Angelia vs Comelec : 135468 : May 31, 2000 : J. Mendoza : En Banc

EN BANC

[G.R. No. 135468. May 31, 2000]

DIOSCORO O. ANGELIA, petitioner, vs. COMMISSION ON ELECTIONS and FLORENTINO R. TAN, respondents.

D E C I S I O N

MENDOZA, J.:

This is a petition for certiorari under Rule 65 of the Rules of Civil Procedure to set aside the resolution, dated August 18, 1998, of the Commission on Elections en banc annulling the proclamation of petitioner as member of the Sangguniang Bayan of Abuyog, Leyte and ordering the Municipal Board of Canvassers of said municipality to make the necessary corrections in the election returns of Precinct Nos. 84-A/84-A-1 and Precinct No. 23-A and, thereafter, proclaim the winning candidate or candidates for the Sangguniang Bayan. Sppedjo

The facts of the instant case are as follows:

Petitioner Dioscoro O. Angelia and private respondent Florentino R. Tan were candidates for the position of member of the Sangguniang Bayan of Abuyog, Leyte in the elections held on May 11, 1998. After the canvass of votes on May 13, 1998, the Municipal Board of Canvassers proclaimed the following as the duly elected members of the Sangguniang Bayan:[1]

Winning Candidates	Votes Obtained
1. Placido A. Deloy	9,681
2. Emmanuel L. Gacis	9,164
3. Edmundo P. Sano	8,720
4. Clementino Rudas	8,277
5. Francis Raymundo Realino	8,173
6. Carmelita P. Piscos	7,898
7. Marcelo G. Ganoza	7,835
8. Dioscoro O. Angelia	7,765

Private respondent, who received a total of 7,761 votes ¾ four votes less than those obtained by petitioner ¾ ranked ninth among the candidates. Nexold

On May 25, 1998, private respondent filed a petition for quo warranto with the Regional Trial Court, Abuyog, Leyte against petitioner, alleging that in Precinct Nos. 84-A/84-A-1, he was credited with only 82 votes, when he actually obtained 92, while in Precinct No. 23-A, petitioner was credited with 18 votes, when he actually garnered only 13 votes. According to private respondent, he actually received a total of 7,771 votes, while petitioner actually garnered 7,760 votes. Misoedpâ

On June 12, 1998 petitioner took his oath and assumed office as member of the Sangguniang Bayan. Miä sedp

On June 23, 1998, private respondent filed a motion to withdraw his petition. Subsequently, he filed a petition for annulment of proclamation of petitioner with the COMELEC. He attached to the petition a copy of Election Return No. 3700088 from Precinct Nos. 84-A/84-A-1, which he claims showed a tally of 92 votes for him but indicated a corresponding total in words and figures of only 82 votes.[2] He also submitted a copy of Election Return No. 3700023, which allegedly showed a tally of only 13 votes for petitioner but indicated a corresponding total in words and figures of 18 votes.[3] He presented the affidavit[4] of Alma Duavis, the poll clerk of Precinct Nos. 84-A/84-A-1, stating that she inadvertently entered in Election Return No. 3700088 only 82 instead of 92 as the total number of votes received by private respondent, and the affidavit[5] of Chona Fernando, the poll clerk of Precinct No. 23-A, stating that through oversight, in Election Return No. 3700023, she indicated 18 instead of 13 as the total votes obtained by petitioner. In addition, private respondent submitted to the COMELEC the affidavit[6] of Susan Matugas, the chairperson of the Board of Election Inspectors of Precinct Nos. 84-A/84-A-1, corroborating the affidavit of Duavis.

In the resolution, dated August 18, 1998, the COMELEC annulled the proclamation of petitioner as member of the Sangguniang Bayan and ordered the Municipal Board of Canvassers to make the necessary corrections in the election returns from Precinct Nos. 84-A/ 84-A-1 and Precinct No. 23-A and, thereafter, to proclaim the winning candidate or candidates on the basis of the amended results. The resolution of the COMELEC reads:

On the basis of the documents thus presented and taking into consideration the admission of the Board of Election Inspectors of Precinct Nos. 84-A and 84-A-1, Barangay Dingle, as well as the Chairman of the BEI of Precinct No. 23, the Commission En Banc hereby RULES to GRANT the Petition. Petitioner had correctly availed of the procedure provided for under Section 5 Rule 27 of the COMELEC Rules which prescribes:

"Pre-proclamation controversies which may be filed directly with the Commission - (a) The following pre-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 .... (3) there had been a mistake in the copying of the figures into the statement of votes or into the certificate of 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."

Indeed, the error committed is manifest in that in Resolution No. 2962 (General Instructions for Municipal/City/Provincial and District Boards of Canvassers in Connection with the May 11, 1998 Elections) it was clearly directed:

"In case there exist discrepancies in the votes of any candidate in taras/tally as against the votes obtained in words/figures in the same returns/certificate, the votes in taras/tally shall prevail."

