[G.R. No. 124033.

September 25, 1997]

ANTONIO T. KHO, petitioner, vs. COMMISSION ON ELECTIONS and

EMILIO A. ESPINOSA, respondents.

DECISION
TORRES, JR., J.:

May the Commission on Elections entertain a counter-protest filed by a party after

the period to file the same has expired? Although a routine issue, it can also have
crippling effects.
This is the case before us.
On May 30, 1995, petitioner Kho, a losing candidate in the 1995 gubernatorial
elections in Masbate, filed an election protest against private respondents Espinosa to
[1]

set aside the proclamation of the latter as the Provincial Governor of Masbate and to
declare him instead the winner in the elections.
Summons was then issued by the Commission on Elections (COMELEC, for
[2]

brevity) to Espinosa on June 1, 1995 requiring him to answer to Khos petition of protest
within five (5) days from receipt thereof.
It appears that Espinosa received the summons on June 6, 1995, but, he filed his
[3]

answer with counter protest only on June 15, 1995. When Kho received the answer
[4]

with counter-protest to Espinosa on June 24, 1995, he filed on the same date a motion
to expunge the said pleading because it was filed way beyond the reglementary period
of five (5) days as provided for under Rule 10, Section 1, Part II in relation to Rule 20,
Section 4 of the COMELEC Rules of Procedure.
Way back on June 19, 1995, petitioner Kho also filed an omnibus motion praying [5]

that since five(5) days had elapsed and no answer to the protest had yet been filed by
Espinosa, a general denial must be entered into the records in accordance with the
COMELEC Rules of Procedure.
The Respondent COMELEC First Division, however, issued an order dated July
[6]

26, 1995 admitting Espinosas answer with counter-protest and requiring his lawyer to
submit a supplemental pleading specifying the numbers of counter-protested precincts
listed in the answer with counter protest. Kho received a copy of such order on
September 20, 1995.
Following the order dated July 26, 1995, Espinosa filed on September 18, 1995 his
compliance specifying therein the counter-protested precincts.
 Consequently, the Comelec First Division, through its order dated September 23,
1995, admitted the said compliance, required Espinosa to make a cash deposit of P
40,150.00 for the 73 counter-protested precincts and ordered the collection and delivery
of the counter-protested ballot boxes to the Commission for revision.
On September 23, 1995, Kho filed a motion to resolve alleging that he filed a
[7]

motion to expunge on June 24, 1995 as a result of Espinosas failure to answer the
election protest within the legal period. Since, this motion to expunge had not yet been
acted by the Commission, he accordingly, prayed for its resolution.
Acting on the said motion, however, the COMELEC First Division, by its September
26, 1995 order, dismissed the motion to resolve holding that Espinosas answer with
[8]

counter-protest which was mailed on June 15, 1995 was filed within the five (5) day
reglementary period.
On September 29, 1995, Kho filed a motion for reconsideration of the orders dated
[9]

September 23 and 26, 1995. Espinosa, on the other hand, filed his opposition thereto
arguing that the questioned interlocutory orders dated September 23 and 26, 1995 were
mere incidental orders which implemented the earlier order dated July 26, 1995. He
asserted that the failure on the part of Kho to seek a first a reconsideration of this July
26, 1995 order which admitted the answer with counter-protest is a fatal and an
irreversible procedural infirmity.
In denying the motion for reconsideration of Kho, the COMELEC First Division,
through its November 15, 1995 order, held that since Kho did not attempt to file a
[10]

motion for reconsideration of the July 26, 1995 order, such order can not now be
disturbed. The subsequent orders of September 23 and 26, 1995 that carried out the
July 26, 1995 order should not be set aside to prevent unnecessary delay in the
proceedings of the case.
On December 1, 1995, Kho filed a manifestation and motion, this time addressed
[11]

to the COMELEC en banc, reiterating the arguments he asserted in his motion for
reconsideration and praying at the same time for the elevation of the case to the
Commission en banc and the setting aside of the November 15, 1995 order and all
other related orders concerning the belated filing of Espinosas answer with counter-
protest.
But the COMELEC First Division, in its order dated February 28, 1996, denied the
[12]

prayer for the elevation of the case to en banc because the September 23 and 26, 1995
orders were mere interlocutory orders which would not necessitate the elevation of the
case to en banc, and merely took note of the other prayers in the manifestation and
motion. The dispositive portion of the said order reads as follows:

WHEREFORE, in view of the foregoing, the Commission (First Division) hereby

ORDERS, as follows:

1. That the manifestation, as well as the second and third prayers, in protestants
Manifestation and Motion be NOTED;
2. That the prayer for the elevation of the records of this case to the commission en
banc be DENIED;

3. That the protestees prayer for suspension of revision proceedings be declared

MOOT.

