RODERICO VILLAROYA, PETITIONER, VS. COMMISSION ON ELECTIONS, BENEDICTA B. ROA AND CITY BOARD OF CANVASSERS OF CAGAYAN DE ORO, RESPONDENTS.

The issue in this petition is whether or not the COMELEC can
order the examination of the election return of a precinct by retrieving the
same from the ballot box and comparing the same with the statement of votes
issued by the city board of
canvassers in order to verify herein private respondent’s claim that by clerical error her votes therein were
under-tabulated by 57 votes thus giving an erroneous victory margin of 26 votes
to petitioner as a pre-proclamation controversy even if the protestant failed
to raise the issue before the Board of Canvassers during the canvassing.

Petitioner Villaroya and private
respondent Roa were among the congressional
candidates in Cagayan
de Oro City in the May 11, 1987 elections.  The city board of canvassers canvassed and
tabulated the statement of votes coming from 598 precincts.  The tabulation was terminated on May 16, 1987 and reported that Villaroya garnered 38,222 votes, while respondent Roa got a total
of 38,196 votes, with a plurality of 26 votes, in favor of petitioner Villaroya.  Due to
the protest of the lawyers of Roa, Villaroya was not
proclaimed by the Board of Canvassers.

On May 17, 1987,
Roa filed a petition in the COMELEC contesting the
election returns of 7 precincts namely Nos. 100-A (Agusan),
196-B (Carmen), 201 (Carmen), 213 (Cugman), 262 (Patag), 234 (Nazareth)
and 311-A (Macasandig) due to fraud, duress,
falsification and other grounds.  Acting
on the petition, the COMELEC on May
19, 1987 sent a telex to the City Board of Canvassers to suspend
the proclamation of any winning candidate for the city until further orders of
the Commission.

Upon a formal request made by Roa on May 19, 1987, the Board of Canvassers
furnished her on May 21, 1987
a copy of the Statement of Votes (CE Form 27). 
On May 22, 1987, Roa filed with the Board of Canvassers a protest for the
error or mistake in the tabulation of the election returns in voting center No.
302-A.  On May 23, 1987 Roa filed with the Board an amended protest that while the
election returns of the voting center
No. 302-A at Barangay Macalalad
shows a total of 111 votes for Roa and 35 votes for Villaroya, the statement of votes shows that only 54 votes
were credited to Roa and 35 votes for Villaroya, thus depriving Roa of
57 votes; that the mistake was committed by the adoption of the sub-total of Roa of 54 votes in the election return without considering
the first sub-total of 57 votes or a grand total of 111 votes in the same
election return; that because the Board failed to convene and act on the protest and amended protest Roa filed with the Commission on Elections the supplemental
petition praying for the correction of the statement of votes (CE Form 27-A) in
voting center No. 302-A which should be 111 and not 54 only and for her proclamation as the duly elected
congresswoman of Cagayan de Oro
City.  After Villaroya
filed an answer to the supplemental petition, Roa
filed her reply thereto.  The case was
heard by the 2nd division of the Commission. 
On July 8, 1987, an Order was issued which reads as follows:

“ ‘Considering the allegations in the Supplemental Petition, as well as in the answers, and the
arguments adduced during hearing held on June 17, 1987, the Commission (SECOND
DIVISION) hereby specifically directs
the Respondent Board of Canvassers of Cagayan de Oro City:

a)   To reconvene in Cagayan
de Oro City not later than Forty Eight (48) hours
from receipt of this Order;

b)   To verify from the election returns of
Precinct No. 302-A (Macabalan), Cagayan
de Oro City, the actual votes cast for Petitioner and
for private respondent as shown therein; and

c)   The Respondent
City Board is further directed to
proclaim the winner after the above-mentionedverification.^[1]

On July 10,
1987, Villaroya filed with the Commission en banc a motion for reconsideration or appeal from said Order.  Roa filed an
Opposition to said Motion, while Villaroya filed his
rejoinder.  On August
18, 1987, the
Commission en banc issued its decision denying Villaroya’s motion for reconsideration, the dispositive part of which reads as follows:

” ‘WHEREFORE, in view of the
foregoing, the Commission en banc, rules that:

1.  The Motion for Reconsideration filed by
Respondent Roderico Villaroya
is DENIED.  The Commission has
jurisdiction upon this pre-proclamation protest.

2.  The election returns of Precinct No. 302-A Macabalan Cagayan de Oro City be verified to determine
the actual votes cast for Petitioner Benedicta B. Roa and Roderico Villaroya in the
election of May 11, 1987.

