EN
BANC
ELVIRA
B. NAZARENO,
Petitioner,
G. R. No. 126977
September 12, 1997
-versus-
COMMISSION
ON ELECTIONS
and EDWINA P. MENDOZA,
Respondents.
D
E C I S I O N
DAVIDE, JR., J.:
In this special
civil action for certiorari
under
Rule 65 of the Rules of Court, petitioner urges Us to nullify, for
having
been issued with grave abuse of discretion, the Order and Writ of
Preliminary
Injunction issued on 7 November 1996 and 8 November 1996, respectively,
by public respondent Commission on Elections [COMELEC] which directed
petitioner
Elvira B. Nazareno [hereafter, NAZARENO] to cease and desist from
performing
the duties and functions of the Office of the Mayor of Naic Cavite.
The facts are not
disputed.cralaw:red
NAZARENO and
private respondent Edwina P. Mendoza
[hereafter, MENDOZA] were two of the candidates for the Office of Mayor
of the Municipality of Naic, Province of Cavite, in the local elections
of 8 May 1995. In the canvass of the votes, the Municipal Board
of
Canvassers of Naic credited NAZARENO with 12,624 votes and MENDOZA with
13,896 votes. In light of MENDOZA's winning margin of 1,272 votes, the
Board proclaimed MENDOZA as the elected Mayor of Naic.cralaw:red
In due time,
NAZARENO filed an election protest
against MENDOZA with the Regional Trial Court [RTC] of Cavite, Branch
15,
sitting in Naic, Cavite, contesting the results of the election in
forty-four
[44] precincts. The case was docketed as EPC No. NC-7. In her Answer
with
Counter-Protest, MENDOZA questioned the results in twenty-nine [29]
precincts.cralaw:red
In a decision[1]
rendered on 19 July 1996, then Assisting Judge Emerito M. Agcaoili of
Branch
15 of the RTC of Cavite found for NAZARENO and decreed as follows:
In view of the foregoing judgment is
hereby
rendered
declaring
1. Elvira B. Nazareno, winner over
protestee
Edwina P. Mendoza, by a margin of 185 votes in the mayoralty elections
of 08 May 1995 and the duly elected Mayor of the Municipality of Naic,
Cavite.
2. Ordering protestee Edwina P. Mendoza,
to
vacate
the position of municipal mayor and turn over the same to protestant
Elvira
B. Nazareno.
On 27 September
1996 NAZARENO filed a Motion for
Immediate Execution of Judgment.[2]
In the meantime, MENDOZA filed a Notice of Appeal and paid the required
appeal and docket fees. On 15 October 1996 this Court issued
Administrative
Order No. 102-96[3]
directing Judge Emerito M. Agcaoili "to return to his official station
at the Regional Trial Court, Branch 9, Aparri, Cagayan and resume his
regular
duties thereat." Thus, on 16 October 1996, when Judge Agcaoili heard in
oral arguments the Motion for Immediate Execution, MENDOZA contested
Judge
Agcaoili's authority to act thereon in view of said Administrative
Order.
On 17 October
1996, MENDOZA filed a petition for
certiorari, prohibition and mandamus with the COMELEC docketed as SPR
No.
45-96, praying for the issuance of a temporary restraining. order
and/or
writ of preliminary injunction ordering Judge Agcaoili to "cease and
desist
from further proceeding with, among others, Election Protest Case No.
NC-7."
MENDOZA amended the petition on 21 October 1996. On even date, COMELEC
issued an Order[4]
in SPR No. 48-96 and two other similarly situated cases, SPR No. 49-46
[Conrado Lindo vs. Judge Agcaoili and Rosario Velasco] and SPR No.
