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EN BANC G.R. No. 190382 : March 9, 2010 JOSEPH BERNARDEZ, Petitioner, v. COMMISSION ON ELECTIONS and AVELINO TOLEAN, Respondents. D E C I S I O N PERALTA, J.: This is a Petition for Certiorari The factual background of this case is as follows: Petitioner Joseph Bernardez and private respondent Avelino Tolean were candidates for Vice-Mayor in the Municipality of Sabangan, Mountain Province during the May 14, 2007 synchronized national and local elections. After the election, petitioner garnered 2,136 votes while private respondent garnered 2,137 votes. The Municipal Board of Canvassers proclaimed private respondent as the duly elected Vice-Mayor after winning by a single vote over the petitioner.chanroblesvirtua|awlibary Petitioner filed an election protest on May 24, 2007, docketed as Election Case No. 1255 before the RTC, Branch 36, Bontoc, Mountain Province, contesting the result of the election on the ground of fraud and deceit.chanroblesvirtua|awlibary Acting on the said election protest, the RTC promulgated its Decision Wherefore, in view of all the foregoing findings, judgment is hereby rendered:
cralawOn March 5, 2009, petitioner filed a Motion for Writ of Execution Pending Appeal of the decision of the trial court, which was set for hearing on March 9, 2009. On the same day, private respondent's counsel filed a Manifestation and Motion Meanwhile, on March 6, 2009, private respondent filed a Notice of Appeal of the decision of the trial court. Thereafter, the records of the case were forwarded to the Second Division of the COMELEC.chanroblesvirtua|awlibary On March 31, 2009, the RTC issued a Special Order Wherefore, the Motion for Execution Pending Appeal is hereby granted.chanroblesvirtua|awlibary The Branch Clerk of Court, is hereby ordered to issue a Writ of Execution Pending Appeal, after the lapse of twenty (20) working days, to be counted from the time Protestee's counsel receives a copy of this Special Order, if no restraining order or status quo order is issued, pursuant to Sec. 11, Rule 14 of the Rules of Procedure in Election Contests before the Courts involving Elective Municipal and Barangay Officials. (A.M. No. 07-4-15-SC). Since no restraining or status quo order was issued pursuant to Section 11, Rule 14 of the Rules of Procedure in Election Contests before the Courts involving Elective Municipal and Barangay Officials It was only on April 20, 2009 that private respondent filed his Petition for Injunction with Prayer for the Issuance of a Writ of Preliminary Injunction and/or Temporary Restraining Order before public respondent COMELEC (Second Division) to enjoin the RTC from implementing the latter's Special Order granting the execution of its Decision on account of the pendency of private respondent's Notice of Appeal.chanroblesvirtua|awlibary On June 1, 2009, the Second Division of the COMELEC issued an Order It appearing that the appeal fees of three thousand pesos ( x x x x The Commission (Second Division) resolves to dismiss the instant appeal case. However, on September 22, 2009, the same division of the COMELEC, which dismissed private respondent's Notice of Appeal, issued the first assailed Resolution On October 6, 2009, petitioner filed a motion for reconsideration of the resolution of the Second Division of the COMELEC before the COMELEC en banc. On November 4, 2009, the COMELEC en banc issued the second assailed Order x x x x the Commission En Banc hereby resolves to deny the same for movant-private respondent's failure to pay the required motion fees in the amount of There being no valid motion for reconsideration to speak of, the provision of Section 13, paragraph (c), Rule 18, Comelec Rules of Procedure, to wit: "Sec. 13. Finality of Decisions or Resolutions.chanroblesvirtua|awlibary x x x x (c) Unless a motion for reconsideration is seasonably filed, a decision or resolution of a Division shall become final and executory after the lapse of five (5) days in Special actions and Special cases and after fifteen (15) days in all other actions or proceedings, following its promulgation.cra|aw" applies, hence, the Resolution of the Commission (Second Division) dated September 22, 2009, a copy of which was received by the private respondent on October 1, 2009, per his admission in his Motion for Reconsideration filed on October 6, 2009, had become final and executory as of October 17, 2009.chanroblesvirtua|awlibary ACCORDINGLY, the Clerk of the Commission, Electoral Contests Adjudication Department (ECAD), this Commission, is hereby directed to immediately issue an Entry of Judgment in the above-entitled case. SO ORDERED. On November 19, 2009, upon private respondent's urgent motion, the COMELEC issued a Writ of Execution NOW, THEREFORE, the Provincial Election Supervisor of Mountain Province, Comelec, is hereby directed to immediately implement this Writ of Execution, in coordination with the Department of the Interior and Local Government (DILG) Provincial Operations Officer of Mountain Province and the Provincial Director, PNP, by serving a copy hereof, together with the certified true copies of the Resolution of the Commission (Second Division) dated September 22, 2009 and the Order of the Commission En Banc issued on November 4, 2009, upon private respondent JOSEPH BERNARDEZ (1) ordering him to cease and desist from discharging the powers and functions of Vice-Mayor of Sabangan. Mt. Province, and to relinquish and vacate the same in favor of petitioner Avelino Tolean, (2) to cause the peaceful and smooth turn-over of office to aforesaid petitioner, and 3) make a return of your action within five (5) days from receipt hereof. Thereafter, pursuant to the above-mentioned Writ of Execution, private respondent took his oath and assumed office as the Vice Mayor elect of the Municipality of Sabangan as per Certification Hence, this petition. Petitioner raises the following issues:
cralawThe main issue is whether or not public respondent COMELEC en banc committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing its Order dated November 4, 2009.chanroblesvirtua|awlibary There is grave abuse discretion where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility which must be so patent and gross as to amount to an invasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. Petitioner contends that public respondent COMELEC en banc committed grave abuse of discretion when it proceeded to decide and thereby grant private respondent's Petition for Injunction and Prayer for the Issuance of a Status Quo Ante Order, without considering the fact of dismissal of private respondent's Notice of Appeal. Petitioner further avers that the allowance by the COMELEC Second Division of private respondent's Urgent Motion for the Issuance of a Writ of Execution, notwithstanding the dismissal of private respondents Notice of Appeal, amounted to the reversal of the decision of the RTC via a mere motion and not via an appeal as inscribed in our Constitution. What the law forbids to be done directly was made possible by private respondent indirectly.chanroblesvirtua|awlibary A careful review of the antecedent facts bears out the fact that, indeed, the COMELEC Second Division granted private respondent Tolean's petition for injunction without considering that it had already dismissed private respondent's Notice of Appeal. It is undisputed that on April 20, 2009, private respondent filed the subject petition for injunction before the COMELEC Second Division, to enjoin the execution of the Decision of the RTC, citing mainly as ground the fact that the victory of petitioner had not been clearly and sufficiently established due to the pendency of his Notice of Appeal. However, on June 1, 2009, while the petition for injunction was still pending, the COMELEC Second Division dismissed private respondent's Notice of Appeal due to his failure to pay the required appeal fees in violation of COMELEC Resolution No. 8486, WHEREFORE, in view of the foregoing, the Commission hereby RESOLVES to DIRECT as follows:
cralawConsidering the foregoing, the COMELEC Second Division gravely abused its discretion when it granted private respondent's petition for injunction on September 22, 2009 after the victory of petitioner Bernardez had already become final. To reiterate, the petition for injunction was filed by private respondent to enjoin the RTC from executing its decision proclaiming petitioner as Vice-Mayor of the Municipality of Sabangan due to the pendency of the Notice of Appeal. Since it has been ruled that the Notice of Appeal was rightfully dismissed and the ruling has become final and executory, it follows then that the right sought to be protected and the irreparable injury sought to be prevented by the private respondent through injunction or prohibition has already been rendered fait accompli. In Caneland Sugar Corporation v. Alon, In Go v. Looyuko, Since the COMELEC, Second Division, granted the petition for injunction despite finality of the Decision in the election protest case, petitioner filed with the COMELEC en banc a motion for reconsideration of the Resolution of the COMELEC, Second Division, granting the private respondents petition for preliminary injunction. The COMELEC en banc was, therefore, challenged to weigh an issue of technicality as against the substance of the motion for reconsideration. In dismissing the motion for reconsideration due to failure to pay appeal fees, the COMELEC en banc gave importance to technicality, which could have been disregarded at its own discretion, and failed to give weight to the fact that petitioners proclamation as the duly elected Vice-Mayor of the Municipality of Sabangan, Mountain Province by the RTC had become final with the dismissal by the COMELEC, Second Division of private respondents appeal in the election protest case. Hence, the Commission failed to protect and uphold the will of the electorate in voting petitioner as the Vice-Mayor of their municipality.chanroblesvirtua|awlibary Based on the Resolution dated September 22, 2009 of the COMELEC, Second Division and the Order dated November 4, 2009 of the COMELEC en banc, the Commission issued a writ of execution ordering petitioner to cease and desist from discharging the powers and functions of Vice-Mayor of Sabangan, Mountain Province and to relinquish and vacate the same in favor of private respondent. Again, this issuance was made despite the fact that it was the petitioner who won by a margin of 11 votes over private respondent, and that the decision of the RTC became final with the dismissal of private respondents notice of appeal by the COMELEC, Second Division on June 1, 2009. An injustice was, therefore, committed by the Commission against petitioner in unseating him from his office and in swearing private respondent into office as Vice-Mayor of Sabangan, Mountain Province, even if he lost to petitioner.chanroblesvirtua|awlibary In fine, the Order of the COMELEC en banc dated November 4, 2009 and the Resolution of the COMELEC, Second Division dated September 22, 2009 were issued in grave abuse of discretion and are, therefore, null and void, considering that the RTC Decision dated February 25, 2009 became final and executory with the dismissal of private respondents appeal by the COMELEC, Second Division on June 1, 2009. The ground for the petition for preliminary injunction, which was the pendency of the notice of appeal, had no more basis with the dismissal of the appeal; hence, that petition should have been denied.chanroblesvirtua|awlibary WHEREFORE, the petition is GRANTED. The Order dated November 4, 2009 of the COMELEC en banc and the Resolution dated September 22, 2009, of the Second Division of the COMELEC are ANNULLED and SET ASIDE. The Entry of Judgment issued on November 5, 2009 by the Electoral Contests Adjudication Department, as well as the Writ of Execution issued on November 19, 2009 by the COMELEC are likewise ANNULLED and SET ASIDE. Private respondent Avelino Tolean is hereby ordered (1) to cease and desist from exercising the power and functions of Vice-Mayor of Sabangan, Mountain Province, and to relinquish and vacate the same in favor of petitioner Joseph Bernardez, and (2) to cause the peaceful and smooth turn-over of office to aforesaid petitioner Joseph Bernardez. SO ORDERED. DIOSDADO M. PERALTA WE CONCUR: REYNATO S. PUNO
JOSE CATRAL MENDOZA C E R T I F I C A T I O N Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court. REYNATO S. PUNO cralaw Endnotes:
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