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G.R. No. 166046 March 23, 2006 MARGARITO C. SULIGUIN, Petitioner, vs.

THE COMMISSION ON ELECTIONS, THE MUNICIPAL BOARD OF CANVASSERS OF NAGCARLAN, LAGUNA, and ECELSON C. SUMAGUE, Respondents. DECISION CALLEJO, SR., J.: This is a Petition for Certiorari under Rule 65 of the Revised Rules of Court seeking to reverse the Resolution1 of the Commission on Elections (Comelec) En Banc in SPC No. 04-209 dated November 18, 2004 which denied petitioner Margarito Suliguins motion for reconsideration of the July 21, 2004 Resolution2 of the Comelecs First Division. The Comelec nullified his proclamation as the 8th Sangguniang Bayan member of Nagcarlan, Laguna. The antecedents are as follows: Petitioner Margarito Suliguin was one of the candidates for the Sangguniang Bayan of Nagcarlan, Laguna during the May 10, 2004 elections. At around 6:00 p.m. on said date, respondent Municipal Board of Canvassers (MBOC) convened to canvass the votes for all the candidates. Petitioner received 6,605 votes while respondent Ecelson Sumague received 6,647 votes. However, in the Statement of Votes (SOV) covering Precincts 1A to 19A, Sumague appears to have received only 644 votes when, in fact, he received 844 votes. The MBOC failed to notice the discrepancy and proclaimed the winning candidates at around 7:00 p.m. of May 13, 2004. Petitioner was proclaimed as the 8th Sangguniang Bayan member of Nagcarlan, Laguna, garnering a total of 6,605 votes.3 Thereafter, Sumague requested for a recomputation of the votes received by him and Suliguin in a Letter4 dated May 15, 2004, it appearing that there was a mistake in adding the figures in the Certificate of Canvass of votes. He pointed out that he officially garnered 6,647 votes, as against petitioners 6,605 votes. The MBOC summoned petitioner and respondent Sumague to a conference. Upon review, the MBOC discovered that it had, indeed, failed to credit respondent Sumague his 200 votes from Precincts 1A to 19A, and that with his 6,647 votes, he should have been proclaimed as the 8th Sangguniang Bayan member of Nagcarlan, Laguna, instead of petitioner Suliguin. On May 26, 2004, the MBOC filed before the Comelec a "Petition to Correct Entries Made in the Statement of Votes" for Councilor. The error was attributed to extreme physical and mental fatigue which the members of the board experienced during the election and the canvassing of votes. In the meantime, on June 9, 2004, petitioner took his oath of office before Judge Renato B. Bercades. On July 21, 2004, the Comelec (First Division) issued a Resolution6 granting the petition of the MBOC. The Commission nullified the proclamation of petitioner Suliguin as the 8th Sangguniang Bayan member of Nagcarlan, Laguna during the May 10, 2004 National and Local Elections "for being based on an erroneous computation of votes." It then ordered the MBOC of Nagcarlan, Laguna to reconvene and effect the necessary corrections in the SOV, and forthwith proclaim Sumague as the 8th duly elected Sangguniang Bayan member of Nagcarlan, Laguna.7 Petitioner moved for the reconsideration of the resolution but the Comelec En Banc denied the motion on November 18, 2004; hence, this petition. Petitioner alleges that respondent Commission committed grave abuse of discretion amounting to lack or excess of jurisdiction in ruling against him. In support of his petition, he alleges that: 4.1 THE "PETITION TO CORRECT ENTRIES MADE IN THE STATEMENT OF VOTES FOR COUNCILOR, NAGCARLAN, LAGUNA" WAS UNDISPUTEDLY FILED OUT OF TIME, and 4.2 "THE PETITION TO CORRECT ENTRIES MADE IN THE STATEMENT OF VOTES FOR COUNCILOR, NAGCARLAN, LAGUNA" WAS FILED BY THE MUNICIPAL BOARD OF CANVASSERS IN DEFIANCE OF EXISTING COMELEC RULES AND REGULATIONS AND WAS OBVIOUSLY BIAS IN

FAVOR OF PRIVATE RESPONDENT CANDICATE ECELSON C. SUMAGUE.8 Petitioner argues that pursuant to Sections 35,9 36(c) and (f)10 of Comelec Resolution No. 6669 (General Instructions for Municipal/City/Provincial and District Boards of Canvassers in Connection with the May 10, 2004 Elections), the MBOC should not have entertained the letter-request of respondent Sumague as it was filed only on May 17, 2004, or four (4) days after the canvassing of votes was terminated and after he (petitioner) was proclaimed winner as the 8th Sangguniang Bayan member of Nagcarlan, Laguna. Furthermore, respondent Sumague never entered any objection during the proceedings of the canvassing of votes. The MBOC itself filed the "Petition to Correct Entries Made in the Statement of Votes" before the Comelec only on May 26, 2004, 13 days after the canvassing of votes was terminated. Petitioner maintains that the Comelec should have denied the petition, since according to the Revised Comelec Rules, it should have been filed not later than five (5) days following the date of the proclamation. Petitioner likewise questions the personality of the MBOC itself to file the petition before the Comelec. He further argues that upon the proclamation of the winning candidates in the election, the MBOC adjourns sine die and becomes functus officio. The issue is whether or not respondent Comelec erred in granting the petition of the MBOC to nullify petitioners proclamation as the 8th member of the Sangguniang Bayan in Nagcarlan, Laguna. The petition is bereft of merit. In an election case, the Comelec is mandated to ascertain by all means within its command who the real candidate elected by the electorate is. The Court frowns upon any interpretation of the law or the rules that would hinder in any way not only the free and intelligent casting of the votes in an election but also the correct ascertainment of the results.11 In the case at bar, the simple mathematical procedure of adding the total number of votes garnered by respondent Sumague as appearing in the Statement of Votes submitted to the Comelec would readily reveal the result that he has forty-two (42) votes more than petitioner. Such result would, in effect, dislodge petitioner from said post, and entitle respondent Sumague to occupy the eighth and last seat of the Sangguniang Bayan of Nagcarlan, Laguna. Petitioner himself never disputed the discrepancy in the total number of votes garnered by respondent Sumague, and instead questioned the personality of the MBOC to file the petition and insisted that such petition was not filed on time. Sections 312 and 413 of Rule 1 of the Comelec Rules of Procedure explicitly provide that such rules may be "liberally construed" in the interest of justice. Indeed, the Comelec has the discretion to liberally construe its rules and, at the same time, suspend the rules or any portion thereof in the interest of justice.14 Disputes in the outcome of elections involve public interest; as such, technicalities and procedural barriers should not be allowed to stand if they constitute an obstacle to the determination of the true will of the electorate in the choice of their elective officials. Laws governing such disputes must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections.15 What is involved in the present petition is the correction of a manifest error in reflecting the actual total number of votes for a particular candidate. Section 32, subparagraph 5 of Comelec Resolution No. 6669 includes mistake in the addition of the votes of any candidate as a manifest error.16 As correctly cited by the Comelec,17 a manifest clerical error is "one that is visible to the eye or obvious to the understanding and is apparent from the papers to the eye of the appraiser and collector, and does not include an error which may, by evidence dehors the record be shown to have been committed." The MBOC sought relief from the Comelec to reflect the true winner elected by the voting public, to occupy the eighth position as member of the Sangguniang Bayan of Nagcarlan, Laguna. In Carlos v. Angeles,18 the Court had the occasion to declare: In this jurisdiction, an election means "the choice or selection of candidates to public office by popular vote" through the use of

