EN BANC
[G.R. No. 228301. July 11, 2017.]
MARIFE C. ESTOMAGULANG, petitioner,vs. COMMISSION ON ELECTIONS and ANTONIO T. DURANGO, respondents.
NOTICE
Sirs/Mesdames :
Please take notice that the Court en banc issued a Resolution dated JULY 11, 2017, which reads as follows: AIDSTE
"G.R. No. 228301 (Marife C. Estomagulang, Petitioner, v. Commission on Elections and Antonio T. Durango, Respondents.) — The petitioner assails on certiorari1 the resolution promulgated on September 27, 2016 2 by the Commission on Elections En Banc (COMELEC) affirming the resolution dated October 5, 2015 3 of the COMELEC Second Division declaring respondent Antonio V. Durango as the winner in the October 28, 2013 barangay elections.
Antecedents
The petitioner and Durango vied for the position of Punong Barangay of Bulibulihan, Mabinay, Negros Oriental in the October 28, 2013 elections. After the tally of the ballots, each received 256 votes. The petitioner was proclaimed the winner after the tossing of coins. 4 Durango filed an election protest alleging that, among others, the votes for Durango were considered stray, and that other valid votes were not counted in his favor. 5
After the judicial recount, the Municipal Trial Court of Mabinay, Negros Oriental declared a tie, with each party garnering 263 votes, thus:
WHEREFORE, premises considered, judgment is hereby rendered declaring both protestant Durango and protestee Estomagulang have received equal number of 263 votes for the position of Punong Barangay of Barangay Bulibulihan, Mabinay, Negros Oriental in the last October 28, 2013 barangay election and the winning candidate between the two shall be proclaimed as elected in accordance with Section 72 of the General Instructions on the Conduct of the October 28, 2013 Synchronized Barangay and Sangguniang Kabataan Elections of the Commission on Elections promulgated on August 5, 2013.
SO RESOLVED. 6
The parties filed their respective appeals. The appeals were raffled to the Second Division of the COMELEC. After revalidating the ballots, the Second Division issued a resolution on October 5, 2015 7 declaring Durango the winner with 263 votes while the petitioner garnering 259 votes, to wit:
The summary of votes obtained by the parties is as follows:
|
|
Votes obtained per MTC's appreciation |
No. of valid votes invalidated after the Second Division's appreciation (-) |
No. of invalid votes validated after the Second Division's appreciation (+) |
TOTAL |
|
Durango |
263 |
-1 |
+1 |
263 |
|
Estomagulang |
263 |
-4 |
0 |
259 |
From the foregoing, Durango obtained two hundred sixty-three (263) votes as against Estomagulang's two hundred fifty-nine (259) votes, or a plurality of four (4) votes.
WHEREFORE, the Appeal of Antonio V. Durango is GRANTED while the Appeal of Marife Estomagulang is DISMISSED. The Judgment of the Municipal Trial Court of Mabinay, Negros Oriental ("MTC") dated May 5, 2014 is hereby ANNULLED.
The Barangay Board of Canvassers of Barangay Bulibulijan, Mabinay, Negros Oriental is directed to RECONVENE within five (5) days from receipt hereof and PROCLAIM Antonio V. Durango as the duly elected Punong Barangay of Barangay Bulibulihan in the October 28, 2013 Barangay Elections.
