G.R. Nos.

186007 & 186016

July 27, 2009

SALVADOR DIVINAGRACIA, JR., Petitioner, vs. COMMISSION ON ELECTIONS and ALEX A. CENTENA, Respondents. DECISION CARPIO MORALES, J.: Salvador Divinagracia, Jr. (petitioner) and Alex Centena (private respondent) vied for the vice-mayoralty race in Calinog, Iloilo during the May 14, 2007 Elections wherein petitioner garnered 8,141 votes or 13 votes more than the 8,128 votes received by respondent. After the proclamation of petitioner as the duly elected vice-mayor on May 16, 2007, private respondent filed with the Regional Trial Court (RTC) of Iloilo City an election protest, docketed as Election Case No. 07-2007, claiming that irregularities attended the appreciation of marked ballots in seven precints.1 By Decision of December 5, 2007, Branch 24 of the RTC dismissed private respondents protest. It ruled that private respondent failed to overcome the disputable presumption of regularity in the conduct of elections2 since no challenge of votes or objection to the appreciation of ballots was raised before the Board of Elections Inspectors or the Municipal Board of Canvassers. Private respondent and petitioner filed their respective notices of appeal before the trial court, upon payment of the P1,000 appeal fee under Section 9, 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) which took effect on May 15, 2007.

The Comelec, by Order of March 12, 2008, consolidated the appeals of the parties and directed them to file their respective briefs. Meanwhile, the duly elected mayor of Calinog, Teodoro Lao, died on March 18, 2008. On even date, petitioner assumed office as mayor. On July 17, 2008, the Comelec Second Division issued its first assailed resolution declaring private respondent as the duly elected vice mayor. Thus it disposed: WHEREFORE, this Commission GRANTS the Appeal in EAC No. A-10-2008, and hereby DECLARES protestant-appellant Alex Centena as the duly elected Vice-Mayor of the Municipality of Calinog, Iloilo, with a total of 8,130 votes against protesteeappellee Salvador Divinagracia, Jr.s total of 8,122 votes, or a winning margin of eight (8) votes. The Decision of the Regional Trial Court of Iloilo City, Branch 24, dated 5 December 2007, is hereby REVERSED and SET ASIDE. The Appeal in EAC No. A-11-2008 is hereby DENIED for lack of merit. SO ORDERED.3 In reversing the trial courts Decision, the Comelec Second Division found the same to be fatally defective in form for nonobservance of the prescribed rules4 as it failed to indicate the specific markings in the contested ballots and merely discussed in a general manner the reasons why those ballots should not be declared as "marked."5The Comelec re-appreciated those ballots and ascertained that respondent was the true winner in the elections for the vice-mayoralty post.

Petitioner filed a Verified Motion for Reconsideration, alleging, inter alia, that both parties failed to pay the appeal fee/s in the amount of P3,200 under Section 3, Rule 40 of the Comelec Rules of Procedure,6 and following Section 9, Rule 22 of the same Rules, an appeal may be dismissed motu proprio or upon motion on the ground of failure of the appellant to pay the correct appeal fee. On January 26, 2009, the Comelec En Banc issued its second assailed Resolution affirming7 the pronouncements of the Second Division. It held that petitioner was barred under the doctrine of estoppel by laches when he failed to raise the question of jurisdiction when he filed his Appellants and Appellees Briefs. Hence, the present petition for certiorari and prohibition which asserts that payment of the appeal fee is a mandatory and jurisdictional requirement and that the question of jurisdiction may be raised at any stage of the proceedings. It cites earlier rulings of the Comelec dismissing analogous cases involving the same issue of non-payment of appeal fee which, so he contends, contradict the assailed Resolutions. In support of the issue of whether the Comelec gravely abused its discretion amounting to lack or excess of jurisdiction in issuing the assailed Resolutions, petitioner submits the following arguments: 7.1. THE PUBLIC RESPONDENT COMELEC DID NOT ACQUIRE JURISDICTION OVER THE APPEAL DOCKETED AS EAC NO. A-10-2008 FOR FAILURE OF THE APPELLANT TO PAY THE FILING FEE/APPEAL FEE. 7.2. PAYMENT OF FILING FEE/APPEAL FEE IS MANDATORY AND JURISDICTIONAL, HENCE, CAN BE RAISED AT ANY STAGE OF THE PROCEEDINGS PENDING WITH THE SAME COURT/COMELEC.