the ballot, and the elected officials of which are determined through the will of the electorate. "An election is the embodiment of the popular will, the expression of the sovereign power of the people." "Specifically, the term election, in the context of the Constitution, may refer to the conduct of the polls, including the listing of voters, the holding of the electoral campaign, and the casting and counting of votes." The winner is the candidate who has obtained a majority or plurality of valid votes cast in the election. "Sound policy dictates that public elective offices are filled by those who receive the highest number of votes cast in the election for that office. For, in all republican forms of government the basic idea is that no one can be declared elected and no measure can de declared carried unless he or it receives a majority or plurality of the legal votes cast in the election."19 We quote, with approval, the ruling of the Comelec (First Division) granting the petition of the MBOC: A careful perusal of the records show that there was, indeed, an honest error committed by petitioner MBOC in the computation of votes for candidate Ecelson Sumague which resulted in the erroneous proclamation of respondent as one of the winners for the said office. "A manifest clerical error is one that is visible to the eye or obvious to the understanding and is apparent from the papers to the eye of the appraiser and collector, and does not include an error which may, by evidence dehors the record be shown to have been committed." The contention of respondent that the instant petition should be dismissed for being filed out of time cannot be given merit because his proclamation was flawed. It must be stressed that "a proclamation based on faulty tabulation of votes is flawed, and a petition to correct errors in tabulation under Section 7, Rule 27 of the COMELEC Rules of Procedure, even if filed out of time, may be considered, so as not to thwart the proper determination and resolution of the case on substantial grounds and to prevent a stamp of validity on a palpably void proclamation based on an erroneous tabulation of votes." Furthermore, "where the proclamation is flawed because it was based on a clerical error or mathematical mistake in the addition of votes and not through the legitimate will of the electorate, there can be no valid proclamation to speak of and the same can be challenged even after the candidate has assumed office." There is no showing that petitioner MBOC acted with manifest bias and committed a grave abuse of discretion. "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." Petitioner MBOC is merely doing its function that is mandated by law to canvass votes in the election returns submitted to it in due form, adding or compiling the votes cast for each candidate as shown in the face of such returns and eventually proclaim the winning candidates. Respondent miserably failed to prove that petitioner exhibited manifest bias thereby thwarting his chances of winning the last slot for Sangguniang Bayan Member. "Absent a strong showing to the contrary, the court must accept the presumption of regularity in the performance of official duty and strong evidence is necessary to rebut this presumption." Likewise, it cannot be said that petitioner MBOC violated the sanctity of the ballots. Unlike the Board of Election Inspectors which counts the votes from the precinct levels, the MBOC computes the votes as appeared in the election returns. Finally, a subsequent annulment of the proclamation of the respondent does not constitute a clear violation of his right. In the first place, there is no valid proclamation to speak of. He was not elected by a majority or plurality of voters. His alleged right was based on an erroneous proclamation. By any mathematical formulation, the respondent cannot be construed to have obtained such plurality of votes; otherwise, it would be sheer absurdity to proclaim a repudiated candidate as the choice of the voters. "Where a proclamation is null and void, the

