[G.R. Nos. 148575-76. December 10, 2003.

ABDUSAKUR M. TAN, ABDULWAHID SAHIDULLA, ABRAHAM

BURAHAN, petitioners, vs. COMMISSION ON ELECTIONS,
YUSOP H. JIKIRI, ABDEL S. ANNI, DEN RASHER I. SALIM,
TALIB L. HAYUDINI, RIZAL TINGKAHAN, BARLIE NAHUDAN,
ABRAHAM DAUD, LUKMAN OMAR, ONNIH AHMAD and
BASARON M. BURAHAN, respondents.

[G.R. Nos. 152882-83. December 10, 2003.]

YUSOP JIKIRI, ABDEL ANNI, ABRAHAM DAUD, LUKMAN

OMAR, ONNIH AHMAD, BASARON BURAHAN, DEN RASHER
SALIM, TALIB HAYUDINI, RIZAL TINGKAHAN, and BARLIE
NAHUDAN, petitioners, vs. COMMISSION ON ELECTIONS,
ABDUSAKUR TAN, ABDULWAHID SAHIDULLA, MUNIB
ESTINO and ABRAHAM BURAHAN, respondents.

SYNOPSIS
Respondents filed before the COMELEC petitions for declaration of failure of
election in all the precincts in the Municipality of Luuk, Sulu and the Municipalities
of Parang and Indanan, Sulu, docketed as SPA No. 01-257 and SPA No. 01-265.
Subsequently, they amended the petitions impleading petitioners who were the
winning candidates. On the issue of whether the COMELEC En Banc has
jurisdiction to take cognizance of the amended petitions, the Court ruled in the
negative. There was no failure of elections when elections had been conducted
and winners had been already proclaimed. The proper recourse of the respondents
should have been to file regular election protest cases to ventilate the veracity of
the alleged election fraud and irregularities of the election in the subject precincts
with the consequent determination and declaration of the real winners in the
election. Anent the validity of the Order of the COMELEC where it recalled the
annulment of the proclamation of petitioners as winning candidates, the Court ruled
that respondents failed to show grave abuse of discretion on the part of
the COMELEC.

SYLLABUS

1. POLITICAL LAW; COMMISSION ON ELECTIONS; JURISDICTION;

ELECTION PROTEST CASES. — The amended petitions filed by the respondents
herein are election protest cases over which the public respondent has original
exclusive jurisdiction under Section 2(2), Article IX of the Constitution. The public
respondent assumed jurisdiction over the amended petitions in the exercise of its
quasi-judicial powers. Section 4, Rep. Act No. 7166 provides that
the COMELEC sitting en banc by a majority vote of its members may decide,
among others, the declaration of failure of election and the calling of
special elections as provided in Section 6 of the Omnibus Election Code.
2. ID.; ID.; ID.; DETERMINED BY LAW AND THE ALLEGATIONS IN THE
PETITIONS. — The long-standing rule is that the nature of an action and the
jurisdiction of the tribunal are determined by law and the allegations in the petitions
regardless of whether or not the petitioners are entitled to the relief sought. The
caption of the petitions are not determinative of the nature thereof. In their
amended petitions before the public respondent, the respondents herein
Abdusakur Tan, et al., the petitioners therein, substantially alleged that the
respondents therein who are the petitioners in this case were the duly proclaimed
winning candidates; that the elections in the Municipalities of Luuk, Parang and
Indanan, Province of Sulu, were marred by massive substitution of voters, fraud,
terrorism and other anomalies, impelling them to file their petitions (for declaration
of failure of election) pursuant to Section 4 of Rep. Act No. 7166 in relation to
Section 6, Omnibus Election Code, and reiterated in Section 2, Rule 26 of the
1993 COMELEC Rules of Procedure, as amended.
3. ID.; ELECTION LAWS; OMNIBUS ELECTION CODE; FAILURE OF
ELECTION; WHEN MAY BE DECLARED. — Section 6 of the Omnibus Election
Code lays down three instances where a failure of election may be declared,
namely, (1) the election in any polling place has not been held on the date
fixed on account of force majeure, violence, terrorism, fraud or other analogous
causes; (2) the election in any polling place has been suspended before the hour
fixed by law for the closing of the voting on account of force majeure, violence,
terrorism, fraud or other analogous causes; or (3) after the voting and during the
preparation and transmission of the election returns or in the custody or canvass
thereof, such election results in a failure to elect on account of force majeure,
violence, terrorism, fraud or other analogous causes.In all instances there must
have been a failure to elect. This is obvious in the first two scenarios, where the
election was not held and where the election was suspended.As to the third
scenario, the preparation and the transmission of the election returns, which give
rise to the consequence of failure to elect, must as aforesaid be literally interpreted
to mean that "nobody emerged as a winner. "Hence, before the COMELEC can
act on a verified petition seeking to declare a failure of elections, two conditions
must concur, namely, (1) nd voting took place in the precinct or precincts on the
date fixed by law, or even if there was voting, the election resulted in a failure to
elect; and (2) the votes not cast would have affected the result of the election. Note
that the cause of such failure of election could only be any of the following:force
majeure, violence, terrorism, fraud or other analogous causes.
4. ID.; ID.; PROCLAMATION OF PETITIONERS AS WINNING CANDIDATES;
REGULARITY NOT AFFECTED BY ALLEGATIONS WHICH CONSTITUTED
GROUNDS FOR DECLARATION OF FAILURE OF ELECTION. — The
proclamation of the petitioners enjoys the presumption of regularity and validity.
To destroy the presumption, the respondents must convincingly show that the
petitioners' victory was procured through extra-legal means. This they tried to do
by alleging matters in their petitions which they believed constituted grounds for a
declaration of failure of election, such as massive substitution of voters, fraud,
terrorism, disenfranchisement of voters, and other anomalies. The attendance of
the alleged fraud and irregularities in the elections as catalogued by the
respondents, however, constitute merely the causes or events which may give rise
to the grounds to declare failure of elections, namely, (a) no election held on the
designated election date; (b) suspension of election before the hour fixed by law
for the closing of voting; and (c) election in any polling place resulted in a failure to
elect. But as aforesaid, the grounds cited by the respondents do not fall under any
of the instances under Section 6 of Rep. Act No. 7166, the winning candidates
having been proclaimed by the PBC. While fraud is a ground to declare a failure
of election, the commission of fraud must be such that it prevented or suspended
the holding of an election, including the preparation and transmission of the
election returns.
5. ID.; ID.; FAILURE OF ELECTION PROPER DESPITE PROCLAMATION OF
WINNING CANDIDATES IN THE CASE OF SOLIVA V. COMELEC, NOT
APPLICABLE. — Reliance by the respondents of the ruling of this Court
in Soliva v. COMELEC is misplaced. In that case, the Court ruled that the petition
to declare a failure of election fled with the public respondent was proper despite
the proclamation of the winning candidates because the grounds alleged in the
petitions and proved during trial were that the counting of the votes and the
canvassing of the election returns were attended by fraud, intimidation, terrors and
harassment. In this case, there was no allegation of fraud, terror, intimidation and
harassment in the counting of votes and the canvassing of election returns.
6. ID.; ID.; TECHNICAL EXAMINATION OF VOTERS REGISTRATION
RECORDS PROPER ONLY IN ACTION FOR ANNULMENT OF ELECTION OR
DECLARATION OF FAILURE OF ELECTIONS — In Loong v. COMELEC, we
held that "the COMELEC is duty-bound to investigate allegations of fraud,
terrorism, violence and other analogous causes in actions for annulment of election
results or for declaration of failure of elections, as the Omnibus Election Code
denominates the same. Thus, the public respondent, in the case of actions for
annulment of election results or declaration of failure of elections, may conduct a
technical examination of election documents and compare and analyze voters'
signatures and fingerprints in order to determine whether or not the elections had
indeed been free, honest and clean." However, the exercise of this authority
presupposes that the petition has properly been acted upon on account of the
existence of any of the grounds provided under Section 6 of the Omnibus Election
Code. Where, as in this case, elections had been held and winners had been duly
proclaimed, the proper recourse of the respondents should have been to file
regular election protest cases to ventilate the veracity of the alleged election fraud
and irregularities of the election in the subject precincts with the consequent
determination and declaration of the real winners in the elections.
7. ID.; ID.; SUSPENSION OR ANNULMENT OF PROCLAMATION OF WINNING
CANDIDATES; WHEN PROPER. — The public respondent may suspend or annul
a proclamation only in three instances, including pre-proclamation controversies,
but not in a petition for a declaration of failure of an election. As held by us
in Dagloc v. COMELEC, thus: The filing of pre-proclamation controversies under
Section 248 of the Omnibus Election Code, however, is not the only ground for the
suspension of proclamation. Two other instances are provided in R.A. No. 6646,
known as "The Electoral Reforms Law of 1987," viz.: (1) Under Section 6 of the
statute, the COMELECmay, upon motion of the complainant in an action for
disqualification, suspend the proclamation of the winning candidate if the evidence
of his guilt is strong, and (2) under Section 7 thereof, the COMELEC may likewise
suspend the proclamation of the winning candidate if there is ground for denying
or canceling his certificate of candidacy.

8. ID.; ID.; ID.; DISCRETIONARY TO THE COMELEC. — The OSG agreed that
the public respondent is vested with authority to suspend the proclamation of the
winning candidates or to annul such proclamation but contend that the public
respondent may in the exercise of its discretion allow such proclamation or set
aside its order annulling the proclamation of the winning candidates, ratiocinating
that: . . . While we agree with the petitioner that the COMELEC can suspend the
proclamation pending the resolution of the petition to declare a failure of election,
the same order, however, is merely provisional in nature and can be lifted when
the evidence so warrants. In Nolasco v. COMELEC, 275 SCRA 762 [1997], it is
said to be akin to a temporary restraining order which a court can issue ex
parte under exigent circumstances. We agree with the OSG. The respondents
failed to show that the public respondent committed a grave abuse of its discretion
amounting to excess lack of jurisdiction in issuing its June 28, 2001 Order.
CALLEJO, SR., J : p

FACTS: Before us are two consolidated petitions filed under Rule 65 of the Rules
of Court, as amended, assailing the Orders of the Commission on Elections En
Banc dated June 28, 2001, October 3, 2001 and April 17, 2002 in SPA No. 01-257
and SPA No. 01-265 for having been issued with grave abuse of discretion
amounting to lack or excess of jurisdiction.
The factual antecedents insofar as pertinent to the instant petitions are as follows:
In the May 14, 2001 elections, Abdusakur Tan and Abdulwahid Sahidulla were
candidates for Governor and Vice-Governor, respectively, while Munib Estino and
Abraham Burahan were candidates for Congressman of the Second and First
District of Sulu, respectively. The other candidates for Governor and Vice-
Governor were Yusop Jikiri and Abdel Anni. The candidates for the position of
members of the Sangguniang Panlalawigan of the First District of Sulu were Den
Rasher Salim, Talib Hayudini, Rizal Tingkahan and Barlie Nahudan, while those
for the Second District were Abraham Daud, Lukman Omar, Onnih Ahmad and
Basaron Burahan.
On May 17, 2001, Abdusakur Tan, Abdulwahid Sahidulla and Abraham Burahan
(Abdusakur Tan, et al. for brevity) filed with the COMELEC (public respondent) a
petition to "declare failure of elections in all the precincts in the Municipality of
Luuk," Province of Sulu, which was docketed as SPA No. 01-257. 1 The petitioners
prayed that:
WHEREFORE, premises considered, it is respectfully prayed that the
Honorable Commission DECLARE a FAILURE of ELECTIONS in all the
precincts in the Municipality of Luuk, Sulu where no voting was actually
held, as the registered voters never did their votes.
The petitioners further pray that pending final resolution of this petition that
an order be immediately issued directing the Municipal Board of
Canvassers of Luuk, Sulu as well as the Provincial Board of Canvassers
of Sulu to suspend and desist from continuing with, the CANVASSING of
the election returns and/or certificate of canvass.
Other relief consistent with law, justice and equity are also prayed for. 2

