G.R. No.

146875 July 14, 2003

KAGAWADS JOSE G. MENDOZA, ROSARIO B. ESPINO, TERESITA S. MENDOZA, JORGE

BANAL, Chairman of the Special Investigation Committee on Administrative Cases Against
Elected Barangay Officials of the Quezon City Council and ISMAEL A. MATHAY, JR., City
Mayor of Quezon City, petitioners,
vs.
BARANGAY CAPTAIN MANUEL D. LAXINA, SR., respondent.

YNARES-SANTIAGO, J.:

Is the taking of an oath of office anew by a duly proclaimed but subsequently unseated local elective
official a condition sine qua non to the validity of his re-assumption in office where the Commission
on Elections (COMELEC) orders the relinquishment of the contested position?

This is the legal question raised in this petition under Rule 45 of the 1997 Rules of Civil Procedure,
assailing the November 13, 2000 Summary Judgment1 of the Regional Trial Court of Quezon City,
Branch 77, which set aside the decision of the City Council of Quezon City finding respondent
Barangay Captain Manuel D. Laxina guilty of grave misconduct.

On May 27, 1997, respondent took his oath and thereafter assumed office as the duly proclaimed
and elected barangay captain of Barangay Batasan Hills, Quezon City, in the 1997 Barangay
Elections. Meanwhile, Roque Fermo, his rival candidate, filed an election protest with the
Metropolitan Trial Court of Quezon City, Branch 40. On January 18, 1999, Fermo was declared as
the winner in the Barangay Elections. Respondent filed a notice of appeal with the COMELEC while
Fermo filed a motion for execution pending appeal.

On January 20, 1999, an order was issued by the trial court granting the motion for execution
pending appeal. Hence, respondent vacated the position and relinquished the same to Fermo.
Thereafter, respondent filed a petition with the COMELEC questioning the January 20, 1999 order of
the trial court. On September 16, 1999, the COMELEC issued a resolution2 annulling the order which
granted the execution of the decision pending appeal on the ground that there existed no good
reasons to justify execution. The dispositive portion thereof reads:

WHEREFORE, in view of all the foregoing, the Commission En Banc GRANTS the petition.
Accordingly, the January 20, 1999 Order of the Court a quo is hereby ANNULLED. Private
respondent ROQUE FERMO is hereby ORDERED to CEASE and DESIST from further
performing the functions of Punong Barangay of Barangay Batasan Hills, District II, Quezon
City and to relinquish the same to Petitioner MANUEL LAXINA, SR., pending final resolution
of appeal.

SO ORDERED.3

On October 27, 1999, the COMELEC issued a writ of execution directing Fermo to vacate the office
of Barangay Chairman of Barangay Batasan Hills. On October 28, 1999, Fermo was served a copy
of the writ of execution but refused to acknowledge receipt thereof. He also refused to vacate the
premises of the barangay hall of Batasan Hills.4 This did not, however, prevent respondent and his
staff from discharging their functions and from holding office at the SK-Hall of Batasan Hills.5 On the
same date, respondent appointed Godofredo L. Ramos as Barangay Secretary6 and on November 8,
1999, he appointed Rodel G. Liquido as Barangay Treasurer.7
On November 12, 1999, the COMELEC, acting on respondent's motion to cite Fermo for
contempt,8 issued an alias writ of execution,9 which was likewise returned unsatisfied. Finally, on
November 16, 1999, respondent took his oath of office as Barangay Captain of Batasan Hills,
Quezon City before Mayor Ismael Mathay, Jr.10 The following day, November 17, 1999, Roque
Fermo turned over to respondent all the assets and properties of the barangay.11

On November 20, 1999, the Barangay Council of Batasan Hills issued Resolution No. 001-S-1999
ratifying the appointment of Godofredo L. Ramos as Barangay Secretary, effective November 1,
199912 and Resolution No. 002-S-1999 ratifying the appointment of Rodel G. Liquido, as Barangay
Treasurer, also effective November 1, 1999.13However, the appointees of Roque Fermo to the same
position registered objections to the said Resolutions. In order to accommodate these appointees,
respondent agreed to grant them allowances and renumerations for the period of November 17,
1999.14

In Resolution No. 017-S-99 dated December 11, 1999, the barangay council of Batasan Hills,
authorized the appropriation of P864,326.00 for the November to December 1999 salary of its
barangay officials and employees.15Pursuant thereto, the barangay payroll was issued on December
18, 1999, enumerating the names of respondent and his appointed barangay secretary and
barangay treasurer as among those entitled to compensation for services rendered for the period
November 8, 1999 to December 31, 1999.16 Petitioners Jose G. Mendoza, Jr., Rosario E. Espino
and Teresita S. Mendoza, who were barangay councilors, refused to sign Resolution No. 017-S-99
as well as said payroll.17

Sometime in January 2000, petitioner barangay councilors filed with the Quezon City Council a
complaint18 for violation of the anti-graft and corrupt practices act and falsification of legislative
documents against respondent and all other barangay officials who signed the questioned resolution
and payroll, namely, Barangay Secretary Godofredo L. Ramos, Barangay Treasurer Rodel G.
Liquido, Barangay Kagawad Charlie O. Mangune, Gonzalo S. Briones, Sr., Maryann T. Castaeda,
Elias G. Gamboa, and SK-Chairman Sharone Amog. They contended that defendants made it
appear in the payroll that he and his appointees rendered services starting November 8, 1999 when,
in truth, they commenced to serve only on November 17, 1999 after respondent took his oath and
assumed the office of barangay chairman. They further claimed that the effectivity date of the
barangay secretary and barangay treasurer's appointment, as approved in Resolution No. 001-S-
1999, was November 16, 1999, but respondent fraudulently antedated it to November 1, 1999.
Petitioners also contended that respondent connived with the other barangay officials in crossing out
their names in the payroll.

