G.R. No.

106270-73 February 10, 1994

SULTAN MOHAMA L. M!TMUG, petitioner,
vs.
"OMM!SS!ON ON #L#"T!ONS, MUN!"!$AL %OAR OF "AN&ASS#RS OF
LUM%A-%A'A%AO, LANAO #L SUR, a() ATU GAM%A!
AGALANG!T, respondents.
Pimentel, Apostol, Layosa & Sibayan Law Office for petitioner.
Brillantes, Nachura, Navarro & Arcilla for private respondent.

%#LLOS!LLO, J.:
The turnout of voters during the 11 May 1992 election in Lumba-Bayabao, Lanao del
ur, !as abnormally lo!. "s a result, several petitions !ere filed see#ing the
declaration of failure of election in precincts !here less than 2$% of the electorate
managed to cast their votes. But a special election !as ordered in precincts !here
no voting actually too# place. The &ommission on 'lections (&)M'L'&* ruled that
for as long as the precincts functioned and conducted actual voting during election
day, lo! voter turnout !ould not +ustify a declaration of failure of election. ,e are
no! called upon to revie! this ruling.
-etitioner .LT"/ M)0"M"1 L. M2TM.3 and private respondent 1"T. 3"MB"2
1"3"L"/32T !ere among the candidates for the mayoralty position of Lumba-
Bayabao during the 11 may 1992 election. There !ere si4ty-seven (56* precincts in
the municipality.
"s !as heretofore stated, voter turnout !as rather lo!, particularly in forty-nine (79*
precincts !here the average voter turnout !as 22.25%, i.e., only 2,889 out of 9,:89
registered voters therein cast their votes. ;ive ($* of these precincts did not conduct
actual voting at all.
1
&onse<uently, &)M'L'& ordered the holding of a special election on 89 May 1992
in the five ($* precincts !hich failed to function during election day. )n 89 =uly 1992
another special election !as held for a si4th precinct.
2
2n the interim, petitioner filed a petition see#ing the annulment of the special election
conducted on 89 May 1992 alleging various irregularities such as the alteration,
tampering and substitution of ballots. But on 18 =uly 1992, &)M'L'& considered
the petition moot since the votes in the sub+ect precincts !ere already counted.
3
)ther petitions see#ing the declaration of failure of election in some or all precincts
of Lumba-Bayabao !ere also filed !ith &)M'L'& by other mayoralty candidates, to
!it>
1. SPA No. !"#!$> )n 5 =une 1992, private respondent 1atu 3amba 1agalangit
filed an urgent petition praying for the holding of a special election in -recinct /o. 22-
" alleging therein that !hen the ballot bo4 !as opened, ballots !ere already torn to
pieces. )n 17 =uly 1992, the petition !as granted and a special election for -recinct
/o. 22-" !as set for 2$ =uly 1992.
4
2. SP% No. !"##&> )n 15 =une 19992, 1atu 'lias "bdusalam, another mayoralty
candidate, filed a petition to declare failure of election in t!enty-nine (29* more
precincts as a result of alleged tampering of ballots
*
and clustering of precincts.
6
)n
15 =uly 1992, the petition !as dismissed. &)M'L'& ruled that there must be a
situation !here there is absolute inability to vote before a failure of election can be
declared.
7
ince voting !as actually conducted in the contested precincts, there !as
no basis for the petition.
8. SPA No !"#&'> )n 29 =une 1992, private respondent filed another petition, this
time see#ing to e4clude from the counting the ballots cast in si4 (5* precincts on the
ground that the integrity of the ballot bo4es therein !as violated.
+
"gain, on 17 =uly
1992, &)M'L'& considered the petition moot, as the issue raised therein !as
related to that of -" /o. 92-811 !hich on 9 =uly 1992 !as already set aside as
moot.
9
7. SPA No. !"#$(> )n 1 =uly 1992, 1atu Bagato ?halid Lonta, a fourth mayoralty
candidate, filed a petition !hich in the main sought the declaration of failure of
election in all si4ty-seven (56* precincts of
Lumba-Bayabao, Lanao del ur, on the ground of massive disenfranchisement of
voters.
10
)n 9 =uly 1992, &)M'L'& dismissed the petition, ruling that the
allegations therein did not support a case of failure of election.
11
)n : =uly 1992, petitioner filed a motion to intervene in these four (7* petitions.
12
But
&)M'L'& treated the same as a motion for reconsideration and promptly denied it
considering that under the &)M'L'& @ules of -rocedure such motion !as a
prohibited pleading.
