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[G.R. No. 147490.May 4, 2001]

ESPERATA VALERA vs. COMELEC et al.

EN BANC

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated MAY 4, 2001.

G.R. No. 147490 (Esperata Valera vs. The Commission on Elections, The Municipal Circuit Trial Court of San Julian-Sulat, Eastern Samar, The Sheriff, The Provincial Commission on Elections Supervisor of Eastern Samar and Gil Tadeos.)

Petitioner assails the resolution issued by the Commission on elections proclaiming private respondent as the winner in the May 12, 1997 Barangay Elections, and the subsequent order declaring said resolution final and executory, thus directing the issuance of an entry of judgment and writ of execution.

The parties in the case at bar were candidates for the Office of Punong Barangay in the May 12, 1997 Barangay Elections.

The controversy stemmed from an election protest filed by private respondent Tadeos against petitioner Valera, alleging that there were 10 ballots in Precincts No. 9 and 9A which were not counted and which should have been appreciated in favor of private respondent, who consequently prayed for a recount of all the ballots in said precincts.

On September 22, 1997, the municipal circuit trial court wherein the protest was lodged rendered a decision declaring:

IN VIEW OF THE FOREGOING, the Court hereby declares Protestant GIL TADIOS to be the winner by one (1) vote over the Protestee in the May 12, 1997 Barangay Elections.

The BOARD OF ELECTION TELLERS, Nena B. Caspe, the Chairman, Aldrin Limbauan, Poll Clerk and Beatriz A. Rosaroso, member, for Precinct No. 9 & 9A, Brgy. Mara-mara, Sulat, Eastern Samar, are hereby Ordered and Directed to reconvene as such Board of Election Tellers and further Ordered to PROCLAIM Protestant GIL TADIOS as the duly elected Punong Barangay of Brgy. Mara-mara, Sulat, Eastern, in the May 12, 1997 Barangay Elections.

Displeased, petitioner appealed to the Commission on Elections which in turn examined and appreciated the contested ballots and consequently issued its January 10, 2001 resolution pertinently stating:

Our review of the contested votes yielded forty-five (45) votes for Ms. Valera and four (4) votes for Gil Tadeos.

Thus:

Uncontested���� Validated��������� Total

Ballots������������� Ballots������������� Votes

Gil Tadeos������������������� 168����������������� 4��������������������� 172

Esperata Valera����������� 126����������������� 45������������������� 171

WHEREFORE, in view of the foregoing, this Commission (First Division) hereby declares, and so proclaims, protestant-appellee Gil Tadeos as the duly elected Punong Barangay of Barangay Maramara, Sulat, Eastern Samar in the May 12, 1997 barangay elections.Let the records of this case be remanded to the court a quo upon finality of this resolution for appropriate disposition.

No motion for reconsideration was filed within the reglementary period.Thus, on February 1, 2001, the COMELEC issued the second assailed order declaring the above cited resolution final and executory and directing the COMELEC's Judicial Records Division to remand the records to the court of origin for proper disposition and the immediate issuance of a writ of execution.

Hence, the instant petition wherein petitioner seeks to restrain and enjoin public respondents Commission on Elections, the Municipal Circuit Court of San Julian-Sulat, Eastern Samar, or the Sheriff from issuing a writ of execution to enforce the January 10, 2001 Resolution, and the Sheriff and/or the Provincial Comelec Supervisor from enforcing the same, pending the resolution of petitioner's motion to revoke and set aside the February 1, 2001 Order filed before the Commission on Elections.

Plainly, the petition is premature for the COMELEC still has to act on petitioner's motion mentioned in the immediately preceding sentence.Then too, even if one may heed petitioner's plea for immediate intervention because of the imminence of the issuance of a writ of execution, still one has to consider that Section 2, Rule 19 of the COMELEC Rules of Procedure explicitly provides:

Sec. 2. Period for Filing Motions for Reconsidertaion. - A motion to reconsider a decision, resolution, order, or ruling of a Division shall be filed within five (5) days from the promulgation thereof.Such motion, if not pro-forma, suspends the execution for implementation of the decision, resolution, order and ruling.

Concomitantly, Section 13( c), Rule 18 of the same Rules provides:

(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.

Petitioner's failure to seasonably file a motion for reconsideration effectively rendered the assailed resolution final and executory.At any rate, the Court has consistently ruled that factual findings of the COMELEC based on its own assessments and duly supported by evidence, are conclusive upon the Court, more so, in the absence of a substantiated attack on the validity of the same (Mohammad vs. Commission on Elections, 320 SCRA 258 [1999]).

In fine, whichever way one may view the petition, it is clearly without merit.

WHEREFORE, petition is dismissed.

Quisumbing, Buena, 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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