proclamation is no proclamation at all and the proclaimed candidates assumption of office cannot deprive the COMELEC of the power to make such declaration a nullity." Respondent also cannot claim that he was denied of his right to due process of law since he was given the opportunity to be heard. He was duly notified by petitioner MBOC of the erroneous computation which resulted in his proclamation and was afforded the opportunity to be heard by this Commission. "The COMELEC exercises immediate supervision and control over the members of the Boards of Election Inspectors and Canvassers. Its statutory power of supervision and control includes the power to revise, reverse or set aside the action of the boards, as well as to do what boards should have done, even if questions relative thereto have not been elevated to it by an aggrieved party, for such power includes the authority to initiate motu proprio or by itself steps or actions that may be required pursuant to law."20 Petitioner posits that the Comelecs reliance in the ruling of this Court in Bince, Jr. v. Commission on Elections21 is misplaced since, unlike the present petition, petitioner therein was an affected candidate who filed his petition on time. The argument of petitioner does not persuade. The Court, in Bince, Jr. v. Commission on Elections,22 declared that: Assuming for the sake of argument that the petition was filed out of time, this incident alone will not thwart the proper determination and resolution of the instant case on substantial grounds. Adherence to a technicality that would put a stamp of validity on a palpably void proclamation, with the inevitable result of frustrating the peoples will cannot be countenanced. In Benito v. COMELEC, we categorically declared that: x x x Adjudication of cases on substantive merits and not on technicalities has been consistently observed by this Court. In the case of Juliano vs. Court of Appeals (20 SCRA 808) cited in Duremdes v. Commission on Elections (178 SCRA 746), this Court had the occasion to declare that: Well-settled is the doctrine that election contests involve public interest, and technicalities and procedural barriers should not be allowed to stand if they constitute an obstacle to the determination of the true will of the electorate in the choice of their elective officials. And also settled is the rule that laws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections (Gardiner v. Romulo, 26 Phil. 521; Galang v. Miranda, 35 Phil. 269; Jalandoni v. Sarcon, G.R. No. L-6496, January 27, 1962; Macasunding v. Macalaang, G.R. No. L-22779, March 31, 1965; Cauton v. Commission on Elections, G.R. No. L-25467, April 27, 1967). In an election case, the court has an imperative duty to ascertain by all means within its command who is the real candidate elected by the electorate. (Ibasco v. Ilao, G.R. No. L-17512, December 29, 1960). x x x (Juliano vs. Court of Appeals, supra, pp. 818-819). (Italics ours) In the later case of Rodriguez v. Commission on Elections (119 SCRA 465), this doctrine was reiterated and the Court went on to state that: Since the early case of Gardiner v. Romulo (26 Phil. 521), this Court has made it clear that it frowns upon any interpretation of the law or the rules that would hinder in any way not only the free and intelligent casting of the votes in an election but also the correct ascertainment of the results. This bent or disposition continues to the present. (Id., at p. 474). The same principle still holds true today. Technicalities of the legal rules enunciated in the election laws should not frustrate the determination of the popular will. Undoubtedly therefore, the only issue that remains unresolved is the allowance of the correction of what are purely mathematical and/or mechanical errors in the addition of the votes received by both candidates. It does not involve the opening of ballot boxes; neither does it involve the examination and/or appreciation of ballots. The correction sought by private respondent and respondent MBCs of Tayug and San Manuel is correction of manifest mistakes in mathematical addition. Certainly, this only calls for a mere clerical act of reflecting the true and correct votes received by the candidates by the MBCs involved. In this case, the

manifest errors sought to be corrected involve the proper and diligent addition of the votes in the municipalities of Tayug and San Manuel, Pangasinan.23 The Court made a similar pronouncement in Tatlonghari v. Commission on Elections,24 to wit: The argument is devoid of merit. For one thing, records indicate that respondents assumption of office was effected by a clerical error or simple mathematical mistake in the addition of votes and not through the legitimate will of the electorate. Thus, respondents proclamation was flawed right from the very beginning. Having been based on a faulty tabulation, there can be no valid proclamation to speak of insofar as respondent Castillo is concerned. As this Court once said: "x x x Time and again, this Court has given its imprimatur on the principle that Comelec is with authority to annul any canvass and proclamation which was illegally made. The fact that a candidate proclaimed has assumed office, we have said, is no bar to the exercise of such power. It, of course, may not be availed of where there has been a valid proclamation. Since private respondents petition before the Comelec is precisely directed at the annulment of the canvass and proclamation, we perceive that inquiry into this issue is within the area allocated by the Constitution and law to Comelec. xxx "We have but to reiterate the oft-cited rule that the validity of a proclamation may be challenged even after the irregularly proclaimed candidate has assumed office. xxx "It is, indeed, true that, after proclamation, the usual remedy of any party aggrieved in an election is to be found in an election protest. But that is so only on the assumption that there has been a valid proclamation. Where as in the case at bar the proclamation itself is illegal, the assumption of office cannot in any way affect the basic issues." (Aguam v. Commission on Elections, 23 SCRA 883 [1968]; cited in Agbayani v. Commission on Elections, 186 SCRA 484 [1990]).25 Thus, the Comelec was correct in annulling the proclamation of petitioner for being based on an erroneous computation of votes. As the Court declared in Espidol v. Commission on Elections,26 where the proclamation is null and void, the proclaimed candidates assumption of office cannot deprive the Commission the power to declare such proclamation a nullity. We emphasized that a defeated candidate cannot be deemed elected to the office.27 In fine, the Comelec did not commit grave abuse of discretion in annulling the proclamation of petitioner. In a special civil action for certiorari, the burden is on the part of petitioner to prove not merely reversible error, but grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the public respondent issuing the impugned order. Grave abuse of discretion means a capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. Mere abuse of discretion is not enough, it must be so grave as when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and must be so patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.28 To the credit of the MBOC, when it realized that it made a mistake in computing the total number of votes for respondent Sumague, it took swift action and called the attention of the Comelec by filing the Petition to Correct Entries Made in the Statement of Votes for Councilor. IN LIGHT OF ALL THE FOREGOING, the Resolutions of the Commission on Elections in SPC No. 04-209 dated July 21, 2004 and November 18, 2004 are AFFIRMED. The Status Quo Order issued by the Court dated January 11, 2005 is LIFTED. SO ORDERED. G.R. No. 186224 CONSTANCIO vs. August 25, 2009 D. PACANAN, JR., Petitioner,

