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EN BANC

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

HADJI HAMID LUMNA PATORAY, petitioner, vs. COMMI TOPAAN D. DI OMIM$A, respondents. D!CI PUNO, J.% ION

ION ON !L!CTION "n#

In this petition for certiorari and prohibition, with a prayer for the issuance of a temporary restraining order (TRO , petitioner !ad"i !amid #umna $atoray assai%s the &une '(, )**+ Reso%ution of the CO,E#EC (-econd .i/ision annu%%ing his proc%amation as mayor0e%ect of Tamparan, #anao de% -ur, and the August )+, )**+ Order of the CO,E#EC en banc ho%ding in abeyance the recan/assing of /otes cast in e%ection precinct numbers )+ and '10A2 The facts2 In the ,ay (, )**3 e%ections, petitioner HADJI HAMID LUMNA PATORAY and pri/ate respondent TOPAAN D. DI OMIM$A were the c%osest ri/a%s for the mayora%ty post in the municipa%ity of Tamparan, #anao de% -ur2 The counting of the ba%%ots showed that petitioner won o/er pri/ate respondent by a s%im margin of twenty0fi/e ('3 /otes, with petitioner recei/ing 4,55( /otes and pri/ate respondent garnering 4,534 /otes2 .uring the can/ass of the e%ection returns, pri/ate respondent ob"ected to the inc%usion of four (6 returns from precinct nos2 )+, )5, )* and '10A2 The municipa% board of can/assers (,BC o/erru%ed his ob"ections2 $ri/ate respondent appea%ed to the CO,E#EC2 In its Ju&' 12, 1995 Re(o&u)*on, the CO,E#EC modified the decision of the ,BC and e+,&u#e# from the can/ass on%y the two e%ection returns from precinct nos2 )+ and '10 A2 -*). ).e e+,&u(*on o/ ).e(e 0e)u0n(, the twenty0fi/e ('3 /otes margin of petitioner was wiped out, with pri/ate respondent now recei/ing the highest number of /otes at 4,+)' and petitioner coming in second with 4,6)* /otes2 According%y, petitioner came to this Court on certiorari7)8 impugning the &u%y )', )**3 Reso%ution of the CO,E#EC2 In our En Banc De,*(*on,7'8 #")e# O,)o1e0 22, 1995, we noted that since there was a discrepancy between the 9taras: and the written figures of the /otes recei/ed by the candidates in the e%ection return for precinct )+, the CO,E#EC (-econd .i/ision shou%d ha/e a%so ordered a 0e,oun) o/ ).e 1"&&o)( o0 u(e# ).e Ce0)*/*,")e o/ 3o)e( ,"() *n 40e,*n,) no. 15 )o #e)e06*ne ).e )0ue nu61e0 o/ 7o)e( o1)"*ne# 1' e",. 4"0)', "/)e0 #e)e06*n*n8 ).") ).e 1"&&o) 1o+ ."( no) 1een )"64e0e# 9*). 4u0(u"n) )o e,)*on 2:5 o/ ).e O6n*1u( !&e,)*on Co#e. 748 As to the e%ection return for precinct no2 '10A, we ru%ed that the CO,E#EC erred in resorting to the Certificate of ;otes in e<c%uding the return in said precinct2 -ince the return was incomp%ete for it %ac=ed the data as to pro/incia% and congressiona% candidates, the app%icab%e pro/ision wou%d be e,)*on 2:2 o/ ).e O6n*1u( !&e,)*on Co#e which dea%s with materia% defects in e%ection

