ANTONIO M.

SERRANO
VS.
GALLANT MARITIME SERVICES, INC.

FACTS:

Petitioner Antonio Serrano was hired by respondents Gallant Maritime Services, Inc. and Marlow Navigation
Co., Inc., under a POEA-approved contract of employment for 12 months, as Chief Officer, with the basic
monthly salary of US$1,400, plus $700/month overtime pay, and 7 days paid vacation leave per month.

On the date of his departure, Serrano was constrained to accept a downgraded employment contract upon the
assurance and representation of respondents that he would be Chief Officer by the end of April 1998.

Respondents did not deliver on their promise to make Serrano Chief Officer.

Hence, Serrano refused to stay on as second Officer and was repatriated to the Philippines, serving only two
months and 7 days, leaving an unexpired portion of nine months and twenty-three  days.

Upon complaint filed by Serrano before the Labor Arbiter (LA), the dismissal was declared illegal.

On appeal, the NLRC modified the LA decision based on the provision of RA 8042.

Serrano filed a Motion for Partial Reconsideration, but this time he questioned the constitutionality of the last
clause in the 5th paragraph of Section 10 of RA 8042.

ISSUES:

1. Whether or not the subject clause violates Section 10, Article III of the Constitution on non-impairment of
contracts;

2. Whether or not the subject clause violate Section 1, Article III of the Constitution, and Section 18, Article II
and Section 3, Article XIII on labor as a protected sector.

HELD:

On the first issue.

The answer is in the negative. Petitioner’s claim that the subject clause unduly interferes with the stipulations in
his contract on the term of his employment and the fixed salary package he will receive is not tenable.

The subject clause may not be declared unconstitutional on the ground that it impinges on the impairment
clause, for the law was enacted in the exercise of the police power of the State to regulate a business, profession
or calling, particularly the recruitment and deployment of OFWs, with the noble end in view of ensuring respect
for the dignity and well-being of OFWs wherever they may be employed.

On the second issue.

The answer is in the affirmative.

To Filipino workers, the rights guaranteed under the foregoing constitutional provisions translate to economic
security and parity.

Upon cursory reading, the subject clause appears facially neutral, for it applies to all OFWs. However, a closer
examination reveals that the subject clause has a discriminatory intent against, and an invidious impact on,
OFWs at two levels:

First, OFWs with employment contracts of less than one year vis-à-vis OFWs with employment contracts of
one year or more;

Second, among OFWs with employment contracts of more than one year; and

Third, OFWs vis-à-vis local workers with fixed-period employment;

The subject clause singles out one classification of OFWs and burdens it with a peculiar disadvantage.

Thus, the subject clause in the 5th paragraph of Section 10 of R.A. No. 8042 is violative of the right of
petitioner and other OFWs to equal protection.

The subject clause “or for three months for every year of the unexpired term, whichever is less” in the 5th
paragraph of Section 10 of Republic Act No. 8042 is DECLARED UNCONSTITUTIONAL.

Republic of the Philippines

Supreme Court
Manila
 

SECOND DIVISION

ABOSTA SHIPMANAGEMENT
CORPORATION, G.R. No. 163252
Petitioner,  

  Present:

 
 

  CARPIO, J.,

- versus - Chairperson,

  LEONARDO-DE CASTRO,*

  BRION,

  PERALTA,** and

NATIONAL LABOR RELATIONS PEREZ, JJ.

COMMISSION (FIRST DIVISION) and

**
 ARNULFO R. FLORES,  

Respondents. Promulgated:

   

July 27, 2011

x------------------------------------------------------------------------------------x

 
 

DECISION

BRION, J.:

The petition for review on certiorari1[1] before us seeks the reversal of the resolutions of
the Court of Appeals (CA), dated October 20, 20032[2] and April 6, 2004,3[3] rendered in CA-
G.R. SP No. 66806.