COMMISSION ON ELECTIONS and FRANCISCO M. LANGI, SR., Respondents. DECISION LEONARDO-DE CASTRO, J.: Before the Court is a petition for certiorari which seeks to set aside 1) the Order1 dated March 17, 2008 of the Commission on Elections (Comelec) First Division and 2) the Resolution2 dated January 21, 2009 of the Comelec En Banc dismissing petitioner Constancio D. Pacanan, Jr.s appeal from the Decision3 of the Regional Trial Court (RTC), Branch 27, Catbalogan, Samar, in Election Case No. 07-1, which declared private respondent Francisco M. Langi, Sr. as the winning Mayor of Motiong, Samar. In the Order of March 17, 2008, the Comelec First Division dismissed the appeal for failure to pay the correct appeal fee as prescribed by the Comelec Rules of Procedure within the five-day reglementary period. In the assailed Resolution dated January 21, 2009, the Comelec En Banc denied petitioners motion for reconsideration, declaring that the Comelec did not acquire jurisdiction over the appeal because of the non-payment of the appeal fee on time, and that the Comelec First Division was correct in dismissing the said appeal. The antecedent facts are as follows: Petitioner Constancio D. Pacanan, Jr. and private respondent Francisco M. Langi, Sr. were candidates for mayor in the municipality of Motiong, Samar during the May 14, 2007 elections. After the canvassing of votes, the Municipal Board of Canvassers (MBC) of Motiong, Samar proclaimed petitioner as the duly elected mayor, having garnered a total of 3,069 votes against private respondents 3,066 votes. Thereafter, private respondent filed with the RTC a Protest4 dated May 25, 2007 which was docketed as Election Case No. 07-1, contesting the results of the elections in ten (10) of the forty-nine (49) precincts in Motiong, Samar, and alleging acts of violence and intimidation and other election irregularities in the appreciation of the votes by the MBC. Thereafter, petitioner filed his Verified Answer with Counter-Protest5 dated June 4, 2007, asserting that private respondents allegations of threat and intimidation, fraud and other irregularities in the conduct of elections were mere allegations unsupported by any documentary evidence. Petitioner also disputed the election results with respect to seven (7) precincts. On January 7, 2008, the RTC rendered a decision6 in Election Case 07-1, which declared private respondent as the winner in the May 14, 2007 mayoralty race for Motiong, Samar with a plurality of six (6) votes, viz: Wherefore, in view of the foregoing Protestant Francisco M. Langi, Sr. having obtained the over all total votes of 3,074 and the Protestees 3,068 total and final votes is declared the winner in the Mayoralty contest in Motiong, Samar with a plurality of (6) votes. Therefore the proclamation on May 17, 2007 is hereby annulled and declared Francisco Langi, Sr. y Maceren as the duly elected Mayor of Motiong, Samar. The winner is awarded the amount of P 32,510 as actual damages and no evidence aliunde for damages for the court to award. xxx On January 10, 2008, petitioner filed a notice of appeal and paid P3,000.00 appeal fee per Official Receipt No. 6822663 before the RTC, Branch 27, Catbalogan, Samar. He also appealed the RTC decision dated January 7, 2008 to the Comelec which docketed the case as EAC No. A-13-2008. Out of the P3,000.00 appeal fee required by Section 3, Rule 40 of the Comelec Rules of Procedure, petitioner only paid the amount of P1,000.00 (plusP200.00 to cover the legal research/bailiff fees) to the Cash Division of the Comelec, per Official Receipt No. 0510287. The said payment was made on February 14, 2008.7 On March 17, 2008, the Comelec First Division issued an Order8 dismissing the appeal, viz.: 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 of P3,000.00 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 case for ProtesteeAppellants failure to pay the correct appeal fee as prescribed by the Comelec Rules of Procedure within the five-(5)-day reglementary period. SO ORDERED. On March 28, 2008, petitioner filed a Motion for Reconsideration9 which the Comelec En Banc denied in the Resolution10 dated January 21, 2009, declaring that the appeal was not perfected on time for non-payment of the complete amount of appeal fee and for late payment as well. The Comelec En Banc held that the Comelec did not acquire jurisdiction over the appeal because of the non-payment of the appeal fee on time. Thus, the Comelec First Division correctly dismissed the appeal. Hence, the instant petition for certiorari raising the following grounds: The respondent COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in holding that the correct appeal fee was not paid on time. The respondent COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in failing to consider that assuming that the correct appeal fee was not paid on time, the alleged non-payment of the correct appeal fee is not in anyway attributable to herein petitioner. The respondent COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in failing to consider that assuming that the correct appeal fee was not paid on time, there are highly justifiable and compelling reasons to resolve the subject case on the merits in the interest of justice and public interest. Petitioner further claims that he paid a total of P4,215.00 for his appeal, as follows: a. To RTC on January 10, 2008 -----P3,000.00

10.00

5.00

TOTAL

P3,015.00

b. To Comelec on February 14, 2008 --

P1,000.00

50.00

150.00

TOTAL

P1,200.00

Petitioner submits that it is incumbent upon the RTC to transmit to the Comelec the entire P3,000.00 appeal fee that he paid on January 10, 2008. Petitioner also advances another interpretation of the Comelec Rules that the RTC is under obligation to remit to the Comelec the P2,000.00 representing the excess amount of the P1,000.00 appeal fee. Thus, petitioner claims that he must be deemed to have complied, in full or at least substantially, with the Comelec Rules on the payment of appeal fees. Petitioner maintains that the alleged non-payment of the correct appeal fee is not due to his own fault or negligence. He claims

