Abeja vs. Tañada

A counter-protest is deemed waived or abandoned where the protestee, despite ample opportunity, refuses to commence revision of the counter-protested precincts and conditions such revision on an unauthorized requirement that the protestant first be shown to lead by at least one vote; the counter-protest must then be dismissed. Public office is personal to the incumbent and does not pass to heirs, so the deceased protestee's widow may not be substituted to prosecute his counter-claim for damages.

Evelyn Abeja and Rosauro Radovan were rival candidates for the office of municipal mayor of Pagbilao, Quezon, in the May 11, 1992 national elections. Their election contest was governed by the COMELEC Rules of Procedure for election contests before courts of general jurisdiction, specifically the then-applicable rules on order of hearing and presentation of evidence for contests filed on May 26, 1992. The case also implicated the COMELEC rule on cash deposits for revision of ballots and the rule on execution pending appeal in election cases.

Evelyn Abeja and Rosauro Radovan were contenders for municipal mayor of Pagbilao, Quezon, in the May 11, 1992 national elections. Based on the official returns of the Municipal Board of Canvassers, Radovan was credited with 6,215 votes against Abeja's 5,951 votes, and he was proclaimed. Soon after the proclamation, Abeja 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. Her protest covered 22 precincts.

On June 5, 1992, Radovan filed an Answer with a Counter-Protest covering 36 precincts. During pre-trial, his counsel moved that the 36 counter-protested precincts be revised only if, after the revision of the 22 protested precincts was completed, Abeja was shown to lead by a margin of at least one vote. The trial court declared discussion on the matter premature. The revision of the ballots in the 22 protested precincts was completed in September 1992. Abeja thereafter urged Radovan to commence the revision of the 36 counter-protested precincts by paying the necessary fees, but Radovan refused.

Abeja moved that Radovan's counter-protest be considered withdrawn. Radovan opposed the motion and reiterated that the 36 counter-protested precincts should be revised only if Abeja led by at least one vote after the initial revision. On September 29, 1992, Abeja filed another manifestation and motion praying that the counter-protest be considered withdrawn from the time the final report of the Board of Revisors was submitted to the court for approval. The then presiding Judge Ludovico Lopez did not rule on the motions. Abeja claimed that during an October 1992 hearing, Judge Lopez declared that once he ruled on the contested ballots of the 22 protested precincts, he would not allow further revision of ballots.

By April 1993, all pending incidents, including the report of the Board of Revisors and Abeja's formal offer of evidence, were considered submitted for resolution without Radovan having caused the revision of the ballots in the 36 counter-protested precincts. In an order dated April 15, 1993, Judge Lopez ruled that Abeja's offer of evidence and Radovan's objections thereto were submitted for the court's resolution. On June 13, 1993, Radovan died. He was substituted by Vice-Mayor Conrado de Rama and, surprisingly, by his surviving spouse, Ediltrudes Radovan. On July 13, 1993, de Rama and Ediltrudes Radovan filed a manifestation seeking prompt resolution of all pending incidents.

On August 12, 1993, the trial court issued an order stating that the parties had submitted the motion to resolve without further argument and that pending matters would be resolved on or before August 20, 1993. Shortly thereafter, Judge Lopez was reassigned to the Regional Trial Court of Kalookan City. Before transferring, he issued an order dated August 18, 1993 containing his ruling on each contested ballot in the 22 contested precincts and the reasons therefor. The order emphasized that the original contested ballots were subjected to careful scrutiny in the seclusion of the court's chamber, but it did not contain a summation of the exact number of votes credited to each party or a declaration of the winner.

On August 27, 1993, Abeja filed a "Motion to Determine Votes, To Proclaim Winner and to Allow Assumption of Office." Based on her own computation of the revised ballots ruled upon by Judge Lopez, she claimed to lead Radovan by a margin of 281 votes. Private respondents filed a motion to correct the August 18, 1993 order and oppositions, claiming that Abeja's motion was premature because the 36 counter-protested precincts had yet to be revised. In an order dated September 21, 1993, respondent Judge Federico Tañada, who succeeded Judge Lopez, denied Abeja's motion. On October 18, 1993, he denied reconsideration and directed the revision committee to conduct the revision of the 36 counter-protested precincts on November 10, 1993. Abeja filed the present petition on November 8, 1993.