The Facts

Respondent Arnulfo R. Flores entered into a 12-month contract of employment, as radio

officer, with the petitioner Abosta Shipmanagement Corporation (agency) for and in behalf of
Panstar Shipping Co. Ltd. (Panstar) of Busan, South Korea. Under the contract, Flores was to
receive a salary of US$728.00/month for a 48-hour work week, a guaranteed overtime pay of

3
US$439.00 a month, a monthly vacation pay of US$146.00, and a supplemental allowance of
US$33.00 a month.

Flores joined the vessel M/V Morning Charm sometime in June 1997. The Master of the
vessel, Captain B.H. Mun, and Chief Engineer Gowang Gun Lee are from South Korea. Aside
from Flores, there were other Filipino workers on the vessel. On November 29, 1997, Flores
was repatriated due to alleged infractions committed while on board the vessel. In reaction, he
filed a complaint for illegal dismissal on January 13, 1998 against the agency and Panstar.

The Compulsory Arbitration Proceedings

Before the labor arbiter, Flores alleged that in the course of his employment, he was
asked by the Master to coordinate with several crew members who were requesting that they be
allowed to resign or pre-terminate their employment contracts due to the alleged
mismanagement of the vessel. He acted as coordinator as bidden, but was surprised to learn
later that he was one of those whose resignations were accepted. He sought clarification from
the Master, only to be told that he was among the crew members who were considered to have
resigned; hence, his discharge on November 29, 1997.

Upon his return to Manila, he immediately informed the agency that he had been
erroneously included among those who were considered resigned. He was surprised to learn that
he was blamed for having instigated the mass resignation of the Filipino crew. When he tried to
explain his side, the agency told him that the action taken by the Master was final and that it
was not interested in his story.

For their part, the agency and Panstar argued that Flores, while in their employ,
insistently and rudely questioned the crews working schedule, including the propriety of
requiring them to render overtime services. They claimed that Flores instigated the crew to
rebel against the authority of the Master, under the guise of questioning social security and
income tax deductions. As a result, the crew members became unruly, arrogant, and impolite,
and were even violent in expressing their views. They even refused to obey the lawful orders of
the Master and the senior officers, thus causing dissension on board the vessel.

The agency alleged that sometime in September 1997, Flores prepared a petition for five
Filipino crew members from the engine department, demanding the ouster of 1 st Assistant
Engineer Rodolfo Escarola, reportedly for incompetence and inefficiency; they threatened mass
resignation. To create further unrest and dissatisfaction, Flores induced Sofronio Tibay, Herman
Sebuando, Primitive Ferrer and Raymundo Angel, of the same department, to write a letter to
the ship management that they would be taking their emergency leaves, one after the other, in
November 1997. They charged the vessel officers of mismanaging the crew. When confronted
about the letter, however, they denied most of the letters contents, pointing to Flores as the
author of the letter. At Flores instigation, the crew members threatened to disembark without
waiting for their replacements. The Master asked them to work for a less drastic solution, but
they maintained their threat.

In light of the growing unrest on board the ship and Flores negative work attitude, the
Master, Capt. B.H. Mun, asked Flores to explain why he should not be administratively
sanctioned for (1) disrespecting his superior officers through his unruly, discourteous, impolite
and violent behavior; (2) inciting the crew to commit insubordination and engaging in an
activity which tends to create discontent among the crew or to destroy harmonious relations
with the principal; and (3) inefficiency and other infractions, specifically: (a) staying at his
quarters most of the time while on duty, leaving unattended the messages from the charterer or
from the Panstar office; (b) revealing confidential messages to the crew without the Masters
permission; and (c) insubordination.

According to the agency and Panstar, Flores became enraged after he was informed of the
charges, but could only vehemently deny the accusations. The Master then decided to separate
Flores from the service as the former was convinced that the charges were well-founded. The
agency and Panstar claimed that Flores was paid his overtime pay, salary for November 1997,
and accrued vacation leave pay.

 
 In a decision dated August 20, 1999,4[4] Labor Arbiter Adolfo C. Babiano dismissed the
complaint for lack of merit. He found that the evidence the agency and Panstar presented were
convincing enough to prove that Flores was a serious threat to the safety of the vessel and its
crew. He noted that Flores failed to refute the agencys and Panstars allegations that he incited
the crew to rebel against the authority of the Master and the vessels senior officers. He also
found Flores to have been paid all his monetary entitlements.

