IN RE:  PETITION FOR INCLU­SION IN THE PERMANENT LIST OF QUALIFIED VOTERS. (MRS.) ROSALIA TAN COHON, PETITIONER-APPELLANT, VS. THE ELECTION REGISTRAR, CITY OF CEBU, RESPONDENT-A…

After the Court of First Instance of Cebu rendered the following
decision in its Election Case No. 2, entitled “In re Petition for
Inclusion in the Permanent List of Qua­lified Voters, Mrs. Rosalia Tan Cohon,
Petitioner, versus The Election Registrar, City of Cebu, Respondent”, on
Nov­ember 3, 1967:

“From the decision of the City Court of Cebu, denying her
petition for inclu­sion in the registry of voters, the peti­tioner appealed to
this Court. 

From the facts adduced during the hear­ing before the City Court,
it appears that petitioner was a Chinese citizen when she married Antonio S.
Cohon in 1952; that the latter became a Filipino citizen by natu­ralization in
1962.  Upon her petition, her alien
registry in the Bureau of Immigration was cancelled.  She was recognized as a Filipino citizen and
was allowed to register as voter during the elections of 1963 and 1965.  However, on November 4, 1967, she was informed by the Election Re­gistrar
that she was not included in the new registry list of voters because her Filipino citizenship has not been
duly es­tablished.  The decision of the
Election Registrar was based on the ruling of the Supreme Court in the case of
Zita Ngo Burca, G. R. No. L-24252 promulgated January 30, 1967, wherein among other things, the fol­lowing
was held:

‘and (3) Any action by any other
office, agency, board, or official, administrative or otherwise – other
than the judgment of a competent court of justice – certifying or declaring
that an alien wife of a Filipino citizen is also a Filipino citizen, is hereby
declared null and void’.

The petitioner claims that the above mentioned decision should not
be given re­troactive effect and should not be applied to her.  When
the case was called before this Court, Atty. Achilles V. Manit, repre­sentative
of the Commission on Elections, contested the right of petitioner to appeal
from the decision of the City Court.

Republic Act No. 5178 provides that the decisions of the municipal
court in inclu­sion and exclusion proceedings
are appeal­able to the Court of First Instance, while the decisions of
the City Court and the Court of First Instance shall be immediately executory
and shall, be final as to questions of fact. 
It is clear, therefore, that the City Court and the Court of First
Instance have the same jurisdiction in so far as in­clusion and exclusion
proceedings are con­cerned.  Appeal from
the decision of the City Court on these matters to the Court of First Instance
is not justified and it cannot be entertained”. (Pp. 52-54, Record on
Appeal)

the petitioner,
herein appellant, filed the following no­tice of appeal:

“Petitioner, through counsel, respect­fully gives notice of
her intention to ap­peal from the order of 3 November 1967, copy of which she received on the same
day, to the Supreme Court.

Notice is hereby given that an appeal will also and concurrently
with this appeal be taken from the order of the City Court of 26 October 1967, notice of which was re­ceived on the
same date, directly to the Supreme Court – the Court of First Instance having resolved that the decision of
the City Court on inclusion and exclusion of voters, as distinguished from such
a deci­sion issued by a municipal court, is not appealable to it.  In the event that this ruling of the Court of
First Instance is correct, petitioner is taking an appeal from the decision of
the City Court directly to the Supreme Court to preserve her rights.

Petitioner hereby submits for the appro­val of the Court the Cash
Appeal Bond in the sum of P120.60 which she filed with the Clerk of Court.”
(Pp. 54-55, Record on Appeal)

The appeal is now before
this Court.

Appellant has filed her
brief, but respondent has not filed any.  In appellant’s brief, the
assignment of errors is as follows:

“I

“THE TRIAL COURT ERRED IN HOLDING THE INSTANT PETITION WANTING
IN MERITS AND DE­NYING THE SAME. 

II

THE TRIAL COURT ERRED IN HOLDING THAT THE RULING IN THE CASE OF
ZITA NGO BURCA, G.R. NO. L-24252, JANUARY
30, 1967 Is AP­PLICABLE TO THE INSTANT
PETITION.

III

THE TRIAL COURT ERRED IN GIVING THE RU­LING IN SAID ZITA NGO BURCA
CASE A RETROACTIVE EFFECT.” (P. 7)

To begin with, outside of the statement made in the notice of
appeal aforequoted that “an appeal will also be taken from the order of
the City Court of 26 October 1967, notice of which was received on the same
date, directly to the Supreme Court”, there is no showing that any such
appeal from the order of the City Court of Cebu has in fact been taken.  The records of this Court do not disclose any
such appeal.  In any event, it is
extremely doubtful if such an appeal could legally be made after the unsuc­cessful
prosecution of the appeal appellant had perfected to the Court of First
Instance, both as a matter of law and in point of time.  We have to consider this, therefore, as
purely an appeal from the decision of the Court of First Instance.

