Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 182865 December 24, 2008
ROMULO F. PECSON, petitioner,
vs.
COMMISSION ON ELECTIONS, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT and LYNDON A. CUNANAN, respondents.
D E C I S I O N
BRION, J.:
This petition for certiorari - filed by Romulo F. Pecson (Pecson) under Rule 64, in relation with Rule 65 of the Revised Rules of Court - seeks to set aside and annul the Resolution dated May 21, 2008 of the Commission on Elections en banc (COMELEC) in SPR 60-2007.1 The assailed Resolution nullified the grant (via a Special Order) by the Regional Trial Court (RTC), Branch 56, Angeles City, of the execution pending appeal of its Decision in the election contest between Pecson and the private respondent Lyndon A. Cunanan (Cunanan), the proclaimed winner in the 2007 mayoralty election in Magalang, Pampanga.
THE ANTECEDENTS
Pecson and Cunanan were candidates for the mayoralty position in the Municipality of Magalang, Province of Pampanga in the May 2007 elections. On May 17, 2007, Cunanan was proclaimed the winning candidate, garnering a total of 12,592 votes as against Pecson's 12,531, or a margin of 61 votes. Cunanan took his oath and assumed the position of Mayor of Magalang. Soon thereafter, Pecson filed an election protest, docketed as EPE No. 07-51, with the RTC.
On November 23, 2007, the RTC rendered a Decision in Pecson's favor. The RTC ruled that Pecson received a total of 14,897 votes as against Cunanan's 13,758 - a vote margin of 1,139.
Cunanan received a copy of the Decision on November 26, 2007 and filed a Notice of Appeal the day after. The RTC issued on November 27, 2008 an Order noting the filing of the notice of appeal and the payment of appeal fee and directing the transmittal of the records of the case to the Electoral Contests Adjudication Department (ECAD) of the COMELEC. Pecson, on the other hand, filed on November 28, 2007 an Urgent Motion for Immediate Execution Pending Appeal, claiming that Section 11, Rule 14 of the Rules of Procedure in Election Contests before the Courts Involving Elective Municipal and Barangay Officials2 (Rules) allows this remedy.
The RTC granted Pecson's motion for execution pending appeal via a Special Order dated December 3, 2007 (Special Order) but suspended, pursuant to the Rules, the actual issuance of the writ of execution for twenty (20) days. The Special Order states the following reasons:
1. The result of the judicial revision show[s] that the protestant garnered 14,897 votes as against protestee's 13,758 votes or a plurality of 1,139 votes. The victory of the protestant is clearly and manifestly established by the rulings and tabulation of results made by the Court x x x;
2. It is settled jurisprudence that execution pending appeal in election cases should be granted "to give as much recognition to the worth of a trial judge's decision as that which is initially ascribed by the law to the proclamation by the board of canvassers." The Court holds that this wisp of judicial wisdom of the Supreme Court enunciated in the Gahol case and subsequent cases citing it is borne by the recognition that the decision of the trial court in an election case is nothing but the court upholding the mandate of the voter, which has as its source no other than the exercise of the constitutional right to vote. While it is true that the protestee can avail of the remedy of appeal before the COMELEC, the Court is more convinced that between upholding the mandate of the electorate of Magalang, Pampanga which is the fruit of the exercise of the constitutional right to vote and a procedural remedy, the Court is more inclined to uphold and give effect to and actualize the mandate of the electorate of Magalang. To the mind of the Court, in granting execution pending appeal the Court is being true to its bounden duty to uphold the exercise of constitutional rights and gives flesh to the mandate of the people. The foregoing is, as far as the Court is concerned, considered far superior circumstance that convinces the Court to grant protestant's motion;
3. Public interest and the will of the electorate must be respected and given meaning;
4. In the case of Navarosa v. Comelec, the Supreme Court held that "In the Gahol case, the Court gave an additional justification for allowing execution pending appeal of decisions of trial courts, thus: Public policy underlies it, x x x [S]omething had to be done to strike the death blow at the pernicious grab-the-proclamation-prolong-the-protest technique often, if not invariably, resorted to by unscrupulous politicians who would render nugatory the people's verdict against them and persist in continuing in an office they very well know they have no legitimate right to hold. x x x." A primordial public interest is served by the grant of the protestant's motion, i.e., to obviate a hollow victory for the duly elected candidate. In the words of Chief Justice Cesar Bengzon, "The well known delay in the adjudication of election protests often gave the successful contestant a mere pyrrhic victory, i.e., a vindication when the term of office is about to expire or has expired."
