Republic of the Philippines

vs.

SUPREME COURT

COMMISSION ON ELECTIONS, MUNICIPAL

BOARD OF CANVASSERS OF CABUSAO,
NEBRIDO F. SANTIAGO, and EUGENIO
AGUILAR, respondents

Manila
EN BANC
G. R. No. 105628 August 6, 1992

G.R. No. 105778 August 6, 1992

RODULFO SARMIENTO, petitioner,

vs.
COMMISSION ON ELECTIONS, MUNICIPAL
BOARD OF CANVASSERS OF VIRAC and
JOSE "CITO" ALBERTO II, respondents.
G.R. No. 105725 August 6, 1992
EMMANUEL R. ALFELOR, petitioner,
vs.
COMMISSION ON ELECTIONS, THE CITY
BOARD OF CANVASSERS OF IRIGA CITY
and JOSE C. VILLANUEVA, respondents.
G.R. No. 105727 August 6, 1992
LEANDRO I. VERCELES, SR., petitioner,
vs.
COMMISSION ON ELECTIONS, PROVINCIAL
BOARD OF CANVASSERS OF
CATANDUANES and ROSALIE ALBERTOESTACIO, respondents.
G.R. No. 105730 August 6, 1992
JESUS TYPOCO, JR., petitioner,
vs.

MARIO S. MANLICLIC, petitioner,

vs.
COMMISSION ON ELECTIONS, MUNICIPAL
BOARD OF CANVASSERS OF GEN.
NATIVIDAD, NUEVA ECIJA, BOARD OF
ELECTION INSPECTORS OF PRECINCT NOS.
12-A AND 13, BARANGAY MATAAS NA
KAHOY, GEN. NATIVIDAD, NUEVA ECIJA;
BOARD OF ELECTION INSPECTORS OF
PRECINCT NOS. 15-A, BARANGAY
PICALEON, GEN. NATIVIDAD, NUEVA ECIJA;
PRECINCT NO. 25-A OF SAPANG BATO,
GEN. NATIVIDAD, NUEVA ECIJA; THE
ELECTION REGISTRAR and APOLONIO
PASCUAL, respondents.
G.R. No. 105797 August 6, 1992
FRANCISCO G. RABAT, petitioner,
vs.
COMMISSION ON ELECTIONS, PROVINCIAL
BOARD OF CANVASSERS OF DAVAO
ORIENTAL and ROSALIND YBASCO LOPEZ,
respondents.
G-R. No. 105919 August 6, 1992
DATU MOHAMMAD A. SINSUAT, petitioner,

COMMISSION ON ELECTIONS, PROVINCIAL

BOARD OF CANVASSERS OF CAMARINES
NORTE, and MUNICIPAL BOARD OF
CANVASSERS OF JOSE PANGANIBAN,
CAMARINES NORTE, respondents.

COMMISSION ON ELECTIONS, DATU

MICHAEL SINSUAT and ATTY. RUBEN
PLATON, respondents.

G.R. No. 105771 August 6, 1992

G.R. No. 105977 August 6, 1992

ALBERTO U. GENOVA, JR., petitioner,

ROSARIO A. VELASCO, petitioner,

vs.

vs.
COMMISSION ON ELECTIONS, MUNICIPAL
BOARD OF CANVASSERS OF TERNATE,
CAVITE, and CONDRADO LINDO,
respondents.
RESOLUTION
DAVIDE, JR., J.:
The special civil actions for certiorari hereby
jointly resolved, filed under Rule 65 of the Rules
of Court, seek to set aside the Resolutions of
respondent
Commission
on
Elections
(COMELEC) in the following Special Cases
(SPC):

1) G.R. No. 105628 SPC No. 92-266 granting

the appeal from the ruling of the Municipal Board
of Canvassers of Virac, Catanduanes which
ordered the exclusion from the canvass of one
(1) election return;

2) G.R. No. 105725 SPC No. 92-323

reversing the ruling of the City Board of
Canvassers of Iriga City which ordered the
exclusion from the canvass of six (6) election
returns and in UND No. 92-243 ordering the said
Board of Canvassers to include in the canvass
the election returns involved therein;

3) G.R. No. 105727 SPC No. 92-288

dismissing the appeal of petitioner from the
ruling of the Provincial Board of Canvassers of
Catanduanes which ordered the inclusion in the
canvass the certificate of canvass for the
municipality of Virac, excluding the returns from
48 precincts;

4) G.R. No. 105730 SPC No. 92-315 affirming

the ruling of the Municipal Board of Canvassers
of Jose Panganiban, Camarines Norte which
dismissed petitioner's opposition to the

composition of the said Municipal Board of

Canvassers;

5) G.R. No. 105771 SPC No. 92-271 affirming

the ruling of the Municipal Board of Canvassers
of Cabusao, Camarines Sur which, among
others, rejected petitioner's objection to certain
election returns;

6) G.R. No. 105778 SPC No. 92-039

dismissing said case for non-compliance with
Section 20 of R.A. No. 7166;

7) G.R. No. 105797 SPC No. 92-153 affirming

the rulings of the Provincial Board of
Canvassers of Davao Oriental which rejected
petitioner's objections to the canvass of some
certificates of canvass;

8) G.R. No. 105919 SPC No. 92-293

dismissing petitioner's appeal from the ruling of
the Municipal Board of Canvassers of Upi Nuro,
Maguindanao;

9) G.R. No. 105977 SPC No. 92-087 denying

the amended pre-proclamation petition, which is
an appeal from the rulings of the Municipal
Board of Canvassers of Ternate, Cavite, and
denying a subsequent motion to resolve the
issues raised in said amended petition.

Comments had been filed only in G.R. No.

105727 and G.R. No. 105797. This Court
dispenses with the Comments in the other
cases.

Petitioners impugn the challenged resolutions

above specified as having been issued with

grave abuse of discretion in that, inter alia, the

Commission, sitting en banc, took cognizance of
and decided the appeals without first referring
them to any of its Divisions.

Section 3, subdivision C, Article IX of the 1987

Constitution expressly provides:

Sec. 3. The Commission on Elections may sit en

banc or in two divisions, and shall promulgate its
rules of procedure in order to expedite
disposition of election cases, including preproclamation controversies. All such election
cases shall be heard and decided in division,
provided that motions for reconsideration of
decisions shall be decided by the Commission
en banc. (Emphasis supplied).

The 1973 Constitution prescribed another rule.

Its Section 3, subdivision C of Article XII
provided as follows:

authority to hear and decide these Special

Cases. 2 Rule 27 thereof governs Special
Cases; specifically, Section 9 of the said Rule
provides that appeals from rulings of the Board
of Canvassers are cognizable by any of the
Divisions to which they are assigned and not by
the Commission en banc. Said Section reads:

Sec. 9. Appeals from rulings of Board of

Canvassers. (a) A party aggrieved by an oral
ruling of the board of canvassers who had stated
orally his intent to appeal said ruling shall, within
five days following receipt of a copy of the
written ruling of the board of canvassers, file
with the Commission a verified appeal,
furnishing a copy thereof to the board of
canvassers and the adverse party.

(b) The appeal filed with the Commission shall

be docketed by the Clerk of Court concerned.

(c) The answer/opposition shall be verified.

Sec. 3. The Commission on Elections may sit en
banc or in three divisions. All election cases may
be heard and decided by divisions, except
contests involving Members of the Batasang
Pambansa, which shall be heard and decided en
banc. . . .