The following day, the petitioners filed a petition to declare failure

of elections and/or to annul the elections or the election results in the
Municipalities of Parang and Indanan, Province of Sulu, which was docketed as
SPA No. 01-265. 3 The petitioners prayed that:
WHEREFORE, petitioners respectfully pray that this petition be granted
and that an Order be issued:
1. Annulling and setting aside the elections and/or the election results in
the May 14, 2001 elections in the municipalities of Indanan and Parang,
Sulu, and declaring a failure of elections therein;
2. Suspending the canvassing and the proclamation of any and all alleged
"winning" candidates in the municipalities of Indanan and Parang, Sulu;
3. Calling for immediate special elections in the aforesaid areas where
failure of elections transpired;
4. Such other reliefs as may be just and equitable are likewise prayed. 4
No respondents were impleaded in both petitions. The public respondent took
cognizance of and assumed jurisdiction over the petitions.
On May 19, 2001, the petitioners therein filed "an urgent reiterating motion to
suspend proclamation." 5 Acting on the said motion, the public respondent issued
an order suspending the proclamation of the winning candidates, viz.:
Acting on the Petition filed on May 17, 2001 in the above-captioned case,
including the reiterating motion of May 19, 2001, and finding the same to
be sufficient to warrant the issuance of a preliminary summary action, so
as not to render academic, the petition in the above case, let there be
issued to the Provincial Board of Canvassers of Sulu an Order/directive
for the suspension of proclamation of the winning candidates for all
elective provincial positions, until further order/s from this Commission. 6
However, the Provincial Board of Canvassers (PBC) was not served with a copy
of the order of the public respondent. On May 23, 2001, Yusop Jikiri, Abdel Anni,
Abraham Daud, Lukman Omar, Onnih Ahmad, Basaron Burahan, Den Rasher
Salim, Talib Hayudini, Rizal Tingkahan and Barlie Nahudan were proclaimed as
the winning candidates for Governor, Vice-Governor and Board Members. 7
On May 30, 2001, the petitioners therein filed their Amended Petitions in SPA Nos.
01-257 8 and 01-265 9 impleading for the first time the winning candidates, Yusop
Jikiri, et al., as party respondents. The petitioners in SPA No. 01-257 prayed that:
WHEREFORE, premises considered, it is respectfully prayed that the
Honorable Commission DECLARE a FAILURE OF ELECTION in all the
precincts in the Municipality of Luuk, Sulu where no voting was actually
held as the registered voters never did cast their votes. aHIEcS

Petitioners further pray that pending final resolution of this petition that an
order be immediately issued directing the Municipal Board of Canvassers
of Luuk, Sulu as well as the Provincial Board of Canvassers of Sulu to
suspend, and desist from continuing with, the CANVASSING of the
election returns and/or certificate of canvass.
Other relief consistent with law, justice, and equity are also prayed for. 10

The petitioners in SPA No. 01-265 prayed that:

WHEREFORE, petitioners respectfully pray that this petition be granted
and that an Order be issued:
1. Annulling and setting aside the elections and/or the election results in
the May 14, 2001 elections in the municipalities of Indanan and Parang,
Sulu and declaring a failure of elections therein;
2. Calling for immediate special elections in the aforesaid areas where
failure of election transpired.
3. Such other reliefs as may be just and equitable are likewise prayed. 11
On June 11 and 18, 2001, the respondents filed their respective answers to the
aforesaid amended petitions questioning in the main the jurisdiction of
the COMELEC En Banc to act on the said amended petitions and the propriety of
the recourse of the petitioners in view of their valid, lawful and existing
proclamation as the winners. 12The petitioners in turn filed an urgent motion to
annul the proclamation of the respondents as the winners. The respondents
opposed the motion, contending that such motion was appropriate only in pre-
proclamation controversies.
On June 20, 2001, the COMELEC En Banc issued an order annulling the May 23,
2001 proclamation of the respondents on its finding that the proclamation by the
PBC of the winning candidates was a defiance of its Order of May 19, 2001. The
public respondent forthwith set the amended petitions for hearing. 13 In the
meantime, the respondents filed a motion for the recall of the June 20, 2001 Order
of the COMELEC on the ground that the petitions before it were merely petitions
to declare a failure of election and do not involve a pre-proclamation controversy.
However, the COMELEC failed to immediately resolve the pending incidents. In
the meantime, the petitioners pre-marked their evidence. The respondents
reserved the right to pre-mark their evidence before the Clerk of Court of
the COMELEC without prejudice to the resolution of the pending motions.
On June 28, 2001, after due hearing, the COMELEC issued an order recalling and
setting aside its June 20, 2001 Order, and affirming the May 23, 2001 proclamation
of the respondents. The order states inter alia that:
After due consideration and there being no valid pre-proclamation issues
pending before the Commission involving the elective provincial officials
of the Province of Sulu, and considering further our ruling in SPA 01-323
and SPA 01-244 involving the elective provincial officials of the Province
of Maguindanao, the CommissionRESOLVES, as it is hereby
RESOLVED, to recall its June 20, 2001 Order annulling the proclamation
of the elective provincial officials of the Province of Sulu.
The defiance by the PBC of the order of suspension of the Commission,
though a valid concern, cannot and should not deter the proclamation of
the provincial officials of Sulu after the result of the provincial canvassing
showed that they were the winning candidates.
WHEREFORE, premises considered, the June 20, 2001 Order of
this Commission is hereby recalled and set aside and the proclamation of
the private respondents onMay 23, 2001 is hereby AFFIRMED.
This ORDER is without prejudice to the administrative case referred by
the Commission to the Law Department against the PBC of Sulu. This
ORDER is likewise without prejudice to a full resolution of the main petition
to declare failure of elections in the municipalities of Luuk, Indanan and
Parang. 14
Aggrieved, the petitioners filed on July 11, 2001 with this Court a petition
for certiorari, prohibition and mandamus docketed as G.R. Nos. 148575-76 with
prayer for the issuance of a writ of injunction and/or temporary restraining order
and/or status quo ante order, assailing the aforequoted June 28, 2001 Order of the
public respondent; and submitting for the Court's resolution the following threshold
issue:

The threshold issue in this petition is the determination of whether

the Comelec has the power to issue an order suspending proclamation as
a preliminary relief in a petition for declaration of failure of election and/or
annulment of election results.
Corollary thereto, did respondent Comelec gravely abuse its discretion
when it issued its June 28, 2001 Questioned Order recalling, and
effectively reconsidering, the suspension of proclamation it had previously
promulgated? 15
In the meantime, acting on a series of motions filed by the petitioners,
the COMELEC issued an Order dated October 3, 2001 directing the technical
examination of the voters registration records in the Municipalities of Parang,
Indanan and Luuk, thus:
1. To direct the Election Officers of the Municipalities of Luuk,
Indanan and Parang, Sulu to produce before
the Commission the pertinent VOTERS REGISTRATION
RECORDS showing the thumbmarks and signatures of
voters affixed during their registration and during the voting
in the May 14, 2001 elections (CE Form No. 1) within ten
(10) days from receipt hereof, to be deposited at the Election
Records and Statistics Department;
2. To require petitioner to defray the expenses for the
transportation to the main office of said election documents;
and to advance to the Election Officers concerned the
necessary amount for said transportation of documents;
3. Parties are entitled to watchers during the transport of these
documents at their own expense until duly received by the
Election Records and Statistics Department,
this Commission.
4. To direct the Voters Identification Division to conduct technical
examination of said documents and to make a report
thereon to the Commission En Bancwithin fifteen (15) days;
5. Let the Deputy Executive Director for Operations implement this
Order.
 Furnish copy of this Order to the Election Records and Statistics
Department, this Commission. 16
On October 12, 2001, the respondents filed with the COMELEC an omnibus
motion to resolve the issue of jurisdiction with a prayer to recall and/or suspend
implementation of the Order dated October 3, 2001." 17 The respondents
contended that based on the documentary evidence, there was no failure of
election; the proper remedy of the petitioners was for them to file election protest
cases and not petitions to declare a failure of election in view of their valid, lawful
and existing proclamation as the winning candidates confirmed no less by
the COMELEC. The respondents alleged that the petitions before it being regular
election protest cases disguised as petitions to declare a failure of election should
be heard by a division of the COMELEC and not by the COMELEC En Banc as
provided for in Section 3, Article IX-C of the Constitution. The respondents,
likewise, argued that to direct the technical examination of voluminous documents
would be repugnant to the summary nature of the cases before it and violative
of Section 6, Rule 26 of the COMELEC Rules of Procedure which states that a
petition for declaration of failure of elections is summary.
On April 17, 2002, the COMELEC issued an order declaring that it had jurisdiction
over the amended petitions conformably with Section 4 of Republic Act No. 7166;
and denying the omnibus motion of the respondents, thus:
WHEREFORE, premises considered, the Omnibus Motion and the Motion
to Suspend the Implementation of the October 3, 2001 Order of
the Commission en banc is DENIED for lack of merit. aCHDAE