50-96
[Francisco, Mendoza vs. Judge Agcaoili and Conrado Aure], the pertinent
portions of which read:
In the meantime,
considering that the designation
of the respondent judge as Assisting Judge of the Regional Trial Court,
Branch 15, Naic, Cavite, has been revoked by the Supreme Court on
October
15, 1996 effective immediately, under Administrative Order No. 102-96,
the Commission resolves to restrain the respondent Judge himself from
acting
or otherwise taking any further action on, resolving or, if resolved,
enforcing
the order granting the motion for execution pending appeal filed in EPC
No. NC-7 entitled "Elvira B. Nazareno vs. Edwina P. Mendoza"; EPC No.
NC-8
entitled "Conrado Lindo vs. Rosario Velasco"; and EPC No. NC-4 entitled
"Francisco Mendoza vs. Conrado Aure". However, the Regional Trial
Court,
Branch 15, Naic, Cavite, through the regular Presiding Judge or whoever
may be specially designated by the Supreme Court, may resolve the
motion
unless the Supreme Court otherwise directs.cralaw:red
On 29 October
1996, Judge Napoleon V. Dilag, the
regular judge appointed to Branch 15 of the RTC of Naic, Cavite issued
an Order[5]
granting the motion for execution of judgment upon NAZARENO's filing of
a cash bond of P100,000.00. Judge Dilag ruled NAZARENO's right to the
office
had been established and the people had every right to be governed by
their
duly elected officials, especially since only 18 months remained of the
term for which she was elected. Also on 29 October 1996, the RTC issued
a writ of execution[6]
directing the Provincial Director of Cavite of the Philippine National
Police, who was deputized and appointed as special sheriff, to
implement
the writ.cralaw:red
On 30 October
1996 NAZARENO took her oath of office
before Notary Public Precila T. Baylosis.[7]
At 8:30 a.m. of 31 October 1996, MENDOZA
filed
with the COMELEC a petition for Certiorari and Prohibition with Prayer
for the Issuance of Temporary Restraining Order and/or Writ of
Preliminary
Injunction,[8]
praying that the writ of execution issued by Judge Dilag be set aside
for
having been issued without jurisdiction and/or with grave abuse of
discretion
amounting to lack or excess of jurisdiction in light of the following
grounds:
(a) the decision ordered executed was
based
merely
on xerox copies of contested ballots which were never offered in
evidence;
(b) no good reason exists for the
execution
pending
appeal;
(c) at the time the order granting
execution
pending appeal was issued the trial court had also lost jurisdiction
over
the case. On 27 September 1996 MENDOZA filed her notice of appeal with
the trial court and paid all the legal and docket fees with the
COMELEC;
accordingly, the appeal was perfected. It was "[m]uch later in the
afternoon
of September 27, 1996" when NAZARENO filed her motion for execution
pending
appeal.
The COMELEC
docketed the case as SPR No. 53-96.
On 5 November
1996 the COMELEC en banc issued
in SPR No. 53-96 and in two other related cases, SPR No. 54-96 [Conrado
Lindo v. Judge Napoleon V. Dilag, Jr., etc. and Rosario Velasco] and
SPR
No. 55-96 [Francisco Mendoza v. Judge Napoleon V. Dilag, Jr., etc. and
Conrado Aure], an Order[9]
directing respondents Judge Dilag and NAZARENO to answer the petition
and
setting the application for a writ of preliminary injunction for
hearing
on 7 November 1996 at 10:00 a.m.cralaw:red
After due
hearing, the COMELEC en banc
issued in SPR No. 53-96 the challenged Order of 7 November 1996 which
reads
as follows:[10]
After due hearing, the Commission finds
that
the petitioner has shown sufficient justification for the issuance of a
writ of preliminary injunction, prohibitory and mandatory, to restrain
the lower court from executing and implementing the order/writ of
execution
pending appeal, dated October 29, 1996, in EPC No. NC-7. and the
private
respondent from assuming and performing the duties and functions and/or
to relinquish such duties and functions of mayor of the Municipality of
Naic, Cavite, upon the filing by petitioners of a bond in the amount of
P200,000.00, to answer for whatever damages that private respondent may
suffer should it be finally held that the issuance of this injunction
was
improper or improvident.