(d) The Division to which the case is assigned

shall immediately set the case for hearing.
(Emphasis supplied)

xxx xxx xxx

It is clear from the abovequoted provision of the
1987 Constitution that election cases include
pre-proclamation controversies, and all such
cases must first be heard and decided by a
Division of the Commission. The Commission,
sitting en banc, does not have the authority to
hear and decide the same at the first instance.
In the COMELEC RULES OF PROCEDURE,
pre-proclamation cases are classified as Special
Cases 1 and, in compliance with the above
provision of the Constitution, the two (2)
Divisions of the Commission are vested with the

A motion to reconsider the decision or resolution

of the Division concerned may be filed within five
(5) days from its promulgation. 3 The Clerk of
Court of the Division shall, within twenty-four
(24) hours from the filing thereof, notify the
Presiding Commissioner of such fact; in turn, the
latter shall certify the case to the Commission en
banc. 4 Thereafter, the Clerk of Court of the
Commission shall calendar the motion for
reconsideration for the resolution of the

Commission en banc within ten (10) days from

the certification. 5

Indisputably then, the COMELEC en banc acted

without jurisdiction, or with grave abuse of
discretion, when it resolved the appeals of
petitioners in the abovementioned Special
Cases without first referring them to any of its
Divisions. Said resolutions are, therefore, null
and void and must be set aside. Consequently,
the appeals are deemed pending before the
Commission for proper referral to a Division.

A resolution directing the COMELEC to assign

said Special Cases to the Divisions pursuant to
Section 8, Rule 3 of its Rules on assignment of
cases would, logically, be in order. However,
Section 16 of R.A. No. 7166 6 provides that all
pre-proclamation cases pending before it shall
be deemed terminated at the beginning of the
term of the office involved. The said section
provides as follows:

The terms of the offices involved in the Special

Cases subject of these petitions commenced at
noon of 30 June 1992. 7 These cases have thus
been rendered moot and such a resolution
would only be an exercise in futility.

Accordingly,
the
instant
petitions
are
DISMISSED without prejudice to the filing by
petitioners of regular election protests. If the
winning candidates for the positions involved in
the Special Cases subject of these petitions
have already been proclaimed, the running of
the period to file the protests shall be deemed
suspended by the pendency of such cases
before the COMELEC and of these petitions
before this Court.

The Temporary Restraining Orders issued in

G.R. No. 105727, G.R. No. 105730 and G.R.
No. 105797 are hereby LIFTED.

xxx xxx xxx

All pre-proclamation cases pending before the

Commission shall be deemed terminated at the
beginning of the term of the office involved and
the rulings of the boards of canvassers
concerned shall be deemed affirmed, without
prejudice to the filing of a regular election protest
by the aggrieved party. However, proceedings
may continue when on the basis of the evidence
thus far presented, the Commission determines
that the petition appears meritorious and
accordingly issues an order for the proceeding
to continue or when an appropriate order has
been issued by the Supreme Court in a petition
for certiorari.

EN BANC
[G.R. No. 121031. March 26, 1997]
ATTY. ROSAURO I. TORRES, petitioner, vs.
COMMISSION ON ELECTIONS and VICENTE
RAFAEL A. DE PERALTA, respondents.
DECISION
BELLOSILLO, J.:

This case involves the power of the Commission

on Elections (COMELEC) to annul the
proclamation of a winning candidate for
Municipal Councilor in view of an error in the
computation of totals in the Statement of Votes
which was made the basis of the proclamation,
and to direct the Municipal Board of Canvassers
to reconvene and proclaim the rightful winner.

On 9 May 1995 the Municipal Board of

Canvassers of Tanza, Cavite, issued a
Certificate of Canvass of Votes and
Proclamation of the Winning Candidates for
Municipal Offices (Municipal Councilors) as
follows: (1) Wilfredo A. Nuez, 14,888 votes; (2)
Yuri A. Pacumio, 13,445 votes; (3) Rogelino A.
Dones, 12,428 votes; (4) Francisco C. Pasco,
12,218 votes; (5) Rosauro I. Torres, 12,055
votes; (6) Rosalita C. Cenizal, 12,035 votes; (7)
Eliseo R. Arcaira Jr., 11,939 votes; (8) Policarpio
A. Bocalan, 11,790 votes. Accordingly, petitioner
Atty. Rosauro I. Torres was proclaimed as the
fifth winning candidate for councilor.[1]

Two (2) days after or on 11 May 1995 the same

Municipal Board of Canvassers requested the
COMELEC for correction of the number of votes
garnered by petitioner who was earlier
proclaimed as the fifth winning candidate for
councilor. The letter-request was signed by
Rudolph Melon and Norma Abril as Vice
Chairman and Secretary, respectively. The letter
reads

The undersigned members of the Board of

Canvassers, Tanza, Cavite, respectfully request
for the correction of votes garnered by Mr.
Rosauro I. Torres who was proclaimed as the
fifth winning candidate for Councilor instead of
Mr. Vicente Rafael A. de Peralta who landed in
the number eight (8th) position. The votes
intended for MR. BERNARDO C. DIMAALA in
the sub-total as reflected in the Statement of
Votes by precinct was erroneously added to Mr.
Torres for a total of Nine Hundred Thirty Four
(934) votes. Mr. Torres should have been
number ten (10) in the winning column and that
if correction shall be made Mr. Torres shall
garner a total of Eleven Thousand One Hundred
Twenty One (11,121) votes while Mr. de Peralta
garnered a total of Eleven Thousand Six
Hundred Ten (11,610) votes.[2]

On 16 May 1995 the COMELEC set the case for

hearing. Summonses with notices of hearing
were sent to petitioner Atty. Rosauro I. Torres
and private respondent Vicente Rafael A. de
Peralta requiring them to file their respective
answers to the letter of the Municipal Board of
Canvassers.

Petitioner filed his answer alleging that the

subject matter of the letter-petition of the
Municipal Board of Canvassers, which was the
correction of votes garnered by him, properly
falls within the jurisdiction of the Regional Trial
Court pursuant to Sec. 251 of the Omnibus
Election Code. On the other hand, private
respondent argued for the annulment of the
proclamation of petitioner and prayed for his
(private respondent) proclamation as the
winning candidate.

On 28 June 1995 respondent COMELEC issued

the assailed En Banc resolution granting the
letter-request of the Municipal Board of

Canvassers for the correction of the number of

votes garnered by petitioner. Respondent
COMELEC also ordered the Municipal Board of
Canvassers to reconvene and proclaim private
respondent Vicente Rafael A. de Peralta as the
eighth winning councilor of Tanza, Cavite.

On 5 July 1995 the Municipal Board of

Canvassers issued a corrected Certificate of
Canvass of Votes and Proclamation of the
Winning Candidates which included private
respondent Vicente Rafael A. de Peralta as the
eighth winning councilor and excluded petitioner
from the new list of winning candidates.[3]

Petitioner came up to this Court alleging that

public respondent COMELEC acted without or in
excess of its jurisdiction in granting the request
of the Municipal Board of Canvassers to correct
the votes garnered by petitioner and in ordering
the proclamation of private respondent as the
eighth winning candidate thereby ousting
petitioner from the new list of winners. Petitioner
also argues that the Municipal Board of
Canvassers had no legal personality to file the
action motu proprio before the COMELEC for
correction; that corrections are allowed only
when there has been no proclamation yet, citing
Respicio v. Cusi;[4] and finally, that once the
Municipal Board of Canvassers has declared
and proclaimed the winners in an election its
functions are finished and its existence is
terminated.

The Office of the Solicitor General submits that

respondent COMELEC acted beyond the limits
of its power and authority when it ordered the
Municipal Board of Canvassers to reconvene
and correct its alleged mistake in counting the
votes cast for candidate Dimaala in favor of
petitioner; that by having done so, respondent
COMELEC had exercised original jurisdiction
over a municipal election contest contrary to
what the Constitution mandates; that Art. IX-C,

Sec. 2, par 2, of the Constitution provides that

the Commission on Elections shall exercise
appellate jurisdiction over all contests involving
elective municipal officials decided by trial courts
of general jurisdiction, or involving elective
barangay officials decided by trial courts of
limited jurisdiction.