Expectedly, Cunanan moved to reconsider the Order, arguing that the RTC gravely abused its discretion: (1) in ruling that there were good reasons to issue a writ of execution pending appeal; and (2) in entertaining and subsequently granting the motion for execution pending appeal despite the issuance of an order transmitting the records of the case.
Thereupon, Cunanan filed with the COMELEC a Petition for Application of Preliminary Injunction with Prayer for Status Quo Ante Order/Temporary Restraining Order (TRO) with Prayer for Immediate Raffle. He argued in his petition that: (1) the RTC Decision did not clearly establish Pecson's victory or his (Cunanan's) defeat - a requirement of Section 11, Rule 14 of the Rules; among other reasons, the number of votes the RTC tallied and tabulated exceeded the number of those who actually voted and the votes cast for the position of Mayor, and (2) the RTC had constructively relinquished its jurisdiction by the issuance of the Order dated November 27, 2007 directing the transmittal of the records of the case.
The Second Division of the COMELEC issued on January 4, 2008 a 60-day TRO directing: (1) the RTC to cease and desist from issuing or causing the issuance of a writ of execution or implementing the Special Order; and (2) Cunanan to continue performing the functions of Mayor of Magalang.
In his Answer and/or Opposition, with Prayer for Immediate Lifting of TRO, Pecson argued that: (1) preliminary injunction cannot exist except as part or incident of an independent action, being a mere ancillary remedy that exists only as an incident of the main proceeding; (2) the "petition for application of preliminary injunction," as an original action, should be dismissed outright; and (3) Cunanan is guilty of forum shopping, as he filed a motion for reconsideration of the Special Order simultaneously with the petition filed with the COMELEC.
The COMELEC's Second Division denied Cunanan's petition in a Resolution dated March 6, 2008. It ruled that: (1) the resolution of the motion for execution pending appeal is part of the residual jurisdiction of the RTC to settle pending incidents; the motion was filed prior to the expiration of the period to appeal and while the RTC was still in possession of the original record; and (2) there is good reason to justify the execution of the Decision pending appeal, as Pecson's victory was clearly and manifestly established. Ruling on the alleged defect in the RTC count, the Second Division ruled:
[A]fter a careful scrutiny of the Decision, We found that the error lies in the trial court's computation of the results. In its Decision, the trial court, to the votes obtained by the party (as per proclamation of the MBOC), deducted the votes per physical count after revision and deducted further the invalid/nullified ballots per the trial court's appreciation and thereafter added the valid claimed ballots per the trial court's appreciation, thus:
Votes obtained per proclamation of the MBOC (-) Votes per physical count (-) Invalid or nullified ballots (+) Valid claimed ballots = Total Votes Obtained
The formula used by the trial court is erroneous as it used as its reference the votes obtained by the parties as per the proclamation of the MBOC. It complicated an otherwise simple and straightforward computation, thus leading to the error. The correct formula should have been as follows:
Total Number of Uncontested Ballots (+) Valid Contested Ballots (+) Valid Claimed Ballots = Total Votes Obtained
Using this formula and applying the figures in pages 744 and 745 of the trial court's Decision, the results will be as follows:
For the Petitioner Cunanan
Total Number of Uncontested Ballots |
9,656 |
Add: Valid Contested Ballots |
2,058 |
Add: Valid Claimed Ballots |
36 |
Total Votes of Petitioner |
11,750 |
For the Private Respondent (Pecson)
Total Number of Uncontested Ballots |
9,271 |
Add: Valid Contested Ballots |
2,827 |
Add: Valid Claimed Ballots |
39 |
Total Votes of Petitioner |
12,134 |
Using the correct formula, private respondent still obtained a plurality of the votes cast and enjoys a margin of 384 votes over the petitioner. Although not as wide as the margin found by the trial court, We are nevertheless convinced that the victory of private respondent has been clearly established in the trial court's decision for the following reasons:
First, the error lies merely in the computation and does not put in issue the appreciation and tabulation of votes. The error is purely mathematical which will not involve the opening of ballot boxes or an examination and appreciation of ballots. It is a matter of arithmetic which calls for the mere clerical act of reflecting the true and correct votes of the candidates.
Second, the error did not affect the final outcome of the election protest as to which candidate obtained the plurality of the votes cast.