On appeal by Flores, the National Labor Relations Commission (NLRC), in its decision
of December 29, 2000,5[5] reversed the labor arbiters ruling. The NLRC found that the agency
and Panstar failed to prove (1) that Flores termination of employment was for a just or
authorized cause and (2) that he was accorded due process. It opined that the main basis for the
dismissal action against Flores was the accusation that he agitated the crew to rebel against the
authorities of M/V Morning Charm, as reported by the Chief Officer (Chief Mate) and the 1 st
Assistant Engineer. The reports, the NLRC believe, did not constitute proof of the validity of
the dismissal.

Moreover, the NLRC noted that Flores was dismissed immediately after the Master
conducted his inquiry on November 17, 1997. It stressed that the Masters so called
administrative inquiry did not satisfy the due process requirements, as Flores was not given an
adequate time for his defense.

Accordingly, the NLRC declared Flores to have been illegally dismissed. It directed the
agency and Panstar to pay Flores, jointly and severally, US$2,184.00 as salary for the
unexpired portion of his contract, P50,000.00 in moral damages, and P25,000.00 in exemplary
damages, plus 10% attorneys fees. The agency moved for reconsideration, but the NLRC denied
the motion in its order of July 18, 2001.6[6] The agency then sought relief from the CA, through
a petition for certiorari under Rule 65 of the Rules of Court.

6
 The CA Ruling

In its first assailed resolution (dated October 20, 2003), 7[7] the CA dismissed the petition
due to insufficiency in substance, 8[8] as the petitioner failed to show that the NLRC committed
grave abuse of discretion in reversing the labor arbiters decision finding Flores dismissal legal.
It sustained the NLRCs conclusion that the dismissal was without a valid cause and that Flores
was denied due process.

The second assailed CA resolution9[9] denied the agencys motion for reconsideration,
prompting the agencys present appeal10[10] to this Court.

The Petitioners Case

Through its submissions the petition itself,11[11] the reply to Flores comment12[12] and
the memorandum13[13] the agency contends that in affirming the NLRC ruling, the CA deviated
from the substantial evidence rule in quasi-judicial proceedings. It argues that Flores employer,
Panstar, met this standard of evidence through the affirmative declarations (reports) of Capt.
B.H. Mun, Chief Officer Alfredo R. de Luna and 1 st Assistant Engineer Rodolfo Escarola that
Flores committed the infractions which led to his dismissal. In the face of these positive
statements, the agency points out that Flores could only offer bare and self-serving denials. It
stresses too that, contrary to the impression of the NLRC and the CA, Flores dismissal was not
only for inciting members of the crew to rebel against the ship officers, but also for other causes

10

11

12

13
such as inefficiency and insubordination or disobedience to the lawful orders of a superior
officer, all prejudicial to the interests of the employer.

The agency insists that Flores contumacious acts, while on board the vessel, constituted a
serious and grave offense which posed a threat to the safety of the crew and the vessel. It adds
that they also reflected Flores arrogance and disobedience to lawful orders/directives of his
superiors, punishable by dismissal pursuant to Section 31 of the Philippine Overseas
Employment Administration Standard Employment Contract.

The agency posits that the CA erred in brushing aside the findings of the labor arbiter. It
calls attention to the labor arbiters observation that Flores failed to refute the agencys allegation
that he incited the crew to rebel against the authority of the Master and the senior officers of the
vessel. Flores did not also refute the charge that to pressure the principal, he induced some
members of the crew to take their emergency leaves one by one and to threaten the principal to
an early sign-off.

The Case for Flores

In his comment14[14] and memorandum,15[15] Flores asks that the petition be dismissed
for raising purely questions of fact and not of law. He contends that the appellate courts
findings are not to be disturbed as they are binding upon this Court and, although there are
certain exceptions to the rule, the petition does not fall within any of the exceptions.16[16]

Flores further submits that aside from raising only questions of fact, the agency failed to
state any special and important reasons to justify the exercise by the Court of its discretionary
appellate jurisdiction in the case.17[17]

14

15

16

17
 

The Courts Ruling

The procedural question

We first resolve the procedural issue of whether we should rule on the petition which, as
Flores contends, raises only questions of fact and not of law. While it is true that the Court is
not a trier of facts, we deem it proper to re-examine the evidence in view of the variance in the
factual findings of the labor arbiter, on the one hand, and of the NLRC and the CA, on the other
hand.