returns2 Thus, we ru%ed that the COM!L!C (.ou&# ."7e /*0() #e)e06*ne# ).e *n)e80*)' o/ ).e 1"&&o) 1o+, o0#e0e# ).e o4en*n8 ).e0eo/ "n# 0e,oun)e# ).e 1"&&o)( ).e0e*n "/)e0 (")*(/'*n8 *)(e&/ ).") ).e *n)e80*)' o/ ).e 1"&&o)( *( *n)",)2768 >e then directed the CO,E#EC to issue another Order in accordance with said .ecision2 According%y, the CO,E#EC En Banc issued its J"nu"0' 18, 1995 O0#e0738 imp%ementing our .ecision2 !owe/er, 9*).ou) /*0() "(,e0)"*n*n8 9.e).e0 ).e *n)e80*)' o/ ).e 1"&&o)( "n# 1"&&o) 1o+e( "0e *n)",), COM!L!C *66e#*")e&' o0#e0e# ).e M$C )o 0e,on7ene in the CO,E#EC Office, ,ani%a, as a -pecia% Board of E%ection Inspectors "n# 0e,oun) ).e 1"&&o)( cast in precincts )+ and '10A, prepare new e%ection returns, enter the new tota%s of the /otes and then proc%aim the winner2 ?orthwith, pri/ate respondent fi%ed a 6o)*on with the CO,E#EC )o .o&# *n "1e'"n,e ).e 0e,oun) o/ ).e 1"&&o)( un)*& "/)e0 *) ."( #e)e06*ne# ).") ).e *n)e80*)' o/ ).e 1"&&o) 1o+e( "n# ).e 1"&&o)( ).e0e*n ."# 1een #u&' 40e(e07e# pursuant to -ections '46 and '43 of the Omnibus E%ection Code2 In an O0#e0, #")e# J"nu"0' 25, 1995, the CO,E#EC denied said motion and he%d that there is ;no nee# )o 40e&*6*n"0*&' #e)e06*ne ).") ).e *#en)*)' "n# *n)e80*)' o/ ).e 1"&&o)( ).e0e*n ."7e 1een #u&' 40e(e07e#< for the recount of /otes is not done upon the initiati/e of this Commission but upon orders of the -upreme Court2 7+8 This Order was not cha%%enged by pri/ate respondent who e/en participated in the recount2 $ursuant to CO,E#EC@s &anuary )(, )**+ Order, the ,BC, acting as the specia% Board of E%ection Inspectors, recon/ened on &anuary '3, )**+ at the Come%ec Office in ,ani%a to recount the ba%%ots and recan/ass the returns from precinct nos2 )+ and '10A2 .uring the can/ass, pri/ate respondent ob"ected to the inc%usion of the ba%%ots from precincts )+ and '10A on the ground that;).e e&e,)*on 0e)u0n( "0e 6"nu/",)u0e#, /"10*,")e# o0 no) "u).en)*, ,on(*#e0*n8 ).") ).e e&e,)*on 0e)u0n( *n,&u#e 7o)e( o0 1"&&o)( 9.*,. "0e (4u0*ou(, 6"0=e# "n# *n7"&*# 1"&&o)(.< 758 The ,BC re"ected these ob"ections ho%ding that they cannot be considered in a pre0 proc%amation case2 It proceeded with the recounting and recan/assing of /otes where petitioner obtained a tota% of 4,55( /otes as against pri/ate respondent@s 4,534 /otes2 On J"nu"0' 25, 4e)*)*one0 9"( 40o,&"*6e# "( ).e #u&'>e&e,)e# 6"'o0 o/ T"64"0"n, L"n"o #e& u0 27(8 On the same day, pri/ate respondent mo/ed to dec%are the recount as nu%% and /oid2 7*8 Instead of definiti/e%y passing upon the issue of whether or not the integrity of the ba%%ot bo<es and ba%%ots for precincts )+ and '10A was preser/ed, and thereafter ru%e on whether or not the two returns shou%d be e<c%uded, the CO,E#EC en banc mere%y noted7)18 the motion in /iew of petitioner@s proc%amation2 On &anuary 41, petitioner too= his oath and assumed the Office of the ,ayor of Tamparan2 On ?ebruary 3, )**+, pri/ate respondent fi%ed an e&e,)*on 40o)e() with the RTC of ,arawi City2 !e a%so fi%ed with the CO,E#EC (-econd .i/ision a 4e)*)*on /o0 ).e "nnu&6en) o/ 4e)*)*one0?( 40o,&"6")*on7))8 on the ground that the ,BC did not comp%y with -ection '1 of R2A2 5)++ in fai%ing to ru%e on his ob"ection during the can/ass2 On June 28, 1995 the CO,E#EC (-econd .i/ision issued a Re(o&u)*on7)'8 granting the petition and annu%%ing petitioner@s proc%amation2 It he%d that the ,BC shou%d ha/e a%%owed pri/ate respondent to adduce e/idence before it ru%ed on the ob"ections, as pro/ided under -ection '1 of R2A2 5)++2 It thus conc%uded that at the time of the proc%amation, pri/ate

