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…

Magsino versus Tengco

The Case

This is an original action for certiorari with a prayer for a writ of preliminary injunction, brought by Rogelio Magsino and his co-petitioners against Judge Damaso S. Tengco of the Court of First Instance of Batangas and against Wenceslao Vivas. The dispute arose from the November 1967 elections, in which Magsino, an independent, and Vivas, of the Nacionalista Party, were rival candidates for Councilor of Lipa City. The case matters because it draws the line between an averment and an established fact in the correction of election returns, and because it shows the limits of a judge's authority to amend returns on his own initiative.

Procedural History

Three election cases were filed in the Court of First Instance of Batangas, Branch II, all resolved by the respondent judge. In Election Case 1888, Magsino sought a recount of votes in certain precincts; the judge granted a recount for precincts 94 and 100, opened the ballot boxes in open court, counted the votes in his presence, and issued an order directing the board of canvassers to credit Magsino with 42 votes from precinct 100 and 69 votes from precinct 94. On November 27, 1967, the judge motu propio set aside that order, taking note of the rule that copies of statements given to the political parties may not serve as basis for recount. In Election Case 1890, Vivas sought a recount of his votes in precinct 94, claiming 64 votes against the 60 appearing in the returns; the judge denied that petition. In Election Case 1895, all the members of the board of inspectors of precinct 94 petitioned for correction of the returns, asking that Magsino's votes be changed from 61 to 69. On December 6, 1967, the judge granted the board's petition as to Magsino and, on his own, also directed the board of canvassers to credit Vivas with 64 votes instead of 60. Magsino's motion for reconsideration of that portion was denied. Magsino then filed this original petition for certiorari before the Supreme Court, which issued a restraining order and, after the return of Vivas and oral arguments, decided the case on the merits.

Facts

In the November 14, 1967 elections, Rogelio Magsino ran as an independent and Wenceslao Vivas ran under the Nacionalista Party for Councilor of Lipa City. On November 23, 1967, Magsino asked for a recount, averring a discrepancy between the election returns submitted by the Municipal Treasurer to the board of canvassers and the official report of his watcher and the returns furnished the Liberal Party.

On November 24, 1967, the respondent judge granted a recount for precincts 94 and 100, opened the ballot boxes in open court, and counted Magsino's votes in his presence and in the presence of the interested parties. He then ordered the board of canvassers to include 42 votes for Magsino from precinct 100 and 69 votes from precinct 94. On November 27, 1967, however, the judge motu propio set aside that order, noting the rule that copies of statements given to political parties may not serve as basis for recount. Vivas then sought a recount of his own votes in precinct 94, claiming 64 votes against the 60 in the returns, but the judge denied his petition.

On November 30, 1967, all the members of the board of inspectors of precinct 94, including the poll clerk, filed a verified petition asking that the returns be corrected by changing Magsino's votes from 61 to 69, attributing the error to fatigue, lack of sleep, physical exhaustion, and poor lighting, and noting that the error was confirmed in the recount of November 24. On December 6, 1967, the judge granted the board's petition as to Magsino and also directed that Vivas be credited with 64 votes instead of 60, even though the board had not asked for this, reasoning that during the recount Vivas had made of record that he obtained 64 votes. Magsino's motion to eliminate that portion was denied, leading to this petition.

Issues

• Whether or not the respondent judge acted with grave abuse of discretion in ordering the correction of the election returns for precinct 94 by increasing the votes of Magsino from 61 to 69.
• Whether or not the respondent judge acted with grave abuse of discretion in ordering, on his own initiative, the correction of the same returns by increasing the votes of Vivas from 60 to 64.

Applicable Provisions

Section 154 of the Revised Election Code provides:

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.

This provision authorizes a competent court to order the correction of election returns, which is the authority the respondent judge invoked in granting the board's petition as to Magsino.

Ruling

On the first issue, the Court held that the order correcting the returns as to Magsino was well taken and that there was no abuse of discretion. The Court relied on the impressive unanimity of the chairman of the board, the inspectors, and the poll clerk, who all swore that a mistake was committed. The order was in line with Section 154 of the Revised Election Code and with the jurisprudence that correction may be ordered only upon the unanimous consent of all the members of the board. The judge may satisfy himself as to the truth of the inspectors' petition and need not open the ballot boxes to do so; but where, as here, the ballot boxes were actually opened and the recount confirmed the error, the order to amend the returns as to Magsino was more than justified.

On the second issue, the Court held that there was grave abuse of discretion when the judge directed the correction of the returns as to Vivas. Vivas's claim lost potency because the judge, in his order of November 24, 1967, did not make a finding that in the recount the votes tallied for Vivas actually numbered 64. Vivas's own petition for recount stated that his reason was that the ballots were actually read and recorded during the recounting, and the judge echoed this when he said the increased number was made of record by Vivas. The board of inspectors, after the recount, unanimously asked for correction as to Magsino but did not move as to Vivas, and the Court was loathe to tag the board with partiality, none being suggested in the record. To use Vivas's statement as basis for correction was to pass the line which divides averment from established fact. The Court noted that if the entry of 60 votes for Vivas were amended to 64, he would have two votes more than Magsino; otherwise, Magsino would have two votes more than Vivas.

Doctrine

A correction of election returns under Section 154 of the Revised Election Code may be ordered by a competent court only upon the unanimous consent of all the members of the board of inspectors. In exercising its discretion, the court may satisfy itself as to the truth of the inspectors' petition and of the error, and it need not open the ballot boxes to ascertain the truth of their affidavits; but where the ballot boxes are actually opened and the recount confirms the error, the order to amend the returns is more than justified. A candidate's own statement as to the votes he received, made of record during a recount, is a mere averment and not an established fact, and it cannot serve as basis for correcting the returns. Adherence to form over substance is not to be exalted, but neither may a court amend returns as to a candidate who did not petition for correction and whose claimed votes were never established by official recount.

Disposition

The petition for certiorari was granted; the order of the respondent judge of December 6, 1967 in Election Case 1895, insofar as it directed the correction of the election returns with respect to Wenceslao Vivas, was declared null and void, and the restraining order was made permanent, with costs against Vivas.

Remember This

The single line worth memorizing is that to use a candidate's own statement of the votes he received as basis for correcting the returns is to pass the line which divides averment from established fact. Examiners use this case to test the requisites for correction of election returns under Section 154 of the Revised Election Code, particularly the requirement of unanimous consent of the board of inspectors and the limits of a judge's motu propio authority.