3.  There shall be constituted a new
City Board of Canvassers for Cagayan
de Oro City composed of the Provincial Election
Supervisor of Misamis Oriental,
Region X as Chairman and the Assistant City Fiscal of Cagayan de Oro City as
Vice-Chairman, and a lawyer of the Law Department of the Commission on
Elections, Manila as Member.  This Board of Canvassers shall convene immediately for the purpose of verifying the
election return of Precinct No. 302-A (Macabalan)
and, thereafter, completing the canvass of the election returns from the
various election precincts of the lone Congressional District of Cagayan de Oro City, and,
thereafter, proclaim a winning candidate.’ “^[2]

Because only three
commissioners (Haydee Yorac,
Andres Flores and Tomas V. de la Cruz) voted affirmatively while two (Chairman
Ramon H. Felipe, Jr. and Leopoldo L. Africa)
dissented and Commissioner Anacleto D. Badoy, Jr., qualified his vote, on August 19, 1987 Roa filed a motion for clarification and motion for reconsideration of the qualified
vote of Com. Badoy. 
After Villaroya filed his comment on said
motion, on Sept. 3, 1987 Com. Badoy issued
his clarification in effect joining the three commissioners who voted for the
verification of the election return in Precinct No. 302-A (Macabalan) only.

Upon instruction of
Chairman Felipe, Jr. the new Board convened at Cagayan
de Oro City on Sept. 5 and 6, 1987 and after
verification of the election return in Precinct No. 302-A (Macabalan) showing
that Roa
obtained 111 votes and not 54 votes only, Roa was
proclaimed the duly elected congresswoman of Cagayan
de Oro City with a margin of 31 votes over Villaroya.

In the meanwhile on Sept.
7, 1987, Villaroya filed in this Court the herein
petition for certiorari, prohibition and mandamus with prayer
for the issuance of a temporary
restraining order or writ of preliminary injunction alleging that Roa not having filed an objection with the Board of
Canvassers during the canvassing, deprived the COMELEC of appellate
jurisdiction to entertain Roa’s petition of Roa for the verification of the election return in question
302-A (Macabalan) for comparison with the statement
of votes and that the question was not proper for a pre-proclamation controversy but in an election contest that should be brought before the house electoral
tribunal.  Villaroya
further alleged that the direct filing of the protest with the COMELEC did not
make it a pre-proclamation controversy; that the decision of the COMELEC of August 18, 1987 authorizing such verification by the Board of
Canvassers was illegal, arbitrary and was issued without jurisdiction or with
grave abuse of discretion and prayed for the issuance of a writ of preliminary injunction and/or restraining order.

Acting on the petition,
the Court on September
8, 1987 required
respondents to comment thereon and in order to maintain the status
quo issued a temporary
restraining order enjoining the COMELEC
from enforcing and implementing the questioned decision.

On September 14, 1987,
petitioner Villaroya filed a supplement to the
petition alleging that on September 6, 1987 the new Board convened at Cagayan de Oro City without
waiting for the lapse of the five
(5) day-period required by the Omnibus Election Code over the objection of
petitioner’s counsel to defer the canvassing until September 9, 1987 and the
motion to disqualify Alejandra Barbac
and Casiano Gamotin, Jr. as
chairman and vice-chairman respectively; that copy of a telegram of the COMELEC on September 6, 1987 to said Board not to proceed with the
implementation of the COMELEC decision until after September 8,
1987, was delivered to the son of canvassing board chairman Atty. Barbac who refused
to receive the same; that a long distance call of Atty. Horacio
Apostol, manager of the law department of the COMELEC
to Atty. Barbac was
not entertained by Barbac who hanged up the receiver of the telephone; that said board proceeded by
breaking the padlock of the door of the storeroom containing the ballot boxes
and removing the ballot box containing the election return for Precinct No.
302-A (Macabalan),
then they broke its padlocks and retrieved the election return therefrom after which Roa was
proclaimed; that Speaker Ramon Mitra, having learned
of the COMELEC telegram turned down the request of Roa
to assume the post.  Petitioner prayed
for the issuance of another restraining order sought against Roa’s assumption of office, and prayed of the Court to
declare the proclamation of Roa as null and void and
to order the Board to recount the votes in 24 precincts counter protested
by the petitioner, or to order a recount of the votes in all the 598 precincts of Cagayan de
Oro City.

On September
17, 1987 the Court
issued its resolution requiring respondents to comment thereon and Atty. Barbac, Fiscal Gamotin and Atty. Urbano C. Orlando as members of the City Board of
Canvassers to show cause why they should not be held
in contempt of court for disregarding the order issued by this Court on September
8, 1987.  A restraining order was issued enjoining Roa from assuming the seat in the House of Representatives
representing Cagayan de Oro
City and from discharging the duties and function thereof.