Respondent COMELEC filed its own comment

alleging that the proclamation of petitioner was
flawed from the beginning for being tainted with
clerical error or mathematical mistake in the
addition of votes; that pursuant to the ruling in
Villaroya v. COMELEC[5] public respondent has
original jurisdiction on all matters relating to
election returns, including the verification of the
number of votes received by opposing
candidates in the election returns as compared
to the statement of votes in order to ensure that
the true will of the people is known; and, that
according to Tatlonghari v. Comelec,[6] when
what is involved is purely mathematical and/or
mechanical error in the operation of the adding
machine committed by the board of canvassers
but does not involve any opening of ballot
boxes, examination and appreciation of ballots
and/or election returns, all that is required is to
reconvene the board of canvassers to rectify the
error it inadvertently committed. Respondent
COMELEC also contends that since it has the
direct control and supervision over the municipal
board of canvassers, the former has authority to
direct the latter to reconvene and continue its
assigned task in proclaiming the rightful winner
for municipal councilor.

Petitioner's contentions must fail. The position of

COMELEC is well-taken. Sec. 7, Rule 27, of the
COMELEC Rules of Procedure provides

Sec. 7. Correction of Errors in Tabulation or

Tallying of Results by the Board of Canvassers.
(a) where it is clearly shown before proclamation
that manifest errors were committed in the

tabulation or tallying of election returns, or

certificates of canvass, during the canvassing as
where (1) a copy of the election returns of one
precinct or two or more copies of a certificate of
canvass were tabulated more than once, (2) two
copies of the election returns or certificate of
canvass were tabulated separately, (3) there
was a mistake in the adding or copying of the
figures into the certificate of canvass or into the
statement of votes by precinct, or (4) so-called
election returns from non-existent precincts were
included in the canvass, the board may motu
proprio or upon verified petition by any
candidate, political party, organization or
coalition of political parties, after due notice and
hearing, correct the errors committed.

In Castromayor v. Comelec[7] we held that

although the above provision applies to preproclamation controversies, and even if the
proclamation of a winning candidate has already
been made, there is nothing to prevent its
application to cases like the one at bar in which
the validity of the proclamation is precisely in
question. In Duremdes v. COMELEC,[8] this
Court sustained the power of the COMELEC En
Banc to order a correction of the Statement of
Votes to make it conform to the election returns
in accordance with a procedure similar to the
procedure now embodied in Sec. 7, Rule 27, of
the COMELEC Rules of Procedure. Since the
Statement of Votes forms the basis of the
Certificate of Canvass and of the proclamation,
any error in the statement ultimately affects the
validity of the proclamation.

It is Duremdes further submission that his

proclamation could not be declared null and void
because a pre-proclamation controversy is not
proper after a proclamation has been made, the
proper recourse being an election protest. This
is on the assumption, however, that there has
been a valid proclamation. Where a
proclamation is null and void, the proclamation is
no proclamation at all and the proclaimed
candidate's assumption of office cannot deprive
the COMELEC of the power to declare such
nullity and annul the proclamation (Aguam v.
COMELEC, L-28955, 28 May 1968, 23 SCRA
883)[9]

The Statement of Votes is merely a tabulation

per precinct of the votes obtained by the
candidates as reflected in the election returns.
What is involved in the instant case is simple
arithmetic. In making the correction in the
computation the Municipal Board of Canvassers
acted in an administrative capacity under the
control and supervision of the COMELEC.
Pursuant to its constitutional function to decide
questions affecting elections, the COMELEC En
Banc has authority to resolve any question
pertaining to the proceedings of the Municipal
Board of Canvassers.[10]

WHEREFORE, the Petition is DISMISSED and

the Resolution of the COMELEC En Banc dated
28 June 1995 is AFFIRMED.

SO ORDERED.
It may be argued that because petitioner has
already been proclaimed as winning candidate
the remedy of the losing party is an election
protest over which the Regional Trial Court and
not the COMELEC nor the Municipal Board of
Canvassers has original jurisdiction. However,
as this Court already ruled in Duremdes

Narvasa, C.J., Padilla, Regalado, Davide, Jr.,

Romero, Melo, Puno, Vitug, Kapunan, Mendoza,

Republic of the Philippines

SUPREME COURT

8-A

23

43

Manila

23

10

EN BANC

37

49

2-A

31

48

12

50

42

vs.

12-A

65

29

COMMISSION ON ELECTIONS,
MUNICIPAL BOARD OF CANVASSERS
OF GIPORLOS, EASTERN SAMAR and
ALFREDO I. GO, respondents.

7-A

36

73

20

19

88

56

MENDOZA, J.:

1-A

54

67

Petitioner Jose C. Ramirez and private

respondent Alfredo I. Go were candidates
for vice mayor of Giporlos, Eastern Samar
in the election of May 8, 1995. Petitioner
was proclaimed winner by the Municipal
Board of Canvassers (MBC) on the basis of
results showing that he obtained 1,367
votes against private respondent's 1,235
votes. 1

13-A

43

47

18

39

12

14

19

65

27

37

5-A

43

67

13

37

42

73

79

15

49

49

11

58

18

11-A

66

32

115

98

130

52

17

54

15

86

67

10

60

13

G.R. No. 122013

March 26, 1997

JOSE C. RAMIREZ, petitioner,

On May 16, 1995, private respondent filed

in the COMELEC a petition for the
correction of what he claimed was manifest
error in the Statement of Votes (SPC No.
95-198). He alleged that, based on the
entries in the Statement of Votes, he
obtained 1,515 votes as against petitioner's
1,367 votes but that because of error in
addition, he was credited with 1,235 votes
as shown in the following recomputation: 2

Precinct No.
C.

Go, Alfredo I. Ramirez, Jose

50

55

130

61

19

41

61

17

54

48

21

59

46

86

37

16

52

76

10

60

28

Total 29 Precincts

1,235 1,367

(Should be 1,515)

In his Answer with Counter-Protest, 3

petitioner Jose C. Ramirez disputed private
respondent's claim. He said that instead of
the total of the votes for private respondent
Alfredo Go, it was actually the entries
relating to the number of votes credited to
him in Precinct Nos. 11, 11-A, 6, 1, 17, 7,
and 10 which were erroneously reflected in
the Statement of Votes. According to
petitioner, the entries in the Statement of
Votes actually referred to the number of
votes obtained by Rodito Fabillar, a
mayoralty candidate, and not to the votes
obtained by private respondent. Petitioner
alleged that, as shown in the Certificate of
Votes prepared by the Board of Election
Inspectors, the votes cast for Go in the
precincts in question were as follows:

Precincts Nos. Per Statement Per Certificate

of Votes

The addition of the number of votes

(reflected in the Certificate of Votes) to the
number of votes from other precincts
confirms the MBC's certificate that the total
number of votes cast was actually 1,367 for
petitioner and 1,235 for private respondent.

On August 1, 1995, the COMELEC en banc

issued its first questioned resolution,
directing the MBC to reconvene and
recompute the votes in the Statement of
Votes and proclaim the winning candidate
for vice mayor of Giporlos, Eastern Samar
accordingly. 4

Petitioner Jose C. Ramirez and public

respondent Municipal Board of Canvassers
filed separate "motions for clarification." On
September 26, 1995, the COMELEC en
banc issued its second questioned
resolution, reiterating its earlier ruling. It
rejected the MBC's recommendation to
resort to election returns: 5

of Votes

11

58

32

11-A

66

18

115

65

The Municipal Board of Canvassers is

reminded that pursuant to Section 231 of
the Omnibus Election Code, it is the
Statement of Votes, duly prepared,
accomplished
during
the
canvass
proceedings, and certified true and correct
by said Board which supports and form (sic)
the basis of the Certificate of Canvass and
9

Proclamation of winning candidates. In fact

and in deed, the Municipal Board of
Canvassers/Movant had submitted to the
Commission, attached to and forming part
of the Certificate of Canvass and
Proclamation a Statement of Votes without
any notice of any discrepancy or infirmity
therein. To claim now that the proclamation
was not based on said Statement of Votes
but on the Certificate of Votes because the
entries in the Statement of Votes are
erroneous is too late a move, considering
that by the Board's act of submitting said
Statement of Votes as attachment to the
Certificate of Proclamation and Canvass, it
had rendered regularity and authenticity
thereto.

