624 Phil. 338


[ G.R. No. 185222, January 19, 2010 ]




This case could have been an ordinary election contest. However, despite the rather technical issue that we are tasked to resolve here, this case shows that, while blood is usually thicker than water, politics, in some very few instances, may actually be thicker than blood and may be no respecter even of family ties.

Respondent Ramon M. Calo was proclaimed winner in the May 14, 2007 mayoralty race in the Municipality of Carmen, Province of Agusan del Sur. His opponent, petitioner Jesus M. Calo, is his brother, whom he beat by 278 votes. Petitioner filed an election protest in the Regional Trial Court (RTC) of Butuan City, Branch 3, questioning the election results in 36 of out of the 56 precincts.

On February 8, 2008, the RTC issued its decision on the protest finding petitioner to have received the majority votes and declaring him the duly elected mayor, on two grounds: (1) 981 votes were considered by the RTC as stray votes and deducted from respondent's 4,818 votes giving petitioner, who had 4,540 votes, an edge of 703 votes in his favor and (2) based on marked ballots, claimed ballots, written by one (WBO) ballots, written by two (WBT) ballots and stray ballots, 315 votes were also deducted from respondent, leaving the latter with 4,503 votes as against petitioner's 4,540 or a difference of 37 votes.[1]

Petitioner filed a motion for the issuance of a writ of execution pending appeal on February 12, 2008. On the same date, respondent filed his notice of appeal.

On February 15, 2008, the RTC issued its special order granting petitioner's motion for the issuance of a writ of execution pending appeal. Respondent sought reconsideration of this special order on February 19, 2008. On the same date, the RTC ordered the transmittal of the records to the COMELEC.

Before the RTC could act on the motion for reconsideration filed by respondent on February 19, 2008, respondent forthwith filed a petition for certiorari and prohibition with the Commission on Elections (COMELEC) docketed as SPR No. 46-2008, raising as ground the grave abuse of discretion committed by the RTC.

On July 30, 2008, the COMELEC First Division issued its resolution granting the petition in SPR No. 46-2008, setting aside the RTC special order dated February 15, 2008, quashing the accompanying writ of execution, issuing a status quo ante order directing the parties to observe the status quo prevailing prior to the February 15, 2008 special order and directing respondent to continue as the municipal mayor of the Municipality of Carmen. Petitioner filed a motion for reconsideration, which was denied by the COMELEC En Banc per resolution dated November 13, 2008.

Hence, the present petition for certiorari and prohibition under Rule 65 of the Rules of Court, based on the following grounds:

  1. The COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction in finding, through the questioned Resolutions dated 30 July 2008 and 13 November 2008, that the RTC Judge committed grave abuse of discretion amounting to lack of jurisdiction in issuing that Special Order dated 15 February, 2008.

  2. The petitioner is entitled to injunctive relief from the Honorable Supreme Court.

The Court finds merit in the petition.

Section 11, Rule 14 of A.M. No. 07-4-15-SC[2] sets the standards in the grant or denial of a motion for execution pending appeal in election contests involving elective municipal and barangay officials, to wit -

SEC. 11. Execution pending appeal. - On motion of the prevailing party with notice to the adverse party, the court, while still in possession of the original records, may, at its discretion, order the execution of the decision in an election contest before the expiration of the period to appeal, subject to the following rules:

(a) There must be a motion by the prevailing party with three-day notice to the adverse party. Execution pending appeal shall not issue without prior notice and hearing. There must be good reasons for the execution pending appeal. The court, in a special order, must state the good or special reasons justifying the execution pending appeal. Such reasons must:

(1) constitute superior circumstances demanding urgency that will outweigh the injury or damage should the losing party secure a reversal of the judgment on appeal; and

(2) be manifest, in the decision sought to be executed, that the defeat of the protestee or the victory of the protestant has been clearly established.

(b) If the court grants execution pending appeal, an aggrieved party shall have twenty working days from notice of the special order within which to secure a restraining order or status quo order from the Supreme Court or the Commission on Elections. The corresponding writ of execution shall issue after twenty days, if no restraining order or status quo order is issued. During such period, the writ of execution pending appeal shall be stayed.

The sole issue in this case is whether the RTC abided by the standards set forth in the foregoing rule when it granted petitioner's motion for execution pending appeal.