SO ORDERED. [13]

On March 15, 1995 Kho filed the instant petition arguing that the respondent
[14]

COMELEC First Division committed grave abuse of discretion or without or in excess of

jurisdiction in admitting the belatedly filed answer with counter-protest of Espinosa, and
in refusing to elevate the case to the Commission en banc upon the pretext that the
COMELEC First Division issued mere interlocutory orders. He prayed for the issuance
of a temporary restraining order against the COMELEC to cease and desist from
implementing the July 26, 1995 order and all other orders related to it, and that the
COMELEC be directed to proceed with the protest case without considering the answer
with counter-protest of Espinosa, which should be expunge from the records of the
case.
Private respondent Espinosa, on the other hand that the five (5) day period of filing
an answer is not jurisdictional because the answer in not initiatory pleading and the time
of its filing can be extended either through motion or motu propio. He added that the
COMELEC, in admitting the answer with counter protest, committed no error as it is
allowed to suspend its rules in the interest of justice and speedy disposition of matters
before it. According to him, the order of the COMELEC dated July 26, 1995 admitting
his counter protest is not subjected to a timely motion for reconsideration by petitioner
Kho, thus it became final and executory and can no longer be disturb.
Consequently, this Court issued a temporary restraining order on May 28, 1996. [15]

We find the petition meritorious.

It is clear from the records that private respondent Espinosa filed his answer with
counter protest way beyond the reglementary period of five (5) days provided for by
law. It must be pointed out that Espinosa received the COMELEC summons and the
Petition of Protest of Kho on June 6, 1995. Under Section 1, Rule 10 of the COMELEC
Rules of Procedure, the answer must be filed within five (5) days from service of
summons and a copy of the petition. Private respondent Espinosa, therefore, had until
June 11, 1995 within which to file his answer. In violation however of the aforesaid rules,
Espinosa filed his answer with counterprotest only on June 15, 1995, obviously beyond
the five (5) mandatory period.
It should be stressed that under the COMELEC Rules of Procedure the protestee
may incorporate in his answer a counterprotest. It has been said that a counterprotest
[16]

is tantamount to a counterclaim in a civil action and may be presented as a part of the

answer within the time he is required to answer to protest, unless a motion for extension
is granted, in which it must be filed before the expiration of the extended time.
Apparently, the counterprotest of Espinosa was incorporated in his answer. And as
[17]
what was revealed, this answer with counterprotest was filed only on June 15, 1995,
which was obviously late for four (4) days. It appears that Espinosa did not file a motion
for extension of time within which to file his answer with counterprotest. In the absence
thereof, there is no basis then for the COMELEC First Division to admit the belatedly
filed answer with counterprotest.
It is worthy to note that as early as in the case of Arrieta vs. Rodriguez, this Court
[18]

had firmly settled the counterprotest must be filed within the period provided by law,
otherwise, the forum loses its jurisdiction to entertain the belatedly filed
counterprotest. In the case at bar, there is no question that the answer with counter
protest of Espinosa was filed outside the reglementary period provided for by law. As
such, the COMELEC First Division has no jurisdictional authority to entertain the belated
answer with counter protest much less pass upon and decide the issues raised
therein. It follows therefore that the order of July 26, 1995 which pertains to the
admission of the answer with counter protest of Espinosa as the other consequent
orders implementing the order of admission issued by the COMELEC First Division are
void for having been issued without jurisdiction. Even if petitioner Kho did not file a
motion for reconsideration of the order dated July 26, 1995 admitting the answer with
counterprotest, the jurisdictional infirmity, brought about by the late filing of the answer
to the protest, persist and can not be cured by the omission on the part of the protestee-
petitioner to seek a reconsideration of the order dated July 26, 1995.
Admittedly, even before the order dated July 26, 1995 was issued by the COMELEC
First Division, petitioner Kho had already put into issue the late filing of Espinosas
answer with counterprotest and persistently asserted his right to move for the exclusion
of the same from the record of the case. The records unmistakably show that when
petitioner Kho was appraised of the fact that Espinosa did not file the answer within the
reglementary period of five days, he filed on June 19, 1995 an omnibus motion praying
that a general denial should be entered in the records of the case against Espinosa. He
also filed on June 24, 1995 a motion to expunge from the records the answer with
counter protest of Espinosa. And when he received the July 26, 1995 order on
September 20, 1995, he immediately filed on September 23, 1995 a motion praying for
the resolution of the motion to expunge filed earlier. These circumstances indubitably
show that even though petitioner Kho did not file a motion for reconsideration of the July
26, 1995 order he was not remiss in assailing at the first instances the belated filing of
the answer with counter protest of Espinosa.
As to the issue of whether or not the case should be referred to the COMELEC en
banc, this Court finds the respondent COMELEC First Division correct when it held in its
order dated February 28, 1996 that no final decision, resolution or order has yet been
made which will necessitate the elevation of the case and its records to the
Commission en banc. No less than the Constitution requires that the election cases
must be heard and decided first in division and any motion for reconsideration of
decisions shall be decided by the commission en banc. Apparently, the orders dated
July 26, 1995, November 15 1995 and February 28, 1996 and the other orders relating
to the admission of the answer with counter-protest are issuances of a commission in
division and are all interlocutory orders because they merely rule upon an incidental
issue regarding the admission of Espinosas answer with counter-protest and do not
terminate or finally dispose of the case as they leave something to be done before it is
finally decided on the merits. In such a situation, the rule is clear that the authority to
[19]

