LILIA PEÑA, NENITA TISBE, RODRIGO GELLE, CARLOS LEYNES AND ROGELIO MAGSINO, PETITIONERS, VS. HON. DAMASO S. TENGCO, JUDGE, BRANCH II, COURT OF FIRST INSTANCE OF BATANGAS, AND WE…

Candidates, amongst others, for Councilor of Lipa
City in the November 14, 1967
elections were petitioner Rogelio Magsino, inde­pendent,
and respondent Wenceslao Vivas
of the Nacionalista Party.

On November 23, 1967, upon the averment that a discrepancy exists
in the number of votes obtained by petitioner Magsino
in the election returns submitted by the Municipal Treasurer of Lipa City to the board of canvassers, on the one hand, and
the official report of Magsino’s watcher duly signed
by all the members of the board of inspectors and the election returns
furnished the Liberal Party, on the other, Magsino
sought a recount of votes in a number of precincts [Election Case 1888, Court
of First Instance of Batangas, Branch II]. On November
24, 1967, respondent judge did the following: He granted a recount of Magsino’s votes solely for precincts 94 and 100; gave
orders that the ballot boxes for said precincts be opened in open court; had
the votes of Magsino actually counted in his (the
judge’s) presence and in the presence of the interested parties; and issued
thereafter a written order directing the board of canvassers “to include
and admit in their record as basis for their canvass that Petitioner, Rogelio Magsino, obtained from Precinct No. 100, 42 votes and from
Precinct No. 94, 69 votes in his favor.” Subsequently, however, i.e., on November 27, 1967, respondent judge,
taking note of the rule that copies of statements given to the political
parties may not serve as basis for recount, motu
propio, set aside his order of November 24, 1967.

On November 25, 1967,
respondent Wenceslao Vivas
likewise petitioned for a recount of the votes he obtained in precinct 94 of Lipa City
[Election Case 1890 of the same court]. His ground there­for
was that “whereas in the ballots actually read and recorded by petitioner
in the course of the recounting conducted by this Court under Election Case No.
1888 on November 24, 1967, he obtained 64 votes in said precinct,” the
returns submitted by the board of election inspectors to the city board of
canvassers showed that he only obtained 60 votes. Respondent judge likewise
denied this petition of Vivas.

Meanwhile, on November 30, 1967, all the members of the board of
election inspectors (which includes the poll clerk) of said precinct 94 went to
court [Election Case 1895, Court of First Instance of Batangas,
Branch II] upon a verified petition with a prayer that the erroneous copies of
the election returns for the precinct aforesaid be ordered corrected by changing
the entry of the votes obtained by petitioner Rogelio Magsino
from 61 to 69 votes. They ascribed the error to fatigue, lack of sleep, and
physical exhaustion coupled with poor lighting. They also aver that in the
recount of November 24, 1967,
in Election Case 1888, the error they committed was confirmed.

But the court, acting on the foregoing petition, on December 6,
1967, issued an order in said Election Case 1895 granting not only the
board’s petition for correction with reference to petitioner Magsino, as prayed for therein, but also
directed the board of canvassers to credit Wenceslao Vivas with 64 votes instead of 60 votes appearing in the
election returns for precinct 94. The court’s reason for directing the
correction as to the votes obtained by Vivas – in
spite of the fact that the board did not petition for this – is that during the
recounting in Election Case 1888, Vivas made
of record “that he obtained 64 votes although this was not
given due consideration during that hearing.”

A move by petitioner Magsino to
reconsider the portion of the order of December
6, 1967 in Election Case 1895 just adverted to, to eliminate therefrom the directive to the board of canvassers to
credit respondent Wenceslao Vivas
with 64 votes instead of 60, was thwarted below.

Offshoot is the present original petition before this Court for
certiorari with a prayer for a writ of preliminary injunction.  We issued a restraining order. Upon the
return of respondent Vivas, and the oral arguments at
the hearing held on December 19, 1967,
the case is now before us for decision on the merits.