Thus considered, the first thing that strikes Us is that whereas
His Honor dismissed the appeal of appellant from the City Court without passing
on the merits of her case, it is to be noted that in her above-quoted assign­ment
of errors, appellant does not complain against such dismissal, and instead, she
discusses under them errors allegedly committed by the City Court and not by
the Court of First Instance.  The
question that arises now is whether or not, under these circumstances, this
Court may take up the errors assigned by appellant.

Before resolving this question, however, it must first be
determined whether or not appellant’s appeal to this Court is proper.  It is to be recalled that orders in voters’
inclusion and exclusion proceedings in Courts of First Instance have been held
to be unappealable, for the simple reason that the right to appeal is, as a gen­eral rule, statutory and
when there is no express provi­sion of law allowing an appeal, the right
thereto is not a necessary element of due process.  (Nuval v. Guray, 52 Phil. 645; Lucena v. Tan,
84 Phil. 548) And with respect, to the particular cases of inclusion of voters
for purposes of their registration in 1967, which is governed exclusively by
Rep. Act 5178, entitled “An Act to facilitate implemen­tation of Republic
Act Numbered Three Thousand Five Hundred Eighty-Eight, as amended, on the
registration of voters for nineteen hundred sixty-seven only, extending the per­iods
for registration of voters and related proceedings thereunder, providing for
additional Registration Boards, and granting additional powers to the
Commission on Elec­tions, and for other purposes”, par. (c) of section 1
thereof provides, as pointed out by the court a quo, that “The decisions of the
Municipal Court shall be appealable to the Court of First Instance within two
(2) days from receipt of notice by the parties and the decisions of the City
Court and the Court of First Instance shall be imme­diately executory and shall
be final as to questions of face.” This implies that an appeal could have
been made from the order of the City Court of Cebu on questions of law and
necessarily, such an appeal would have been direct to this Court.  Indeed, such implicit authority under the
quoted legal provision is a necessary consequence of the constitutional
jurisdiction of this Court, of which Congress cannot deprive it, to
“review, revise, reverse, modify, or affirm on appeal, certiorari, or writ
of error, as the law or the rules of court may provide, final judgments and
decrees of inferior courts in — (5) all cases in which an error or question of
law is involved”.  (Sec. 2, Art. VIII, Constitution of
the Philippines;
Marquez v. Prodigalidad, 83 Phil. 813)

As this case stands, however, the present appeal is not from the
order of the City Court, but from the deci­sion of the Court of First Instance
dismissing appellant’s appeal from the order of the City Court.  Can this Court entertain this appeal?  The answer is in the affirmative, in virtue of
the constitutional mandate just referred to. 
And this is so, inspite of the fact that appellant has not assigned such
dismissal as an error, because, an appeal on any question of law involving the
Election Code, even if not in an election contest, must of necessity be, as in
a criminal case, wherein the appeal “confers upon the court full
jurisdiction and renders it competent to examine the record and revise the
judgment appealed from” (U.S. v. Abijan, 1 Phil. 83) or, in other words,
“such an appeal throws the whole case open to review, and it becomes the
duty of the appellate court to correct such errors as may be found in the
judgment appealed from whether they are made the subject of assignments of
error or not”, (Peo. v. Olfindo, 47 Phil. 1) and the fact that the revised
rules of 1964, Section 7, Rule 124, has eliminated the provision of the old
rules to the effect that in criminal cases, “appellants are not required
to make assignments of error although it is advisable for them to do so”, (Sec.
7, Rule 120 of the Rules of 1940) has not changed the prin­ciple of total
review in the appeal of all criminal cases. 
After all, even under the old provision, it has been held that:

“Section 7, Rule 120 of the Rules’ of Court, provides that
‘The briefs in crimi­nal cases shall have the same contents as provided
in sections 17 and 18 of Rule 48 applicable in civil cases except that ap­pellants
are not required to, make assignment of errors although it is advisable for
them to do so’.  This provision connotes
that, unlike in appeals in civil cases, an assign­ment
of errors is unessential to invoke appel­late review.  (It should be noted that there the law or the
Rules of Court require an as­signment of errors to be made, this formality is
essential to authorize the appellate court to entertain the appeal.  In view of such re­quirement, an appeal will
be dismissed without benefit of review if the brief contains no as­signment of
errors.)

The rule means that, notwithstanding the absence of an assignment of
errors, the appel­late court will review the record and reverse or modify the
appealed judgment, not only on grounds that the court had no jurisdiction or
that the acts proved do not constitute the of­fense charged but also on
prejudicial errors to the right of accused which are plain, fun­damental,
vital, or serious, or on errors which go to the sufficiency of the evidence to
convict.  The section, of the Rules of
Court doing away with formal assignments of error does not dis­pense with the
necessity of pointing out in some
other form technical and non-fundamental errors which do not affect the
substantial rights of an accused to a fair trial, and are not patent.  Such technical and non-fundamental errors
must be specified with convenient pro­position and argument if they are to be
made the basis for modification or reversal of the appealed judgment or for
further proceedings.  Attention is
invited to section 17(c), Rule 48 of the Rules of Court, which provides that
the appellee’s brief shall contain, among other things, ‘the substance of the
proof in suffi­cient detail to make it clearly intelligible, the rulings and
orders of the court, x x x, and any other matters necessary to an unders­tanding of the
nature of the controversy on the appeal, with page references to the
record’.  The reviewing court is not
expected to search the record for every error of which the appel­lant might
take advantage but did not, nor would it be fair to the adverse party for the
court to do so”.  (Pp. 267-268,
Villareal v. Peo., Phil. 264)

