G.R. No. 186201 [Part 1]

EN BANC

CARMELINDA C. BARRO,                               Petitioner, -   versus – THE COMMISSION ON ELECTIONS (FIRST DIVISION); HON. DELIA P. NOEL-BERTULFO, in her capacity as Presiding Judge of the Municipal Trial Court, Palompon, Leyte; and ELPEDIO P. CONTINEDAS, JR.,                          Respondents.

G.R. No. 186201 Present: PUNO, C.J., * QUISUMBING,** CARPIO, CORONA, CARPIO MORALES, CHICO-NAZARIO,** VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, and ABAD, JJ. Promulgated:    October 9, 2009

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DECISION

PERALTA, J.:     

This is a petition for certiorari^[1] alleging that the First Division of the Commission on Elections (COMELEC) committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the Orders dated November 25, 2008 and January 9, 2009.  The Order^[2]  dated November 25, 2008 dismissed petitioner’s appeal for failure to pay the appeal fee prescribed by the COMELEC Rules of Procedure within the reglementary period.  The Order^[3] dated January 9, 2009 denied petitioner’s motion for reconsideration.

The facts are as follows:

Petitioner Carmelinda C. Barro and private respondent Elpedio P. Continedas, Jr. were candidates for Punong Barangay of Barangay Plaridel, Palompon, Leyte during the October 29, 2007 synchronized Barangay and Sangguniang Kabataan Elections.  Petitioner garnered 150 votes, while respondent garnered 149 votes.  The Barangay Board of Canvassers proclaimed petitioner as the duly elected Punong Barangay, winning by a margin of only one vote.

On November 5, 2007, private respondent filed an election protest before the Municipal Trial Court of Palompon, Leyte (trial court), impugning the result of the canvass in two precincts of the barangay.

After the revision of ballots, the trial court found that petitioner and respondent both garnered 151 votes.

In its Decision^[4] dated May 5, 2008, the trial court held:                                                       

In sum, the Protestant is credited with three (3) votes and the Protestee with two (2) votes of the contested votes.

The three (3) credited votes added to the 148 votes of the protestant equals 151 votes. The two (2) credited votes added to the 149 votes of the protestee equals 151 votes. The protestant and the protestee, therefore, received the same number of votes.

It appearing that the Protestant and the Protestee received the same number of votes for the position of Barangay Chairman of Brgy. Plaridel, Palompon, Leyte, there shall be a drawing of lots and the party favored by luck shall be proclaimed as the duly-elected Barangay Chairman of Barangay Plaridel, Palompon, Leyte.^[5] 

On May 13, 2008, petitioner filed a Notice of Appeal^[6] with the trial court and she stated in her petition that she also paid the appeal fee  required 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).^[7]  Thereafter, the records of the case were forwarded to the COMELEC.

On November 25, 2008, the First Division of the COMELEC issued an Order dismissing petitioner’s appeal for failure to pay the appeal fee, thus:

Pursuant to Sections 3 and 4, Rule 40 of the COMELEC Rules of Procedure which provide for the payment of appeal fee in the amount ofP3,000.00 within the period to file the notice of appeal, and Section 9 (a), Rule 22 of the same Rules, which provides that failure to pay the correct appeal fee is a ground for the dismissal of the appeal, the Commission (First Division) RESOLVED as it hereby RESOLVES to DISMISS the instant appeal for Protestee-AppeIlant's failure to pay the appeal fee as prescribed by the Comelec Rules of Procedure within the five (5)-day reglementary period.^[8]

On December 15, 2008, petitioner filed a Motion for Reconsideration^[9] of the Order dated November 25, 2008.  On the same date, she also posted Postal Money Order Nos. A0820039317; B0810040373 and J1350301774 in the total sum of P3,200.00 payable to the Cash Division  of the COMELEC  to cover the appeal fee.

Petitioner’s motion for reconsideration was denied by the First Division of the COMELEC in its Order dated January 9, 2009, thus:

Protestee-Appellant's "Motion for Reconsideration" filed thru registered mail on 15 December 2008 and received on 23 December 2008, seeking reconsideration of the Commission's (First Division) Order dated 25 November 2008, is hereby DENIED for failure of the movant to pay the necessary motion fees under Sec. 7 (f), Rule 40 of the Comelec Rules of Procedure as amended by Comelec Resolution No. 02-0130. The Judicial Records Division-ECAD, this Commission, is hereby directed to return to the protestee-appellant the Postal Money Order Nos. A0820039317 in the amount of two thousand pesos (P2,000.00); B0810040373 in the amount of one thousand pesos (P1,000.00) and J1350301774 in the amount of two hundred pesos (P200.00) representing his belated payment of appeal fee.^[10]

 On February 19, 2009, petitioner filed this petition raising the following issues:

1.      WHETHER OR NOT THE [FIRST DIVISION OF THE COMELEC] COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN DISMISSING THE APPEAL.

2.      WHETHER OR NOT THE [FIRST DIVISION OF THE COMELEC] COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN DENYING THE MOTION FOR RECONSIDERATION FILED BY PETITIONER.