Hence this petition for certiorari and

mandamus seeking the annulment of the
two resolutions, dated August 1, 1995 and
September 26, 1995, of the Commission on
Elections, and the reinstatement instead of
the May 10, 1995 proclamation of petitioner
Jose C. Ramirez as the duly elected vice
mayor of Giporlos, Eastern Samar.
Petitioner contends that (1) the COMELEC
acted without jurisdiction over SPC No. 95198 because the case was resolved by it
without having been first acted upon by any
of its divisions, and (2) the MBC had already
made motu proprio a correction of manifest
errors in the Statement of Votes in its
certification dated May 22, 1995, showing
the actual number of votes garnered by the
candidates and it was a grave abuse of its
discretion for the COMELEC to order a
recomputation of votes based on the
allegedly uncorrected Statement of Votes.

With respect to the first ground of the

petition, Art. IX, 3 of the Constitution
provides:

3.
The Commission on Elections may
sit en banc or in two divisions, and shall
promulgate its rules of procedure in order to
expedite disposition of election cases,
including pre-proclamation controversies. All
such election cases shall be heard and
decided in division, provided that motions
for reconsideration of decisions shall be
decided by the Comelec en banc.
(Emphasis added)

Although in Ong, Jr. v. COMELEC 6 it was

said that "By now it is settled that election
cases which include pre-proclamation
controversies must first be heard and
decided by a division of the Commission" 7
and a petition for correction of manifest
error in the Statement of Votes, like SPC
No.
95-198
is
a
pre-proclamation
controversy in none of the cases 8 cited
to support this proposition was the issue the
correction of a manifest error in the
Statement of Votes under 231 of the
Omnibus Election Code (B.P. Blg. 881) or
15 of R.A. No. 7166. On the other hand,
Rule 27, 5 of the 1993 Rules of the
COMELEC expressly provides that preproclamation controversies involving, inter
alia, manifest errors in the tabulation or
tallying of the results may be filed directly
with the COMELEC en banc, thus

5.
Pre-proclamation
Controversies
Which May Be Filed Directly With the
Commission. (a) The following pre-

10

proclamation controversies may be filed

directly with the Commission:

xxx

xxx

xxx

2)
When the issue involves the
correction of manifest errors in the
tabulation or tallying of the results during the
canvassing as where (1) a copy of the
election returns or certificate of canvass
was tabulated more than once, (2) two or
more copies of the election returns of one
precinct, or two or more copies of certificate
of canvass were tabulated separately, (3)
there had been a mistake in the copying of
the figures into the statement of votes or
into the certificate of canvass, or (4) socalled returns from non-existent precincts
were included in the canvass, and such
errors could not have been discovered
during the canvassing despite the exercise
of due diligence and proclamation of the
winning candidates had already been made.

xxx

xxx

the COMELEC en banc of the power to

decide petition for correction of manifest
error.

xxx

(e)
The petition shall be heard and
decided by the Commission en banc.

Accordingly in Castromayor v. Commission

on Elections, 9 and Mentang v. Commission
on Elections, 10 this Court approved the
assumption of jurisdiction by the COMELEC
en banc over petitions for correction of
manifest error directly filed with it. Our
decision today in Torres v. COMELEC 11
again gives imprimatur to the exercise by

In any event, petitioner is estopped from

raising the issue of jurisdiction of the
COMELEC en banc. Not only did he
participate in the proceedings below but he
also sought affirmative relief from the
COMELEC en banc by filing a CounterProtest in which he asked that "entr[ies] in
the statement of votes for Precinct Nos. 11,
11-A, 6, 1, 17, 7 and 10, be properly
corrected for the petitioner, to reflect the
correct mandate of the electorate of
Giporlos, Eastern Samar." 12 It is certainly
not right for a party taking part in
proceedings and submitting his case for
decision to attack the decision later for lack
of jurisdiction of the tribunal because the
decision turns out to be adverse to him. 13

Petitioner next contends that motu proprio

the MBC already made a correction of the
errors in the Statement of Votes in its
certification dated May 22, 1995, which
reads: 14

C E R T I F I C AT I O N

To whom It May Concern:

This is to certify that the hereunder

candidates for Municipal Vice Mayor of
Giporlos, Eastern Samar during the May 8,
1995 National and Local Elections got the
number of Votes on the precincts listed
11

hereunder in tabulation form based in our

Canvassing of Votes per Precincts.

Name of

PRECINCT NUMBERS

candidate
17

11
7

11-A
10

GO, Alfredo I. 32
48
37

18
28

65

61

RAMIREZ, Jose C.
52
15

18
67

32
13

98

This certification is issued upon request of

the interested party for whatever legal
purpose this may serve him.

Giporlos, Eastern Samar.

May 22, 1995

To begin with, the corrections should be

made either by inserting corrections in the
Statement of Votes which was originally
prepared and submitted by the MBC, or by
preparing an entirely new Statement of
Votes incorporating therein the corrections.
15 The certification issued by the MBC is
thus not the proper way to correct manifest
errors in the Statement of Votes. More
importantly, the corrections should be based
on the election returns but here the
corrections appear to have been made by
the MBC on the bases of the Certificates of
Votes issued. Thus, in its motion for
clarification, the MBC said:

a.
The proclamation of Jose C.
Ramirez was based on the results of the
certificate of canvass and tally of votes
garnered by both petitioner and private
respondent which showed Jose C. Ramirez
garnering 1,367 as against 1,235 by Alfredo
I. Go, or a winning margin of 132 in favor of
Jose C. Ramirez;

b.
Based on the certificate of votes in
Precinct Nos. 11, 11-A, 6, 1, 17, 7, and 10,
Alfredo I. Go garnered only 32, 18, 65, 61,
48, 37 and 28, respectively, and the votes
ascribed to the latter shown in the statement
of votes are clear typographical errors and
were erroneously copied from the votes
garnered by mayoral candidate Rodito P.
Fabillar from the same seven (7) precincts
in Giporlos;

c.
Because of typographical errors in
the statement of votes, Alfredo I. Go
balooned (sic) by 280 votes, such that
instead of losing by 132 votes to Jose C.
Ramirez, Alfredo I. Go acquired an
unwarranted margin of 148 votes;

d.
The recomputation based on the
statement of votes alone without including
the correct votes on the Election Returns on
the Seven (7) precincts aforesaid will
frustrate the will of the people who
unquestionably voted for Jose C. Ramirez
by a clear majority of 132 votes;

e.
In the preparation of the certificate of
canvass and proclamation, only the
12

certificate of votes of each candidate were

considered by reason of the fact it was
prepared and signed only on May 11, 1995
or one after (sic) the proclamation of the
winning municipal candidates on May 10,
1995.

Certificates of Votes are issued by Boards

of Election Inspectors (BEI) to watchers,
pursuant to 215 of the Omnibus Election
Code (OEC). While such certificates are
useful for showing tampering, alteration,
falsification or any other irregularity in the
preparation of election returns, 16 there is
no reason for their use in this case since the
integrity of the election returns is not in
question. On the other hand, in the canvass
of votes, the MBC is directed to use the
election returns. 17 Accordingly, in revising
the Statement of Votes supporting the
Certificate of Canvass, the MBC should
have used the election returns from the
precincts in question although in fairness to
the MBC, it proposed the use of election
returns but the COMELEC en banc rejected
the proposal. The Statement of Votes is a
tabulation per precinct of votes garnered by
the candidates as reflected in the election
returns.

The Statement of Votes is a vital component

of the electoral process. It supports the
Certificate of Canvass and is the basis for
proclamation. 18 But in this case the
Statement of Votes was not even prepared
until after the proclamation of the winning
candidate. This is contrary to the Omnibus
Election Code, 231 of which provides in
part:

xxx

xxx

xxx

The respective board of canvassers shall

prepare a certificate of canvass duly signed
and affixed with the imprint of the thumb of
the right hand of each member, supported
by a statement of votes received by each
candidate in each polling place and, on the
basis thereof, shall proclaim as elected the
candidates who obtained the highest
number of votes cast in the province, city,
municipality or barangay.