SO ORDERED.8
The petitioner moved for reconsideration, 9 but the COMELEC En Banc denied her motion through the now assailed resolution promulgated on September 27, 2016. 10 The COMELEC En Banc found that the Second Division had appreciated the contested ballots in accordance with existing laws, rules and jurisprudence, as follows: AaCTcI
I. Ballots claimed by Estomagulang
|
Exhibit No. |
Second Division Ruling |
Ground for Reconsideration |
En Banc Ruling |
Net Effect |
|
17, 50 and 51 |
Invalid. In these ballots, the lines for Barangay Kagawad were properly filled up, but the lines for Punong Barangay were left vacant and the words "Marife Estomagulang," "Marife" and "Marfe," respectively, were written above the instructions to the voter, before the words "Mabinay, Negros Oriental 6213." |
Intent Rule, Neighborhood Rule, Idem Sonans Rule |
Second Division RulingAFFIRMED. In Batalla vs. COMELEC, et al., the Supreme Court ruled that the neighborhood rule applies when the vote for Punong Barangay candidate is written on the first line for Barangay Kagawad with the space for Punong Barangay is left vacant. However, it does not apply when the vote is written way off its proper place, such as the above instructions to the voter, while the lines for kagawad were properly filled up. |
0 |
|
54 |
Invalid. The voter wrote "CADILIG, M." on the space for Punong Barangay. There is nothing in the records to support Estomagulang's claim that "Cadilig" was her maiden name. |
Intent Rule |
Second Division RulingAFFIRMED. Furthermore, Section 211 (17) of the OEC provides that "[w]here there are two or more candidates voted for in an office for which the law authorizes the election of only one, the vote shall not be counted in favor of any of them.""Marpy Estemagus" sounds similar to Estomagulang's first name and surname while "toy Dorango" is just a misspelling of "Tony Durango," Durango's nickname and last name, the vote shall not be counted in favor of any of them under Section 211 (17) of the OEC. |
-1 |
II. Ballots objected to by Estomagulang
|
Exhibit No. |
Second Division Ruling |
Ground for Reconsideration |
En Banc Ruling |
Net Effect |
|
1 |
Valid. The voter wrote "Dorang Tote" on the space for Punong Barangay. The written entry is clearly a misspelling of "Durango Tony," the surname and nickname of Durango. This ballot is valid for Durango on the basis of the principle of idem sonans. |
Stray Vote |
Second Division Ruling AFFIRMED. As correctly pointed out by the Second Division "Durango Tony" was just incorrectly written as "Dorang Tote" which, when read, has a sound similar to Durango's surname and nickname. The Second Division correctly counted this vote in favor of Durango based on Idem Sonans Rule under Section 211 (7) of the OEC |
0 |
|
2 |
Valid. The voter wrote "Amtonio Duranggo" on the space for Punong Barangay. The written entry is clearly a misspelling of "Antonio Durango" the surname and nickname of Durango. This ballot is valid for Durango on the basis of the principle idem sonans. |
Stray Vote |
Second Division Ruling AFFIRMED. As correctly pointed out by the Second Division "Amtonio Duranggo" when read, has a sound similar to Durango's first name and surname. The Second Division correctly counted this vote in favor of Durango based on Idem Sonans Rule under Section 211 (7) of the OEC. |
0 |
|
3 |
Valid. The voter wrote "Tone D." on the space for Punong Barangay. The word "Tone" is clearly a misspelling of TonY, while the initial "D" clearly refers to Durango. This ballot is valid for Durango on the basis of the principle of idem sonans and the intent rule. |
Stray Vote |
Second Division Ruling AFFIRMED. "Tone" when read, has a sound similar to "Tony," Durango's registered nickname. The intention of the voter to actually vote for Durango was further bolstered by the fact that "Tone" was accompanied by the initial "D." The Second Division is therefore correct in counting this ballot in favor of Durango based on Intent Rule and Idem Sonans Rule under Section 211 (7) of the OEC. |
0 |
|
4 |
Valid. The voter wrote "Tony Durogo" on the space for Punong Barangay. The written entry is clearly a misspelling of "Tony Durango," Durango's nickname and surname. This ballot is valid for Durango based on the principle of idem sonans. |
Stray Vote |
Second Division Ruling AFFIRMED. "Durogo" when read, has a sound similar to "Durango," Durango's surname. The Second Division is therefore correct in counting this ballot in favor of Durango based on Idem Sonans Rule under Section 211 (7) of the OEC. |
0 |
|
5 |
Valid. The voter wrote "Tony Dubango" on the space for Punong Barangay. The written entry is clearly a misspelling of "Tony Durango," Durango's nickname and surname. This ballot is valid for Durango based on the principle of idem sonans. |
Stray Vote |
