DIMALOMPING MACUD, PETITIONER, VS. COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF LUMBA-BAYABAO, LANAO DEL SUR, AND ALIO­DIN GANI NOOR, RESPONDENTS.

Before Us is a verified
petition praying for the is­suance
of the writs of certiorari, mandamus and prohibition, with an additional prayer
for the immediate issuance of a
writ of preliminary injunction, filed by Dimalomping Macud against the Commission on Elections – hereinafter
referred to as COMELEC -, the Municipal
Board of Canvassers of the Municipality of Lumba-Bayabao,
Lanao del Sur – hereinafter referred to as the Board –
and Aliodin Gani Noor.

Purpose of the action as one for certiorari is to annul: the
resolution of COMELEC of January 10, 1968 sustaining the proclamation of
respondent Noor as Municipal Mayor elect of the abovementioned
municipality made by the Board on December 29, 1967;
of another resolution of COMELEC dated January 18, 1968 denying Macud’s motion for reconsideration
and reiterat­ing its resolution of January 10, and, finally, to declare
void the proclamation mentioned heretofore.

Purpose
of the action as one for prohibition is to restrain respondent Noor from taking oath and/or assuming office as Mayor of Lumba-Bayabao, Lanao del Sur, and, in case he had already taken oath and assumed
office, from discharging the duties thereof.

The action, as one for
mandamus, seeks to compel the Board to take cognizance of the writ of
preliminary in­junction issued by the Court of First Instance of Lanao del Sur, 15th Judicial
District, Branch I, pending reso­lution of the petition for judicial recount
filed therewith by Macud; to reconvene as Board of
Canvassers and make a recanvass on the basis of the
result of said petition for recount.

Upon the filing of the
verified petition We issued a temporary order
restraining respondent Noor from taking oath and/or
assuming office and from further exercising the duties and functions of the
office of Mayor of Lumba-Bayabao, Lanao
del Sur.

From the pleadings filed
by the parties and the documents thereto attached, We
find the following to be the facts neces­sary for an adjudication of the issues
involved:

Macud and Noor were
candidates for the office of Mayor of the Municipality of Lumba-Bayabao,
Lanao del Sur, in the elections held on November 14, 1967.  After the elections the Board met to canvass
the results, but having failed to canvass the votes cast in Precincts 3 and 11,
it made no proclamation of the winners. 
Considering this as violative of its order of
December 12, 1967 directing the members of the Board to canvass the results and
proclaim the winning candidates,
COMELEC, on December 26, 1967, suspended the members of the Board, substituted
them with lawyers employed in its law department, and ordered this new Board to
complete the can­vassing of the election returns and thereafter to proclaim the
winners.

The new Board met for the
above purposes on December 28 and 29 in the Manila office of COMELEC pursuant
to another resolution of the latter of December 21, 1967 changing the venue of
the canvassing in view of the tense conditions pre­vailing in the Municipality
of Lumba-Bayabao. 
During the session of the Board on December 28, 1967, the question arose
as to which copy of the election returns submitted to it corresponding to
Precinct 3 should be used in the canvass. 
After hearing the parties through their representatives so the minutes
of the session show – the Board ruled that the copy of the election returns for
COMELEC should be used because the other copy submitted to it appeared to have
been tampered.  When the Board met again
the following day (De­cember 29), a similar question arose as to which of the
sets of election returns for Precinct 11 submitted to it should be used. Again
the Board decided to use the election returns of said precinct bearing Serial
No. 42721 prepared by the Board of Inspectors under the supervision of Atty.
Adolfo Alagar, representative of COMELEC.

As
a result of the completed canvass, respondent Noor
was proclaimed as Municipal Mayor elect of the Municipality of Lumba-Bayabao on December 29, 1967.  On the same date he took his oath of office,
and assumed office on January 1, 1968.

It is a fact, however, that
on December 30, 1967 Macud filed a motion with
COMELEC for the annulment of the procla­mation of respondent Noor made the previous day. 
At the hearing held in connection
therewith on January 2, 1968, Senator Diokno, as Macud’s counsel, asked for a clarification of the COMELEC
resolution of December 27, 1967 mentioned here­tofore.  In connection therewith COMELEC issued
another reso­lution on that date reiterating “its resolution of December
27, 1967 suspending proclamation of winning candidates for the period of ten
(10) days given in said resolution of De­cember 27, 1967, in connection with
the canvass and procla­mation for local offices in LUMBA BAYABAO, LANAO DEL
SUR, hereby setting aside during the said period of ten (10) days the effects
of any proclamation made, if any, provided that if within the aforestated period no judicial relief is ob­tained, then
the proclamation per canvass made shall stand”.

