ManilaEN
BANC
NESTOR C.
LIM,
Petitioner,
G.R. No. 129040
November 17, 1997
-versus-
COMMISSION
ON ELECTIONS, HON. FELIMON C.
ABELITA,
III,
in his capacity as Presiding Judge of
the
Regional Trial Court
of Masbate, Branch 44, and SALVADOR O.
SANCHEZ,
Respondents.
D
E C I S I O N
MENDOZA, J.:
This is a
Petition for Certiorari to annul the resolution
dated April 17, 1997 of Commission on Election, sustaining the
dismissal
by the Regional Trial Court (Branch 44) of Masbate of petitioner's
counter-protest
against private respondent Salvadora O. Sanchez in connection with the
mayoralty contest for Uson, Masbate.
Petitioner Nestor
C. Lim and private respondent
Salvadora O. Sanchez were candidates for the office of mayor of the
Municipality
of Uson, Masbate in the May 8, 1995 elections. Petitioner was credited
7,532 votes against 7,193 votes for private respondent and declared
winner
by a margin of 339 votes. On May 11, 1995, he was proclaimed the
duly-elected
mayor of Uson, Masbate by the municipal board of canvassers.cralaw:red
On May 22, 1995,
private respondent filed an election
protest alleging massive and rampant fraud committed by petitioner's
camp
in 32 polling precincts. Petitioner was required to answer. Summons and
copies of the election protest were served on him on June 2, 1995.[1]
On June 15, 1995, Atty. Renato M. Cervantes entered his appearance as
counsel
for petitioner and moved for an extension of 15 days from June 17, 1995
within which to file petitioner's answer. The trial court granted
petitioner
an extension of ten (10) days from June 16, 1995, i.e., until
June
26, 1995, within which to file his answer.cralaw:red
On June 22, 1995,
petitioner instead filed a motion
to dismiss the election protest on the ground that the protest was
filed
beyond the reglementary period of then (10) days counted from the
proclamation
of the results of the elections on May 11, 1995.cralaw:red
On August 23,
1995, the trial court denied petitioner's
motion to dismiss. Private respondent's protest, which was sent by
registered
mail on May 22, 1995, was held to have been filed on time, considering
that May 21, 1995, the last day of the ten-day reglementary period,
fell
on a Sunday. A copy of the order of denial was received by the
petitioner
on August 31, 1995. Petitioner filed a motion for reconsideration, but
the trial court denied his motion. He then questioned the orders in a
petition
for certiorari in the Court of Appeals. However, his petition was
dismissed
by the appellate court for want of jurisdiction.[2]
Petitioner also
filed a motion for a bill of particulars
upon the denial of his motion to dismiss. Again, his motion was denied.
Petitioner received a copy of the order of denial on November 8, 1995.
On November 13, 1995, petitioner filed his answer with counter-protest
by registered mail. The trial court thereafter ordered the parties to
name
their representatives to the revision committee. The revision of the
ballots
subject of private respondent's protest having been finished on June
10,
1996, petitioner, on June 13, 1996, moved for the revision of ballots
subject
of his counter-protest. But the trial court denied his motion in its
order
of August 7, 1996 on the ground that petitioner's answer with
counter-protest
was filed out of time. In its order dated September 9, 1996, it denied
petitioner's motion for reconsideration. A copy of the order was
received
by the petitioner on September 21, 1996.cralaw:red
Petitioner filed
a petition for certiorari in
the COMELEC which, in its resolution dated April 17, 1997, dismissed
petitioner's
petition for lack of merit. Petitioner received a copy of the
resolution
on the same day. On April 22, 1997, he filed a motion for
reconsideration.
Realizing that such motion was not allowed under Rule 13, Section 1(d)
of the COMELEC Rules of Procedure, he brought this petition on May 17,
1997.cralaw:red
Meantime, on May
8, 1997, the trial court rendered
a decision annulling the proclamation of petitioner as the duly-elected
mayor of Uson, Masbate and declaring in his place private respondent as
winner of the mayoralty contest by a margin of 111 votes.[3]
Petitioner
contends that the COMELEC gravely abused
its discretion in upholding the trial court's order denying his
counter-protest.
