352 Phil. 584
PURISIMA, J.:
At bench is a special civil action for certiorari under Rule 65, in conjunction
with Section 2, Rule 39, Revised Rules of Court, and Section 1, Rule 37 of the
1993 Comelec Rules of Procedure, to review and annul the Resolution of
respondent Commission on Elections which set aside the Order, dated March 28,
1996, of Branch 11 of the Regional Trial Court in Basilan Province, directing
execution of the judgment of said court which found and adjudged the herein
petitioner, Halim Asmala, as the duly elected Vice Mayor of the Municipality of
Tuburan, Province of Basilan, and ordering his proclamation.
The antecedent
facts are, as follows:
In the elections of May 8, 1995, eight candidates vied for the position of Vice Mayor for the Municipality of Tuburan, Province of Basilan. The canvass of votes by the Municipal Board of Canvassers, indicated that :
Hadji Husni Mohammad garnered 3,065
votes,
Emmanuel “Manny” Alano 2,912
votes, and
Halim Asmala got 2,542
votes.
On the basis of
the aforestated results of canvass of votes, Hadji Husni Mohammad was
proclaimed, and later he assumed office as Vice Mayor of Tuburan.
On May 22,
1995, Halim Asmala filed an election
protest with the Regional Trial Court of Basilan. Docketed as Election Case No. 4-95, the protest alleged that
election fraud and other irregularities tainted the election and canvass of
votes. On the same day, another
candidate, Emmanuel Alano, also filed
his protest. Docketed as Election Protest
No. 6-95, it was consolidated with Election Protest No. 4-95.
During the
hearing, the court a quo found that several ballots
were written by just one hand while
other ballots were prepared by only two persons. Consequently, such ballots were invalidated.
On February 14,
1996, the trial court rendered its decision in said election cases, crediting
Halim Asmala, the herein petitioner, with 2,130 votes, Emmanuel Alano with 1, 920 votes and Hadji Husni
Mohammad with 1,729 votes, and
adjudging petitioner the duly elected Vice Mayor of Tuburan, Province of
Basilan.
On February 26,
1996, after the promulgation of the aforementioned decision, private respondent
Hadji Husni Mohammad filed his Notice of Appeal with the same Regional Trial
Court.
On the following
day, February 27, 1996, petitioner presented a Motion for Execution Pending
Appeal. Thereto, private respondent
Mohammad interposed his
opposition, theorizing that his
perfected appeal divested the trial
court of jurisdiction to resolve the Motion for Execution Pending Appeal.
In his Rejoinder
to Respondent’s Opposition to the Motion for Execution Pending Appeal,
petitioner placed reliance on the ruling of this court in Edding vs. COMELEC, 246 SCRA 502 to the effect that the mere filing of a Notice of Appeal
does not divest the trial court of jurisdiction over the case and to resolve pending incidents, including
motions for execution of judgment
pending appeal.
In his Comment
on the Rejoinder, the private
respondent opined that the case of Edding aforecited is inapplicable for the
reason that the motion for execution in question was filed after perfection of
his appeal.
On March 28,
1996, after due hearing, the trial court came out with a Special Order,
granting the Motion for Execution Pending Appeal, of petitioner who was
required to post therefor a bond in the amount of P30,000.00, and instructing the sheriff concerned to
install petitioner as Vice Mayor of Tuburan, Province of Basilan, after the
latter’s proclamation by the Commission
on Elections, and taking oath of
office.
On April 1,
1996, the trial court, after approving the property bond posted by petitioner, authorized him to
assume office. Also on the same day,
private respondent filed a Petition for Certiorari with the Commission on Elections, theorizing
that the assailed Order of March 28, 1996 of the trial court was issued without
or in excess of jurisdiction,
considering that his appeal was perfected by the mere filing of the Notice of
Appeal and payment of the necessary appeal fees.
On August 20,
1996, after submission by the parties of their respective memoranda, the COMELEC
granted the petition of private respondent and set aside the questioned
Order, dated March 28, 1996, on the
ground of lack of jurisdiction of the respondent trial court to issue the same.