The substantive issue

After a careful and objective study of the parties submissions, we find that there is
substantial evidence on record supporting Flores dismissal. Substantial evidence[, it must be
stressed,] is more than a mere scintilla[. It means such] relevant evidence as a reasonable mind
might accept as adequate to support a conclusion, even if other minds, equally reasonable,
might conceivably opine otherwise.18[18]

The agency, to our mind, succeeded in showing, by substantial evidence, that its principal
(Panstar) had a valid reason for terminating Flores employment. The Master, Capt. B.H. Mun,
decided to dismiss him not only for agitating the crew to rebel against the authorities of the
vessel M/V Morning Charm (which the NLRC considered as the main reason for the
dismissal),19[19] but for several other infractions. As the records show, and as Capt. B.H. Mun
stressed in his letter of November 17, 1997 to the agency management,20[20] Flores was also

18

19

20
charged with inefficiency or neglect of duty, insubordination, insolent and disrespectful
behavior, and other actuations which made him unfit for his position and rank.

Capt. B.H. Muns letter chronicled the bases of the charges lodged against Flores, and its
salient points may be summarized as follows:

1.     Since Flores came on board, he had been complaining about the deduction of
US$40.00 from the crews monthly allotment for the Associated Marine Officers and
Seamens Union of the Philippines (AMOSUP) Fund. To Capt. B.H. Muns knowledge,
the crew members were aware of the deduction. Despite this, Flores prepared a letter
to the International Transport Workers Federation (ITF) and asked the crew members
to sign it. Capt. B.H. Mun asked Flores to explain the contents of the ITF letter to the
crew to avoid any misunderstanding. Instead of pacifying the crew, he stirred them up
and made them even more agitated. Also, despite Capt. B.H. Muns instructions to the
contrary, he prepared letters for the crew containing his own complaints and
sentiments against the company rather than those of the crew.

2.     He revealed to the crew all outgoing and incoming messages, without informing Capt.
B.H. Mun.

3.     Contrary to Capt. B.H. Muns instructions, Flores issued shore-passes to the deck crew
without the permission of the chief mate when the vessel made a port call at Maputo
during its last voyage. The deck crew members were not supposed to go on shore as
cargo was being unloaded at the time. It was a rush operation which had to be
supervised and monitored to avoid damage to the cargo and to be on alert for
stowaways. Flores went on shore nevertheless, with some of the crew to whom he had
issued shore-passes.

 
 4.     Flores entered in his overtime sheet 40-50 hours in excess of the monthly 85 hours,
despite the captains instructions to the crew not to go over 85 hours; Flores did this to
give the impression that he was doing a lot of work.

5.     Flores stayed most of the time at the crew restroom while on duty instead of the radio
room, resulting in the failure, at times, of the charterer and the Panstar Busan Office
to communicate with the vessel by INMARSAT phone. This gave rise to several
complaints, especially from the charterer who was compelled to use two
communication devices the facsimile machine and the telex to send the same
instruction or message to the vessel.

Capt. B.H. Mun considered the foregoing infractions and a few more mentioned in his
letter as indications of Flores efforts to bypass his authority and to act at cross purposes with
him.

It is clear that the letters of Chief Officer De Luna21[21] and 1st Assistant Engineer
Escarola22[22] to Panstars Capt. Chung, detailing how Flores agitated the crew (with charges of
mismanagement of the vessel), and Capt. B.H. Muns letter to the agency all depict a radio
officer who undermined the authority of the shipmaster and the other officers in the guise of
raising labor-management issues on board the vessel. Additionally and as an indication of his
disrespect for the vessels management, as well as his low regard for his work, he neglected his
duties as radio officer and disobeyed Capt. B.H. Muns instructions on several occasions. It is no
surprise that his record of service23[23] yielded a very poor assessment or a no further
employment assessment.

The NLRC grossly erred in rejecting the letters as proof of the validity of Flores
dismissal. It misappreciated the contents of the letters, especially that of Capt. B.H. Mun. They

21

22

23
did not contain a mere accusation of wrongdoing.24[24] The letters made direct affirmative
statements on Flores transgressions, all of which only elicited angry denials from him. More
significantly, he failed to refute the charges in the compulsory arbitration proceedings, as the
labor arbiter emphasized in his decision. This aspect of the case should have been given due
consideration by the NLRC.