The Commission
issued this order based on the following
considerations:
(1) That the lower court admittedly did
not
review
or examine the original ballots contested in the election protest but
merely
relied on xerox copies in deciding the election protest;
(2) That the lower court based its
decision
principally
on invalidating the votes on two main grounds, namely:
(a) that the ballots were written by
one
hand;
and
(b) that the ballots were marked,
which,
obviously,
require visual examination of the disputed ballots.
Viewed in the light of the rules on
appreciation
of ballots under Section 211 of the Omnibus Election Code, we find the
lower court's decision to be seriously impaired and the Commission is
not
prepared to give its imprint on the execution pending appeal of the
decision,
which was timely appealed.
ACCORDINGLY, the Commission issues a writ
of
preliminary injunction prohibitory and mandatory, commanding the
respondent
judge or anyone acting in his behalf, or upon his orders, from
executing,
enforcing and implementing the order/writ of execution dated October
29,
1996, in EPC No. NC-7 of the Regional Trial Court of Cavite, Naic
Branch
XV, and respondent Nazareno from assuming, performing and exercising
the
duties and functions and/or to relinquish such duties and functions of
mayor of the Municipality of Naic, Cavite, upon the filing by the
petitioner
of a bond in the amount of P200,000.00, to answer for whatever damages
that private respondents may suffer by reason of the issuance of this
injunction,
until further orders of the Commission.
Respondent court is commanded to elevate
to the
Commission on Elections, Manila, the original record of EPC No. NC-7,
and
all the exhibits and other documentary evidence, including ballot
boxes,
within five (5) days from notice, under penalties of the law.
The Commission hereby deputizes the
Chief,
Philippine
National Police, or his duly designated representative, to enforce this
order.
The Clerk of the Commission shall issue
the
corresponding
writ.
On 8 November
1996 the COMELEC issued the Writ of
Preliminary Injunction[11]
after MENDOZA posted a cash bond of P200,000.00. Hence this petition
based
on the following grounds:
5.1.
RESPONDENT COMELEC COMMITTED GRAVE ABUSE
OF
DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT ISSUED THE ORDER OF
NOVEMBER 7, 1996 AND THE WRIT OF PRELIMINARY INJUNCTION WITHOUT GIVING
PETITIONER NAZARENO THE OPPORTUNITY TO SUBMIT HER FORMAL OPPOSITION
AND/OR
ANSWER, IN VIOLATION OF HER RIGHT TO DUE PROCESS.
5.2.
RESPONDENT COMELEC COMMITTED GRAVE ABUSE
OF
DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT ENJOINED THE
EXECUTION
PENDING APPEAL BASED ON ALLEGED CONSIDERATIONS THAT GO INTO THE MERITS
OF THE DECISION RATHER THAN ON THE ORDER GRANTING EXECUTION PENDING
APPEAL.
5.3.
RESPONDENT COMELEC COMMITTED GRAVE ABUSE
OF
DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT ISSUED THE
QUESTIONED
ORDER AND WRIT BASED ON ALLEGED IMPAIRED DECISION A COPY OF WHICH WAS
NEVER
SUBMITTED TO IT OR EVEN OFFERED IN EVIDENCE.
5.4.
RESPONDENT COMELEC COMMITTED GRAVE ABUSE
OF
DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT ISSUED THE
QUESTIONED
ORDER AND WRIT BASED ON XEROX AND UNCERTIFIED COPIES OF PORTIONS OF THE
TRANSCRIPT OF STENOGRAPHIC NOTES.
5.5.
RESPONDENT COMELEC COMMITTED GRAVE ABUSE
OF
DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN, CONTRARY TO LAW AND
EVIDENCE,
IT DEPRIVED THE REGIONAL TRIAL COURT OF NAIC, CAVITE OF THE COMPETENCE
TO ORDER EXECUTION PENDING APPEAL.