The Commission en banc orders the Voters Identification Division to

continue the technical examination of the Voters Registration Records of
Luuk, Parang and Indanan, Sulu as authorized in the October 3, 2001 en
banc Order. 18
The COMELEC ruled that based on the allegations of the amended petitions,
there was no valid and legitimate elections held or conducted in the three
municipalities. It, likewise, ruled that it had the authority to order a technical
examination of the VRR's in a petition to declare a failure of election citing the
ruling of this Court in Loong v.Commission on Elections. 19 Hence, on April 29,
2002, the respondents therein filed with this Court a petition for certiorari docketed
as G.R. Nos. 152882–83 with prayer for the issuance of a temporary restraining
order and/or writ of preliminary injunction, praying for the nullification of the public
respondent's Orders dated October 3, 2001 and April 17, 2002 and for the
dismissal of SPA Nos. 01-257 and 01-265 for lack of jurisdiction. They argued that:
(a) ON JUNE 28, 2001, THE COMELEC ITSELF AFFIRMED THE MAY
23, 2001 PROCLAMATION OF THE PETITIONERS AS THE DULY
ELECTED PROVINCIAL ELECTIVE OFFICIALS OF THE PROVINCE OF
SULU IN THE MAY 14, 2001 ELECTIONS. THEREFORE, IT IS A VALID
 AND EXISTING PROCLAMATION. SUCH PROCLAMATION
PRESUPPOSES THAT AN ELECTION HAS BEEN CONDUCTED.
THUS, ANY ALLEGED IRREGULARITIES IN THE POLLS ARE
MATTERS OF ELECTION PROTEST.
(b) PETITIONERS HAVE ALREADY ASSUMED AND ARE ALREADY
EXERCISING THEIR DUTIES AND FUNCTIONS AS ELECTIVE
PROVINCIAL OFFICIALS SINCE JUNE 30, 2001. HENCE, THE
REMEDY OF THE LOSING CANDIDATES IS AN ELECTION PROTEST.
(c) ONCE PROCLAMATION IS MADE, THE PROPRIETY OF FAILURE
OF ELECTION ENDS AND THE REALM OF ELECTION PROTEST
BEGINS. THIS IS SO BECAUSE THE DIVIDING LINE BETWEEN
PETITION TO DECLARE FAILURE OF ELECTION AND ELECTION
PROTEST IS PROCLAMATION. AND HERE, THE PROCLAMATION IS
VALID. IT WAS AFFIRMED BY THE COMELEC EN BANC AFTER A
HEARING WHERE ALL THE PARTIES WERE GIVEN THE
OPPORTUNITY TO BE HEARD.
(d) THERE BEING VALID AND EXISTING PROCLAMATION AND SUCH
PROCLAMATION HAVING BEEN AFFIRMED, THERE WAS NO
FAILURE OF ELECTION AS WINNERS HAD EMERGED.
IN TYPOCO V. COMELEC, 319 SCRA 498 and BORJA V. COMELEC,
260 SCRA 604, IT WAS HELD THAT FAILURE OF ELECTION SHOULD
LITERALLY MEAN "THAT NOBODY EMERGED AS A WINNER." IN THE
INSTANT CASE, WINNERS HAD EMERGED IN VIEW OF THE VALID
AND EXISTING PROCLAMATION OF THE PETITIONERS, AFFIRMED
BY THE COMELEC ITSELF. HENCE, THERE WAS NO FAILURE OF
ELECTION. THE REMEDY OF PRIVATE RESPONDENTS IS AN
ELECTION PROTEST.
(e) THE QUESTIONED ORDER WOULD EVEN ALLOW THE PIERCING
OF THE VEIL OF ELECTION RETURNS SINCE TECHNICAL
EXAMINATION OF ELECTION DOCUMENTS COULD BE ALLOWED IN
ALL KINDS OF PETITIONS WHICH COULD NOW BE DISGUISED AS
ONE FOR FAILURE OF ELECTION. 20
On March 4, 2003, the Court granted the motion of the petitioners in G.R. Nos.
152882–83 for the issuance of a temporary restraining order directing
the COMELEC to cease and desist from implementing its questioned Orders dated
October 3, 2001 and April 17, 2002 and from further proceeding thereon.
On April 29, 2003, the Court ordered the consolidation of G.R. Nos. 148575-76
and G.R. Nos. 152882-83 since both petitions arose from a common set of facts
and raised similar issues.
For convenience, the Court shall delve into and resolve the issues in both petitions
simultaneously and will refer to Yusop Jikiri, Abdel Anni, Abraham Daud, Lukman
Omar, Onnih Ahmad, Basaron Burahan, Den Rasher Salim, Talib Hayudini, Rizal
Tingkahan, and Barlie Nahudan as the petitioners; and, Abdusakur M. Tan,
Abdulwahid Sahidulla, and Abraham Burahan as the respondents, without
reference to the docket numbers of the petitions respectively filed in this Court.
The threshold issues for resolution are (1) whether the COMELEC En Banc, now
public respondent, is vested with jurisdiction to take cognizance of and resolve the
amended petitions before it; (2) whether the public respondent acted with grave
abuse of its discretion amounting to excess or lack of jurisdiction in issuing its
Orders dated June 28, 2001, October 3, 2001, and April 17, 2002.
On the first issue, the petitioners aver that the respondents were proscribed from
filing their amended petition for a declaration of failure of elections and/or for the
annulment of elections under Section 6, Republic Act No. 7166 for the reason that
the petitioners had already been proclaimed the winning candidates. They contend
that a petition for declaration of failure of elections or for the annulment of an
election can no longer be filed and prosecuted after the winning candidates had
already been proclaimed by the PBC. They aver that the proper recourse of the
respondents was to file election protest cases against the petitioners as the
winning candidates. The petitioners also assert that the proceedings in an election
protest are not summary in nature and should be ventilated in a full-blown hearing.
The petitioners argue that the amended petitions of the respondents are election
protest cases over which the COMELEC assumes jurisdiction in the exercise of its
quasi-judicial powers and should be referred for hearing and resolution to a
Division of the COMELEC as mandated by Section 3, Article IX-C of the
Constitution and Section 250 of the Omnibus Election Code.
The respondents, for their part, aver that the public respondent took cognizance of
the amended petitions under Section 4, Rep. Act No. 7166 in its administrative
capacity and not as a quasi-judicial body. They also contend that the
acts/omissions alleged in the amended petitions are proper subjects for a petition
for a declaration of a failure of election or for the annulment of the elections. They
assert that in a petition for a declaration of failure of election, the public respondent
does not exercise quasi-judicial functions because it does not adjudicate any
conflicting or adverse claims of the contending parties as there are no rights to
speak of under which adverse claims to such rights are made. They argue that in
taking cognizance of the amended petitions, the public respondent was merely
performing its duties as an administrative body tasked to ensure clean, honest,
orderly and peaceful elections. The said respondents cited the ruling of the Court
in Loong v. COMELEC. 21
The Office of the Solicitor General (OSG) is of the view that a petition to declare a
failure of election may be maintained even when a winner had already been
proclaimed. The OSG cited the ruling of this Court in Soliva v. COMELEC. 22 The
public respondent is mandated in the exercise of its administrative powers
under Section 2(3), Article IX of the Constitution, to investigate allegations of fraud,
terrorism, violence and other analogous causes of actions for annulment of
election results or declaration of a failure of election as the Omnibus Election Code
denominates. It also submits that the public respondent is mandated to conduct an
investigation as to the veracity of the allegations of the respondents of fraud,
terrorism, harassment and intimidation to ensure the conduct of free and
impartial elections.

We agree with the petitioners.

The amended petitions filed by the respondents herein are election protest cases
over which the public respondent has original exclusive jurisdiction under Section
2(2), Article IX of the Constitution. The public respondent assumed jurisdiction over
the amended petitions in the exercise of its quasi-judicial powers. 23 Section
4, 24 Rep. Act No. 7166 provides that the COMELEC sitting en banc by a majority
vote of its members may decide, among others, the declaration of failure of election
and the calling of special elections as provided in Section 6 of the Omnibus
Election Code. Said Section 6, in turn, provides that: CSEHcT

Section 6. Failure of Elections. — If, on account of force majeure,

violence, terrorism, fraud or other analogous causes the election in any
polling place has not been held on the date fixed, or had been suspended
before the hour fixed by law for the closing of the voting, or after the voting
and during the preparation and the transmission of the election returns or
in the custody or canvass thereof, such election results in a failure to elect,
and in any of such cases the failure or suspension of election would affect
the result of the election, the Commission shall, on the basis of a verified
petition by any interested party and after due notice and hearing, call for
the holding or continuation of the election not held, suspended or which
resulted in a failure to elect on a date reasonably close to the date of the
election not held, suspended or which resulted in a failure to elect but not
later than thirty days after the cessation of the cause of such
postponement or suspension of the election or failure to elect.
The long-standing rule is that the nature of an action and the jurisdiction of the
tribunal are determined by law and the allegations in the petitions regardless of
whether or not the petitioners are entitled to the relief sought. 25 The caption of the
petitions are not determinative of the nature thereof. In their amended petitions
before the public respondent, the respondents herein Abdusakur Tan, et al., the
petitioners therein, substantially alleged that the respondents therein who are the
petitioners in this case were the duly proclaimed winning candidates; that
the elections in the Municipalities of Luuk, Parang and Indanan, Province of Sulu,
were marred by massive substitution of voters, fraud, terrorism and other
anomalies, impelling them to file their petitions pursuant to Section 4 of Rep. Act
No. 7166 in relation to Section 6, Omnibus Election Code, and reiterated in Section
2, Rule 26 26 of the 1993 COMELEC Rules of Procedure, as amended. But Section
6 of the Omnibus Election Code lays down three instances where a failure of
election may be declared, namely, (1) the election in any polling place has not
been held on the date fixed on account of force majeure, violence, terrorism, fraud
or other analogous causes; (2) the election in any polling place has been
suspended before the hour fixed by law for the closing of the voting on account
of force majeure, violence, terrorism, fraud or other analogous causes; or (3) after
the voting and during the preparation and transmission of the election returns or in
the custody or canvass thereof, such election results in a failure to elect on account
of force majeure, violence, terrorism, fraud or other analogous cases. In all
instances there must have been a failure to elect. This is obvious in the first two
scenarios, where the election was not held and where the election was
suspended. As to the third scenario, the preparation and the transmission of the
election returns, which give rise to the consequence of failure to elect, must as
aforesaid be literally interpreted to mean that "nobody emerged as a winner." 27
Hence, before the COMELEC can act on a verified petition seeking to declare a
failure of elections, two conditions must concur, namely, (1) no voting took place
in the precinct or precincts on the date fixed by law, or even if there was voting,
the election resulted in a failure to elect; and (2) the votes not cast would have
affected the result of the election. Note that the cause of such failure of election
could only be any of the following: force majeure, violence, terrorism, fraud or other
analogous causes. 28
In these cases, elections were held in the questioned municipalities. In fact, the
very reason why the respondents filed their amended petitions before
the COMELEC onMay 30, 2001 was to implead the petitioners as the respondents
therein who had been proclaimed as the winning candidates; hence, were
indispensable parties to the petitions. In resolving the amended petitions, the
public respondent will have to rule on the validity of the proclamation of the
petitioners and their right to hold office and perform the duties appurtenant thereto.
The alleged fraud and irregularities, granting arguendo that they indeed marred
the elections, did not prevent or suspend the holding of the elections in the
aforementioned municipalities including the preparation and transmission of the
election returns. Indeed, these returns were duly canvassed by the respective
municipal boards of canvassers which prepared the corresponding certificates of
canvass which were in turn canvassed by the Provincial Board of Canvassers of
Sulu which, after such canvass, proclaimed the petitioners herein as the winning
candidates in the May 14, 2001 elections. In fine, elections had been conducted
and winners had been already proclaimed. Even the public respondent, no less,
through the Office of the Solicitor General, stated in its comment onthe petition in
G.R. Nos. 148575-76 that the amended petitions of the respondents did not state
a valid cause of action for a declaration of a failure of election and were
prematurely filed in this Court:
 . . . After all the grounds relied upon by the petitioners in their petitions to
declare a failure of election, to wit: (1) voters were driven away through
force and intimidation; (2) persons other than registered voters filled up
the official ballots; (3) flying voters were transported; (4) voters were
allowed to vote more than once; (5) watchers of the petitioners were not
allowed to exercise their rights and perform their duties; do not seem to
clearly sustain a declaration of a failure of election. It has been
consistently held that there are only three (3) instances where a failure of
election may be declared, namely: (a) the election in any polling place has
not been held on the date fixed on account of force majeure, violence,
terrorism, fraud, or other analogous causes; (b) the election in any polling
place had been suspended before the hour fixed by law for the closing of
the voting on account of force majeure, violence, terrorism, fraud or other
analogous causes; (c) after the voting and during the preparation and
transmission of the election returns or on the custody or canvass thereof,
such election results in a failure to elect on account of force majeure,
violence, terrorism, fraud, or other analogous causes (Typoco,
Jr. vs. COMELEC, 319 SCRA 498 [1999]).
In their two petitions, petitioners made no specific allegation as to the
presence of any of the three above-mentioned circumstances. They
merely enumerated the various acts of alleged terrorism and fraud. There
was no allegation that due to said acts of terrorism and fraud no election
was actually held or that there was suspension of election or even if there
was election held, nobody emerged as a winner. On the contrary, it is
apparent that there was an actual election. What petitioners are saying is
that it was not a valid and legitimate elections. The issue is still pending
determination of the COMELEC and the present petition before this
Honorable Court is therefore premature. This Court has made a
pronouncement in Bagatsing v. COMELEC, 320 SCRA 817 [1999] that it
does not look with favor on the practice of seeking remedy from the
Supreme Court without waiting for the resolution of the pending action
before the tribunal below, absent extraordinary circumstances warranting
appropriate action by this Court. 29
Moreover, the proclamation of the petitioners enjoys the presumption of regularity
and validity. 30 To destroy the presumption, the respondents must convincingly
show that the petitioners' victory was procured through extra-legal means. This
they tried to do by alleging matters in their petitions which they believed constituted
grounds for a declaration of failure of election, such as massive substitution of
voters, fraud, terrorism, disenfranchisement of voters, and other anomalies. The
attendance of the alleged fraud and irregularities in the elections as catalogued by
the respondents, however, constitute merely the causes or events which may give
rise to the grounds to declare failure of elections, namely, (a) no election
held on the designated election date; (b) suspension of election before the hour
fixed by law for the closing of voting; and (c) election in any polling place resulted
in a failure to elect. But as aforesaid, the grounds cited by the respondents do not
fall under any of the instances under Section 6 of Rep. Act No. 7166, the winning
candidates having been proclaimed by the PBC. While fraud is a ground to declare
a failure of election, the commission of fraud must be such that it prevented or
suspended the holding of an election, including the preparation and transmission
of the election returns. 31 It behooved the public respondent to dismiss the
amended petitions:
. . . In the fairly recent case of Tomas T. Banaga,
Jr. v. Commission on Elections, et al. with a factual backdrop similar to
this case, the Court held:
We have painstakingly examined the petition filed by petitioner
Banaga before the COMELEC. But we found that petitioner did not
allege at all that elections were either not held or suspended.
Neither did he aver that although there was voting, nobody was
elected. On the contrary, he conceded that an election took place
for the office of vice-mayor of Parañaque City, and that private
respondent was, in fact, proclaimed elected to that post. While
petitioner contends that the election was tainted with widespread
anomalies, it must be noted that to warrant a declaration of failure
of election the commission of fraud must be such that it prevented
or suspended the holding of an election, or marred fatally the
preparation and transmission, custody and canvass of the election
returns. These essential facts ought to have been alleged clearly
by the petitioner below, but he did not. EHSITc