In a different vein, Flores questioned the probative value of Capt. B.H. Muns statements,
contending that they are self-serving. He regarded them as pure hearsay which cannot be
considered as evidence. It bears stressing in this regard that under the law, technical rules of
evidence are not binding in administrative proceedings, and the NLRC and the labor arbiters
shall use every and all reasonable means to ascertain the facts in each case speedily and
objectively and without regard to technicalities of law or procedure, all in the interest of due
process.25[25]

Hearsay or not, and by way of reiteration, Capt. B.H. Muns statements cannot just be
ignored, for Flores himself admitted in his position paper, as noted by the labor arbiter, that the
shipmaster asked him to be the coordinator or go-between for several crew members who
wanted to pre-terminate their contract.26[26] It is not disputed that Flores acted as such
coordinator between the crew and Capt. B.H. Mun. Thus, Capt. B.H. Mun specifically asked
him to explain to the crew the deduction of US$40.00 from their monthly allotment for the
AMOSUP Fund so that they would understand and would not to be agitated; instead of doing
this, he stirred up the crew further. In fractured English, Capt. B.H. Mun stated:

Notwithstand he should if necessary take all his way be persuaded and kindly explained
to the crew about misunderstanding ITF contents, but he did has to say nothing of crew
persuasion, more excite with big voices and stir up to the crew to mischief. Two anhalf months
ago, I asked him that dont be helping to crew to be sent company their letters specially, because
his prepared it for crew had writ down his own complaining with unless and reactive stories thru
their letter. He didnt still follow to master instruction thats why help to nice preparing crew letter
according to his say.27[27]
 
 
24

25

26

27
 The fact that Flores acted as coordinator or liaison between the crew and the vessels
officers signifies that Flores did interact with the crew, and had the opportunity to sow
discontent among them towards the shipmanagement. Flores infractions, as mentioned in the
letters, could not have been just pigments of the imagination of Capt. B.H. Mun and the other
officers as Flores insinuated; they were reporting on Flores actual transgressions while on board
the vessel.

Still on the probative value of the letters, Flores wondered why the agency did not present
in evidence the vessels logbook28[28] the official records of a ships voyage that the master is
required by law to keep and where he records the decision/s he made during the voyage,
including all happenings on board.29[29] The existence of a logbook, however, does not at all
preclude the admission and consideration of other accounts of what was happening on board the
vessel, such as, in this instance, the shipmasters report. In Abacast Shipping and Management
Agency, Inc. v. NLRC,30[30] the Court explained -

The [logbook] is a respectable record that can be relied upon to authenticate the charges
filed and the procedure taken against the employees prior to their dismissal. Curiously, however,
no entry from such [logbook] was presented at all in this case. What was offered instead was the
shipmasters report, which was later claimed to be a collation of excerpts from such book.
 
xxxx
 
At that, even if the shipmasters report were to be admitted and considered, a close
reading thereof will show that the private respondents have not committed any act that would
justify the termination of their services before the expiration of the contracts.
 
 

While the shipmasters report was not considered in Abacast Shipping, the reason behind
the rejection was the Courts conclusion that the separated employees had not committed any act
that would justify their dismissal, as their dismissal was based on mere apprehension. This
situation does not obtain in Flores case. As mentioned earlier, Capt. B.H. Muns report made
affirmative statements regarding Flores infractions that led to his dismissal. These infractions
involved not only instigating several crew members to rebel against the vessels authorities and
to disrespect their superiors, but also other transgressions that made him unfit to continue in
employment.

28

29

30
 

Even as he assailed the reports of Capt. B.H. Mun and the other officers as hearsay and
self-serving, Flores failed to controvert the affirmative statements made in the reports. The
reports were submitted on compulsory arbitration. He did not refute the charges, thus leaving
them unrebutted. Capt. B.H. Muns statements, corroborated by the reports of Chief Officer De
Luna and 1st Assistant Engineer Escarola, should have therefore been admitted as sufficient
support for the charges.

