JOSE TUBURAN, PETITIONER, VS. FRANK BALLENER AND THE COMMISSION ON ELECTIONS, RESPONDENTS.

In the elections of November 14, 1967 petitioner Jose Tuburan and respondent Frank Ballener were among
the seven candidates for the office of Mayor of the newly created municipality
of President Roxas, Cotabato.  The first can­vass was made on December 13, 1967 by the provincial board
sitting as municipal board of canvassers, and on the basis thereof Ballener was
proclaimed duly elected.  Tuburan,
through counsel, interposed an objection to the proclamation and asked that it
be suspended on the ground that the election return from precinct No. 18 of the
said municipality which was used in the
canvass was on its face tampered with and falsified, the falsification
consisting of the super-imposition in
blue pencil of the name of another candidate, Jose Riveral, over the name of petitioner, thereby crediting to the
former the sixty-four (64) votes obtained by the latter.  In the same manner petitioner’s name was
super­imposed over that of Jose Riveral, making it appear that the former
received only two (2) votes, which was
the number apparently obtained by the latter.

That the tampering and falsification, if true, involved a
sufficient number of votes to affect the results of the election is not
disputed.  The sixty-four (64) votes, if
credited to petitioner, would make him the winner.

The objection was, however, disregarded and Ballener was proclaimed,
for which reason petitioner dispatched a
telegram to the Commission on Elections on December 16, 1967, alleging
the foregoing facts, with a statement that a formal petition would follow.  On December 21, 1967 the petition was
prepared, asking that the canvass and
proclamation of December 13 be annulled and that another canvass be made on the basis of a true and authentic copy of the
election return from precinct No. 18. 
The petition was hand-carried to Manila for filing by a messenger sent
by petitioner, but for some reason was not actually filed until the afternoon
of December 26.  In the meantime, so
petitioner avers, he remained in Cotabato, and failing to receive news about
the fate of his petition and becoming apprehensive that the period for filling
an election protest would expire on December 27, 1967, filed such a protest in the Court of First
Instance of Cotabato in the afternoon of December 26.  The step he took, he alleges in his petition
before us, was a precautionary measure for the protection of his rights.

The petition before the Commission on Elections was heard on
December 28.  The election return used in
the canvass was produced in
evidence and compared by the Commission with the copy in its possession.  The said copy was clean and showed no
erasures or superimpositions.  Also
submitted in evidence were the following:

(1) An indorsement, dated December 15, 1967, by the municipal
treasurer of Kidapawan, Cotabato, acting as deputy of the Commission on
Elections for the newly created municipality of President Roxas, stating that
according to the tally board in precinct No. 18, duly signed by the members of
the board of inspectors, Jose Riveral obtained one (1) vote (not two as indicated in the questioned
return) and petitioner Jose Tuburan obtained sixty-four (64) votes.

(2) A sworn statement of the chairman of the said board of
inspectors attesting to the fact that the original election return for precinct
No. 18, as accom­plished and signed by her and by the ether members, had no
erasures or superimpositions in
blue pencil, particularly that of the name “Riveral” over the name
“Tuburan,” and vice-versa, and that Tuburan obtained sixty-tour (64)
votes in said precinct.

(3) A similar sworn statement of the poll clerk who, like the
chairman, was a public whoa teacher.

(4) A sworn statement of Jose
Riveral himself to the
effect that in precinct No. 18 he obtained only one (1) vote – a fact personally known to him because he copied the results
of the canvassing from the tally board – while Jose Tuburan received sixty-four
votes.

In view of the evidence presented before it the Commission on
Elections, on December 28, 1967, resolved to set aside the proclamation of
respondent Frank Ballener and directed the provincial board of Cotabato, acting
as municipal board of canvassers, “to reconvene and recanvass precinct No.
18 of the said municipality (of President Roxas) using the election returns
copy for the Commission on Elec­tions and thereafter, to proclaim the winning
candidates per canvass made.”

The new canvass was carried out on December 31, 1967.  Petitioner was credited with sixty-four (64)
votes in said precinct and proclaimed elected on the same date.  The next day, January 1, 1968, he took his
oath and assumed the office of Municipal Mayor.

On January 13, 1968 respondent Ballener filed an election-protest
against petitioner in the Court of First Instance of Cotabato.  On January 31, 1968 he filed with the Commission on Elections a motion for
reconsidera­tion of its resolution of December 28 on the ground that the
said body had no jurisdiction to entertain Tuburan’s petition to annul the
proclamation of Ballener, since at the time said petition was filed there was
already a pend­ing election protest instituted by petitioner.

     Petitioner opposed the
motion, but the Commission granted it in a resolution dated February 23, 1968,
giving petitioner, however, a period of 10 days within which “to go to the Supreme Court for
appropriate relief.” Petitioner moved to reconsider but was turned down,
and hence commenced the instant petition for certiorari with preliminary injunc­tion.  The petition was given due course and the
injunction was issued.