In their joint counter-affidavit,19 defendants claimed that the taking anew of the oath of office as
barangay chairman was a mere formality and was not a requirement before respondent can validly
discharge the duties of his office. They contended that respondent's appointees are entitled to the
remuneration for the period stated in the payroll as they commenced to serve as early as October
28, 1999. They added that the names of the 3 petitioner barangay councilors who refused to sign the
assailed resolution and daily wage payroll were crossed out from the said payroll to prevent any
further delay in the release of the salaries of all barangay officials and employees listed therein.20

On October 2, 2000, the Special Investigation Committee on Administrative Cases of the City ruled
that respondent had no power to make appointments prior to his oath taking on November 16,
1999.21 The Committee, however, found that respondent and the other barangay officials who signed
the questioned resolution and payroll acted in good faith when they erroneously approved the grant
of renumerations to respondent's appointees starting November 8, 1999. Nevertheless, it found
respondent guilty of grave misconduct and recommended the penalty of 2 months suspension. The
charges against Barangay Secretary Godofredo Ramos and Barangay Treasurer Rodel Liquido
were dismissed, inasmuch as the City Council's disciplinary jurisdiction is limited to elective
barangay officials only. As to Barangay Kagawad Charlie O. Mangune, Gonzalo S. Briones, Sr.,
Maryann T. Castaeda, Elias G. Gamboa, and SK-Chairman Sharone Amog, the charges against
them were likewise dismissed on the ground that there was no "separate and independent proof that
. . . [they] conspired with Punong Barangay Laxina . . . Ramos and Liquido in committing the acts
therein complained of."22

On October 3, 2000, the Quezon City Council adopted the findings and recommendations of the
Committee.23Respondent filed a motion for reconsideration.24 On October 9, 2000, however, the City
Council implemented the decision and appointed Charlie Mangune as acting barangay chairman of
Batasan Hills, Quezon City.25

Respondent filed a petition for certiorari26 with the Regional Trial of Quezon City, Branch 67, seeking
to annul the decision of the Quezon City Council. In their answer, petitioners prayed for the dismissal
of the petition, arguing that respondent failed to exhaust administrative remedies and the trial court
has no jurisdiction over the case because appeals from the decision of the City Council should be
brought to the Office of the President.

On November 13, 2000, a summary judgment was rendered by the trial court in favor of respondent.
It did not rule on the propriety of the re-taking of the oath office by the latter, but nevertheless,
exonerated him on the basis of the finding of the City Council that he did not act in bad faith but
merely "misread the law, as applied to the facts." The dispositive portion of the said decision, states:

WHEREFORE, the decision finding herein petitioner guilty of grave misconduct and imposing
upon him the penalty of suspension and loss of concomitant benefits for two (2) months is
hereby annulled and set aside. The suspension of the petitioner is hereby lifted and all
benefits due to him are ordered restored.

The motion for a preliminary hearing on the affirmative defense of respondents and the
motion to drop City Councilor Banal as party respondent are both denied.

SO ORDERED.27

Petitioners filed the instant petition for review raising pure questions of law.

Before going into the substantive issues, we shall first resolve the issue on exhaustion of
administrative remedies.

The trial court ruled that Section 67 of the Local Government Code, which allows an appeal to the
Office of the President, is not applicable because the decision of the City Council is final and
executory. It added that respondent correctly filed a petition for certiorari because he had no other
plain, speedy and adequate remedy. The trial court further ratiocinated that an appeal to the Office
of the President before going to the regular courts might render the case moot and academic
inasmuch as the penalty of suspension might have been fully served by the time the court renders a
decision.

Sections 61 and 67 of the Local Government Code, provide:

Section 61. Form and Filing of Administrative Complaints. A verified complaint against any
erring local elective official shall be prepared as follows:
 xxx xxx xxx

(c) A complaint against any elective barangay official shall be filed before the sangguniang
panlungsod or sangguniang bayan concerned whose decision shall be final and executory.
(emphasis supplied)

Sec. 67. Administrative Appeals. Decisions in administrative cases may, within thirty (30)
days from receipt thereof, be appealed to the following:

xxx xxx xxx

(b) The Office of the President, in the case of decisions of the sangguniang
panlalawigan and the sangguniang panlungsod of highly urbanized cities and independent
component cities.

Decision of the Office of the President shall be final and executory.