He argues that the Rules of Court, rather than those of the COMELEC,
govern
the requirements and periods for pleading in election contests
cognizable
by the Regional Trial Courts. He argues that his pleadings were filed
within
the periods prescribed by the Rules of Court. He avers that he filed a
motion to dismiss the protest on June 22, 1995, within the extension to
file an answer granted by the trial court; that he had fifteen (15)
days
to file an answer from August 31, 1995, the date he received notice of
denial of his motion to dismiss; that, in accordance with the Rules of
Court, he had up to September 4, 1995 within which to file a motion for
a bill of particulars; and that upon denial of his motion, he had five
(5) days from receipt of the order on November 8, 1995 within which to
file his answer, which he did on November 13, 1995, as provided in Rule
12, Section 1(b) of the Rules of Court.cralaw:red
After due
consideration of the petition, to which
an answer (comment) was filed by private respondent, we think the
petition
should be dismissed for lack of merit. The COMELEC correctly
found
that petitioner's counter-protest was filed out of time. The basic flaw
in petitioner's theory is his insistence that because the election
protest
is cognizable by the Regional Trial Court, the period for filing
pleadings
is governed by the Rules of Court. The Omnibus Election Code (B.P. No.
881) provides:
"Section 254. Procedure in election
contests.
The Commission shall prescribe the rules to govern the procedure and
other
matters relating to the election contests pertaining to all national,
regional,
provincial, and city offices not later than thirty days before such
elections.
Such rules shall provide a simple and inexpensive procedure for the
expeditious
disposition of election contest and shall be published in at least two
newspapers of general circulation.
"However, with respect to election
contest
involving
municipal and barangay offices the following rules of procedure shall
govern:
"(a) Notice of the protest contesting
the
election
of a candidate for a municipal or barangay office shall be served upon
the candidate by means of a summons at the postal address stated in his
certificate of candidacy except when the protestee, without waiting for
the summons, has made the court understand that he has been notified of
the protest or has filed his answer hereto;
"(b) The protestee shall answer the
protest
within
five days after receipt of the summons, or, in case there has been no
summons
from the date of his appearance and in all cases before the
commencement
of the hearing of the protest or contest. The answer shall deal only
with
the election in the polling places which are covered by the allegations
of the contest;
"(c) Should the protestee desire to
impugn
the
votes received by the protestant in other polling places, he shall file
a counter-protest within the same period fixed for the answer serving a
copy thereof upon the protestant by registered mail or by personal
delivery
of through the sheriff;
"(d) The protestant shall answer the
counter-protest
within five days after notices;
"(e) Within the period of five days
counted
from
the filing of the protest any other candidate for the same office may
intervene
in the case as other contestants and ask for affirmative relief in his
favor by a petition in intervention, which shall be considered as
another
contest, except that it shall be substantiated within the same
proceedings.
The protestant or protestee shall answer the protest in intervention
within
five days after notice;
"(f) If no answer shall be filed to
the
contest,
counter-protest, or to the protest in intervention, within the time
limits
respectively fixed, a general denial shall be deemed to have been
entered;
"(g) In election contest proceedings,
the
permanent
registry list of voters shall be conclusive in regard to the question
as
to who has the right to vote in said election."
Conformably to
these provision, the COMELEC Rules
of Procedure likewise provides:
"PART VIPROVISIONS GOVERNING ELECTION
CONTEST
AND
QUO WARRANTO CASES BEFORE TRIAL COURTS
"Rule 35. Election Contest Before Courts
of
General Jurisdiction:
xxx xxx xxx
"Section 7. Answer, Reply,
Counter-Protest
and Protest in Intervention. (a) Within five (5) days after
receipt
of notice of the filing of the petition and a copy of the petition, the
respondent shall file his answer thereto specifying the nature of his
defense,
and serve a copy thereof upon the protestant. The answer shall deal
only
with the election in the precincts which are covered by the allegations
of the protest.