Undaunted,
petitioner found his way to this court via the instant petition for certiorari, filed on September 19, 1996.
On September 21,
1996, two days after the institution of
this case, private respondent Mohammad moved for the execution of the August 20, 1996 COMELEC Resolution, setting
aside the Order of Execution pending appeal of the Regional Trial Court in
Election Protest Case No. 4-95; contending that the said COMELEC Resolution had
become final and executory pursuant to
Section 13(a), Rule 18 of the 1993 COMELEC Rules of Procedure.
Although copy of
the said motion for execution was mailed to the lawyer of petitioner, it
contained no notice of hearing. It was
only on September 26, 1996, when petitioner’s counsel received a copy thereof
by registered mail.
On September 27,
1996, the herein petitioner , through counsel, submitted to COMELEC his
Opposition to the Motion for Execution, inviting attention to his Petition for Certiorari
before this court, seeking to set aside and annul subject COMELEC Resolution of
August 20, 1996.
But, as it
turned out, on September 24, 1996, the COMELEC issued ex parte its
assailed Order granting private respondent’s motion for execution.
On the same day,
September 24, 1996, the COMELEC caused the issuance of the corresponding writ of execution,
which, then, prompted petitioner to file in this case a Supplemental Petition,
praying for a Temporary Restraining Order to forestall implementation of
the COMELEC Resolution in question.
The issue raised
in the original petition is - whether or not the COMELEC exceeded its jurisdiction and/or committed
grave abuse of discretion amounting to lack of jurisdiction in setting aside
the Special Order issued on March 28, 1996 by the Regional Trial Court of Basilan for the immediate execution pending
appeal of the decision in favor of
the herein petitioner, as
protestant in Election Case No. 4-95.
The Supplemental
Petition posits the issue of whether the respondent COMELEC acted with
grave abuse of discretion amounting to lack of jurisdiction in granting private
respondent’s motion for execution of its Resolution of August 20, 1996, notwithstanding the pendency of
the present Petition for Certiorari assailing the said COMELEC
Resolution.
Petitioner
maintains that the court a quo was competent to act upon and
grant the motion for execution pending appeal of its February 14, 1996
decision in Election Case No.
4-95.
On the other
hand, in his Petition before the COMELEC, private respondent argued that the
respondent Regional Trial Court lost jurisdiction to grant the Motion for
Execution Pending Appeal of the protestant (now petitioner) in view of the
perfection by protestee (now private
respondent) of the appeal before the
COMELEC.
According
to private respondent, a day before
protestant Halim Asmala filed a Motion for Execution Pending Appeal, he
(protestee) had perfected his appeal, by filing a Notice of Appeal and paying the requisite appeal fees to the COMELEC, thereby divesting the
trial court of jurisdiction to act on the said Motion for Execution Pending
Appeal.
However, both in
his Memorandum before the COMELEC, and
his Comment on the Petition here, private respondent Mohammad conceded that
petitioner’s Motion for Execution Pending Appeal was seasonably filed within
the five day period for perfecting an appeal. This development can be gleaned from the Consolidated Comment sent in by
the private respondent, to wit :
“...private respondent never questioned the trial court’s authority and jurisdiction to entertain a motion for execution pending appeal- for as long as the said Motion was filed within the five (5) day period for perfecting an appeal as was admittedly done by petitioner Asmala.”
It is then decisively clear that the parties recognize the jurisdiction of the trial court to order execution pending appeal of its judgment of February 14, 1996.