Thereafter,
NAZARENO filed an "extremely urgent"
motion for the issuance of a temporary restraining order, which MENDOZA
opposed.
In its Comment
for public respondent COMELEC,
the Office of the Solicitor General contends that the resolution of 14
January 1997 of this Court in Conrado Aure v. Commission on Elections
and
Francisco Mendoza [G. R. No. 126978] has rendered this petition moot
and
academic as the ultimate issue in the instant case is "similar to, if
not
identical with," the principal issue raised in Aure, thus:
The substantial similarity or identity of
issue
between the aforecited case and the instant case arose from the fact
that
the challenged order of respondent COMELEC in the aforecited case and
the
order of respondent COMELEC subject of the instant petition, apart from
being identically worded and dated, were issued by respondent COMELEC
in
SPR No. 55-96 and SPR No. 53-96, respectively, which were two [2] of
the
three [3] cases consolidated by respondent COMELEC having identical
factual
and legal backdrops.
Thus, the said ruling of this Honorable
Court
finds relevance and significance in this case, especially so that the
petition
filed in the Aure case and the instant petition are so identical that,
save for the names of the parties, the municipality involved, the case
numbers and some dates, both are similarly worded.
The pertinent
portions of this Court's resolution
of 14 January 1997 in Aure read as follows:
In the special civil action of certiorari
at
bar, petitioner prays for invalidation of the respondent's Order dated
November 7, 1996 [1] issuing "a writ of preliminary injunction,
prohibitory
and mandatory, commanding the respondent judge or anyone acting in his
behalf, or upon his orders, from executing, enforcing and implementing
the order/writ of execution dated October 29, 1996, in EPC No. NC-4 of
the Regional Trial Court of Cavite, Naic, Branch XV, and respondent
Aure
from assuming; performing and exercising the duties and functions
and/or
to relinquish such duties and functions of mayor of the municipality of
Mendez, Cavite, upon the filing by the petitioner of a bond in the
amount
of P200,000.00, to answer for whatever damages that private respondents
may suffer by reason of the issuance of this injunction, until further
orders of the Commission"; and [2] commanding said judge "to elevate to
the Commission, Manila, the original records of EPC No. NC-8, and all
the
exhibits and other documentary evidence, including ballot boxes, within
five (5) days from notice, under penalties of the law." The COMELEC
concluded
from the evidence adduced at the hearing on the matter of the
injunction,
that the RTC Judge "admittedly did not review or examine the original
ballots
contested in the election protest," yet it rules "(a) that the ballots
were written by one hand; and (b) that the ballots were marked, which,
obviously, require visual examination of the disputed ballots.
After deliberating on the allegations and
arguments
set forth in the petition for certiorari, the Court Resolved to DISMISS
the same for failure to show any whimsicality, capriciousness,
oppressiveness,
patent untenability, or unreasonableness in the challenged Order of
November
7, 1996 which, on the contrary, appears to be entirely consistent with
the facts, and with law and logic. In a word, no grave abuse of
discretion
has been demonstrated on the part of public respondent. The injunctive
writ issued by it does nothing more than to maintain the status quo
pending
its determination in due course of the merits of the election protest.
On 22 April
1997, the Court denied MENDOZA's motion
for leave to file her comment on the petition in view of the denial of
her last motion for extension of time to file said comment and noted
without
action the comment she had by then filed. After a careful
scrutiny
of the allegations raised and the arguments adduced in the petition,
the
comment of public respondent COMELEC, MENDOZA's opposition to the
motions
for issuance of the temporary restraining order and NAZARENO's reply
thereto,
the Court has reached the conclusion that NAZARENO has failed to show
that
public respondent COMELEC committed grave abuse of discretion in
issuing
the challenged order and writ of preliminary injunction.
