EN BANC

JOSE TORRES, G.R. No. 174263

Petitioner,

Present:

Puno, C.J.,

Quisumbing,

Ynares-Santiago,

Sandoval-Gutierrez,

Carpio,

- versus - Austria-Martinez,

Corona,

Carpio-Morales,

Callejo, Sr.,

Azcuna,

Tinga,

Chico-Nazario,

Garcia, and

Velasco, Jr., JJ.

ABELARDO M. ABUNDO, SR. and

COMMISSION ON ELECTIONS, Promulgated:

Respondents.

January 24, 2007

x ---------------------------------------------------------------------------------------- x

DECISION

YNARES-SANTIAGO, J.:

This is a petition for certiorari of the Commission on Elections (“COMELEC”) En Banc’s Resolution[1] dated August 18, 2006 denying petitioner Jose Torres’ motion for reconsideration of the COMELEC First Division’s Resolution dated May 6, 2006.[2] The COMELEC First Division’s Resolution dismissed Torres’ petition and lifted its Order[3] dated January 13, 2006 directing Torres to continue performing his functions as Mayor of the Municipality of Viga, Catanduanes.

The following are the facts:

Petitioner Jose Torres and respondent Abelardo Abundo, Sr. were candidates for mayor of Viga, Catanduanes in the May 10, 2004 elections. On May 11, 2004, the Municipal Board of Canvassers proclaimed Torres as the duly elected mayor.

Claiming that irregularities attended the canvassing of ballots in 17 precincts, respondent filed an election protest docketed as Election Case No. 48[4] in the Regional Trial Court, Branch 42, Virac, Catanduanes. Petitioner, who also claimed that canvassing irregularities prejudiced him, filed a counter-protest in the same case impugning the results in 12 precincts.

On November 14, 2005, the trial court rendered judgment[5] in favor of respondent. It found that respondent obtained 4,230 votes over petitioner’s 4,121 votes. Thus, the trial court declared respondent the elected mayor of Viga, Catanduanes and annulled the earlier proclamation of petitioner. The dispositive portion of the Decision provides:

WHEREFORE, the Court finds that the protestant ABELARDO M. ABUNDO, SR., garnered a total of 4, 230 votes while the protestee garnered a total of only 4, 121 votes during the May 10, 2004 elections for Mayor of Viga, Catanduanes and that therefore, protestant ABELARDO M. ABUNDO, SR., was the duly elected Mayor of Viga, Catanduanes with a margin of 109 votes over the protestee. Accordingly, the protestee JOSE TORRES is hereby directed to VACATE and RELINQUISH said position to the protestant ABELARDO ABUNDO, SR.

SO ORDERED.[6]

Petitioner appealed to the COMELEC (EAC Case No. A-01- 2006). Respondent, for his part, filed with the trial court a motion[7] for execution of the judgment pending appeal. In its Order of December 12, 2005, the trial court granted respondent’s motion, subject to the filing of a P100,000 bond, to wit:

This Court hereby grants the protestant’s motion for execution pending appeal based on the following good reasons:

1. The Court has established the protestant’s right to the Office of the Mayor of Viga, Catanduanes. Having been declared by the Court as the duly elected Mayor of Viga, Catanduanes with a margin of 109 votes over the protestee, the protestant has the right to assume the Office of the Municipal Mayor of Viga, Catanduanes.

2. Barely eighteen (18) months is left to the tenure of the mayor of Viga, Catanduanes and the people have the right to be governed by the true winner of the election and their chosen official.[8]

x x x x

WHEREFORE, the Motion for Execution pending appeal is GRANTED. Let a writ of execution issue upon the posting of a bond by the protestant in the amount of P100,000.00.