Furthermore, as
stressed by petitioner, this Court succinctly stated in Edding vs. Commission on Elections, 246 SCRA 502, that:
"The settled rule is that the mere filing of a notice of appeal does not divest the trial court of its jurisdiction over a case and resolve pending incidents. Where the motion for execution pending appeal was filed within the reglementary period for perfecting an appeal, as in the case at bench, the filing of a notice of appeal by the opposing party is of no moment and does not divest the trial court of its jurisdiction to resolve the motion for immediate execution of the judgment pending appeal because the court must hear and resolve it for it would become part of the records to be elevated on appeal. Since the court has jurisdiction to act on the motion at the time it was filed, that jurisdiction continued until the matter was resolved and was not lost by the subsequent action of the opposing party. (Eudela vs. Court of Appeals, 211 SCRA 546 and Cebu Contractors Consortium vs. Court of Appeals, 216 SCRA 597, 601)"
The aforecited
case of Edding made reference to the earlier case of Relampagos vs. Cumba, 243
SCRA 690, which enunciated a similar doctrine, and overturned the ruling in
Garcia vs. de Jesus and Tobon Uy vs.
Comelec, 206 SCRA 779 and Veloria vs Comelec, 211 SCRA 907.
In the
Relampagos case, this Court held that “any motion for execution pending appeal
must be filed before the period for the perfection of the appeal. Pursuant to Section 23 of the Interim Rules
Implemeting B.P. Blg. 129, which is deemed of supplementary effect to the
COMELEC Rules of Procedure, in accordance with section 1, Rule 41 of the
latter, an appeal would be deemed perfected on the last day for any of the
parties to appeal. (emphasis supplied) x x x Upon perfection of the appeal,
the trial court was divested of its jurisdiction over the case. Since the
motion for execution pending appeal was filed x x x after the perfection of the
appeal, the trial court could no longer validly act thereon.” This ruling was reiterated in the more
recent case of Conrado Lindo vs. Comelec, Judge Napoleon Dilag, etc. and
Rosario Velasco, G.R. No. 127311, June 19, 1997.
And so, what
remains for determination is the timeliness of filing of the Motion for
Execution Pending Appeal under scrutiny.
It should be
noted that the trial court promulgated on February 26, 1996 its subject
judgment dated February 14, 1996. Under
Rule 35, Section 22 of the 1993 Comelec Rules of Procedure, the parties have
five (5) days from service of judgment to interpose an appeal before the
Comelec. Therefore, the parties had five (5) days from February
26, 1996, to perfect an appeal.
Although it is
beyond cavil that the private respondent sent in his Notice of Appeal on
time; having filed the same on the day
the judgment appealed from was promulgated, the appeal was deemed
perfected, with respect to him
only. Such appeal did not deprive
petitioner of the right to avail himself of the entire period of five days
within which to appeal, if he so
desired. In the case of Valencia vs.
Court of Appeals, 184 SCRA 561; this
Court ruled, that:
“Under the present procedure, an appeal is perfected upon the expiration of the last day to appeal by any party. It is not perfected on the date the notice of appeal was filed. x x x The fact that plaintiff filed a notice of appeal x x x did not, as already stated, result in the perfection of the appeal. Despite plaintiff’s having filed his notice of appeal, defendants, had they been so minded, could still have availed of the right, up to their last day to appeal x x x to also file their notice of appeal or to file a motion for new trial or to move for execution as in fact they did, since plaintiff’s appeal has not yet been perfected. x x x”
Thus, when
petitioner filed his Motion for Execution pending appeal on February 27,
1996, the trial court still had
jurisdiction over the case because as
to him (petitioner), appeal was not yet perfected. In such a scenario below, the trial court had undoubtedly
the jurisdiction and competence to act on petitioner’s Motion for Execution
Pending Appeal, since it had not lost jurisdiction over the case, at the time of filing of subject motion.
All things studiedly
considered and viewed in proper perspective, the ineluctable conclusion is that
the respondent COMELEC acted with grave abuse of discretion amounting to
absence of jurisdiction in setting aside subject March 28, 1996 Order of
execution pending appeal on jurisdictional grounds.
WHEREFORE, the questioned Resolution issued
on August 20, 1996 by respondent Commission on Elections is SET ASIDE and the order of execution pending appeal,
issued in favor of the herein petitioner in Election Case No. 4-95 by the
Regional Trial Court of the Province of Basilan, is hereby reinstated and upheld.
This decision is
immediately executory.
SO
ORDERED.