Private respondent alleged in his petition with the COMELEC En

Banc that the elections ensued in the subject precincts and that petitioner
herein emerged as the winner and was in fact proclaimed as such by the
Board of Election Inspectors.
In sum then, the grounds alleged by the private respondent in his petition
before the COMELEC are those for a regular election protest and are not
proper in a pre-proclamation controversy; nor is such petition one for
annulment of the elections or for a declaration of failure of elections in the
municipality of Saguiaran, Lanao del Sur. The COMELEC should have
ordered the dismissal of the petition instead of issuing the assailed order.
The COMELEC thus committed a grave abuse of its discretion amounting
to excess or lack of jurisdiction in issuing the same. The error is correctible
by the special civil action for certiorari. 32
Reliance by the respondents of the ruling of this Court in Soliva v. COMELEC 33 is
misplaced. In that case, the Court ruled that the petition to declare a failure of
election filed with the public respondent was proper despite the proclamation of
the winning candidates because the grounds alleged in the petitions and proved
during trial were that the counting of the votes and the canvassing of the election
returns were attended by fraud, intimidation, terrors and harassment. In this case,
there was no allegation of fraud, terror, intimidation and harassment in the counting
of votes and the canvassing of election returns.
Accordingly, the public respondent's subsequent October 3, 2001 and April 17,
2002 Resolutions allowing the technical examination of the voters registration
records for the Municipalities of Parang, Indanan and Luuk were actions tainted
with grave abuse of discretion amounting to excess or lack of jurisdiction
correctible by a cert writ.
We are not saying that the public respondent is precluded at all times from allowing
the technical examination of the voters registration records.
In Loong v. COMELEC,we held that "the COMELEC is duty-bound to investigate
allegations of fraud, terrorism, violence and other analogous causes in actions for
annulment of election results or for declaration of failure of elections, as the
Omnibus Election Code denominates the same. Thus, the public respondent, in
the case of actions for annulment of election results or declaration of failure
of elections, may conduct a technical examination of election documents and
compare and analyze voters' signatures and fingerprints in order to determine
whether or not the elections had indeed been free, honest and clean." 34 However,
the exercise of this authority presupposes that the petition has properly been acted
upon on account of the existence of any of the grounds provided under Section 6
of the Omnibus Election Code. Where, as in this case, elections had been held
and winners had been duly proclaimed, the proper recourse of the respondents
should have been to file regular election protest cases to ventilate the veracity of
the alleged election fraud and irregularities of the election in the subject precincts
with the consequent determination and declaration of the real winners in
the elections. The recall by the public respondent of its June 20, 2001 Order is
justified by case law. Thus, the public respondent may suspend or annul a
proclamation only in three instances, including pre-proclamation controversies, but
not in a petition for a declaration of failure of an election. As held by us
in Dagloc v.COMELEC, 35 thus:
The filing of pre-proclamation controversies under §248 of the Omnibus
Election Code, however, is not the only ground for the suspension of
proclamation. Two other instances are provided in R.A. No. 6646, known
as "The Electoral Reforms Law of 1987," viz.: (1) Under §6 of the statute,
the COMELEC may, upon motion of the complainant in an action for
disqualification, suspend the proclamation of the winning candidate if the
evidence of his guilt is strong, and (2) under §7 thereof,
the COMELEC may likewise suspend the proclamation of the winning
candidate if there is ground for denying or canceling his certificate of
candidacy. . . . 36
Anent the validity of the Order of the public respondent dated June 28, 2001, the
respondents aver that the public respondent committed a grave abuse of its
discretion in recalling its order annulling the proclamation of the petitioners as the
winning candidates. The respondents insist that the public respondent is
empowered to annul a proclamation of the winning candidates or to suspend such
proclamation. The OSG, for its part, agreed that the public respondent is vested
with authority to suspend the proclamation of the winning candidates or to annul
such proclamation but contend that the public respondent may in the exercise of
its discretion allow such proclamation or set aside its order annulling the
proclamation of the winning candidates, ratiocinating that:
The question now is whether the COMELEC can validly recall or set aside
an earlier order to suspend proclamation issued as preliminary relief in a
petition for declaration of failure of election and/or annulment of election
results.
While we agree with the petitioner that the COMELEC can suspend the
proclamation pending the resolution of the petition to declare a failure of
election, the same order, however, is merely provisional in nature and can
be lifted when the evidence so warrants. In Nolasco v. COMELEC, 275
SCRA 762 [1997], it is said to be akin to a temporary restraining order
which a court can issue ex-parte under exigent circumstances.
The petitioner would like to impress upon the court that
the COMELEC merely recalled its earlier order of suspension of
proclamation without any motion for reconsideration. Such is not correct.
During the hearing on June 28, 2001, when the parties pre-marked their
respective evidence, the respondents also raised the motion and prayer
to recall and/or lift the June 20, 2001 Order. The parties then agreed to
have the matter immediately considered by the COMELEC in view of the
proximity of the June 30, 2001 termination of the term of office of the (then)
incumbent elective officials of the Province of Sulu. 37
We agree with the OSG. The respondents failed to show that the public respondent
committed a grave abuse of its discretion amounting to excess or lack of
jurisdiction in issuing its June 28, 2001 Order.
IN LIGHT OF ALL THE FOREGOING, the petitions in G.R. Nos. 148575-76 are
DISMISSED. The Order of the COMELEC dated June 28, 2001 is AFFIRMED.
The petitions in G.R. Nos. 152882-83 are GRANTED. The Orders of
the COMELEC dated October 3, 2001 and April 17, 2002 are SET ASIDE, and
the COMELEC is directed to dismiss SPA No. 01-257 and SPA No. 01-265. No
costs.
[G.R. No. 103877. June 23, 1992.]

BENJAMIN F. ARAO, petitioner, vs. COMMISSION ON

ELECTIONS and WARLITO PULMONES, respondents.
 SYLLABUS

1. REMEDIAL LAW; ACTIONS; DISTINCTION BETWEEN ORIGINAL ACTION

FOR CERTIORARI UNDER THE CONSTITUTION AND APPEAL BY
CERTIORARI. — Distinction should be drawn between an original action for
certiorari, as in this case brought under Sec. 7, Art. IX-A, 1987 Constitution, and
an appeal by certiorari or petition for review. In the special civil action for certiorari,
the main issue is lack of jurisdiction or grave abuse of discretion amounting to
excess of jurisdiction, while an appeal by certiorari or petition for review is limited
to the consideration of questions of law.
2. ID.; EVIDENCE; CONCLUSION OF COMELEC ENTITLED TO UTMOST
RESPECT. — This Court has invariably followed the principle that in the absence
of any jurisdictional infirmity or an error of law of the utmost gravity, the conclusion
reached by respondent Commission on a matter that falls within its competence is
entitled to the utmost respect. So it has been reiterated time and time again. (Sidro
v. Commission on Elections, G.R. No. 64033, July 25, 1983, 123 SCRA 759)
3. ID.; SUPREME COURT; POWER TO PASS UPON AN ORDER OR DECISION
OF THE COMELEC; LIMITATION. — The extraordinary power of this Court to
pass upon an order or decision of COMELEC should be exercised restrictively,
with care and caution, while giving it the highest regard and respect due a
constitutional body. For, not every abuse of discretion justifies the original action
of certiorari; it must be grave. Nor any denial of due process within its ambit; it must
be patent and it must be substantial. The test therefore is whether petitioner has
demonstrated convincingly that COMELEC has committed grave abuse of
discretion or exceeded its jurisdiction amounting to patent and substantial denial
of due process in issuing the challenged decision.
4. POLITICAL LAW; ELECTION LAWS; ELECTION PROTEST; POWER OF
COMELEC TO RULE ON ISSUES NOT SPECIFIED BY PARTY; CASE AT BAR.
— The failure or omission of protestant to raise the question of identical
handwriting or of impugning the validity of the ballots on that ground, resulting in
the invalidation of 466 ballots for petitioner, does not preclude respondent
COMELEC from rejecting them on that ground. Unlike an ordinary suit, an election
protest is of utmost public concern. The rights of the contending parties in the
position aspired for must yield to the far greater interest of the citizens in the
sanctity of the electoral process. This being the case, the choice of the people to
represent them may not be bargained away by the sheer negligence of a party,
nor defeated by technical rules of procedure. Thus, COMELEC cannot just close
its eyes to the illegality of the ballots brought before it, where the ground for the
invalidation was omitted by the protestant. As held inYalung v. Atienza: 52 Phil.
781 (1929) ". . . Inasmuch as it is not necessary to specify in detail in the motion
of protest in which of the ballots the frauds and irregularities were committed, such
a procedure being well-nigh impossible, and it being enough to allege in what the
fraud and irregularity consisted, and that had it not been for such anomalies, the
result of the election would have been otherwise, all of which have been alleged in
the motion of protest in question, the court or the commissioners appointed by the
same may revise all the ballots, admitting the valid and legal ones and rejecting
the others, with a view to arriving at the lawfully expressed will of the electors. The
institution of popular suffrage is one of public interest and not a private interest of
the candidates, so that if in the revision of the ballots some illegal ballots are found
which have not been specifically impugned in the motion of protest, the court may
reject them motu proprio, since it is not essential that the contestant set forth the
grounds of his contest with the same precision required of a pleading in ordinary
civil cases (20 Corpus Juris, 227; emphasis supplied).
5. ID.; ID.; ID.; JURISDICTIONAL DEFECT NOT BROUGHT IMMEDIATELY TO
THE ATTENTION OF COMELEC, DEEMED WAIVED; CASE AT BAR. —
Petitioner did not question this alleged irregularity by bringing the matter to the
attention of COMELEC (First Division) immediately after the promulgation of its
Resolution. The Resolution containing the alleged jurisdictional defect was
promulgated on December 11, 1991. However, it was not until he filed his petition
on February 17, 1992, that petitioner complained for the first time. Certainly, that
Resolution having been rendered by a division of COMELEC could have been
subject of a motion for reconsideration. Admittedly, petitioner did not take steps to
have the matter reconsidered by public respondent before coming to Us. Having
been declared winner in the Resolution of December 11, 1991, petitioner would
not ordinarily be expected to initiate a motion for reconsideration. Nonetheless, he
could have brought up his objections in his Memorandum in opposition to the
Protestant's Motion for Reconsideration so that public respondent could have
properly ruled thereon. Consequently, petitioner may be deemed to have waived
his right to question the Resolution when he failed to act accordingly despite the
opportunity to do so. He should not be permitted, in other words, to remain mute
and unaffected in the face of a perceived jurisdictional defect and, worse, profit
from his quiescence, only to grumble in the end when it turns out to be prejudicial
to his interest. As it has been said, "[n]either equity nor the law relieves those who
seek aid in Court merely to avoid the effects of their own negligence . . ." (Lipscomb
v. Talbott, 243 Mo 1, 36 [1912]).
BELLOSILLO, J : p