In interpreting the foregoing provisions, the trial court did not consider Section 68 of the same code
which provides:

An appeal shall not prevent a decision from being final and executory. The respondent shall
be considered as having been placed under preventive suspension during the pendency of
an appeal in the event that he wins such appeal. In the event the appeal results in an
exoneration, he shall be paid his salary and such other emoluments during the pendency of
the appeal.

Obviously, the said Code does not preclude the taking of an appeal. On the contrary, it specifically
allows a party to appeal to the Office of the President. The phrases "final and executory," and "final
or executory" in Sections 67 and 68, respectively, of the Local Government Code, are not, as
erroneously ruled by the trial court, indicative of the appropriate mode of relief from the decision of
the Sanggunian concerned. These phrases simply mean that the administrative appeals will not
prevent the enforcement of the decisions.28 The decision is immediately executory but the
respondent may nevertheless appeal the adverse decision to the Office of the President or to
the Sangguniang Panlalawigan, as the case may be.29

It is clear that respondent failed to exhaust all the administrative remedies available to him. The rule
is that, before a party is allowed to seek the intervention of the court, it is a pre-condition that he
should have availed of all the means of administrative processes afforded him. Hence, if a remedy
within the administrative machinery can still be availed of by giving the administrative officer
concerned every opportunity to decide on a matter that comes within his jurisdiction, then such
remedy should be exhausted first before the court's judicial power can be sought. The premature
invocation of the court's intervention is fatal to one's cause of action.30

The application of the doctrine of exhaustion of administrative remedies, however, admits of

exceptions, one of which is when the issue involved is purely legal.31 In the case at bar, the issues of
whether or not the decision of the Sangguniang Panlungsod in disciplinary cases is appealable to
the Office of the President, as well as the propriety of taking an oath of office anew by respondent,
are certainly questions of law which call for judicial intervention.32Furthermore, an appeal to the
Office of the President would not necessarily render the case moot and academic. Under Section 68,
in the event the appeal results in his exoneration, the respondent shall be paid his salary and such
other emoluments during the pendency of the appeal. Hence, the execution of the penalty or
expiration of term of the public official will not prevent recovery of all salaries and emoluments due
him in case he is exonerated of the charges. Clearly, therefore, the trial court correctly took
cognizance of the case at bar, albeit for the wrong reasons.

We now come to the substantive issues.

To be sure, an oath of office is a qualifying requirement for a public office; a prerequisite to the full
investiture with the office. It is only when the public officer has satisfied the prerequisite of oath that
his right to enter into the position becomes plenary and complete.33 However, once proclaimed and
duly sworn in office, a public officer is entitled to assume office and to exercise the functions thereof.
The pendency of an election protest is not sufficient basis to enjoin him from assuming office or from
discharging his functions.34 Unless his election is annulled by a final and executory decision,35 or a
valid execution of an order unseating him pending appeal is issued, he has the lawful right to
assume and perform the duties of the office to which he has been elected.

In the case at bar, respondent was proclaimed as the winner in the 1997 Barangay Elections in
Batasan Hills, Quezon City; he took his oath on May 27, 1997 and thereafter assumed office. He is
therefore vested with all the rights to discharge the functions of his office. Although in the interim, he
was unseated by virtue of a decision in an election protest decided against him, the execution of said
decision was annulled by the COMELEC in its September 16, 1999 Resolution which, incidentally,
was sustained by this Court on March 13, 2000, in Fermo v. Commission on Elections.36 It was held
therein that "[w]hen the COMELEC nullified the writ of execution pending appeal in favor of FERMO,
the decision of the MTC proclaiming FERMO as the winner of the election was stayed and the
'status quo' or the last actual peaceful uncontested situation preceding the controversy was restored
. . ."37The status quo referred to the stage when respondent was occupying the office of Barangay
Captain and discharging its functions. For purposes of determining the continuity and effectivity of
the rights arising from respondent's proclamation and oath taken on May 27, 1997, it is as if the said
writ of execution pending appeal was not issued and he was not ousted from office. The re-taking of
his oath of office on November 16, 1999 was a mere formality considering that his oath taken on
May 27, 1997 operated as a full investiture on him of the rights of the office. Hence, the taking anew
of his oath of office as Barangay Captain of Batasan Hills, Quezon City was not a condition sine qua
non to the validity of his re-assumption in office and to the exercise of the functions thereof.

Having thus ruled out the necessity of respondent's taking anew of the oath of office, the next
question to be resolved is: when is respondent considered to have validly re-assumed office from
October 28, 1999, the date of service of the writ of execution to Roque Fermo and the date
respondent actually commenced to discharge the functions of the office, or from November 17,
1999, the date Roque Fermo turned over to respondent the assets and properties of Barangay
Batasan Hills, Quezon City?