Second Division Ruling AFFIRMED. "Dubango" when read, has a sound similar to "Durango," Durango's surname. The Second Division is therefore correct in counting this ballot in favor of Durango based on Idem Sonans Rule under Section 211 (7) of the OEC. |
0 |
|
6 |
Valid. The voter wrote "Toner Durango[,]" on the space for Punong Barangay. The written entry is clearly a misspelling of "Tony Durango," Durango's nickname and surname. This ballot is valid for Durango based on the principle of idem sonans. |
Stray Vote |
Second Division Ruling AFFIRMED. "Toner Durango" when read, has a sound similar to "Tony Durango," Durango's registered nickname and surname. The Second Division is therefore correct in counting this ballot in favor of Durango based on Idem Sonans Rule under Section 211 (7) of the OEC. |
0 |
|
7 |
Valid. The voter wrote "ANTONIO D." on the space for Punong Barangay. The initial "D" clearly refers to Durango. This is valid for Durango under the intent rule. |
Stray Vote |
Second Division Ruling AFFIRMED. In addition, Section 211 (1) of the OEC provides that "[w]here only the first name of a candidate x x x is written, the vote for such candidate is valid, if there is no other candidate with the same first name x x x for the same office." Here, it is undisputed that Durango's first name is "Antonio" and there is nothing in the records which show that there were other candidates for Punong Barangay with the same first name. Further, that "Antonio" is accompanied by the initial "D." clearly bolster the fact that the voter actually intended to vote for Durango. The Second Division is therefore correct in counting this ballot in favor of Durango under the Intent Rule. |
0 |
|
8 |
Valid. The voter wrote "TONY DURANCO." On the space for Punong Barangay. The written entry is clearly a misspelling of "Tony Durango," Duango's nickname and surname. This ballot is valid for Durango based on the principle of idem sonans. |
Stray Vote |
Second Division Ruling AFFIRMED. "TONY DORANCO" when read, has a sound similar to "Tony Durango," Durango's registered nickname and surname. The Second Division is therefore correct in counting this ballot in favor of Durango based on Idem Sonans Rule under Section 211 (7) of the OEC. |
0 |
|
10 |
Valid. The voter wrote "TONI DURARGO." On the space for Punong Barangay. The written entry is clearly a misspelling of "Tony Durango," Durango's nickname and surname. This ballot is valid for Durango based on the principle of idem sonans. |
Stray Vote |
Second Division Ruling AFFIRMED. "TONY DURARGO" when read, has a sound similar to "Tony Durango," Durango's registered nickname and surname. The Second Division is therefore correct in counting this ballot in favor of Durango based on Idem Sonans Rule under Section 211 (7) of the OEC. |
0 |
|
11 |
Valid. The voter wrote "TON D." on the space for Punong Barangay. The initial "D" clearly refers to Durango. This is valid for Durango under the intent rule. |
Stray Vote |
Second Division Ruling AFFIRMED. It is undisputed that "Tony" is Durango's registered nickname. The intention of the voter to actually vote for Durango was further bolstered by the fact that "TONY" was accompanied by the initial "D." The Second Division is therefore correct in counting this ballot in favor of Durango based on the Intent Rule. |
0 |
|
12 |
Valid. While the first name written on the ballot is a bit confusing, still, it can be read as "toni" since the way it is written shows four (4) letters. Also, the surname "Dorango," which is a misspelling of "Durango," is clearly written on the ballot. Following the intent rule, this ballot is valid for Durango. |
Stray Vote |
Second Division Ruling AFFIRMED. The name written in the space for Punong Barangay is "toni Dorango." While this is clearly a misspelling of "Tony Durango," Durango's registered nickname and surname, "toni Dorango" when read, has a sound similar to "Tony Durango." This should be counted also in favor of Durango based on Idem Sonans Rule under Section 211 (7) of the OEC. |
0 |
|
13 |
Valid. The voter wrote "TONY DORANGO." on the space for Punong Barangay. The written entry is clearly a misspelling of "Tony Durango." Durango's nickname and surname. This ballot is valid for Durango based on the principle of idem sonans. |
Stray Vote |
Second Division Ruling AFFIRMED. "DORANGO" when read, has a sound similar to "Durango." The Second Division correctly counted this ballot in favor of Durango based on Idem Sonans Rule under Section 211 (7) of the OEC. |
0 |
|
14 |
Valid. The voter wrote "Antonio V. Durango." on the space for Punong Barangay. This is clearly a vote for Durango. |
Stray Vote |
Second Division Ruling AFFIRMED. The ballot clearly states "Antonio V. Durango" on the space for Punong Barangay. Thus, there is no legal justification why this ballot should not be counted in favor of Durango. |
0 |
|
15 |
Valid. The voter wrote "TONE DONANGO." on the space for Punong Barangay. The written entry is clearly a misspelling of "Tony [Dorango]," Durango's nickname and surname. This ballot is valid for Durango based on the principle of idem sonans. |