that the laws on appeals in election protest cases are not yet wellestablished, thus, he must not be made to suffer for an oversight made in good faith. The Resolution No. 8486 of July 15, 2008 adopted by the Comelec to clarify the rules on compliance with the required appeal fees in election cases should not be applied retroactively to the subject election protest. Lastly, petitioner invokes liberality in the application of the election law. He asserts that the popular will of the people expressed in the election of public officers should not be defeated by reason of sheer technicalities. Petitioner argues that the true will of the people of Motiong in the May 14, 2007 elections should be determined by ordering the Comelec to give due course to his appeal and to resolve the same on the merits. In his Comment, respondent Langi, Sr. states that the petition was just a mere rehash of the Motion for Reconsideration that petitioner filed with the Comelec En Banc. Respondent maintains that for the Comelec to exercise its authority to administer proceedings, grant leniency, issue orders, and pass judgment on issues presented, it must first be shown that it has acquired the requisite jurisdiction over the subject matter pursuant to the initiatory acts and procedural compliance set as conditions precedent. Respondent also argues that the negligence and mistakes of petitioners counsel bind petitioner. He then reiterates the cases where this Court held that the non-payment or insufficiency of payment of filing fees is a valid ground for the dismissal of the appeal and that the subsequent full payment thereof does not cure the jurisdictional defect. We grant the petition. Section 3, Rule 22 (Appeals from Decisions of Courts in Election Protest Cases) of the Comelec Rules of Procedure mandates that the notice of appeal must be filed within five (5) days after promulgation of the decision, thus: SEC. 3. Notice of Appeal. Within five (5) days after promulgation of the decision of the court, the aggrieved party may file with said court a notice of appeal, and serve a copy thereof upon the attorney of record of the adverse party. Moreover, Sections 3 and 4, Rule 40 of the Comelec rules require the payment of appeal fees in appealed election protest cases, the amended amount of which was set at P3,200.00 in Comelec Minute Resolution No. 02-0130,11 to wit: SEC. 3. Appeal Fees. The appellant in election cases shall pay an appeal fee as follows: (a) For election cases appealed from Regional Trial Courts.P3,000.00 (per appellant) (b) For election cases appealed from courts of limited jurisdiction..P3,000.00 (per appellant) SEC. 4. Where and When to Pay. The fees prescribed in Sections 1, 2 and 3 hereof shall be paid to, and deposited with, the Cash Division of the Commission within a period to file the notice of appeal. Sections 8 and 9, Rule 14 of A.M. No. 07-4-15-SC12 also provide the procedure for instituting an appeal and the required appeal fees to be paid for the appeal to be given due course, to wit: SEC. 8. Appeal. An aggrieved party may appeal the decision to the Commission on Elections, within five days after promulgation, by filing a notice of appeal with the court that rendered the decision, with copy served on the adverse counsel or party if not represented by counsel. SEC. 9. Appeal fee. The appellant in an election contest shall pay to the court that rendered the decision an appeal fee of One Thousand Pesos (P1,000.00), simultaneously with the filing of the notice of appeal. A reading of the foregoing provisions reveals that two different tribunals (the trial court that rendered the decision and the Comelec) require the payment of two different appeal fees for the perfection of appeals of election cases. This requirement in the payment of appeal fees had caused much confusion, which the Comelec addressed through the issuance of Comelec Resolution No. 8486.13 Thus, to provide clarity and to erase any ambiguity in the implementation of the procedural rules on the payment of

appeal fees for the perfection of appeals of election cases, the resolution provides: WHEREAS, the Commission on Elections is vested with appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, and those involving elective barangay officials, decided by trial courts of limited jurisdiction; WHEREAS, Supreme Court Administrative Order No. 07-4-15 (Rules of Procedure in Election Contests Before the Courts Involving Elective Municipal and Barangay Officials) promulgated on May 15, 2007 provides in Sections 8 and 9, Rule 14 thereof the procedure in instituting the appeal and the required appeal fees to be paid for the appeal to be given due course, to wit: Section 8. Appeal. An aggrieved party may appeal the decision to the Commission on Elections, within five days after promulgation, by filing a notice of appeal with the court that rendered the decision, with copy served on the adverse counsel or party if not represented by counsel. Section 9. Appeal Fee. The appellant in an election contest shall pay to the court that rendered the decision an appeal fee of One Thousand Pesos (P1,000.00), simultaneously with the filing of the notice of appeal. WHEREAS, payment of appeal fees in appealed election protest cases is also required in Section 3, Rule 40 of the COMELEC Rules of Procedure the amended amount of which was set at P3,200.00 in COMELEC Minute Resolution No. 02-0130 made effective on September 18, 2002. WHEREAS, the requirement of these two appeal fees by two different jurisdictions had caused confusion in the implementation by the Commission on Elections of its procedural rules on payment of appeal fees for the perfection of appeals of cases brought before it from the Courts of General and Limited Jurisdictions. WHEREAS, there is a need to clarify the rules on compliance with the required appeal fees for the proper and judicious exercise of the Commissions appellate jurisdiction over election protest cases. 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 Cases 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 Commissions 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; xxx 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. The Education and Information Department is directed to cause the publication of this resolution in two (2) newspapers of general circulation. This resolution shall take effect on the seventh day following its publication. SO ORDERED. Our ruling in the very recent case of Aguilar v. Comelec,14 quoted hereunder, squarely applies to the instant case:

Sections 8 and 9, Rule 14 of A.M. No. 07-4-15-SC provide for the following procedure in the appeal to the COMELEC of trial court decisions in election protests involving elective municipal and barangay officials: SEC. 8. Appeal. An aggrieved party may appeal the decision to the Commission on Elections, within five days after promulgation, by filing a notice of appeal with the court that rendered the decision, with copy served on the adverse counsel or party if not represented by counsel. SEC. 9. Appeal fee. The appellant in an election contest shall pay to the court that rendered the decision an appeal fee of One Thousand Pesos (P1,000.00), simultaneously with the filing of the notice of appeal. Section 8 was derived from Article IX-C, Section 2(2) of the Constitution and Rule 40, Section 3, par. 1 and Rule 41, Section 2(a) of the Rules of Court. Section 9 was taken from Rule 141, Sections 7(1) and 8(f) of the Rules of Court. It should be noted from the afore-quoted sections of the Rule that the appeal fee of P1,000.00 is paid not to the COMELEC but to the trial court that rendered the decision. Thus, the filing of the notice of appeal and the payment of the P1,000.00 appeal fee perfect the appeal, consonant with Sections 10 and 11 of the same Rule. Upon the perfection of the appeal, the records have to be transmitted to the Electoral Contests Adjudication Department of the COMELEC within 15 days. The trial court may only exercise its residual jurisdiction to resolve pending incidents if the records have not yet been transmitted and before the expiration of the period to appeal. 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. The resolution pertinently reads: xxx xxx xxx 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 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 petitioners appeal, as it in fact did, for petitioners failure to pay the P3,200.00 appeal fee. Be that as it may, the Court finds that the COMELEC First Division gravely abused its discretion in issuing the order dismissing petitioners 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 petitioners 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 petitioners appeal for non-payment to the COMELEC Cash Division of the additional P3,200.00 appeal fee.1avvphi1