FACTS: Petitioner Benjamin Arao and private respondent Warlito Pulmones were
candidates for the Office of City Mayor of Pagadian City in the January 18, 1988,
local elections. After canvass, petitioner was shown to have garnered 12,447
votes, while private respondent, only 12,030 votes, or a margin of 417 votes in
favor of petitioner. Consequently, on January 21, 1988, petitioner was proclaimed
City Mayor-elect of Pagadian City.
On January 28, 1988, private respondent filed his Protest with COMELEC more
particularly alleging that "while fraud and anomalies were rampant in practically all
the voting centers of Pagadian City, the violations were glaringly and notably
perpetrated in the following districts and/or precincts, to wit: (a) [I]n all the three (3)
precincts of Kawit District . . . (b) [I]n Tuburan District . . . particularly in Precincts
77 and 80 . . . (c) (I)n Bonifacio District, particularly Precinct 69 . . . (d) [I)n Sta.
Lucia District, particularly Precinct No. 42 . . . (e) [I)n all of the seven (7) precincts
in Sto Niño District . . . (f) [I)n San Jose District, particularly Precinct No. 32 . . . (g)
[I)n Precinct No. 33 of San Jose District . . . (h) [I)n Precinct No. 34 of San Jose
District . . . (i) [I)n all the precincts in San Pedro District . . . (j) [I)n Precincts 19 and
22 of Gatas District . . . (k) . . . in all the precincts in Balangasa District but more
notably in Precincts 8 and 11 . . ."
On February 8, 1988, petitioner filed his Answer with Counterprotest. However,
COMELEC (First Division) dismissed the counterprotest per its Resolution for
failure to pay the required filing fee with the reglementary period.
On February 15, 1988, or after the 10-day period to file an election protest, private
respondent filed an Amended Protest enumerating therein thirteen (13) precincts
which were not previously specified: Precincts 1-A, 4, 6, 9, 17, 20, 21, 30, 31, 35,
36, 50 and 70. Actually, other precincts, i.e., Precincts 101, 110, 111, 112, 113,
121, 122, 129, 137, 143, 153, 108 and 131, which were not particularly mentioned
in the Petition, were included in the Amended Protest.
On March 3, 1988, petitioner filed his Protestee's Comments and Observations on
the Amended Protest, although received by COMELEC only on April 4, 1988.
After revision of ballots and hearing, COMELEC (First Division) promulgated a
Resolution the dispositive portion of which reads:
"WHEREFORE . . . the Commission (First Division) RESOLVES, as it
hereby RESOLVES, to DISMISS Election Protest Case No. 88-1 and
DECLARES protestee winner of the election protest by a margin of 378
votes in lieu of the original lead of protestee by 417 votes over protestant
at the time of the former's proclamation by the City Board of Canvassers
of Pagadian City."
Private respondent filed his Motion for Reconsideration.
Petitioner claims that on January 15, 1992, he filed a Memorandum in Opposition
to the Motion for Reconsideration of private respondent raising the following points:
(a) examination and appreciation of ballots should have been confined to
31 protested precincts per original protest filed January 28, 1988,
considering that amended protest was decreed as "not admissible" in the
February 7, 1991, Resolution of COMELEC (First Division);
 (b) examination of ballots to determine identical handwritings should be
limited to Precincts 19, 22, 8 and 11 as alleged in the original protest;
(c) it was contrary to basic rules for COMELEC to pass upon ballots (in
favor of protestee) as identical with each other when they were not even
questioned by protestant, thus depriving protestee the right to present
controverting evidence;
(d) COMELEC failed to consider its records showing that there were 139
assisted illiterate or disabled voters, hence, to invalidate their votes is
technically a disenfranchisement and a subversion of sovereign will;
(e) it is statistically improbable for a candidate to have utilized 332 groups
(persons) to write 723 ballots (a ratio of 1 person for 2 ballots);
(f) mathematical computation of protestant in his motion for
reconsideration is erroneous and self-serving; and,
(g) COMELEC should have credited 10 more votes for protestee as
affirmed/admitted during the revision of ballots.
However, in his Comment, private respondent Pulmones denies all these
averments of petitioner, and claims that they contain "baseless and unfounded"
allegations which are precisely to be rejected in this petition.
On January 23, 1992, COMELEC En Banc promulgated its Decision thus —
"ACCORDINGLY, the Commission En Banc hereby renders judgment: a.
GRANTING Protestant Pulmones' Motion for Reconsideration; b.
DENYING Protestee Arao's Manifestation for the dismissal of Protestant's
Motion for Reconsideration; c. AFFIRMING the factual findings of the
Commission (First Division) relative to the examination of the contested
ballots of both Protestant and Protestee; d. DECLARING Protestant
Warlito Pulmones as the duly elected Mayor of Pagadian City in the
January 18, 1988 elections with a margin of 516 votes against Protestee
Benjamin F. Arao; and, e. ORDERING Protestee Arao to VACATE his
office and surrender the same to Protestant Pulmones once this decision
becomes final and executory." 17
Meanwhile, on February 28, 1992, acting on the motion of Pulmones, respondent
COMELEC granted the issuance of a writ of execution to enforce its Decision of
January 23, 1992.
On March 4, 1992, petitioner filed with Us an urgent motion for the issuance of a
writ of preliminary injunction or a temporary restraining order against the February
28, 1992, Order of public respondent. LLphil

On March 5, 1992, this Court issued a temporary restraining order as prayed for
by petitioner, and required private respondent to comment thereon.
ISSUE: Whether respondent COMELEC gravely abused its discretion or exceeded
its jurisdiction: (1) when it examined and invalidated 426 ballots for petitioner in
precincts not included in the original protest but only in the amended protest filed
beyond the ten-day period; (2) when it invalidated 466 ballots for petitioner as
having identical handwritings although protestant did not raise such issues, nor
impugn the validity of the ballots on such ground; and, (3) when it concluded that
certain ballots were with identical handwritings, some marked, and others stray,
and deducting them from the total votes of petitioner without stating the grounds
therefor.
RULING:
As regards the first issue of petitioner, it appears that the original Protest of private
respondent Pulmones did in fact cover all the forty-five (45) precincts the
COMELEC took cognizance of in resolving EPC No. 88-1. As alleged in par. 5 of
his Protest —
"5. That while fraud and anomalies were rampant in practically all the
voting centers of Pagadian City, the violations were glaringly and notably
perpetrated in the following districts and/or precincts . . ."
The prayer in the same Protest also confirms that it refers to forty-five (45)
precincts, which tallies with the total number of precincts contested by protestant,
now private respondent.
It may be noted that while protestant did attempt to introduce new precincts in his
Amended Protest filed on February 15, 1988, namely, Precincts Nos. 101, 111,
112, 113, 121, 122, 129, 137, 143, 153, 108 and 131, which were not enumerated
in the original Protest, these precincts were not taken into consideration by
COMELEC in deciding EPC No. 88-1. Hence, the first issue clearly appears to be
based on a wrong premise.
On the second issue, the failure or omission of protestant to raise the question of
identical handwriting or of impugning the validity of the ballots on that ground,
resulting in the invalidation of 466 ballots for petitioner, does not preclude
respondent COMELEC from rejecting them on that ground.
Unlike an ordinary suit, an election protest is of utmost public concern. The rights
of the contending parties in the position aspired for must yield to the far
greater interest of the citizens in the sanctity of the electoral process. This
being the case, the choice of the people to represent them may not be
bargained away by the sheer negligence of a party, nor defeated by technical
rules of procedure. Thus, COMELEC cannot just close its eyes to the illegality of
the ballots brought before it, where the ground for the invalidation was omitted by
the protestant. As held in Yalung v. Atienza:
 ". . . Inasmuch as it is not necessary to specify in detail in the motion of
protest in which of the ballots the frauds and irregularities were committed,
such a procedure being well-nigh impossible, and it being enough to
allege in what the fraud and irregularity considered, and that had it not
been for such anomalies, the result of the election would have been
otherwise, all of which have been alleged in the motion of protest in
question, the court or the commissioners appointed by the same may
revise all the ballots, admitting the valid and legal ones and rejecting the
others, with a view to arriving at the lawfully expressed will of the
electors. The institution of popular suffrage is one of public interest and
not a private interest of the candidates, so that if in the revision of the
ballots some illegal ballots are found which have not been specifically
impugned in the motion of protest, the court may reject them motu propio,
since it is not essential that the contestant set forth the grounds of his
contest with the same precision required of a pleading in ordinary civil
cases.
"In the case of Lucero vs. De Guzman (45 Phil. 852), this court stated the
following: 'The purpose of the legislature in declaring that contests should
not be conducted upon pleadings or by action was to free the courts as
far as possible from the technicalities incident to ordinary proceeding by
action and to enable the courts to administer justice speedily and without
complication."
"The trial court, then, did not err in taking into account in the revision of
the ballots, irregularities not set forth in the motion of protest."
With regard to the third issue, the complaint of petitioner against the alleged
omission of COMELEC to state the reasons for its conclusion that certain ballots
were with identical handwritings, some marked and others stray, does not in any
magnitude diminish the straightforward statement of the public respondent that "it
painstakingly examined and appreciated individually the contested ballots for both
protestant and protestee in accordance with existing norms . . ."
Petitioner did not question this alleged irregularity by bringing the matter to the
attention of COMELEC (First Division) immediately after the promulgation of its
Resolution. The Resolution containing the alleged jurisdictional defect was
promulgated on December 11, 1991. However, it was not until he filed his petition
on February 17, 1992, that petitioner complained for the first time. Certainly, that
Resolution having been rendered by a division of COMELEC could have been
subject of a motion for reconsideration. Admittedly, petitioner did not take steps to
have the matter reconsidered by public respondent before coming to Us.
Having been declared winner in the Resolution of December 11, 1991, petitioner
would not ordinarily be expected to initiate a motion for reconsideration.
Nonetheless, he could have brought up his objections in his Memorandum in
opposition to the Protestant's Motion for Reconsideration so that public respondent
could have properly ruled thereon. Consequently, petitioner may be deemed to
have waived his right to question the Resolution when he failed to act accordingly
despite the opportunity so to do. He should not be permitted, in other words, to
remain mute and unaffected in the face of a perceived jurisdictional defect and,
worse, profit from his quiescence, only to grumble in the end when it turns out to
be prejudicial to his interest. As it has been said, "[n]either equity not the law
relieves those who seek aid in Court merely to avoid the effects of their own
negligence . . ." (Lipscomb v. Talbott, 243 Mo 1, 36 [1912]).
WHEREFORE, finding no abuse of discretion, much less grave, patent and
substantial, the petition is DENIED.llcd

[G.R. No. 107979. June 19, 1995.]

DANILO F. GATCHALIAN, petitioner, vs. COURT OF APPEALS,

JUDGE IBARRA S. VIGILIA (BRANCH 17, RTC of BULACAN)
and GREGORIO N. ARUELO, JR.,respondents.

