2/25/2020 Patoray vs Comelec : 125798 : June 19, 1997 : J.

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2/25/2020 Patoray vs Comelec : 125798 : June 19, 1997 : J. Puno : En Banc

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EN BANC

[G.R. No. 125798. June 19, 1997]

HADJI HAMID LUMNA PATORAY, Petitioner, v. COMMISSION ON

ELECTIONS and TOPAAN D. DISOMIMBA, Respondents.

DECISION

PUNO, J.:

In this petition for certiorari and prohibition, with a prayer for the
issuance of a temporary restraining order (TRO), petitioner Hadji
Hamid Lumna Patoray assails the June 28, 1996 Resolution of the
COMELEC (Second Division) annulling his proclamation as mayor-
elect of Tamparan, Lanao del Sur, and the August 16, 1996 Order of
the COMELEC en banc holding in abeyance the recanvassing of votes
cast in election precinct numbers 16 and 20-A.

The facts. In the May 8, 1995 elections, petitioner HADJI HAMID

LUMNA PATORAY and private respondent TOPAAN D.
DISOMIMBA were the closest rivals for the mayoralty post in the
municipality of Tamparan, Lanao del Sur. The counting of the ballots
showed that petitioner won over private respondent by a slim margin
of twenty-five (25) votes, with petitioner receiving 3,778 votes and
private respondent garnering 3,753 votes.

During the canvass of the election returns, private respondent

objected to the inclusion of four (4) returns from precinct nos. 16,
17, 19 and 20-A. The municipal board of canvassers (MBC) overruled
his objections. Private respondent appealed to the COMELEC.

In its July 12, 1995 Resolution, the COMELEC modified the

decision of the MBC and excluded from the canvass only the two
election returns from precinct nos. 16 and 20-A. With the exclusion
of these returns, the twenty-five (25) votes margin of petitioner
was wiped out, with private respondent now receiving the highest
number of votes at 3,612 and petitioner coming in second with 3,419
votes.

Accordingly, petitioner came to this Court on certiorari1 impugning

the July 12, 1995 Resolution of the COMELEC.

In our En Banc Decision,2 dated October 24, 1995, we noted that

since there was a discrepancy between the taras and the written
figures of the votes received by the candidates in the election return
for precinct 16, the COMELEC (Second Division) should have also
ordered a recount of the ballots or used the Certificate of Votes
cast in precinct no. 16 to determine the true number of votes
obtained by each party, after determining that the ballot box
has not been tampered with pursuant to Section 236 of the
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Omnibus Election Code.3 As to the election return for precinct no.

20-A, we ruled that the COMELEC erred in resorting to the Certificate
of Votes in excluding the return in said precinct. Since the return was
incomplete for it lacked the data as to provincial and congressional
candidates, the applicable provision would be Section 234 of the
Omnibus Election Code which deals with material defects in
election returns. Thus, we ruled that the COMELEC should have
first determined the integrity of the ballot box, ordered the
opening thereof and recounted the ballots therein after
satisfying itself that the integrity of the ballots is intact.4 We
then directed the COMELEC to issue another Order in accordance with
said Decision.

Accordingly, the COMELEC En Banc issued its January 18, 1996

Order5 implementing our Decision. However, without first
ascertaining whether the integrity of the ballots and ballot
boxes are intact, COMELEC immediately ordered the MBC to
reconvene in the COMELEC Office, Manila, as a Special Board of
Election Inspectors and recount the ballots cast in precincts 16 and
20-A, prepare new election returns, enter the new totals of the votes
and then proclaim the winner.

Forthwith, private respondent filed a motion with the COMELEC to

hold in abeyance the recount of the ballots until after it has
determined that the integrity of the ballot boxes and the
ballots therein had been duly preserved pursuant to Sections
234 and 235 of the Omnibus Election Code.

In an Order, dated January 25, 1996, the COMELEC denied said

motion and held that there is no need to preliminarily determine
that the identity and integrity of the ballots therein have been
duly preserved for the recount of votes is not done upon the
initiative of this Commission but upon orders of the Supreme Court.6
This Order was not challenged by private respondent who even
participated in the recount.