In setting aside the RTC special order dated February 15, 2008, the COMELEC ruled that the issuance of the writ of execution pending appeal failed to satisfy the requirements laid down in Rule 14, Section 11 of A.M. No. 07-4-15-SC. According to the COMELEC, the notice of the RTC's clerk of court violated the 3-day notice rule inasmuch as respondent was only given one day from the filing of the motion within which to submit his opposition.

The relevant rule provides that a motion for execution pending appeal filed by the prevailing party shall contain a three-day notice to the adverse party and execution pending appeal shall not issue without prior notice and hearing.

It should be emphasized that these requirements are for the purpose of avoiding surprises that may be sprung upon the adverse party who must be given time to study and meet the arguments in the motion before a resolution by the court.[3] Where a party had the opportunity to be heard, then the purpose has been served and the requirement substantially complied with.[4] In this case, even the COMELEC admitted that respondent was heard and afforded his day in court;[5] hence, it should not have annulled the RTC special order on said ground.

The COMELEC also found that respondent's presumptive victory must prevail in the light of the fact that, in the event that the RTC's appreciation of the votes is overturned, then respondent would still be the winning candidate. The COMELEC thus concluded that it was more prudent to preserve the status quo prior to the RTC decision dated February 8, 2008 so as not to disrupt government service.

In the recent case of Pecson v. COMELEC,[6] the Court ruled that:

x x x decisions of the courts in election protest cases, resulting as they do from a judicial evaluation of the ballots and after full-blown adversarial proceedings, should at least be given similar worth and recognition as decisions of the board of canvassers. This is especially true when attended by other equally weighty circumstances of the case, such as the shortness of the term of the contested elective office, of the case.[7] (Emphasis supplied)

The Court also stressed in Pecson that disruption of public service cannot per se be a basis to deny execution pending appeal -

We additionally note that "disruption of public service" necessarily results from any order allowing execution pending appeal and is a concern that this Court was aware of when it expressly provided the remedy under the Rules. Such disruption is therefore an element that has been weighed and factored in and cannot be per se a basis to deny execution pending appeal.[8] (Emphasis supplied)

Similarly in this case, the COMELEC should have accorded respect and weight to the RTC's decision proclaiming petitioner as winner. Note that aside from the evidence presented by the parties during the election contest and the expert testimony of the witnesses from the National Bureau of Investigation, the RTC made its own assessment and findings on the contested ballots. On the basis of all this, the RTC concluded that "[petitioner] will still have the plurality of 981 votes in favor of [petitioner] and 315 votes also for [petitioner], respectively."[9] It was also the RTC's conclusion that "the victory of the protestant has been clearly established."[10] Aside from these, the RTC also laid down the superior circumstances necessitating the grant of execution pending appeal: (1) allowing the status quo to continue would unjustly give premium to the perpetrators of fraud, anomalies and irregularities and suppress the will of the electorate; (2) the sovereign will of the people should be given utmost respect and (3) the injury or damage to be sustained by petitioner would outweigh the injury or damage of respondent.[11]

Given that the RTC's exercise of its discretionary power to grant execution pending appeal per special order dated February 15, 2008 was not tainted with any bias or capricious and whimsical arbitrariness, we find that the COMELEC committed an error in annulling and setting it aside.

WHEREFORE, the petition is hereby GRANTED. The COMELEC resolutions dated July 30, 2008 and November 13, 2008 are ANNULLED and the RTC special order dated February 15, 2008 is hereby REINSTATED.


Puno, C.J., Carpio, Carpio Morales, Velasco, Jr., Nachura, Leonardo-De Castro, Brion, Peralta, Bersamin, Del Castillo, Abad, Villarama, Jr., Perez and Mendoza, JJ., concur.

[1] Rollo, pp. 156, 186.

[2] Rules of Procedure in Election Contests Before the Courts Involving Elective Municipal and Barangay Officials.

[3] Jehan Shipping Corporation v. National Food Authority, G.R. No. 159750, 14 December 2005, 477 SCRA 781, 788-789.

[4] Vette Industrial Sales Co., Inc. v. Cheng, G.R. No. 170232, 5 December 2006, 509 SCRA 532, 545-546, citing Vlason Enterprises Corporation v. Court of Appeals, 369 Phil. 269 (1999).

[5] Rollo, p. 35.

[6] G.R. No. 182865, 24 December 2008, 575 SCRA 634.

[7] Id., p. 652.

[8] Id., p. 649.

[9] Rollo, p. 186.

[10] Id., p. 205.

[11] Id., pp. 205-206.

Source: Supreme Court E-Library
This page was dynamically generated by the E-Library Content Management System (E-LibCMS)