• Abandonment of Counter-Protest: Petitioner contended that private respondent abandoned his counter-protest by failing to pursue revision of the 36 counter-protested precincts after the revision of the 22 protested precincts was completed.
• Case Deemed Submitted: Petitioner argued that the case was deemed submitted for decision upon submission by the Board of Revisors of its report on the revision of the 22 protested precincts.
• Improper Presentation of Evidence: Petitioner maintained that while the sequence of evidence may be altered for special reasons, the rules do not allow presentation of evidence after the court has rendered a decision; she treated the August 18, 1993 order as the decision despite its lack of a vote summation or winner declaration.
• Unprocedural Counter-Protest Procedure: Petitioner objected that private respondent's procedure would make a decision on the protest subject to another decision on the counter-protest, and argued that since the 36 counter-protested precincts were already under the trial court's jurisdiction, they should have been revised unconditionally and not subjected to private respondent's whim.
• Laches: Petitioner claimed private respondent was guilty of laches for unreasonably failing to cause the revision despite ample time.

• Conditional Revision: Private respondent opposed the motion to consider the counter-protest withdrawn and reiterated that the 36 counter-protested precincts should be revised and recounted only if, after revision of the 22 protested precincts, petitioner led by at least one vote.
• Prematurity: Private respondents claimed that petitioner's Motion to Proclaim Winner was premature because the 36 counter-protested precincts had yet to be revised.
• Timely Filing and Cash Deposit: In the comment of private respondent's widow, it was alleged that the record showed Judge Lopez categorically ruled that the counter-protest was filed on time and the necessary cash deposit was submitted pursuant to law.
• Delay Attributable to Judge Lopez: Private respondent attributed the delay in resolving the case to Judge Lopez's failure to rule on the issues raised by the parties.
• Time-Saving Procedure: Private respondent argued that the procedure he advocated would save time, since the resolution of petitioner's protest took almost a year and about the same length of time would be saved if revision of the counter-protested precincts were declared unnecessary.

• Revision of Counter-Protested Precincts: Whether private respondents should be allowed to proceed with the revision of the 36 precincts subject of the counter-protest.
• Substitution of the Deceased Protestee's Widow: Whether Ediltrudes Radovan, widow of the deceased protestee Rosauro Radovan, was properly substituted in the election case.

• Revision of Counter-Protested Precincts: No. Private respondents should not be allowed to proceed with the revision of the 36 counter-protested precincts; the counter-protest is deemed waived or abandoned under the COMELEC Rules, and the assailed orders were set aside.
• Substitution of the Deceased Protestee's Widow: No. The substitution of Ediltrudes Radovan was erroneous; public office is personal to the incumbent and does not pass to heirs, and the deceased protestee's counter-claim for damages was extinguished by death.