SO ORDERED.[9]

A writ[10] was issued and served on petitioner who, without filing a motion for reconsideration of the trial court’s Order, filed a petition for certiorari with prayer for temporary restraining order/writ of preliminary injunction before the COMELEC. In an Order dated December 21, 2005, the COMELEC’s-First Division granted petitioner’s prayer for the issuance of a Temporary Restraining Order, thus:

In the interest of justice and so as not to render moot and academic the serious issues raised in the petition, a TEMPORARY RESTRAINING ORDER is hereby issued effective immediately enjoining public respondent Honorable Genie G. Gapas-Agbada, Presiding Judge of Branch 42, Regional Trial Court of Virac, Catanduanes, his agents or representatives or any one acting for and in his behalf from executing the December 12, 2005 Order of the court a quo in Election Protest Case No. 49 entitled Abelardo M. Abundo, Sr. vs. Jose Torres, granting private respondent’s Motion for Execution Pending Appeal as well as the Writ of Execution issued on the same day, pending consideration of the instant petition. In the event that Abelardo M. Abundo, Sr. had already assumed office as Municipal Mayor of Viga, Catanduanes and commenced to perform his function pursuant to the assailed order, a STATUS QUO ANTE ORDER is likewise issued directing the parties to observe the status prior to the promulgation or issuance of the said Order. Accordingly, private respondent Abelardo M. Abundo, [Sr.] shall forthwith vacate the post in favor of petitioner Jose Torres who shall continue to function as Mayor of Viga, Catanduanes until further orders from this Commission (First Division).[11]

After due proceedings, the COMELEC’s First Division issued an Order[12] dated January 13, 2006 granting petitioner Torres’ application for the issuance of a writ of preliminary injunction and forthwith issued the same, directing him to continue performing his functions as mayor of Viga, Catanduanes until final orders. On May 6, 2006, the COMELEC’s First Division issued the Resolution[13] dismissing the petition, thus:

The instant petition should be dismissed.

Sec. 2 Rule 28 of the COMELEC Rules of Procedure provides for the manner of filing a petition for certiorari in this wise:

Sec. 2. Petition for Certiorari or Prohibition. –

When any court or judge hearing election cases has acted without or in excess of its or his jurisdiction or with grave abuse of discretion and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a petition for certiorari or prohibition with the Commission alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings, as the law requires, of such court or judge, or commanding it or him to desist from further proceeding with the action or matter specified therein, as the case may be.

The petition shall be accompanied by a certified true copy of the judgment or order subject thereof, together with all pleadings and documents relevant and pertinent thereto. (Emphasis supplied)

The first paragraph requires that resort to a petition for certiorari can be made if there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law; and the second calls for the attachment to the petition of a certified true copy of the order sought to be reversed or set aside. The herein petition did not meet both requirements.

First of all, the petitioner failed to fulfill an important procedural pre-requisite, which is the filing of a motion for reconsideration of the assailed order.

A motion for reconsideration is a condition sine qua non for the filing of a petition for certiorari. Without said motion, the petition cannot simply prosper. x x x

x x x x

For sure the rule above-cited is not without exceptions. The aggrieved party is not obliged to first file a motion for reconsideration of the assailed resolution before filing a petition under Rule 65 of the Rules of Court, as amended where, (1) the question is purely legal, (2) judicial intervention is urgent; (3) its application may cause great and irreparable damage; and (4) the controversial acts violate due process. x x x

The herein petitioner, however, did not invoke any of these exceptions. x x x

x x x x

The petitioner, in contravention of the second paragraph of Section 2, Rule 28 of the COMELEC Rules of Procedure, failed to attach to the petition a certified true copy or even just a copy of the order granting execution of the decision pending appeal, which is ought to be set aside or nullified.

x x x x

In a long line of cases, the Supreme Court has ruled that where the petitioner failed to attach to his petition for certiorari the certified true copies of the assailed judgment or order, the said petition should be dismissed. x x x

The same is true of the present petition.

x x x x

WHEREFORE, premises considered, the Commission (First Division) RESOLVED as it hereby RESOLVES to DISMISS the herein petition.

ACCORDINGLY, the Order of the Commission First Division dated 13 January 2006 directing the petitioner Jose Torres to continue peforming his functions as mayor of the municipality of Viga, Catanduanes until final orders from this Commission is hereby LIFTED.