resolve incidental matters of the case pending in a division, like the questioned
interlocutory orders, falls on the division itself, and not on the Commission en
banc. Section 5 (c), Rule 3 of the COMELEC Rules of procedure explicitly provides for
this,

Section 5. Quorum; Votes required. xxx

xxx

(c) Any motion to reconsider a decision, resolution, order or ruling of a Division shall
be resolved by the Commission en banc except motions on interlocutory orders of the
division which shall be resolved by the division which issued the order. (italics
provided)

Furthermore, a look at section 2, Rule 3 of the COMELEC Rules of procedure

confirms that the subject case does not fall on any of the instances over which the
Commission en banc can take cognizance of. It reads as follows:

Section 2. The Commission en banc.- The Commission shall sit en banc in cases
hereinafter specifically provided, or in pre-proclamation cases upon a vote of a
majority of the members of a commission, or in all other cases where a division is not
authorized to act, or where, upon a unanimous vote of all the members of a Division,
an interlocutory matter or issue relative an action or proceeding before it is decided to
be referred to the commission en banc.

In the instant case, it does not appear that the subject controversy is one of the cases
specifically provided under the COMELEC Rules of Procedure in which the Commission
may sit en banc. Neither is it shown that the present controversy a case where a
division is not authorized to act nor a situation wherein the members of the First Division
unanimously voted to refer the subject case to the commission en banc. Clearly, the
Commission en banc, under the circumstances shown above, can not be the proper
forum which the matter concerning the assailed interlocutory orders can be referred to.
In a situation such as this where the Commission in division committed grave abuse
of discretion or acted without or in excess of jurisdiction in issuing interlocutory orders
relative to an action pending before it and the controversy did not fall under any of the
instances mentioned in section 2, Rule 3 of the COMELEC Rules of Procedure, the
remedy of the aggrieved party is not to refer the controversy to the commission en
banc as this is not permissible under its present rules but to elevate it to this Court via a
petition for certiorari under Rule 65 of the Rules of Court.
Nevertheless, the resolution of this second issue is not decisive in the disposition of
the instant case. What we considered here is the fact that the respondent COMELEC
First Division committed grave abuse of discretion tantamount to lack of jurisdiction in
admitting the belatedly filed answer with counter protest of private respondent Espinosa.
ACCORDINGLY, the petition is hereby GRANTED. The order dated July 26, 1995
admitting the answer with counterprotest of the private respondent as well as the other
related orders, in so far as they pertain to the admission of the answer with counter
protest, are hereby declared void for having been issued without jurisdiction. The
respondent COMELEC First Division is hereby directed to proceed with the hearing of
the protest case with utmost dispatch without considering the answer with
counterprotest of the private respondent.
SO ORDERED.
Narvasa, C.J., (Chairman), Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno,
Vitug, Kapunan, Francisco, Hermosisima, Jr. and Panganiban, JJ., concur.
Mendoza, J., on leave.
[1]
Rollo pp. 36-43.
[2]
Rollo p. 44.
[3]
Rollo p. 47.
[4]
Rollo pp. 50-55.
[5]
Rollo pp. 45-46.
[6]
Rollo p. 58.
[7]
Rollo p. 60.
[8]
Rollo p. 64.
[9]
Rollo p. 70.
[10]
Rollo pp. 96-98.
[11]
Rollo pp. 99-110.
[12]
Rollo pp. 112-115.
[13]
Order dated February 28, 1996, pp. 3-4.
[14]
Rollo pp. 3-35.
[15]
Rollo, pp. 204-207.
[16]
Rule 20, Section 3 of the COMELEC Rules of Procedure.
[17]
Maliwanag vs. Herrera, No. l-29193, September 26, 1968, 25 SCRA 175.
[18]
57 Phil 717.
[19]
Nepomuceno vs. Salazar, G.R. No. 37165, May 15, 1989.