On the whole, we are convinced that Flores dismissal was justified on the following
grounds:

1.           Sowing intrigue and dissension on board the vessel M/V Morning Charm;31[31]

2.           Inefficiency and neglect of duty;32[32] and

3.           Insubordination or disobedience of the lawful orders of the shipmaster.33[33]

The NLRCs rulings, disregarding these grounds, do not only constitute errors in the
appreciation of evidence; they were gross errors as they practically disregarded the petitioners
evidence. Hence, the CA erred in not recognizing these errors for what they were grossly
abusive acts that affected the NLRCs exercise of its jurisdiction.

31

32

33
The procedural due process issue

The records bear out that Flores was not given a reasonable opportunity to present his
side vis--vis the charges at the time he was dismissed. As the NLRC noted, Flores was
immediately dismissed after Capt. B.H. Mun conducted his inquiry on November 17, 1997.
Although Flores merely issued a vehement denial, Capt. B.H. Mun should have given him a
reasonable time to explain, if necessary, in writing. While this lapse in procedure cannot negate
the existence of a valid cause for Flores dismissal, as discussed above, the violation of his right
to procedural due process warrants the payment of indemnity in the form of nominal damages,
as we held in Agabon v. National Labor Relations Commission.34[34] Given the circumstances
in the present case, we deem an award of nominal damages to Flores in the amount of
P30,000.00 to be appropriate.

In sum, we find the petition meritorious.

WHEREFORE, premises considered, the resolutions dated October 20, 2003 and April
6, 2004 of the Court of Appeals are SET ASIDE. We DECLARE the dismissal of respondent
Arnulfo R. Flores LEGAL, but AWARD him nominal damages in the amount of P30,000.00
for the violation of his procedural due process rights.

No cost.

SO ORDERED.

Xxx

Republic of the Philippines

SUPREME COURT
Manila

34
 EN BANC

G.R. No. 15792           September 17, 1919

JOSE B. SANCHEZ, petitioner, 
vs.
COURT OF FIRST INSTANCE OF RIZAL, ET AL., respondents.

Ramon Diokno for petitioner. 

No appearance for respondents.

JOHNSON, J.:

This is an original action presented in the Supreme Court for the writ of
prohibition. The important question presented is, May a municipal president, vice-
president and councilmen join in a single election protest as protestants?

The facts upon which that question is based are as follows:

(1) That on the 3d day of June, 1919, an election was held in the municipality of
Caloocan, Province of Rizal, for the purpose of electing municipal officers,
including president, vice-president and councilmen;

(2) That on the 6th day of June, 1919, the municipal board of canvassers of said
municipality, after an examination of the ballots cast, proclaimed that Jose B.
Sanchez had been elected president; that Lucas Bustamante had been elected
vice-president; and that Francisco Cordero, Nicolas Rivera, Prudencio Jacinto,
Domingo Garcia, Esteban Sanchez, BaltazarVictorio, ValentinMacabagdal and
Fausto Carlos, respectively, had been elected councilmen;

(3) That on the 16th day of June, 1919, the respondents mentioned above
(except the Judge of the Court of First Instance) filed a motion of protest in the
Court of First Instance of the Province of Rizal, alleging generally and specifically
that certain frauds and irregularities had been committed during said election,
and prayed that the respondent judge investigate the same in the manner
prescribed by law;

(4) That Jose B. Sanchez, petitioner herein, Lucas Bustamante, Francisco

Cordero, Nicolas Rivera, Prudencio Jacinto, Domingo Garcia, Esteban Sanchez,
BaltazarVictorio, ValentinMacabagdal and Fausto Carlos were made protestees
in said motion of protest;

(5) That all of the candidates for whom votes had been cast at said election were
duly notified of said motion of protest;

(6) That on the 21st day of June, 1919, one of said protestees (the petitioner
herein) presented a demurrer to the motion of protest upon the ground that there
was an improper joinder of parties protestant in the motion of protest. In the
presentation of the demurrer Jose B. Sanchez represented himself alone. There
was no pretension that he represented his coprotestees;
(7) The record does not show what the other protestees have done since they
were given notice of said protest;

(8) Upon a consideration of said demurrer the Hon .Manuel Camus, judge, after a
consideration of the arguments, pro and con, presented by the respective
attorneys — Jose Generoso, for the protestants, and Ramon Diokno, for the
protestee Jose B. Sanchez — overruled said demurrer, to which ruling Jose B.
Sanchez duly expected, and, on the 9th day of September, presented the
present petition in this Court, praying for the writ of prohibition against the
respondent judge to prohibit him from proceeding further in said election protest
for the reason that there was an improper joinder of parties protestant.

