EN BANC

[EAC (BRGY-SK) NO. 92-11. June 3, 2011.]

LOUIE TABANG, protestant-appellee, vs. RENATO BORBON,

protestee-appellant.

RESOLUTION

PER CURIAM : p

For resolution is the Motion for Reconsideration 1 filed through by

Protestee-Appellant RENATO BORBON ("BORBON") on April 4, 2011, relative
to the Order 2 dated March 30, 2011 issued by the Commission (First
Division) dismissing his appeal for failure to pay the appeal fee of THREE
THOUSAND PESOS (Php3,000.00) as prescribed by the COMELEC Rules of
Procedure, 3 as amended by Comelec Resolution No. 02-0130 dated
September 18, 2002 within the five (5)-day 4 reglementary period.
On April 8, 2011, the Commission issued an Order 5 elevating Borbon's
Motion for Reconsideration to the Commission En Banc for resolution of the
incident regarding the non-payment of the COMELEC appeal fee pursuant to
the COMELEC Rules of Procedure.
In moving for reconsideration of the Order dismissing his appeal,
Borbon argued that he has fifteen (15) days to pay the appeal fee before the
Commission, citing Comelec Resolution No. 8486 and the doctrines laid down
by the Supreme Court in the cases of Divinagracia vs. Comelec, 594 SCRA
147 (2009) and Aguilar vs. Comelec, 591 SCRA 491 (2009) [as reiterated in
the case of Nollen vs. Comelec, 610 SCRA 42 (2009)].
We resolve to deny the Motion for Reconsideration.
Records show that the lower court rendered a Decision on March 7,
2011, which was duly received by Borbon on March 9, 2011. However,
records also show that the Php3,000.00 appeal fee payable to the
Commission was paid only on March 18, 2011.
Pursuant to Section 4, Rule 40 of the Comelec Rules of Procedure,
appeal fees must be paid within the period to file the notice of appeal or five
(5) days from receipt of the decision sought to be appealed. Section 9, Rule
22 of the same Rules provides that failure to pay the appeal fee is a ground
for the dismissal of the appeal.
The issue of late or non-payment of filing fees and appeal fees has
been pestering not only this Commission but the Supreme Court as well. The
Supreme Court, having enough of this held in the case of SALVADOR
DIVINAGRACIA vs. COMMISSION ON ELECTIONS, et al., G.R. Nos. 186007 and
186016, July 27, 2009 to settle the issue once and for all. The Supreme Court
declared, to wit:
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 "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."

Emphasis in the original.

Based on the foregoing, the Commission has no other recourse but to
deny the motion for reconsideration.
WHEREFORE, premises considered, the Commission RESOLVED, as it
hereby RESOLVES, to DENY the Motion for Reconsideration for LACK OF
MERIT.
SO ORDERED.

(SGD.) SIXTO S. BRILLANTES, JR.

Chairman

(SGD.) RENE V. SARMIENTO

Commissioner

(SGD.) LUCENITO N. TAGLE

Commissioner

(SGD.) ARMANDO C. VELASCO

Commissioner

(SGD.) ELIAS R. YUSOPH

Commissioner

(SGD.) CHRISTIAN ROBERT S. LIM

Commissioner

(SGD.) AUGUSTO C. LAGMAN

Commissioner
Footnotes
1. Records, pages 17-27.

2. Ibid., page 13.

3. Section 3, Rule 40 of the COMELEC Rules of Procedure as amended by En
Banc Resolution No. 02-0130 dated September 18, 2002, provides for a
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 P3,000.00 appeal fee plus the payment of the required bailiff/legal research
fees in the amount of P200.00.
4. Section 4, Rule 40 of the Comelec Rules of Procedure as amended by En
Banc Resolution No. 02-0130 dated September 18, 2002.

5. Records, page 57.

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