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[G.R. No. 136242.November 22, 1999]

EXMUNDO vs. PARRE�O, et al.

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated NOV 22, 1999.

G.R. No. 136242(Jesus Ma. Exmundo vs. Ernesto Parre�o, et al.)

This is a special civil action for certiorari brought before us by petitioner Jesus Ma. Exmundo assailing the Order of the Regional Trial Court, dated 20 August 1998, in Election Case No. 98-001 entitled "Ernesto P. Parre�o, Protestant, versus Jesus Ma. Exmundo, Protestee," which denied his motion for summary judgment on his counter-protest involving the election in Precinct No. 35-A, and its Order, dated 8 October 1998, which likewise denied his motion for reconsideration of the earlier order.

During the 11 May 1998 general elections, petitioner Jesus Ma. Exmundo and private respondent Ernesto Parre�o were among the candidates for councilor for the Sangguniang Bayan of the Municipality of Mina, Iloilo. Petitioner garnered a total of one thousand nine hundred and ninety-five (1,995) votes and was proclaimed by the Municipal Board of Canvassers as the eighth (8th) member of the Sanggunian on 13 May 1998.On the other hand, private respondent ranked number nine (9) among the candidates obtaining a total of one thousand nine hundred and eighty four (1,984) votes or eleven (11) votes below that of petitioner, thus losing the election by a very slight margin.On 22 May 1998, private respondent filed an election protest before the Regional Trial Court of Dumangas, Iloilo questioning the results of the election in Precinct No. 1-A and Precinct No. 22-A-1 because the number of votes obtained by petitioner in the actual "taras" (tally), did not match the number of votes reflected in words and figures in the election returns in the said precincts thereby increasing petitioners votes by fifteen (15). Private respondent contended that instead of stating twenty-six (26) as the total number of votes gained by petitioner in Precinct No. 1-A, what was reflected in the election return was a total of 36 votes while in Precinct No. 22-A-1 what was placed therein was a total of twenty-eight (28) votes in favor of petitioner instead of twenty-three (23). In his Answer with Counter-Protest, dated 1 June 1998, petitioner denied all the material allegations relating to the alleged discrepancies. Petitioner claimed in his counter-protest that the number of votes cast in favor of private respondent was erroneously reflected in the election return of Precinct No. 35-A as sixty-three (63) when, allegedly, the actual number of votes obtained by private respondent was only forty-seven (47). In his Answer to Counter-Protest, dated 6 June 1998, private respondent likewise denied the allegations in the counter-protest. Private respondent asserted that the sixty-three (63) votes reflected in the election return of Precinct 35-A was correct. However, the Board of Election Inspectors failed to state therein the sixteen (16) votes he garnered in the second pile of ballots in addition to the first forty-seven (47) votes counted in his favor. In his Reply, dated 16 June 1998, petitioner disputed private respondent's allegation that he has an additional sixteen (16) votes in the second pile of ballots which were not reflected in the return as mere conjecture and bereft of any factual basis.

Petitioner thereafter filed a Motion for Summary Judgment dated 10 July 1998. In his motion, he averred that a summary judgment is proper for the resolution of the protests involving all three (3) precincts since the case can be decided on the basis of the election returns without the introduction of evidence aliunde. Private respondent opposed the submission of the counter-protest in Precinct No. 35-A to summary judgment while he agreed to the submission for summary judgment of the protests concerning Precinct No. 1-A and Precinct No. 22-A-1.

The Regional Trial Court on 20 August 1998 issued an order declaring that summary judgment is proper for the election protests involving Precinct No. 1-A and Precinct No. 22-A-1 since both parties agreed to submit these protests for summary judgment. However, with regard to Precinct No. 35-A, the trial court ruled that summary judgment is not proper since the answer filed by private respondent to the counter-protest presented a factual issue which required the presentation of evidence. Thus, the trial court ordered the creation of an Election Revision Committee to recount the votes in Precinct 35-A.A motion for Reconsideration, dated 7 September 1998, was filed by petitioner on the said order. This was denied by the lower court in an order dated 8 October 1998.

Hence, this present action.