Clearly, rectification of the error is called for, if We are to give life to the will of the electorate. Moreover, it is purely administrative and "It does not involve any opening of the ballot box, examination and appreciation of ballots and/or election returns. As said error was discovered after proclamation, all that is required is to convene the board of canvassers to rectify the error it inadvertently committed in order that the true will of the voters will be effected." (Tatlonghari vs. Commission on Elections, 199 SCRA 849)

WHEREFORE, premises considered, the Commission En Banc hereby ANNULS the proclamation of Dioscoro Angelia, the same being based on an erroneous tally and DIRECTS the Municipal Board of Canvassers of Abuyog, Leyte, to RECONVENE within five (5) days from receipt hereof and effect the corrections in the total number of votes received by the candidates in Precinct Nos. 84-A/84-A-1 (clustered) and Precinct No. 23-A and thereafter PROCLAIM the winning candidate/s for Municipal Kagawad based on the corrected results.

Accordingly, the Municipal Board of Canvassers reconvened on September 1, 1998 and, after making the necessary corrections in the election returns, proclaimed private respondent a member of the Sangguniang Bayan. Edâ p

Petitioner filed a motion for reconsideration alleging that he was not given due notice and hearing. Then, without waiting for the resolution of his motion, he filed the instant petition for certiorari, alleging, as the sole assignment of error, the following:

WITH DUE RESPECT, PUBLIC RESPONDENT COMELEC GRAVELY ERRED AND VIOLATED PETITIONER’S CONSTITUTIONAL RIGHT TO DUE PROCESS WHEN IT PASSED THE AUGUST 18, 1998 RESOLUTION ANNULLING HIS PROCLAMATION AND RECONVENING THE MUNICIPAL BOARD OF CANVASSERS WITHOUT PRIOR NOTICE AND HEARING.

The petition has no merit and should be dismissed, but before we do so, certain preliminary questions raised by the parties must first be disposed of. Edpä sc

First. Respondents contend that the instant petition should be dismissed for being premature, because petitioner has a pending motion for reconsideration of the resolution, dated August 18, 1998, of the COMELEC.

We hold that petitioner acted correctly in filing the present petition because the resolution of the COMELEC in question is not subject to reconsideration and, therefore, any party who disagreed with it had only one recourse, and that was to file a petition for certiorari under Rule 65 of the Rules of Civil Procedure.[7] Rule 13, §1 of the COMELEC Rules of Procedure provides:

What Pleadings are Not Allowed. ¾ The following pleadings are not allowed:

. . . .

d) motion for reconsideration of an en banc ruling, resolution, order or decision except in election offense cases;

. . . .

As the case before the COMELEC did not involve an election offense, reconsideration of the COMELEC resolution was not possible and petitioner had no appeal or any plain, speedy, and adequate remedy in the ordinary course of law. For him to wait until the COMELEC denied his motion would be to allow the reglementary period for filing a petition for certiorari with this Court to run and expire. Sceä dp

The COMELEC contends that petitioner should not be allowed to speculate on the outcome of his motion for reconsideration, which he has not formally withdrawn. Indeed, it would have been more appropriate for petitioner to first withdraw his motion for reconsideration in the COMELEC before filing the present petition. Nevertheless, the filing by petitioner of the instant petition and his reply to the comments of respondents ¾ where he admitted that, except in cases involving election offenses, a motion for reconsideration of a decision of the COMELEC en banc is a prohibited pleading[8] ¾ sufficiently indicated his intention to abandon his motion for reconsideration. Calrspä ped

Second. Petitioner alleges that private respondent failed to serve him a copy of the petition for annulment of proclamation filed with the COMELEC. In reply, private respondent submitted the registry receipt and the return card[9] to prove that a copy of the said petition was received on June 26, 1998 by a certain Tudila M. Angelia on behalf of petitioner. Petitioner admits the receipt of said mail, but avers that it did not contain a copy of the petition for annulment of proclamation in the COMELEC but of the petition for quo warranto filed by private respondent in the Regional Trial Court, Abuyog, Leyte.[10] As private respondent points out, however, the petition for quo warranto was filed by his former counsel, the Martinez & Martinez Law Office, and a copy of said petition was already sent to petitioner. On the other hand, the petition for annulment of proclamation was filed by his new counsel, the Astorga & Macamay Law Office. Since a copy of the petition for quo warranto had previously been served on petitioner, there could be no reason for private respondent’s new counsel to serve it again on petitioner.

Petitioner likewise claims that private respondent engaged in forum-shopping because, after filing a petition for quo warranto with the Regional Trial Court, Abuyog, Leyte, private respondent filed the present petition for annulment of proclamation with the COMELEC.

