EVELYN ABEJA, PETITIONER, VS. JUDGE FEDERICO TAÑADA, REGIONAL TRIAL COURT OF LUCENA CITY, BRANCH 58, AND ROSAURO RADOVAN (DECEASED), RESPONDENTS.

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 Tañada 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 paying 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private respondent be considered withdrawn.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 Tañada, 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. Noting
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.

Feliciano, (Chairman), Romero, Melo, and Vitug, JJ., concur.

* Died on June 13, 1992 and is
substituted by Vice-Mayor Conrado de Rama and Ediltrudes Radovan, widow of
Rosauro Radovan

* These provisions were
subsequently repealed and superseded by COMELEC Resolution No. 2493, promulgated
on July 14, 1992.