It must be noted that petitioner is questioning an interlocutory order of the Regional Trial Court in an election contest via the special civil action on certiorari. As a rule, a party can avail of this mode of review under Rule 65 only if there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law. ¹ Bernardo vs. Court of Appeals, 275 SCRA 413, 426 citing De la Paz vs. Panis, 245 SCRA 248.Petitioner must therefore convince us and show that he has no other way by which to bring his case before this Court. In the present case, petitioner is not without a remedy. In election contests, the law provides a particular mode of review which may be availed of by the parties involved. This particular law is Section 22 of Republic Act No. 7166 (Synchronized Elections Law of 1991) which states:

Section 22. Election Contests for Municipal Offices. - All election contests involving municipal offices filed with the Regional Trial Court shall be decided expeditiously. The decision may be appealed to the Commission within five (5) days from promulgation or receipt of a copy thereof by the aggrieved party. The Commission shall decide the appeal within sixty (60) days after it is submitted for decision, but not later than six (6) months after the filing of the appeal, which decision shall be final, unappealable and executory.

Since appeal to the Commission on Elections ("COMELEC") is available to petitioner, he cannot rightfully claim that he has no adequate remedy in law. As the Court has often stated, the established rule is that when an adverse interlocutory order is rendered, the remedy is not to resort to certiorari but to continue with the case in due course and when an unfavorable verdict is handed down, to take an appeal in the manner authorized by law. ² Qui�on vs. Sandiganbayan, 271 SCRA 575, 592 (1997).

Moreover, it is already settled that it is within the province of the COMELEC to issue the extraordinary writs of certiorari, prohibition and m andamus in election cases where it has appellate jurisdiction. We have declared this rule in the case of Relampagos vs. Cumba ³ 243 SCRA 690 (1995). where we held:

In the face of the foregoing disquisitions, the Court must, as it now does, abandon the ruling in the Garcia and Uy and Veloria cases. We now hold that the last paragraph of Section 50 of B.P. Blg. 697 providing as follows:

The Commission is hereby vested with exclusive authority to hear and decide petitions for certiorari, prohibition and mandamus involving election cases.

remains in full force and effect but only in such cases where, under paragraph (2), Section 1, Article IX-C of the Constitution, it has exclusive appellate jurisdiction.Simply put, the COMELEC has the authority to issue the extraordinary writs of certiorari, prohibition, and mandamus only in aid of its appellate jurisdiction. ⁴ Id., at 703-704.

Since the present election contest is precisely within the appellate jurisdiction of the COMELEC as stated in the aforecited provision of Republic Act No. 7166, petitioner should have in the first instance filed this petition for certiorari with the COMELEC and not with this Court. Having followed an erroneous route to this Court the petition before Us cannot be given due course.

Furthermore, even if we allow the present petition, it still faces dismissal for lack of merit. We find no grave abuse of discretion on the part of the trial court when it denied petitioner's motion for summary judgment with respect to Precinct No. 35-A. In fact, the lower court's order is in accord with our pronouncement in the case of Dayo vs. Commission on Elections, ⁵ 199 SCRA 449 (1991). wherein we held:

Summary judgment applies only to ordinary civil actions for the recovery of money claims (Remedial Law Compendium by Regalado, Vol. 1, 1986 Edition, p. 209, citing the case of Roque vs. Encarnacion, et al., 50 O.G. 4193). The rules on summary judgment have no application to election protests for "beyond the narrow personal stakes of the opposing candidates, the rights of the electorate, or the people are involved" (Ong vs. Comelec, 22 SCRA 241; Vda. De Mesa vs. Mencias, 18 SCRA 533; De Leon vs. Guadiz, 104 SCRA 591). Expediency is not an excuse for not pursuing to the maximum the efforts necessary in the ascertainment of the real and actual winner in the election, by examining the best evidence available - the ballots. By rendering a summary judgment, the trial court denied itself the chance to directly scrutinize and appreciate the primary evidence of the true will of the voters - the ballots. Hence, in an election protest, the trial court may not make a finding that there is no genuine issue to be resolved until and unless it shall have given the protestant a chance to substantiate his protest. ⁶ Id., at 452-453.

In view of the foregoing, the petition is hereby DISMISSED.

Very truly yours,

(Sgd.) VIRGINIA ANCHETA-SORIANO

Clerk of Court

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