Pursuant to COMELECs January 18, 1996 Order, the MBC, acting as

the special Board of Election Inspectors, reconvened on January 25,
1996 at the Comelec Office in Manila to recount the ballots and
recanvass the returns from precinct nos. 16 and 20-A. During the
canvass, private respondent objected to the inclusion of the ballots
from precincts 16 and 20-A on the ground that the election returns
are manufactured, fabricated or not authentic considering that
the election returns include votes or ballots which are
spurious, marked and invalid ballots.7 chanroblesvirtuallawlibrary

The MBC rejected these objections holding that they cannot be

considered in a pre-proclamation case. It proceeded with the
recounting and recanvassing of votes where petitioner obtained a
total of 3,778 votes as against private respondents 3,753 votes. On
January 26, petitioner was proclaimed as the duly-elected
mayor of Tamparan, Lanao del Sur.8 On the same day, private
respondent moved to declare the recount as null and void.9 Instead
of definitively passing upon the issue of whether or not the integrity
of the ballot boxes and ballots for precincts 16 and 20-A was
preserved, and thereafter rule on whether or not the two returns
should be excluded, the COMELEC en banc merely noted10 the
motion in view of petitioners proclamation. On January 30, petitioner
took his oath and assumed the Office of the Mayor of Tamparan.

On February 5, 1996, private respondent filed an election protest

with the RTC of Marawi City. He also filed with the COMELEC (Second
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Division) a petition for the annulment of petitioners

proclamation11on the ground that the MBC did not comply with
Section 20 of R.A. 7166 in failing to rule on his objection during the
canvass.

On June 28, 1996 the COMELEC (Second Division) issued a

Resolution12 granting the petition and annulling petitioners
proclamation. It held that the MBC should have allowed private
respondent to adduce evidence before it ruled on the objections, as
provided under Section 20 of R.A. 7166. It thus concluded that at the
time of the proclamation, private respondents objections were still
pending before the MBC. COMELEC thus directed the MBC to
reconvene and recanvass the two election returns, observing strictly
the requirements of Section 20 R.A. 7166, and proclaim the winner
accordingly.

Petitioner filed a motion for reconsideration13with the COMELEC

en banc alleging that the procedure in R.A. 7166 on pre-proclamation
cases apply only when there is a valid ground for a pre-proclamation
controversy. Petitioner claimed that since the objections raised by
private respondent pertained to the casting and appreciation of
ballots, the proper remedy was an election protest. Hence, private
respondents objection was correctly overruled by the MBC.

On August 1, 1996, the COMELEC en banc issued an order,14 thus:

Pending consideration of the Motion for Reconsideration, the

Commission hereby orders as follows:

1. To direct the parties to maintain the status quo prevailing

prior to the filing of the petition and this motion for
reconsideration;

2. To direct the Municipal Board of Canvassers to reconvene

and recanvass the election returns pertaining to Precinct Nos. 16
and 20-A, strictly observing Section 20 of R.A. 7166;

3. To constitute a new Municipal Board of Canvassers of Tamparan,

Lanao del Sur x x x;

4. To direct the previous Municipal Board of Canvassers of Tamparan

to turn over all election documents pertaining to its canvass to the
new Municipal Board of Canvassers herein created.

SO ORDERED.

On August 13, 1996, private respondent filed a Motion for

Clarification15 with the COMELEC en banc. He pointed that after
the COMELEC Division annulled petitioners proclamation and
ordered a recanvassing of the two returns, petitioner filed a
motion for reconsideration with the en banc. Pending the resolution of
this motion, the en banc, in its August 1 Order, directed the parties
to maintain the status quo prior to the annulment of petitioners
proclamation, yet, at the same time, ordered the recanvassing of the
returns. Private respondent sought to clarify who, in the meantime,
shall act as mayor of Tamparan. He also pointed that the August 1
Order of the en banc was highly questionable considering that by
ordering a recanvass of the returns, the en banc in effect sustained
that portion of the June 28 Resolution of the Division directing a
recount, without resolving in its entirety the motion for
reconsideration regarding the annulment of petitioners proclamation.
He thus urged the COMELEC en banc to first resolve the motion for
reconsideration in its entirety before ordering a recount of the ballots.
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On August 16, 1996, acting on the Motion for Clarification, the

COMELEC en banc issued an Order reversing its August 1 Order and
holding in abeyance the recanvassing of the ballots until the
resolution of petitioners pending motion for reconsideration.