Indeed, it appears from the Comment of the

MBC that the MBC prepared its Certificate
of Canvass simply on the basis of
improvised tally sheets and that it was only
after the termination of the canvass, the
proclamation of petitioner Jose C. Ramirez,
and the accomplishment of the Certificate of
Canvass of Votes and Proclamation, that its
clerk, Rosalia Abenojar, prepared the
Statement of Votes (C.E. Form No. 20-A). In
a sworn report, Ms. Abenojar herself stated
that she was tired and drowsy at the time
she prepared the Statement of Votes for the
mayoralty and vice mayoralty positions.
Although this circumstance may support
petitioner's claim that the number of votes
credited to private respondent Alfredo I. Go
are actually those cast in Precinct Nos. 11,
11-A, 6, 1, 17, 7, and 10 for mayoralty
candidate Rodito Fabillar, it is equally
possible that Go and Fabillar obtained the
same number of votes in those precincts.
That the clerk who prepared the Statement
of Votes was tired and drowsy does not
necessarily mean the entries she made
were erroneous. But what is clear is that the
Statement of Votes was not prepared with
the care required by its importance.
Accordingly, as the Solicitor General states,
13

what the COMELEC should have ordered

the MBC to do was not merely to recompute
the number of votes for the parties, but to
revise the Statement of Votes, using the
election returns for this purpose. 19 As this
Court ruled in Villaroya v. Commission on
Elections: 20

to order it to revise with deliberate speed

the Statement of Votes on the basis of the
election returns from all precincts of the
Municipality of Giporlos and thereafter
proclaim the winning candidate on the basis
thereof.

SO ORDERED.
[T]he COMELEC has ample power to see to
it that the elections are held in clean and
orderly manner and it may decide all
questions affecting the elections and has
original jurisdiction on all matters relating to
election returns, including the verification of
the number of votes received by opposing
candidates in the election returns as
compared to the statement of votes in order
to insure that the true will of the people is
known. Such a clerical error in the
statement of votes can be ordered corrected
by the COMELEC.(Emphasis added)

Narvasa, C.J., Padilla, Regalado, Davide,

Jr., Romero, Bellosillo, Melo, Puno and
Vitug, JJ., concur.

Petitioner's final contention that in any event

SPC No. 95-198 must be considered
rendered moot and academic by reason of
his proclamation and assumption of office is
untenable. The short answer to this is that
petitioner's proclamation was null and void
and therefore the COMELEC was not
barred from inquiring into its nullity. 21

WHEREFORE, the petition is partially

GRANTED by annulling the resolutions
dated August 1, 1995 and September 26,
1995 of the Commission on Elections. The
COMELEC is instead DIRECTED to
reconvene the Municipal Board of
Canvassers or, if this is not feasible, to
constitute a new Municipal Board of
Canvassers in Giporlos, Eastern Samar and
14

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 108886

May 5, 1995

Petitioner Aquiles Reyes and private

respondent Adolfo Comia were candidates
for the position of member of the
Sangguniang Bayan of Naujan, Oriental
Mindoro in the May 11, 1992 synchronized
elections.

AQUILES U. REYES, petitioner,

vs.
REGIONAL TRIAL COURT OF ORIENTAL
MINDORO, BRANCH XXXIX,
COMMISSION ON ELECTIONS, ADOLFO
G. COMIA, AND THE SANGGUNIANG
BAYAN OF NAUJAN, ORIENTAL
MINDORO, respondents.
MENDOZA, J.:
This is a petition for certiorari, prohibition
and mandamus which seeks (1) the
annulment of the decision, dated June 23,
1992, of the Regional Trial Court (Br. 39) of
Calapan, Oriental Mindoro, annuling the
proclamation of petitioner as the eighth
member of the Sangguniang Bayan of
Naujan, Oriental Mindoro; (2) the annulment
of the decision of the Commission on
Elections (COMELEC), dated January 22,
1993, dismissing petitioner's appeal from
the trial court's decision; (3) the issuance of
a writ of mandamus to compel respondent
Sangguniang Bayan to recognize petitioner
as the duly elected member thereof; and (4)
the issuance of a writ of prohibition against
respondent Adolfo G. Comia, enjoining him
from continuing in office as member of the
Sangguniang Bayan of Naujan, Oriental
Mindoro.

The facts are as follows:

On May 13, 1992, during the proceedings of

the Municipal Board of Canvassers, private
respondent moved for the exclusion of
certain election returns, on the ground of
serious irregularity in counting in favor of
petitioner Aquiles Reyes votes cast for
"Reyes" only, considering that there was
another candidate (Epitacio Reyes) bearing
the same surname. However, without
resolving his petition, the Municipal Board of
Canvassers proclaimed on the same day
petitioner as the eighth winning candidate
with 7,205 votes. On May 25, 1992
petitioner took his oath of office.

On June 1, 1992, private respondent filed

an election protest before the trial court. He
alleged that "a vital mistake [had been]
committed by the Board of Canvassers in
the mathematical computation of the total
number of votes garnered by petitioner [now
private respondent];" Private respondent
alleged:

5.
That in the said Statement of Votes
by City/Municipality or Precinct or C.E. Form
No. 20-A, it is reflected therein that the total
number of votes garnered by the petitioner
is only 858 votes, when in fact and in truth,
after
reviewing and correcting the
computation of the actual votes garnered by
15

the petitioner the total votes to be counted

in his favor is 915 votes;

6.
That the Municipal Board of
Canvassers and the Election Registrar of
Naujan, Oriental Mindoro, after having been
informed of the said discrepancies,
manifested in the presence of Municipal
Trial Court Judge TOMAS C. LEYNES, that
it was an honest mistake committed in the
computation and the addition of the total
number of votes appearing in C.E. Form No.
20-A.;

7.
That after correcting the total
number of votes garnered by the petitioner,
it appears now that the total votes cast in
his favor in all precincts is 7,233 votes
which is more than 28 votes over the total of
7,205 votes garnered by respondent Aquiles
U. Reyes, who was proclaimed as Elected
Sangguniang Bayan Member of Naujan,
Oriental Mindoro occupying the 8th position.

On June 4, 1992, petitioner filed a motion to

dismiss private respondent's petition on the
ground that it was filed beyond the
reglementary period of ten days from
proclamation. On June 15, 1992, however,
the trial court denied his motion.

On the other hand, the Municipal Board of

Canvassers file its answer in which it
admitted that it had made a mistake in
crediting private respondent with only 858
votes when he was entitled to 915 votes in
the Statement of Votes (C.E. Form No. 20A).

On June 23, 1992, the trial court rendered

its decision annuling the proclamation of
petitioner and declaring private respondent
as the eighth winning candidate for the
position of councilor of the Sangguniang
Bayan of Naujan, Oriental Mindoro. A copy
of the decision was served on petitioner on
June 26, 1992.

Petitioner filed a notice of appeal to the

COMELEC. In addition, he filed a petition
for mandamus and prohibition in the Court
of Appeals, to compel the Sangguniang
Bayan to recognize him as the duly
proclaimed member of that body and
prohibit it from further recognizing private
respondent.

On August 26, 1992, the Court of Appeals

dismissed the petition because of
petitioner's
pending
appeal
in
the
COMELEC. The appellate court cited
Supreme Court Circular 28-91 which
prohibits the filing of multiple petitions
involving the same issues.

Petitioner filed a motion for reconsideration

but his motion was denied. The appellate
court's decision became final and executory
on December 10, 1992.

Meanwhile, the Sangguniang Bayan met in

inaugural session on July 3, 1992, during
which private respondent was recognized
as the eighth member of the body and
thereafter allowed to assume office and
discharge its functions. On July 13, 1992, it
16

informed petitioner that it had recognized

the private respondent as its member.

On the other hand, the COMELEC's First

Division dismissed on January 22, 1993
petitioner's appeal on the ground that he
had failed to pay the appeal fee within the
prescribed period.

Petitioner then brought the present action.