Before discussing that particular question, we deem it proper to observe: (a) that
the respondent judge is given jurisdiction to hear and determine municipal
election protests (sec. 479, Act No. 2711); and (b) that, as judge of the Court of
First Instance, he had exclusive and final jurisdiction to try and decide the protest
presented by his correspondents herein.

Admitting, for the purposes of the argument only, that there were persons
improperly joined as protestants, would that fact in itself be sufficient to deprive
the court of its jurisdiction to hear and determine the protest with reference to
those who were properly joined? A demurrer based upon the ground of a "defect
or misjoinder of parties" does not raise the question of jurisdiction of the court to
try the action presented, but, on the contrary, admits the jurisdiction of the court
and its right to try the cause presented, and only tends to show and to bring to
the attention of the court (a) that there are other persons interested in the action
whose presence is absolutely necessary for the proper determination of the
cause, or (b) that there are certain persons included as parties in the action
against whom no cause of action is shown in the complaint or petition to exist. If
the petition shows that there are other parties necessary for the proper decision
of the question presented by the petition, who are not made parties, then a
demurrer is a proper defense to make before an answer is presented. If, upon
the other hand, the petition or complaint shows that certain persons have been
made parties t o the action, who have no interest whatever in the issues
presented then, also, a demurrer is the proper defense to make before an
answer is presented. But in neither case, neither for a failure of necessary parties
nor because unnecessary parties are included, is the court deprived of its
jurisdiction .The court still has jurisdiction to try the questions presented after the
question of defect or misjoinder of parties is settled.

Many times the court might be justified, when a demurrer is presented upon
either of said grounds — defect or misjoinder of parties — to overrule the
demurrer and require the defendants to answer, and to proceed with the action
and await the developments as to proper parties during the trial of the cause, and
then to make such an order in the premises relating to the parties as would be
just and equitable.

When a demurrer is presented for a defect or misjoinder of parties and the court
finds upon examination of the petition that the demurrer is well founded, it is its
duty not to dismiss the action but to order the inclusion in the case of a defect of
parties and the exclusion in the case of a misjoinder of parties.
The foregoing argument would seem to dispose of the present petition. We are
not, however, inclined to rest our conclusions solely upon the grounds
mentioned. The question presented by the petitioner, to wit, May the president,
vice-president and councilmen of a municipality join in an election protest, is one
which requires a special and specific answer.

An examination of the authorities in the different States of the United States,

where comparatively few election protests have been presented, shows that
there is some conflict upon the question herein presented. A reading of the very
few recorded cases relating to the question before us, convinces us that the
sounder doctrine is in favor of permitting all the candidates voted for upon the
same ballot to join in an election protest, if they so desire. (Moock vs. Conrad,
155 Pa., 586.)

In this jurisdiction the question presented has not yet been answered. The
Election Law providing for election protests, renders no assistance further than to
provide the method of commencing an election protest and that"notice to all
candidates voted for" of said protest must be given. We have held in numerous
case that the court in election protest cases acquires no jurisdiction until the
motion of protest is presented and notice given "to all candidates voted for."
(Mayo vs. Court of First Instance of Tayabas and Magbiray, 35 Phil. Rep., 630;
De Castrovs. Salas and Santiago, 34 Phil. Rep., 818; Santos vs. Miranda and
Clemente, 35 Phil. Rep., 643; Flores vs. Zurbito, 37 Phil. Rep., 746; Velasco vs.
Judge of First Instance of Pangasinan and Malong, 35 Phil. Rep., 320.) But we
have not yet decided who may join in the motion of protest. While the law
requires "notice of the protest to all candidates voted for," that requirement has
only been held to apply to "all the candidates voted for" for the particular office for
which the protestants was a candidate. In other words, in case a candidate for
the office of president of a municipality should protest the election, we have
merely required him to notify not all of the candidates who were voted for at the
municipal election but only all of the candidates for the office of president.