"(b) Should the protestee desire to
impugn
the
votes received by the protestant in other precincts, he shall file a
counter-protest
within the same period fixed for the filing of the answer, serving a
copy
thereof upon the protestant by registered mail or by personal delivery.
In such a case, the counter-protest shall be verified.
"(c) The protestant shall answer the
counter-protest
within five (5) days after notice.
"(d) Within five (5) days from the
filing of
the
protest, any other candidate for the same office may intervene in the
case
as other contestants and ask for affirmative relief in his favor by a
verified
petition in intervention, which shall be substantiated within the same
proceeding. The protestant or protestee shall answer the
protest-in-intervention
within five (5) days after notice.
"(e) If no answer shall be filed to
the
protest,
counter-protest, or protest-in-intervention within the time limits
respectively
fixed, a general denial shall be deemed to have been entered."
It will thus be
seen that Rule 35 of the COMELEC
Rules of Procedure merely reproduced the provisions of Art. XXI,
Section
254 of the Omnibus Election Code. There is no basis for petitioner's
contention
that the COMELEC has no power to prescribe the procedure for election
contests
filed in the Regional Trial Courts and those filed in the Municipal
Trial
Courts.[4]
The timeliness of petitioner's protest must therefore be determined in
accordance with the rule of the COMELEC.
As already noted,
petitioner received summons
and copies of the election protest on June 2, 1995. In accordance with
Art XXI, Section 254(b) of the Omnibus Election Code and Rule 35,
Section7
(a) of the COMELEC Rules of Procedure, his answer should have been
filed
within five (5) days, i.e., on or before June 7, 1995. But
petitioner
did not file his answer on or before that date. On June 15, 1995, eight
(8) days after the expiration of the period for filing his answer, his
counsel filed a motion for an extension of fifteen (15) days within
which
to file an answer or any responsive pleading to the election protest.
His
motion was thus filed late. In Maliwanag v. Herrera,[5]
the Court held that the provisions of the Rules of Court are suppletory
to the provisions of the Election Law. Hence a motion for extension of
time to file answer to the election protest should be filed before the
expiration of the five-day reglementary period to answer, otherwise a
general
denial shall be deemed to have been entered against the protestee.[6]
Petitioner's answer with counter-protest, which was filed on November
13,
1995, was therefore filed more than five months late.cralaw:red
In the case of
Maliwanag v. Herrera,[7]
the Court rule that a counter-protest is equivalent of a counterclaim
in
a civil action and, therefore, must be presented as part of the answer
within the time the protestee is required to answer the protest. In Kho
v. COMELEC,[8]
this Court reiterated the long-standing rule[9]
that the counter-protest must be filed within the period provided by
law,
otherwise, the court acquires no jurisdiction to entertain it.
Conformably
to these cases, we hold that the COMELEC did not commit a grave abuse
of
discretion in upholding the trial court's refusal to conduct a revision
of the ballots subject of petitioner's counter-protest since the answer
with counter-protest was clearly filed out of time. The trial court had
no jurisdiction to entertain the counter-protest.cralaw:red
WHEREFORE,
the petition is DISMISSED for
lack of merit.cralaw:red
SO ORDERED.cralaw:red
Regalado, Davide,
Jr., Romero, Bellosillo, Melo,
Puno, Vitug, Kapunan, Francisco and Panganiban, JJ., concur.
Narvasa, C.J., is on leave.cralaw:red
______________________________
Endnotes
[1]1
Rollo, p. 33.
[2]
Id., p. 108.
[3]
Id., p. 111.
[4]
Cf. Loyola v. COMELEC, G.R. No. 124137, March 25, 1997; Calucag v.
COMELEC,
G.R. No. 123673, June 19, 1997; Pahilan v. Tabalba, 230 SCRA 205 [1994].
[5]
25 SCRA 175 [1968].
[6]
Omnibus Election Code [B.P. Blg. 881], Art XXI, §254(f); COMELEC
Rules
of Procedure, Rule 35, Section 7(e).
[7]
25 SCRA 175 [1968].
[8]
G.R. No. 124033, September 25, 1997.
[9]
Arrieta v. Rodriguez, 57 Phil. 717 [1932]. |