Respondent Roa submitted a motion to dissolve the restraining order
and her comment on the supplemental petition. 
Petitioner filed a reply thereto. 
Public respondents submitted their comment.  Petitioner then filed the Opposition to the
motion to dissolve the restraining order and reply to Roa’s
comment.  Asst. Fiscal Gamotin, Jr. submitted his comment, while petitioner
submitted a reply to the public respondents’ comment.  Fiscal Gamotin, thereafter submitted a supplemental comment
while Orlando, election attorney, filed his manifestation.  The case was submitted for resolution after
the court heard the parties on November 10th.

The crux of the case is
whether the COMELEC committed a grave abuse of discretion in ordering the
City Board of Canvassers to verify the election returns of Precinct 302-a (Macabalan) as to the number of votes received by petitioner
Roa as compared with the statement of votes for the
same precinct.

Resolving this issue in the
questioned decision, the COMELEC found and held as follows:

“The crucial question is: 
‘WERE THESE PROTESTS FILED SEASONABLY ON MAY 22 AND 23,1987?’

During the canvassing held by the City Board of Canvassers of Cagayan de Oro City from May 11
to 16, 1987 (when the City Board of Canvassers claimed they completed the
canvass) the said City Board of Canvassers (created) ‘canvassing units’ which tabulated the election returns
of Precinct No. 302-A (Refer to page 3, Supplement to the Motion to Dismiss filed by Respondent Villaroya on June 20, 1987).  Thereafter, the tabulated returns were
recorded in the Statement of Votes prepared by the City Board of Canvassers, Cagayan de Oro City which
reflected votes for Roa and Villaroya
of 54 and 35 respectively.

Because there were several ‘canvassing units’ created by the City
Board of Canvassers, (it was probable) that when Precinct No. 302-A (Macabalan) was, being canvassed, since there were other canvassings going on simultaneously, the watchers of
Petitioner Roa did not become aware of the
discrepancy between the election return and certificate of votes coming from
the Board of Election Inspectors of Precinct 302-A and the recording of the
votes in the Statement of Votes of the City Board of Canvassers.

The discrepancy was discovered ‘only upon receipt of the official
copy of the Statement of Votes on May 21, 1987 which official
copy was obtained only after a formal request therefore dated May 19, 1987 x x x’ (Refer to page 2, III;
Opposition To Ex-Parte Motion To Lift Order of
Suspension of Proclamation filed by Petitioner on June 27, 1987).

Petitioner Roa, thru counsel, reacted expeditiously by filing
the ‘Protest’ and ‘Amended Protest’ (previously quoted herein) on May 22 and
23, 1987 respectively.  (annexes ‘S’ and ‘S-1’).

It is obvious that Petitioner Roa did not
file a protest with the Board of Election Inspectors of Precinct No. 302-A (Macabalan) because the election returns and other records
of Precinct No. 302-A reflected one hundred eleven (111) votes.

Since Petitioner Roa and/or her watchers
knew she garnered one hundred eleven (111) votes in Precinct No. 302-A (Macabalan) it would stretch the credulity of this
Commission to believe that the watchers/lawyers of Petitioner Roa will just keep quiet and allow the recording of only
fifty four (54) votes for their candidate when the Election Return of said
precinct No. 302-A was canvassed.  It is
against any form of reasonable expectation or belief that these watchers/lawyers
of Petitioner Roa who had filed objections and
protests time after time with the City Board of Canvassers of Cagayan de oro City
would now knowingly acquiesce to the wrong entry of votes for Petitioner Roa.

But their reaction was quick and spontaneous when they received the
copy of the Statement of Votes prepared by the City Board of Canvassers on May 21, 1987.  In succession a ‘Protest’ and ‘Amended
Protest’ were filed with the City Board of Canvassers of Cagayan
de Oro City on May 22 and 23, 1987 respectively and
eventually this matter became the subject of the ‘Supplemental Petition’ of May 24, 1987.

It cannot be expected that a person who is unaware of a
defect/discrepancy would just object for no reason at all.  It would be another matter if becoming aware
of the discrepancy, he slept on his rights. 
This did not happen here.

The City Board of Canvassers of Cagayan
de Oro City has consistently claimed that they have
already completed the canvass on May 16, 1987 and that no objections have been
received by the said Board of Canvassers, Cagayan de Oro City, ‘Minutes of the City Board of Canvassers, Cagayan de Oro City’ prepared by Nena S. Yanez, Stenographer and
attested by Sol Matugas, Ed. D., Schools Division
Superintendent, Secretary, City Board of Canvassers, we find the following
entry;

‘Before adjournment (May 16, 1987 – our supply of data) the
Chairman of the City Board of Canvassers announced to the public that on the
following day, May 17, 1987
she will transmit the Certificate of
Canvass for Senatorial Candidates to Manila.

