On June 5, 1992, private respondent filed an

G.R. No. 112283 August 30, 1994 Answer with a Counter-Protest of the results
in thirty-six (36) precincts.
EVELYN ABEJA, petitioner,
vs. During the pre-trial, private respondent's
JUDGE FEDERICO TAÑADA, Regional counsel filed a motion praying that the 36
Trial Court of Lucena City, Branch 58, and counter-protested precincts be revised only if
ROSAURO RADOVAN (deceased) *, it is shown after completion of the revision of
respondents. the 22 protested precincts that petitioner
leads by a margin of at least one (1) vote.
Roger E. Panotes for petitioner. The trial court declared discussion on the
matter to be premature (TSN, July 6, 1992,
Antonio P. Relova for Conrado de Rama. pp. 8-12; Rollo, p. 148). The revision of the
ballots covering 22 protested precincts was
Eduardo R. Santos collaborating counsel completed in September 1992. Thereafter,
for private respondent. petitioner urged private respondent to
commence the revision of the 36 counter-
protested precincts by praying the necessary
BIDIN, J.: fees for the purpose. Private respondent
refused.
In this petition for certiorari, petitioner seeks
the annulment of the orders dated September In view thereof, petitioner moved that the
21, 1992 and October 18, 1993 issued by counter-protest of private respondent be
respondent Judge Federico Tañada which considered withdrawn. Private respondent
decreed, among others, the revision of some opposed the motion and reiterated that the
36 precincts contained in the counter-protest ballots of the 36 counter-protested precincts
filed by respondent Radovan. The said orders should only be revised and recounted if it is
were issued by respondent judge in resolving shown after the revision of the contested
petitioner/protestant's "Motion to Determine ballots of the 22 precincts that petitioner
Votes, to Proclaim Winner and to Allow leads by at least one (1) vote.
Assumption of Office" dated August 27, 1993.
Petitioner filed another manifestation and
The antecedent facts of the case are as motion on September 29, 1992, praying that
follows: the counter-protest be considered withdrawn
from the time the final report of the Board of
Petitioner Evelyn Abeja and private Revisors is submitted to the court for
respondent Rosauro Radovan (deceased) approval.
were contenders for the office of municipal
mayor of Pagbilao, Quezon, in the May 11, The then presiding Judge, Hon. Ludovico
1992, national elections. Lopez, did not rule on the aforementioned
motions but, according to petitioner, he
Based on the official returns of the Municipal (Judge Lopez) declared during a hearing in
Board of Canvassers for the said October 1992 that once a ruling is made on
municipality, private respondent was credited the contested ballots of the 22 protested
with 6,215 votes as against petitioner's 5,951 precincts, he will not allow further revision of
votes. ballots.

