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EDUARD V.
TUGADE,
Petitioner, - versus - COMMISSION ON ELECTIONS and fLORENCIO P. AGUSTIN, Respondents. |
G.R. No. 171063
Present:
Puno, C.J., Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, CARPIO, AUSTRIA-MARTINEZ, CARPIO MORALES, CALLEJO, SR., *azcuna,
TINGA, chico-nazario, GARCIA, velasco, jr., and nachura, JJ. Promulgated: March
2, 2007 |
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DECISION
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SANDOVAL-GUTIERREZ,
J.:
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Before
us for resolution is a special civil action for certiorari under Rule 65 of the
1997 Rules of Civil Procedure, as amended, assailing the Resolution[1]
dated
The facts are:
Petitioner Eduard V. Tugade and
private respondent Florencio P. Agustin were candidates for the position of
Punong Barangay of San Raymundo, Balungao, Pangasinan during the
The result of the canvass showed that
petitioner obtained 246 votes, while private respondent garnered 245 votes, or
a margin of only one (1) vote.
Hence, on
On
In his answer with counterclaim, petitioner
countered that the conduct and final outcome of the election have been regular,
credible and in accordance with the Omnibus Election Code and the Rules and Regulations
of the
On
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Florencio P. Agustin - |
119 |
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Eduard V. Tugade - |
126 |
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TOTAL |
245 |
However, after the segregation and recount of the ballots contained in the sealed envelopes for the candidates in the contested precincts, the following results were obtained:
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Florencio P. Agustin - |
119 |
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Eduard V. Tugade - |
125 |
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Stray Ballots - |
11 |
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TOTAL |
255 |
Thereafter,
the parties, through their Revisors, submitted their respective objections and
claims, thus: private respondent objected to three (3) ballots for petitioner
(Exhibits “A”, “B”, “C”) and laid claim to one (1) ballot considered as stray
by the Board of Canvassers. Petitioner,
on the other hand, objected to two (2) ballots counted for private respondent
(Exhibits “1” and “2”) and laid claim to two (2) ballots (Exhibits “3” and
“4”). Later, petitioner withdrew his
claim to Exhibit “4”.
On
In
recapitulation, the votes garnered by each candidate in the contested precincts
are as follows:
Precincts Nos. 60-A/60-A-1
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Florencio Agustin |
119 + 1 =
120 |
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Eduard Tugade |
125 - 3 = 122 |
The final tally, therefore, is:
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Precinct 60-A/ 60-A-1 |
Precinct 61-A/ 61-A-1 |
Total |
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Florencio
Agustin |
120 |
126 |
246 |
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Eduard Tugade |
122 |
120 |
242 |
On the
same date, private respondent filed a motion for execution of the MTC Decision pending
appeal.
For his
part, petitioner, on
On
On appeal,
the COMELEC (Second Division), on
Based
on the above findings, the total number of votes for protestant-appellee and
protestee-appellant is as follows:
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Agustin |
Tugade |
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Total votes from the
uncontested precinct per election return ADD: Total votes per physical count
from contested precinct ADD: Validated claimed votes LESS: Invalidated votes per COMELEC
ruling: |
126 119 1 0 |
120 125 2 1 |
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GRAND TOTAL |
246 |
246 |
The
final tally, therefore, is two hundred forty six (246) votes for
protestant-appellee Agustin and two hundred forty six (246) votes for
protestee-appellant. The foregoing
appreciation therefore shows a tie between the two candidates.
x x
x
WHEREFORE,
premises considered, the instant appeal is GRANTED. The September 3, 2002 Decision of Acting
Presiding Judge Manuel F. Pastor, Jr. of the Municipal Trial Court of Balungao,
Pangasinan in Election Protest Case No. 900 declaring protestant-appellee Florencio P. Agustin the
winner for the position of Punong Barangay of Barangay San Raymundo, Balungao,
Pangasinan during the July 15, 2002 synchronized Barangay and Sangguniang
Kabataan elections is hereby REVERSED and SET ASIDE.
The
Barangay Board of Canvassers of Barangay San Raymundo, Balungao, Pangasinan is
hereby ordered to RECONVENE and, after five (5) days due notice to herein
protestee-appellant and protestant-appellee, hold a special public
meeting at which it shall proceed to the DRAWING OF LOTS (not tossing of a
coin) and shall proclaim as elected Punong Barangay of San Raymundo the
candidate who may be favored by luck, pursuant to Section 240 of the Omnibus
Election Code.
The
Election Officer of Balungao, Pangasinan is hereby directed to implement this
Resolution. In the accomplishment
thereof, he is hereby authorized to appoint new members of the Barangay Board
of Canvassers in the event that some members are already unavailable or to
convene a new Barangay Board of Canvassers altogether in the absence of the old
one.
SO ORDERED.
