G.R. No. 124033 - ANTONIO T. KHO, VS. COMMISSION ON ELECTIONS AND EMILIO A. ESPINOSA.

Ruling

accordingly, prayed for its resolution. Acting on the said motion, however, the COMELEC First Division, by its September 26, 1995 order, [8] dismissed the motion to resolve holding that Espinosas answer with 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 [9] of the orders dated 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, [10] held that since Kho did not attempt to file a 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, [11] this time addressed 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, [12] denied the 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.