The jurisdiction
of the COMELEC to issue the extraordinary
writs of certiorari, prohibition and mandamus in aid of its appellate
jurisdiction
has been settled in Relampagos v. Cumba.[12]
The decision of Branch 15, RTC, of Naic, Cavite in EPC No. NC-7 was
appealable
[and was in fact so appealed] to the COMELEC.[13]
Accordingly, the issuance by the trial court of an execution pending
appeal
may be challenged in a special civil action for certiorari under Rule
65
of the Rules of Court[14]
before the COMELEC.cralaw:red
Upon the filing
of the MENDOZA petition in SPR
No. 53-96, COMELEC did not issue a temporary restraining order, but
required
respondents to file an answer to the petition within ten days from
notice
and set the hearing on the application for a writ of preliminary
injunction
on 7 November 1996. Due to the urgency of the application, the hearing
thereon need not have awaited the filing of the answer. Hence,
NAZARENO's
first assigned error deserves scant consideration. She was duly
represented
by counsel at said hearing and her petition did not even intimate that
before the hearing commenced, her counsel moved for postponement
thereof
until she filed her answer. Moreover, she did not show the significance
her answer might have had to the defenses she raised against the
application
for a writ of preliminary injunction. In the same vein, she did not
even
bother to attach to her petition in this case a copy of her answer,
which
she must have already filed with the COMELEC.cralaw:red
The second and
third assigned errors are equally
unpersuasive. In resolving a special civil action for certiorari
assailing an order granting execution pending appeal for having been
issued
with grave abuse of discretion, an appellate tribunal or the
COMELEC
in appropriate election cases is not limited in its inquiry to
the
challenged order alone, but must likewise take into account the
decision
itself. This is obvious from the fact that execution pending appeal
allowed
by Section 2 of Rule 39 of the Rules of Court is an exception to the
general
rule that only final judgments may be executed; accordingly, the
provision
must be strictly construed. It can only be allowed on the basis of
"good
reasons" to be stated in a special order; the reasons must be of such
urgency
as to outweigh the injury or damage of the losing party should the
latter
secure a reversal of the judgment on appeal.[15]
While MENDOZA has
admitted in her opposition to
the motions for issuance of a temporary restraining order that she did
not attach to her petition a copy of the decision, the fact remains
that
at the hearing of the application for the issuance of a writ of
preliminary
injunction on 7 November 1996, MENDOZA succeeded in showing that the
decision
of the Regional Trial Court in EPC No. NC-7 was based on mere
photocopies
of contested ballots which were never offered in evidence. The COMELEC
was so convinced of the fact, hence in the dispositive portion in its
challenged
order of 7 November 1997, it concluded:
That the lower court admittedly did not
review
of examine the original ballots contested in the election protest but
merely
relied on xerox copies in deciding the election protest. [Emphasis
supplied].
When the
COMELEC used the word admittedly, it simply
meant that: [1] of the parties disputed the fact that Assisting Judge
Emerito
Agcaoili rendered his decision in EPC No. NC-7 on the basis of mere
photocopies
not the original of the impugned ballots; and [2] NAZARENO
presented
no evidence to disprove that fact. Indeed, nowhere in the arguments in
support of the second and third assigned errors can we find a direct,
categorical
and explicit statement by NAZARENO that the Agcaoili decision was not
based
on mere photocopies of the impugned ballots. Instead of going around
the
bush and merely stressing that a copy of the challenged decision was
not
attached to the petition, nor shown during the hearing or offered in
evidence,
NAZARENO could have been more candid and persuasive if she claimed and
proved that Agcaoili decided the case not on the basis of photocopies
of
the ballots, but rather, the original ballots themselves. Interestingly
enough, in her Reply to MENDOZA's opposition to the urgent motions for
the issuance in this case of a temporary restraining order, NAZARENO
failed
to offer any credible reply to MENDOZA's assertion that during the
hearing
of the motion for execution pending appeal before the trial court on 16
October 1996, Judge Agcaoili admitted that his decision was based
solely
on the review and examination of photocopies of the contested ballots
as
shown in the following pertinent portions of the transcript of
stenographic
notes of the proceedings of said date [attached as Annex "1," "1-A,"
and
"1-B" of the Opposition], to wit:
Atty. Macalintal: May we know if the
Judge
[referring
to Judge Agcaoili] reviewed the photocopies of the ballots?
