ANTONIO V. CUENCO, PETITIONER, VS. THE HON. ALFREDO C. LAYA, IN HIS CAPACITY AS PRESIDING JUDGE OF THE COURT OF FIRST INSTANCE OF CEBU, BRANCHES II AND XII, EDUARDO GULLAS, IGNA…

CONCURRING OPINION

BARREDO, J.:

I concur in the dismissal of the petition in this case.

The facts are correctly stated in the main opinion of Mr. Justice
Castro.

I believe that in the light of said facts, the crux of petitioner’s
case is in the legal significance of his letter, Annex G-3, Petition, addressed
to and received by the court a quo before the filing and hearing
of the joint petition for correction here in question whereby a request was
made that petitioner be notified of the “act­ion (which Atty. Eduardo Gullas) may file – in connection with the election returns
from the third congressional district of Cebu which
will soon be canvassed by the Provincial Board of Canvassers – so that we can
be present during the raffling.”

To begin with, I cannot agree to the idea of sub­jecting such
letter to a strict literal interpretation of its words.  There is no question in my mind that what
petitioner intended to convey thereby was simply that he wanted to be heard
before the court should act on any proceeding of whatever nature Atty. Gullas or any party, on his behalf or in furtherance of his
interests, may file in connection with the election returns to be uti­lized in
the canvass of the election returns of the third congressional district of Cebu.  Any reasonable
man in the place of respondent judge should have understood such letter as
sufficiently comprehensive to include the peti­tion here in question.  The central thought contained therein is that
a judicial step affecting the returns of the third district may be filed with
the court and petitioner was asking to be notified thereof.  Under the circumstances, petitioner could not
be expected to spe­cify the particular nature of the remedy, and the request to
be notified necessarily implies a desire to be heard not only in regard to
the raffling of the petition, which is secondary, but also as to the merits of
any such re­medy Atty. Gullas might initiate, which
is more decisive.  In this connection, I
would like to emphasize that in his answer respondent judge does not deny,
hence he admits, that he received the above letter.  What he denies to have received is a specific
request that petitioner be notified of “the hearing of the petition for
correction of the entry of the return in Precinct No. 33 of Carcar,
Province of Cebu,” which no one has alleged, and
so, I would even say that in a sense this denial could mislead the court, for
it gives the impression that respondent judge did not receive the subject
letter when that is not exactly what is intended to be conveyed.  Indeed, if this were not an election case,
this manner of making a denial should deserve stronger stricture.

On the other hand, however, I do not believe that the failure of
the court to notify petitioner of the hear­ing of the petition in question
constitutes a denial of due process.  I
have no hesitation in holding that where a party is entitled to notice of a
proceeding by express mandate of the law, failure to notify him renders the pro­ceeding
held without hearing him null and void, irrespect­ive of whether or not such
party shows merit in his basic claim. 
Where, however, the opportunity to be heard is not prescribed by any law
or rule of court, and the matter be­fore the court is not contentious in nature,
it is incumbent upon the party concerned, if he wants the court to give him a chance to be heard, to show first
on the face of his pleading that if he is not heard, he may be de­prived of a
favorable result, and where there is no such showing, the court is fully
justified in denying the request for notice and hearing.

Herein may be found, precisely, what to my mind is the difference
in their elements between procedural and substantive due process.  In the first, there is denial of due process
when notice and hearing expressly required by law are not accorded,
irrespective of the merits of the party’s claim.  In the latter, hearing is not indis­pensable
when there is no showing that the results would be possibly or probably
favorable, if the party were to be heard. 
In the first, the hearing is a mandate that cannot be ignored only
because the law specifically re­quires it and not necessarily because the party
has an apparent right of which he would be denied without being heard.  In the latter, the duty to hear is imposed
more by a sporting sense of fair play rather than by any sta­tute or rule of
court, hence it is but logical and pro­per that before the court grants a
hearing, it should be informed of the nature of the right imperilled,
and if no such showing appears, no unfairness can be said to be involved,
since there is no apparent deprivation of any right that can take place.  In other
words, it is my con­sidered view
that the essence of substantive due process is not in the need for a hearing
for the mere sake
of a hearing, but rather the possibility of a substantive right being
denied to a party without such party having had an opportunity to be
heard.  How is the court to know that
there is a
right to be lost and that the hearing requested will not amount to an empty
formality, un­less it is informed in the pleadings as to the nature of such
right?  Otherwise stated, a party cannot
just come to court and demand that he be heard; he must first tell the court
that he has something else substantial, aside from the chance of being heard,
of which he may be de­prived unless he is heard.