We are likewise convinced that the assailed order states good or special reasons justifying the execution pending appeal, to wit:
(1) The victory of the protestant was clearly and manifestly established;
(2) Execution pending appeal in election cases should be granted to give as much recognition to the worth of a trial judge's decision as that which is initially ascribed by the law to the proclamation by the board of canvassers;
(3) Public interest and the will of the electorate must be respected and given meaning; and
(4) Public policy underlies it, as something had to be done to strike the death blow at the pernicious grab-the-proclamation-prolong-the-protest technique often, if not invariably resorted to by unscrupulous politicians.
Such reasons to Our mind constitute superior circumstances as to warrant the execution of the trial court's decision pending appeal.
Pecson thus asked for the issuance of a writ of execution via an Ex-Parte Motion. Despite Cunanan's opposition, the RTC granted Pecson's motion and issued the writ of execution on March 11, 2008. Pecson thereafter assumed the duties and functions of Mayor of Magalang.
The Assailed Resolution
On Cunanan's motion, the COMELEC en banc issued its Resolution dated May 21, 2008 reversing the ruling of the Second Division insofar as it affirmed the RTC's findings of good reasons to execute the decision pending appeal. It affirmed the authority of the RTC to order execution pending appeal; it however nullified the March 11, 2008 writ of execution on the ground that the RTC could no longer issue the writ because it had lost jurisdiction over the case after transmittal of the records and the perfection of the appeals of both Cunanan and Pecson (to be accurate, the lapse of Pecson's period to appeal).
On the propriety of executing the RTC Decision pending appeal, the COMELEC en banc ruled that it was not convinced of the good reasons stated by the RTC in its Special Order. It ruled that recognition of the worth of a trial judge's decision, on the one hand, and the right to appeal, including the Commission's authority to review the decision of the trial court, on the other, requires a balancing act; and not every invocation of public interest will suffice to justify an execution pending appeal. It added that at a stage when the decision of the trial court has yet to attain finality, both the protestee and the protestant are to be considered "presumptive winners." It noted too that the Second Division already cast a doubt on the correctness of the number of votes obtained by the parties after the trial court's revision; thus, the resolution of the pending appeal becomes all the more important. Between two presumptive winners, considering the pending appeal of the election protest to the Commission and public service being the prime consideration, the balance should tilt in favor of non-disruption of government service. The execution of the RTC Decision pending appeal would necessarily entail the unseating of the protestee, resulting not only in the disruption of public service, but also in confusion in running the affairs of the government; a subsequent reversal too of the RTC Decision also results in the unseating of the protestant. This situation (i.e., the series of turn-over of the seat of power from one presumptive winner to another) cannot but cause irreparable damage to the people of Magalang, and overweighs the reasons asserted by the RTC in its Special Order. In the end, according to the COMELEC, public interest is best served when he who was really voted for the position is proclaimed and adjudged as winner with finality.
The Petition and the Prayer for the issuance of a Status Quo Order
In imputing grave abuse of discretion to the COMELEC en banc, Pecson argues that: (1) the RTC Decision clearly showed Pecson's victory; (2) the reasons for the reversal of the RTC Decision practically render impossible a grant of an execution pending appeal; and (3) the RTC correctly found the presence of the requisites for execution pending appeal.
Threatened to be unseated, Pecson asked, as interim relief, for the issuance of a Status Quo Order. He claimed that: (1) the Department of Interior and Local Government already recognized (based on the issuance of the assailed Resolution) Cunanan's assumption of office even if the assailed Resolution had not attained finality; and (2) in order to prevent grave and irreparable injury to Pecson and the perpetuation of a travesty of justice, a Status Quo Order must immediately issue.
THE COURT'S RULING
We find the petition meritorious.
The remedy of executing court decisions pending appeal in election contests is provided under the Rules as follows:
SEC. 11. Execution pending appeal. - On motion of the prevailing party with notice to the adverse party, the court, while still in possession of the original records, may, at its discretion, order the execution of the decision in an election contest before the expiration of the period to appeal, subject to the following rules:
(a) There must be a motion by the prevailing party with three-day notice to the adverse party. Execution pending appeal shall not issue without prior notice and hearing. There must be good reasons for the execution pending appeal. The court, in a special order, must state the good or special reasons justifying the execution pending appeal. Such reasons must:
(1) constitute superior circumstances demanding urgency that will outweigh the injury or damage should the losing party secure a reversal of the judgment on appeal; and
(2) be manifest, in the decision sought to be executed, that the defeat of the protestee or the victory of the protestant has been clearly established.
