EN BANC

[EAC (BRGY-SK) NO. 77-11. September 20, 2011.]

CELSO M. MAGSINO, protestant-appellant, vs. EMMA A.

RETORIANO, protestee-appellee.

RESOLUTION

LAGMAN, AUGUSTO C., Commissioner : p

Before us is a Motion for Reconsideration of the 30 March 2011 Order

[the "Assailed Order"] of the COMELEC's First Division dismissing the
protestant-appellant's Appeal for failure of the same to pay the Comelec
appeal fee. Pertinent portions of the Assailed Order read:
The Commission (First Division) RESOLVED as it hereby
RESOLVES to DISMISS the instant appeal for protestant-appellant's
failure to pay the amount of Three Thousand Pesos (Php3,000.00)
appeal fee within the reglementary period under the 1993 Comelec
Rules of Procedure as amended by Comelec Resolution No. 02-0130
dated 18 September 2002.
Section 4, Rule 40 of the Comelec Rules of Procedure mandates
the payment of the appeal fee within the period to file the notice of
appeal or five (5) days from receipt of the decision sought to be
appealed, while Sec. 9, Rule 22 of the same Rules provides that
failure to pay the appeal fee is a ground for the dismissal of the
appeal. These provisions were reinforced by the ruling of the
Supreme Court in the case of Divinagracia vs. Comelec (G.R. Nos.
186007 & 186016) promulgated on 27 July 2009. The Ruling declared
that for notices of appeal filed after its promulgation, errors in the
matters of non-payment or incomplete payment of appeal fees in the
c o u r t a quo and the Commission on Elections are no longer
excusable.
Protestant-appellant argues that Comelec Resolution No. 8486 requires
that appellant to pay the Comelec appeal fee within fifteen (15) days from
the filing of the Notice of Appeal. Thus, in compliance with the foregoing
resolution, he paid the appeal fee of P3,200.00 to the COMELEC ten (10)
days after his notice of appeal was filed. He notes that his notice of appeal
was filed on 28 February 2011 1 while the appeal fee was paid on 10 March
2011. 2
We resolve to grant the Motion for Reconsideration.
Sections 3 and 4 of the 1993 Comelec Rules of Procedure have been
superseded by Resolution No. 8486, to wit: TEAaDC

"1. . . . [A]ppellant is required to pay the COMELEC appeal

fee of P3,200.00 at the Commission's Cash Division through the
Electoral Contests Adjudication Department (ECAD) or by postal
CD Technologies Asia, Inc. © 2022 cdasiaonline.com
 money order payable to the Commission on Election through ECAD,
within a period of fifteen days (15) from the time of the filing of the
Notice of Appeal with the lower court . . ."
Thus, under Resolution 8486, an appellant has fifteen (15) days from
the time of the filing of the Notice of Appeal with the lower court within
which to pay the COMELEC appeal fee.
Records show that protestant-appellant filed his Notice of Appeal on 28
February 2011 and he paid his Comelec appeal fee on 10 March 2011, well
within the fifteen-day period required under Resolution 8486.
WHEREFORE, premises considered, the 30 March 2011 Order of the
Comelec's First Division is hereby REVERSED and SET ASIDE and the instant
case is REMANDED to the Comelec First Division for the continuation of the
appeal proceedings.
SO ORDERED.

(SGD.) SIXTO S. BRILLANTES, JR.

Chairman

(SGD.) RENE V. SARMIENTO

Commissioner

(SGD.) LUCENITO N. TAGLE

Commissioner

(SGD.) ARMANDO C. VELASCO

Commissioner

(SGD.) ELIAS R. YUSOPH

Commissioner

(SGD.) CHRISTIAN ROBERT S. LIM

Commissioner

(SGD.) AUGUSTO C. LAGMAN

Commissioner
Footnotes

1. Records at 3.

2. Records at 1-2.

CD Technologies Asia, Inc. © 2022 cdasiaonline.com