecandidate judicially determined to have been chosen by the

people.

Between the determination by the trial court of who of thecandidates won the elections and the finding of the Board ofCanvassers as to whom to proclaim, it is the courts decision thatshould prevail. This was sufficiently explained in the caseofRamas v. COMELEC24 in this wise:

All that was required for a valid exercise of the discretionto allow execution pending appeal was that the immediateexecution should be based "upon good reasons to be

stated in a special order." The rationale why suchexecution is allowed in election cases is, as statedin Gahol v. Riodique,25 "to give as much recognition to theworth of a trial judges decision as that which is initiallyascribed by the law to the proclamation by the board ofcanvassers." Thus:

Why should the proclamation by the board ofcanvassers suffice as basis of the right to assumeoffice, subject to future contingencies attendant toa protest, and not the decision of a court of

justice? Indeed, when it is considered that the

board of canvassers is composed of persons whoare less technically prepared to make an accurateappreciation of the ballots, apart from their beingmore apt to yield to extraneous considerations,and that the board must act summarily, practicallyracing against time, while, on the other hand, the

judge has benefit of all the evidence the partiescan offer and of admittedly better technicalpreparation and background, apart from his beingallowed ample time for conscientious study and

mature deliberation before rendering judgment,one cannot but perceive the wisdom of allowingthe immediate execution of decisions in electioncases adverse to the protestees, notwithstandingthe perfection and pendency of appeals

therefrom, as long as there are, in the sounddiscretion of the court, good reasons therefor.

To deprive trial courts of their discretion to grantexecution pending appeal would, in the words ofTobon Uy v. COMELEC,26

bring back the ghost of the "grab-the-proclamation-prolong the protest" techniques so often resorted to bydevious politicians in the past in their efforts to perpetuatetheir hold to an elective office. This would, as a

consequence, lay to waste the will of the electorate.27

Thus, the COMELEC committed grave abuse of discretion ingiving due course, instead of dismissing outright, the petition inSPR No. 37-2002 despite the clear showing that respondent wasguilty of forum-shopping; and in setting aside the trial courtsorder granting execution pending appeal.

WHEREFORE, in view of the foregoing, the instant petition isGRANTED. The Order dated September 3, 2002 and theResolution dated October 14, 2002 of the Commission onElections in SPR No. 37-2002 are ANNULLED and SET ASIDEand the said case is ordered DISMISSED on the ground of forum-shopping. The Order dated August 20, 2002 of the Regional TrialCourt of Misamis Oriental, Branch 26, granting the executionpending appeal of its decision in Election Protest No. 1-M(2001),and the Writ of Execution dated August 21, 2002, areREINSTATED. The full enforcement of the said Writ mustforthwith be made. The court of origin shall transmit immediatelyto the Commission on Elections the records of SPL Election CaseNo. 1-M(2001), and the Commission on Elections shall dispose ofthe appeal in EAC No. A-12-2002 with deliberate dispatch.

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This Decision shall be immediately executory.

Costs against private respondent.

SO ORDERED.

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Divinagracia and Santos Case

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