7.3. THE FLIP-FLOPPING RULINGS OF THE PUBLIC RESPONDENT COMELEC SECOND DIVISION IS IN DEROGATION OF THE RULES AND THE PROPER ADMINISTRATION OF JUSTICE. 7.4. IN ASSAILING THE RULING TO AFFIRM THE SECOND DIVISION RESOLUTION, THE PETITIONER IS NOT BARRED BY ESTOPPEL BECAUSE HIS PARTICIPATION IN THE PROCEEDINGS WAS DIRECTED BY THE PUBLIC RESPONDENT COMELEC. 7.5. THERE APPEARS TO BE AN INCONSISTENCY IN THE APPLICATION OF THE RULES BETWEEN THE FIRST AND SECOND DIVISION OF THE PUBLIC RESPONDENT COMELEC.8 Private respondent filed his Comment of March 17, 2009, while petitioner submitted a Reply of May 11, 2009. Records show that private respondent took his oath of office as vice-mayor and, forthwith successively, as mayor on March 6, 2009,9 pursuant to the Comelec Order of March 3, 2009 directing the issuance of a writ of execution.10 The petition lacks merit. The jurisprudence on payment of filing fees in election cases metamorphosed in the 1997 case of Loyola v. Comelec.11 In Loyola, the Court did not dismiss the election protest for inadequate payment of filing fees arising from the incorrect assessment by the clerk of court, after finding substantial compliance with the filing fee requirement in election cases. The Court noted the clerks ignorance or confusion as to which between Section 5(a)(11),12 Rule 141 of the Rules of Court and Section 9, Rule 35 of the Comelec Rules of Procedure would apply in assessing the filing fee, considering that the particular

election protest fell within the exclusive original jurisdiction of the Regional Trial Court. After clarifying the matter, the Court in Loyola warned that the cases cited therein would no longer provide any excuse for such shortcoming and would now bar any claim of good faith, excusable negligence or mistake in any failure to pay the full amount of filing fees in election cases which may be filed after the promulgation of the decision in said case. Shortly thereafter, in the similar case of Miranda v. Castillo13 which involved two election protests filed on May 24, 1995, the Court did not yet heed the Loyola warning and instead held that an incomplete payment of filing fee is correctible by the payment of the deficiency. The Court, nonetheless, reiterated the caveat in Loyola that it would no longer tolerate any mistake in the payment of the full amount of filing fees for election cases filed after the promulgation of the Loyola decision on March 25, 1997.
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totaling P170. Four days beyond the reglementary period, the therein petitioner realized his mistake and again paid to the Cash Division of the Comelec the appeal fees in the sum of P520, pursuant to Sections 3 and 4, Rule 40 of the Comelec Rules of Procedure, which Sections fix the amount of the fees and the place of payment thereof. Maintaining that errors in the matter of non-payment or incomplete payment of filing fees in election cases are no longer excusable, the Court sustained the Comelecs dismissal of the appeal. The Court was more emphatic in Zamoras in reiterating the Loyola doctrine. In that case, the petitioner failed to fully pay the appeal fees under Comelec Resolution No. 02-0130 (September 18, 2002) which amended Section 3, Rule 40 of the Comelec Rules of Procedure by increasing the fees to P3,200. There the Court ruled: x x x A case is not deemed duly registered and docketed until full payment of the filing fee. Otherwise stated, the date of the payment of the filing fee is deemed the actual date of the filing of the notice of appeal. x x x xxxx x x x The payment of the filing fee is a jurisdictional requirement and non-compliance is a valid basis for the dismissal of the case. The subsequent full payment of the filing fee after the lapse of the reglementary period does not cure the jurisdictional defect. x x x17 (Italics in the original, underscoring supplied) Such has been the jurisprudential landscape governing the matter of payment of filing fees and appeal fees in election cases. On May 15, 2007, the Court, by A.M. No. 07-4-15-SC, introduced the "Rules of Procedure in Election Contests before the Courts involving Elective Municipal and Barangay Officials," which superseded Rules 35 and 36 of the Comelec Rules of Procedure
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The force of the Loyola doctrine was strongly felt in the 2000 case of Soller v. Comelec,14 where the Court ordered the dismissal of the therein election protest for, inter alia, incomplete payment of filing fee, after finding aP268 deficiency in the fees paid, similar to what occurred in Loyola and Miranda. The Court once again clarified that the then P300 filing fee prescribed by the Comelec under Section 9, Rule 35 of the Comelec Rules of Procedure was the correct filing fee that must be paid. The ripples of the caveat in Loyola continued in Villota v. Commission on Elections15 and Zamoras v. Commission on Elections,16 both of which involved, this time, the matter of full payment of the appeal fee in election contestswithin the five-day reglementary period. The petitioner in Villota timely filed a notice of appeal and simultaneously paid to the trial courts cashier the appeal fees