Soon after the proclamation of private By April 1993, all pending incidents including
respondent, petitioner filed an election the report of the Board of Revisors as well as
contest, docketed as Election Case No. 92-1, petitioner's formal offer of evidence were
entitled "Evelyn Abeja vs. Rosauro Radovan" considered submitted for resolution without
with the Regional Trial Court of Lucena City. private respondent having caused the
The protest covered twenty-two (22) revision of the ballots in the 36 counter-
precincts. protested precincts.
In an order dated April 15, 1993, Presiding Private respondents filed a Motion to Correct
Judge Lopez ruled that "(p)rotestant's offer of the order dated August 18, 1993, issued by
evidence as well as the protestee's objections Judge Lopez as well as oppositions to the
thereto are now submitted for the Court's motion of petitioner. Respondents claim that
resolution" (Rollo, p. 61). petitioner's "Motion to Proclaim Winner" is
premature since the 36 counter-protested
On June 13, 1993, private respondent precincts are yet to be revised.
Rosauro Radovan died. He was substituted
by Vice-Mayor Conrado de Rama and, In an order dated September 21, 1993, herein
surprisingly, by his surviving spouse, respondent Judge Federico Tañada, who
Ediltrudes Radovan. succeeded Judge Lopez, denied the "Motion
to Determine Votes, to Proclaim Winner and
On July 13, 1993, private respondents de to Allow Assumption of Office" filed by
Rama and Radovan filed a Manifestation petitioner. Respondent judge ruled that
seeking a prompt resolution of all pending petitioner's motion was indeed premature on
incidents. the ground that until after the 36 counter-
protested precincts have been revised, the
On August 12, 1993, the trial court issued an court could not render a valid decision.
order stating that "(c)ounsels for both parties
having signified to this Court that they are On October 18, 1993, respondent judge
submitting the motion to resolve without issued another order denying petitioner's
further argument. This motion being a motion motion for reconsideration and directed the
to resolve, the Court hereby informs the revision committee to conduct a revision of
parties that pending matters submitted for the results of the 36 counter-protested
resolution will be duly resolved on or before precincts scheduled on November 10, 1993.
August 20, 1993" (Rollo, p. 143).
These orders are the subject of this petition
Shortly thereafter, Judge Lopez was filed on November 8, 1993.
reassigned to the Regional Trial Court of
Kalookan City. Before transferring to his new As prayed for by petitioner, the Court issued
post, however, Judge Lopez issued an order a temporary restraining order on November
dated August 18, 1993 which contained his 17, 1993, enjoining respondents from
ruling in each of the contested ballots in the continuing with the revision of the ballots in
22 contested precincts and the reasons the 36 counter-protested precincts. It
therefor. In the said order, Judge Lopez appears, however, that the restraining order
emphasized that "in ruling on the various was served on November 19, 1993, after the
objections lodged by both parties during the revision committee had completed revising 11
revision proceedings, the originals of the ballot boxes.
contested ballots in the ballot boxes were
subjected to careful scrutiny in the seclusion The sole issue to be resolved in this case is
of the Court's chamber" (Rollo, p. 161). whether or not private respondents should be
Nonetheless, the ruling did not contain a allowed to proceed with the revision of the 36
summation of the exact number of votes to be precincts subject of the counter-protest.
credited to each of the parties, or a
declaration of the winner in the election It is clear from the records that Judge Lopez
protest for that matter. failed to issue a definitive ruling on this
specific procedural issue raised by the
On August 27, 1993, petitioner filed a "Motion parties, which this Court must now provide.
to Determine Votes, To Proclaim Winner and
to Allow Assumption of Office" considering Although petitioner claims that Judge Lopez
that based on her own computation of revised issued a warning to private respondent to the
ballots ruled upon by Judge Lopez, she led effect that he (private respondent) shall not
private respondent by a margin of 281 votes. 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 decision for the counter-protest. It is further
written order of Judge Lopez containing such argued that since the 36 counter-protested
warning or at least the date and precincts were already under the jurisdiction
circumstances of the hearing in which the of the trial court, the same should have been
said warning was issued. Consequently, the revised unconditionally and should not have
alleged warning issued by Judge Lopez is been subjected to the whim and caprice of
unsubstantiated and must therefore be the private respondent.
disregarded.
The petition is impressed with merit.
Coming now to the merits of the case,
petitioner contends that the revision of the Considering that this petition involves an
counter-protested precincts filed by private election protest heard by a regional trial court,
respondent has already been abandoned by the Comelec Rules of Procedure are
his failure to pursue the same, right after the controlling.
revision of the 22 protested precincts.
Petitioner also argue that the case was In view of the fact that the subject election
deemed submitted for decision upon contest was filed on May 26, 1992, Section 2,
submission by the Board of Revisors of the Rule 17 and Section 11, Rule 35 of the
Report on the Revision of the 22 protested aforementioned Comelec rules are
precincts. applicable. Rule 17 treats of Hearings
whereas Rule 35 treats of Election Contests
In the instant case, petitioner, as protestant Before Courts of General Jurisdiction. *
below, completed the revision of ballots in the
22 protested precincts in September 1992 Section 2, Rule 17 provides, in part:
and her presentation of evidence in April
1993. Likewise, the Board of Revisors had Sec. 2. Order of hearing. — Unless the
submitted its report and the trial court issued Commission or the Division, as the case may
a ruling dated August 18, 1993 on the said be, for special reasons, directs otherwise, the
revision. Given this state of the proceedings, order of hearing shall be as follows:
the question to be resolved is whether
respondent may still be allowed to commence (a) The petitioner or protestant shall present
the revision of the counter-protested precincts evidence on his part;
or should he be deemed to have waived his
right to present his own evidence, i.e., the (b) The protestant-in-intervention, if any, shall
revision of the counter-protested precincts then offer evidence in support of his defense
after stubbornly refusing to do so. or counter-protest, if any;