13
Thereafter, a ne! board of 'lection 2nspectors !as formed to conduct the special
election set for 2$ =uly 1992. -etitioner impugned the creation of this Board.
/evertheless, on 89 =uly 1992, the ne! Board convened and began the canvassing
of votes. ;inally, on 81 =uly 1992, private respondent !as proclaimed the duly
elected Mayor of Lumba-Bayabao, Lanao del ur.
)n 8 "ugust 1992, petitioner instituted the instant proceedings see#ing the
declaration of failure of election in forty-nine (79* precincts !here less than a <uarter
of the electorate !ere able to cast their votes. 0e also prayed for the issuance of a
temporary restraining order to en+oin private respondent from assuming office.
)n 19 "ugust 1992, petitioner lodged an election protest !ith the @egional trial &ourt
of Lanao del ur disputing the result not only of some but all the precincts of Lumba-
Bayabao, del ur.
14
@espondents, on the other hand, assert that !ith the filing of an election protest,
petitioner is already deemed to have abandoned the instant petition.
2t may be noted that !hen petitioner filed his election protest !ith the @egional Trial
&ourt of Lanao del ur, he informed the trial court of the pendency of these
proceedings. -aragraph 8 of his protest states ABTChat on "ugust 8, 1992, your
protestant filed a -etition for %ertiorari !ith the
upreme &ourt . . . doc#eted as 3.@. /o. 195269 assailing the validity of the
proclamation of the herein protestee. . . .A
1*
'vidently, petitioner did not intend to
abandon his recourse !ith this &ourt. )n the contrary, he intended to pursue it.
,here only an election protest e) abundante ad cautela is filed, the &ourt retains
+urisdiction to hear the petition see#ing to annul an election.
16
The main issue is !hether respondent &)M'L'& acted !ith grave abuse of
discretion amounting to lac# of +urisdiction in denying motu proprio and !ithout due
notice and hearing the petitions see#ing to declare a failure of election in some or all
of the precincts in Lumba-Bayabao, Lanao del ur. "fter all, petitioner argues, he
has meritorious grounds in support thereto, vi*., the massive disenfranchisement of
voters due to alleged terrorism and unla!ful clustering of precincts, !hich
&)M'L'& should have at least heard before rendering its +udgment.
2ncidentally, a petition to annul an election is not a pre-proclamation controversy.
&onse<uently, the proclamation of a !inning candidate together !ith his subse<uent
assumption of office is not an impediment to the prosecution of the case to its logical
conclusion.
17
.nder the &)M'L'& @ules of -rocedure, !ithin t!enty-four (27* hours from the
filing of a verified petition to declare a failure to elect, notices to all interested parties
indicating therein the date of hearing should be served through the fastest means
available.
1+
The hearing of the case !ill also be summary in nature.
19
Based on the foregoing, the clear intent of the la! is that a petition of this nature
must be acted upon !ith dispatch only after hearing thereon shall have been
conducted. ince &)M'L'& denied the other petitions
20
!hich sought to include
forty-three (78* more precincts in a special election !ithout conducting any hearing, it
!ould appear then that there indeed might have been grave abuse of discretion in
denying the petitions.
0o!ever, a closer e4amination of the &)M'L'& @ules of -rocedure, particularly
ec. 2, @ule 25, thereof !hich !as lifted from ec. 5, B.-. ::1, other!ise #no!n as
the )mnibus 'lection &ode of the -hilippines, indicates other!ise. 2t reads D
ec. 2. +ailure of election. D 2f, on account of force ma,eure, violence,
terrorism, fraud or other analogous causes the election in any precinct
has not been held on the date fi4ed, or had been suspended before the
hour fi4ed by la! for the closing of the voting, or after the voting and
during the preparation and the transmission of the election returns or in
the custody of canvass thereof, such election results in a failure to
elect, and in any of such cases the failure or suspension of election
!ould affect the result of the election, the &ommission shall, on the
basis of a verified petition by any interested party and after due notice
and hearing, call for the holding or continuation of the election not held,
suspended or !hich resulted in a failure to elect on a date reasonably
close to the date of the election not held, suspended or !hich resulted
in a failure to elect but not later than thirty (89* days after the cessation
of the cause of such postponement or suspension of the election or
failure to elect.