SYLLABUS

1. ELECTION LAW; ELECTION PROTEST; PERIOD TO FILE PETITION

THEREFOR; SUSPENDED BY THE FILING OF PRE-PROCLAMATION CASE.
— Gatchalian claims that the election protest was filed only on June 2, 1992 or
nineteen days after his proclamation on May 13, 1992 as Vice Mayor of Balagtas,
Bulacan in violation of Section 3, Rule 35 of the COMELEC Rules of Procedure.
Petitioner's contention is without merit . Said Section 3, Rule 35 provides as
follows: "Period to file petition. — The petition shall be filed within ten (10) days
following the date of proclamation of the results of the election." Under the above-
cited section, Aruelo had ten days from May 13, 1992 to file an election protest.
Instead of filing an election protest, Aruelo filed with the COMELEC a pre-
proclamation case against Gatchalian on May 22, 1992, or nine days after May 13,
1992. The filing of the pre-proclamation case suspended the running of the period
within which to file an election protest or quo warrantoproceedings (B.P. Blg. 881,
Sec. 248). Aruelo received the COMELEC resolution denying his pre-proclamation
petition on June 22, 1992. Hence, Aruelo had only one day left after June 22, 1992
within which to file an election protest. However, it will be noted that Aruelo filed
on June 2, 1992 with the trial court an election protest ex abudante cautela.
2. ID.; ID.; SHALL BE DISMISSED FOR FAILURE TO PAY FILING FEE.
— Under Section 9, Rule 35 of the COMELEC Rules of Procedure, a protestant
has to pay the following: a) filing fee of P300.00; b) legal research fee; and c)
additional filing fee if there be a claim for damages or attorney's fees. Aruelo,
 upon filing the election protest with the trial court on June 2, 1992, paid the
following amounts:
O.R. No. Amount
2084419-R P450.00 — Docket Fee-Judiciary
Development Fund
8760129S 150.00 — General Fund
1407317 10.00 — Legal Research
1406063 5.60 — Summons Fee
2084420 46.00 — Summons Fee
From the above itemization, it is clear that Aruelo failed to pay the filing
fee of P300.00 for the election protest prescribed by the COMELEC Rules of
Procedure. The amount of P600.00, consisting of P450.00 (Judiciary
Development Fund) and P150.00 (General Fund), refers to the docket fee for
Aruelo's claim for attorney's fees in the amount of P100,000.00 in accordance
with the schedule provided for in Section 7(a), Rule 141 of the Revised Rules
of Court (Cf. Rule 35, Section 9, third paragraph, COMELEC Rules of
Procedure). The trial court cannot simply deduct from the P600.00 the filing
fee of P300.00 because the amount is specifically allocated by law (P.D. No.
1949) and by Supreme Court Administrative Circular No. 31-90 dated October
15, 1990 to the Judiciary Development Fund and the General Fund. A
separate set of receipts is used for the collection of docket fees. It is the
payment of the filing fee that vests jurisdiction of the court over the election
protest, not the payment of the docket fees for the claim of damages and
attorney's fees. For failure to pay the filing fee prescribed under Section 9,
Rule 35 of the COMELEC Rules of Procedure, the election protest must be
dismissed. Under Section 9, Rule 35 of the COMELEC Rules of Procedure,
"[n]o protest . . . shall be given due course without the payment of a filing fee
in the amount of three hundred pesos (P300.00) for each interest." In Pahilan
v. Tabalba, 230 SCRA 205 (1994), we had occasion to rule as follows: "In the
case now before us, and in election cases in general, it is not the amount of
damages, if any, that is sought to be recovered which vests in the courts the
jurisdiction to try the same. Rather, it is the nature of the action which is
determinative of jurisdiction."
QUIASON, J : p

FACTS: Danilo F. Gatchalian and Gregorio N. Aruelo, Jr. were rival candidates
for the office of the Vice Mayor of Balagtas, Bulacan in the May 11, 1992
elections.
On May 13, 1992, the Municipal Board of Canvassers proclaimed Gatchalian as
the duly elected Vice Mayor of Balagtas, Bulacan by a margin of four votes.
 On May 22, 1992, Aruelo filed with the Commission on Elections
(COMELEC) a verified petition docketed as SPC No. 92-130 seeking to annul
the proclamation of Gatchalian.
On June 2, 1992, Aruelo filed with the Regional Trial Court, an election
protest alleging that the protest was filed ex abudante cautela, there being a
pending pre-proclamation case before the COMELEC. It likewise contained a
claim for damages in the amount of P100,000.00 by way of attorney's fees.
On the same date, Aruelo paid the amount of P610.00 as filing fees.
On June 10, 1992, Gatchalian received an amended summons from the
clerk of court of the trial court, giving him five days within which to answer.
Instead of filing an answer, Gatchalian filed a motion to dismiss on June
15, 1992 on the following grounds: (a) the petition was filed out of time; (b)
there was a pending pre-proclamation case before the COMELEC, and hence
the protest was premature; and (c) Aruelo failed to pay the prescribed filing
fees and cash deposit upon filing of the petition. Aruelo filed an opposition to
the motion to dismiss, to which Gatchalian filed a reply.
Meanwhile, on June 17, 1992, the COMELEC denied Aruelo's pre-
proclamation case.
In its Order dated July 10, 1992, the trial court denied Gatchalian's
motion to dismiss and ordered him to file his answer within five days from
notice thereof. Gatchalian's motion for reconsideration was denied on August
3, 1992.
On August 6, 1992, Gatchalian filed before the Court of Appeals, a
petition for certiorari (CA -G.R. SP No. 28621) alleging grave abuse of
discretion on the part of the trial court in denying petitioner's motion to dismiss
as well as his motion for reconsideration.
On November 24, 1992, the Court of Appeals rendered its decision
concluding that there was no grave abuse of discretion on the part of the trial
court in denying Gatchalian's motion to dismiss. It further ruled that the
election protest was timely filed and that Gatchalian's averment that the
election protest should be dismissed on the ground of non-payment of filing
fee was devoid of merit.
Hence, this petition.

(ISSUE: Whether or not said election protest should be dismissed)

ISSUE 1: Gatchalian claims that the election protest was filed only on June 2,
1992 or nineteen days after his proclamation on May 13, 1992 as Vice Mayor of
Balagtas, Bulacan in violation of Section 3, Rule 35 of the COMELEC Rules of
Procedure.
RULING: Petitioner's contention is without merit .
Said Section 3, Rule 35 provides as follows:
"Period to file petition. — The petition shall be filed within ten (10) days
following the date of proclamation of the results of the election."
Under the above-cited section, Aruelo had ten days from May 13, 1992
to file an election protest. Instead of filing an election protest, Aruelo filed with
the COMELEC a pre-proclamation case against Gatchalian on May 22, 1992,
or nine days after May 13, 1992. The filing of the pre-proclamation case
suspended the running of the period within which to file an election protest
or quo warranto proceedings (B.P. Blg. 881, Sec. 248). Aruelo received the
COMELEC resolution denying his pre-proclamation petition on June 22, 1992.
Hence, Aruelo had only one day left after June 22, 1992 within which to file an
election protest. However, it will be noted that Aruelo filed on June 2, 1992
with the trial court an election protest ex abudante cautela.
ISSUE 2: Gatchalian further contends that the Court of Appeals should have
dismissed the election protest for failure of Aruelo to pay the filing fee of
P300.00 as required by Rule 35, Section 9 of the COMELEC Rules of
Procedure.
RULING: This contention of petitioner is meritorious.
Section 9, Rule 35 of the COMELEC Rules of Procedure provides:
"Filing fee. — No protest, counter-protest, or protest-in-intervention shall
be given due course without the payment of a filing fee in the amount of
three hundred pesos (P300.00) for each interest.
Each interest shall further pay the legal research fee as required by law.
If a claim for damages and attorney's fees are set forth in a protest,
counter-protest or protest-in-intervention, an additional filing fee shall be
paid in accordance with the schedule provided for in the Rules of Court in
the Philippines."
Under said Rule, a protestant has to pay the following: a) filing fee of
P300.00; b) legal research fee; and c) additional filing fee if there be a claim
for damages or attorney's fees.
Aruelo, upon filing the election protest with the trial court on June 2,
1992, paid the following amounts:
O.R. NO. Amount
2084419-R P450.00 — Docket Fee-Judiciary
Development Fund
8760129S 150.00 — General Fund
1407317 10.00 — Legal Research
1406063 5.60 — Summons Fee
2084420 46.00 — Summons Fee
 From the above itemization, it is clear that Aruelo failed to pay the filing
fee of P300.00 for the election protest prescribed by the COMELEC Rules of
Procedure.
The amount of P600.00, consisting of P450.00 (Judiciary Development
Fund) and P150.00 (General Fund), refers to the docket fee for Aruelo's claim
for attorney's fees in the amount of P100,000.00 in accordance with the
schedule provided for in Section 7(a), Rule 141 of the Revised Rules of Court
(Cf. Rule 35, Section 9, third paragraph, COMELEC Rules of Procedure).
The trial court cannot simply deduct from the P600.00 the filing fee of
P300.00 because the amount is specifically allocated by law (P.D. No. 1949)
and by Supreme Court Administrative Circular No. 31-90 dated October 15,
1990 to the Judiciary Development Fund and the General Fund. A separate
set of receipts is used for the collection of docket fees.
It is the payment of the filing fee that vests jurisdiction of the court
over the election protest, not the payment of the docket fees for the
claim of damages and attorney's fees. For failure to pay the filing fee
prescribed under Section 9, Rule 35 of the COMELEC Rules of
Procedure, the election protest must be dismissed. Under Section 9,
Rule 35 of the COMELEC Rules of Procedure, "[n]o protest . . . shall be
given due course without the payment of a filing fee in the amount of
three hundred pesos (P300.00) for each interest."

[G.R. No. 139853. September 5, 2000.]

FERDINAND THOMAS M. SOLLER, petitioner, vs. COMMISSION

ON ELECTIONS, REGIONAL TRIAL COURT OF PINAMALAYAN,
ORIENTAL MINDORO (Branch 42) and ANGEL M.
SAULONG, respondents.

SYNOPSIS

Petitioner Ferdinand Thomas M. Soller and private respondent Angel M. Saulong

were both candidates for mayor of the Municipality of Bansud, Oriental Mindoro in
the May 11, 1998, elections. On May 14, 1998, Soller was proclaimed by the
municipal board of canvassers as the duly elected mayor. On May 19, 1998,
Saulong filed with the COMELEC a petition for annulment of the
proclamation/exclusion of election return. On May 25, 1998, Saulong also filed an
election protest before the Regional Trial Court of Pinamalayan, Oriental Mindoro.
Soller moved to dismiss Saulong's protest on the ground of lack of jurisdiction,
forum-shopping and failure to state a cause of action. On July 3, 1998, the
COMELEC dismissed the petition filed by Saulong. On the other hand, the trial
court denied Soller's motion to dismiss. His motion for reconsideration was also
denied. Soller then filed a petition for certiorari with the COMELEC contending that
respondent RTC acted without or in excess of jurisdiction or with grave abuse of
discretion in not dismissing private respondent's election protest. On August 31,
1999, the COMELEC en banc dismissed the said petition. Hence, Soller filed the
instant petition.ESAHca

This Court found that petitioner's petition with the COMELEC was not referred to
a division of that Commission but was, instead, submitted directly to the
Commissionen banc. The petition for certiorari assailed the trial court's order
denying the motion to dismiss private respondent's election protest. The
questioned order of the trial court is interlocutory because it does not end the trial
court's task of adjudicating the parties' contentions and determining their rights and
liabilities as regards each other. The authority to resolve a petition
for certiorari involving incidental issues of election protest, like the questioned
order of the trial court; falls within the division of the COMELEC and not on the
COMELEC en banc. Clearly, the COMELEC en banc acted without jurisdiction in
taking cognizance of petitioner's petition in the first instance.
In order to write finis to the controversy at bar, the Court resolved the issues raised
by petitioner. A close scrutiny of the receipts will show that private respondent
failed to pay the filing fee of P300.00 for his protest as prescribed by the COMELEC
rules. A court acquires jurisdiction over any case only upon the payment of the
prescribed docket fee. Patently, the trial court did not acquire jurisdiction over
private respondent's election protest. Therefore, COMELEC gravely erred in not
ordering the dismissal of private respondent's protest case. The Court noted that
the verification of aforesaid protest was defective. Since the petition lacked proper
verification, it should be treated as an unsigned pleading and must be dismissed.
Further, the Court found that private respondent did not comply with the required
certification against forum shopping. Private respondent successively filed a
"petition for annulment of the proclamation/exclusion of election return" and an
election protest. Yet, he did not disclose in his election protest that he earlier filed
a petition for annulment of proclamation/exclusion of election returns.
The instant petition was GRANTED.

