Republic of the
Supreme Court
|
JOSEPH BERNARDEZ,
Petitioner, -versus- COMMISSION ON
ELECTIONS and avelino
tolean, Respondents. |
G.R. No. 190382
Present: PUNO, C.J., CARPIO, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA,
BERSAMIN, ABAD, VILLARAMA, JR., PEREZ, and MENDOZA, JJ. Promulgated: March 9, 2010 |
x-----------------------------------------------------------------------------------------x
PERALTA, J.:
This is a Petition for
Certiorari[1] with Urgent Prayer
for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary
Injunction and/or Status Quo Ante
Order, assailing the Order[2] of the
Commission on Elections (COMELEC) En Banc, dated November 4, 2009, and
the Resolution[3]
of the Second Division of the COMELEC dated September 22, 2009, setting aside
the Special Order[4]
in Election Case No. 1255, dated March 31, 2009, of Branch 36, Regional Trial Court
(RTC) of Bontoc, Mountain Province.
The
factual background of this case is as follows:
Petitioner
Joseph Bernardez and private respondent Avelino Tolean were candidates for
Vice-Mayor in the
Petitioner
filed an election protest on
Acting
on the said election protest, the RTC promulgated its Decision[5] dated
Wherefore, in view of all the foregoing findings, judgment is hereby rendered:
1) Declaring the proclamation of Avelino Tolean as the Vice Mayor elect of Sabangan, Mountain Province, in the May 14, 2007 national and local elections, null and void; and
2)
Proclaiming Joseph Bernardez, as the duly elected Vice mayor of Sabangan,
On
Meanwhile,
on
On
Wherefore, the Motion for Execution Pending Appeal is hereby granted.
The Branch Clerk of Court, is hereby ordered to issue a Writ of Execution Pending Appeal, after the lapse of twenty (20) working days, to be counted from the time Protestee's counsel receives a copy of this Special Order, if no restraining order or status quo order is issued, pursuant to Sec. 11, Rule 14 of the Rules of Procedure in Election Contests before the Courts involving Elective Municipal and Barangay Officials. (A.M. No. 07-4-15-SC).[9]
Since
no restraining or status quo order
was issued pursuant to Section 11, Rule 14 of the Rules of Procedure in
Election Contests before the Courts involving Elective Municipal and Barangay Officials[10] during
the twenty-day allowable period, the Special Order above-mentioned became valid
and effective; hence, petitioner assumed the Vice-Mayoralty position of
Sabangan,
It
was only on April 20, 2009 that private respondent filed his Petition for
Injunction with Prayer for the Issuance of a Writ of Preliminary Injunction
and/or Temporary Restraining Order before public respondent COMELEC (Second
Division) to enjoin the RTC from implementing the latter's Special Order
granting the execution of its Decision on account of the pendency of private
respondent's Notice of Appeal.
On
It appearing that the appeal
fees of three thousand pesos (P3,000.00), bailiff's fees of one hundred
fifty pesos (P150.00) and legal research fees of fifty pesos (P50.00)
required by COMELEC Rules were paid only on April 03, 2009, or more than
fifteen (15) days from the filing of notice of appeal, hence, not in accordance
with COMELEC Resolution No. 8486.
x x x x
The Commission (Second Division) resolves to dismiss the instant appeal case.[12]
However,
on September 22, 2009, the same division of the COMELEC, which dismissed
private respondent's Notice of Appeal, issued the first assailed Resolution[13]
reversing the Special Order of the RTC dated March 31, 2009, and granting
private respondent's Petition for
Injunction and Prayer for the Issuance of a Status Quo Ante Order on the grounds that: (1) private
respondent was not furnished a Notice of Hearing as required under Section 11,
Rule 14 of the New Rules, as a result of which, he was not properly represented
in the hearing without his fault; and (2) the RTC neglected to state that the
reasons advanced for granting the Motion for Execution Pending Appeal were
“superior circumstances demanding urgency that will outweigh the injury or
damage should the losing party secure a reversal of the judgment on appeal.”