The records show that the COMELEC served on October 28, 1999 a writ of execution ordering
Fermo to desist from performing the function of the Office of Barangay Captain, but the latter refused
to comply therewith. His supporters prevented respondent from occupying the barangay hall,
prompting the latter to move for the issuance of an alias wit of execution, which was granted on
November 12, 1999. It was only on November 17, 1999 that the turn-over to respondent of the
assets and properties of the barangay was effected. Undoubtedly, it was Fermo's defiance of the writ
that prevented respondent from assuming office at the barangay hall. To reckon, therefore, the
effectivity of respondent's assumption in office on November 17, 1999, as petitioners insist, would be
to sanction dilatory maneuvers and to put a premium on disobedience of lawful orders which this
Court will not countenance. It is essential to the effective administration of justice that the processes
of the courts and quasi-judicial bodies be obeyed.38 Moreover, it is worthy to note that although the
physical possession of the Office of the Barangay Captain was not immediately relinquished by
Fermo to respondent, the latter exercised the powers and functions thereof at the SK-Hall of
Batasan Hills, Quezon City starting October 28, 1999. His re-assumption in office effectively
enforced the decision of the COMELEC which reinstated him in office. It follows that all lawful acts of
the latter arising from his re-assumption in office on October 28, 1999 are valid. Hence, no grave
misconduct was committed by him in appointing Godofredo L. Ramos and Rodel G. Liquido as
Barangay Secretary and Barangay Treasurer, respectively, and in granting them emoluments and
renumerations for the period served.

Respondent was also charged of conniving with the other barangay officials in crossing out the
names of the petitioner barangay councilors in the payroll. The petition alleged that as a
consequence of the striking out of the names of the petitioner barangay officials, they were not able
to receive their salaries for the period November 8 to December 31, 1999.39 A reading of the payroll
reveals that the names of said petitioners and their corresponding salaries are written thereon.
However, they refused to sign the payroll and to acknowledge receipt of their salaries to manifest
their protest. Quod quis ex culpa sua damnum sentire. Indeed, he who suffered injury through his
own fault is not considered to have suffered any damage.40 Hence, the investigative committee
correctly brushed aside this charge against respondent.

The trial court therefore did not err in exonerating respondent and pursuant to Article 68 of the Local
Government Code, he should be paid his salaries and emoluments for the period during which he
was suspended without pay.

WHEREFORE, in view of all the foregoing, the instant petition for review is DENIED. The Summary
Judgment of the Regional Trial Court of Quezon City, Branch 77, in Civil Case No. Q-00-42155,
exonerating respondent Manuel D. Laxina, Sr., of the charge of grave misconduct and ordering the
payment of all benefits due him during the period of his suspension, is AFFIRMED.

SO ORDERED.

G.R. No. 112283 August 30, 1994

EVELYN ABEJA, petitioner,

vs.
JUDGE FEDERICO TAADA, Regional Trial Court of Lucena City, Branch 58, and ROSAURO
RADOVAN (deceased) *, respondents.

Roger E. Panotes for petitioner.

Antonio P. Relova for Conrado de Rama.

Eduardo R. Santos collaborating counsel for private respondent.

BIDIN, J.:

In this petition for certiorari, petitioner seeks the annulment of the orders dated September 21, 1992
and October 18, 1993 issued by respondent Judge Federico Taada which decreed, among others,
the revision of some 36 precincts contained in the counter-protest filed by respondent Radovan. The
said orders were issued by respondent judge in resolving petitioner/protestant's "Motion to
Determine Votes, to Proclaim Winner and to Allow Assumption of Office" dated August 27, 1993.
The antecedent facts of the case are as follows:

Petitioner Evelyn Abeja and private respondent Rosauro Radovan (deceased) were contenders for
the office of municipal mayor of Pagbilao, Quezon, in the May 11, 1992, national elections.

Based on the official returns of the Municipal Board of Canvassers for the said municipality, private
respondent was credited with 6,215 votes as against petitioner's 5,951 votes.

Soon after the proclamation of private respondent, petitioner filed an election contest, docketed as
Election Case No. 92-1, entitled "Evelyn Abeja vs. Rosauro Radovan" with the Regional Trial Court
of Lucena City. The protest covered twenty-two (22) precincts.

On June 5, 1992, private respondent filed an Answer with a Counter-Protest of the results in thirty-
six (36) precincts.

During the pre-trial, private respondent's counsel filed a motion praying that the 36 counter-protested
precincts be revised only if it is shown after completion of the revision of the 22 protested precincts
that petitioner leads by a margin of at least one (1) vote. The trial court declared discussion on the
matter to be premature (TSN, July 6, 1992, pp. 8-12; Rollo, p. 148). The revision of the ballots
covering 22 protested precincts was completed in September 1992. Thereafter, petitioner urged
private respondent to commence the revision of the 36 counter-protested precincts by praying the
necessary fees for the purpose. Private respondent refused.

In view thereof, petitioner moved that the counter-protest of private respondent be considered
withdrawn. Private respondent opposed the motion and reiterated that the ballots of the 36 counter-
protested precincts should only be revised and recounted if it is shown after the revision of the
contested ballots of the 22 precincts that petitioner leads by at least one (1) vote.

Petitioner filed another manifestation and motion on September 29, 1992, praying that the counter-
protest be considered withdrawn from the time the final report of the Board of Revisors is submitted
to the court for approval.

The then presiding Judge, Hon. Ludovico Lopez, did not rule on the aforementioned motions but,
according to petitioner, he (Judge Lopez) declared during a hearing in October 1992 that once a
ruling is made on the contested ballots of the 22 protested precincts, he will not allow further revision
of ballots.