Applying these views to the present case, I hold that inasmuch as
under Section 154 of the Revised Elect­ion Code, it is already settled that
none of the candi­dates has any right to notice of the hearing of a unani­mous
petition for correction of an election return filed unanimously by the members
of the board of inspectors of the corresponding precinct, the court a quo was under no compulsion, whether
legal, moral or equitable, to call pe­titioner to the hearing of the petition
in question not­withstanding his letter, Annex G-3, no matter how libe­rally We may
construe the same.  Petitioner himself ad­mits,
and rightly, that he is not entitled to notice as a matter of statutory and
jurisprudential right.  He bases his
claim to due process only on his having ex­pressly requested the court for a
chance to be heard thru his letter,
Annex G-3, and as a matter of fairness. 
Such being the case, it was imperative for him to inform the court of
what right he stood to lose and the basis of his claim to such right.  This, petitioner did not do.  The most his letter can amount to is that of a demand to be heard in
regard to any remedy affecting the returns in the third congressional district
of Cebu.  There
is nothing in said letter to indicate what right petitioner stood to lose, if
he were heard; much less is there
any allegation therein of the basis of any such right.  In cases of this nature, the general requirement
would be for the petitioner to
state under oath that he would be able
to prove that the correction requested was not in accordance with the facts
because in truth Atty. Gullas got less votes than
what is alleged in the petition and that the votes he actually got would not alter the ap­parent result of the count
favorable to herein
petitioner.  These things cannot be presumed,
precisely because it is entirely
possible, and it is more likely than not, that the electoral proceedings are
being merely delayed for one reason or another not related to public
interest but, rather, to the
unsportsmanlike inability of a loser to immediately accept defeat.  Indeed, it was not enough to claim a right to
be present in the “raffling” of the case for assignment among the
different judges of the court as indicated in Section 7 of Rule 22 of the Rules
of Court, specially because said provision of the
Rules, by its very nature, cannot apply to election cases and incidents.  Surely, a request to be present in the raf­fling
does not necessarily imply a desire to be heard be­cause one has a right to be
lost.  The most that it means is that one wants an assurance that
there would be no ir­regularity in the selection of the judge to be assigned to
handle the case.

I cannot buy petitioner’s pretense that he did not know and had
no means of knowing the number of votes Atty. Gullas
got in Precinct 33 in Carcar, Cebu at the time he filed the petition in the
court below.  Considering the closeness
of the contest between petitioner and respond­ent
Gullas, We would be utterly naive, if We were to be­lieve that petitioner had no reliable information
regarding such matter.  On the other
hand, if he did not know on what ground he stood vis-a-vis Precinct 33 of Carcar, what right could he have to ask the court for a
hearing?

Petitioner admits that Atty. Gullas had
some votes in said precinct.  Definitely,
under Section 150 of the Revised Election Code, therefore, Atty. Gullas was entitiled to have
those votes duly entered in the election return for that precinct, and there
can be no doubt that the proper procedure for this is that provided for in Section
154.  In American jurisprudence, a
mandamus is available under these circumstances (The Revised Elect­ion Code by
V. Francisco, 1965 ed., p. 497), but our le­gislature did not see it fit to
adopt that remedy here, and it is to be presumed that the intention is to allow
the parties concerned to avail of Section 154, the lan­guage of said provision
being broad enough to reasonably comprehend such a situation.  I reject the premise that there is no remedy within
the existing provisions of the Revised Election Code for a contingency like
this, if only because this is not a very uncommon occurrence and Congress
cannot be presumed to have been ignorant thereof.  If a mere erroneous entry of the number of
votes of a candidate can be altered in order to state the correct or true one,
with much more reason should such altera­tion be permitted when it is publicly
known that a cer­tain person is a candidate and that he received votes and yet
the return does not even contain his name. 
I believe that to show on the return that a candidate has received
votes is equally,
if not even more, compelling than to enter his correct number of votes thereon.