On
x x x x
the Commission En Banc
hereby resolves to deny the same for movant-private respondent's failure to pay
the required motion fees in the amount of P700.00 as provided under
Section 7(f), Rule 40, COMELEC Rules of Procedure, as amended by COMELEC Minute
Resolution No. 02-0130 dated September 18, 2002, within the five-day reglementary
period for filing motions for reconsideration enjoined under Section 2, Rule19,
same COMELEC Rules.
There being no valid motion for reconsideration to speak of, the provision of Section 13, paragraph (c), Rule 18, Comelec Rules of Procedure, to wit:
“Sec. 13. Finality of Decisions or Resolutions.
x x x x
(c) Unless a motion for reconsideration is seasonably filed, a decision or resolution of a Division shall become final and executory after the lapse of five (5) days in Special actions and Special cases and after fifteen (15) days in all other actions or proceedings, following its promulgation.”
applies, hence, the Resolution of the Commission (Second Division) dated September 22, 2009, a copy of which was received by the private respondent on October 1, 2009, per his admission in his Motion for Reconsideration filed on October 6, 2009, had become final and executory as of October 17, 2009.
ACCORDINGLY, the Clerk of the Commission, Electoral Contests Adjudication Department (ECAD), this Commission, is hereby directed to immediately issue an Entry of Judgment in the above-entitled case.
SO ORDERED.[15]
On
November 19, 2009, upon private respondent's urgent motion, the COMELEC issued
a Writ of Execution[16] of the
Resolution of the Second Division of the COMELEC dated September 22, 2009, and
the Order of the COMELEC en banc dated November 4, 2009, the pertinent
portion of which states, thus:
NOW, THEREFORE, the Provincial Election Supervisor of Mountain Province, Comelec, is hereby directed to immediately implement this Writ of Execution, in coordination with the Department of the Interior and Local Government (DILG) Provincial Operations Officer of Mountain Province and the Provincial Director, PNP, by serving a copy hereof, together with the certified true copies of the Resolution of the Commission (Second Division) dated September 22, 2009 and the Order of the Commission En Banc issued on November 4, 2009, upon private respondent JOSEPH BERNARDEZ (1) ordering him to cease and desist from discharging the powers and functions of Vice-Mayor of Sabangan. Mt. Province, and to relinquish and vacate the same in favor of petitioner Avelino Tolean, (2) to cause the peaceful and smooth turn-over of office to aforesaid petitioner, and 3) make a return of your action within five (5) days from receipt hereof.[17]
Thereafter,
pursuant to the above-mentioned Writ of Execution, private respondent took his
oath and assumed office as the Vice Mayor elect of the Municipality of Sabangan
as per Certification[18]
issued by the Sangguniang Bayan of Sabangan, Mountain Province dated
November 27, 2009, and the Panunumpa ng Katungkulan[19]
dated November 24, 2009.
Hence,
this petition.
Petitioner
raises the following issues:
I.
That
COMELEC (2nd Division) committed grave abuse of discretion when it proceeded to
decide the motion for TRO/Status Quo Ante Order without considering the
dismissed main appeal of respondent for failure to pay filing fee nine (9)
months after the COMELEC clarificatory resolution becomes final and executory.
II.
That
COMELEC (2nd Division) erred when it resolved to grant the preliminary
injunction and temporary restraining order/Status Quo Order although respondent
failed to establish the existence of a clear and unmistakable right that must
be protected, as well as the serious damage or irreparable loss that respondent
would suffer if the writ is not granted.
III.
That
COMELEC (2nd Division) and the Honorable COMELEC COMMISSION En Banc had
acted arbitrarily and in manifest grave abuse of discretion amounting to lack
or excess of jurisdiction when it deviated from its mandate to reasonably and
liberally construe election laws to achieve the purpose which is to safeguard
the will of the electorate in the choice of their representative.
IV.