(b) If the court grants execution pending appeal, an aggrieved party shall have twenty working days from notice of the special order within which to secure a restraining order or status quo order from the Supreme Court of the Commission on Elections. The corresponding writ of execution shall issue after twenty days, if no restraining order or status quo order is issued. During such period, the writ of execution pending appeal shall be stayed. 3
This remedy is not new. Under prevailing jurisprudence,4 the remedy may be resorted to pursuant to the suppletory application of the Rules of Court, specifically its Section 2, Rule 39.5 What the Rules (A.M. No. 07-4-15-C) has done is to give the availability of the remedy the element of certainty. Significantly, the Rules similarly apply the good reason standard (in fact, the even greater superior circumstances standard) for execution pending appeal under the Rules of Court, making the remedy an exception rather than the rule.
At the heart of the present controversy is the question of whether there has been compliance with the standards required for an execution pending appeal in an election contest. As heretofore cited, the RTC found all these requisites present. The Second Division of the COMELEC supported the RTC's ruling, but the COMELEC en banc held a contrary view and nullified the execution pending appeal. This en banc ruling is now before us.
Our review of a COMELEC ruling or decision is via a petition for certiorari. This is a limited review on jurisdictional grounds, specifically of the question on whether the COMELEC has jurisdiction, or whether the assailed order or resolution is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction. Correctly understood, grave abuse of discretion is such "capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or [an] exercise of power in an arbitrary and despotic manner by reason of passion or personal hostility, or an exercise of judgment so patent and gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined, or to act in a manner not at all in contemplation of law."6
Because this case is essentially about the implementation of an RTC decision pending appeal, we must first dwell on the writ the RTC issued. The COMELEC ruled in this regard that the writ of execution the RTC issued on March 11, 2008 was void; the RTC could no longer issue the writ because of the lapse of the period for appeal, and because the RTC no longer held the records of the election contest which had then been transmitted to the ECAD-COMELEC.
Cunanan argues in his Comment that this ruling has become final and executory because Pecson did not question it in the present petition. In Cunanan's view, the finality of this aspect of the COMELEC ruling renders the issue of the nullification of the Special Order moot and academic, as any ruling we shall render would serve no practical purpose; it can no longer be implemented since the means (obviously referring to the writ the RTC issued on March 11, 2008) of executing the RTC decision (i.e., seating Pecson as Mayor of Magalang) has, to all intents and purposes, been nullified and rendered ineffective.
We see no merit in Cunanan's argument. The writ of execution issued by the RTC is a mere administrative enforcement medium of the Special Order - the main order supporting Pecson's motion for the issuance of a writ of execution. The writ itself cannot and does not assume a life of its own independent from the Special Order on which it is based. Certainly, its nullification does not carry with it the nullification of the Special Order. This consequence does not of course hold true in the reverse situation - the nullification of the Special Order effectively carries with it the nullification of its implementing writ and removes the basis for the issuance of another implementing writ. In the present case, the reality is that if and when we ultimately affirm the validity of the Special Order, nothing will thereafter prevent the RTC from issuing another writ.
Another legal reality is that the COMELEC is wrong in its ruling that the RTC could no longer actually issue the writ on March 11, 2008 because it no longer had jurisdiction to do so after the appeal period lapsed and after the records were transmitted to the ECAD-COMELEC. That the RTC is still in possession of the records and that the period to appeal (of both contending parties) must have not lapsed are important for jurisdictional purposes if the issue is the authority of the RTC to grant a Special Order allowing execution pending appeal; they are requisite elements for the exercise by the RTC of its residual jurisdiction to validly order an execution pending appeal, not for the issuance of the writ itself. This is clearly evident from the cited provision of the Rules which does not require the issuance of the implementing writ within the above limited jurisdictional period. The RTC cannot legally issue the implementing writ within this limited period for two reasons: (1) the cited twenty-day waiting period under Section 11(b); and (2) the mandatory immediate transmittal of the records to the ECAD of the COMELEC under Section 10 of the Rules.7
On the substantive issue of whether a writ of execution pending appeal should issue, we do not agree with the COMELEC's view that there are "two presumptive winners" prior to its ruling on the protest case. We likewise cannot support its "balancing act" view that essentially posits that given the pendency of the appeal and the lack of finality of a decision in the election protest, the unseating of the protestee, and the need for continuity of public service, the balance should tilt in favor of continuity or non-disruption of public service; hence, the execution pending appeal should be denied.