respondent@s ob"ections were sti%% pending before the ,BC2 CO,E#EC thus directed the ,BC to recon/ene and recan/ass the two e%ection returns, obser/ing strict%y the reAuirements of -ection '1 R2A2 5)++, and proc%aim the winner according%y2 $etitioner fi%ed a 6o)*on /o0 0e,on(*#e0")*on7)48 with the CO,E#EC en banc a%%eging that the procedure in R2A2 5)++ on pre0proc%amation cases app%y on%y when there is a /a%id ground for a pre0proc%amation contro/ersy2 $etitioner c%aimed that since the ob"ections raised by pri/ate respondent pertained to the casting and appreciation of ba%%ots, the proper remedy was an e%ection protest2 !ence, pri/ate respondents ob"ection was correct%y o/erru%ed by the ,BC2 On August ), )**+, the CO,E#EC en banc issued an order,7)68 thusB ;Pen#*n8 ,on(*#e0")*on o/ ).e Mo)*on /o0 Re,on(*#e0")*on, the Commission hereby orders as fo%%owsB 9)2 To direct the parties to 6"*n)"*n ).e ()")u( @uo 40e7"*&*n8 40*o0 )o ).e /*&*n8 o/ ).e 4e)*)*on and this motion for reconsiderationC 9'2 To d*0e,) ).e Mun*,*4"& $o"0# o/ C"n7"((e0( )o 0e,on7ene "n# 0e,"n7"(( the e%ection returns pertaining to $recinct Nos2 )+ and '10A, strict%y obser/ing -ection '1 of R2A2 5)++C 942 To constitute a new ,unicipa% Board of Can/assers of Tamparan, #anao de% -ur < < <C

962 To direct the pre/ious ,unicipa% Board of Can/assers of Tamparan to turn o/er a%% e%ection documents pertaining to its can/ass to the new ,unicipa% Board of Can/assers herein created2 9-O OR.ERE..< On August )4, )**+, pri/ate respondent fi%ed a Mo)*on /o0 C&"0*/*,")*on7)38 with the CO,E#EC en banc2 !e pointed that "/)e0 ).e COM!L!C D*7*(*on "nnu&&e# 4e)*)*one0?( 40o,&"6")*on "n# o0#e0e# " 0e,"n7"((*n8 o/ ).e )9o 0e)u0n(, petitioner fi%ed a motion for reconsideration with the en banc2 $ending the reso%ution of this motion, the en banc, in its August ) Order, directed the parties to maintain the status quo prior to the annu%ment of petitioner@s proc%amation, yet, at the same time, ordered the recan/assing of the returns2 $ri/ate respondent sought to c%arify who, in the meantime, sha%% act as mayor of Tamparan2 !e a%so pointed that the August ) Order of the en banc was high%y Auestionab%e considering that by ordering a recan/ass of the returns, the en banc in effect sustained that portion of the &une '( Reso%ution of the .i/ision directing a recount, without reso%/ing in its entirety the motion for reconsideration regarding the annu%ment of petitioner@s proc%amation2 !e thus urged the CO,E#EC en banc to first reso%/e the motion for reconsideration in its entirety before ordering a recount of the ba%%ots2 On Au8u() 15, 1995, acting on the ,otion for C%arification, the CO,E#EC en banc issued an O0#e0 re/ersing its August ) Order and ho%ding in abeyance the recan/assing of the ba%%ots unti% the reso%ution of petitioner@s pending motion for reconsideration2

