347 Phil. 510
REGALADO, J.:
“WHEREFORE, the Commission resolves to GRANT, as it hereby GRANTS, the petitions. The respondent court’s order dated February 19, 1997, denying petitioner’s presentation of evidence, the order dated March 10, 1997, denying petitioner’s Motion for Reconsideration, the Decision dated April 21, 1997, the order dated June 17, 1997, directing the issuance of a writ of execution, and the writ of execution issued pursuant thereto are SET ASIDE.The records show that these facts are not substantially disputed:
We order the Regional Trial Court of Palawan and Puerto Princesa City, Branch 50, to proceed immediately with the trial of Election Case No. 891.
In the meantime, respondent Alfredo Enojas, Jr. shall vacate the position of mayor of Roxas, Palawan, and the petitioner shall assume said position to restore the parties to the status quo ante.
This resolution is immediately executory.
Let the records be remanded to the court a quo for further proceedings.”
1. Petitioner Alfredo B. Enojas, Jr. and respondent Jose R. Rodriguez were the mayoralty candidates for the Municipality of Roxas, Palawan in the May, 1995 elections. Respondent Rodriguez reportedly won by forty-eight (48) votes over petitioner Enojas and was proclaimed by the Municipal Board of Canvassers for Roxas, Palawan as its duly elected mayor.In reversing the trial court and ordering the reception of evidence for respondent Rodriguez, respondent COMELEC held as follows:
2. Petitioner Enojas, Jr. then filed an election protest before the Regional Trial Court of Palawan, docketed as Special Election Case No. 891, seeking the revision of ballots in one hundred two (102) precincts in the municipality. However, after the revision of the ballots in thirty-nine (39) precincts, petitioner Enojas, Jr., with prior approval of the trial court, withdrew the remaining unrevised precincts from the revision proceedings.
3. After petitioner Enojas, Jr. had filed his Formal Offer of Exhibits and rested his case, respondent Rodriguez filed, with leave of court, a Motion to Dismiss[2] alleging, inter alia, that the court had no jurisdiction on the ground that the protest had not passed through the Katarungang Pambarangay and the correct docket fees had not been paid; that based on the allegations in the protest and the exhibits formally offered, protestant had no cause of action against the protestee because the protest should have been filed against the person or persons liable for the alleged errors in the counting of votes; that protestant should be deemed to have waived his right to file the present protest by reason of his failure to file a protest with the Board of Election Inspectors and/or Municipal Board of Canvassers; that the filing of the election protest was premature and should be dismissed for forum shopping since there was a pending pre-proclamation protest filed with the Municipal Board of Canvassers and the COMELEC; and that the allegations in the complaint are ambiguous for failure to make out clearly whether it is an election contest or a judicial recount.
4. On December 19, 1995, the trial court granted the motion of respondent Rodriguez on the ground of lack of jurisdiction for non-payment of the correct docket fees, and dismissed Special Election Case No. 891.
5. From said order of dismissal, petitioner Enojas, Jr. went to respondent COMELEC on a petition for certiorari, prohibition and disqualification which was docketed as SPR No. 1-96. On June 11, 1996, respondent COMELEC issued a resolution reversing the Order of December 19, 1995 and remanding the case to the trial court for further proceedings. The lower court thereafter set the case for reception of the evidence of respondent Rodriguez.
6. On October 11, 1996, however, petitioner Enojas, Jr. filed an Opposition to the presentation of evidence by respondent Rodriguez on the ground that the latter is deemed to have waived his right to present evidence by reason of the COMELEC’s denial of his motion to dismiss which was previously granted by the court a quo.
7. On February 19, 1997, the trial court issued an Order declaring that respondent Rodriguez was deemed to have waived his right to present evidence, and accordingly considered the case submitted for decision.
8. His motion for reconsideration of the Order of February 19, 1997 having been denied for lack of merit, respondent Rodriguez filed a petition for certiorari and prohibition before the COMELEC in SPR No. 9-97 questioning the February 19, 1997 and March 10, 1997 orders of the trial court denying his right to present evidence.
9. In the meantime, the trial court rendered a decision dated April 28, 1997 declaring petitioner Enojas, Jr. as the winner in the 1995 elections for the position of mayor of Roxas, Palawan. On even date, petitioner Enojas, Jr. filed a motion for execution pending appeal.
10. As a consequence of the foregoing, the COMELEC issued on April 29, 1997 a temporary restraining order (TRO) in SPR No. 9-97 against Presiding Judge Nelia Yap-Fernandez of the Regional Trial Court of Palawan, Branch 50.
11. On June 17, 1997, a writ of execution pending appeal was issued by the trial court, upon motion of protestant and after the expiration of the 20-day TRO issued by the COMELEC. Accordingly, after posting a bond of P400,000.00, petitioner Enojas, Jr. assumed office as municipal mayor of Roxas, Palawan.
12. Respondent Rodriguez consequently filed another petition for certiorari, prohibition and mandamus with the COMELEC, docketed as SPR No. 18-97, questioning the propriety of the Order of June 17, 1997 which authorized the issuance of a writ of execution pending appeal.