governing elections protests and quo warranto cases before the trial courts.18 Not only was the amount of the filing fee increased from P300 to P3,000 for each interest;19 the amount of filing fee was determined by the Court, not by the Comelec, which was, to recall, the cause of confusion in Loyola, Mirandaand Soller. Another major change introduced by A.M. No. 07-4-15-SC is the imposition of an appeal fee under Section 9 of Rule 14 thereof, separate and distinct from, but payable within the same period as, the appeal fee imposed by the Comelec under Sections 3 and 4, Rule 40 of the Comelec Rules of Procedure, as amended by Comelec Resolution No. 02-0130. Contrary to respondents contention, the Comelec-prescribed appeal fee was notsuperseded by A.M. No. 07-4-15-SC. The requirement of these two appeal fees by two different jurisdictions had caused confusion in the implementation by the Comelec of its procedural rules on payment of appeal fees for the perfection of appeals, prompting the Comelec to issue Resolution No. 8486 (July 15, 2008) clarifying 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, saidappellant 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 days (15) 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. (Emphasis, italics and underscoring supplied) That Comelec Resolution No. 8486 took effect on July 24, 200820 or after a party had filed a notice of appeal, as in the case of petitioner, does not exempt it from paying the Comelecprescribed appeal fees. The Comelec merely clarified the existing rules on the payment of such appeal fees, and allowed the payment thereof within 15 days from filing the notice of appeal. In the recent case of Aguilar v. Comelec,21 the Court harmonized the rules with the following ratiocination: The foregoing resolution is consistent with A.M. No. 07-4-15-SC and the COMELEC Rules of Procedure, as amended. The appeal to the COMELEC of the trial courts decision in election contests involving municipal and barangay officials is perfected upon the filing of the notice of appeal and the payment of the P1,000.00 appeal fee to the court that rendered the decision within the fiveday reglementary period. The non-payment or the insufficient payment of the additional appeal fee of P3,200.00 to the COMELEC Cash Division, in accordance with Rule 40, Section 3 of the COMELEC Rules of Procedure, as amended, does not affect the perfection of the appeal and does not result in outright or ipso facto dismissal of the appeal. Following, Rule
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22, Section 9(a) of the COMELEC Rules, the appeal may be dismissed. And pursuant to Rule 40, Section 18 of the same rules, if the fees are not paid, the COMELEC may refuse to take action thereon until they are paid and may dismiss the action or the proceeding. In such a situation, the COMELEC is merely given the discretion to dismiss the appeal or not. (Italics in the original; emphasis and underscoring supplied) In Aguilar, the Court recognized the Comelecs discretion to allow or dismiss a "perfected" appeal that lacks payment of the Comelec-prescribed appeal fee. The Court stated that it was more in keeping with fairness and prudence to allow the appeal which was, similar to the present case, perfected months before the issuance of Comelec Resolution No. 8486. Aguilar has not, however, diluted the force of Comelec Resolution No. 8486 on the matter of compliance with the Comelec-required appeal fees. To reiterate, Resolution No. 8486 merely clarified the rules on Comelec appeal fees which have been existing as early as 1993, the amount of which was last fixed in 2002. The Comelec even went one step backward and extended the period of payment to 15 days from the filing of the notice of appeal. Considering that a year has elapsed after the issuance on July 15, 2008 of Comelec Resolution No. 8486, and to further affirm the discretion granted to the Comelec which it precisely articulated through the specific guidelines contained in said Resolution, the Court now declares, for the guidance of the Bench and Bar, that for notices of appeal filed after the promulgation of this decision, errors in the matter of non-payment or incomplete payment of the two appeal fees in election cases are no longer excusable. On the Comelecs application of the doctrine of estoppel by laches, records show that petitioner raised the issue of lack of jurisdiction for his and private respondents non-payment of the appeal fee only after the Comelec appreciated the contested ballots and ruled in favor of respondent, an issue which could

have been raised with reasonable diligence at the earliest opportunity. The Court finds the Comelec resolution well-taken. That petitioners filing of the appellees brief was an invocation of the Comelecs jurisdiction and an indication of his active participation cannot be refuted on the mere asseveration that he was only complying with the Comelecs directive to file the same. The submission of briefs was ordered precisely because the Comelec could not anticipate the claims and defenses that would be raised by the parties. Moreover, in his Verified Motion for Reconsideration, petitioner once again pleaded to the Comelec to exercise its jurisdiction by dismissing private respondents appeal on the merits.22 The doctrine of estoppel by laches is not new in election cases. It has been applied in at least two cases involving the payment of filing fees. In Navarosa v. Comelec,23 the therein petitioner questioned the trial courts jurisdiction over the election protest in the subsequent petition for certiorari before the Comelec involving the ancillary issue of execution pending appeal. The petitioner having raised for the first time the therein private respondents incomplete payment of the filing fee in her Memorandum submitted to the Comelec, the Court applied the doctrine of estoppel in this wise: In an earlier ruling, the Court held that an election protest is not dismissible if the protestant, relying on the trial courts assessment, pays only a portion of the COMELEC filing fee. However, in Miranda v. Castillo, the Court, reiterating Loyola v. Commission on Elections, held that it would no longer tolerate "any mistake in the payment of the full amount of filing fees for election cases filed after the promulgation of the Loyola decision on March 25, 1997." Nevertheless, our rulings in Miranda and Loyola are inapplicable to the present case.