SYLLABUS

1. POLITICAL LAW; CONSTITUTIONAL LAW; CONSTITUTIONAL

COMMISSIONS; COMMISSION ON ELECTIONS; JURISDICTION;
COMELEC EN BANC DOES NOT HAVE THE AUTHORITY TO HEAR AND
DECIDE ELECTION CASES IN THE FIRST INSTANCE. — Section 3, Subdivision
C of Article IX of the Constitution reads: "The Commission on Elections may sit en
banc or in two divisions, and shall promulgate its rules of procedure in order to
expedite the 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 decision shall be decided by the
Commission en banc." Thus, in Sarmiento vs. COMELEC and in subsequent
cases, we ruled that the COMELEC, sitting en banc, does not have the requisite
authority to hear and decide election cases including pre-proclamation
controversies in the first instance. This power pertains to the divisions of the
Commission. Any decision by the Commission en banc as regards election cases
decided by it in the first instance is null and void.
DHCcST

2. ID.; ID.; ID.; ID.; ID.; AUTHORITY TO RESOLVE PETITION

FOR CERTIORARI INVOLVING INCIDENTAL ISSUES OF ELECTION
PROTEST FALLS WITHIN THE DIVISION OF THE COMELEC. — The petition
for certiorari assails the trial court's order denying the motion to dismiss private
respondent's election protest. The questioned order of the trial court is interlocutory
because it does not end the trial court's task of adjudicating the parties' contentions
and determining their rights and liabilities as regards each other. In our view, the
authority to resolve petition for certiorari involving incidental issues of election
protest, like the questioned order of the trial court falls within the division of the
COMELEC and not on the COMELEC en banc. Note that the order denying the
motion to dismiss is but an incident of the election protest. If the principal case,
once decided on the merits, is cognizable on appeal by a division of the
COMELEC, then, there is no reason why petitions for certiorari relating to incidents
of election protest should not be referred first to a division of the COMELEC for
resolution. Clearly, the COMELEC en banc acted without jurisdiction in taking
cognizance of petitioner's petition in the first instance.
3. REMEDIAL LAW; COURTS; JURISDICTION; ACQUIRED ONLY UPON
PAYMENT OF THE PRESCRIBED DOCKET FEE; NOT COMPLIED WITH IN
CASE AT BAR. — Close scrutiny of the receipts will show that private respondent
failed to pay the filing fee of P300.00 for his protest as prescribed by the COMELEC
rules. The amount of P368.00 for which OR 7023752 was issued for the Judiciary
Development Fund as shown by the entries in the cash book of the clerk of court.
Thus, only P32.00 with OR 7022478 credited to the general fund could be
considered as filing fee paid by private respondent for his protest. A court acquires
jurisdiction over any case only upon the payment of the prescribed docket fee.
Patently, the trial court did not acquire jurisdiction over private respondent's
election protest.
4. ID.; ID.; ID.; ID.; ERRORS IN THE PAYMENT OF FILING FEES IN ELECTION
CASES ARE NO LONGER EXCUSABLE. — We have in a string of cases had the
occasion to rule on this matter. In Loyola vs. COMELEC, the clerk of court
assessed private respondent therein the incorrect filing fee of P32.00 at the time
of filing of the election protest. Upon filing his counter-protest, petitioner was
assessed to pay the same amount. Subsequently, the trial court remedied the
situation by directing the parties to pay the balance of P268.00. On review, we held
that the lapse was not at all attributable to private respondent and there was
substantial compliance with the filing fee requirement. The error lies in the Clerk's
misapplication and confusion regarding application of Section 9 of Rule 35 of the
COMELEC Rules of Procedure and this Court's resolution dated September 4,
1990 amending Rule 141 of the Rules of Court. An election protest falls within the
exclusive original jurisdiction of the Regional Trial Court, in which case the Rules
of Court will apply, and that the COMELEC Rules of Procedure is primarily
intended to govern election cases before that tribunal. But the Court declared that
this decision must not provide relief to parties in future cases involving inadequate
payment of filing fees in election cases. Our decisions
in Pahilanand Gatchalian bar any claim of good faith, excusable negligence or
mistake in any failure to pay the full amount of filing fees in election cases. . . .
Clearly then, error in the payment of filing fees in election cases is no longer
excusable.
5. POLITICAL LAW; ELECTION LAWS; ELECTION PROTEST; PETITION THAT
LACKS PROPER VERIFICATION SHOULD BE TREATED AS AN UNSIGNED
PLEADING AND MUST BE DISMISSED. — We note that the verification of
aforesaid protest is defective. In the verification, private respondent merely stated
that he caused the preparation of his petition and he has read and understood all
the allegations therein. Certainly, this is insufficient as private respondent failed to
state that the contents of his election protest are true and correct of his personal
knowledge. Since the petition lacks proper verification, it should be treated as an
unsigned pleading and must be dismissed.
6. REMEDIAL LAW; SUPREME COURT ADMINISTRATIVE CIRCULAR No. 04-
94; CERTIFICATE OF NON-FORUM SHOPPING; NOT COMPLIED WITH IN
CASE AT BAR. — [W]e find that private respondent did not comply with the
required certification against forum shopping. Private respondent successively
filed a "petition for annulment of the proclamation/exclusion of election return" and
an election protest. Yet, he did not disclose in his election protest that he earlier
filed a petition for annulment of proclamation/exclusion of election returns. IcaEDC

7. ID.; ID.; ID.; PARTY'S BELIEF THAT HE NO LONGER HAD A PENDING CASE
BEFORE THE COMELEC BECAUSE HE DEEMED THE PRE-PROCLAMATION
CASE ABANDONED UPON FILING OF ELECTION PROTEST IS NOT A VALID
REASON FOR NON-DISCLOSURE. — [P]rivate respondent's belief that he no
longer had a pending case before the COMELEC because he deemed it
abandoned upon filing of his protest is not a valid reason for non-disclosure of the
pendency of said pre-proclamation case. Note that the COMELEC dismissed
private respondent's pre-proclamation case only on July 3, 1998. Before the
dismissal, said case was legally still pending resolution.

8. ID.; ID.; ID.; THE FACT THAT ELECTION PROTEST WAS NOT BASED ON
SAME CAUSE OF ACTION AS THE PRE-PROCLAMATION CASE IS NOT A
VALID EXCUSE FOR NON-COMPLIANCE THEREWITH. — [T]he fact that private
respondent's protest was not based on the same cause of action as his pre-
proclamation case is not a valid excuse for not complying with the required
disclosure in the certification against forum shopping.
9. ID.; ID.; ID.; MANDATORY. — The requirement to file a certificate of non-forum
shopping is mandatory. Failure to comply with this requirement cannot be excused
by the fact that a party is not guilty of forum shopping. The rule applies to any
complaint, petition, application or other initiatory pleading, regardless of whether
the party filing it has actually committed forum shopping. Every party filing any
initiatory pleading is required to swear under oath that he has not and will not
commit forum shopping. Otherwise we would have an absurd situation, as in this
case, where the parties themselves would be the judge of whether their actions
constitute a violation of the rule, and compliance therewith would depend on their
belief that they might or might not have violated the requirement. Such
interpretation of the requirement would defeat the very purpose of the rule.
10. POLITICAL LAW; ELECTION LAWS; PRE-PROCLAMATION
CONTROVERSIES; SHOULD NOT BE ENTERTAINED BY THE COMELEC
AFTER THE WINNING CANDIDATES WERE PROCLAIMED. — It could be
argued that private respondent's petition for annulment of proclamation/exclusion
of election returns was a pre-proclamation case. The issues raised in that petition
pertain to the preparation and appreciation of election returns and the proceedings
of the municipal board of canvassers. But note that such petition was filed after the
proclamation of petitioner as the winning candidate, thus, the petition was no
longer viable, for pre-proclamation controversies may no longer be entertained by
the COMELEC after the winning candidates have been proclaimed.
QUISUMBING, J : p

FACTS: Petitioner and private respondent were both candidates for mayor of the
municipality of Bansud, Oriental Mindoro in the May 11, 1998 elections. On May
14, 1998, the municipal board of canvassers proclaimed petitioner Ferdinand
Thomas Soller duly elected mayor.
On May 19, 1998, private respondent Angel Saulong filed with the COMELEC a
'petition for annulment of the proclamation/exclusion of election return". On May
25, 1998, private respondent filed with the Regional Trial Court of Pinamalayan,
Oriental Mindoro, an election protest against petitioner docketed as EC-31-98.
On June 15, 1998, petitioner filed his answer with counter-protest. Petitioner also
moved to dismiss private respondent's protest on the ground of lack of jurisdiction,
forum-shopping, and failure to state cause of action.
On July 3, 1998, COMELEC dismissed the pre-proclamation case filed by private
respondent.
On October 1, 1998, the trial court denied petitioner's motion to dismiss. Petitioner
moved for reconsideration but said motion was denied. Petitioner then filed with
the COMELEC a petition for certiorari contending that respondent RTC acted
without or in excess of jurisdiction or with grave abuse of discretion in not
dismissing private respondent's election protest.
On August 31, 1999, the COMELEC en banc dismissed petitioner's suit. The
election tribunal held that private respondent paid the required filing fee. It also
declared that the defect in the verification is a mere technical defect which should
not bar the determination of the merits of the case. The election tribunal stated that
there was no forum shopping to speak of. ADSTCI