• Revision of Counter-Protested Precincts: The COMELEC Rules of Procedure controlled because the election protest was heard by a regional trial court. Since the contest was filed on May 26, 1992, Section 2, Rule 17 and Section 11, Rule 35 of the COMELEC Rules applied. Section 2, Rule 17 prescribed the order of hearing: the protestant presents evidence, then the protestant-in-intervention, then the protestee offers evidence in support of his defense or counter-protest. Section 11, Rule 35 required presentation and reception of evidence in election contests to follow Section 2, Rule 17 and to be completed within 30 days from commencement. The record showed that revision of the 22 protested precincts was completed in September 1992, but Judge Lopez issued his ruling only on August 18, 1993. In the interim, Radovan failed to commence revision of the 36 counter-protested precincts and stubbornly maintained that they should be revised only if Abeja led by at least one vote after the initial revision. No law or rule authorized that procedure. Consequently, Radovan was deemed to have waived or abandoned his counter-protest. The rules contemplated presentation of evidence by the parties in succession within a reasonable time, if not immediately after revision of the precincts covered by the protest proper. Radovan's condition was a self-serving rule without legal sanction calculated to unduly prolong the litigation. The court was to render decision after both parties presented evidence; nothing indicated that the protestee could continue presenting evidence after the court had ruled on the protestant's evidence and determined the votes obtained by the latter. Otherwise, the protestee could prolong the protest and render it moot by expiration of the contested term. Laches also applied: it 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, and it warrants a presumption that the party entitled to assert the right has abandoned it or declined to assert it (Republic vs. Caballero). Radovan unreasonably failed to cause revision despite ample time and was deemed to have abandoned the counter-protest. The Court also noted that it was unclear whether Judge Lopez had ordered Radovan to pay the required cash deposit under Section 10(b), Rule 35; failure to make the deposit within the prescribed time would result in automatic dismissal under Section 10(c). Radovan's widow alleged that the record showed the counter-protest was timely and the cash deposit was submitted, but she failed to cite the part of the record. Although Judge Lopez's inaction may have contributed to delay, Radovan maintained the same position from pre-trial and had to bear the consequences of his stubborn and unfounded refusal to proceed. His proposed procedure was not sanctioned by the Rules. Thus, respondent judge erred in denying Abeja's motion and directing revision of the counter-protested precincts at such a late hour. The August 18, 1993 order could serve as the basis of a valid decision on the protest based on the revised ballots of the 22 protested precincts. If Abeja were declared the winning candidate, she should, upon proper motion, be allowed to assume the contested office, since Section 2, Rule 39 of the Rules of Court allows execution pending appeal in election cases upon good reasons (Garcia vs. de Jesus, in relation to Rule 43, Section 1, COMELEC Rules), and Gahol vs. Riodique supports immediate execution of decisions adverse to protestees.
• Substitution of the Deceased Protestee's Widow: The substitution of Ediltrudes Radovan was erroneous. Public office is personal to the incumbent and is not property that passes to his heirs (Santos vs. Secretary of Labor; De la Victoria vs. Comelec). The heirs may no longer prosecute the deceased protestee's counter-claim for damages against the protestant because that claim was extinguished when death terminated his right to occupy the contested office (De la Victoria vs. Comelec). Accordingly, costs were assessed against Ediltrudes Radovan.

• Waiver or Abandonment of Counter-Protest — A protestee who, despite ample opportunity, fails to commence the revision of counter-protested precincts and insists on a condition not authorized by the COMELEC Rules is deemed to have waived or abandoned the counter-protest. The Court applied this because Radovan refused to proceed with the revision of the 36 counter-protested precincts and conditioned it on Abeja's first being shown to lead by at least one vote.
• Order of Presentation of Evidence in Election Contests — Under the then-applicable COMELEC Rules, the protestant presents evidence first, followed by the protestant-in-intervention, and then the protestee in support of his defense or counter-protest; presentation and reception of evidence must be completed within 30 days from commencement. The Court used this to reject Radovan's attempt to defer his counter-protest evidence until after the protestant's evidence had been ruled upon.
• Laches — Laches 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 time, warranting a presumption that the party entitled to assert it has abandoned it or declined to assert it. The Court found Radovan guilty of laches for unreasonably failing to cause the revision of the counter-protested precincts despite ample time.
• Cash Deposit for Revision of Ballots — Under Section 10(b), Rule 35 of the COMELEC Rules, a party required to have ballots revised must deposit P300.00 for every ballot box within ten days after being required by the court, for compensation of revisors at P100.00 each; failure to make the deposit within the prescribed time results in automatic dismissal of the protest, counter-protest, or protest-in-intervention under Section 10(c). The Court noted the record was unclear whether Judge Lopez had issued such an order, but the provision reinforced the dismissal consequence.
• Execution Pending Appeal in Election Cases — Section 2, Rule 39 of the Rules of Court allows execution pending appeal in election cases upon good reasons. The Court found good reasons obtaining and held that if Abeja were declared the winning candidate, she should, upon proper motion, be allowed to immediately assume the contested office.
• Public Office Is Personal to the Incumbent — Public office is personal to the incumbent and is not property that passes to his heirs. The Court applied this to hold that the deceased protestee's widow was erroneously substituted and that the heirs could no longer prosecute his counter-claim for damages, which was extinguished when death terminated his right to occupy the contested office.