The City Board of Canvassers of Cagayan de Oro
City hereby adjourned the canvassing until
2:00 P.M., Monday, May 18, 1987.’
(underscoring ours) (See Minutes,
Annex ‘DD’, Petition).

Since that time, May 16,
1987, the City Board of Canvassers of Cagayan
de Oro City, had not convened because the Chairman
Atty. Bernardita Cabacungan, had absented
herself and was reported to be in Manila.  This
led to a telegram report of the
Vice-Chairman to the Commission.

Where can Petitioner Roa then file her
case except directly with the Commission? 
The cognizance granted to the Supplemental petition is supported by a
long line of decisions by the Supreme Court beginning with the often quoted ‘Olfato‘ case.

‘It must be observed further, that there is
no plausible reason to prohibit an aggrieved candidate from filing an objection
regarding the election returns directly before the Comelec
itself if the election irregularities that vitiate the integrity of the
election returns are not apparent upon their faces.  What is therefore involved is the original
jurisdiction of the Comelec rather than its appellate
jurisdiction for precisely the objection is filed not before the Board of
Canvassers because the irregularities are not apparent upon the face of the
election returns.’

Olfato
vs. COMELEC

L-52749, 103 SCRA 741

March 31, 1981

The Commission en banc rules, therefore, that the
protest or objection filed by Petitioner Bernardita Roa on May 22 and 23, 1987, after discovery of the
discrepancy in the Statement of Votes for Precinct no. 302-A, Macabalan, was filed seasonably.

In the landmark decision of
the Supreme Court in the case of Cauton vs. COMELEC
(19 SCRA 914) it was enunciated thus:

‘This Court in a line of decisions has
ruled that the Commission on Elections has the power to investigate and act on
the propriety or legality of the canvass of election returns made by the board
of canvassers.  x x
x’

Citing the case of Albano
vs. Arranz, L-19260, January 31, 1962, the Supreme Court thru Justice J.B.L.
Reyes, said:

‘The Commission certainly had the right to
inquire whether or not discrepancies existed between the various copies of
election returns x x x’

Continuing, the Supreme Court said:

‘When the Commission on Elections exercises
this power, the purpose is not for the Commission to help a candidate win the
election but to bring about the canvass of the true results of the elections as
certified by the Board of Election Inspectors in every precinct.  (Underscoring ours) x x
x

Once the Commission on Elections
is convinced that the
election returns in the hands of the
board of canvassers do not constitute
the proper basis in ascertaining the true
result of the elections, it should be
its concern, nay its duty, to order that
the proper basis for the canvass is
obtained or made available.

The Commission en banc finds that the case at bar
falls within the ambit of the above-cited decisions of the Supreme Court.  The Commission, therefore, rules that it has
jurisdiction to give due course to the Petition filed on May 17, 1987 and the
Supplemental Petition filed on May
24, 1987 by the Petitioner Bernardita B. Roa.

The clear and express mandate upon the Commission on Elections to
‘enforce and administer all laws and regulations relative to the conduct of an
election x x x’ (Art. IX, C, 2(1) Constitution of the
Philippines,
1986) is designed to elicit the true and genuine will and choice of the
electorate as expressed through the ballot. 
To this end we have, as a
Commission, dedicated ourselves unequivocably,
without fear or favor.”^[3]

We uphold the questioned COMELEC decision.

The circumstances of this
case are peculiar as the question raised is not as to the
correctness of the election returns but that of the statement of votes taken
from the election returns by the City Board of Canvassers during the
canvassing.  Said error in the statement
of votes was not discovered by the watchers of Roa
during the canvassing and Roa learned of the said
discrepancy of the number of
votes she received in the statement of votes for Precinct No. 302-A (Macabalan) for the first time only on May 21, 1987 when she
received its copy upon her
request to the board showing precisely such discrepancy.  She wasted no time in filing a protest and
amended protest with the City of Board of Canvassers, who never met to consider the same.  Since the old board was not available Roa thus went direct to the COMELEC for the purpose.  Under the Constitution, the COMELEC has the
following powers and functions:

“x        x        x         
x

(1)  
Enforce and administer
all laws and regulations
relative to the conduct of an election, plebiscite, initiative, referendum,
and recall.

