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[G.R. No. 139916. July 11, 2000]
BERNARDO TAPIA vs. EMETERIO S. AWITAN TERRONES, et al.
EN BANC
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court dated JUL 11 2000.
G.R. No. 139916 (Bernardo Tapia vs. Emeterio S. Awitan Terrones and Commission on Elections.)
Challenged in this petition are the Commission on Elections (COMELEC) Resolution dated August 19, 1999 which dismissed petitioner Bernardo Tapia's appeal for his failure to perfect the same within the reglementary period and the Order dated September 14, 1999 which denied petitioner's motion for reconsideration for having been filed out of time.
Petitioner and private respondent Emeterio S. Awitan Terrones were candidates for the position of punong barangay during May 12, 1997, barangay elections. Petitioner was declared winner with 358 votes over private respondent's 356 votes.
Private respondent filed an election protest with the Municipal Trial Court (MTC) of Tanauan, Batangas. After trial, the MTC declared that petitioner and private respondent obtained the same number of votes.
In due time, petitioner filed a notice of appeal to the Regional Trial Court (RTC) of Tanauan, Batangas. After realizing that he filed his notice of appeal with the wrong court, petitioner filed a notice of appeal to the COMELEC and moved that the records be forwarded to the Commission.
Consequently, the RTC dismissed the notice of appeal for lack of jurisdiction and ordered the forwarding of records to the COMELEC.
On, June 19, 1998, the COMELEC issued an order dismissing the appeal for lack of jurisdiction and directing the MTC to proceed with the drawing of lots and to declare the candidate favored by luck winner of the contested elections, without prejudice to the right of the losing candidate in the drawing of lots to appeal to the COMELEC.
On the date set for the drawing lots, the contending parties agreed to the tossing of fifteen (15) coins. Petitioner obtained a score of six (6) while private respondent scored nine (9). On the same day, July 21, 1998, the MTC declared private respondent winner of the "toss coin."
Private respondent filed a motion for immediate execution and proclamation which was granted by the MTC on July 28, 1998. Private respondent took his oath of office on the same day.
On August 10, 1998, petitioner filed a notice of appeal questioning the findings of the MTC that private respondent and he obtained the same number of votes. He did not challenge the result of the "toss coin."
On August 12, 1998, petitioner paid the required appeal fees to the Cash Division of the COMELEC.
On August 19, 1999, the First Division of the COMELEC issued a resolution dismissing the appeal for failure of petitioner to perfect the appeal within the five-day reglementary period.
Petitioner received a copy of said resolution on September 2, 1999. On September 13, 1999, he filed a motion for reconsideration, six (6) days after the expiration of the required period.
On September 14, 1999, the COMELEC denied petitioner's motion for reconsideration for having been filed out of time.
Hence, the instant petition.
The only issue presented to the Court for consideration is whether or not the COMELEC committed grave abuse of discretion in denying petitioner's appeal.
Section 3, Rule 22 of the COMELEC rules of Procedure provides.:
SEC. 3. Notice of Appeal. - Within five (5) days after promulgation of the decision of the court, the aggrieved party may file with said court a notice of appeal, and serve a copy thereof upon the attorney of record of the adverse party.
Sections 3 and 4, Rule 40 of the Same Rules likewise provide:
SEC. 3. Appeal Fees. - The appellant in election cases shall pay an appeal fee as follows:
(a) Election cases appealed from Regional Trial Courts P1,000.00.
(b) Election cases appealed from courts of limited jurisdiction. P500.00.
In every case, a legal research fee of P20.00 shall be paid by the appellant in accordance with Sec. 4, republic Act No. 3870, as amended.
SEC. 4. Where and When to Play. - The fees prescribed in Sections 1, 2 and 3 hereof shall be paid to, and deposited with the Cash Division of the Commission within a period to file the notice of appeal.
Here, records bear out that petitioner received a copy of the MTC Order on August 5, 1998. While he timely filed his notice of appeal on August 10, 1998, he paid the required appeal dues only on August 12, 1998. To perfect an appeal, the Rules mandate that both the filing of the notice of appeal and the payment of the appeal fees must be made within the prescribed five-day period.
The COMELEC was correct as state that:
Considered in the light of the foregoing rules of the Commission, the instant appeal has not been legally perfected as payment of the appeal fee was effected beyond the 5 day reglementary period. It should be stressed that both the notice of appeal and the payment of the corresponding appeal fees within the prescribed period make up for a perfected appeal. Jurisprudence holds that perfection of an appeal in the manner and within the period laid down by law is not only mandatory but jurisdictional. (Villanueva vs. Court Appeals, 205 SCRA 537; Rodillas vs. Comelec et al., G.R. No. 119055, July 10, 1995; Norma Salazar vs. Comelec et al., G.R. No. 121100, February 13,1996.) 1 Rollo , p. 49 .
The right to appeal is a mere statutory privilege and must be exercised only in the manner prescribed by law. 2 Calucag v. Commission on elections, 274 SCRA 405 (1997) .
Petitioner's propensity to abuse and disregard the period set by the Rules is further demonstrated by the belated filing of his motion for reconsideration. Surely, said practice cannot be countenanced by the Court especially so when rules of procedure are promulgated to ensure an orderly administration of justice.
ACCORDINGLY, the instant petition is hereby DISMISSED.
Very truly yours,
LUZVIMINDA D. PUNO
Clerk of Court
(Sgd.) MA. LUISA D. VILLARAMA
Asst. Clerk of Court
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