As Pecson correctly argued, this reasoning effectively prevents a winner (at the level of the courts) of an election protest from ever availing of an execution pending appeal; it gives too much emphasis to the COMELEC's authority to decide the election contest and the losing party's right to appeal. What is there to execute pending appeal if, as the COMELEC suggested, a party should await a COMELEC final ruling on the protest case? Effectively, the "two presumptive winners" and the "balancing act" views negate the execution pending appeal that we have categorically and unequivocally recognized in our rulings and in the Rules we issued. To be sure, the COMELEC cannot, on its own, render ineffective a rule of procedure we established by formulating its own ruling requiring a final determination at its level before an RTC decision in a protest case can be implemented.
We additionally note that "disruption of public service" necessarily results from any order allowing execution pending appeal and is a concern that this Court was aware of when it expressly provided the remedy under the Rules. Such disruption is therefore an element that has been weighed and factored in and cannot be per se a basis to deny execution pending appeal.
What comes out clearly from this examination of the COMELEC ruling is that it looked at the wrong material considerations when it nullified the RTC's Special Order. They are the wrong considerations because they are not the standards outlined under Section 11, Rule 14 of the Rules against which the validity of a Special Order must be tested. Significantly, the use of wrong considerations in arriving at a decision constitutes grave abuse of discretion.8
The proper consideration that the COMELEC made relates to the correctness of the RTC's Decision in light of the Rules' requirement that the victory of the protestant and the defeat of the protestee be clearly established for execution pending appeal to issue. According to the COMELEC, no less than the Second Division cast a doubt on the correctness of the number of votes obtained by the parties after the revision of ballots when the Second Division proposed a mathematical formula to correct the RTC count. At the same time, the COMELEC noted that the Second Division could not have corrected the RTC count, as the petition before it was one for certiorari while the correction of errors in computation properly pertained to the resolution of Cunanan's pending appeal. To the COMELEC, all these showed that the correctness of the RTC Decision in favor of Pecson was far from clear and cannot support an execution pending appeal.
We disagree once more with the COMELEC en banc in this conclusion, as it failed to accurately and completely appreciate the Second Division's findings. The RTC Decision, on its face, shows that Pecson garnered more valid votes than Cunanan after the revision of ballots. The Second Division properly recognized, however, that the RTC computation suffered from a facial defect that did not affect the final results; as Cunanan pointed out, the votes for Pecson and Cunanan, if totally summed up, exceeded the total number of valid votes for mayor.
Duly alerted, the Second Division looked into the purported error, analyzed it, and found the error to be merely mathematical; the RTC formula would necessarily exceed the total number of votes cast for mayor because it counted some votes twice. In making this finding, the Second Division was guided by the rule that one of the requisites for an execution pending appeal is a clear showing in the decision of the protestant's victory and the protestee's defeat. Its examination of the RTC Decision was only for this limited purpose and this was what it did, no more no less. Specifically, it did not review the RTC's appreciation of the ballots on revision; it did not review the intrinsic merits of the RTC Decision - issues that properly belong to the appeal that is currently pending. It merely found that the defect Cunanan noted was actually inconsequential with respect to the results, thus showing Pecson's clear victory under the RTC Decision. In other words, the Second Division's corrected view of the RTC count confirmed, rather than contradicted or placed in doubt, the conclusion that Pecson won.
Other than the clarity of Pecson's victory under the RTC Decision, the Special Order cited good and special reasons that justified an execution pending appeal, specifically: (1) the need to give as much recognition to the worth of a trial judge's decision as that which is initially given by the law to the proclamation by the board of canvassers; (2) public interest and/or respect for and giving meaning to the will of the electorate; and (3) public policy - something had to be done to deal a death blow to the pernicious grab-the-proclamation-prolong-the-protest technique often, if not invariably, resorted to by unscrupulous politicians who would render nugatory the people's verdict against them.
Unfortunately, the COMELEC en banc simply glossed over the RTC's cited reasons and did not fully discuss why these reasons were not sufficient to justify execution pending appeal. A combination, however, of the reasons the RTC cited, to our mind, justifies execution of the RTC Decision pending appeal.
A striking feature of the present case is the time element involved. We have time and again noted the well known delay in the adjudication of election contests that, more often than not, gives the protestant an empty or hollow victory in a long drawn-out legal battle.9 Some petitions before us involving election contests have been in fact dismissed for being moot, the term for the contested position having long expired before the final ruling on the merits came.10 In the present case, the term for mayor consists of only three (3) years. One year and six months has lapsed since the May 2007 election; thus, less than two years are left of the elected mayor's term. The election protest, while already decided at the RTC level, is still at the execution-pending-appeal stage and is still far from the finality of any decision on the merits, given the available appellate remedies and the recourses available through special civil actions. To be sure, there is nothing definite in the horizon on who will finally be declared the lawfully elected mayor.
