G.R. No.

126221 April 28, 1998

HALIM ASMALA, petitioner,

vs.
COMMISSION ON ELECTIONS and HADJI HUSNI MOHAMMAD, respondents.

FACTS:

In May 1995 elections, eight candidates vied for the position of Vice Mayor for the Municipality of
Tuburan, Province of Basilan. Hadji Husni Mohammad was proclaimed and later assumed office as Vice
Mayor of Tuburan. On May 22, 1995, Halim Asmala filed an election protest with the Regional Trial Court
of Basilan, alleging electoral fraud and other irregularities tainted the election and canvass of votes. On
February 14, 1996, the trial court rendered its decision in favor of Halim Asmala and adjudging petitioner
the duly elected Vice Mayor of Tuburan, Province of Basilan.

On February 26, 1996, after the promulgation of the aforementioned decision, private respondent Hadji
Husni Mohammad filed his Notice of Appeal with the same Regional Trial Court. On the following day,
petitioner presented a Motion for Execution Pending Appeal. Thereto, private respondent Mohammad
interposed his opposition, theorizing that his perfected appeal divested the trial court of jurisdiction to
resolve the Motion for Execution Pending Appeal.

On March 28, 1996, after due hearing, the trial court came out with a Special Order, granting the Motion
for Execution Pending Appeal, and instructing the sheriff concerned to install petitioner as Vice Mayor
after the latter's proclamation by the Commission on Elections, and taking oath of office. Private
respondent filed a Petition for Certiorari with the Commission on Elections, theorizing that the assailed
Order of March 28, 1996 of the trial court was issued without or in excess of jurisdiction, considering that
his appeal was perfected by the mere filing of the Notice of Appeal and payment of the necessary appeal
fees.

COMELEC granted the petition of private respondent and set aside the questioned Order, dated March
28, 1996, on the ground of lack of jurisdiction of the respondent trial court to issue the same.

Hence, petitioner filed this instant petition for certiorari.

ISSUE:

Whether or not the COMELEC exceeded its jurisdiction and/or committed grave abuse of discretion
amounting to lack of jurisdiction in setting aside the Special Order issued on March 28, 1996 by the
Regional Trial Court of Basilan for the immediate execution pending appeal of the decision in favor of the
herein petitioner.

HELD:

Yes. This Court held in its long line of cases that "any motion for execution pending appeal must
be filed before the period for the perfection of the appeal. Pursuant to Section 23 of the Interim Rules
Implementing B.P. Blg. 129, which is deemed of supplementary effect to the COMELEC Rules of
Procedure, in accordance with section 1, Rule 41 of the latter, an appeal would be deemed perfected on
the last day for any of the parties to appeal. Upon perfection of the appeal, the trial court was divested of
its jurisdiction over the case. Since the motion for execution pending appeal was filed . . . after the
perfection of the appeal, the trial court could no longer validly act thereon."
Thus, when petitioner filed his Motion for Execution pending appeal on February 27, 1996, the trial court
still had jurisdiction over the case because as to him (petitioner), appeal was not yet perfected. In such a
scenario below, the trial court had undoubtedly the jurisdiction and competence to act on petitioner's
Motion for Execution Pending Appeal, since it had not lost jurisdiction over the case, at the time of filing of
subject motion.

Therefore, the questioned Resolution issued by respondent Commission on Elections is SET ASIDE and
the order of execution pending appeal, issued in favor of the herein petitioner by the Regional Trial Court
of the Province of Basilan, is hereby reinstated and upheld.

G.R. No. 104960 September 14, 1993

PHILIP G. ROMUALDEZ, petitioner,

vs.
REGIONAL TRIAL COURT, BRANCH 7, TACLOBAN CITY, DONATO ADVINCULA, BOARD
OF ELECTION INSPECTORS, PRECINCT No. 9, MALBOG, TOLOSA, LEYTE, and the
MUNICIPAL REGISTRAR COMELEC, TOLOSA, LEYTE, respondents.

FACTS:

Petitioner Philip Romualdez is a natural born citizen of the Philippines who is known to
beaffiliated with the Marcos Administration during the eventful EDSA 1 Revolution. Sometime in
the early part of 1980, the petitioner, in consonance with his decision to establish his legal
residence at Barangay Malbog, Tolosa, Leyte, caused the construction of his residential house
therein. He soon thereafter also served as Barangay Captain of the place. In the 1984 Batasan
Election and 1986 "snap" Presidential Election, Romualdez acted as the Campaign Manager of
the Kilusang Bagong Lipunan (KBL) in Leyte where he voted.

During the height of the revolution against the administration, petitioner Romualdez, for one,
together with his immediate family, left the Philippines and sought "asylum" in the United States
which the United States (U.S.) government granted. In the early part of 1987, Romualdez
attempted to come back to the Philippines to run for a congressional seat in Leyte but the flight
was somehow aborted. On 25 September 1991, Romualdez received a letter from District
Director of the U.S. Immigration and Naturalization Service, informing him that he should depart
from the U.S. at his expense on or before 23 August 1992. Upon receipt of the letter,
Romualdez departed from the U.S. for the Philippines, arriving on December 1991 apparently
without any government document.

During the registration of voters conducted by the Commission on Election ("COMELEC") for
the Synchronized National and Local Election scheduled for 11 May 1992, petitioner registered
himself anew as a voter of Malbog, Tolosa, Leyte. Herein private respondent Donato Advincula
filed a petition with the Municipal Trial Court of Tolosa, Leyte, praying that Romualdez be
excluded from the list of voters under BP 881 and RA 7166. Petitioner filed an answer,
contending that he has been a resident of Tolosa, Leyte, since the early 1980's, and that he has
not abandoned his said residence by his physical absence therefrom during the period from
1986 up to the third week of December 1991.

ISSUE:
Whether or not petitioner have voluntarily left the country and abandoned his residence in
Malbog, Tolosa, Leyte, so as to disqualify him as a voter under the law.

HELD:

NO. In election cases, the Court treats domicile and residence as synonymous terms,
thus: "(t)he term "residence" as used in the election law is synonymous with "domicile", which
imports not only an intention to reside in a fixed place but also personal presence in that place,
coupled with conduct indicative of such intention." "Domicile" denotes a fixed permanent
residence to which when absent for business or pleasure, or for like reasons, one intends to
return. That residence, in the case of the petitioner, was established during the early 1980's to
be at Barangay Malbog, Tolosa, Leyte. Residence thus acquired, however, may be lost by
adopting another choice of domicile. In order, in turn, to acquire a new domicile by choice, there
must concur (1) residence or bodily presence in the new locality, (2) an intention to remain
there, and (3) an intention to abandon the old domicile. In other words, there must basically be
animus manendi coupled with animus non revertendi. The purpose to remain in or at the
domicile of choice must be for an indefinite period of time; the change of residence must be
voluntary; and the residence at the place chosen for the new domicile must be actual.

Certainly, petitioner’s sudden departure from the country cannot be described as "voluntary," or
as "abandonment of residence" at least in the context that these terms are used in applying the
concept of "domicile by choice."