At no time did petitioner Navarosa ever raise the issue of respondent Estos incomplete payment of the COMELEC filing fee during the full-blown trial of the election protest. Petitioner Navarosa actively participated in the proceedings below by filing her Answer, presenting her evidence, and later, seeking a stay of execution by filing a supersedeas bond. Not only this, she even invoked the trial courts jurisdiction by filing a counter-protest against respondent Esto in which she must have prayed for affirmative reliefs. Petitioner Navarosa raised the issue of incomplete payment of the COMELEC filing fee only in her memorandum to respondent Estos petition before the COMELEC Second Division. Petitioner Navarosas conduct estops her from claiming, at such late stage, that the trial court did not after all acquire jurisdiction over the election protest.Although a party cannot waive jurisdictional issues and may raise them at any stage of the proceedings, estoppel may bar a party from raising such issues. In Pantranco North Express v. Court of Appeals, this Court applied the doctrine of estoppel against a party who also belatedly raised the issue of insufficient payment of filing fees to question the courts exercise of jurisdiction over the case. We held: The petitioner raised the issue regarding jurisdiction for the first time in its Brief filed with public respondent [Court of Appeals] x x x After vigorously participating in all stages of the case before the trial court and even invoking the trial courts authority in order to ask for affirmative relief, the petitioner is effectively barred by estoppel from challenging the trial courts jurisdiction. Indeed, in Miranda and Loyola, as in every other case where we sustained the dismissal of the election protest for lack or incomplete payment of the COMELEC filing fee, the protestee timely raised the non-payment in a motion to dismiss. Before any revision of the contested ballots, the protestee filed a petition for certiorari questioning the trial courts jurisdiction before the COMELEC and eventually before this Court. In contrast, in the instant case, petitioner Navarosa did not raise the incomplete

payment of the COMELEC filing fee in a motion to dismiss. Consequently, the trial court proceeded with the revision of the contested ballots and subsequently rendered judgment on the election protest. Petitioner Navarosa raised for the first time the incomplete payment of the COMELEC filing fee in her memorandum before the COMELEC Second Division. Thus, estoppel has set in precluding petitioner Navarosa from questioning the incomplete payment of the COMELEC filing fee, and in effect assailing the exercise of jurisdiction by the trial court over the election protest. The law vests in the trial court jurisdiction over election protests although the exercise of such jurisdiction requires the payment of docket and filing fees by the party invoking the trial courts jurisdiction. Estoppel now prevents petitioner Navarosa from questioning the trial courts exercise of such jurisdiction, which the law and not any act of the parties has conferred on the trial court. At this stage, the remedy for respondent Estos incomplete payment is for him to pay the P200 deficiency in the COMELEC filing fee. It is highly unjust to the electorate of Libacao, Aklan, after the trial court has completed revision of the contested ballots, to dismiss the election protest and forever foreclose the determination of the true winner of the election for a mere P200 deficiency in the COMELEC filing fee. x x x24 (Italics and emphasis in the original; underscoring supplied) In Villagracia v. Commission on Elections,25 the Court dismissed the petition after finding that the therein petitioner was estopped from raising the jurisdictional issue for the first time on appeal. The Court ratiocinated: Petitioner contends that had public respondent followed the doctrine in Soller v. COMELEC, it would have sustained the ruling of the First Division that the trial court lacked jurisdiction to hear the election protest due to private respondents failure to pay the correct filing fees. We disagree. The Soller case is not on all fours with the case at bar. In Soller, petitioner therein filed with the trial court a motion to
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dismiss private respondents protest on the ground of, among others, lack of jurisdiction. In the case at bar, petitioner actively participated in the proceedings and voluntarily submitted to the jurisdiction of the trial court. It was only after the trial court issued its decision adverse to petitioner that he raised the issue of jurisdiction for the first time on appeal with the COMELECs First Division. While it is true that a court acquires jurisdiction over a case upon complete payment of the prescribed filing fee, the rule admits of exceptions, as when a party never raised the issue of jurisdiction in the trial court. As we stated in Tijam v. Sibonghanoy, et al., viz.: xxx [I]t is too late for the loser to question the jurisdiction or power of the court. xxx [I]t is not right for a party who has affirmed and invoked the jurisdiction of a court in a particular matter to secure an affirmative relief, to afterwards deny that same jurisdiction to escape a penalty. It was therefore error on the part of the COMELECs First Division to indiscriminately apply Soller to the case at bar. As correctly pointed out by public respondent in its questioned Resolution, viz.: x x x. Villagracia never assailed the proceedings of the trial court for lack of jurisdiction during the proceedings therein. Instead, he filed an Answer to the Protest on 2 August 2002 and then actively participated during the hearings and revision of ballots and subsequently filed his Formal Offer of Exhibits. The issue on the filing fees was never raised until the Decision adverse to his interest was promulgated by the trial court and only on [a]ppeal to the COMELEC. Necessarily, we apply the case of Alday vs. FGU Insurance Corporation where the Supreme Court instructed that "although the lack of jurisdiction of a court may be raised at any stage of the action, a party may be estopped from raising such questions if he has actively taken part in the very proceedings which he questions, belatedly objecting to the courts jurisdiction in the event that the judgment or order subsequently rendered is