Also, we reiterate here our consistent ruling that decisions of the courts in election protest cases, resulting as they do from a judicial evaluation of the ballots and after full-blown adversarial proceedings, should at least be given similar worth and recognition as decisions of the board of canvassers.11 This is especially true when attended by other equally weighty circumstances of the case, such as the shortness of the term of the contested elective office, of the case.
In light of all these considerations, we conclude that the COMELEC erred in nullifying the RTC's Special Order in a manner sufficiently gross to affect its exercise of jurisdiction. Specifically, it committed grave abuse of discretion when it looked at wrong considerations and when it acted outside of the contemplation of the law in nullifying the Special Order.
WHEREFORE, premises considered, we GRANT the petition and accordingly ANNUL the assailed COMELEC Resolution.
SO ORDERED.
ARTURO D. BRION
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice |
LEONARDO A. QUISUMBING
Associate Justice |
CONSUELO YNARES-SANTIAGO
Associate Justice |
ANTONIO T. CARPIO
Associate Justice |
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice |
RENATO C. CORONA
Associate Justice |
CONCHITA CARPIO MORALES
Associate Justice |
ADOLFO S. AZCUNA
Associate Justice |
DANTE O. TINGA
Associate Justice |
MINITA V. CHICO-NAZARIO
Associate Justice |
PRESBITERO J. VELASCO, JR.
Associate Justice |
ANTONIO EDUARDO B. NACHURA
Associate Justice |
RUBEN T. REYES
Associate Justice |
TERESITA J. LEONARDO-DE CASTRO
Associate Justice |
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice
Footnotes
1 Entitled Lyndon A. Cunanan v. Zenaida S. Buan x x x and Romulo F. Pecson.
2 A.M. No. 07-04-15-SC.
3 Rules of Procedure in Election Contests before the Courts Involving Elective Municipal and Barangay Officials (A.M. No. 07-4-15-C); supra note 2.
4 See Gahol v. Riodoque, G.R. No. L-40415, June 27, 1975 64 SCRA 494, cited in Ramas et al. v. COMELEC G.R. No. 130831 February 10, 1998, 286 SCRA 189.
5 Section 2 (a) of Rule 39 of the Rules of Court provides:
SEC. 2. Discretionary execution. -
Execution of a judgment of a final order pending appeal. - On motion of the prevailing party with notice to the adverse party filed in the trial court while it has jurisdiction over the case and is in possession of either the original record or record on appeal, as the case may be, at the time of the filing of such motion, said court may, in its discretion, order execution of a judgment or final order even before the expiration of the period to appeal.
After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the appellate court.
Discretionary execution may only issue upon good reasons to be stated in a special order after due hearing [underscoring supplied].
6 See: Intestate Estate of Carmen de Luna v. Intermediate Appellate Court, G. R. No. 72424, February 13, 1989, 170 SCRA 246; Lalican v. Vergara, G.R. No. 108619, July 31, 1997, 276 SCRA 518.
7 SEC. 10. Immediate transmittal of records of the case. - The clerk of court shall, within fifteen days from the filing of the notice of appeal, transmit to the Electoral Contests Adjudication Department, Commission on Elections, the complete records of the case, together with all the evidence, including the original and three copies of the transcripts of stenographic notes of the proceedings.
8 See the case of Almeida v. Court of Appeals, G.R. No. 159124 January 17, 2005 448 SCRA 681, that although not squarely in point provides the basis for a conclusion that a decision or determination based on wrong considerations may be considered grave abuse of discretion. In this cited case, we ruled that in granting or denying injunctive relief, a court abuses its discretion when it lacks jurisdiction, fails to consider and make a record of the factors relevant to its determination, relies on clearly erroneous factual findings, considers clearly irrelevant or improper factors, clearly gives too much weight to one factor, relies on erroneous conclusions of law or equity, or misapplies its factual or legal conclusions.
9 See Lagumbay v. COMELEC, G.R. No. L-25444 January 31, 1966, 16 SCRA 175.
10 See Malaluan v. COMELEC, G.R. No. 120193. March 6, 1996, 254 SCRA 397, 412.
11 See Gahol, supra note 2, cited in Malaluan, supra note 10.
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