This contention is bereft of merit. First, private respondent withdrew the quo warranto case before filing the petition for annulment of proclamation. Second, while the filing of a petition for quo warranto precludes the subsequent filing of a pre-proclamation controversy, this principle admits of several exceptions, such as when such petition is not the proper remedy.[11] Under §253 of the Omnibus Election Code, the grounds for a petition for quo warranto are ineligibility or disloyalty to the Republic of the Philippines of the respondent. Since in the present case, private respondent alleged the existence of manifest errors in the preparation of election returns, clearly, the proper remedy is not a petition for quo warranto but a petition for annulment of proclamation. Sccalä r

Third. Petitioner further contends that he was denied procedural due process because the COMELEC issued its resolution without notice and hearing. Indeed, it appears that the Municipal Board of Canvassers and the COMELEC did not comply with the procedure that should have been followed in the instant case. CÓ alrsc

In Castromayor v. COMELEC,[12] the returns from a precinct were overlooked by the Municipal Board of Canvassers in computing the total number of votes obtained by the candidates for the position of member of the Sangguniang Bayan, for which reason the COMELEC directed the Municipal Board of Canvassers to make the necessary corrections. We held that, as the case involved a manifest error, although the COMELEC erred in annulling the proclamation of petitioner without notice and hearing, the expedient course of action was for the Municipal Board of Canvassers to reconvene and, after notice and hearing in accordance with Rule 27, §7 of the COMELEC Rules of Procedure, to effect the necessary corrections on the certificate of canvass and proclaim the winning candidate or candidates on the basis thereof.

Said Rule 27, §7 of the COMELEC Rules of Procedure states:

Correction of Errors in Tabulation or Tallying of Results by the Board of Canvassers. ¾ (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.

(b) The order for correction must be made in writing and must be promulgated.

(c) Any candidate, political party, organization or coalition of political parties aggrieved by said order may appeal therefrom to the Commission within twenty-four (24) hours from the promulgation.

(d) Once an appeal is made, the board of canvassers shall not proclaim the winning candidates, unless their votes are not affected by the appeal.

(e) The appeal must implead as respondents the Board of Canvassers concerned and all parties who may be adversely affected thereby.

(f) Upon receipt of the appeal, the Clerk of Court concerned shall forthwith issue summons, together with a copy of the appeal, to the respondents.

(g) The Clerk of Court concerned shall immediately set the appeal for hearing.

(h) The appeal shall be heard and decided by the Commission en banc.

This case likewise involves manifest errors. Election Return No. 3700088 from Precinct Nos. 84-A/84-A-1 is claimed to show 92 votes in favor of private respondent but indicate a total in words and figures of only 82 votes. On the other hand, Election Return No. 3700023 allegedly shows 13 votes for petitioner but indicates in words and figures 18 votes. These discrepancies can be easily resolved without opening the ballot boxes and recounting the ballots. COMELEC Resolution No. 2962 provides that "in case there exist discrepancies in the votes of any candidate in taras/tally as against the votes obtained in words/figures in the same returns/certificates, the votes in taras/tally shall prevail." Sppedscâ

In the present case, although the COMELEC annulled the proclamation of petitioner, it merely directed the Municipal Board of Canvassers to "RECONVENE within five (5) days from receipt hereof and effect the corrections in the total number of votes received by the candidates in Precinct Nos. 84-A/84-A-1 (clustered) and Precinct No. 23-A and thereafter PROCLAIM the winning candidate/s for Municipal Kagawad based on the corrected results." It was the Municipal Board of Canvassers which the COMELEC ordered to actually effect the necessary corrections, if any, in the said election returns and, on the basis thereof, proclaim the winning candidate or candidates as member or members of the Sangguniang Bayan. In accordance with our ruling in Castromayor, the expedient action to take is to direct the Municipal Board of Canvassers to reconvene and, after notice and hearing in accordance with Rule 27, §7 of the COMELEC Rules of Procedure, to effect the necessary corrections, if any, in the election returns and, on the basis thereof, proclaim the winning candidate or candidates as member or members of the Sangguniang Bayan. Sâ djad

WHEREFORE, the en banc resolution, dated August 18, 1998 of the Commission on Elections is AFFIRMED with the MODIFICATION that the Municipal Board of Canvassers of Abuyog, Leyte is ordered to reconvene and, after notice to the parties and hearing in accordance with Rule 27, §7 of the COMELEC Rules of Procedure, to effect the necessary corrections, if any, in Election Return No. 3700088 from Precinct Nos. 84-A/84-A-1 and Election Return No. 3700023 from Precinct No. 23-A and, based on the amended results, proclaim the winning candidate or candidates as member or members of the Sangguniang Bayan of said municipality.

SO ORDERED.

Bellosillo, Melo, Puno, Vitug, Kapunan, Purisima, Buena, and Gonzaga-Reyes, JJ., concur.

Davide, Jr., C.J., on official business.

Panganiban, Quisumbing, Ynares-Santiago, and De Leon, Jr., JJ., on leave.

Pardo, J., no part.

[7] Faelnar v. COMELEC, G.R. Nos. 140850-51, May 4, 2000.

[8] Reply to Comment of the COMELEC; Rollo, pp. 142-144.

[10] Reply to Comment of Private Respondent; Id., pp. 107-108.