COMELEC
committed grave abuse of discretion when it whimsically and capriciously set
aside the time-honored due process. There was no prior notice and hearing
before implementing the said writ of execution.[20]
The
main issue is whether or not public respondent COMELEC en banc committed
grave abuse of discretion amounting to lack or excess of jurisdiction in
issuing its Order dated
There
is grave abuse discretion where the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility which must be so
patent and gross as to amount to an invasion of positive duty or to a virtual
refusal to perform the duty enjoined or to act at all in contemplation of law.[21]
Petitioner
contends that public respondent COMELEC en banc committed grave abuse of
discretion when it proceeded to decide and thereby grant private respondent's Petition
for Injunction and Prayer for the Issuance of a Status Quo Ante Order, without
considering the fact of dismissal of private respondent's Notice of Appeal.
Petitioner further avers that the allowance by the COMELEC Second Division of
private respondent's Urgent Motion for the Issuance of a Writ of Execution,
notwithstanding the dismissal of private respondent’s Notice of Appeal, amounted
to the reversal of the decision of the RTC via a mere motion and not via an
appeal as inscribed in our Constitution. What the law forbids to be done
directly was made possible by private respondent indirectly.
A
careful review of the antecedent facts bears out the fact that, indeed, the
COMELEC Second Division granted private respondent Tolean's petition for
injunction without considering that it had already dismissed private
respondent's Notice of Appeal. It is undisputed that on
WHEREFORE, in view of the foregoing, the Commission hereby RESOLVES to DIRECT as follows:
1.) That if the appellant had already paid the amount of P1,000.00
before the Regional Trial Court, Metropolitan Trial Court, Municipal Trial
Court or lower courts within the five-day period, pursuant to Section 9, Rule
14 of the Rules of Procedure in Election Contests Before the Courts Involving
Elective Municipal and Barangay Officials (Supreme Court Administrative Order
No. 07-4-15) and his Appeal was given due course by the Court, said appellant
is required to pay the Comelec appeal fee of P3,200.00 at the
Commission’s Cash Division through the Electoral Contests Adjudication
Department (ECAD) or by postal money order payable to the Commission on
Elections through ECAD, within a period of fifteen (15) days from the time of
the filing of the Notice of Appeal with the lower court. If no payment is made within the prescribed
period, the appeal shall be dismissed pursuant to Section 9(a) of Rule 22 of
the COMELEC Rules of Procedure, which provides:
Sec. 9. Grounds for Dismissal of Appeal. – The appeal may be dismissed upon motion of either party or at the instance of the Commission on any of the following grounds:
(a.) Failure of the appellant to pay the correct appeal fee; x x x
2.)
That if the appellant failed to pay the P1,000.00 - appeal fee with the lower
court within the five (5)-day period as prescribed by the Supreme Court New Rules
of Procedure but the case was nonetheless elevated to the Commission, the
appeal shall be dismissed outright by the Commission, in accordance with the
aforestated Section 9(a) of Rule 22 of the Comelec Rules of Procedure.
With
the dismissal by the COMELEC Second Division of private respondent's Notice of
Appeal without any showing that he had appealed the dismissal to the COMELEC en
banc, the decision of the RTC proclaiming petitioner as the duly elected
Vice-Mayor of Sabangan,
Considering
the foregoing, the COMELEC Second Division gravely abused its discretion when
it granted private respondent's petition for injunction on
In
Caneland Sugar Corporation v. Alon,[23] it was settled that injunctive reliefs are
preservative remedies for the protection of substantive rights and interests. Injunction is not a cause of action in itself,
but merely a provisional remedy, an adjunct to a main suit. When the act sought
to be enjoined has become fait accompli, the prayer for provisional
remedy should be denied.
In
Go v. Looyuko,[24] the
Court ruled that when the events sought to be prevented by injunction or
prohibition have already happened, nothing more could be enjoined or prohibited.
Indeed, it is a universal principle of law that an injunction will not issue to
restrain the performance of an act already done. This is so for the simple
reason that nothing more can be done in reference thereto. A writ of injunction
becomes moot and academic after the act sought to be enjoined has already been
consummated.