adverse to him." Villagracia is therefore estopped from questioning the jurisdiction of the trial court only on [a]ppeal.26 (Underscoring supplied) To allow petitioner to espouse his stale defense at such late stage of the proceedings would run afoul of the basic tenets of fairness. It is of no moment that petitioner raised the matter in a motion for reconsideration in the same appellate proceedings in the Comelec, and not before a higher court. It bears noting that unlike appellate proceedings before the Comelec, a motion for reconsideration of a trial courts decision in an election protest is a prohibited pleading,27 which explains why stale claims of nonpayment of filing fees have always been raised belatedly before the appellate tribunal. In appellate proceedings before the Comelec, the stage to belatedly raise a stale claim of nonpayment of appeal fees to subvert an adverse decision is a motion for reconsideration. The Commission thus did not gravely abuse its discretion when it did not countenance the glaring inequity presented by such situation. More. Petitioner, guilty as he is of the same act that he assails, stands on equal footing with private respondent, for he himself admittedly did not pay the appeal fee, yet the Comelec similarly adjudicated his appeal on the merits, the resolution of which he glaringly does not assail in the present petition. He who comes to court must come with clean hands. Election cases cannot be treated in a similar manner as criminal cases where, upon appeal from a conviction by the trial court, the whole case is thrown open for review and the appellate court can resolve issues which are not even set forth in the pleadings.28 Petitioner having set his eyes only on the issue of appeal fees, the present petition must be resolved, as it is hereby resolved, on the basis of such singular ground which, as heretofore discussed, failed to convince the Court. En passant, appreciation of the contested ballots and election documents involves a question of fact best left to the
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determination of the Comelec, a specialized agency tasked with the supervision of elections all over the country. In the absence of grave abuse of discretion or any jurisdictional infirmity or error of law, the factual findings, conclusions, rulings and decisions rendered by the Comelec on matters falling within its competence shall not be interfered with by this Court.29 By the assailed Resolutions, the Comelec declared as "marked" those ballots containing the words "Ruby," "Ruby Lizardo" and its variants after finding a discernible pattern in the way these words were written on the ballots, leading to the conclusion that they were used to identify the voter. The Comelec found material the following evidence aliunde: the name "Ruby Lizardo" referred to a community leader and political supporter of petitioner; said name and its variants were written on several ballots in different precints; and the fact that Ruby Lizardo acted as an assistor in the elections cannot hold water since an assistor cannot assist in the preparation of the ballots for more than three times. 30 The Comelec did not invalidate the other ballots for absence of evidencealiunde to prove that the markings therein were used for the purpose of identifying the voter. It ruled that circles, crosses and lines (e.g., "X" marks) placed on spaces on which the voter has not voted are considered signs to indicate his desistance from voting and should not invalidate the ballot. Petitioner failed to establish, or even allege, the presence of grave abuse of discretion with respect to the substance of the assailed Resolutions. Petitioners silent stance on this point is an implied waiver of whatever infirmities or errors of law against the substantive aspect of the assailed Resolutions, for the Court abhors a piecemeal approach in the presentation of arguments and the adjudication thereof. WHEREFORE, the petition is DISMISSED for lack of merit. The July 17, 2008 Resolution and the January 26, 2009 Resolution of the Commission on Elections are AFFIRMED. SO ORDERED.
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Code of the Philippines (B.P. 881) and Section 7 of the COMELEC Resolution 1566, to wit: G.R. No. 155618 March 26, 2003 xxx xxx xxx.

EDGAR Y. SANTOS, petitioner, vs. COMMISSION ON ELECTIONS (FIRST DIVISION) and PEDRO Q. PANULAYA, respondents. YNARES-SANTIAGO, J.: Petitioner Edgar Y. Santos and respondent Pedro Q. Panulaya were both candidates for Mayor of the Municipality of Balingoan, Misamis Oriental in the May 14, 2001 elections. On May 16, 2001, after the votes were counted and canvassed, the Municipal Board of Canvassers proclaimed respondent Panulaya as the duly elected Mayor. Petitioner filed an election protest before the Regional Trial Court of Misamis Oriental, Branch 26, which was docketed as SPL Election Protest No. 1-M(2001). After trial and revision of the ballots, the trial court found that petitioner garnered 2,181 votes while respondent received only 2,105. Hence, on April 2, 2002, it rendered judgment as follows: WHEREFORE, judgment is hereby rendered declaring and proclaiming protestant/petitioner Edgar Y. Santos as the duly elected Municipal Mayor of Balingoan, Misamis Oriental, in the mayoralty elections held on May 14, 2001 with the plurality of Seventy Six (76) votes over and above his protagonist-protestee Pedro Q. Panulaya setting aside as null and void the proclamation of protestee made by the Municipal Board of Canvassers on May 16, 2001, ordering to pay protestant/petitioner the costs and expenses that the latter incurred in this protest in accordance with Section 259 of the Omnibus Election