In the meantime, at about 'B41 p2m2 of the same date, pursuant to the August ) Order 7)+8 of the CO,E#EC en banc, the new%y0constituted ,BC recon/ened at the session ha%% of the CO,E#EC to recan/ass the two e%ection returns2 Before the proceedings, howe/er, the ,BC and the candidates recei/ed copies of the August )+ Order of the CO,E#EC en banc ho%ding in abeyance the recon/ening of the ,BC unti% reso%ution of petitioner@s motion for reconsideration2 The August )+ Order of CO,E#EC was issued without gi/ing petitioner a chance to fi%e his opposition thereto2 In fact, petitioner@s counse% was unaware of the fi%ing of pri/ate respondent@s ,otion for C%arification for he recei/ed a copy of the motion on%y at about 4B11 p2m2 of the same day2 CO,E#EC, howe/er, c%aimed that since the ,BC was set to recon/ene on August )+, it had no choice but to issue its Order on the same day suspending the recan/assing and without awaiting Opposition from petitioner2 In /iew of the CO,E#EC Order, the new%y0constituted ,BC ad"ourned its proceedings2 The August )+ Order showed on its face that Commissioner ,aambong was on officia% business but the %atter denied this in a 9,anifestation and .issent: 7)58 stating that he was not informed that such Order was the sub"ect of consu%tation2 !e registered his dissent against the August )+ Order since it wou%d not resu%t in a piecemea% reso%ution of the case and cou%d be misinterpreted as a form of f%ip0f%opping on the part of the CO,E#EC2 Thus, petitioner a%%eges that the August )+ Order was a fa%sified Order and issued by the CO,E#EC en banc with gra/e abuse of discretion2 !ence this petition for certiorari and prohibition27)(8 >e find the petition impressed with merit2 As correct%y noted by the -o%icitor Denera%, this petition is a mere seAue% to the ear%ier case (D2R2 No2 )'1('4 between the same parties which was a%ready decided by this Court on October '6, )**327)*8 The petition at bar actua%%y in/o%/es a 6*(*n)e040e)")*on of our October '6, )**3 decision where we directed the CO,E#EC to order a recounting of ba%%ots in precincts )+ and '10A1u) on&' "/)e0 #e)e06*n*n8 ).") ).e *n)e80*)' "n# *#en)*)' o/ ).e 1"&&o)( "n# 1"&&o) 1o+e( 9e0e 40e(e07e#, 4u0(u"n) )o e,)*on( 2:2 "n# 2:5 o/ ).e O6n*1u( !&e,)*on Co#e2 Instead of comp%ying with this directi/e, the CO,E#EC, in its &anuary )(, )**+ Order7'18 immediate%y directed the ,BC to recon/ene and recount the ba%%ots2 >hen pri/ate respondent fi%ed a motion as=ing the CO,E#EC to first determine whether the integrity of the ba%%ot bo<es and ba%%ots were preser/ed prior to recon/ening of the ,BC, CO,E#EC, in its Order dated ?ebruary '3, )**+, 7')8 found 9no need to pre%iminari%y determine: this issue2 The recounting proceeded and pri/ate respondent e/en participated therein2 !ence, the ?ebruary '3, )**+ Order of CO,E#EC became fina% and e<ecutory and with the participation of pri/ate respondent in the recount, he is deemed to ha/e wai/ed his right to impugn said Order2 >e come now to the propriety of the procedure adopted by the municipa% board of can/assers in refusing to consider the ob"ections raised by pri/ate respondent to the e%ection returns from precincts )+ and '10A2 $ursuant to -ection '1 of R2A2 5)++, pri/ate respondent fi%ed before the municipa% board of can/assers (,BC his written ob"ection for the e<c%usion of returns for precincts )+ and '10A, worded as fo%%owsB 9that the e%ection returns are manufactured, fabricated or not authentic, ,on(*#e0*n8 ).") ).e e&e,)*on 0e)u0n( *n,&u#e( 7o)e( on 1"&&o)( 9.*,. "0e (4u0*ou(,