Since
the COMELEC, Second Division, granted the petition for injunction despite
finality of the Decision in the election protest case, petitioner filed with the COMELEC en banc a motion for reconsideration of
the Resolution of the COMELEC, Second Division, granting the private
respondent’s petition for preliminary injunction. The COMELEC en banc was, therefore, challenged to weigh an issue of
technicality as against the substance of the motion for reconsideration. In dismissing the motion for reconsideration
due to failure to pay appeal fees, the COMELEC en banc gave importance to technicality, which could have been
disregarded at its own discretion, and failed to give weight to the fact that
petitioner’s proclamation as the duly elected Vice-Mayor of the Municipality of
Sabangan, Mountain Province by the RTC had become final with the dismissal by
the COMELEC, Second Division of private respondent’s appeal in the election protest
case. Hence, the Commission failed to
protect and uphold the will of the electorate in voting petitioner as the Vice-Mayor
of their municipality.
Based on the Resolution dated
September 22, 2009 of the COMELEC, Second Division and the Order dated November
4, 2009 of the COMELEC en banc, the Commission issued a writ of
execution ordering petitioner to cease and desist from
discharging the powers and functions of Vice-Mayor of Sabangan, Mountain
Province and to relinquish and vacate the same in favor of private
respondent. Again, this issuance was
made despite the fact that it was the petitioner who won by a margin of 11
votes over private respondent, and that the decision of the RTC became final
with the dismissal of private respondent’s notice of appeal by the COMELEC,
Second Division on
In
fine, the Order of the COMELEC en banc
dated November 4, 2009 and the Resolution of the COMELEC, Second Division dated
September 22, 2009 were issued in grave abuse of discretion and are, therefore,
null and void, considering that the RTC Decision dated February 25, 2009 became
final and executory with the dismissal of private respondent’s appeal by the COMELEC, Second Division on
June 1, 2009. The ground for the
petition for preliminary injunction, which was the pendency of the notice of
appeal, had no more basis with the dismissal of the appeal; hence, that
petition should have been denied.
WHEREFORE, the petition is GRANTED. The
Order dated
SO ORDERED.
DIOSDADO
M. PERALTA
Associate Justice
WE
CONCUR:
REYNATO S. PUNO
Chief Justice
|
ANTONIO T.
CARPIO Associate Justice |
RENATO
C. CORONA Associate Justice |
|
CONCHITA
CARPIO MORALES Associate Justice |
PRESBITERO
J. VELASCO, JR. Associate Justice |
|
ANTONIO
EDUARDO B. NACHURA Associate Justice |
TERESITA
J. LEONARDO-DE CASTRO Associate Justice |
|
ARTURO
D. BRION Associate Justice |
LUCAS
P. BERSAMIN Associate Justice |
|
MARIANO
C. Associate Justice |
ROBERTO
A. ABAD Associate Justice |
|
MARTIN
S. VILLARAMA, JR. Associate Justice |
JOSE
Associate Justice |
JOSE CATRAL
Associate Justice
Chief Justice
[1] Under Rule 65 in relation to Rule 64 of the Rules of Court.
[2] Annex “A,” rollo, pp. 54-55.
[3] Annex “B,” id. at 58-64.
[4] Annex “J,” id. at 103-105.
[5] Annex “G,” id. at 77-93.
[6] Rollo, pp. 92–93.
[7] Annex “H,” id. at 94-95.
[8] Annex “J,” id. at 103-105.
[9]
[10] Supreme Court Administrative Order A.M. No. 07-4-15-SC.
[11] Annex “M,” rollo, pp. 116-118.
[12]
[13] Annex “B,” rollo, pp. 58-64.
[14] Annex “A,” id. at 54-55.
[15]
[16] Annex “R,” id. 147-148.
[17]
[18] Annex “S,” rollo, p. 149.
[19] Annex “S-1,” id. at 150.
[20] Rollo, pp. 28-29.
[21] Romulo
v. Peralta, G.R. No. 165665,
[22] Entitled “In the Matter of Clarifying the Implementation of COMELEC Rules Re: Payment of Filing Fees for Appealed Cases Involving Barangay and Municipal Elective Positions from the Municipal Trial Courts, Municipal Circuit Trial Courts, Metropolitan Trial Courts and Regional Trial Courts.”
[23] G.R. No. 142896, September 12,
2007, 533 SCRA 28, 37, citing Philippine
National Bank v. Court of Appeals, 291
SCRA 271 (1998).
[24] G.R. Nos. 147923, 147962, 154035,