Nollen, Jr. v. Comelec (G.R. No.187635; January 11, 2010)


FACTS: Respondent Susana M. Caballes and petitioner Mateo R. Nollen, Jr. were candidates for punong barangay ofGibanga, Sariaya, Quezon in the October 29, 2007 barangay elections. Having garnered four hundred and fifty-six (456) votes as against the four hundred and forty-eight (448) votes Caballes obtained, Nollen was declared as the punong barangay-elect.Dissatisfied with the result, Caballes instituted an election protest with the Municipal Trial Court (MTC). The MTC rendered a decision declaring protestant Caballes as punong barangay-elect. Nollen filed on June 5, 2008 his notice of appeal and paid the MTC the appeal fee of PhP 1,000. The First Division of the COMELEC dismissed Nollen's appeal for his failure to pay the appeal fee of PhP 3,000 prescribed by Sections 3 and 4, Rule 40 of the COMELEC Rules of Procedure within the reglementary period of five (5) days.

The COMELEC En Banc denied Nollens motion for reconsideration on the rationalization that, while he timely filed his notice of appeal and simultaneously paid the PhP 1,000 appeal fee with the MTC on June 5, 2008, the appeal would be deemed duly registered and docketed only upon full payment of the filing fee to the COMELEC.

ISSUE: Did the COMELEC act without or in excess of its jurisdiction or with grave abuse of discretion, amounting to lack, or in excess, of jurisdiction?

HELD: Pending resolution of this petition, several relevant incidents transpired bearing on the payment of the appeal fees imposed by different rules in election cases.Payment of appeal fees in appealed election protest cases is now separately required by the Rules of Court and Sec. 3, Rule 40 of the COMELEC Rules of Procedure, as amended by Resolution No. 02-0130, Series of 2002, a situation not obtaining previously.

The Court takes judicial notice that the COMELEC promulgated on August 4, 2009 Resolution No. 8654 with regard to the determination of the sufficiency and timely payment of the appeal fees as requisite for the perfection of appeals. The Resolution provides that:

[1] The appeal to the COMELEC of the trial courts decision in election contests involving municipal and barangay officials is perfected upon the filing of the notice of appeal and the payment of the PhP 1,000-appeal fee to the court that rendered the decision within the five-day reglementary period.The non-paymentor the insufficient payment of the additional appeal fee of PhP 3,200 to the COMELEC Cash Division, in accordance with Rule 40, Section 3 of the COMELEC Rules of Procedure, as amended,does not affect the perfection of the appeal and does not result in outright or ipso facto dismissal of the appeal, and;

[2] If the appellant filed his appeal before the effectivity of COMELEC Resolution No. 8486, the appellant shall be directed to pay the additional appeal fee of PhP 3,200within fifteen (15) days from receipt of notice from the Commission, in accordance with Resolution No. 8486.If the latter should refuse to comply, then, and only then shall the appeal be dismissed.

As COMELEC Resolution No. 8654 reiterated, the payment of the PhP 1,000 appeal fee within five days from the promulgation of the Regional Trial Court or MTC decision technically perfects the appeal from the trial courts decision.Such appeal is not dismissible as a matter of course on account alone of the inadequate payment or nonpayment of the filing fee of PhP 3,200.The legal situation, however, changes if the appellant, in the words of Resolution No. 8654, fails, as directed, to pay the amount within 15 days from receipt of notice from the COMELEC. In the instant case, albeit Nollen paid the PhP 3,200 only in October 2008, or long after his receipt of the June 2008 MTC decision, his appeal may validly be viewed as not fatally belated. COMELEC Resolution No. 8654 is applicable to his appeal, as the appeal was on June 5, 2008, or prior to July 24, 2008 when the more stringent Resolution No. 8486 took effect.

For the sake of laying down clearly the rules regarding the payment of the appeal fee, a discussion of the application of the recent Divinagracia v. COMELEC to election contests involving elective municipal and barangay officials is necessary. Divinagracia explained the purpose of Resolution No. 8486 which, as earlier stated, the COMELEC issued to clarify existing rules and address the resulting confusion caused by the two appeal fees required, for the perfection of appeals, by the two different jurisdictions: the court and COMELEC. Divinagracia stressed that if the appellants had already paid the amount of PhP 1,000 to the lower courts within the five-day reglementary period,they are further required to pay the COMELEC, through its Cash Division, the appeal fee of PhP 3,200 within fifteen (15) days from the time of the filing of the notice of appeal with the lower court.If the appellants failed to pay the PhP 3,200 within the prescribed period, then the appeal should be dismissed.

Divinagracia, however, contained the following final caveat: that for notice of appeal filed after the promulgation of this decision,errors in the matter of non-payment or incomplete payment of the two appeal fees in election cases are no longer excusable.

It cannot be overemphasized, however, that the warning given in Divinagracia is inapplicable to the case at bar, since the notice of appeal in the instant case was filed on June 5, 2008. In the strict legal viewpoint, Divinagracia contextually finds applicability only in cases where notices of appeal were filed at least after the promulgation of the Divinagracia decision on July 27, 2009. Since petitioner paid the appeal fee of PhP 1,000 simultaneously with his filing of his notice of appeal on June 5, 2008, the appeal is considered perfected pursuant to COMELEC Resolution No. 8654, taking it beyond the ambit of Divinagracia. Again, petitioners failure to pay the remaining PhP 3,200 within the prescribed period cannot be taken against him, since the COMELEC failed to notify him regarding the additional appeal fee, as provided by Resolution No. 8654. Although Nollen, following superseded jurisprudence, failed to pay the filing fee on time, he nonetheless voluntarily paid the remaining PhP 3,200 appeal fee on October 6, 2008. We, thus, credit him for remitting the amount of PhP 3,200, which, applying extant rules and prevailing jurisprudence, cannot be considered as having been belatedly paid. GRANTED.