Considering that petitioner filed his appeal months before the clarificatory resolution on appeal fees, petitioners 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. The COMELEC First Division should have been more cautious in dismissing petitioners appeal on the mere technicality of non payment of the additional P3,200.00 appeal fee given the public interest involved in election cases. This is especially true in this case where only one vote separates the contending parties. The Court stresses once more that election law and rules are to be interpreted and applied in a liberal manner so as to give effect, not to frustrate, the will of the electorate. WHEREFORE, premises considered, the petition for certiorari is GRANTED. The July 31, September 4 and October 6, 2008 Orders and the October 16 2008 Entry of Judgment issued by the COMELEC First Division in EAC (BRGY) No. 211-2008 are ANNULLED and SET ASIDE. The case is REMANDED to the COMELEC First Division for disposition in accordance with this Decision. SO ORDERED. (Emphasis supplied) From the foregoing discussion, it is clear that the appeal from the trial court decision to the Comelec is perfected upon the filing of the notice of appeal and the payment of the P1,000.00 appeal fee to the trial court that rendered the decision. With the promulgation of A.M. No. 07-4-15-SC, the perfection of the appeal no longer depends solely on the full payment of the appeal fee to the Comelec. In the instant case, when petitioner filed his Notice of Appeal and paid the appeal fee of P3,015.00 to the RTC on January 10, 2008, his appeal was deemed perfected. However, Comelec Resolution No. 8486 also provides that if the appellant had already paid the amount of P1,000.00 before the trial court that rendered the decision, and his appeal was given due course by the court, said appellant is required to pay the Comelec appeal fee of P3,200.00 to the Comelecs Cash Division through the Electoral Contests Adjudication Department (ECAD) or by postal money order payable to the Comelec, within a period of fifteen (15) days from the time of the filing of the Notice of Appeal with the lower court. However, if no payment is made within the prescribed period, the appeal shall be dismissed pursuant to Section 9 (a), 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; xxx Thus, when petitioners appeal was perfected on January 10, 2008, within five (5) days from promulgation, his non-payment or insufficient payment of the appeal fee to the Comelec Cash Division should not have resulted in the outright dismissal of his appeal. The Comelec Rules provide in Section 9 (a), Rule 22, that for failure to pay the correct appeal fee, the appeal may be dismissed upon motion of either party or at the instance of the Comelec. Likewise, Section 18, Rule 4015 thereof also prescribes that if the fees are not paid, the Comelec may refuse to take action on the appeal until the said fees are paid and may dismiss the action or the proceeding. Here, petitioner paid P1,200.00 to the Comelec on February 14, 2008. Unfortunately, the Comelec First Division dismissed the appeal on March 17, 2008 due to petitioners failure to pay the correct appeal fee within the five-day reglementary period. In denying petitioners motion for reconsiderati on, the Comelec En Banc, in the Resolution dated January 21, 2009, declared that the Comelec did not acquire jurisdiction over the appeal because of the non-payment of the appeal fee on time. However, during the pendency of petitioners Motion for Reconsideration dated March 27, 2008, the Comelec

promulgated Resolution No. 8486 to clarify the implementation of the Comelec Rules regarding the payment of filing fees. Thus, applying the mandated liberal construction of election laws,16 the Comelec should have initially directed the petitioner to pay the correct appeal fee with the Comelec Cash Division, and should not have dismissed outright petitioners appeal. This would have been more in consonance with the intent of the said resolution which sought to clarify the rules on compliance with the required appeal fees. In Barroso v. Ampig, Jr.,17 we ruled, thus: xxx An election contest, unlike an ordinary civil action, is clothed with a public interest. The purpose of an election protest is to ascertain whether the candidate proclaimed by the board of canvassers is the lawful choice of the people. What is sought is the correction of the canvass of votes, which was the basis of proclamation of the winning candidate. An election contest therefore involves not only the adjudication of private and pecuniary interests of rival candidates but paramount to their claims is the deep public concern involved and the need of dispelling the uncertainty over the real choice of the electorate. And the court has the corresponding duty to ascertain by all means within its command who is the real candidate elected by the people. Moreover, the Comelec Rules of Procedure are subject to a liberal construction. This liberality is for the purpose of promoting the effective and efficient implementation of the objectives of ensuring the holding of free, orderly, honest, peaceful and credible elections and for achieving just, expeditious and inexpensive determination and disposition of every action and proceeding brought before the Comelec. Thus we have declared: It has been frequently decided, and it may be stated as a general rule recognized by all courts, that statutes providing for election contests are to be liberally construed to the end that the will of the people in the choice of public officers may not be defeated by mere technical objections. An election contest, unlike an ordinary action, is imbued with public interest since it involves not only the adjudication of the private interests of rival candidates but also the paramount need of dispelling the uncertainty which beclouds the real choice of the electorate with respect to who shall discharge the prerogatives of the office within their gift. Moreover, it is neither fair nor just to keep in office for an uncertain period one whose right to it is under suspicion. It is imperative that his claim be immediately cleared not only for the benefit of the winner but for the sake of public interest, which can only be achieved by brushing aside technicalities of procedure which protract and delay the trial of an ordinary action. WHEREFORE, the petition is granted. The Order dated March 17, 2008 of the Comelec First Division and the Resolution dated January 21, 2009 of the Comelec En Banc in EAC No. A-13-2008 are ANNULLED and SET ASIDE. Accordingly, let the case be REMANDED to the Comelec First Division for further proceedings, in accordance with the rules and with this disposition. The Regional Trial Court, Branch 27 of Catbalogan, Samar is DIRECTED to refund to petitioner Constancio D. Pacanan, Jr., the amount of Two Thousand Pesos (P2,000.00) as the excess of the appeal fee per Official Receipt No. 6822663 paid on January 10, 2008. SO ORDERED. G.R. No. 185140 June 30, 2009 JERRY B. AGUILAR, Petitioner, vs. THE COMMISSION ON ELECTIONS and ROMULO R. INSOY, Respondents. DECISION NACHURA, J.: This petition for certiorari under Rules 64 and 65, which stems from pertinent facts and proceedings narrated below, assails the issuances of the Commission on Elections (COMELEC) in EAC (BRGY) No. 211-2008. In the October 2007 barangay elections, petitioner Aguilar won the chairmanship of Brgy. Bansarvil 1, Kapatagan, Lanao del Norte, over private respondent Insoy by a margin of one vote. Not

