GIL C. GALLARDO, PETITIONER, VS. FRANCO F. RIMANDO, RESPONDENT.

The issue in this petition for certiorari is the
timeliness of the petitioner’s election protest.

Petitioner Gil C. Gallardo and private respondent Franco F. Rimando were rival candidates for the Office of Municipal
Mayor of Naguilian, La Union, in the local elections
of January 18, 1988.  On January
19, 1988, Rimando was proclaimed the
winner over Gallardo by a margin of
12 votes.

On January 22, 1988,
Gallardo filed in the Commission on Elections (COMELEC) a petition to annul the
proclamation of Rimando.  On December
8, 1988, the COMELEC dismissed the petition.

On December 12, 1988,
Gallardo appealed the COMELEC’s final resolution to
this Court (Gallardo vs. COMELEC, G.R. No. 85974).  On June
23, 1989, he received the Supreme Court’s final resolution dated May 30, 1989, dismissing his petition for review. On June 30, 1989, he
filed an election protest entitled, “Gil C. Gallardo vs. Franco F. Rimando,” Case No. 4-Bg, Municipal Election Protest,
in the Regional Trial Court, Branch 33 at Bauang, La
Union (p. 17, Rollo).

Rimando filed a motion to dismiss the
protest on the ground that it was not filed within ten (10) days after the
proclamation of the results of the election fixed in Sec. 51 of the Omnibus
Election Code.  Judge Avelino
Quintos of the Regional Trial Court at Bauang, La Union, denied the motion to dismiss.

Rimando filed a motion for reconsideration
of Judge Quintos‘ order.  He insisted that the election protest was
late because the COMELEC’s decision in the
pre-proclamation case had become final and executory
under Section 246 of the Omnibus Election Code, which provides:

“SEC. 246. Summary
proceedings before the Commission. – All
pre-proclamation controversies shall be heard summarily by the Commission after
due notice and hearing, and its decisions shall be executory
after the lapse of five days from
receipt by the losing party of
the decision of the Commission, unless restrained by the Supreme
Court.” (Underscoring ours, Sec. 55, BP 697.)

He argued that since the COMELEC’s
decision dated December 8, 1988,
dismissing Gallardo’s petition to annul the proclamation of Rimando,
became final five (5) days later, on December
14, 1988, the filing of the election contest by Gallardo on June 30, 1989, was
tardy.

Following Rimando’s argument, Judge Quintos issued an order on September 19, 1989 (p. 34, Rollo),
setting aside his previous order of August
3, 1989 and dismissing the election protest.  On November
24, 1989, he denied Gallardo’s motion for reconsideration (Annex H,
p. 39, Rollo; Annex K, p. 52, Rollo).

On December 7, 1989,
Gallardo filed a notice of appeal (Annex L, p. 57, Rollo)
and on December 18, 1989,
he filed this petition for review (p. 58,
Rollo).

The question is:  Was
Gallardo’s election protest filed on time? 
It was.

Section 251 of the Omnibus Election Code provides:

SEC. 251. 
Election contests for municipal offices.
– A sworn petition contesting the election of a municipal officer shall be
filed with the proper regional trial court by any candidate who has duly filed
a certificate of candidacy and has been voted for the same office, within ten
days after proclamation of the results of the election.”

(Art. XVIII, Sec. 190, 1978 EC.)

Rimando was proclaimed by the Municipal
Board of Canvassers as the duly elected municipal mayor of Naguilian
on January 19, 1988.  Two (2) days later, or on January 21, 1988, Gallardo filed in
the COMELEC a pre-proclamation
petition to annul the proclamation. 
Hence, only eight (8) days of the reglementary
period for filing an election protest remained. This period was suspended
during the pendency of the pre?proclamation
case, i.e., while it was pending in the COMELEC and in the Supreme Court, until
Gallardo received on June 23, 1989 the Supreme Court’s final resolution
dismissing his petition for review of the COMELEC’s
decision in said case.  Section 248 of
the Omnibus Election Code provides:

“Sec. 248. Effect of filing petition to annul or to suspend the proclamation. – The filing with the Commission of a
petition to annul or to suspend the proclamation of any candidate shall suspend
the running of the period within which to file an election protest or quo warranto proceedings.”

After June 23, 1989, the eight-day remainder of the reglementary period to file an election protest resumed
running.  The deadline was July 1, 1989.  Gallardo seasonably filed his election
protest on the 7th day – June 30, 1989.