6"0=e# "n# *n7"&*# 1"&&o)(2:7''8 The ,BC ru%ed that this is not a /a%id ob"ection for a pre0 proc%amation case2 The CO,E#EC, howe/er, did not categorica%%y ru%e whether the ob"ection is /a%id in a pre0proc%amation case2 Instead, the CO,E#EC he%d that the ,BC fai%ed to fo%%ow the procedure out%ined in -ection '1 of R2A25)++ when it 0e/u(e# )o 0u&e on ).*( o1Ae,)*on, ,on)*nue# 9*). ).e ,"n7"((*n8 "n# 40o,&"*6e# 4e)*)*one0 "( ).e 9*nne0. -ection '1 of R2A2 5)++ pro/ides for the procedure in the disposition of contested e%ection returns, thusB >hen a party contests the inc%usion or e<c%usion of a return in the can/ass, on ).e 80oun#( 40o7*#e# un#e0 A0)*,&e BB o0 e,)*on( 2:2>2:5, A0)*,&e BIB o/ ).e O6n*1u( !&e,)*on Co#e, the board of can/assers sha%% defer the can/ass of the contested return, and within '6 hours recei/e the e/idence of the ob"ecting party2 >ithin '6 hours, opposition to the ob"ection may be made by the other party2 Epon receipt of the e/idence, the board of can/assers sha%% ma=e a ru%ing thereon2 >e find that the ,BC did not err in refusing to consider the ob"ections raised by pri/ate respondent during the can/ass of the returns2 -ection '1 of R2A2 5)++ app%ies on%y where the ob"ection on the return being can/assed refers to issues proper in a pre0proc%amation contro/ersy2 Ender the Omnibus E%ection Code, pre0proc%amation contro/ersies are %imited toB () cha%%enges directed against the ,o64o(*)*on o0 40o,ee#*n8( o/ ).e 1o"0# o/ ,"n7"((e0( Cno) ).e 1o"0# o/ e&e,)*on *n(4e,)o0(D, or (' cha%%enges re%ated to e&e,)*on 0e)u0n( to which a party must ha/e made specific ob"ections2 In the case at bar, pri/ate respondent ob"ected to the two returns on the ground 9that the e%ection returns are manufactured, fabricated or not authentic, considering ).") ).e e&e,)*on 0e)u0n( *n,&u#e( 7o)e( on 1"&&o)( 9.*,. "0e (4u0*ou(, 6"0=e# "n# *n7"&*# 1"&&o)( 2:7'48 The ob"ection, as worded, did not cha%%enge the returns, but was directed primari%y at the 1"&&o)( ref%ected in the returns2 The issue of whether or not the ba%%ots were manufactured, fabricated or not authentic in/o%/es an appreciation thereof2 It is sett%ed that issues re%ati/e to the appreciation of ba%%ots cannot be raised in a pre0proc%amation contro/ersy2 Appreciation of ba%%ots is the tas= of the board of e%ection inspectors, not the board of can/assers, and Auestions re%ated thereto are proper on%y in e&e,)*on 40o)e()(.7'68 In the case of A1e&&" 7. L"00"E"1"&,7'38 we ru%ed that the ob"ection raised before the board of can/assers that certain 7o)e( 0e/&e,)e# *n ,e0)"*n 0e)u0n( are not /a%id /otes as they shou%d not ha/e been counted at a%% is no) " 7"&*# 80oun# /o0 " 40e>40o,&"6")*on ,on)0o7e0(' 2 It is beyond the competence of the board of can/assersC neither is it a pre0proc%amation issue, and the refusa% of the board of can/assers to consider such ob"ection or ru%e on the same is not erroneous2 Thus, in the case at bar, the ,BC correct%y ru%ed that pri/ate repondent@s ob"ections are not proper in a pre0proc%amation contro/ersy2 Thus, the procedure out%ined in -ection '1 of R2A2 5)++ wou%d not app%y in the disposition of returns from precincts )+ and '10A, inc%usion of which was ob"ected to by pri/ate respondent2 $ri/ate respondent@s recourse now is to proceed with the e%ection contest pending before the RTC of ,arawi City and there raise the issue re%ati/e to the a%%eged mista=e in the appreciation of the ba%%ots inc%uded in the contested e%ection returns2 IN 3I!- -H!R!OF, the temporary restraining order issued by this Court against pub%ic respondent CO,E#EC directing it to desist from ru%ing on petitioner@s motion for reconsideration is made permanent2 The &une '(, )**+ CO,E#EC Reso%ution annu%%ing

petitioner@s proc%amation is re/ersed and set aside, without pre"udice to the fina% outcome and reso%ution of the e%ection protest fi%ed by pri/ate respondent before the RTC of ,arawi City2 No costs2 O ORD!R!D. Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Vitug, Ka unan, Mendo!a, "rancisco, #ermosisima, Jr., Panganiban, and $orres, Jr., JJ., concu