conceding his defeat, Insoy timely instituted a protest docketed as Election Case No. 516 in the Municipal Trial Court (MTC) of Kapatagan.1 On April 17, 2008, the MTC rendered its Decision2 finding Insoy, who, during the revision garnered 265 votes as against Aguilars 264 votes, as the duly elected punong barangay. The trial court consequently nullified the proclamation of Aguilar and directed him to vacate the office. Aggrieved, Aguilar filed on April 21, 2008 his notice of appeal 3 and paid to the trial court the appeal fee ofP1,000.004 in accordance with Rule 14, Sections 8 and 9 of the recently promulgated A.M. No. 07-4-15-SC or the Rules of Procedure in Election Contests Before the Courts Involving Elective Municipal and Barangay Officials.5 When the COMELEC received the records elevated by the trial court, its First Division issued on July 31, 2008 the first assailed Order6 which pertinently reads: 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 of P/3,000.00 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 ProtestantAppellants (sic) failure to pay the appeal fee as prescribed by the Comelec Rules of Procedure within the five-(5)-day reglementary period. SO ORDERED.7 Adversely affected, Aguilar moved for reconsideration, arguing that the newly promulgated A.M. No. 07-4-15-SC only requires the payment of P1,000.00 as appeal fee.8 The COMELEC First Division, however, issued on September 4, 2008 the second assailed Order9 stating Acting on the "Motion for Reconsideration" filed by protesteeappellant Jerry B. Aguilar, through registered mail on 13 August 2008 and received by this Commission on 21 August 2008, seeking reconsideration of this Commissions (First Division) Order dated 31 July 2008, this Commission (First Division) RESOLVES to DENY the instant motion for movants (sic) failure to pay the complete P700.00 motion fee. SO ORDERED.10 Unperturbed, Aguilar filed another motion for reconsideration, contending, among others, that the order was null and void because it was issued in violation of the rule that motions for reconsideration should be resolved by the COMELEC en banc. On October 6, 2008, the COMELEC First Division issued the third assailed Order,11 which reads in part: Applying suppletorily Section 2, Rule 52 of the Rules of Court, the second motion for reconsideration filed by protestee-appellant Jerry Aguilar on 25 September 2008 is hereby DENIED for being a prohibited pleading. And considering that the Motion for Reconsideration filed by protestee-appellant was denied per Order dated 4 September 2008 by the Commission (First Division) for movants failure to pay the complete motion fee, the Order dated 31 July 2008 is now final and executory. WHEREFORE, let entry of judgment be issued in the instant case. The Judicial Records Division-ECAD, this Commission, is hereby directed to remand within three (3) days from receipt hereof the entire records of this case to the court of origin for its proper disposition and return to the protestee-appellant the Postal Money Order representing her motion fee in the amount of one thousand one hundred pesos (P/1,100.00) pesos. SO ORDERED.12 On October 16, 2008, the COMELEC First Division issued the Entry of Judgment.13 Faced with imminent ouster from office, petitioner instituted the instant petition to assail the aforementioned issuances of the COMELEC First Division. Readily discernable is that the challenged September 4 and October 6, 2008 Orders14 were issued not by the COMELEC en banc but by one of its divisions, the First Division. Settled is the rule that it is the decision, order or ruling of the COMELEC en banc which, in accordance with Article IX-A, Section 715 of the

Constitution, may be brought to this Court on certiorari.16 But this rule should not apply when a division of the COMELEC arrogates unto itself, and deprives the en banc of the authority to rule on a motion for reconsideration, as in this case. Further, the rule is not ironclad; it admits of exceptions as when the decision or resolution sought to be set aside, even if it were merely a Division action, is an absolute nullity.17 The invalidity of the September 4 and October 6, 2008 Orders arises from the very fact that they were issued by a division of the COMELEC. The Constitution explicitly establishes, in Article IX-C, Section 3, the procedure for the resolution of election cases by the COMELEC, thus: Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc.18 The COMELEC Rules of Procedure,19 complementing the constitutional provision, also details the course of action to be undertaken in the event motions for reconsideration are filed; thus, Rule 19, Sections 5 and 6 provide that Sec. 5. How Motion for Reconsideration Disposed Of.Upon the filing of a motion to reconsider a decision, resolution, order or ruling of a Division, the Clerk of Court concerned shall, within twenty-four (24) hours from the filing thereof, notify the Presiding Commissioner. The latter shall within two (2) days thereafter certify the case to the Commission en banc. Sec. 6. Duty of Clerk of Court of Commission to Calendar Motion for Reconsideration.The Clerk of Court concerned shall calendar the motion for reconsideration for the resolution of the Commission en banc within ten (10) days from the certification thereof.20 In this case, petitioners motion for reconsideration of the order dismissing his appeal was not resolved by the COMELEC en banc, but by the COMELEC First Division, in obvious violation of the provisions of the Constitution and the COMELEC Rules of Procedure. Stated differently, the division, after dismissing petitioners appeal, arrogated unto itself the en bancs function of resolving petitioners motion for reconsideration. In Soriano, Jr. v. Commission on Elections,21 we emphasized the rule that a motion to reconsider a decision, resolution, order or ruling of a COMELEC division, except with regard to interlocutory orders, shall be elevated to the COMELEC en banc. Here, there is no doubt that the order dismissing the appeal is not merely an interlocutory, but a final order.22 It was, therefore, incumbent upon the Presiding Commissioner of the COMELEC First Division to certify the case to the COMELEC en banc within two days from notification of the filing of the motion. This rule should apply whether the motion fee has been paid or not, as what happened in Olanolan v. Commission on Elections.23 Indeed, Rule 40, Section 1824 of the COMELEC Rules of Procedure gives discretion to the COMELEC, in this case, to the en banc and not to the division, either to refuse to take action until the motion fee is paid, or to dismiss the action or proceeding.25 The COMELEC First Divisions unceremonious departure from this constitutionally mandated procedure in the disposition of election cases must have brought confusion to the parties, so much so, that petitioner filed a second motion for reconsideration raising this issue. Yet, the COMELEC First Division, in the further assailed October 6, 2008 Order, committed another obvious error when it again usurped the en bancs authority to resolve motions for reconsideration. Being a violation of the Constitution and the COMELEC Rules of Procedure, the assailed September 4 and October 6, 2008 Orders are null and void. They were issued by the COMELEC First Division with grave abuse of discretion. By grave abuse of discretion is meant such capricious and whimsical exercise of judgment equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. It must be grave, as when it is exercised arbitrarily or despotically by reason of passion or personal hostility. The abuse must be so patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or