Petitioner argues that while the sequence in (c) The respondent or protestee shall then
the presentation of evidence may be altered offer evidence in support of his defense or
for special reasons, the applicable rules of counter-protest, if any;
procedure do not allow presentation of
evidence after the court has already rendered It thus appears from the foregoing rule that
a decision. Clearly, petitioner considers the the petitioner/protestant and the
August 18, 1993 Order of Judge Lopez to be respondent/protestee shall present their
the "decision" on the case although the order evidence upon their original case in
did not contain a summation of the total votes succession in accordance with the order or
credited to each of the parties or a sequence provided therein.
declaration of the winner in the election
protest. On the other hand, Section 11, Rule 35
provides:
Petitioner objects to the stand taken by
private respondent on the procedure to be Sec. 11. Presentation and reception of
followed for being "unprocedural" in the evidence. — The presentation and reception
sense that a decision rendered on the of evidence in election contests shall be
election protest would be subject to another made in accordance with Section 2 of Rule
17 of these Rules, but the same shall be neglect, for an unreasonable and unexplained
completed within thirty (30) days from the length of time, to do that which, by exercising
date of the commencement thereof. due diligence could or should have been
done earlier; it is negligence or omission to
The record shows that the revision of ballots assert a right within a reasonable length of
in the 22 protested precincts was completed time, warranting a presumption that a party
sometime in September 1992. Judge Lopez entitled to assert it either has abandoned it or
issued a ruling on the said revision almost a declined to assert it (Republic v. Caballero,
year later, or on August 18, 1993. 79 SCRA 177 [1977]).

In the interim, private respondent failed to In the case at bar, private respondent
commence the revision of the ballots in the unreasonably failed to cause the revision of
counter-protested precincts, stubbornly the counter-protested precincts despite being
maintaining the position that said precincts afforded ample time to do so and must be
should be revised only if it is shown after the deemed to have abandoned it. However, it is
revision that petitioner leads private not clear from the record of the case whether
respondent by at least one (1) vote. No law or Judge Lopez issued an order requiring
rule authorizes such a procedure. private respondent to pay the required cash
Consequently, private respondent must be deposit for the revision of the ballots in the
deemed to have waived or abandoned his counter-protested precincts in accordance
counter-protest. with Section 10, (b), Rule 35 of the Comelec
Rules of Procedure, otherwise, the counter-
The applicable Comelec rules provide for the protest shall be automatically dismissed as
presentation of evidence by the parties in provided in Sec. 10[c] thereof:
succession in the order or sequence provided
under Sec. 2, rule 17 (Comelec Rules) which Sec. 10. Cash Deposit. —
must be submitted within a reasonable time, if
not immediately after the revision of the xxx xxx xxx
precincts covered by the protest proper.
(b) In case revision of ballots is required,
By insisting that the counter-protested there shall be deposited, within ten days after
precincts should be revised only if it is shown being required by the Court, the sum of three
after the revision of the protested precincts hundred pesos (P300.00) for every ballot box
that petitioner, his opponent, leads by at least for the compensation of revisors at the rate of
one (1) vote, private respondent is adopting a P100.00 each.
self-serving rule without legal sanction
calculated to unduly prolong the litigation. (c) Failure to make the cash deposits herein
provided within the prescribed time limit shall
Furthermore, it is readily apparent from the result in the automatic dismissal of the
provisions of the applicable Comelec Rules protest, counter-protest or protest-in-
that the court shall render its decision after intervention, as the case may be.
both parties shall have presented their
respective evidence. Nowhere in the said In the Comment of private respondent's
provisions is it indicated that presentation of widow, it is alleged that "the record of the
evidence by the protestee may continue after case definitely show (sic) that Judge Lopez
the court has ruled on the evidence of the himself categorically ruled that the counter-
protestant and determine the number of votes protest was filed on time and the necessary
obtained by the latter. Otherwise, it would be cash deposit submitted by private respondent
possible for the protestee to prolong the pursuant to law" (Rollo, p. 60). However,
protest and render it moot by expiration of the private respondent fails to cite that part of the
term of office contested. record in which the said ruling may be found.