By April 1993, all pending incidents including the report of the Board of Revisors as well as
petitioner's formal offer of evidence were considered submitted for resolution without private
respondent having caused the revision of the ballots in the 36 counter-protested precincts.

In an order dated April 15, 1993, Presiding Judge Lopez ruled that "(p)rotestant's offer of evidence
as well as the protestee's objections thereto are now submitted for the Court's resolution" (Rollo, p.
61).

On June 13, 1993, private respondent Rosauro Radovan died. He was substituted by Vice-Mayor
Conrado de Rama and, surprisingly, by his surviving spouse, Ediltrudes Radovan.

On July 13, 1993, private respondents de Rama and Radovan filed a Manifestation seeking a
prompt resolution of all pending incidents.
On August 12, 1993, the trial court issued an order stating that "(c)ounsels for both parties having
signified to this Court that they are submitting the motion to resolve without further argument. This
motion being a motion to resolve, the Court hereby informs the parties that pending matters
submitted for resolution will be duly resolved on or before August 20, 1993" (Rollo, p. 143).

Shortly thereafter, Judge Lopez was reassigned to the Regional Trial Court of Kalookan City. Before
transferring to his new post, however, Judge Lopez issued an order dated August 18, 1993 which
contained his ruling in each of the contested ballots in the 22 contested precincts and the reasons
therefor. In the said order, Judge Lopez emphasized that "in ruling on the various objections lodged
by both parties during the revision proceedings, the originals of the contested ballots in the ballot
boxes were subjected to careful scrutiny in the seclusion of the Court's chamber" (Rollo, p. 161).
Nonetheless, the ruling did not contain a summation of the exact number of votes to be credited to
each of the parties, or a declaration of the winner in the election protest for that matter.

On August 27, 1993, petitioner filed a "Motion to Determine Votes, To Proclaim Winner and to Allow
Assumption of Office" considering that based on her own computation of revised ballots ruled upon
by Judge Lopez, she led private respondent by a margin of 281 votes.

Private respondents filed a Motion to Correct the order dated August 18, 1993, issued by Judge
Lopez as well as oppositions to the motion of petitioner. Respondents claim that petitioner's "Motion
to Proclaim Winner" is premature since the 36 counter-protested precincts are yet to be revised.

In an order dated September 21, 1993, herein respondent Judge Federico Taada, who succeeded
Judge Lopez, denied the "Motion to Determine Votes, to Proclaim Winner and to Allow Assumption
of Office" filed by petitioner. Respondent judge ruled that petitioner's motion was indeed premature
on the ground that until after the 36 counter-protested precincts have been revised, the court could
not render a valid decision.

On October 18, 1993, respondent judge issued another order denying petitioner's motion for
reconsideration and directed the revision committee to conduct a revision of the results of the 36
counter-protested precincts scheduled on November 10, 1993.

These orders are the subject of this petition filed on November 8, 1993.

As prayed for by petitioner, the Court issued a temporary restraining order on November 17, 1993,
enjoining respondents from continuing with the revision of the ballots in the 36 counter-protested
precincts. It appears, however, that the restraining order was served on November 19, 1993, after
the revision committee had completed revising 11 ballot boxes.

The sole issue to be resolved in this case is whether or not private respondents should be allowed to
proceed with the revision of the 36 precincts subject of the counter-protest.

It is clear from the records that Judge Lopez failed to issue a definitive ruling on this specific
procedural issue raised by the parties, which this Court must now provide.

Although petitioner claims that Judge Lopez issued a warning to private respondent to the effect that
he (private respondent) shall not be allowed to cause the revision of the counter-protested precincts
after the revision of the protested precincts is completed and ruled upon, she fails to cite a specific
oral or written order of Judge Lopez containing such warning or at least the date and circumstances
of the hearing in which the said warning was issued. Consequently, the alleged warning issued by
Judge Lopez is unsubstantiated and must therefore be disregarded.
Coming now to the merits of the case, petitioner contends that the revision of the counter-protested
precincts filed by private respondent has already been abandoned by his failure to pursue the same,
right after the revision of the 22 protested precincts. Petitioner also argue that the case was deemed
submitted for decision upon submission by the Board of Revisors of the Report on the Revision of
the 22 protested precincts.

In the instant case, petitioner, as protestant below, completed the revision of ballots in the 22
protested precincts in September 1992 and her presentation of evidence in April 1993. Likewise, the
Board of Revisors had submitted its report and the trial court issued a ruling dated August 18, 1993
on the said revision. Given this state of the proceedings, the question to be resolved is whether
respondent may still be allowed to commence the revision of the counter-protested precincts or
should he be deemed to have waived his right to present his own evidence, i.e., the revision of the
counter-protested precincts after stubbornly refusing to do so.

Petitioner argues that while the sequence in the presentation of evidence may be altered for special
reasons, the applicable rules of procedure do not allow presentation of evidence after the court has
already rendered a decision. Clearly, petitioner considers the August 18, 1993 Order of Judge Lopez
to be the "decision" on the case although the order did not contain a summation of the total votes
credited to each of the parties or a declaration of the winner in the election protest.