Court [Judge Agcaoili]: Yes.
Atty. Macalintal: So it's only the
photocopies
of the ballots.
Atty. Macalintal: Well, We would just
like to
make of record that it has already been admitted by the Presiding Judge
[Judge Agcaoili] that what was only reviewed by him are the photocopies
of the ballots. [TSN, October 16, 1996 at pp. 12 and 13, copies
attached
as Annexes "1" and "1-A"].
Atty. Macalintal: But we are glad that
the
Presiding
Judge [Judge Agcaoili] already admitted that only the photocopies of
the
ballots were reviewed and examined by him.
Court [Judge Agcaoili]: Yes, Yes.
Atty. Macalintal: In arriving at this
decision?
Court [Judge Agcaoili]: Yes, Yes.
Atty. Brillantes [Counsel for
Petitioner]: Yes
[TSN, ibid, at page 18, Annex "1-B"]. (Emphasis
supplied)
MENDOZA pointed
out that, as shown above, "even counsel
for NAZARENO admitted that Judge Agcaoili reviewed and examined only
the
xerox copies of the contested ballots."
With the
foregoing admissions of Judge Agcaoili,
presentation of his decision to the COMELEC during the hearing was
unnecessary.
The COMELEC, therefore, cannot be deemed to have acted with grave abuse
of discretion in concluding, for purposes of the application for the
writ
of preliminary injunction that, indeed, Judge Agcaoili's decision was
based
on mere photocopies of the challenged ballots.cralaw:red
In the course of
the hearing, the COMELEC likewise
found that the invalidation of ballots by Judge Agcaoili was based on
two
grounds: [1] the ballots were written by one hand; and [2] the ballots
were marked. Since Judge Agcaoili did not view, examine and appreciate
the original ballots involved, the COMELEC acted correctly and
judiciously
in declaring that "[v]iewed in the light of the rules on appreciation
of
ballots under Section 211 of the Omnibus Election Code the lower
court's
decision [is] seriously impaired." Indeed, it would have been
impossible
for Judge Agcaoili to determine if the ballots were written by one
person
or that they were marked solely on the basis of the photocopies thereof
as the latter were not the best evidence of the impugned ballots. These
findings of the COMELEC can thus hardly be characterized as having been
attended by grave abuse of discretion.cralaw:red
The fourth
assigned error is utterly without merit.
Again, NAZARENO makes no candid declaration that the Agcaoili decision
was not based on photocopies of the questioned ballots. NAZARENO merely
speculates that the COMELEC "must have based" its finding that "the
lower
court admittedly did not review or examine the original ballots but
merely
relied on xerox copies on the allegation in paragraph 8 of MENDOZA's
Petition
stating that Judge Agcaoili 'admitted in open court that his decision
was
based merely on the XEROX COPIES of the contested ballots and did not
look
into the original copies of the said ballots."' MENDOZA based this
claim
on the transcripts of the stenographic notes of the proceedings of 16
October
1996 before Judge Agcaoili pertinent portions of which were attached to
her petition in SPR No. 53-96 as Annexes "C" and "C-1." But according
to
NAZARENO, these attached portions were not certified, and during the
hearing
on 7 November 1996, MENDOZA did not produce, present nor offer in
evidence
the "official/original or certified true copy" of the transcripts. Yet,
nowhere in the petition at bar did NAZARENO assert that during the
hearing
of 7 November 1996 she challenged the correctness of the attached
portions
of the transcript which were used by MENDOZA as proof of Judge
Agcaoili's
admission. We cannot see how the COMELEC committed abuse of discretion
in this regard.cralaw:red
In light of the
foregoing, We thus rule that the
findings and conclusions of the COMELEC in its order of 7 November 1996
were entirely consistent with the facts duly established during the
hearing
and with applicable law and logic. Hence, the last assigned error must
likewise fall. The COMELEC did not deprive the Regional Trial Court of
its competence to order execution pending appeal; it merely exercised
its
power, in aid of its appellate jurisdiction to maintain the status quo,
by way of the injunctive writ obtained in a special civil action for
certiorari.cralaw:red
Indeed, our
resolution of 14 January 1997 in Aure
v. COMELEC [supra] applies on all fours in this case.cralaw:red
WHEREFORE, for
lack of merit, the instant petition
is DISMISSED with costs against petitioner.cralaw:red
SO ORDERED.cralaw:red
Narvasa, C.J.,
Regalado, Romero, Bellosillo,
Melo, Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr., Panganiban
and Torres, Jr., JJ., concur.