In the case of Aquino vs. Judge of First Instance of Cagayan (37 Phil. Rep., 628),
which was a municipal contested election case, we held that the failure to give
notice to "all the candidates voted for" was not fatal to the contest presented by a
defeated candidate for president. In that case the protestant, being a defeated
candidate for president of a municipality, failed to give notice to some of the
candidates voted for, for councilmen. We held that that failure, he having given
notice to all the candidates voted for president, should not affect his right to have
his contest heard and decided. We did not decide in that case what would be the
effect upon the contest presented by the defeated candidates for councilmen, of
the failure of notice to other councilmen voted for. In that case, as in the present,
the president, vice-president and councilmen joined in the protest. Our decision
related only to the effect upon the protest presented by the president of his failure
to give notice to some of the councilmen who had been voted for.

In the case of Grecia vs. Salas (34 Phil. Rep., 948), five different and distinct
election protests had been presented by five different person in the Court of First
Instance. They were each heard separately and each dismissed for the reason
that the petition in each case had been signed by the attorney for the protestant
and not by the protestant himself. Later, a petition was presented in the Supreme
Court in which the parties interested in the said five separate and distinct causes
joined in a petition for mandamus, asking that the lower court be required to
reinstate each of said causes and to proceed to hear the separate protests.
Objection was presented that there was an improper joinder of parties in the
petition in this court. In deciding that case much was said concerning the proper
joinder of parties. Notwithstanding the objection which was made and the
argument against the joinder of parties, this court granted the remedy prayed for
and required the lower court to reinstate each of said protests and to proceed to
try them upon their merit. That case (Grecia vs. Salas, supra) is no authority for
the contention of the petitioner herein.

In the present case twenty-six persons joined in one motion of protest. If the
contention of the petitioner is sustained, then, in order to settle the alleged
irregularities and frauds complained of in the motion of protest, twenty-six
separate and distinct protest must be filed. The alleged frauds and irregularities
mentioned in the motion of protest were committed in practically every precinct of
the municipality. Can there be any legal objection in requiring the court to hear
the proof relating to the frauds and irregularities in each precinct as they affect
the different protestants? To require twenty-six separate and distinct protests to
be filed, in our opinion, would necessarily increase the expense of the
Government and would greatly hamper and molest, not only the parties directly
interested but also the witnesses, who must be called. Practically every witness
would be called twenty-six different times; each item of evidence, or paper, or
document relating to the fraud would have to be examined twenty-six times, and
the testimony recorded an equal number of times. The final adjudication of the
questions presented would thus be greatly delayed; the expenses of the
municipality would be greatly increased; the citizens of the community would be
unnecessarily annoyed for an unneccessary period; and perhaps the conclusion
and final adjudication of the questions presented would be delayed until the
terms of office of those who had been illegally declared elected had fully expired.

The law contemplates that election contests should be concluded as speedily as

possible, to the end that the real will of the voters may be given effect. The
hardship caused by unnecessary delays, and a multiplicity of actions should not
be imposed upon the people of the municipality in cases of this kind without the
very best and sufficient reasons. We see no reason why the judge should not be
permitted and required to hear all of the evidence relating to the alleged frauds
committed and to apply the evidence to the persons affected thereby. Moreover,
no sufficient reasons has been given showing in what manner the respondents
can be deprived of any right or benefit which the law guarantees to them by
permitting the respondents herein in joining in one election protest. If, perchance,
any of their rights or interests may be jeopardized, the trial court will find a way to
protect them. We can see no insurmountable difficulty in requiring the judge to
investigate, decide, and give effect to all the proofs relating to irregularities and
frauds which may be proved in an election contest. We see no greater difficulty in
permitting the joinder of the parties in the present case, arising from a confusion
of issues, than there exists in cadastral surveys and in actions of ejectment when
the oppositors and defendants are numerous.
For all of the foregoing reasons, we are of the opinion and so decide that all of
the candidates for office in a municipality, including the president, vice-president
and councilmen, who have been deprived of their right by irregularities and
frauds in a municipal election, may join as parties protestant in one motion of
protest.

Therefore, the petition is hereby denied, with costs against the petitioner. So
ordered.

Arellano, C.J., Torres, Araullo, Street, Malcolm, Avanceña and Moir, JJ., concur.