Before &)M'L'& can act on a verified petition see#ing to declare a failure of
election, t!o (2* conditions must concur> first, no voting has ta#en place in the
precinct or precincts on the date fi4ed by la! or, even if there !as voting, the election
nevertheless results in failure to electE and, second, the votes not cast !ould affect
the result of the election.
21
2n the case before us, it is indubitable that the votes not cast !ill definitely affect the
outcome of the election. But, the first re<uisite is missing, i.e., that no actual voting
too# place, or even if there is, the results thereon !ill be tantamount to a failure to
elect. ince actual voting and election by the registered voters in the <uestioned
precincts have ta#en place, the results thereof cannot be disregarded and
e4cluded.
22
&)M'L'& therefore did not commit any abuse of discretion, much less
grave, in denying the petitions outright. There !as no basis for the petitions since the
facts alleged therein did not constitute sufficient grounds to !arrant the relief sought.
;or, the language of the la! e4pressly re<uires the concurrence of these conditions
to +ustify the calling of a special election.
23
2ndeed, the fact that a verified petition is filed does not automatically mean that a
hearing on the case !ill be held before &)M'L'& !ill act on it. The verified petition
must still sho! on its face that the conditions to declare a failure to elect are present.
2n the absence thereof, the petition must be denied outright.
&onsidering that there is no concurrence of the t!o (2* conditions in the petitions
see#ing to declare failure of election in forty-three (78* more, precincts, there is no
more need to receive evidence on alleged election irregularities.
2nstead, the <uestion of !hether there have been terrorism and other irregularities is
better ventilated in an election contest. These irregularities may not as a rule be
invo#ed to declare a failure of election and to disenfranchise the electorate through
the misdeeds of a relative fe!.
24
)ther!ise, elections !ill never be carried out !ith
the resultant disenfranchisement of innocent voters as losers !ill al!ays cry fraud
and terrorism.
There can be failure of election in a political unit only if the !ill of the ma+ority has
been defiled and cannot be ascertained. But, if it can be determined, it must be
accorded respect. "fter all, there is no provision in our election la!s !hich re<uires
that a ma+ority of registered voters must cast their votes. "ll the la! re<uires is that a
!inning candidate must be elected by a plurality of valid votes, regardless of the
actual number of ballots cast.
2*
Thus, even if less than 2$% of the electorate in the
<uestioned precincts cast their votes, the same must still be respected. There
isprima facie sho!ing that private respondent !as elected through a plurality of valid
votes of a valid constituency.
,0'@';)@', there being no grave abuse of discretion, the -etition for %ertiorari is
12M2'1.
) )@1'@'1.
Narvasa, %.-., %ru*, +eliciano, Padilla, Bidin, .e/alado, 0avide, -r., .omero, 1elo,
2uiason, Puno, 3itu/ and 4apunan, --., concur.
Nocon, -., is on leave.
M,-.u/ 01 "o.e2e3
All the law requires is that a winning candidate must be elected by
a plurality of valid votes, regardless of the actual number of ballots cast.Thus, even if
less than 25% of the electorate in the questioned precincts cast their votes, the same
must still be respected.
Petitioner SULTAN MOHAMAD L. MITMUG and private
respondent DATU GAMBAI DAGALANGIT were among the
candidates for the mayoralty position of Lumba-Bayabao. Voter turnout for
the election was very low. Only 2,330 out of 9,830 registered voters therein cast their
votes.
Dagalangitwon. Other candidates fled separate petition for thedecla
ration of failure of election in some or all precincts in Lumba-Bayabao.
Issue: WON COMELEC should declare a failure of election on the ground of massive
disenfranchisement of voters due to alleged terrorism and unlawful clustering of
precincts.
Held. No. before COMELEC can act on a verifed petition seeking to declare
a failure of election, two (2) conditions must concur:
frst, no voting has taken place in the precinct or precincts on the date fxed by law or,
even if there was voting, the election nevertheless results in failure to elect; and,
second , the votes not cast would afect the result of the election. In the case
before us, it is indubitable that the votes not cast will defnitely afect the
outcome of the election. But, the frst requisite is missing, i.e., that no
actual voting took place, or even if there is, the results thereon will be
tantamount to a failure to elect. Since actual
voting and election by the registered voters in the
questioned precincts have taken place, the results thereof cannot be disregarded
and excluded. COMELEC therefore did not commit any abuse of discretion,
much less grave, in denying the petitions outright. There was no basis for
the petitions since the facts alleged therein did not constitute sufcient
grounds to warrant the relief sought. For, the language of the law
expressly requires the concurrence of these conditions to justify the calling of a
special election