Accordingly, the Court holds that the court a quo did not commit any error in dismissing appellant’s appeal from
the order of the City Court.  This result
makes it impossible for this Court to consider the errors alleged in
appellant’s brief.  Nonetheless, in view
of the fact that the two matters involved in the assigned alleged errors are of
public interest, those of inclusion in the permanent list of voters and of the
alleged Filipino citizenship of
appellant, (Abañil et al. v. Justice of the Peace Court of Bacolod, Negros
Occidental, et al., 70 Phil. 28), it is made clear that even as it is here held
that the order of the City Court in question has become final, the same does
not constitute res adjudicata as to any of the matters therein
contained.  It is ridiculous to suppose
that such an important and often intricate matter of citizenship may be passed
upon and determined with finality in such a sum­mary and peremptory proceedings as that of
inclusion and exclusion of persons in the registry list of voters.  Even if the City Court had granted
appellant’s petition for inclusion in the permanent list of voters on the
allegation that she is a Filipino citizen qualified to vote, her al­leged
Filipino citizenship would still have been left open to question.  In the case of Mayor v. Villacete, 2 SCRA
542, several petitions were filed to exclude petitioners from the list of
voters for not being, allegedly, Filipino citizens.  A motion to dismiss was filed alleging that
the trial court had no jurisdiction to entertain the petitions because the
ground upon which the same was based is the ci­tizenship of petitioners which
cannot be inquired into in an exclusion case, and that this ground which
involves their status as Filipino citizens does not come within the purview of
Section 121, in relation to Section 123, of the Revised Election Code.  The motion having been denied, Mayor and the
rest of petitioners filed separate cases of prohibition before this Court, but
because their petitions could not be acted upon immediately, the trial court
proceeded to hear the exclusion cases and thereafter rendered a decision
holding that petitioners were not Filipino citizens and as such were
disqualified to vote in the ensuing elections. 
The elections were held on November
10, 1959; and feeling aggrieved in the circumstances, petitioners
filed with this Court on December 11,
1959, a petition for certiorari attributing to the trial court the
commission of a grave abuse of discretion amounting to lack of
jurisdiction.  This Court dismissed the
case for being moot, since the elections of November 10, 1959 had been held.  Nevertheless, the decision further said:

“We hold that these two petitions are now moot since with the
elections held on November 10, 1959
the purpose for which they had been filed has become functus oficio.  And this is so because their purpose is to prevent the trial court from
acting on the exclusion case filed before it on the ground of lack of
jurisdiction so that if they succeed their names may continue in the permanent
list of, voters and they may in turn vote in the elec­tions scheduled for November 10, 1959.  Evi­dently, this objective has become
purposeless with the holding of the elections thereby ren­dering these cases
moot.

It is true that the decision of a court of first instance in an
exclusion case is final and
unappealable except when the petition is
tried before the justice of the peace when the case may be appealed to the
corresponding court of first instance, for which reason petitioners have
instituted the present civil action of certiorari considering it to be the only
legal remedy available to them to bring to this court the issue concerning the
lack of jurisdiction of the trial court. 
Nevertheless, we still hold that this petition does not serve now any
useful purpose considering that its main objec­tive is to dispute the action of
the trial court insofar as the last elections are concerned.  It should be here stated that considering the
summary character of an exclusion case the de­cision that a court of first
instance may render thereon, even if final and unappealable, does not acquire
the nature of res adiudicata (Nuval v. Guray, 52 Phil. 645).  In this sense, it does not operate a bar to
any future action that a party may take concerning the subject passed upon in this
exclusion case.

We are not oblivious of the fact that new elections will be held
this year and that be­cause of the exclusion of their names from the permanent
list of voters petitioners are not now considered as qualified voters in their
respect­ive precincts, but their situation is not with­out a remedy.  They can
still file such appro­priate action as
they may find necessary to seek their reinstatement wherein they can
establish that they are Filipino citizens and qualified voters in the
municipality where they reside thereby rendering ineffective the previous ru­ling
rendered by the trial court.  Verily,
they ­still have enough time to take such action.” (Pp.-544-545, Mayor v.
Villacete, 2 SCRA)

Definitely, a voter’s inclusion case cannot be used as a backdoor
to gain the status of Filipino citizenship by judicial declaration.

IN VIEW OF THE FOREGOING, the decision appealed from is affirmed
with costs against appellant.

Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez, Castro,
Fernando, Capistrano and Teehankee, JJ., concur.

Reyes, J., is on official leave
of absence.