(2)   Exercise
exclusive original jurisdiction over all contests relating
to the election returns, and qualifications of all elective regional,
provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials
decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited
jurisdiction.

Decisions, final orders, or rulings of the Commission on election
contests involving elective municipal and barangay
offices shall be final, executory, and not appealable.

Decide, except those involving the right to
vote, all questions affecting elections, including
determination of the number and location of polling places, appointment of
election officials and inspectors, and registration of voters.”^[4]

From the foregoing, it is
clear that the COMELEC has ample power to see to it that the elections are held
in a clean and orderly manner and it may decide all questions affecting the
elections and has original jurisdiction on all matters relating to election
returns,^[5] including the verification of the number of
votes received by opposing candidates in the election returns as compared to
the statement of votes in order to insure that the true will of the people is
known.  Such a clerical error in the
statement of votes can be ordered corrected by the COMELEC.

It is no fault of Roa if she or her representatives failed to file the timely
protest during the canvassing as the error in the statement of votes was not
apparent on its face and/or was not noticed by her watchers.  It was actually discovered only on May 21,
1987 when Roa received a
copy of the statement of votes
she requested from the Board.  No less
than the election inspectors who were assigned to Precinct No. 302-A (Macabalan) attested under oath to the fact that the actual
number of votes received by Roa in said precinct was
111 and not 54.^[6] This is corroborated by the improvised
certificate of votes issued by the election inspectors to the watchers of Roa after the
canvass.^[7] Since there is clear evidence of such
discrepancy between the number of votes tabulated for Roa in the
statement of vote for Precinct No. 302-A (Macabalan)
as compared to the number of votes she actually received during the counting at
the precinct, as hereinabove
explained, it was the duty of
the COMELEC to see to it that this matter should be verified from the election
return as a pre-proclamation controversy. 
It cannot wash its hands
by asking Roa to
bring the matter to the electoral tribunal as an election protest.

Petitioner makes much
capital of the fact that the proclamation of respondent Roa
appears to have been done within the 5-day period after the rendition of the
judgment against the order of the COMELEC to suspend the same.  There is no positive evidence that the
members of the Board of Canvassers defied the order of the COMELEC to suspend
the canvassing and/or that they received such order before they made the
canvass and proclaimed Roa.  What appears is that it was only after they
completed their task that the telegram of the COMELEC to
suspend the canvass was received for transmission by the RCPI in Cagayan de Oro City at 5:20 P.M.
of September 6, 1987.^[8] The verification of the contents of the
election return in Precinct No. 302-A was made from 11:00 A.M.
to 12:50 Noon.  Roa was proclaimed winner at 4:00 P.M. and she took her oath before MTCC Judge Roque
V. Edmilao at 4:40 P.M.^[9]

As to the alleged refusal
of Atty. Barbac to entertain the phone call of Atty. Apostol, Roa has shown that there
was no telephone in the session hall where the canvassing was undertaken.  Moreover, all that Atty. Apostol
said in his affidavit is that “everytime contact
is made at the other end, the telephone
thereat is invariably hung up.^[10]

The true will of the electorate of Cagayan
de Oro City must be upheld.  Roa won by 31 votes
and thus she is entitled to sit as their representative.

The protestation of
petitioner that the election returns in 24 other election precincts should be
examined cannot be given due course as correctly ruled by the COMELEC.  Petitioner
failed to demonstrate that there was a similar discrepancy or error between the
statement of votes and the corresponding
election returns in said precincts.  Much
less can the Court consider the plea of petitioner for a recounting of the votes in
all the 598 precincts?  If at all, petitioner has the remedy of an election protest in the house electoral tribunal.

WHEREFORE, the petition is DISMISSED for lack of
merit.  The restraining orders of September 8, 1987 and September 17, 1987 are hereby
DISSOLVED effective immediately.  This
dismissal is immediately executory.

SO ORDERED.

Tehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,
Feliciano, Padilla, Bidin, Sarmiento,
and Cortes, JJ.,
concur.

^[1]
Pages 470-471, Rollo.

^[2]
Page 472, Rollo.

^[3]
Pages 33-36, Rollo.

^[4]
Section 2(1), (2) and
(3), Article IX, Constitution; underscoring supplied.

^[5]
Section 2, Article IX and (3), Supra.

^[6]
Annex 10 to private respondents’ comment.

^[7]
Annex 10 to private respondents’
comment.

^[8]
Annex 29 to Roa’s
Motion to Dissolve with comments which is the
Certification of the RCPI Manager of Sept. 21, 1987.

^[9]
See Atty. Barbac’s comments.

^[10]
Annex Y, Supplement to the Petition,
Affidavit of Atty. Apostol.