There is likewise merit to petitioner's claim Private respondent attributes the delay in the
that private respondent is guilty of laches, resolution of the case to Judge Lopez for
which, in a general sense, is a failure or failing to rule on the issues raised by the
parties. However, it cannot be denied that the possibility is not remote that private
private respondent has maintained the same respondent may once again resort to dilatory
position regarding the revision of his counter- tactics.
protest from the very beginning, as early as
the pre-trial of the case, and all throughout Section 2, Rule 39 of the Rules of Court
the course of the proceedings. Although allows execution pending appeal in election
Judge Lopez' inaction may have contributed cases upon good reasons (Garcia v. de
to the delay of the case, private respondent Jesus, supra; in relation to Rule 43, Sec. 1,
Radovan must bear the grave consequences COMELEC Rules of Procedure) which we
of his stubborn and unfounded refusal to find obtaining in the case before us.
proceed with the revision of the counter-
protested precincts. Instead of conducting the Gahol v. Riodique (64 SCRA 494 [1975]) is
revision of his counter-protested precincts, even more emphatic:
private respondent hedged and stalled on the
resolution of the case which is a purely Why should the proclamation by the board of
dilatory technique. canvassers suffice as a basis of the right to
assume office, subject to future contingencies
Private respondent's argument is that the attendant to a protest, and not the decision of
procedure advocated by him would actually a court of justice? Indeed, when it is
save time. Nothing that the resolution of considered that the board of canvassers is
petitioner's protest took almost a year, he composed of person who are less technically
contends that about the same length of time prepared to make an accurate appreciation of
would be saved in the event a revision of the the ballots, apart from their being more apt to
counter-protested precincts would be yield to external consideration, and that the
declared unnecessary. Suffice it to state that board must act summarily, practically racing
the procedure proposed by private against time, while on the other hand, the
respondent is not sanctioned by the Rules judge has the benefit of all the evidence the
and need not delay us any longer that it parties can offer and of admittedly better
already has in the disposition of this case. technical preparation and background, apart
from his being allowed ample time for
Upon the foregoing, we hold that the conscientious study and mature deliberation
respondent judge erred in rendering the before rendering judgment, one cannot but
assailed orders denying petitioner's "Motion perceive the wisdom of allowing the
to Determine Votes, to Declare Winner and to immediate execution of decisions in election
Allow Assumption of Office" and directing the cases adverse to the protestees,
revision of the counter-protested precincts at notwithstanding the perfection and pendency
this late hour, so to speak. Under the of appeals therefrom, as long as there are, in
circumstances and for reasons discussed the sound discretion of the court, good
above, the order of Judge Lopez dated reasons therefor. (cited in Garcia v. de Jesus,
August 18, 1993 which resolved the party supra)
litigants' objections to the revised ballots may
very well be the subject of a valid decision to We also find as erroneous the substitution of
resolve the instant electoral protest based on the deceased Rosauro Radovan's widow,
the revised ballots of the 22 protested Ediltrudes Radovan, on the ground that
precincts. private respondent had a counter-claim for
damages. "Public office is personal to the
In the event petitioner is declared the winning incumbent and is not a property which passes
candidate, she should, upon proper motion, to his heirs" (Santos vs. Secretary of Labor,
be allowed to immediately assume the 22 SCRA 848 [1968]; De la Victoria vs.
contested office. We say this because in their Comelec, 199 SCRA 561 [1991]). The heirs
pleadings, petitioner and private respondent may no longer prosecute the deceased
have amply discussed their respective protestee's counter-claim for damages
arguments in the applicability of Garcia v. de against the protestant for that was
Jesus and the accompanying case of Tobon extinguished when death terminated his right
Uy v. Comelec (206 SCRA 779 [1992]) and
to occupy the contested office (Dela Victoria,
supra).

WHEREFORE, the petition is hereby

SO ORDERED.

Feliciano, Romero, Melo and Vitug, JJ.,