Petitioner objects to the stand taken by private respondent on the procedure to be followed for being
"unprocedural" in the sense that a decision rendered on the election protest would be subject to
another decision for the counter-protest. It is further argued that since the 36 counter-protested
precincts were already under the jurisdiction of the trial court, the same should have been revised
unconditionally and should not have been subjected to the whim and caprice of the private
respondent.

The petition is impressed with merit.

Considering that this petition involves an election protest heard by a regional trial court, the Comelec
Rules of Procedure are controlling.

In view of the fact that the subject election contest was filed on May 26, 1992, Section 2, Rule 17
and Section 11, Rule 35 of the aforementioned Comelec rules are applicable. Rule 17 treats of
Hearings whereas Rule 35 treats of Election Contests Before Courts of General Jurisdiction. *

Section 2, Rule 17 provides, in part:

Sec. 2. Order of hearing. Unless the Commission or the Division, as the case may
be, for special reasons, directs otherwise, the order of hearing shall be as follows:

(a) The petitioner or protestant shall present evidence on his part;

(b) The protestant-in-intervention, if any, shall then offer evidence in support of his
defense or counter-protest, if any;

(c) The respondent or protestee shall then offer evidence in support of his defense or
counter-protest, if any;
It thus appears from the foregoing rule that the petitioner/protestant and the respondent/protestee
shall present their evidence upon their original case in succession in accordance with the order or
sequence provided therein.

On the other hand, Section 11, Rule 35 provides:

Sec. 11. Presentation and reception of evidence. The presentation and reception
of evidence in election contests shall be made in accordance with Section 2 of Rule
17 of these Rules, but the same shall be completed within thirty (30) days from the
date of the commencement thereof.

The record shows that the revision of ballots in the 22 protested precincts was completed sometime
in September 1992. Judge Lopez issued a ruling on the said revision almost a year later, or on
August 18, 1993.

In the interim, private respondent failed to commence the revision of the ballots in the counter-
protested precincts, stubbornly maintaining the position that said precincts should be revised only if it
is shown after the revision that petitioner leads private respondent by at least one (1) vote. No law or
rule authorizes such a procedure. Consequently, private respondent must be deemed to have
waived or abandoned his counter-protest.

The applicable Comelec rules provide for the presentation of evidence by the parties in succession
in the order or sequence provided under Sec. 2, rule 17 (Comelec Rules) which must be submitted
within a reasonable time, if not immediately after the revision of the precincts covered by the protest
proper.

By insisting that the counter-protested precincts should be revised only if it is shown after the
revision of the protested precincts that petitioner, his opponent, leads by at least one (1) vote, private
respondent is adopting a self-serving rule without legal sanction calculated to unduly prolong the
litigation.

Furthermore, it is readily apparent from the provisions of the applicable Comelec Rules that the court
shall render its decision after both parties shall have presented their respective evidence. Nowhere
in the said provisions is it indicated that presentation of evidence by the protestee may continue after
the court has ruled on the evidence of the protestant and determine the number of votes obtained by
the latter. Otherwise, it would be possible for the protestee to prolong the protest and render it moot
by expiration of the term of office contested.

There is likewise merit to petitioner's claim that private respondent is guilty of laches, which, in a
general sense, is a failure or neglect, for an unreasonable and unexplained length of time, to do that
which, by exercising due diligence could or should have been done earlier; it is negligence or
omission to assert a right within a reasonable length of time, warranting a presumption that a party
entitled to assert it either has abandoned it or declined to assert it (Republic v. Caballero, 79 SCRA
177 [1977]).

In the case at bar, private respondent unreasonably failed to cause the revision of the counter-
protested precincts despite being afforded ample time to do so and must be deemed to have
abandoned it. However, it is not clear from the record of the case whether Judge Lopez issued an
order requiring private respondent to pay the required cash deposit for the revision of the ballots in
the counter-protested precincts in accordance with Section 10, (b), Rule 35 of the Comelec Rules of
Procedure, otherwise, the counter-protest shall be automatically dismissed as provided in Sec. 10[c]
thereof:
 Sec. 10. Cash Deposit.

xxx xxx xxx

(b) In case revision of ballots is required, there shall be deposited, within ten days
after being required by the Court, the sum of three hundred pesos (P300.00) for
every ballot box for the compensation of revisors at the rate of P100.00 each.

(c) Failure to make the cash deposits herein provided within the prescribed time limit
shall result in the automatic dismissal of the protest, counter-protest or protest-in-
intervention, as the case may be.

In the Comment of private respondent's widow, it is alleged that "the record of the case definitely
show (sic) that Judge Lopez himself categorically ruled that the counter-protest was filed on time and
the necessary cash deposit submitted by private respondent pursuant to law" (Rollo, p. 60).
However, private respondent fails to cite that part of the record in which the said ruling may be
found.