Petitioner contends that both the trial court
and the COMELEC's First Division
committed a grave abuse of discretion, the
first, by assuming jurisdiction over the
election contest filed by private respondent
despite the fact that the case was filed more
than
ten
days
after
petitioner's
proclamation, and the second i.e., the
COMELEC's First Division, by dismissing
petitioner's appeal from the decision of the
trial court for late payment of the appeal fee.

We find the petition to be without merit.

First. The Solicitor General, in behalf of

the COMELEC, raises a fundamental
question. He contends that the filing of the
present petition, without petitioner first filing
a motion for reconsideration before the
COMELEC en banc, violates Art. IX, A, 7
of the Constitution 1 because under this
provision only decisions of the COMELEC
en banc may be brought to the Supreme
Court on certiorari.

This is correct. It is now settled that in

providing that the decisions, orders and

rulings of COMELEC "may be brought to

the Supreme Court on certiorari" the
Constitution in its Art. IX, A, 7 means the
special civil action of certiorari under Rule
65, 1. 2 Since a basic condition for
bringing such action is that the petitioner
first file a motion for reconsideration, 3 it
follows that petitioner's failure to file a
motion for reconsideration of the decision of
the First Division of the COMELEC is fatal
to his present action.

Petitioner argues that this requirement may

be dispensed with because the only
question raised in his petition is a question
of law. This is not correct. The questions
raised by petitioner involve the interpretation
of constitutional and statutory provisions in
light of the facts of this case. The questions
tendered are, therefore, not pure questions
of law.

Moreover, that a motion for reconsideration

before the COMELEC en banc is required
for the filing of a petition for certiorari is
clear from the following provisions of the
Constitution:

Art. IX, C, 2. The Commission on Elections

shall exercise the following powers and
functions:

xxx

xxx

xxx

(2)
Exercise
exclusive
original
jurisdiction over all contests relating to the
elections, returns, and qualifications of all
17

elective regional, provincial, and city

officials, and appellate jurisdiction over all
contests involving elective municipal
officials decided by trial courts of general
jurisdiction, or involving elective barangay
officials decided by trial courts of limited
jurisdiction.

Decisions, final orders, or rulings of the

Commission on election contests involving
elective municipal and barangay offices
shall be final, executory, and not
appealable.

Id. 3. The Commission on Elections may

sit en banc or in two divisions, and shall
promulgate its rules of procedure in order to
expedite disposition of election cases,
including pre-proclamation controversies. All
such election cases shall be heard and
decided in division, provided that motions
for reconsideration of decisions shall be
decided by the Commission en banc.

Conformably to these provisions of the

Constitution all election cases, including
pre-proclamation controversies, must be
decided by the COMELEC in division.
Should a party be dissatisfied with the
decision, he may file a motion for
reconsideration before the COMELEC en
banc. It is, therefore, the decision, order or
ruling of the COMELEC en banc that, in
accordance with Art. IX, A, 7, "may be
brought to the Supreme Court on certiorari."
4

Second
Even on the merits we think
the First Division of the COMELEC properly

dismissed petitioner's appeal from the

decision of the trial court because of his
failure to pay the appeal fee within the time
for perfecting an appeal. Rule 22, 9 of the
COMELEC Rules of Procedure expressly
provides:

Sec. 9. Grounds for dismissal of appeal.

The appeal may be dismissed upon motion
of either party or at the instance of the
Commission on any of the following
grounds:

(a)
Failure of the appellant to pay the
appeal fee; . . .

In accordance with 2(b) of COMELEC

Resolution No. 2108-A, the appeal fee must
be paid within the period to perfect the
appeal. Thus:

Sec. 2. When docket and other fees shall be

paid.

xxx

xxx

xxx

(b)
The appeal fees prescribed in
section 3 of Rule 22 of the COMELEC
Rules of Procedures shall be paid within the
period to perfect the appeal. . . .

The period to perfect the appeal is

understood to be the period within which to
file the notice of appeal.
18

On the other hand, Rule 22, 3 of the Rules

of Procedure of the COMELEC provides:

Notice of Appeal.
Within five (5) days
after promulgation of the decision of the
court, the aggrieved party may file with said
court a notice of appeal, and serve a copy
thereof upon the attorney of record of the
adverse party.

Petitioner also prays that a re-canvass be

conducted in all the electoral precincts of
Naujan, Oriental Mindoro in view of the
joint-affidavit executed by the members of
the Municipal Board of Canvassers on
October 12, 1993 in which they stated:

This resolution, which was promulgated on

July 14, 1989, superseded COMELEC
Resolution No. 1456 5 on which petitioner
relies for his contention that the fee is to be
paid only upon the filing of the appeal brief.

The records show that petitioner received a

copy of the decision of the trial court on
June 26, 1992. However, he paid the appeal
fee of P1,020.00 only on August 6, 1992. In
other words, petitioner allowed forty (40)
days to lapse when the appeal fee should
have been paid within five (5) days after
promulgation of the trial court's decision.

Petitioner claims that he acted on advice,

presumably of COMELEC officials, to wait
until the records of the appealed case was
received from the Regional Trial Court, so
that it could be docketed and given a case
number before paying the appeal fee. But
there is nothing in the record to show this or
that petitioner offered to pay the appeal fee
within the appeal period. He has not
identified the person who allegedly gave
him the erroneous advice.

19

That the respondent Board, per verification

from the Comelec records of Naujan, after
receipt of the sworn letter-complaint of Mr.
Aquiles U. Reyes, aside from the matters
already alluded to above found that the "40"
votes he garnered in Precinct No. 37, and
the "31" votes in Precinct 41-A that should
have been credited, transcribed or recorded
in complainant's favor in the Statement of
Votes (C.E. Form No. 22-A) on the basis of
the Election Returns (C.E. Form No. 9), thru
honest mistake was erroneously and
inadvertently transcribed or recorded in
good faith and without malice due to mental
and physical fatigue and exhaustion by the
Board of Canvassers and its staff in favor of
candidate
Jeremias
Nacorda
of
Sangguniang Bayan Member of the
Municipality of Naujan in the Statement of
Votes (C.E. Form No. 22-A) of said
precincts, and what should have been
credited and reflected as candidate
Nacorda's vote in the Statement of Votes
(C.E. Form No. 22-A) on the basis of the
Election Returns (C.E. Form No. 9) are "9"
votes in Precinct 37 not "40" votes, and "8"
votes in Precinct No. 41-A and not "31"
votes, certification is hereto attached issued
by the Election Officer of Naujan that
candidate Nacorda per Comelec records
shown in the Election Returns (C.E. Form
No. 9) only garnered "9" votes in Precinct
37, and "8" votes in Precinct 41-A and
marked as Annex "1" and made as integral
part of his joint-affidavit.

Third. Petitioner also assails the decision

of the trial court as having been rendered
without jurisdiction. He contends that the
election protest of private respondent was
filed more than ten days after his
(petitioner's) proclamation.

Petitioner is, however, estopped to raise this

question now. He did not only appeal from
the decision of the trial court to the
COMELEC raising this question, but he also
filed a petition for mandamus and
prohibition in the Court of Appeals. Having
decided on this course of action, he should
not be allowed to file the present petition
just because he lost in those cases.

WHEREFORE, the petition is DISMISSED

for lack of merit.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Regalado,

Davide, Jr., Romero, Bellosillo, Melo,
Quiason, Puno, Vitug and Kapunan, JJ.,
concur.

Francisco, J., is on leave.

This issue was raised in the Addendum to
Appellant's Brief 6 in the COMELEC Case
EAC No. 9-92. With the dismissal of that
case by the COMELEC's First Division,
there is no basis for petitioner's present
contention.

20

COMMISSION ON ELECTIONS, NEW &

SPECIAL PROVINCIAL BOARD OF
CANVASSERS OF ILOILO AND RAMON
DUREMDES, respondents.
MELENCIO-HERRERA, J.:
A quick look at the three preceding cases
elevated to this Court on certiorari revolving
around the elective position of Vice-Governor of
Iloilo is in order.