In the meantime, at about 2:30 p.m. of the same date, pursuant to

the August 1 Order16 of the COMELEC en banc, the newly-constituted
MBC reconvened at the session hall of the COMELEC to recanvass the
two election returns. Before the proceedings, however, the MBC and
the candidates received copies of the August 16 Order of the
COMELEC en banc holding in abeyance the reconvening of the MBC
until resolution of petitioners motion for reconsideration. The August
16 Order of COMELEC was issued without giving petitioner a chance
to file his opposition thereto. In fact, petitioners counsel was unaware
of the filing of private respondents Motion for Clarification for he
received a copy of the motion only at about 3:00 p.m. of the same
day. COMELEC, however, claimed that since the MBC was set to
reconvene on August 16, it had no choice but to issue its Order on
the same day suspending the recanvassing and without awaiting
Opposition from petitioner.

In view of the COMELEC Order, the newly-constituted MBC adjourned

its proceedings. The August 16 Order showed on its face that
Commissioner Maambong was on official business but the latter
denied this in a Manifestation and Dissent17 stating that he was not
informed that such Order was the subject of consultation. He
registered his dissent against the August 16 Order since it would not
result in a piecemeal resolution of the case and could be
misinterpreted as a form of flip-flopping on the part of the COMELEC.
Thus, petitioner alleges that the August 16 Order was a falsified
Order and issued by the COMELEC en banc with grave abuse of
discretion.

Hence this petition for certiorari and prohibition.18 chanroblesvirtuallawlibrary

We find the petition impressed with merit.

As correctly noted by the Solicitor General, this petition is a mere

sequel to the earlier case (G.R. No. 120823) between the same
parties which was already decided by this Court on October 24,
1995.19 The petition at bar actually involves a misinterpretation of
our October 24, 1995 decision where we directed the COMELEC to
order a recounting of ballots in precincts 16 and 20-A but only after
determining that the integrity and identity of the ballots and
ballot boxes were preserved, pursuant to Sections 234 and
236 of the Omnibus Election Code. Instead of complying with this
directive, the COMELEC, in its January 18, 1996 Order20 immediately
directed the MBC to reconvene and recount the ballots.

When private respondent filed a motion asking the COMELEC to first

determine whether the integrity of the ballot boxes and ballots were
preserved prior to reconvening of the MBC, COMELEC, in its Order
dated February 25, 1996,21 found no need to preliminarily determine
this issue. The recounting proceeded and private respondent even
participated therein. Hence, the February 25, 1996 Order of
COMELEC became final and executory and with the participation of
private respondent in the recount, he is deemed to have waived his
right to impugn said Order.

We come now to the propriety of the procedure adopted by the

municipal board of canvassers in refusing to consider the objections

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raised by private respondent to the election returns from precincts 16

and 20-A.

Pursuant to Section 20 of R.A. 7166, private respondent filed before

the municipal board of canvassers (MBC) his written objection for the
exclusion of returns for precincts 16 and 20-A, worded as follows:
that the election returns are manufactured, fabricated or not
authentic, considering that the election returns includes votes
on ballots which are spurious, marked and invalid ballots.22
The MBC ruled that this is not a valid objection for a pre-proclamation
case. The COMELEC, however, did not categorically rule whether the
objection is valid in a pre-proclamation case. Instead, the COMELEC
held that the MBC failed to follow the procedure outlined in Section
20 of R.A.7166 when it refused to rule on this objection,
continued with the canvassing and proclaimed petitioner as
the winner.

Section 20 of R.A. 7166 provides for the procedure in the disposition

of contested election returns, thus: When a party contests the
inclusion or exclusion of a return in the canvass, on the grounds
provided under Article XX or Sections 234-236, Article XIX of
the Omnibus Election Code, the board of canvassers shall defer
the canvass of the contested return, and within 24 hours receive the
evidence of the objecting party. Within 24 hours, opposition to the
objection may be made by the other party. Upon receipt of the
evidence, the board of canvassers shall make a ruling thereon.