• "No law or rule authorizes such a procedure. Consequently, private respondent must be deemed to have waived or abandoned his counter-protest." — This states the ratio for dismissing the counter-protest: Radovan's conditional-revision procedure had no legal basis, and his failure to proceed amounted to waiver or abandonment.
• "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." — This defines the Court's core objection to Radovan's proposed procedure and explains why it was treated as dilatory.
• "Public office is personal to the incumbent and is not a property which passes to his heirs" — This is the canonical formulation used to invalidate the substitution of the deceased protestee's widow and to extinguish the heirs' prosecution of his counter-claim for damages.
• "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." — This provision is cited as an additional ground for dismissal if the required cash deposit for revision had not been made.

• Republic vs. Caballero, 79 SCRA 177 [1977] — Cited for the definition of laches as 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, warranting a presumption of abandonment or declination to assert a right.
• Garcia vs. de Jesus — Cited for the rule that Section 2, Rule 39 of the Rules of Court allows execution pending appeal in election cases upon good reasons.
• Tobon Uy vs. Comelec, 206 SCRA 779 [1992] — Mentioned as the accompanying case to Garcia vs. de Jesus in the parties' pleadings; the Court noted the possibility that private respondent might again resort to dilatory tactics.
• Gahol vs. Riodique, 64 SCRA 494 [1975] — Quoted for the wisdom of allowing immediate execution of decisions in election cases adverse to protestees, notwithstanding the perfection and pendency of appeals, where there are good reasons in the sound discretion of the court.
• Santos vs. Secretary of Labor, 22 SCRA 848 [1968] — Cited for the rule that public office is personal to the incumbent and is not property that passes to his heirs.
• De la Victoria vs. Comelec, 199 SCRA 561 [1991] — Cited for the same rule on public office and for the holding that the heirs may no longer prosecute the deceased protestee's counter-claim for damages, which was extinguished when death terminated his right to occupy the contested office.

• Section 2, Rule 17, COMELEC Rules of Procedure — Prescribed the order of hearing: the petitioner or protestant presents evidence, then the protestant-in-intervention, then the respondent or protestee in support of his defense or counter-protest. The Court applied it to require Radovan to present his counter-protest evidence in succession, not after the protestant's evidence had been ruled upon.
• Section 11, Rule 35, COMELEC Rules of Procedure — Required presentation and reception of evidence in election contests to follow Section 2, Rule 17 and to be completed within 30 days from commencement. The Court applied it in holding that Radovan's delayed counter-protest revision was not permitted.
• Section 10(b), Rule 35, COMELEC Rules of Procedure — Required a deposit of P300.00 for every ballot box, within ten days after being required by the court, for compensation of revisors at P100.00 each. The Court noted the record was unclear whether Judge Lopez had required Radovan to make this deposit.
• Section 10(c), Rule 35, COMELEC Rules of Procedure — Provided that failure to make the required cash deposits within the prescribed time results in automatic dismissal of the protest, counter-protest, or protest-in-intervention. The Court cited it as an additional consequence if no deposit had been made.
• Section 2, Rule 39, Rules of Court — Allowed execution pending appeal in election cases upon good reasons. The Court applied it in holding that if Abeja were declared the winner, she should be allowed to assume office upon proper motion.
• Rule 43, Section 1, COMELEC Rules of Procedure — Cited in relation to Section 2, Rule 39 of the Rules of Court on execution pending appeal in election cases.
• COMELEC Resolution No. 2493 (July 14, 1992) — The decision's footnote states that Sections 2, Rule 17 and Section 11, Rule 35 were subsequently repealed and superseded by this resolution, but the earlier provisions remained applicable because the election contest was filed on May 26, 1992.

Feliciano, Romero, Melo, and Vitug, JJ.