In the light of Section 248, the lower court’s statement that
“the running of the ten-day period to file an election protest is not
stopped by protestant’s elevation to the Supreme Court of the COMELEC’s decision” in the pre-proclamation case, is
not correct. The appeal by certiorari to the Supreme Court, which is a
right secured to the defeated party under Section 7, Title A, Article IX of the
1987 Constitution, is part of the annulment proceeding.  The case is not over until the Supreme Court has
given its verdict, hence, the computation of the ten-day-period for filing an
election contest does not begin until that verdict has been handed down by the
Supreme Court.

Judge Quintos also misinterpreted
Section 246 of the Omnibus Election Code which provides that the decision of
the COMELEC in a pre-proclamation controversy, etc. “shall be executory after the lapse of five (5) days from receipt by
the losing party of the decision of the Commission, unless restrained by the
Supreme Court.” He erroneously thought that because the Comelec’s decision in the pre-proclamation case became
final and executory (absent a restraining order from
the Supreme Court), the appellant lost his right to file an election protest
under Section 251 of the Omnibus Election Code. That is not so.

The right of the prevailing party in a pre-proclamation case to
the execution of the COMELEC’s decision (i.e., to be
proclaimed and to assume office) after the lapse of five (5) days from receipt
of said decision by the losing party, unless restrained by the Supreme Court,
does not bar the losing party from filing an election contest within the
ten-day period fixed in Section 251.  The
absence of a restraining order from the Supreme Court simply allows the
prevailing party to be proclaimed and assume office.

His proclamation and assumption of office does not end the
contest for the COMELEC in a pre-proclamation controversy determines only the
following issues:

(a)  The legality of the
composition or proceedings of the board of canvassers;

(b)  Whether the canvassed
election returns are incomplete, contain material defects, appear to be
tampered with or falsified, or contain discrepancies in the same returns or in
other authentic copies thereof as mentioned in Section 233, 234, 235 and 236 of
this Code;

(c)  Whether the election
returns were prepared under duress, threats, coercion, or intimidation, or they
are obviously manufactured or not authentic; and

(d)  Whether substitute or
fraudulent returns in controverted polling places
were canvassed, the results of which materially affected the standing of the
aggrieved candidate or candidates. (Sec. 243, Omnibus Election Code.)

Its decision, therefore, is not a bar to
the election contest where the task of the regional trial court is to ascertain
the results of the election or the true will of the voters by a proper
evaluation of the votes cast, and by determining the integrity of the ballots
and recounting them.

In “Gallardo vs. COMELEC,” G.R. No. 85974, May 30,
1989, the appellant did not ask this Court to restrain the execution of the
COMELEC decision for the simple reason that his opponent, Rimando,
had already been proclaimed even before the pre-proclamation case was filed by
him (Gallardo) in the COMELEC. That circumstance, was precisely the reason why
the COMELEC dismissed the pre-proclamation case, for the rule is that after the
winning candidate has been proclaimed and assumed office, a pre-proclamation
petition does not lie against him (Casimiro, et al.
vs. COMELEC, et al., G.R. Nos. 84462-63, March 29, 1989; and Antonio, et al.
vs. COMELEC, et al., G.R. Nos. 84678-79, March 29, 1989).

But, although already proclaimed and installed in office, he may
still be unseated:  (1) when his opponent
is adjudged the true winner of the election by a final judgment of the courts
in the election contest (Sec. 251, Omnibus Election Code); (2) when the
prevailing party is declared ineligible or disqualified by final judgment in a quo warranto case (Sec. 253,
Omnibus Election Code); and (3) when the incumbent is removed from office for
cause (Sec. 264, Omnibus Election Code, Secs. 8, 9
and 12, Rep. Act No. 3019).

For all the foregoing, we hold that respondent Judge committed a
patent error and a grave abuse of discretion in dismissing Gallardo’s timely
election protest.

WHEREFORE, the petition for review is granted.  The orders dated September 19, 1989 (Annex G, p. 34, Rollo) and November
24, 1989 (Annex K, p. 52, Rollo) of the
Regional Trial Court, Branch 33, of Bauang, La Union,
in Municipal Election Protest No. 4-Bg. are hereby annulled and set aside.  Respondent court is ordered to reinstate said
election protest and proceed to trial with dispatch. This decision is
immediately executory.  Costs against the
respondent.

SO ORDERED.

Fernan, C.J., Narvasa,
Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco,
Padilla, Bidin, Sarmiento,
Cortes, Medialdea, and
Regalado, JJ., concur.