We find that the MBC did not err in refusing to consider the
objections raised by private respondent during the canvass of the
returns. Section 20 of R.A. 7166 applies only where the objection on
the return being canvassed refers to issues proper in a pre-
proclamation controversy. Under the Omnibus Election Code, pre-
proclamation controversies are limited to: (1) challenges directed
against the composition or proceedings of the board of
canvassers (not the board of election inspectors), or (2)
challenges related to election returns to which a party must have
made specific objections.

In the case at bar, private respondent objected to the two returns on

the ground that the election returns are manufactured, fabricated or
not authentic, considering that the election returns includes
votes on ballots which are spurious, marked and invalid
ballots.23 The objection, as worded, did not challenge the returns,
but was directed primarily at the ballots reflected in the returns. The
issue of whether or not the ballots were manufactured, fabricated or
not authentic involves an appreciation thereof. It is settled that
issues relative to the appreciation of ballots cannot be raised in a pre-
proclamation controversy. Appreciation of ballots is the task of the
board of election inspectors, not the board of canvassers, and
questions related thereto are proper only in election protests.24 chanroblesvirtuallawlibrary

In the case of Abella v. Larrazabal,25 we ruled that the objection

raised before the board of canvassers that certain votes reflected in
certain returns are not valid votes as they should not have been
counted at all is not a valid ground for a pre-proclamation
controversy. It is beyond the competence of the board of
canvassers; neither is it a pre-proclamation issue, and the refusal of
the board of canvassers to consider such objection or rule on the
same is not erroneous.

Thus, in the case at bar, the MBC correctly ruled that private
repondents objections are not proper in a pre-proclamation
controversy. Thus, the procedure outlined in Section 20 of R.A. 7166
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would not apply in the disposition of returns from precincts 16 and

20-A, inclusion of which was objected to by private respondent.

Private respondents recourse now is to proceed with the election

contest pending before the RTC of Marawi City and there raise the
issue relative to the alleged mistake in the appreciation of the ballots
included in the contested election returns.

IN VIEW WHEREOF, the temporary restraining order issued by this

Court against public respondent COMELEC directing it to desist from
ruling on petitioners motion for reconsideration is made permanent.
The June 28, 1996 COMELEC Resolution annulling petitioners
proclamation is reversed and set aside, without prejudice to the final
outcome and resolution of the election protest filed by private
respondent before the RTC of Marawi City. No costs.

SO ORDERED.

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

Bellosillo, Melo, Vitug, Kapunan, Mendoza, Francisco,
Hermosisima, Jr., Panganiban, and Torres, Jr., JJ., concur.

Endnotes:

1 G.R. No. 120823.

2 Rollo, pp. 152-161.
3 Decision, at pp. 6-7; Rollo, at pp. 157-158.
4 Id., at pp. 7-9; Rollo, at pp. 158-160.
5 Rollo, pp. 115-116.
6 Id., at p. 29.
7 Rollo, pp. 30-31.
8 Certificate of Canvass of Votes and Proclamation of the Winning Candidates for Municipal
Officer, Rollo, p. 32.
9 See Resolution, dated June 28, 1996; Rollo, at p. 64.
10 February 13, 1996 Resolution.
11 Rollo, at pp. 35-51.
12 Id., pp. 61-69.
13 Id., pp. 70-75.
14Rollo, pp. 22-23; All the Commissioners signed the Order although Commissioner Julio F.
Desamito added a suggestion that the Motion for Reconsideration be resolve outrightly by the
Commission.
15 Rollo, pp. 77-82.
16 Rollo, pp. 32-33.
17 Rollo, pp. 26-27.
18 During the pendency of this petition, petitioner received a telegram from COMELEC that on
November 28, 1996, it shall promulgate its resolution on petitioners motion for reconsideration
of the annulment of his proclamation. On November 27, petitioner moved for the issuance of a
TRO. On even date, we issued the TRO (Rollo, p. 167) directing COMELEC to cease from
proceeding with the resolution of petitioners motion for reconsideration.
19 Rollo, pp. 152-161.
20 Id., pp. 115-116.
21 Rollo, p. 29.
22 Id., pp. 30-31.
23 Rollo, pp.30-31.
24 Sanchez v. COMELEC, 153 SCRA 67 [1987].
25 180 SCRA 509 [1989].

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