[G. R. No. 135873. April 3, 2001]

ANISCO vs. COMELEC et al.

EN BANC

Gentleman:

Quoted hereunder, for your information, is a resolution of the court En banc dated APR 3 2001.

G.R.No.135873 (Walter Anisco, petitioner, vs. Commission on Elections, First Division, and Eleasar Almalbis, respondents.)

Petitioner Walter Anisco and private respondent Eleasar Almalbis, were candidates for Punong Barangay of Barangay Culasi, Roxas City in the May 12, 1997 elections. After the vote cast were canvassed, the Barangay Board of Canvassers credited Almalbis with 1,353 vote against the 1,351 votes cast in favor of Anisco and proclaimed private respondents Almalbis as the duly elected Punong Barangay of Barangay Culasi.

On May 19, 1997, petitioner Anisco filed an election protest against respondents Almalbis with the Roxas City Municipal Trial Court in Cities (MTCC), which was docketed therein as Election Case No.E-016-97 and raffled to Branch 2 of said court.

On May 29, 1997, private respondent Almalbis filed an Answer with Counter-Protest.

On July 1, 1998, the MTCC of Roxas City, Branch 2, rendered its Decision declaring petitioner Anisco was the winner and duly elected Punong Barangay of Barangay Culasi, Roxas City, with a margin of five (5) votes.

Both petitioner Anisco and respondents Almalbis, through counsel, received copies of the said Decision on July 15, 1998.

Private respondent Almalbis filed on July 21, 1998 a Notice of Appeal and paid the appeal fees on July 23, 1998.

On July 24,1998, petitioner Anisco filed with the MTCC of Roxas City a “Motion to strike Out Protestee’s Notice of Appeal and for Execution of Judgment” on the ground that the Notice of Appeal was filed and the appeal fees were paid beyond the reglementary period for perfecting an appeal.

On July 27, 1998, The MTCC of Roxas City issued two (2) Orders, that is, one denying petitioner’s “motion to Strike Out Notice of Appeal” for lack of notice of hearing, and another granting the ex-parte motion of petitioner to elevate the records of the case to the Commission on Elections (COMELEC, for brevity).

Respondents Almalbis then filed with the COMELEC an Opposition to the motion to strike out the notice of appeal. The appeal which filed with the COMELEC was docketed therein as EAC NO. 81-98 and raffled to the First Division.

On September 3, 1998, petitioner Anisco filed a Motion to Dismiss Appeal with the COMELEC (First Division) on the ground that private respondent’s appeal was not duly perfected within the reglementary period.

The First Division of the COMELEC, Voting 2 to 1, issued an Order dated September 18, 1998 denying herein petitioner’s Motion to Strike Out Protestee’s Notice of Appeal, for lack of merit.

The petitioner did not file a motion for reconsideration with the COMELEC (First Division). However, the petitioner instead filed with this Court on October 27, 1998 the Subject petition “for Certiorari, Prohibition, Mandamus with TRO/ Preliminary Injunction”.

The Subject petition should be as it is hereby dismissed.

The assailed Order dated September 18, 1998 of the COMELEC (First Division) is not even a final order but only an interlocutory order.

Any decision, resolution or order of a division of the COMELEC must first be reviewed by the COMELEC en banc via a motion for reconsideration before the Supreme Court may take cognizance thereof. In the recent case of Ambil vs. COMELEC, et al., G.R. No. 143398, promulgated on October 25, 2000, the Court dismissed the petition therein on the ground of prematurity and declared that:

“To begin with, the power of the Supreme Court to review decisions of the COMELEC is prescribed in the Constitution, as follows:

“Section 7, Each commission shall decide by a majority vote of all its members any case matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleadings, brief or memorandum required by the rules of the commission or by the commission itself. Unless otherwise provided by this constitution or by law, any decision, order, or ruling of each commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of copy thereof.”(emphasis supplied)

We have interpreted this provision to mean final orders, rulings and decision of the COMELEC rendered on the exercise of its adjudicatory or quasi-judicial powers. This decision must be a final decision or resolution of the COMELEC en banc, not of a division, certainly not an interlocutory order of a division. The Supreme Court has no power to review via certiorari, an interlocutory order even a final resolution of a Division of the Commission on Elections.

The mode by which a decision, order or ruling of the COMELEC en banc may be elevated to the Supreme Court is by the special civil action of certiorari under Rule 65 of the 1964 Revised Rules of court, now expressly provided in Rule 64, 1997 Rules of Civil procedure, as amended.

Rule 65, Section 1, 1997 Rules of Civil Procedure, as amended requires that there be no appeal, or any plain, speedy and adequate remedy in the ordinary course of law. A motion for reconsideration is a plain and adequate remedy provided by law. Failure to abide by this procedural requirements constitutes a ground for dismissal of the petition.

In like manner, a decision, order or resolution of a division of the COMELEC must be reviewed by the COMELEC en banc via a motion for reconsideration before the final en banc decision can be brought to the Supreme Court on certiorari. The pre-requisite filing of a motion for reconsideration is mandatory. Article IX-C, Section 3, 1987 Constitution provides as follows:

“Section 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.”

Similarly, the Rules of Procedure of the COMELEC provide that a decision of a division may be raised to the en banc via a motion for reconsideration.”

WHEREFORE, the instant petition is hereby DISMISSED on the ground of prematurity.

The COMELEC, First Division, is hereby ordered to decide, with dispatch, the appeal of private respondent in EAC No. 81-98.

(J. Bellosillo and J. Pardo-no part)

Very truly yours,

LUZVIMINDA D. PUNO

Clerk of Court

(Sgd.) MA. LUISA D. VILLARAMA

Asst. Clerk of Court