Separate Concurring Opinion
PUNO, J., concurring:
I write this brief concurring opinion only
to
dispel the drift of any idea that our decision in the case at bar
conflicts
with our decision in Lindo v. COMELEC, et al., G. R. No. 127311 dated
June
19, 1997. There is no conflict between the two for in the case at bar,
the ponente, Mr. Justice Devide, Jr., clearly demonstrated that
"the decision of the RTC in EPC No. NC-7 was based on mere photocopies
of contested ballots which were never offered in evidence."
Necessarily,
this Court refused to execute it pending appeal. In Lindo, we did not
arrive
at this conclusion, and we prudentially ruled that the issue of whether
the RTC merely relied on xerox copies of ballots is factual in nature
and
its resolution should be left with the COMELEC. At the time we decided
Lindo, his appeal was already pending with the Second Division of the
COMELEC
and among the issues he raised was the alleged use of xerox copies of
ballots
by the trial court. In due time, the said COMELEC division decided
Lindo's
appeal on its merit by opening the ballot boxes involved in the protest
and examining the contested ballots. It ruled that Lindo lost by
thirty-two
(32) votes to Velasco. This resolution is not yet final as Lindo can
still
challenge it in the COMELEC en banc and thereafter, thru a
petition
for certiorari in this Court. Nonetheless, we cite the resolution of
the
COMELEC 2nd Division as it underscores the decisive difference in facts
between the case at bar and Lindo with respect to the alleged use of
photocopies
of ballots by the trial court.
_____________________________
Endnotes
[1]
Annex "G" of Petition; Rollo, 48-79.
[2]
Annex "H" of Petition; Id., 80-83.
[3]
Annex "I" of Petition; Id., 85.
[4]
Annex "J" of Petition; Rollo, 86-87.
[5]
Annex "K" of Petition; Id., 88-91.
[6]
Annex "L" of Petition; Rollo, 92-93.
[7]
Annex "M" of Petition; Id., 94.
[8]
Annex "O" of Petition; Id., 96-107.
[9]
Annex "P" of Petition; Id., 120. The Order was signed by Chairman
Bernardo
Pardo and Commissioners Salazar-Fernando, Desamito, Dy-Liacco Flores
and
Guiani. Over the printed name of Commissioner Gorospe is written the
letters
OB, followed by an illegible initial.
[10]
Signed by Chairman Bernardo Pardo and Commissioners Maambong,
Salazar-Fernando,
Desamito, Dy-Liacco Flores and Guiani. Over the printed name of
Commissioner
Gorospe is written the letters OB, followed by an illegible initial.
[11]
Annex "D" of Petition; Rollo, 42-43.
[12]
G. R. No. 118861, 27 April 1995; 243 SCRA 690 [1995].
[13]Section 2[2], Subdivision C, Article IX, 1987 Constitution; Section 21,
Rule 35, Revised COMELEC Rules of Procedure.
[14]
See Jaca v. Davao Lumber Co., 113 SCRA 107, 129 [1982]; City of Manila
v. Court of Appeals, 204 SCRA 362, 368-369 [1991].
[15]
City of Manila v. Court of Appeals, supra; Note 14 at 367. |