 The issued posed by the
parties are two:  (1) whether or not the
Commission on Elections had jurisdiction
to entertain Tuburan‘s petition to annul Ballener’s
proclamation, considering that when it was filed there was already a pending
election protest lodged by Tuburan
with the Cotabato Court of First Instance; and (2) whether or not Ballener’s
motion for reconsideration January 31, 1968 was filed beyond the reglementary
period.

On the first issue respondents maintain that the Commission on
Elections was without jurisdiction.  The general rule is, of course, that once a
Court of First Instance has acquired jurisdiction
by virtue of the filing of an election protest all questions relative thereto
must be decided in the case itself and not in a separate proceeding before a
different forum (Reyes vs. Reyes, G. R. No. L-28476, January 31, 1968; Acain vs. Board of Canvassers, G. R.
No. L-16445, May 23, 1960).

The peculiar circumstances obtaining in the present case, in our
opinion, justify its being
treated as an exception to the general rule. 
In Reyes vs. Reyes, the petition for annulment of the proclamation was
filed in the Commission on Elections on December 2, 1967, and the election
protest was filed by the same petitioner in the Court of First Instance on
December 4.  There was clearly a
deliberate intent to aban­don the proceeding in the Commission by a subsequent
voluntary submission of the same question to the Court.  A choice or option was open to the party
seeking relief, with full knowledge of the fact that when he filed his protest
his petition for annulment had already been lodged.  In the present case there is reason to
believe petitioner’s allegation that he went to the Court of First Instance on
December 26, 1967 merely as a precautionary
measure for the protection of his rights, because the period for filing a
protest was due to expire the next day, December 27, and he had yet no
knowledge or information as to whether or not the formal petition he had sent
by personal courier to the Commission since December 21 had actually been
filed.  The uncertainties of travel and
transportation from Cotabato to Manila and the fact that two successive
holidays intervened^[1]
could really have given causer for apprehension; and the step taken by
petitioner to solve the dilemma in which he found himself should not be taken
as necessarily foreclosing the remedy he had first sought and which, after all,
would be not only adequate but the most expeditious under the circumstances.

There is one overriding fact that projects itself above all
others:  the evidence of falsification,
on which presumably the Commission on Elections based its resolution December
28, 1967, is strong and convincing, and there is no attempt to dispute its veracity for any reference to contrary evidence which if
presented would tend to overthrow the said resolution on the merits.  The annulment of petitioner’s proclamation
and the reinstatement of that of respondent would in effect entrench the latter
in the contested office and shift the burden of attack to the former notwithstanding
the import of the finding the
Commission that respondent’s right rests upon the falsified return from
precinct No. 18, The situation
runs counter to the elementary norms of justice and fair play, and, should not
be countenanced under the circumstances of this case.

The second issue is procedural in nature.  The Commission on Elections annulled
respondent’s proclamation by resolution dated December 28, 1967.  Said respondent filed his motion to
reconsider thirty-four days thereafter, on January 31, 1968, or beyond the
ten-day reglementary period and therefore the resolution had already become
final.

Respondent Ballener contends that since he was served
notice of said resolution merely by telegram^[2]
the service was defective and
hence the period within which to file a motion for reconsideration had not even
commenced to run when he did file his motion
on January 31, 1968.  A number of facts
militate against this contention.  First,
respondent was represented by
counsel in
the recanvass held on December 31, 1967, and raised no objection thereto on the ground of
lack of proper notice The inference that may be gathered from this is that
respondent then considered the telegraphic notice as sufficient.  Second, on
January 13, 1968 he instituted an election protest against petitioner in the
Cotabato Court of First Instance.  This again is a re­cognition of
petitioner’s proclamation, since such a
protest may be lodged only against a proclaimed candidate and within
fourteen days thereafter (Sec. 174, Rev. Election Code).

Apropos it may be observed that when respondent chose to file a
regular election protest it war long before he moved to reconsider the
resolution setting aside his proclamation and consequently he was under no
apprehension that such a motion might not reach the Commission on time for
causes beyond his control.  In other
words, the protest was not instituted ad cautelam; and the rule
that an election contest in court forecloses proceedings in the Commission on
Elections should, if it has any application here at all, apply to respondent.

The writ prayed for is
granted; and the resolution of respondent Commission      on
Elections dated February 23, 1968 annulling the proclamation
of petitioner on December 31, 1967, is set aside.  No pronouncement as to
costs.

Concepcion, C.J.,
Reyes, Dizon, Zaldivar and
Sanchez, JJ., concur.

^[1]
December 24 was a Sunday and the next day was
Christmas day.

^[2]
Admittedly received by him on December 28, 1967.