to act at all in contemplation of law.26 Clearly, by arrogating unto itself a power constitutionally lodged in the Commission en banc, the COMELEC First Division, in this case, exercised judgment in excess of, or without, jurisdiction. However, instead of remanding this case to the COMELEC en banc for appropriate action on petitioners motion for reconsideration, we will resolve the propriety of the appeals dismissal, considering the urgent need for the resolution of election cases, and considering that the issue has, after all, been raised in this petition. Sections 8 and 9, Rule 14 of A.M. No. 07-4-15-SC27 provide for the following procedure in the appeal to the COMELEC of trial court decisions in election protests involving elective municipal and barangay officials: SEC. 8. Appeal. An aggrieved party may appeal the decision to the Commission on Elections, within five days after promulgation, by filing a notice of appeal with the court that rendered the decision, with copy served on the adverse counsel or party if not represented by counsel. SEC. 9. Appeal fee. The appellant in an election contest shall pay to the court that rendered the decision an appeal fee of One Thousand Pesos (P1,000.00), simultaneously with the filing of the notice of appeal. Section 8 was derived from Article IX-C, Section 2(2)28 of the Constitution and Rule 40, Section 3, par. 129 and Rule 41, Section 2(a)30 of the Rules of Court.31 Section 9 was taken from Rule 141,32 Sections 7(l)33 and 8(f)34of the Rules of Court.35 It should be noted from the afore-quoted sections of the Rule that the appeal fee of P1,000.00 is paid not to the COMELEC but to the trial court that rendered the decision. Thus, the filing of the notice of appeal and the payment of the P1,000.00 appeal fee perfect the appeal, consonant with Sections 10 and 11 of the same Rule. Upon the perfection of the appeal, the records have to be transmitted to the Electoral Contests Adjudication Department of the COMELEC within 15 days. The trial court may only exercise its residual jurisdiction to resolve pending incidents if the records have not yet been transmitted and before the expiration of the period to appeal.36 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,37 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. 8486,38 which the Court takes judicial notice of.1avvphi1 The resolution pertinently reads: WHEREAS, the Commission on Elections is vested with appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, and those involving elective barangay officials, decided by trial courts of limited jurisdiction; WHEREAS, Supreme Court Administrative Order No. 07-4-15 (Rules of Procedure in Election Contests Before the Courts Involving Elective Municipal and Barangay Officials) promulgated on May 15, 2007 provides in Sections 8 and 9, Rule 14 thereof the procedure for instituting the appeal and the required appeal fees to be paid for the appeal to be given due course, to wit: Section 8. Appeal. - An aggrieved party may appeal the decision to the Commission on Elections, within five days after promulgation, by filing a notice of appeal with the court that rendered the decision, with copy served on the adverse counsel or party if not represented by counsel. Section 9. Appeal fee. - The appellant in an election contest shall pay to the court that rendered the decision an appeal fee of One Thousand Pesos (P1,000.00), simultaneously with the filing of the notice of appeal. WHEREAS, payment of appeal fees in appealed election protest cases is also required in Section 3, Rule 40 of the COMELEC Rules of Procedure the amended amount of which was set at P3,200.00 in

COMELEC Minute Resolution No. 02-0130 made effective on September 18, 2002. WHEREAS, the requirement of these two appeal fees by two different jurisdictions had caused confusion in the implementation by the Commission on Elections of its procedural rules on payment of appeal fees for the perfection of appeals of cases brought before it from the Courts of General and Limited Jurisdictions. WHEREAS, there is a need to clarify the rules on compliance with the required appeal fees for the proper and judicious exercise of the Commission's appellate jurisdiction over election protest cases. 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 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. The Education and Information Department is directed to cause the publication of this resolution in two (2) newspapers of general circulation. This resolution shall take effect on the seventh day following its publication. SO ORDERED.39 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 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 1840 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.41 Accordingly, in the instant case, the COMELEC First Division, may dismiss petitioners appeal, as it in fact did, for petitioners 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 petitioners 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 petitioners 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 petitioners 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, petitioners 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. The COMELEC First Division should have been more cautious in dismissing petitioners appeal on the mere technicality of nonpayment of the additional P3,200.00 appeal fee given the public interest involved in election cases. This is especially true in this case where only one vote separates the contending parties. The Court stresses once more that election law and rules are to be interpreted and applied in a liberal manner so as to give effect, not to frustrate, the will of the electorate.42 WHEREFORE, premises considered, the petition for certiorari is GRANTED. The July 31, September 4 and October 6, 2008 Orders and the October 16, 2008 Entry of Judgment issued by the COMELEC First Division in EAC (BRGY) No. 211-2008 are ANNULLED and SET ASIDE. The case is REMANDED to the COMELEC First Division for disposition in accordance with this Decision. SO ORDERED.