TAHIR LIDASAN, PETITIONER, VS. COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF PARANG, COTABATO, AND SANSALUNA BIRUAR, RESPONDENTS.

The present suit is a special civil action for cer­tiorari with preliminary injunction filed by Tahir Lida­san, a mayoralty candidate for Parang, Cotabato in the 1967 elections.

Petitioner alleged that on December 27, 1967 the mu­nicipal board
of canvassers of Parang, Cotabato, met to canvass; that on December 28, 1967, it
rejected the re­turns of Precincts 15,
16, 23 and 240 on the
ground that these were obviously manufactured, applying the rule of statistical
probability in Lagumbay v. Climaco,
G.R. No. L-25444, January 310 1966; that
on December 29, 1967, it
reversed itself, upon order of the Commission on
Elections, stat­ing that the doctrine in the Lagumbay case does not apply to the returns in question
which did not contain 100% voting for one party.  And thus the municipal board of canvassers
counted said returns.  Hence, on the same
day, the instant action was
filed, to assail respondent Com­mission
on Elections’ order to canvass the aforesaid re­turns and to declare all acts
and proceedings in connec­tion therewith null and void.

We required the respondents to answer.

Respondent Commission on Elections filed its answer on January 8,
1968.  Respondent
Sansaluna Biruar, the op­posing candidate, filed his answer on January 17, 1968.

After petitioner filed his reply, the case was set for hearing on
February 21, 1968.  Respondent Biruar; however, on January 29,
1968, filed a manifestation and mo­tion, stating that on January 9, 1968, petitioner filed an election
protest in the Court of First Instance of Cotabato against him, and thus, the
present case for certiorari should be dismissed for being moot and academic.

Petitioner, as required by Us, filed his
comment thereto, which maintained that his protest expressly sta­ted that he
was not thereby abandoning the present case.

On February 21, 1968,
We heard this case, as sche­duled.

The protest filed by Tahir Lidasan, petitioner here­in, impugned
the results of the election, canvass and pro­clamation of the protestee,
Sansaluna Biruar, because, he alleged, in the elections, and election returns,
of Pre­cincts Nos. 14, 15, 16, 23 and 24 of Parang, Cotabato, terrorism, fraud,
anomalies, irregularities and other viola­tions of the election law, were
perpetrated.  From this it is evident
that petitioner has a sufficient remedy in the ordinary course of law, that is, the protest, considering that he
freely resorted to the same and that he has not shown, or even contended in the
record, that said remedy of protest is not speedy or adequate enough for the
purpose he seeks.

A special civil action of certiorari does not lie where a plain
and speedy remedy lies in the ordinary course of law (Sec. 1, Rule 65, Rules of
Court).  In filing the protest,
subsequent to the filing of this suit, petitioner has resorted to an ordinary
remedy in the course of law.  Since a
litigant cannot avail of both a special civil ac­tion and an ordinary
remedy, the present action cannot prosper.

Assuming, even, that the protest is not speedy enough the
petition herein fails on the merits. 
During the hear­ing, petitioner’s counsel made an offer of evidence of
pho­tostats to show the returns that he claimed were obviously
manufactured.  The same is sought to
prove that in the returns of the
precincts in question, petitioner obtained zero and respondent Biruar garnered
practically all the votes for mayor.  It
however appears and is admitted that, in the same returns, candidates of both
major parties, for other offices such as those of Senators, received a substan­tial
number of votes.  It should also be
mentioned that the Court’s attention was called to the fact that in other
precincts, the returns showed the reverse, that is, for mayor petitioner herein
got practically all the votes and respondent Biruar had zero.

It is clear, therefore, that the doctrine in Lagumbay finds no application herein.  For such doctrine contem­plated a
situation where there is shown
in the returns totally 100% voting for all the candidates
of one party and zero for those o the other. 
Said this Court therein:

“It must be noted that this is not an instance wherein one
return gives to one can­didate all the votes in the precinct, even as it gives exactly zero to
the other.  This is not a case where some senatorial candidates obtain zero
exactly, while some others receive a few scattered votes.  Here, all the eight candidates of one party garnered all the votes, all of them receiving exactly
the same number; whereas all the eight candidates of the other party got
precisely nothing.”

No grave abuse of discretion, therefore, was commit­ted in the
inclusion of the returns herein involved, in the canvass.

WHEREFORE, the petition for certiorari is hereby dis­missed.  With costs.

SO
ORDERED.

Reyes, Acting C.J., Dizon, Makalintal, Zaldivar, Sanchez, Ruiz
Castro, Angeles, and Fernando, JJ., concur.