Private respondent attributes the delay in the resolution of the case to Judge Lopez for failing to rule
on the issues raised by the parties. However, it cannot be denied that private respondent has
maintained the same position regarding the revision of his counter-protest from the very beginning,
as early as the pre-trial of the case, and all throughout the course of the proceedings. Although
Judge Lopez' inaction may have contributed to the delay of the case, private respondent Radovan
must bear the grave consequences of his stubborn and unfounded refusal to proceed with the
revision of the counter-protested precincts. Instead of conducting the revision of his counter-
protested precincts, private respondent hedged and stalled on the resolution of the case which is a
purely dilatory technique.

Private respondent's argument is that the procedure advocated by him would actually save time.
Nothing that the resolution of petitioner's protest took almost a year, he contends that about the
same length of time would be saved in the event a revision of the counter-protested precincts would
be declared unnecessary. Suffice it to state that the procedure proposed by private respondent is not
sanctioned by the Rules and need not delay us any longer that it already has in the disposition of
this case.

Upon the foregoing, we hold that the respondent judge erred in rendering the assailed orders
denying petitioner's "Motion to Determine Votes, to Declare Winner and to Allow Assumption of
Office" and directing the revision of the counter-protested precincts at this late hour, so to speak.
Under the circumstances and for reasons discussed above, the order of Judge Lopez dated August
18, 1993 which resolved the party litigants' objections to the revised ballots may very well be the
subject of a valid decision to resolve the instant electoral protest based on the revised ballots of the
22 protested precincts.

In the event petitioner is declared the winning candidate, she should, upon proper motion, be
allowed to immediately assume the contested office. We say this because in their pleadings,
petitioner and private respondent have amply discussed their respective arguments in the
applicability of Garcia v. de Jesus and the accompanying case of Tobon Uy v. Comelec (206 SCRA
779 [1992]) and the possibility is not remote that private respondent may once again resort to
dilatory tactics.
Section 2, Rule 39 of the Rules of Court allows execution pending appeal in election cases upon
good reasons (Garcia v. de Jesus, supra; in relation to Rule 43, Sec. 1, COMELEC Rules of
Procedure) which we find obtaining in the case before us.

Gahol v. Riodique (64 SCRA 494 [1975]) is even more emphatic:

Why should the proclamation by the board of canvassers suffice as a 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 person who are less technically prepared to make an
accurate appreciation of the ballots, apart from their being more apt to yield to
external consideration, and that the board must act summarily, practically racing
against time, while on the other hand, the judge has the 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. (cited
in Garcia v. de Jesus, supra)

We also find as erroneous the substitution of the deceased Rosauro Radovan's widow, Ediltrudes
Radovan, on the ground that private respondent had a counter-claim for damages. "Public office is
personal to the incumbent and is not a property which passes to his heirs" (Santos vs. Secretary of
Labor, 22 SCRA 848 [1968]; De la Victoria vs. Comelec, 199 SCRA 561 [1991]). The heirs may no
longer prosecute the deceased protestee's counter-claim for damages against the protestant for that
was extinguished when death terminated his right to occupy the contested office (Dela
Victoria, supra).

WHEREFORE, the petition is hereby GRANTED. The assailed orders of respondent judge as well
as the results of the revision of the 11 ballot boxes subject of the counter-protest are SET ASIDE.
Respondent judge is further ordered to DISMISS the counter-protest in Election Case No. 92-1 and
to resolve the "Motion to Determine Votes, to Proclaim Winner and to Allow Assumption of Office"
filed by petitioner conformably with this decision within a non-extendible period of fifteen (15) days
from receipt hereof. This decision is immediately executory. Costs against respondent Ediltrudes
Radovan.

SO ORDERED.

G.R. No. 125249 February 7, 1997

JIMMY S. DE CASTRO, petitioner,

vs.
THE COMMISSION ON ELECTIONS and AMANDO A. MEDRANO, respondent

HERMOSISIMA, JR., J.:

Before us is a petition for certiorari raising twin issues as regards the effect of the contestant's death
in an election protest: Is said contest a personal action extinguished upon the death of the real party
in interest? If not, what is the mandatory period within which to effectuate the substitution of parties?
The following antecedent facts have been culled from the pleadings and are not in dispute:

Petitioner was proclaimed Mayor of Gloria, Oriental Mindoro during the May 8, 1995 elections.

In the same elections, private respondent was proclaimed Vice-Mayor of the same municipality.

On May 19, 1995, petitioner's rival candidate, the late Nicolas M. Jamilla, filed an election
protest 1 before the Regional Trial Court of Pinamalayan, Oriental Mindoro. 2

During the pendency of said contest, Jamilla died. 3 Four days after such death or on December 19,
1995, the trial court dismissed the election protest ruling as it did that "[a]s this case is personal, the death
of the protestant extinguishes the case itself. The issue or issues brought out in this protest have become
moot and academic". 4

On January 9, 1995, private respondent learned about the dismissal of the protest from one Atty.
Gaudencio S. Sadicon, who, as the late Jamilla's counsel, was the one who informed the trial court
of his client's demise.

On January 15, 1996, private respondent filed his Omnibus Petition/Motion (For Intervention and/or
Substitution with Motion for Reconsideration). 5 Opposition thereto was filed by petitioner on January
30, 1996. 6

In an Order dated February 14, 1996, 7 the trial court denied private respondent's Omnibus
Petition/Motion and stubbornly held that an election protest being personal to the protestant, is ipso
facto terminated by the latter's death.