It is not denied that Macud did not appeal from COMELEC resolutions of December
12 and 27, 1967 nor from that of January 2, 1968.
However, after the issuance of the latter, or more specifically on January 4,
1968, he filed in the Court of First Instance of Marawi
City, Lanao del Sur, a petition for judicial recount and secured from said court a writ of preliminary
injunction restraining the Board from proclaiming the winning candidate for Mayor of Lumba-Bayabao.  Attempts to serve the writ on the Chairman of
the Board, Atty. Lydia Querubin, failed, so on
January 10, 1968, an undated letter of Atty. Mindalano,
as counsel for Macud, – received by COMELEC on
January 6 of the same year – was submitted to said body for consideration, and,
acting upon the same, COMELEC issued on the same date a resolution, the dispositive part of which reads as follows:

“Considering that the ‘appropriate judicial relief’ stated in
the resolution of this Commission dated January 2, 1968, contemplated a
judicial re­lief from the Supreme Court, the Commission, after hearing Atty. Mangorsi Mindalano, RESOLVED to hold that the proclamation made by
the Municipal Board of Canvassers of Lumba-Bayabao, Lanao del Sur, on December 29,
1967 shall stand.”

As Macud’s motion for reconsideration of this
last reso­lution was denied by COMELEC on January 18, 1968, Macud,
in­stead of appealing from the resolution referred to, filed the present triple
petition.

According to petitioner, the issue in this case is whether or not
the COMELEC has the power to order a canvas­sing board to refuse recognition of
a petition for judicial recount filed by an affected candidate pursuant to a CCMELEC
resolution (AS INTERPRETED BY THEM) suspending the proclamation of the winner,
to give opportunity to the aggrieved party to seek appropriate judicial relief, upon the ground that such petition for judicial recount is not
the appropriate remedy but an appeal to the Supreme Court from the previous resolutions
of COMELEC of December 12, December 27, 1967 and January 2, 1968.

On the other hand, respondents contend that the true issue in
this case is whether COMELEC has jurisdiction to suspend the effects of a
proclamation after the party pro­claimed has already assumed office, and
whether or not the phrase “appropriate judicial relief” used in the COMELEC resolutions
meant a petition for judicial recount or an appeal to the Supreme Court from the orders
complained of.

We have held heretofore that when a board of canvassers rejects
an election return on the ground that it is spurious or has been tampered with, the
aggrieved party may elevate the matter to the Commission on Elections for appropriate relief (Ong vs. COMELEC, G. R. No. L-28415,
January 29, 1968), and that, if the Commission sustains the action of the Board of Canvassers,
the aggrieved party may appeal from the corresponding resolution to the Supreme
Court.  The facts stated
heretofore show that Macud failed to appeal not only
from the resolutions of COMELEC of December 12 and 27, 1967 and of January 2,
1968, but also from the one issued on January 10, 1968, which sustained the
proclamation made by the Board on December 29, 1967 by allowing it to stand.  Instead, he re­sorted
to the abovementioned petition for judicial recount which COMELEC did not
consider as the appropriate judicial
relief mentioned in
its aforesaid resolution of January 2,
1968.  Upon the facts appearing
of record, We can not find that, in so doing, COMELEC
had acted without or in excess of its jurisdiction or with grave abuse of
discretion.

Concerning Macud’s contention that
COMELEC should be ordered to take cognizance of – in other words, to respect
-the writ of preliminary injunction issued by the Court of First Instance of Lanao del Sur in the petition for
judicial recount filed therewith, the least that We can say at this time is
that the enforceability of said writ against COMELEC is of doubtful legality,
considering the status and rank of the issuing Court in relation to that of
COMELEC.

HAVING ARRIVED AT THE
FOREGOING CONCLUSIONS, We are constrained
to hold that neither one of the writs prayed for in the verified petition under consideration is proper.  Consequently, the petition for their issuance
is hereby denied, and the
restraining order issued heretofore is set aside.  With costs.

Reyes, J.B.L., (Acting C.J.), Makalintal,
Bengzon, J.P., Sanchez, Ruiz Castro, Angeles, and Fernando, JJ., concur.