Under the COMELEC Rules of Procedure, a motion for reconsideration of its en

banc ruling is prohibited except in a case involving an election offense. Since the
present controversy involves no election offense, reconsideration is not possible
and petitioner has no appeal or any plain, speedy and adequate remedy in the
ordinary course of law. Accordingly, petitioner properly filed the instant petition
for certiorari with this Court.
On September 21, 1999, we required the parties to maintain the status quo
ante prevailing as of September 17, 1999, the date of filing of this petition.
ISSUE: Whether or not should the election protest should be dismissed
RULING: YES.
Petitioner contends that private respondent's protest should have been dismissed
outright as the latter failed to pay the amount of P300.00 filing fee required under
the COMELEC rules. Petitioner's contention is supported by Section 9, Rule 35 of
the COMELEC Rules of Procedure and corresponding receipts itemized as
follows:
P 368.00 — Filing fee in EC 31-98, O.R. 7023752;
P 32.00 — Filing fee in EC 31-98, O.R. 7022478;
P 46.00 — Summons fee in EC 31-98, O.R. 7023752;
P 4.00 — Summons fee in EC 31-98, O.R. 4167602;
P 10.00 — Legal Research Fund fee, O.R. 2595144, and;
P 5.00 — Victim Compensation Fund, O.R. 4167979
 ———
P465.00
Close scrutiny of the receipts will show that private respondent failed to pay
the filing fee of P300.00 for his protest as prescribed by the COMELEC rules.
The amount of P368.00 for which OR 7023752 was issued for the Judiciary
Development Fund as shown by the entries in the cash book of the clerk of
court. Thus, only P32.00 with OR 7022478 credited to the general fund could be
considered as filing fee paid by private respondent for his protest. A court acquires
jurisdiction over any case only upon the payment of the prescribed docket
fee. Patently, the trial court did not acquire jurisdiction over private respondent's
election protest. Therefore, COMELEC gravely erred in not ordering the
dismissal of private respondent's protest case.
Error in the payment of filing fees in election cases is no longer excusable. And the
dismissal of the present case for that reason is, in our view, called for.
Besides, there is another reason to dismiss private respondent's election protest.
We note that the verification of aforesaid protest is defective. In the verification,
private respondent merely stated that he caused the preparation of his petition and
he has read and understood all the allegations therein. Certainly, this is insufficient
as private respondent failed to state that the contents of his election protest are
true and correct of his personal knowledge. Since the petition lacks proper
verification, it should be treated as an unsigned pleading and must be
dismissed.
Further, we find that private respondent did not comply with the required
certification against forum shopping. Private respondent successively filed a
"petition for annulment of the proclamation/exclusion of election return" and an
election protest. Yet, he did not disclose in his election protest that he earlier filed
a petition for annulment of proclamation/exclusion of election returns.
It could be argued that private respondent's petition for annulment of
proclamation/exclusion of election returns was a pre-proclamation case. The
issues raised in that petition pertain to the preparation and appreciation of election
returns and the proceedings of the municipal board of canvassers. But note that
such petition was filed after the proclamation of petitioner as the winning candidate,
thus, the petition was no longer viable, for pre-proclamation controversies may no
longer be entertained by the COMELEC after the winning candidates have been
proclaimed. It might even be claimed with some reason that private respondent,
by resorting to the wrong remedy, abandoned his pre-proclamation case earlier
filed.
Nonetheless, private respondent's belief that he no longer had a pending case
before the COMELEC because he deemed it abandoned upon filing of his protest
is not a valid reason for non-disclosure of the pendency of said pre-proclamation
case. Note that the COMELEC dismissed private respondent's pre-proclamation
case only on July 3, 1998. Before the dismissal, said case was legally still pending
resolution. Similarly, the fact that private respondent's protest was not based on
the same cause of action as his pre-proclamation case is not a valid excuse for not
complying with the required disclosure in the certification against forum shopping.
The requirement to file a certificate of non-forum shopping is mandatory. Failure
to comply with this requirement cannot be excused by the fact that a party is not
guilty of forum shopping. The rule applies to any complaint, petition, application or
other initiatory pleading, regardless of whether the party filing it has actually
committed forum shopping. Every party filing any initiatory pleading is required to
swear under oath that he has not and will not commit forum shopping. Otherwise
we would have an absurd situation, as in this case, where the parties themselves
would be the judge of whether their actions constitute a violation of the rule, and
compliance therewith would depend on their belief that they might or might not
have violated the requirement. Such interpretation of the requirement would defeat
the very purpose of the rule.
Taking into account all the foregoing circumstances in this case, we are persuaded
that respondent Regional Trial Court erred and committed grave abuse of
discretion in failing to dismiss private respondent's election protest against
petitioner. And to reiterate, respondent COMELEC en banc had no jurisdiction to
affirm the refusal of respondent trial court to dismiss private respondent's election
protest.
WHEREFORE, the instant petition is GRANTED. The assailed RESOLUTION of
public respondent COMELEC is hereby ANNULLED AND SET ASIDE. The
temporary restraining order issued by this Court on September 21, 1999, is made
permanent. The Regional Trial Court of Pinamalayan, Oriental Mindoro, Branch
42, is hereby ordered to DISMISS election protest EC No. 31-98. Costs against
private respondent.
NOTE: At the outset, even if not squarely raised as an issue, this Court needs to
resolve the question concerning COMELEC's jurisdiction. Unless properly
resolved, we cannot proceed further in this case.
Section 3, Subdivision C of Article IX of the Constitution reads:
"The Commission on Elections may sit en banc or in two divisions, and
shall promulgate its rules of procedure in order to expedite the 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 decision shall be decided by the
Commission en banc." EIDATc
Thus, in Sarmiento vs. COMELEC 5 and in subsequent cases, 6 we ruled that the
COMELEC, sitting en banc, does not have the requisite authority to hear and
decide election cases including pre-proclamation controversies in the first
instance. This power pertains to the divisions of the Commission. Any decision by
the Commission en banc as regards election cases decided by it in the first
instance is null and void.
As can be gleaned from the proceedings aforestated, petitioner's petition with the
COMELEC was not referred to a division of that Commission but was, instead,
submitted directly to the Commission en banc. The petition for certiorari assails the
trial court's order denying the motion to dismiss private respondent's election
protest. The questioned order of the trial court is interlocutory because it does not
end the trial court's task of adjudicating the parties' contentions and determining
their rights and liabilities as regards each other. In our view, the authority to resolve
petition for certiorari involving incidental issues of election protest, like the
questioned order of the trial court, falls within the division of the COMELEC and
not on the COMELEC en banc. Note that the order denying the motion to dismiss
is but an incident of the election protest. If the principal case, once decided on the
merits, is cognizable on appeal by a division of the COMELEC, then, there is no
reason why petitions for certiorari relating to incidents of election protest should
not be referred first to a division of the COMELEC for resolution. Clearly, the
COMELEC en banc acted without jurisdiction in taking cognizance of
petitioner's petition in the first instance.
Since public respondent COMELEC had acted without jurisdiction in this case, the
petition herein is without doubt meritorious and has to be granted. But in order to
write finis to the controversy at bar, we are constrained to also resolve the issues
raised by petitioner, seriatim.

[G.R. No. 158466. June 15, 2004.]

PABLO V. OCAMPO, petitioner, vs. HOUSE OF

REPRESENTATIVES ELECTORAL TRIBUNAL AND MARIO B.
CRESPO a.k.a. MARK JIMENEZ, respondents.

SANDOVAL-GUTIERREZ, J : p

This is a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure,
as amended, filed by petitioner Pablo V. Ocampo. He alleged that the House of
Representatives Electoral Tribunal (HRET), herein public respondent, committed
grave abuse of discretion in issuing in HRET Case No. 01-024, Pablo Ocampo
vs. Mario "Mark Jimenez" Crespo, the (a) Resolution dated March 27, 2003
holding that "protestant" (herein petitioner) cannot be proclaimed the duly elected
Representative of the 6th District of Manila since being a second placer, he "cannot
be proclaimed the first among the remaining qualified candidates";
and (b) Resolution 3 dated June 2, 2003 denying his motion for reconsideration.
FACTS: On May 23, 2001, the Manila City Board of Canvassers proclaimed
private respondent Mario B. Crespo, a.k.a. Mark Jimenez, the duly elected
Congressman of the 6th District of Manila pursuant to the May 14, 2001 elections.
He was credited with 32,097 votes or a margin of 768 votes over petitioner who
obtained 31,329 votes.
On May 31, 2001, petitioner filed with the HRET an electoral protest against private
respondent, impugning the election in 807 precincts in the 6th District of Manila on
the following grounds: (1) misreading of votes garnered by
petitioner; (2) falsification of election returns; (3) substitution of election
returns; (4) use of marked, spurious, fake and stray ballots; and (5) presence of
ballots written by one person or two persons. The case was docketed as HRET
Case No. 01-024. Petitioner prayed that a revision and appreciation of the ballots
in the 807 contested precincts be conducted; and that, thereafter, he be proclaimed
the duly elected Congressman of the 6th District of Manila.
On June 18, 2001, private respondent filed his answer with counter-
protest vehemently denying that he engaged in massive vote buying. He also
opposed petitioner's allegation that there is a need for the revision and appreciation
of ballots.
After the preliminary conference between the parties on July 12, 2001, the HRET
issued a Resolution limiting the issues to: first, whether massive vote-buying was
committed by private respondent; and second, whether petitioner can be
proclaimed the duly elected Representative of the 6th District of Manila.
Meanwhile, on March 6, 2003, the HRET, in HRET Cases Nos. 01-020,
Bienvenido Abante & Prudencio Jalandoni vs. Mario Crespo, and 01-023,
Rosenda Ann M. Ocampo vs. Mario Crespo, issued Resolutions declaring that
private respondent is "ineligible for the Office of Representative of Sixth District of
Manila for lack of residence in the district" and ordering "him to vacate his
office." Private respondent filed a motion for reconsideration but was denied.
On March 12, 2003, petitioner filed a motion to implement Section 6 of Republic
Act No. 6646, which reads:
"Section 6. Effects of Disqualification Case. — Any candidate who has
been declared by final judgment to be disqualified shall not be voted for,
and the votes cast for him shall not be counted. If for any reason a
candidate is not declared by final judgment before an election to be
disqualified and he is voted for and receives the winning number of votes
in such election, the Court or Commission shall continue with the trial and
 hearing of the action, inquiry or protest and, upon motion of the
complainant or any intervenor, may during the pendency thereof, order
the suspension of the proclamation of such candidate whenever the
evidence of guilt is strong."
Petitioner averred that since private respondent was declared disqualified
in HRET Cases Nos. 01-020 and 01-023, the votes cast for him should not be
counted. And having garnered the second highest number of votes, he
(petitioner) should be declared the winner in the May 14, 2001 elections and
proclaimed the duly elected Congressman of the 6th District of Manila.
On March 26, 2003, private respondent filed an opposition to petitioner's motion to
implement the afore-quoted provision.
On March 27, 2003, the HRET issued a Resolution holding that private respondent
was guilty of vote-buying and disqualifying him as Congressman of the 6th District
of Manila. Anent the second issue of whether petitioner can be proclaimed the duly
elected Congressman, the HRET held:
". . . Jurisprudence has long established the doctrine that a second placer
cannot be proclaimed the first among the remaining qualified
candidates. The fact that the candidate who obtained the highest number
of votes is later declared to be disqualified or not eligible for the office to
which he was elected does not necessarily give the candidate who
obtained the second highest number of votes the right to be declared the
winner of the elective office. . . .”
Petitioner filed a partial motion for reconsideration but was denied. Hence, the
present petition for certiorari.
ISSUE: (1) whether the votes cast in favor of private respondent should not be
counted pursuant to Section 6 of R.A. No. 6646; and (2) whether petitioner, a
second placer in the May 14, 2001 congressional elections, can be proclaimed the
duly elected Congressman of the 6th District of Manila.
RULING: The issues raised are not novel. In Codilla, Sr. vs. De Venecia, we
expounded on the application of Section 6, R.A. No. 6646. There, we emphasized
that there must be a final judgment before the election in order that the votes of a
disqualified candidate can be considered "stray", thus:
"Section 6 of R.A. No. 6646 and section 72 of the Omnibus Election Code
require a final judgment before the election for the votes of a disqualified
candidate to be considered "stray." Hence, when a candidate has not yet
been disqualified by final judgment during the election day and was voted
for, the votes cast in his favor cannot be declared stray. To do so would
amount to disenfranchising the electorate in whom sovereignty resides."
The obvious rationale behind the foregoing ruling is that in voting for a candidate
who has not been disqualified by final judgment during the election day, the people
voted for him bona fide, without any intention to misapply their franchise, and in
the honest belief that the candidate was then qualified to be the person to whom
they would entrust the exercise of the powers of government.
In the present case, private respondent was declared disqualified almost twenty-
two (22) months after the May 14, 2001 elections. Obviously, the requirement
of “final judgment before election" is absent. Therefore, petitioner can not invoke
Section 6 of R.A. No. 6646.
Anent the second issue, we revert back to the settled jurisprudence that the
subsequent disqualification of a candidate who obtained the highest number of
votes does not entitle the candidate who garnered the second highest number of
votes to be declared the winner. As a matter of fact, even as early as 1912, it was
held that the candidate who lost in an election cannot be proclaimed the winner in
the event that the candidate who won is found to be ineligible for the office for
which he was elected.
At any rate, the petition has become moot and academic. The Twelfth Congress
formally adjourned on June 11, 2004. And on May 17, 2004, the City Board of
Canvassers proclaimed Bienvenido Abante the duly elected Congressman of the
Sixth District of Manila pursuant to the May 10, 2004 elections.
WHEREFORE, the petition is hereby DISMISSED.