SO ORDERED.[14]

Petitioner filed a motion for reconsideration but it was denied by the COMELEC En Banc in the assailed Resolution dated August 18, 2006. Hence this petition raising the following issues:

I. THE HONORABLE COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT FAILED TO CONSIDER THAT PETITIONER’S FAILURE TO FILE THE MOTION FOR RECONSIDERATION IS DUE TO THE EXTREME URGENCY OF THE MATTER BROUGHT ABOUT BY PRIVATE RESPONDENT’S DESPERATE MOVE TO ASSUME THE POST AT ALL COST

II. THE HONORABLE COMMISSION GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JUDRISDICTION WHEN IT DISMISSED THE PETITION ON TECHNICAL GROUND WHEN IT HAS GIVEN DUE COURSE TO PETITIONER’S PRAYER FOR TEMPORARY RESTRAINING ORDER AND INJUNCTION

III. THE HONORABLE COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT FAILED/REFUSED TO RULE ON THE ALLEGED “GOOD REASONS” PROFERRED BY RESPONDENT IN HIS MOTION FOR EXECUTION PENDING APPEAL.[15]

The petition lacks merit.

In Olanolan v. Commission on Elections,[16] this Court held:

The term “grave abuse of discretion,” in its juridical sense, connotes, as Litton Mills, Inc. vs. Galleon Trader, Inc., and a host of other cases teach, capricious, despotic, oppressive or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse must be of such degree as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, as where the power is exercised in an arbitrary and capricious manner by reason of passion and hostility. The word “capricious”, usually used in tandem with the term “arbitrary”, conveys the notion of willful and unreasoning action. Thus, when seeking the corrective hand of certiorari, a clear showing of caprice and arbitrariness in the exercise of discretion is imperative.

The COMELEC En Banc, in dismissing the petition for petitioner’s failure to comply with Sec. 2, Rule 28 of the COMELEC Rules of Procedure, only followed its rules pursuant to its constitutional mandate to promulgate “rules of procedure to expedite disposition of election cases.”[17] The dismissal of Torres’ petition is warranted under the Rules and does not constitute grave abuse of discretion. Strict compliance with the mandatory rules of procedure is the established norm and any relaxation of that standard could only be an exception. Utter disregard of the rules cannot justly be rationalized by harping on the policy of liberal construction.[18]

Petitioner contends that his failure to file a motion for reconsideration of the trial court’s December 12, 2005 Order falls under one of the exceptions recognized by law. He cites the case of Government of the United States of America v. Purganan[19] where it was held that, although as a general rule, a petition for certiorari will not prosper unless the inferior court has been given, through a motion for reconsideration, a chance to correct the errors imputed to it, said motion may be dispensed with under certain exceptions such as in case of urgency.

Petitioner Torres maintains that he opted to dispense with the filing of a motion for reconsideration of the trial court’s Order since by the time it is heard, the aforementioned Order would have been executed thereby causing him to be “forcibly” unseated as mayor.

We are not persuaded.

Petitioner Torres’ reliance on Purganan is misplaced. The factual milieu in said case is different from the instant petition. The said case stemmed from the Government of the United States’ (“US Gov’t.”) request to the Philippine Government to extradite Mark B. Jimenez (“Jimenez”) pursuant to an existing RP-US Extradition Treaty. The US Gov’t. proceeded directly to this Court via a petition for certiorari under Rule 65 alleging grave abuse of discretion on the part of the Regional Trial Court of Manila, Branch 42 in issuing two Orders. The first Order set for hearing the US Gov’t.’s application for the issuance of a warrant of arrest against respondent Jimenez, while the second directed the issuance of such warrant and at the same time granted bail to Jimenez. In proceeding directly to this Court without first filing a motion for reconsideration of the assailed orders, the US Gov’t. justified its action in this wise:

Petitioner submits the following justifications for not filing a Motion for Reconsideration in the Extradition Court: “(1) the issues were fully considered by such court after requiring the parties to submit their respective memoranda and position papers on the matter and thus, the filing of a reconsideration motion would serve no useful purpose; (2) the assailed orders are a patent nullity, absent factual and legal basis therefor; and (3) the need for relief is extremely urgent, as the passage of sufficient time would give Jimenez ample opportunity to escape and avoid extradition; and (4) the issues raised are purely of law.”[20] (Emphasis supplied)

In the instant case however, petitioner’s claim of “extreme urgency” is untenable. When respondent, armed with a writ of execution pending appeal duly issued by the trial court and accompanied by a Sheriff served the same to petitioner, respondent was merely asserting his right as the duly elected Mayor of Viga pursuant to the trial court’s Decision. The winning protestant, bolstered by the Decision of the trial court declaring him the rightful occupant of the contested position will certainly be vigilant in reclaiming the same from his rival. He cannot be expected to slumber on his hard-won right to assume the position he fought for. Petitioner must have felt a deep sense of urgency when faced with eminent eviction from the post that he worked hard to obtain. However, such sense of urgency is not the same as that contemplated by prevailing jurisprudence as one of the recognized exceptions to the general rule with respect to the filing of a motion for reconsideration.

Petitioner is likewise mistaken in averring that, since the COMELEC granted his motion for issuance of TRO and Injunction, it cannot thereafter dismiss his petition. A preliminary injunction is a provisional remedy, an adjunct to the main case subject to the latter’s outcome. Its sole objective is to preserve the status quo until the trial court hears fully the merits of the case. Its primary purpose is not to correct a wrong already consummated, or to redress an injury already sustained, or to punish wrongful acts already committed, but to preserve and protect the rights of the litigant during the pendency of the case.[21]

Finally, petitioner faults the trial court’s finding that there are “good reasons” to order execution of its decision pending appeal.

To grant execution pending appeal in election protest cases, the following requisites must concur: (1) there must be a motion by the prevailing party with notice to the adverse party; (2) there must be “good reasons” for the execution pending appeal; and (3) the order granting execution pending appeal must state the “good reasons.”[22]

In Santos v. Commission on Elections,[23] the Court summarized the circumstances qualifying as “good reasons,” and thereby justifying execution pending appeal, thus:

The following constitute “good reasons,” and a combination of two or more of them will suffice to grant execution pending appeal: (1) the public interest involved or the will of the electorate; (2) the shortness of the remaining portion of the term of the contested office; and (3) the length of time that the election contest has been pending. x x x[24]

The trial court in the instant case, relying on the cases of Lindo v. Commission on Elections[25] and Gutierrez v. Commission on Elections,[26] invoked two “good reasons” to justify its order allowing execution pending appeal. First, the order would “give substance and meaning to the people’s mandate, especially since the RTC has established private respondent’s right to office.” Second, “barely eighteen (18) months is left to the tenure of the mayor of Viga, Catanduanes and the people have the right to be governed by the true winner of the election and their chosen official.” The COMELEC found these “good reasons” sufficient.

Finding the rulings of the COMELEC consistent with prevailing jurisprudence, we hold that the COMELEC did not commit grave abuse of discretion in dismissing the petition for certiorari for being procedurally and substantially infirm. Grave abuse of discretion implies capricious and whimsical exercise of judgment amounting to lack of jurisdiction, or arbitrary and despotic exercise of power because of passion or personal hostility. The grave abuse of discretion must be so patent and gross as to amount to an evasion or refusal to perform a duty enjoined by law.[27] This does not obtain in the instant case.

WHEREFORE, the instant petition is DISMISSED. The Resolution dated May 6, 2006 of the COMELEC First Division dismissing the petition for lack of merit, and the Resolution dated August 18, 2006 of the COMELEC En Banc denying reconsideration thereof, are AFFIRMED.

SO ORDERED.

CONSUELO YNARES-SANTIAGO

Associate Justice

WE CONCUR:

REYNATO S. PUNO

Chief Justice

LEONARDO A. QUISUMBING ANGELINA SANDOVAL-GUTIERREZ