G.R. No. 126221 April 28, 1998
HALIM ASMALA, petitioner, vs. COMMISSION ON ELECTIONS and HADJI HUSNI MOHAMMAD, respondents.

FACTS

In the May 8, 1995 elections for Vice Mayor of Tuburan, Basilan, the Municipal Board of Canvassers proclaimed Hadji Husni Mohammad as the winner with 3,065 votes, followed by Emmanuel Alano with 2,912 votes, and Halim Asmala with 2,542 votes. Halim Asmala filed an election protest (Election Case No. 4-95) with the Regional Trial Court (RTC) of Basilan. On February 14, 1996, the RTC rendered a decision, after invalidating ballots found to be written by only one or two persons, crediting Asmala with 2,130 votes, Alano with 1,920 votes, and Mohammad with 1,729 votes, and adjudging Asmala as the duly elected Vice Mayor. On February 26, 1996, after the promulgation of the decision, private respondent Mohammad filed his Notice of Appeal. On February 27, 1996, petitioner Asmala filed a Motion for Execution Pending Appeal. Mohammad opposed, arguing that his perfected appeal divested the trial court of jurisdiction. On March 28, 1996, the RTC granted the motion, requiring a bond and ordering Asmala’s proclamation and installation. On April 1, 1996, Mohammad filed a Petition for Certiorari with the COMELEC. On August 20, 1996, the COMELEC granted Mohammad’s petition and set aside the RTC’s Order, ruling the RTC lacked jurisdiction. Asmala filed the instant petition for certiorari with the Supreme Court on September 19, 1996. Meanwhile, on September 21, 1996, Mohammad moved for execution of the COMELEC’s August 20 Resolution. The COMELEC granted this motion ex parte on September 24, 1996, issuing a writ of execution, prompting Asmala to file a Supplemental Petition.

ISSUE

1. Whether the COMELEC exceeded its jurisdiction or committed grave abuse of discretion in setting aside the RTC’s March 28, 1996 Order granting execution pending appeal.
2. Whether the COMELEC acted with grave abuse of discretion in granting private respondent’s motion for execution of its August 20, 1996 Resolution, notwithstanding the pendency of the petition for certiorari assailing said Resolution.

RULING

1. Yes. The COMELEC acted with grave abuse of discretion amounting to lack of jurisdiction in setting aside the RTC’s Order. The RTC retained jurisdiction to act on the Motion for Execution Pending Appeal because it was filed within the reglementary period for perfecting an appeal. Under Rule 35, Section 22 of the 1993 COMELEC Rules of Procedure, parties have five (5) days from service of judgment to appeal. The RTC promulgated its judgment on February 26, 1996. Although Mohammad filed his Notice of Appeal on that day, the appeal was deemed perfected only upon the expiration of the last day to appeal by any party. When Asmala filed his Motion for Execution Pending Appeal on February 27, 1996, the appeal was not yet perfected as to him, and the RTC still had jurisdiction over the case. The Supreme Court, citing Edding vs. COMELEC and Relampagos vs. Cumba, ruled that the mere filing of a notice of appeal does not divest the trial court of jurisdiction to resolve pending incidents filed within the appeal period.
2. The Supreme Court set aside the COMELEC’s August 20, 1996 Resolution and reinstated the RTC’s Order of execution pending appeal. The decision is immediately executory. (The ruling on the second issue regarding the COMELEC’s grant of execution of its own Resolution is implicit in the final disposition reinstating the RTC’s Order, thereby nullifying the COMELEC’s subsequent actions based on its annulled Resolution.)