1. The order of respondent judge in Election Case 1895
(instituted by all the members of the board of inspectors) directing the
correction of the election returns in precinct 94 by increasing the number of
votes received by petitioner Magsino from 61 to 69,
in our opinion, is well taken.  We
perceive no abuse of discretion on the part of respondent judge.  There is the impressive unanimity on the part
of the Chairman of the board, the inspectors, and the poll clerk – in the
petition sub­scribed and sworn to by all of them – that actually a mistake was
committed.  The order in this respect is
in line with the provisions of Section 154 of the Revised Election Code,^[1]
and the jurisprudence of this Court that correction may be ordered only upon
the unanimous consent of all the members of the board.^[2]
Of course, in the exercise of its discretion whether to grant or deny the
authority to correct mis­takes, a judge may satisfy himself as to the truth of
the inspectors’ petition and of the error.^[3]
The judge need not open the ballot boxes to ascertain the truth of the
inspectors’ affidavits.^[4]
But where, as in this case, the ballot boxes were actually opened and the
recount of the votes for Magsino in fact made and the
error of the inspectors confirmed, the order of the judge to amend the returns
as to said candidate is more than justified.

2. But respondent Wenceslao Vivas in effect argues that it would be unjust to him if
respondent judge’s order of December
6, 1967 be dismembered, such that correction of the returns for
precinct 94 be allowed as to petitioner and denied as to him.  Really, if official recount of the votes for Vivas were actually made and it be an established fact that
Vivas in that precinct obtained 64 votes instead of
60 which appear in the returns, his pose merits serious consideration.  Because, ad­herence to form
over substance is not to be exalted.

But the claim of respondent Vivas that
the votes he garnered in precinct 94 should be increased from 60 to 64 loses
potency on the face of the fact that respondent judge in his order of November
24, 1967 (Case 1888) did not make a finding that in the recount
then made, the votes tallied for Vivas actually
numbered 64.  His own petition for recount
in Election Case 1890 states that his reason for the recount is the fact that
“the ballots were actually read and recorded
petitioner” in the course of the recounting in Election Case
1888.  This statement is echoed by
respondent judge himself in the order of December 6, 1967 in Election Case 1895
when he made the statement therein that during the recounting in Election Case
1888, the increased number of votes of Vivas
“was made of record by him” (Vivas).  It is well to recall at this point that the
board of inspectors after the recount in Election Case 1888 unanimously asked
for a correction of the returns of the votes cast for petitioner Magsino.  But the
same board of inspectors failed to move in reference to the alleged increased
votes of respondent Vivas.  And, we are loathe
to tag the members of the board of inspectors with partiality.  For, none is suggested in the record.  To use as basis for correction of returns, Vivas‘ statement as to the votes he received in precinct
94, is to pass the line which divides averment from estab­lished fact.

There was grave abuse of discretion when respondent judge, in his
order of December 6, 1967,
directed the correction of the returns from precinct 94 insofar as respondent Wenceslao Vivas is concerned, to
increase the number of votes received by said respondent from 60 votes to 64
votes.  Because, as petitioner puts it:
“If the entry of ’60’ votes for herein respondent Wenceslao
Vivas in the Election Return of Precinct No. 94 is
amended to ’64’, he would have 2 votes more than those of herein Petitioner
Rogelio Magsino; otherwise, the latter would have 2
votes more than those of the former.”

For the reasons given, the petition for a writ of
certiorari is granted; the order of respondent judge of December 6, 1967 in
Election Case No. 1895 of the Court of First Instance of Batangas,
Branch II, only insofar as it directs the correction of the election returns
with respect to respondent Wenceslao Vivas, is hereby declared null and void; and the
restraining order heretofore issued herein is hereby made permanent.

Costs against respondent Wenceslao
Vivas.

SO ORDERED.

Concepcion, C.J., Reyes, JBl, Dizon, Makalintal,
Bengzon, Zaldivar, Ruiz Castro,
Angeles, and Fernando, JJ., concur.

^[1]
Section 154 of the Revised Election Code reads: “Alteration in
the state­ment. – After the announcement of the result of the election in
the poll­ing place, the board of inspectors shall not make any alteration or
amendment in any of its statements, unless it be so ordered by a competent
court.”

^[2]
Benitez vs. Paredes and Dizon,
52 Phil. 1, 11; Aguilar vs. Navarro, 55 Phil. 898, 903; Board of
Election Inspectors of Boñgabon vs. Sison, 55 Phil. 914, 918; Lacson vs.
Commission on Elections, L-16261, December 28, 1959; Gumpal
vs. The Court of First Instance of Isabela,
L-16409 and L-16416, November 29, 1960; Astilla vs.
Asuncion, L-22246, February 29, 1964; Javier vs. The Court of First
Instance of Antique, L-24747, February 28, 1966.

^[3] Board of Election Inspectors of Bongabon vs.
Sison, supra, at p. 917; Rabe vs. Commission on Elections, L-16341 and
L-16470, May
25, 1960.

^[4] Rabe vs.
Commission on Elections, supra.