Viewing petitioner’s cause from another angle, the question may
be asked, if this case is remanded to the lower court in order that petitioner
may be given a hearing, what ground or fact can he show there to defeat the
petition, which is not yet known
to be inconsequential or unavailing? 
Petitioner’s belated allegation made for the first time in this Court,
that the name of Susana Satinitigan who appears to
have signed the unanimous petition, as the Liberal Party Inspector in Precinct
33 of Carcar, is not included in the list of official
inspectors proposed by him, thereby suggest­ing possible unauthorized
substitution, cannot stand closer scrutiny. 
To start with, in his own sworn petition in this case, petitioner states
categorically that Satinitigan is the “LP Inspector” in said precinct.  (Par. 7, p. 3, Petition) This is a judicial admission which, as a rule, petitioner
is not
allowed to contradict (Cunanan v. Amparo,
80 Phil. 227).  It is only when judicial
admissions are “made improvidently and by mistake, and the improvidence and
mis­take (is) be clearly shown, (that) the court is vested with discretion to
relieve (the party making the admission) from their consequences, a discretion
which should be exercised sparingly and cautiously”.  (5 Moran, Comments on the Rules of Court, p.
58) Obviously, herein petitioner’s case does not come within the
exception.  Petitioner’s verbal unsworn allegation at the oral argument is far from being a
clear showing of his alleged mistake, and in the memorandum sub­mitted after
the hearing, no mention whatever is made of this point; much less is any
convincing evidence submitted regarding it. 
Besides, in her own affidavit attached to the petition, Satinitigan swore that she was an inspector in Precinct 33.

Moreover, examining closely Satinitigan’s
affidavit, I find nothing in it
which can overthrow the solemn testimonies given to the court a quo by the chairman of the board of inspectors and the poll clerk
of Precinct 33, both of them being public school teachers, to the effect that Atty.
Gullas actually got 67 votes in said precinct, as evi­denced
additionally by the tally sheet and advance election results duly signed by Satinitigan, who has not disowned her signatures thereon.

Still further, inasmuch
as the court below issued its order in question on November 20, 1969
yet, petitioner had all the opportunity to file a motion for reopening in that court,
if indeed he had enough evidence in his hands to prove that Atty. Gullas did not receive 67 votes in the disputed
precinct.  The truth is that he had no such evidence.  In fact, he has not been able to indicate any
such evidence even here in this Court. 
What is
worse, he cannot, at least, honestly allege that the true number of votes Atty. Gullas
got in said
precinct cannot affect the appar­ent lead petitioner had over him before the
correction or­dered by the lower court was made.  Under these circum­stances, I am at a loss to
see what substantial justice could petitioner be
deprived of if his present petition is denied by this Court.

Mention was also made during the hearing of this case before Us of the desirability, perhaps, of opening the bal­lot box
of Precinct 33 and counting the ballots therein, thereby settling once and for
all any doubts that may be entertained as to the true number of votes of Atty. Gullas therein.  I
must express with all vehemence my objection to such a procedure.

This is not an electoral protest wherein the ballots are the best
evidence.  What is involved in this
proceed­ing is
only a preliminary procedure leading to the procla­mation.  The proclamation is essentially a presumptive
act; it has never been intended to be a final title to the of­fice for which an
election is held,
unless it is uncontest­ed.  The series of proceedings elaborately
outlined in the election law have been designed in order to meet the impe­rative
demand of public interest and orderly administration of public affairs that as
soon as possible, before the term of the office involved begins, one of the
candidates may be considered as having been elected and thereby assume the
functions thereof, without prejudice to any protest the other candidates may
file later.  Ordinarily, such scheme
outlined in the law suffices to prevent proclamation “grab­bers” from
trampling with the popular will.  I, for
one, feel very strongly that the courts can always plug the loopholes which
unscrupulous candidates and lawyers often take advantage of to circumvent the
clearly discernible in­tent of the law. 
All that is needed is for the judiciary to be more active in dealing
with clear cases of attempts to make a mockery of the popular suffrage, the
very found­ation of the republican nature of our government.  Other­wise, even the judiciary can be blamed
for the tendency, which is becoming more and more apparent, of
the electoral process deteriorating into a
game for opportunists and schemers.

I consider the pragmatic approach suggested as pregnant with dire
consequences.  Let alone the fact that if
this Court sanctions here the opening of the ballot box, We will hardly be able
to deny a similar request in all other cases where the pragmatic theory will necessarily be invoked; consider only that if the counting
of the ballots is allowed today, next time, in pursuance of the same pragmatic
reasoning, the appreciation of the ballots can al­ready be demanded before the
canvass, thereby eliminating altogether the necessity of an electoral
protest.  True it is that the ballots are the primary evidence of the will of the
electorate, but, at the same time, the very sanctity of the ballots makes it
naturally logical that they be considered as the last resort, and this should
be in the protest already and not before the canvass which must be based, as
already observed, on some reasonable pre­sumptive means required by the imperativeness
of having a proclamation within the short time there is between the date of election and the beginning of the term of
office of those elected.  Accordingly, I
cannot favor the adoption, at any stage before the proclamation, of any
procedure which is proper only
in an electoral contest, for that would be undermining the whole studied system
of electoral proceedings envisioned in the Revised Election Code.

These are the considerations that compel me to vote against the
granting of the petition in this case.