“x x x [R]espondent Enojas objected to petitioner’s presentation of evidence contending that by filing a motion to dismiss or demurrer to evidence, petitioner was deemed to have waived his right to present evidence. Respondent judge upheld such contention in the questioned orders dated February 19, 1996 and March 10, 1996.‘This rule is now embodied in the Revised Rules of Court, section 1, Rule 35, captioned Judgment and Demurrer to Evidence, which will take effect on January 1, 1964. It is, therefore, evident that the respondent court, in the case at bar, after denying the motion to dismiss, for insufficiency of evidence, (demurrer to evidence), should have permitted the petitioner-defendant to present his own evidence x x x.’
Such ruling is not only erroneous but constitutes a grave abuse of discretion amounting to lack or excess of jurisdiction. What petitioner filed was not a demurrer to evidence but a motion to dismiss for lack of jurisdiction. Demurrer to evidence questions the sufficiency of evidence. Thus, as enunciated by the Supreme Court in the case of Siayngco vs. C(o)stibolo, 27 SCRA 272:
The motion to dismiss on the ground of jurisdiction can be easily differentiated from a motion to dismiss on demurrer to evidence in that, in the latter case, the movant admits the truth or factual allegations in the complaint and moves for the dismissal of the case on the ground of insufficiency of evidence. The legal effect and consequence of a demurrer to evidence is that in the event that the motion to dismiss on demurrer to evidence is granted and the order of dismissal is reversed on appeal, the movant loses his right to present evidence in his behalf.The main issue in this case, therefore, involves the determination of whether the motion to dismiss filed by respondent Rodriguez should be considered as a demurrer to evidence by reason of which he is deemed to have waived his right to present evidence.
However, in a motion to dismiss on the ground of lack of jurisdiction, the movant does not lose his right to present evidence.
The case of Calabig vs. Villanueva, 135 SCRA 300, and Demetrio vs. Lopez, 50 Phil 45, cited by private respondent are inapplicable to the instant case as the motions filed therein were demurrers to evidence.”[3]
“In regard to the first assignment of error, the practice followed in the courts of these Islands is to permit the defendant to present a motion for dismissal in ordinary cases after the plaintiff has rested, reserving the right to present his evidence if the ruling on his motion is adverse to him either in the first instance or on appeal. In an election protest proceeding, however, which is a summary one, and in which the periods are short and fatal, and trials rapid and preferential as the peremptory nature of the litigation so requires, the motion for dismissal at that stage of the proceeding must be considered as a demurrer to the evidence presented by the protestant, with implied waiver by the protestee to present his evidence, whatever may be the ruling, whether adverse or favorable, either in the first instance or on appeal, the court of origin or appellate court having the power to definitely decide the protest. If, in the prosecution of election protests the ordinary practice were to be followed in regard to the presentation of motions for dismissal or of demurrers to the evidence, in the majority of cases, if not always, the law would be frustrated and the will of the electorate defeated, to the great detriment of the underlying principles of representative government, because, in case of revocation of a ruling sustaining the motion of dismissal or the demurrer on appeal, the case would have to be remanded to the court below for the continuation of the trial and the introduction of evidence by the protestee, thus causing the proceeding to continue during the term of the office in question, with the possible result that the defeated, and not the elected, candidate would be discharging the office.The aforequoted ruling was reiterated in the later case of Jardiel vs. Commission on Elections, et al.[5] wherein the motion to dismiss filed by the protestee, after the protestant had submitted a written offer of evidence, was considered as a demurrer to the evidence presented. In the succeeding case of Calabig vs. Villanueva, etc., et al.,[6] the foregoing pronouncement was quoted with approval and applied as a doctrinal rule.
In election protests, therefore, the protestee should not be permitted to present a motion for dismissal or a demurrer to the evidence of the protestant, unless he waives the introduction of his own evidence in case the ruling on his motion or demurrer is adverse to him, in which case the court that tries the case must definitely decide it.
In the present case, the motion for dismissal filed by the protestee has the effect of a demurrer to the evidence presented by the protestant, he having thereby impliedly waived the introduction of his evidence, for which reason the trial court did not commit an error in sustaining said motion and definitely deciding the case without requiring the protestee to present his evidence.” (Italics supplied)
“2. This protest is without any cause of action. It appears from the face of the protest and even in the exhibits formally offered, admitting in arguendo that the same is admitted by the Court, that the herein protest has no cause of action. The allegation in the protest clearly shows that protestant has no cause of action against the protestee. Again, granting in arguendo, that the herein protestant actually garnered more votes than herein protestee, the protest should be filed against the person or persons liable against such error or errors.”[7] (Emphasis ours).and thereafter prayed that “the herein protest be dismissed for lack of jurisdiction, lack of cause of action,[8] nonpayment of correct filing fee, for being premature as the pre-proclamation protest is not yet terminated, and the protest is ambig(u)ous whether it is for election contest or judicial recount.”[9] Hence, we agree that respondent Rodriguez had waived his right to present evidence.