The Clerk of Court of this Court is hereby directed to furnish copy of the DECISION to the following: Office of the Commission on Elections (COMELEC); Office of the Commission on Audit; Office of the Department of Interior and Local Government; Office of the Sangguniang Panlalawigan of Misamis Oriental, in accordance with Section 15 of the COMELEC Resolution 1566. SO ORDERED.1 Petitioner thereafter filed a motion for execution pending appeal. Meanwhile, before the trial court could act on petitioners motion, respondent filed on April 22, 2002 with the Commission on Elections (COMELEC) a petition for certiorari, docketed as SPR No. 20-2002, assailing the decision of the trial court. 2 Likewise on April 22, 2002, respondent appealed the trial courts decision to the COMELEC, where it was docketed as EAC No. A-12-2002. The COMELEC, in SPR No. 20-2002, issued a Writ of Preliminary Injunction, which effectively enjoined the trial court from acting on petitioners motion for execution pending appeal. Subsequently, on August 19, 2002, the COMELEC dismissed SPR No. 20-2002 after finding that the trial court did not commit grave abuse of discretion in rendering the assailed judgment. Moreover, the COMELEC held that the remedy from the decision of the court a quo was to file a notice of appeal, which respondent precisely did in EAC No. A-12-2002. Hence, it directed the trial court to dispose of all pending incidents in SPL Election Protest No. 1-M(2001) with dispatch, to wit:

WHEREFORE, premises considered, the Commission (First Division) RESOLVED as it hereby RESOLVES to DISMISS the instant petition for lack of merit. ACCORDINGLY, the Writ of Preliminary Injunction issued on 16 May 2002, as well as the Order issued on 27 April 2002 by the Commission (First Division), are hereby set aside and lifted, respectively. The Court a quo is hereby directed to dispose with immediate dispatch all pending incidents in SPL Election Case No. 1-M (2001) entitled "Edgar Y. Santos, Petitioner/Protestant versus Pedro Q. Panulaya, Respondent/Protestee." No pronouncement as to cost. SO ORDERED. (italics ours)3 Thus, on August 20, 2002, the trial court issued an Order as follows: WHEREFORE, premises considered, this Court hereby upholds and approves the Motion for Execution Pending Appeal. Further, finding good reasons therefor, the Court hereby directs and orders the immediate execution of the Decision promulgated on April 18, 2002, and as prayed for install protestant/petitioner EDGAR Y. SANTOS as the duly elected Mayor of Balingoan, Misamis Oriental, to take his oath of office and assume the functions and duties of Mayor after he shall have filed a bond of One Hundred Thousand Pesos (P100,000.00). SO ORDERED.4 After petitioner posted the required bond, the trial court issued the Writ of Execution,5 thereby installing petitioner as Municipal Mayor of Balingoan, Misamis Oriental. Accordingly, petitioner

took his oath of office and thereafter assumed the duties and functions of his office. On August 21, 2002, respondent filed with the COMELEC a motion for reconsideration of the dismissal of his petition in SPR No. 20-2002.6 After five days, or on August 26, 2002, he filed a supplemental petition in SPR No. 20-2002,7 wherein he prayed: WHEREFORE, foregoing premises considered, petitioner [herein respondent] respectfully prays unto this Honorable Commission that the following Orders of the public respondent: 1. Resolution dated 20 August 2002; 2. Order dated 20 August 2002; 3. Writ of execution dated 21 August 2002; Be nullified and set aside. It is further prayed that in the event that the public respondent has carried out its Order of ousting petitioner [herein respondent] from his position as Mayor of Balingoan, Misamis Oriental, that the same be nullified and considered of no legal effect. It is likewise prayed that a STATUS QUO ANTE ORDER be issued by the Honorable Commission in order to reinstate the petitioner to his rightful position as Mayor of Balingoan, Misamis Oriental. Other reliefs, just and equitable are likewise prayed for. 8 Barely two days later, on August 28, 2002, and while his motion for reconsideration and supplemental petition in SPR No. 20-2002 were pending, respondent filed another petition with the COMELEC, docketed as SPR No. 37-2002. 9 The petition
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contained the same prayer as that in the supplemental petition filed in SPR 20-2002, viz: WHEREFORE, foregoing premises considered, petitioner [herein respondent] respectfully prays unto this Honorable Commission that immediately upon the filing of the herein petition, the following Orders of the public respondent: 1. Resolution dated 20 August 2002; 2. Order dated 20 August 2002; 3. Writ of execution dated 21 August 2002 ; Be nullified and set aside. Pending trial and final judgment, and soon after the issuance, but during the effectivity of the Temporary Restraining Order, a Writ of Preliminary Injunction be issued prohibiting, restraining and/or enjoining the public respondent from further implementing the highly unjust, irregular and oppressive Orders above-quoted; It is further prayed that in the event that the public respondent has carried out its Order of ousting petitioner [herein respondent] from his position as Mayor of Balingoan, Misamis Oriental, that the same be nullified and considered of no legal effect. It is likewise prayed that a STATUS QUO ANTE ORDER be issued by the Honorable Commission in order to reinstate the petitioner to his rightful position as Mayor of Balingoan, Misamis Oriental. Upon due notice and hearing, judgment be rendered in favor of the petitioner [herein respondent] and against the respondent [herein petitioner] as follows:

1. Making the Writ of Preliminary Prohibitory Injunction permanent; 2. Declaring Resolution dated 20 August 2002, Order dated 20 August 2002, and Writ of Execution dated 21 August 2002; as null and void for being highly unjust, irregular and oppressively prepared in utter violation of the Constitutional provisions on equal protection of the laws and due process, and for having been rendered with grave abuse of discretion amounting to lack or excess of jurisdiction. 3. A writ of Prohibition be issued specifically commanding public respondent to cease and desist from further implementing the highly unjust, irregular and oppressive Orders above-mentioned are concerned (sic); and 4. Ordering the respondents to pay the costs of suit. Such other reliefs and remedies, as are just and equitable in the premises, are likewise prayed for.10 On September 3, 2002, the COMELEC issued the assailed Order directing the parties to maintain the status quo ante and enjoining petitioner from assuming the functions of Mayor. Pertinent portion of the Order reads: In the interest of justice and so as not to render moot and academic the issues raised in the petition, the Commission (First Division) hereby directs the parties to maintain the status quo ante, which is the condition prevailing before the issuance and implementation of the questioned Order of the court a quo dated August 20, 2002 and the Writ of Execution issued pursuant thereto
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dated August 21, 2002, in SPL. ELECTION CASE NO. 1M (2001) entitled "EDGAR Y. SANTOS versus PEDRO Q. PANULAYA." Accordingly, effective immediately, private respondent EDGAR Y. SANTOS is hereby ordered to cease and desist from assuming the duties and functions of the office of Mayor of Balingoan, Misamis Oriental until further orders from this Commission. 11 Petitioner filed a motion for reconsideration of the above Order. However, the COMELEC First Division did not refer the said motion to the COMELEC En Banc. Hence, petitioner, citing our ruling in Kho v. COMELEC,12brought the instant special civil action for certiorari with this Court. Meanwhile, on September 9, 2002, petitioner filed an "Omnibus Motion (1) To Dissolve The Status Quo Order As It Was Based On An Unverified And Dismissed Petition With Pending Motion For Reconsideration; And (2) To Refer This Motion To The Commission En Banc Under Section 2, Rule 3 of the COMELEC Rules of Procedure."13 On October 14, 2002, the COMELEC issued a Resolution in SPR No. 37-2002, the dispositive portion of which states: WHEREFORE, premises considered, the Petition is hereby GRANTED. Accordingly, the August 20, 2002 Resolution of the respondent judge granting the Motion for Execution Pending Appeal as well as his Order also dated August 20, 2002 directing the issuance of the Writ of Execution and his Writ of Execution dated August 21, 2002 are hereby set aside. Private Respondent Edgar Y. Santos is enjoined from assuming the function of mayor of Balingoan, Misamis Oriental until the final determination of the election appeal case. This resolution shall be immediately executory.

The Department of Interior and Local Government (DILG) is hereby requested to assist in the peaceful and orderly implementation of this Resolution. SO ORDERED.14 The petition is impressed with merit. It is at once apparent from the records, as shown above, that respondent was guilty of forum-shopping when he instituted SPR No. 37-2002 with the COMELEC. Forum-shopping is an act of a party against whom an adverse judgment or order has been rendered in one forum of seeking and possibly getting a favorable opinion in another forum, other than by appeal or special civil action for certiorari. It may also be the institution of two or more actions or proceedings grounded on the same cause on the supposition that one or the other court would make a favorable disposition. For it to exist, there should be (a) identity of parties, or at least such parties as would represent the same interest in both actions; (b) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (c) identity of the two preceding particulars such that any judgment rendered in the other action will, regardless of which party is successful, amount to res judicata in the action under consideration.15 In the case at bar, respondent obtained an adverse decision when his petition in SPR No. 20-2002 was dismissed by the COMELEC. He thereafter filed a motion for reconsideration and a supplemental petition, praying for the nullification of the trial courts order for the execution of its decision pending appeal. Two days after filing the supplemental petition, and while the same was very much pending before the COMELEC, he filed a wholly separate petition for certiorari, docketed as SPR No. 37-2002, wherein he pleaded the same reliefs prayed for in the supplemental petition. This is plainly evident from the respective prayers in the supplemental petition and the petition for certiorari as reproduced hereinabove. In doing so, respondent, before allowing the COMELEC to fully resolve the incidents in SPR No.
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20-2002, both of which were at his own instance, sought to increase his chances of securing a favorable decision in another petition. He filed the second petition on the supposition that the COMELEC might look with favor upon his reliefs. Forum-shopping is considered a pernicious evil; it adversely affects the efficient administration of justice since it clogs the court dockets, unduly burdens the financial and human resources of the judiciary, and trifles with and mocks judicial processes.16 The most important factor in determining the existence of forum shopping is the vexation caused the courts and parties-litigants by a party who asks different courts to rule on the same or related causes or grant the same or substantially the same reliefs.17 Considering that respondent was indubitably guilty of forumshopping when he filed SPR No. 37-2002, his petition should have been dismissed outright by the COMELEC.18 Willful and deliberate forum-shopping is a ground for summary dismissal of the case, and constitutes direct contempt of court. 19 The petition for certiorari in SPR No. 37-2002 assailed the trial courts orders for the execution of its decision pending appeal. The grant of execution pending appeal was well within the discretionary powers of the trial court. In order to obtain the annulment of said orders in a petition for certiorari, it must first be proved that the trial court gravely abused its discretion. He should show not merely a reversible error committed by the trial court, but a grave abuse of discretion amounting to lack or excess of jurisdiction. "Grave abuse of discretion" implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or 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. Mere abuse of discretion is not enough.20