Dissenting Opinion

DIZON, J.:

Much to my regret, I am constrained to dissent from the majority
opinion penned by Mr. Justice Castro. 
The pertinent facts, as stated therein, are the follow­ing:

“This is a petition for certiorari and prohibition to annul
the order dated Novem­ber 18, 1969 of the respondent Judge Alfredo C. Laya of
the Court of First Instance of Cebu (Branch II and Branch XII), authorizing the
board of election inspectors of precinct 33 of the municipality of Carcar,
province of Cebu, ‘to complete and/or correct’ the election return they had
prepared, by (a) including in the said return the name of Eduardo Gullas, one
of the candidates for representative of the third congressional district of
Cebu, and (b) crediting him with sixty-seven (67) votes.  The court issued the order on the basis of
the sworn testimony of the poll chairman and poll clerk, together with the
unanimous written sworn petition of the members of the board alleging that
because of ‘fatigue and exhaus­tion’ they had inadvertently failed to write the
name of candidate Gullas and the number of votes he received, which is and
should be 67 as evidenced by the tally sheet, tally board and advance copies of
the election return.

“In the elections held on November 11, 1969 in the third
congressional district of Cebu, the
petitioner Antonio V. Cuenco of the Liberal Party and the respondent Eduardo
Gullas of the Nacionalista Party were among the candidates for
congressman.  The election return for
precinct 33 in Carcar recites that the petitioner Cuenco obtained 61 votes but
made no mention of the name of Gullas nor the number of votes cast for
him.  This omission was brought to the
attention of the Cebu pro­vincial board
of canvassers by NP representa­tive Abundio A. Aldemita, who, in a
letter dated November 13, 1969, asked
the said board of canvassers to return the election return to the board of inspectors for
correction.  The request was denied.  Obviously in anticipation of any
judicial action that the NPs might per­tinently
take, the petitioner’s counsel forth­with wrote the executive judge of the Court of First Instance of
Cebu and all the judges of the branches
thereof, requesting that ‘we be informed’
of any action that ‘Atty. Eduardo Gullas may file . . . in connection with the election returns from the third congressional district of Cebu.’

“On November 17, 1969 the board of election inspectors
(composed of Ignacio Alesna, chairman, Gerarda Nadela, poll clerk, Susana
Satinitigan, LP inspector, and Faustino de la Cerna, NP inspector), in a unanimous
sworn petition, asked the court for authority to ‘complete the entries of all
the copies of the election return of Election Precinct No. 33 of Carcar, Cebu,
by writing thereon the name of candidate for con­gressman Eduardo Gullas and
the sixty-seven (67) votes he obtained in said precinct, in words and figures,
on the space in the election return pro­vided for this purpose,’ explaining
that their failure to do so was ‘through honest mistake and inadvertence due to
mental and physical fatigue and exhaustion.’ On November 18, 1969, after a summary
and ex parte hearing, the
court granted the petition; and so at the meeting of the provincial board of
canvassers on November 20, 1969, the chairman of the board of inspectors, over
the objection of the petitioner’s counsel, made the correction on the election return.

“Hence
this petition for certiorari and pro­hibition, which in essence
imputes to the respondent judge
grave abuse of discretion in issuing the order in question.”

This dissent is based firstly, upon the ground that the Urgent
Petition filed on November 17, 1969 with the branch of the Court of First
Instance of Cebu presided by the respondent judge, by the Board of Election
Inspectors of Election Precinct No. 33 of Carcar, Cebu, praying that said Board
be authorized “to complete the entries of all the copies of the election
return of Election Precinct No. 33 of Carcar, Cebu, by writing thereon the name
of candidate for congressman Eduardo Gullas and the sixty?seven (67)
votes he obtained in said precinct, in words and figures, on the space in the
election return provided for this purpose”, does not fall within the
purview of the provisions of Section 154 of the Revised Election Code; and
secondly, upon the further ground that, assuming, arguendo, that the said
Urgent Petition falls within the purview of said legal provision, the
respondent judge, upon the undisputed facts of the case, acted with grave abuse
of discretion in considering it ex-parte and in issuing his order of
November 18, 1969 authorizing the Board of Election Inspectors of Precinct 33
of Carcar, Cebu, “to complete and/or correct” the election return
they had prepared for the precinct aforesaid.

Section 154 of the Revised Election Code is of the following
tenor:

“Alterations 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.”

We might begin by
assuming, for the purposes of this dissent, that the terms alteration
and amendment mean the same
thing, and that the term “alteration”, just like the term
“amendment” means – legally speaking – to add, change, substitute or
omit something from a pleading or instrument. 
In plain words, a pleading or instrument may be amended either by
correcting or by omitting any word, phrase or sentence set forth therein, or by
adding something to it.  In the
last instance we have the case of an amendment by addition.