Unable to agree with the trial court's dismissal of the election protest., private respondent filed a
petition for certiorariand mandamus before the Commission on Elections (COMELEC); private
respondent mainly assailed the trial court orders as having been issued with grave abuse of
discretion.

COMELEC granted the petition for certiorari and mandamus. 8 It ruled that an election contest involves
both the private interests of the rival candidates and the public interest in the final determination of the
real choice of the electorate, and for this reason, an election contest necessarily survives the death of the
protestant or the protestee.

We agree.

It is true that a public office is personal to the public officer and is not a property transmissible to his
heirs upon death. 9 Thus, applying the doctrine of actio personalis moritur cum persona, upon the death
of the incumbent, no heir of his may be allowed to continue holding his office in his place.

But while the right to a public office is personal and exclusive to the public officer, an election protest
is not purely personal and exclusive to the protestant or to the protestee such that the death of either
would oust the court of all authority to continue the protest proceedings.

An election contest, after all, involves not merely conflicting private aspirations but is imbued with
paramount public interests. As we have held in the case of Vda. de De Mesa v. Mencias: 10

. . . It is axiomatic that an election contest, involving as it does not only the

adjudication and settlement of the private interests of the rival candidates but also
 the paramount need of dispelling once and for all the uncertainty that beclouds the
real choice of the electorate with respect to who shall discharge the prerogatives of
the offices within their gift, is a proceeding imbued with public interest which raises it
onto a plane over and above ordinary civil actions. For this reason, broad
perspectives of public policy impose upon courts the imperative duty to ascertain by
all means within their command who is the real candidate elected in as expeditious a
manner as possible, without being fettered by technicalities and procedural barriers
to the end that the will of the people may not be frustrated (Ibasco vs. Ilao, et al.,
G.R. L-17512, December 29, 1960; Reforma vs. De Luna, G.R. L-13242, July 31,
1958). So inextricably intertwined are the interests of the contestants and those of
the public that there can be no gainsaying the logic of the proposition that even the
voluntary cessation in office of the protestee not only does not ipso facto divest him
of the character of an adversary in the contest inasmuch as he retains a party
interest to keep his political opponent out of the office and maintain therein his
successor, but also does not in any manner impair or detract from the jurisdiction of
the court to pursue the proceeding to its final conclusion (De Los Angeles vs.
Rodriguez, 46 Phil. 595, 597; Salcedo vs. Hernandez, 62 Phil. 584, 587; Galves vs.
Maramba, G.R. L-13206).

Upon the same principle, the death of the protestee De Mesa did not abate the
proceedings in the election protest filed against him, and it may stated as a rule that
an election contest survives and must be prosecuted to final judgment despite the
death of the protestee. 11

The death of the protestant, as in this case, neither constitutes a ground for the dismissal of the
contest nor ousts the trial court of its jurisdiction to decide the election contest. Apropos is the
following pronouncement of this court in the case of Lomugdang v. Javier: 12

Determination of what candidate has been in fact elected is a matter clothed with
public interest, wherefore, public policy demands that an election contest, duly
commenced, be not abated by the death of the contestant. We have squarely so rule
in Sibulo Vda. de Mesa vs. Judge Mencias, G.R. No. L-24583, October 29, 1966, in
the same spirit that led this Court to hold that the ineligibility of the protestant is not a
defense (Caesar vs. Garrido, 53 Phil. 57), and that the protestee's cessation in office
is not a ground for the dismissal of the contest nor detract the Courts jurisdiction to
decide the case (Angeles vs. Rodriguez, 46 Phil. 595; Salcedo vs. Hernandez, 62
Phil. 584). 13

The asseveration of petitioner that private respondent is not a real party in interest entitled to be
substituted in the election protest in place of the late Jamilla, is utterly without legal basis.
Categorical was our ruling in Vda. de Mesaand Lomugdang that:

. . . the Vice Mayor elect has the status of a real party in interest in the continuation
of the proceedings and is entitled to intervene therein. For if the protest succeeds
and the Frotestee is unseated, the Vice-Mayor succeeds to the office of Mayor that
becomes vacant if the one duly elected can not assume the post. 14

To finally dispose of this case, we rule that the filing by private respondent of his Omnibus
Petition/Motion on January 15, 1996, well within a period of thirty days from December 19, 1995
when Jamilla's counsel informed the trial court of Jamilla's death, was in compliance with Section 17,
Rule 3 of the Revised Rules of Court. Since the Rules of Court, though not generally applicable to
election cases, may however be applied by analogy or in a suppletory character, 15 private
respondent was correct to rely thereon.

The above jurisprudence is not ancient; in fact these legal moorings have been recently reiterated in
the 1991 case of De la Victoria vs. COMELEC. 16 If only petitioner's diligence in updating himself with
case law is as spirited as his persistence in pursuing his legal asseverations up to the highest court of the
land, no doubt further derailment of the election protest proceedings could have been avoided.

WHEREFORE, premises considered, the instant petition for certiorari is hereby DISMISSED

Costs against petitioner.

SO ORDERED.