We find that no grave abuse of discretion was committed by the trial court. In its order granting execution pending appeal, it held: It is of judicial notice that for the public official elected last May 14, 2001 elections only a short period is left. Relative to this Courts jurisdiction over the instant case, the settled rule that the mere filing of the notice of appeal does not divest the trial court of its jurisdiction over the case and to resolve pending incidents, i.e., motion for execution pending appeal (Asmala vs. COMELEC, 289 SCRA 745) need not be overemphasized.21 However, the COMELEC set aside the aforesaid order, saying that shortness of term alone is not a good reason for execution of a judgment pending appeal. We disagree. While it was indeed held that shortness of the remaining term of office and posting a bond are not good reasons, we clearly stated in Fermo v. COMELEC22 that: A valid exercise of the discretion to allow execution pending appeal requires that it should be based "upon good reasons to be stated in a special order." The following constitute "good reasons" and a combination of two or more of them will suffice to grant execution pending appeal: (1.) public interest involved or 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 (italics supplied).23 The decision of the trial court in Election Protest No. 1-M(2001) was rendered on April 2, 2002, or after almost one year of trial and revision of the questioned ballots. It found petitioner as the candidate with the plurality of votes. Respondent appealed the said decision to the COMELEC. In the meantime, the three-year term of the Office of the Mayor continued to run. The will of the
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electorate, as determined by the trial court in the election protest, had to be respected and given meaning. The Municipality of Balingoan, Misamis Oriental, needed the services of a mayor even while the election protest was pending, and it had to be the candidate judicially determined to have been chosen by the people. Between the determination by the trial court of who of the candidates won the elections and the finding of the Board of Canvassers as to whom to proclaim, it is the courts decision that should prevail. This was sufficiently explained in the case of Ramas v. COMELEC24 in this wise: All that was required for a valid exercise of the discretion to allow execution pending appeal was that the immediate execution should be based "upon good reasons to be stated in a special order." The rationale why such execution is allowed in election cases is, as stated in Gahol v. Riodique,25 "to give as much recognition to the worth of a trial judges decision as that which is initially ascribed by the law to the proclamation by the board of canvassers." Thus: Why should the proclamation by the board of canvassers suffice as basis of the right to assume office, subject to future contingencies attendant to a protest, and not the decision of a court of justice? Indeed, when it is considered that the board of canvassers is composed of persons who are less technically prepared to make an accurate appreciation of the ballots, apart from their being more apt to yield to extraneous considerations, and that the board must act summarily, practically racing against time, while, on the other hand, the judge has benefit of all the evidence the parties can offer and of admittedly better technical preparation and background, apart from his being allowed ample time for conscientious study and

mature deliberation before rendering judgment, one cannot but perceive the wisdom of allowing the immediate execution of decisions in election cases adverse to the protestees, notwithstanding the perfection and pendency of appeals therefrom, as long as there are, in the sound discretion of the court, good reasons therefor. To deprive trial courts of their discretion to grant execution pending appeal would, in the words of Tobon Uy v. COMELEC,26 bring back the ghost of the "grab-the-proclamationprolong the protest" techniques so often resorted to by devious politicians in the past in their efforts to perpetuate their hold to an elective office. This would, as a consequence, lay to waste the will of the electorate. 27 Thus, the COMELEC committed grave abuse of discretion in giving due course, instead of dismissing outright, the petition in SPR No. 37-2002 despite the clear showing that respondent was guilty of forum-shopping; and in setting aside the trial courts order granting execution pending appeal. WHEREFORE, in view of the foregoing, the instant petition is GRANTED. The Order dated September 3, 2002 and the Resolution dated October 14, 2002 of the Commission on Elections in SPR No. 37-2002 are ANNULLED and SET ASIDE and the said case is ordered DISMISSED on the ground of forumshopping. The Order dated August 20, 2002 of the Regional Trial Court of Misamis Oriental, Branch 26, granting the execution pending appeal of its decision in Election Protest No. 1-M(2001), and the Writ of Execution dated August 21, 2002, are REINSTATED. The full enforcement of the said Writ must forthwith be made. The court of origin shall transmit immediately to the Commission on Elections the records of SPL Election Case No. 1-M(2001), and the Commission on Elections shall dispose of the appeal in EAC No. A-12-2002 with deliberate dispatch.
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This Decision shall be immediately executory. Costs against private respondent. SO ORDERED.

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