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[G.R. No. 147203.May 4, 2001]
BORBON vs. COMELEC
EN BANC
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court dated MAY 4 2001.
G.R. No. 147203 (Jojo Borbon vs. Commission on Elections and Sotero L. Abbago.)
Petitioner Jojo Borbon and private respondent Sotero Abbago were candidates for mayor of the Municipality of Danglas, Abra in the May 11, 1998 elections.Petitioner was declared the winner with 895 votes to private respondent's 887.
On May 20, 1998, private respondent and the candidates for vice-mayor and members of the Sangguniang Bayan filed an election protest alleging, among other things, that several ballots had been allegedly marked and therefore should not be counted in favor of petitioner.The Regional Trial Court, Branch 1, Bangued, Abra gave due course to the protest and ordered the revision of the ballots.In its decision, dated December 8, 1999, the RTC upheld the proclamation of petitioner as the duly elected municipal mayor of Danglas, Abra, crediting him with 896 votes against private respondent's 888.The RTC counted all but one of the contested 230 ballots in favor of petitioner.
On appeal, however, in its resolution dated October 5, 2000, the Commission on Elections Second Division reversed the RTC decision and excluded majority of the contested 230 ballots for petitioner on the ground that the appellations or nicknames therein were marks made to identify the voters who voted for petitioner.
It appears that a copy of the COMELEC's resolution was to sent petitioner's former counsel, Atty. Elmer Velasco, who had withdrawn his appearance when the case was still pending in the RTC.Atty. Velasco received the resolution on October 10, 2000.He informed petitioner's counsel, Atty. Roberto B. Tudayan, of the same on October 12, 2000.
On October 13, 2000, Atty. Tudayan filed a manifestation requesting that he be furnished a copy of the resolution dated October 5, 2000.On October 16, 2000, he filed a motion for reconsideration of the COMELEC resolution of October 5, 2000 despite not having yet received his copy of the same.
On October 20, 2000, Atty. Tudayan received a copy of the COMELEC resolution of October 5, 2000.On October 25, 2000, he filed a motion for reconsideration reiterating the allegations in his first motion and paid the corresponding filing fees.
However, the COMELEC Second Division, in its order dated November 15, 2000, considered only the first motion for reconsideration dated October 16, 2000 of petitioner, treating the second motion, filed on October 25, 2000, as "surplusage."It then denied the October 16, 2000 motion for failure to pay the P300 legal fees for the same.
Upon motion of private respondent, a writ of execution was issued directing petitioner to cease and desist from discharging the powers and duties of the Office of the Mayor, Danglas, Abra and to relinquish the same to private respondent. (Order dated March 2, 2001)
On February 2, 2001, Atty. Tudayan moved for reconsideration of the order of November 15, 2000. Meantime, he received the March 2, 2001 order of the COMELEC Second Division on March 8, 2001.Hence, this petition.Petitioner contends:
THE HONORABLE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OR DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT ISSUED THE ORDER DATED 02 MARCH 2001 ORDERING ENTRY JUDGMENT AND ISSUANCE OF THE WRIT OF EXECUTION IN EAC NO. A-4-2000.
THE HONORABLE COMMISSION ON ELECTION COMMITTED MANIFEST ERROR AND GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING ITS RESOLUTION DATED 5 OCTOBER 2000.
The petition must be dismissed.
It is settled that the Supreme Court can review on certiorari the decisions, orders, and ruling of the COMELEC en banc.But what is being assailed in the instant case are the resolution and orders of the Second Division of the Commission on Elections.
Petitioner admits that his motion for reconsideration of the order dated November 15, 2000 of the Second Division is still pending resolution before the COMELEC en banc.The present petition is thus premature.(Ambil, Jr. v. Commission on Elections (First Division, Formerly Second Division), et al., G.R. No. 143398, Oct. 25, 2000)
WHEREFORE, the petition is DISMISSED for being premature.Private respondent's opposition and/or comment on prayer for writ of preliminary injunction and/or temporary restraining order, is NOTED.
Quisumbing, Buena and De Leon, Jr., JJ., are on leave.
Very truly yours,
LUZVIMINDA D. PUNO
Clerk of Court
(Sgd.) MA. LUISA D. VILLARAMA
Asst. Clerk of Court
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