Stray Vote |
Second Division Ruling AFFIRMED. "TONE DONANGO" when read, has a sound similar to "Tony Durango," Durango's registered nickname and surname. The Second Division correctly counted this ballot in favor of Durango based on Idem Sonans Rule under Section 211 (7) of the OEC. |
0 |
|
16 |
Valid. The voter wrote "t. dorango." on the space for Punong Barangay. The initial "t" clearly stands for "Tony" while "dorango" is a misspelling of "Durango." This ballot is valid for Durango following the intent rule. |
Stray Vote |
Second Division Ruling AFFIRMED. Indubitably, "dorango" when read, has a sound similar to "Durango." Also, that "dorango" was accompanied by the initial "t" bol[s]ters the fact that the voter actually intended to vote for Durango. |
0 |
|
32-49 |
Valid. There is no striking dissimilarity noted in the entries on these ballots. The inconsistencies in the handwriting used in each of these ballots were merely minor and insignificant, thus, negating the participation of another person in the preparation of the ballot. |
WBT |
Second Division Ruling AFFIRMED. The ballots do not show any shift in style or type of handwriting as to indicate that each of them was written by two persons. Furthermore, the Commission notes the consistency in the manner of writing the following letters:B, E, N, S and Y in Exh. 32;A, E, T in Exh. 33;B, C, E and Y in Exh. 24;A, B, C, D, E, D, and S in Exh. 35;A, D, M, and N in Exh. 36;A, D, N, R, U and V in Exh. 37;J, M, N and S in Exh. 38;B, b, G, g, r, y in Exh. 39;a, e, m, n, s and y in Exh. 40;A, E, and N in Exh. 41;a, g, M, r and y in Exh. 42;A, E, N, R and Y in Exh. 43;A, E, N and G in Exh. 44;A, a, M, N and y in Exh. 45;A, D, E, N, R and Y in Exh. 46;a, C, e, l and n in Exh. 47;a, B, e, n and T in Exh. 48;A, E, G, J, M, N, R, and Y in Exh. 49. |
0 |
|
N |
Valid. The voter wrote "TON. doPAGO" on the 1st line for Sangguniang Barangay, leaving the space for Punong Barangay vacant. The written entry is clearly a misspelling of "Tony Durango," Durangos' nickname and surname. This ballot is valid for Durango based on the principle of idem sonans and neighborhood rule. |
Stray Vote |
Second Division Ruling AFFIRMED. "TON. doPAGO" when read, has a sound similar to "Tony Durango," Durango's registered nickname and surname. Further, the entry is written on the first line for Member of the Sangguniang Barangay.Neighborhood Rule is a settled rule stating that where the name of a candidate is not written in the proper space in the ballot, but is preceded by the name of the office for which he is a candidate, the vote should be counted as valid for said candidate. Such rule is usually applied in consonance with the Intent Rule (emphasis ours) which stems from the principle that in the appreciation of the ballot, the object should be to ascertain and carry into effect the intention of the voter, if it could be determined with reasonable certainty. Thus the Second Division correctly counted this ballot in favor of Durango based on Idem Sonans Rule under Section 211 (7) of the OEC and Neighborhood Rule. (Citations omitted) |
0 |
|
O |
Valid. The voter wrote "toNi dugonko" on the 1st line for Sangguniang Barangay. The written entry is clearly a misspelling of "Tony Durango," Durango's nickname and surname. This ballot is valid for Durango based on the principle of idem sonans and the neighborhood rule. |
Stray Vote |
Second Division Ruling AFFIRMED. "toNi dugonko" when read has a sound similar to "Tony Durango," Durango's registered nickname and surname. |
0 |
|
P |
Valid. The voter wrote "TO D" on the space for Punong Barangay. This is valid for Durango following Section 211 (22) of the OEC, which states that writing of the first letters or syllables of names which the voter does not continue shall not invalidate the ballot unless it clearly appears that they have been deliberately put by the voter to serve as identification marks. Here, "TO D" may stand for the initials of "TONY DURANGO," the nickname and surname of Durango, thus, valid |
Stray Vote |
Second Division Ruling AFFIRMED. As correctly ruled by the Second Division, "TO D" may stand for "Tony Durango." No other evidence was presented to prove that "TO D" was written as an identification mark for the ballot. The Second Division therefore correctly applied Section 211 (22) of the OEC. |
|
From the foregoing, the Commission (En Banc) upholds the findings of the Second Division that Durango obtained 263 votes while Estomagulang only garnered 259 votes. Consequently, Durango is declared as the duly-elected Punong Barangay of Brgy. Bulilbulihan during the 28 October 2013 Barangay Elections.
WHEREFORE, premises considered, the Motion for Reconsideration filed by Marife C. Estomagulang is hereby DENIED. Accordingly, the Resolution of the Second Division promulgated on 5 October 2015 is hereby AFFIRMED.