On
On
January 5, 2006, petitioner’s motion for reconsideration was denied because of
his failure (1) to file the same within the five-day reglementary period under
Section 2, Rule 19, COMELEC Rules of Procedure;
(2) to pay the required motion fees prescribed under Section 7(f), Rule
40 of the same Rules, as amended by Comelec Minute Resolution No. 02-0130 dated
September 18, 2003; (3) to verify the motion in accordance with
Section 3, Rule 19, of the same Rules; and (4) to
file with the COMELEC the required number of copies of his motion,[5]
pursuant to Section 1, Rule 7, also of the same Rules.
Hence,
the present petition based on the following ground:
THE
QUESTIONED RESOLUTION DATED
In his
Comment,[6]
private respondent contends that this petition for certiorari should be
dismissed because it does not allege facts showing grave abuse of discretion amounting
to lack or in excess of jurisdiction on the part of respondent COMELEC. The petition only states a general and
sweeping statement that the assailed Resolution and Order “are not in accord
with the law or with the applicable decisions.”
The
petition must fail.
In certiorari proceedings, questions
of fact are not generally permitted, the inquiry being limited essentially
to whether or not the respondent tribunal had acted without or in excess of its
jurisdiction or with grave abuse of discretion.[7]
Here, petitioner is questioning
respondent COMELEC’s conclusion that there is a “tie between the two candidates.” Definitely, this is a factual issue.
Grave abuse of
discretion is committed when an act is 1) done contrary to the
Constitution, the law or jurisprudence, or 2) executed “whimsically or
arbitrarily” in a manner “so patent and so gross as to amount to an evasion of
a positive duty or a virtual refusal to perform the duty enjoined,”[8]
as where the power is exercised in an arbitrary and despotic manner because of
passion or personal hostility.[9] An act of a court or tribunal may constitute grave
abuse of discretion when the same is performed in a capricious or whimsical
exercise of judgment amounting to lack of jurisdiction.
Such act is wanting in the
present case.
Moreover,
it is relevant to state that respondent COMELEC En Banc, in ordering the
immediate implementation of the Resolution issued by its Second Division for
the drawing of lots of the herein parties, acted in accordance with Section 240
of Batas Pambansa 881, otherwise known as the Omnibus Election Code of the
Philippines which provides:
Sec.
240. Election resulting in tie.
- Whenever it shall appear from the
canvass that two or more candidates have received an equal and highest number
of votes, or in cases where two or more candidates are to be elected for the
same position and two or more candidates received the same number of votes for
the last place in the number to be elected, the board of canvassers, after
recording this fact in its minutes, shall by resolution, upon five days notice
to all the tied candidates, hold a special public meeting at which the board of
canvassers shall proceed to the drawing of lots of the candidates who have tied
and shall proclaim as elected the candidates who may be favored by luck, and
the candidates so proclaimed shall have the right to assume office in the same
manner as if he had been elected by plurality of vote. The board of canvassers shall forthwith make
a certificate stating the name of the candidate who had been favored by luck
and his proclamation on the basis thereof.
Nothing in this section shall be construed as depriving a candidate of his right to contest the election.
WHEREFORE, the petition is DISMISSED. Costs against petitioner.
SO
ORDERED.
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice
WE CONCUR:
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REYNATO S. PUNO Chief Justice |
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LEONARDO A. QUISUMBING Associate Justice ANTONIO T. CARPIO Associate Justice RENATO C. CORONA Associate Justice ROMEO J. CALLEJO, SR. Associate Justice DANTE O. TINGA Associate Justice CANCIO C. GARCIA Associate Justice |
CONSUELO YNARES-SANTIAGO Associate Justice MA. ALICIA AUSTRIA-MARTINEZ Associate Justice CONCHITA CARPIO MORALES Associate Justice (On official leave) ADOLFO S. AZCUNA Associate Justice MINITA V. CHICO-NAZARIO Associate Justice PRESBITERO J. VELASCO, JR. Associate
Justice |
ANTONIO EDUARDO B. NACHURA
Associate Justice
REYNATO S. PUNO
Chief Justice
* On official leave.
[1] Penned by Commissioners Mehol K. Sadain and Florentino A. Tuason, Jr. of the Comelec (Second Division).
[2] Penned by Chairman Benjamin S. Abalos and
Commissioners Rufino S.B. Javier, Mehol K. Sadain, Florentino A. Tuason, Jr.,
Resurreccion Z. Borra, and Romeo A. Brawner of the Comelec En Banc.
[3] Rollo, pp. 30-34.
[4]
[5]
[6]
[7] Quiambao v. Court of Appeals, G.R.
No. 128305,
[8] Pablo-Gualberto v. Gualberto V.,
G.R. No. 154994,
[9] Angeles v. Secretary of Justice,
G.R. No. 142612,