3.      WHETHER OR NOT THE [FIRST DIVISION OF THE COMELEC] COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ACTING ON THE MOTION FOR RECONSIDERATION WITHOUT ELEVATING THE SAME TO THE COMELEC EN BANC.^[11]

The first issue is whether or not the First Division of the COMELEC gravely abused its discretion in dismissing petitioner’s appeal.

Grave abuse of discretion implies a capricious and whimsical exercise of judgment amounting to lack of jurisdiction or an arbitrary and despotic exercise of power because of passion or personal hostility.^[12]  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.^[13] 

The Court notes that in petitioner’s Notice of Appeal,^[14] she manifested payment of the appeal fees and other lawful fees required for the appeal per Official Receipt Nos. 7719538 and 7719488.  However, the receipts were not attached to the record of the case.  In her Petition, petitioner stated that when she filed her Notice of Appeal  on May 13, 2008, she also paid  the appeal fee required  under Section 9, Rule 14 of  A.M. No. 07-4-15-SC.^[15]  In her  Reply,^[16] petitioner also stated that she relied on the provision of Sections 8 and 9,  Rule 14 of  A.M. No. 07-4-15-SC,^[17]  which took effect on May 15, 2007, and that she believed in good faith that the said  new Rules of Procedure repealed the COMELEC Rules.  

Based on petitioner’s pleadings and the fact that the trial court gave due course to petitioner’s appeal,  it may be presumed that petitioner paid the appeal fee of P1,000.00 to the trial court simultaneously with the filing of the Notice of Appeal, despite absence of the receipt showing payment of the appeal fee of P1,000.00.

Petitioner contends in her Reply^[18] that the recent case of Jerry B. Aguilar v. Commission on Elections, et al.,^[19]  applies to her case.  The Court agrees with petitioner.

In Aguilar, petitioner Aguilar won as barangay chairman in the October 29, 2007 barangay elections.  An election protest was filed against him with the municipal trial court.  The municipal trial court found that Aguilar lost by a margin of one vote; hence, his proclamation was annulled.  On April 21, 2008, Aguilar filed a Notice of Appeal and paid the appeal fee of P1,000.00 to the municipal trial court  in accordance with A.M. No. 07-4-15-SC.  The First Division of the COMELEC dismissed his appeal pursuant to Section 9 (a), Rule 22 of the COMELEC Rules of Procedure for non-payment of the appeal fee of P3,000.00 as required in Sections 3 and 4, Rule 40 of the same Rules.  His first and second motions for reconsideration were denied by the First Division of the COMELEC.  He filed a petition for certiorari with this Court, which held:   

x x x x

With the promulgation of A.M. No. 07-4-15-SC, the previous rule that the appeal is perfected only upon the full payment of the appeal fee, now pegged at P3,200.00, to the COMELEC Cash Division within the period to appeal, as stated in the COMELEC Rules of Procedure, as amended,  no longer applies.

It thus became necessary for the COMELEC to clarify the procedural rules on the payment of appeal fees. For this purpose, the COMELEC issued on July 15, 2008, Resolution No. 8486, which the Court takes judicial notice of.

x x x x

x x x The appeal to the COMELEC of the trial court's 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 five-day 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 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.

Accordingly, in the instant case, the COMELEC First Division, may dismiss petitioner's appeal, as it in fact did, for petitioner's failure to pay the P3,200.00 appeal fee.

Be that as it may, the Court still finds that the COMELEC First Division gravely abused its discretion in issuing the order dismissing petitioner's appeal. The Court notes that the notice of appeal and the P1,000.00 appeal fee were, respectively, filed and paid with the MTC of Kapatagan, Lanao del Norte on April 21, 2008. On that date, the petitioner's appeal was deemed perfected. COMELEC issued Resolution No. 8486 clarifying the rule on the payment of appeal fees only on July 15, 2008, or almost three months after the appeal was perfected. Yet, on July 31, 2008, or barely two weeks after the issuance of Resolution No. 8486, the COMELEC First Division dismissed petitioner's appeal for non-payment to the COMELEC Cash Division of the additional P3,200.00 appeal fee.

Considering that petitioner filed his appeal months before the clarificatory resolution on appeal fees, petitioner's appeal should not be unjustly prejudiced by COMELEC Resolution No. 8486. Fairness and prudence dictate that the COMELEC First Division should have first directed petitioner to pay the additional appeal fee in accordance with the clarificatory resolution, and if the latter should refuse to comply, then, and only then, dismiss the appeal. Instead, the COMELEC First Division hastily dismissed the appeal on the strength of the recently promulgated clarificatory resolution — which had taken effect only a few days earlier. This unseemly haste is an invitation to outrage. 

In this case, the appeal to the COMELEC was perfected when petitioner filed her Notice of Appeal and paid the appeal fee ofP1,000.00 on May 13, 2008, which was  two months before the COMELEC issued Resolution No. 8486,^[20] clarifying the rule on the payment of appeal fees.  As stated in Aguilar, fairness and prudence dictate that the First Division of the COMELEC should have first directed petitioner to pay the additional appeal fee of P3,200.00 in accordance with the clarificatory resolution; and if  petitioner refused to comply, only then should the  appeal be dismissed.  The First Division of the COMELEC should have been more cautious in dismissing petitioner’s appeal on the mere technicality of non-payment of the additional appeal fee of P3,200.00 given the public interest involved in election cases.^[21]

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