1
In "Duremdes v. Provincial Board of
Canvassers, COMELEC, and Penaflorida (G.R.
Nos. 86362-63, 27 October 1989, 178 SCRA
746), we upheld the COMELEC Decision
ordering the Provincial Board of Canvassers of
Iloilo (PBC) to immediately reconvene, include in
the canvass the questioned election returns and
prepare a new Statement of Votes, after we had
found that DUREMDES" proclamation was
based on an incomplete canvass.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 101753

2
In "Penaflorida v. COMELEC and
DUREMDES, (G.R. No 93378, 19 July 1990),
the PBC did reconvene but because the
COMELEC ordered the physical examination of
the questioned election returns (PBC copy and
other election returns copies), PENAFLORIDA
sought to enjoin the conduct of said physical
examination. The Court denied that plea and
held that it was best that the physical
examination of different copies of the questioned
election returns be made to verify the number of
votes in the election returns from which the
Statement of Votes could be tabulated. The
Court also directed the COMELEC to proceed
with dispatch with the physical examination of
the questioned election returns so that the true
will of the electorate of Iloilo could be
determined.

March 3, 1992

CIPRIANO PENAFLORIDA, petitioner,

vs.

3
In Penaflorida v. COMELEC (G.R. No.
96760, 19 June 1991, 198 SCRA 454),
Penaflorida charge the COMELEC with grave

21

abuse of discretion for having conducted the

physical examination without notice to him and
in his absence, and prayed for the reexamination of all 110 contested election
returns. We rejected the plea for re-examination
but in order to afford PENAFLORIDA an
opportunity to see for himself the discarded
returns, we directed the COMELEC to allow him
to examine, within a period of three (3) days, the
forty-nine (49) questioned electioned returns
which the COMELEC en banc "found to be fake,
or substituted or systematically tampered with
and no longer reflective of the true results of the
election."

Also assailed by PENAFLORIDA in this case

was the COMELEC Order of 11 February 1991
declaring that it had completed the physical
examination and comparison of the questioned
election returns and found that of the 110
questioned election returns in nine (9)
municipalities of Iloilo, forty-nine (49) returns
from four (4) municipalities had been
"systematically tampered" with or substituted.
Thus, with respect to said forty-nine (49)
questioned returns , the COMELEC ordered that
the COMELEC copy or ballot box copy of said
election returns be used for canvassing, instead
of the usual PBC copy.

The same Order required the PBC to convene

within five (5) days from notification and to
complete the canvass, utilizing for the purpose
the PBC copies for those precincts the returns of
which were not questioned, and for those which
were, such election returns, per precinct, as
specified in the Order.

After PENAFLORIDA had examined the

aforesaid returns, the COMELEC issued a
series of Orders, which eventually led to the
filing of the fourth case, i.e.:

G.R. No. 101753 (the present case)

The first Order, dated 22 August 1991, directed

the taking of the thumbprints of the Chairman
and/or any Member of the Board of Election
Inspectors of the questioned precincts for
comparison with the thumbprints reflected in the
election returns "with prior notice to parties of
the date and place of said fingerprint taking."
The Order was prompted by the "desire (of the
COMELEC)
to
further
determine
the
genuineness, authenticity and due execution of
the election returns with conflicting entries" and
in deference to the request of the new members
which had not taken part in the previous
deliberations, namely Chairman Monsod and
Commissioner Maambong.

PENAFLORIDA moved for the immediate

implementation of the 22 August 1991 Order in
his Manifestation and Motion, dated 9
September 1991. In its Order, dated 12
September 1991, however, the COMELEC, after
stating that the thumbprint taking had already
been accomplished on 5 September 1991,
directed the thumbprint examiners "to immediate
conduct a comparative examination of the
thumbprints taken with those thumbprints
appearing in the election returns.

PENAFLORIDA thereafter filed a Manifestation,

dated 13 September 1991, praying for a retaking
of the thumbprints as it had received no prior
notice with respect thereto. The COMELEC
brushed aside that plea in its assailed Order,
dated 18 September 1991, stating, among
others, that said examination was but part of its
internal procedure; and since the result of the
"dactyloscopic examination" confirmed its
original findings reflected in its Order of 11
February 1991, it directed the PBC, with prior
notice to the parties, to reconvene within five (5)
days, proceed with the canvass of the election
returns and proclaim the winning candidate. The

22

PBC set 2 October 1991 for the canvass and

proclamation.

an " Urgent Ex-Parte Motion to Resolve Pending

Incidents" filed on 25 September 1991.

On 30 September 1991, PENAFLORIDA

instituted the present certiorari Petition praying
that the COMELEC Order of 18 September 1991
be set aside for having been issued with grave
abuse of discretion as the COMELEC had failed
to notify him of the fingerprint taking in
contravention of its earlier Order that the same
be conducted with prior notice to the parties. He
contends that the thumbprint taking was never
meant by the COMELEC to be an "internal
procedure" in its 22 August 1991 Order but that
it was necessary in order to determine the
genuineness and authenticity of the different
copies of the questioned election returns. He
then prays that, in equity, the COMELEC be
ordered to conduct a recount of ballots in all the
forty-nine (49) precincts and that a proclamation
of the winning candidate be made on the basis
of the results of the recounting

If for this alone, the Petition is dismissible on the

ground of prematurity for failure to exhaust
administrative remedies. However, with the end
in view of putting a final termination to this
protracted controversy, we will nonetheless
resolve the Petition on the merits.

We required Comment from all respondent and,

as PENAFLORIDA had prayed for, we issued a
Temporary Restraining Order on 1 October 1991
enjoining the PBC of Iloilo from reconvening on
2 October 19091 and the COMELEC from
enforcing its questioned Order of 18 September
1991.

It appears that, as Respondent DUREMDES

pointed out in his Comment, PENAFLORIDA
had three (3) pending Motions before the
COMELEC at the time he filed this Petition,
namely, (1) an "Urgent Motion for Recount of
Ballots" filed on 18 September 1991 ; (2) a
"Most Urgent Omnibus Motion" filed on 23
September 1991, the main thrust of which was
the nullification of the thumbprint-taking
conducted in Iloilo City on 5 September 1991
and the suspension of any action on the case
until rulings therein had been rendered; and (3)

PENAFLORIDA's submissions call for rejection.

The COMELEC Order, dated 22 August 1991,

did state that the thumbprint taking was to be
conducted with prior notice to the parties, thus:

xxx

xxx

xxx

Accordingly, the Director, Election Records and

Statistics Department is hereby directed to
assign and send immediately fingerprint experts
to Iloilo in coordination with the Provincial
Election Supervisor to examine the fingerprints
of the Chairman and/or any member of the
Board of Election Inspectors of the above
named precincts, with prior notice to parties of
the date and place of said fingerprint taking.
(Underscoring ours).

To be noted, however, is the fact that neither the

Omnibus election Code (B.P. Blg. 881) nor the
Electoral Reforms Law (Rep. Act No. 6646), the
governing legislation during the 18 January 1988
local elections, provide, much less, outline the
procedures to be followed for such an
examination.

23

There is basis, therefore, for the COMELEC

ruling in its Order of 18 September 1991 that the
fingerprint taking was merely "part of its internal
procedure." Worthy of recall is that all the
COMELEC had to do after this Court had
promulgated the Decision in G.R. No. 96760,
supra, was to have afforded PENAFLORIDA the
opportunity to see for himself the election
returns which were found to have been fake,
substituted to tampered with, nothing more.
There was really no compulsion for the
COMELEC to order the thumbprint taking but it
did so "in its desire to further determine the
genuineness, authenticity and due execution of
the election returns with questionable entries.

Indeed, it was not PENAFLORIDA who asked

for the thumbprint taking. That initiative came
from the COMELEC itself, which "wanted to
make sure that its previous ruling was indeed
correct (COMELEC Order, dated 30, September
1991, p. 10). That objective can be further
gleaned from the fact that it was the newly
appointed COMELEC Chairman and another
new Member, Commissioner Maambong, both of
whom had not participated in the earlier
deliberations, who prevailed upon the other
Members to allow the thumbprint taking (Ibid., p.
6) so that they could satisfy themselves of the
authenticity of the copies of the election returns
earlier chosen.