SO ORDERED.11
Hence, this appeal wherein the petitioner submits the following issues for our consideration, namely:
A. Whether or not the COMELEC's invalidation of Exhibits 17, 50, 51 and "FF", representing Petitioner's four (4) votes, was just and proper; and
B. Whether or not the COMELEC's invalidation of Exhibits "KK", and "1", "3", "N" and "P", representing Private respondent's five (5) vote[s] was just and proper. 12
The petitioner argues that the COMELEC erred when it: (a) invalidated Exhibits 17, 50, 51 and FF by not applying the intent rule and the neighborhood rule; and (b) in overruling the objection against Exhibits KK, 1, 3, N and P and misapplication of the intent rule and the rule of idem sonans.
We DISMISS the petition for certiorari for its lack of merit.
The petition for certiorari is laden with technical defects that by themselves call for its outright dismissal.
Firstly, the petition for certiorari does not state the material dates as required by Section 5, Rule 64 of the Rules of Court that will aid the Court in determining whether it is timely filed. In particular, the petition should state not only the receipt by the petitioner of the September 27, 2016 resolution of the COMELEC En Banc denying her motion for reconsideration, but also the date when she received the October 5, 2015 decision of the Second Division. Said dates would enable the Court to determine the timeliness of the filing of the petition, considering that Section 3 of the same rules specifies that the filing of a motion for reconsideration shall have the effect of interrupting the 30-day reglementary period for the filing of the petition.
Secondly, the petitioner attached mere photocopies of the assailed decision and resolution of the COMELEC. She should have instead attached either the duplicate originals or certified true copies thereof pursuant to Section 5, Rule 64 of the Rules of Court. EcTCAD
Finally, the verification made by the petitioner states that the allegations of the petition were based on her "own knowledge and belief." 13 That is inadequate compliance with the requirement under Section 4, Rule 7 of the Rules of Court that the same should be based on "personal knowledge or based on authentic records." Consequently, the petition remains an unsigned pleading and is to be properly deemed as a mere scrap of paper.
At any rate, the petitioner has not shown in her petition for certiorari the grave abuse of discretion committed by the COMELEC. That omission is fatal. We have to remind that the Court defers to the conclusions of the COMELEC upon matters within its competence. As matters stand, the resolution being assailed was in full accord with relevant rules and prevailing jurisprudence. In Ocate v. Commission on Elections, 14 we upheld the decision of the COMELEC because of the failure of the petitioner therein to show the grave abuse of discretion, thus:
The purpose of a petition for certiorari is to determine whether the challenged tribunal has acted without or in excess of its jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. Thus, any resort to a petition for certiorari under Rule 64 in relation to Rule 65 of the 1997 Rules of Civil Procedure is limited to the resolution of jurisdictional issues.
The COMELEC's conclusion on a matter decided within its competence is entitled to utmost respect. It is not sufficient to allege that the COMELEC gravely abused its discretion. Such allegation should also be justified. In the present case, petitioner failed to justify his allegations of grave abuse of discretion against the COMELEC. We have examined petitioner's submissions and found that the COMELEC did not gravely abuse its discretion. The COMELEC's proceedings were conducted in accordance with the prevailing laws and regulations. The records show that the COMELEC Second Division did not merely rely on the ruling of the trial court. The COMELEC Second Division conducted a reappreciation of the contested ballots and modified the tally of the trial court and its revisors. Unfortunately for petitioner, the COMELEC's modified tally did not change the results of the elections.
ACCORDINGLY, the Court DISMISSES the petition for certiorari for its lack of merit; and ORDERS the petitioner to pay the costs of suit.
The Court further NOTES the Comment (Re: Petition dated November 11, 2016), dated April 17, 2017 filed by the Office of the Solicitor General for the Commission on Elections in compliance with the resolution dated January 10, 2017." Del Castillo and Jardeleza, JJ., on official leave. (adv88)
Very truly yours,
(SGD.) FELIPA B. ANAMAClerk of Court
Footnotes
1. Rule 64 in relation to Rule 65 of the Rules of Court.
2.Rollo, pp. 122-138.
3.Id. at 88-103.
4.Id. at 89.
5.Id. at 24.
6.Id. at 34.
7.Id. at 88-103.
8.Id. at 102-103.
9.Id. at 104-115.
10.Id. at 122-138.
11.Id. at 125-137.
12.Id. at 8.
13.Id. at 14.
14. G.R. No. 170522, November 20, 2006, 507 SCRA 426, 437.