In effect, the thumbprint taking was conducted to

assist the Commissioner in resolving the issue
on the genuineness, authenticity and due
execution of the forty-nine (49) election returns
found to be fake, substituted or tampered with.
Said fingerprint examination and the comparison
made between the specimens taken by the
fingerprint experts and those contained in the
returns are actually part of the decision-making
process. The parties, therefore, are not, as a
matter of right, entitled to be present during the
examination nor to confront the experts on the
result of their work.

It should also be pointed out that no substantial

rights were impaired by the absence of the
parties in the thumbprint taking. Both
PENAFLORIDA and DUREMDES were not
notified thereof. There was no discrimination by
the COMELEC in DUREMDES favor to speak
of, as PENAFLORIDA charges. Although
PENAFLORIDA
claims
that
Respondent
DUREMDES was present during the thumbprint
taking, the COMELEC has not confirmed the
same.

Neither can it be successfully said that there

were irregularities attendants to the thumbprints
taking.
No
proof
was
adduced
by
PENAFLORIDA evidencing such alleged
irregilarities. On the contrary, Commissioner
Maambong supervised the examination from
beginning to end. The whole process itself was
transparents. The procedure undertaken during
the thumbprint taking, outlined in the COMELEC
Order, dated 30, September 1991, speaks for
itself. Thus:

The submitted reports of the process indicate

that a Commissioner of the Comelec supervised
the thumbprint taking. He was assisted by
Regional Director Rodolfo B. Sarroza, Asst.
Regional Director Jose G. Granda, and
Provincial Election Supervisor Hector M. Masna,
with a compliment if nine (9) personnel of the
Iloilo Comelec Office. The thumbprints two
impressions of the right thumb for each subject
were impressed in prepared forms, and the
taking was witnessed by the Supervising
Commissioner
and
the
two
fingerprint
examiners. The thumbprint impressions were
then placed in sealed envelopes as they were
brought to Manila. Likewise, the comparative
examination in the Comelec Office in Manila was
done by the fingerprint examiners who went to
Iloilo City, in coordination with the different
custodians of the election returns ... (Ibid., p. 11).

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If any error can be attributed at all to the

COMELEC, it would be its failure to notify the
parties of the fingerprint examination despite its
order to do so. At most this is a procedural flaw,
not a substantial defect, that can not be equated
with grave abuse of discretion by reason of
which certiorari would lie. Errors of procedure or
judgment are not correctible by Certiorari.

As correctly held by the COMELEC, even is a

thumbprint re-taking is conducted, " a
comparison of these thumbprints with those
appearing in the different copies of the election
returns will certainly yeild the same result" since
fingerprints cannot be forged, Beside there is no
change to the COMELEC Order of 11 February
1991 that the PBC copies for those precincts
whose returns were not questioned were to be
utilized, and for those questioned, the specified
election returns, per precinct.

It
behooves
the
COMELEC,
however,
particularly its personnel, to be more meticulous
and painstaking in the execution and
implementation of Orders. The Court notes that
failure of notice of the conduct of physical
examination was Petitioner PENAFLORIDA's
same plaint in G.R. No. 96760, and which has
contributed in no small measure to further delay
in the final resolution of this controversy.

We now turn to PENAFLORIDA's urgings that at

this late point in time, reliance on election
returns is no longer justifiable and that a recount
of the ballots in all the questioned precincts is
the best equitable remedy.

We disagree. In the first place, there is no basis

for a recount since the election returns are
available. Secondly, in G.R. No. 86362-63,
entitled "Duremdes v. Provincial Board of

Canvassers." (27 October 1989, 178 SCRA

746), the questioned election returns, 110 in all,
had already been pinpointed and ordered
included in the canvass. In G.R. No. 93376,
entitled "Penaflorida v. COMELEC, (19 July
1990), this Court ordered the physical
examination of the said questioned election
returns. And in G.R No. 96760 similarly, entitled
"Penaflorida v. COMELEC" (19 June 1991, 198
SCRA 454), with the physical examination and
comparison of questioned election returns
accomplished, we upheld the COMELEC finding
that of the 110 question election returns, fortynine (49) returns had been systematically
tampered with or substituted so that with respect
to the latter the COMELEC copy or ballot box
copy of said election return is to be used for
canvassing instead of the usual PBC copy. With
the affirmance by this Court of the aforesaid
COMELEC rulings, to recount prayed for by
Petitioner PENAFLORIDA is out of the question.

Parenthetically, Petitioner PENAFLORIDA's

lawyers continually harp on the alleged
erroneous ruling of this Court in G.R. No. 96760
(supra) that "particular copies of the (forty nine
[49] questioned election returns) were found to
be fake, substituted or systematically tampered
with and no longer reflective of the results of the
elections." averring that there was no such
finding by the COMELEC. While it may be that
the Comelec Order itself of 11 February 1991 did
not specifically pinpoint a particular election
return as fake, substituted or tampered with
since it confined itself to the particular copies of
the election returns to be used in the canvass,
yet, the basis for selecting the copies of the
election returns other then the PBC copy, was
well explained before this Court by Commission
Rama during the 21 February 1991 hearing in
G.R. No. 96760, which Petitioner's counsel
attended.
Commission
Rama
precisely
explained that the findings of the COMELEC
when it examined the questioned election
returns were that some of them were "fake" or
"falsified" (TSN., pp. 83-88). Moreover, the notes
or summary of the COMELEC findings relating

25

to the questioned election returns were included

by the Solicitor General in his Memorandum,
dated 28 February 1991, submitted in the
aforesaid case. Therein, reference was made to
the finding that some of the returns were
"systematically tampered" (p. 10) or "substituted"
(p. 9). It is Petitioner, therefore, who is in error
when he states that there was no such finding
made by the COMELEC. Besides, even
assuming that those terms were note explicitly
employed, the COMELEC observations during
its physical examination of the election returns
could not but lead to the use of the same
terminologies.

Finally, the unassailable fact remains that

Petitioner's counsel deliverately failed to inform
this Court, at the time of the institution of this
Petition, of their pending Motions before the
COMELEC, treating practically of the same
questions raised herein, to repeat: (1) an
"Urgent Motion for Recount of Ballots" filed on
18 September 1991; (2) a "Most Urgent
Omnibus Motion" filed on 23 September 1991;
and (3) an "Urgent Ex-Parte Motion to Resolve
Pending Incidents" filed on 25 September 1991.
Recourse to this Court was, therefore, clearly
premature. Counsel's justification that had they
not filed this Petition, it would have been mooted
and that Respondent Duremdes would have
been erroneously proclaimed does not free them
from culpability.

Lawyers owe candor, fairness and good faith to

the Court (Canon 10, Code of Professional
Responsibility). A finding, therefore, that
Petitioner's lawyers have been remiss in this
obligation is inevitable.

WHEREFORE, the Petition for Certiorari is

DENIED The Temporary Restraining Order
heretofore issued by this Court is LIFTED. The
COMELEC may now proceed to implement its
Orders of 11 February 1991 and 18 September
1991 directing the Provincial Board of
Canvassers of Iloilo, with prior notice to the
parties, to reconvence, within five (5) days from
notice, proceed with the canvass and proclaim
the winning candidate.

Petitioner's lawyers, Atty. Salvador S. Tayengco

and Atty. Sixto S. Brillantes, Jr., are hereby
directed to SHOW CAUSE, within then (10) days
from notice, why they should not be
administratively dealth with for their deliberate
failure to exhaust administrative remedies before
their recourse to this Court.

This Decision is immediately executory.

SO ORDERED.

Narvasa, C.J., Cruz, Paras, Feliciano, Padilla,

Bidin, Medialdea, Regalado, Romero and
Nocon, JJ., concur.

Gutierrez, J., concur in the result.

Grio-Aquino, and Davide, Jr., JJ., took no part.

Considering that the term of office of the local

officials elected during the 18 January 1988
elections is almost expiring, there is need for this
Decision to be immediately executory.

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