Now, what exactly does Section 154 of the Revised Election Code
authorize?  This, I believe, is vital and
decisive of this case.  It is plain even
from a cursory reading of its provisions that the alteration or amendment
it authorizes is to be made not in
the election return but “in
any of its statements”.  The
election return is one thing and “any of its statements” is clearly
something else.  If the legal provision
in question were to refer to the alteration or amendment of the election
return itself, without any qualification, there could arise no question at
all.  The cold fact, however, is that it
authorizes nothing more than the alteration
or amendment of “any of its statements”.  In view thereof I ask:  is there, in the election return for Election
Precinct No. 33 of Carcar, any “state­ment” concerning Eduardo
Gullas and the number of votes
polled by him in the
last general election that could be altered or amended?  There is none.  It was precisely for this reason, I presume,
that the Board of Inspectors of Precinct 33 asked for authority to
“complete” and the respondent judge autho­rized said Board of
Inspectors to complete the
document.  There can be no clearer
admission than this of the fact that the election return in question contains
no statement regarding Eduardo Gullas and the number of votes allegedly cast in
his favor.

It seems clear from the foregoing that what the Board of Election
Inspectors wanted, and was authorized to do by the respondent judge, is to set
forth in the aforesaid election return a statement that did not exist there
before, and not merely to alter or amend a statement already made
therein concerning Eduardo Gullas and the
number of votes cast in his favor.  This,
I believe, is not within the purview of the legal provision under con­sideration.  As a result, the conclusion must be that the
Court presided by the respondent judge had no jurisdiction over the Urgent
Petition filed by the Board of Inspectors of Precinct No. 33 of Carcar, Cebu,
or, at the very least, His Honor had no authority to consider it as a summary
proceeding under the provisions of Section 154 of the Revised Election
Code.  If at all, it should have con­sidered
it as an unnamed contentious special proceeding, notice of which should have
been served on all the parties to be affected by the relief sought.

Two important considerations lead me to this con­clusion.  One is the fact that in taking cognizance of
any election case or a proceeding affecting elections Courts of First Instance
exercise limited jurisdiction. 
This limited jurisdiction should not be unduly enlarged, for this would
be contrary to the purpose of the law granting the limited jurisdiction.  The second is that the cases for correction
of election returns should not be unnecessarily multiplied but must be
limited strictly to the cases
clearly provided in Section 154 of the Re­vised Election Code, lest we
enable the members of Boards of
Inspectors to be the final arbiters of election con­tests by conspiring
unanimously to correct, with leave of court, election returns.

(2) Assuming, however,
for the sake of argument, that the urgent petition mentioned heretofore
falls within the purview of Section 154
of the Revised Election Code, it is my opinion that, upon the facts set
forth above, the respondent judge committed a grave abuse of discretion in
considering it ex-parte and in issuing the order complained of.

It is admitted that, prior to the filing of said urgent petition,
petitioner Antonio V. Cuenco, through counsel, “wrote the executive judge
of the Court of First Instance of Cebu and all the judges of the branches there­of”
(majority opinion) requesting that he be informed of any action that
“Atty. Gullas may file … in connection with the election returns from the
third congressional district of Cebu” (Idem).

It is now contended that, because petitioner’s letter-request
refer to any action filed by Atty. Eduardo Gullas, the respondent judge had
every right to ignore his request because the urgent petition was filed not by
Gullas but by the Board of Inspectors of Election Precinct No. 33 of
Carcar.  This, I submit, is without
merit.  The res­pondent judge, who, as
such, is supposed to be of mature judgment, was bound to construe petitioner’s
letter-request as meaning and referring to any action or proceeding com­menced
by Gullas or by any other party, in connection with the election returns from
the third congressional district of Cebu. 
Mental honesty on his part demanded this.

On the other hand, the respondent judge likewise knew or was supposed to know that, as
stated in the majority opinion, notice
could have been easily served by the Court upon petitioner whose residence “is only
a stone’s throw from the
courthouse”.  And yet, His Honor,
chose to ignore this fact, just as he ignored the written request of peti­tioner
for an opportunity to be heard
before any action was taken on any
judicial action or proceeding in his court materially affecting the elections held
in the third congressional district of
Cebu.

We agree with the majority
opinion that “broad perspectives of public policy impose upon courts the
imperative duty to ascertain who is the real candidate elected, in as
expeditious a manner as possible, without being fettered by technicalities and
procedural barriers”, but I also submit that equally broad and imperative
pers­pectives of public policy demand that the courts should do so with fairness and understanding, and without
taking any precipitous action – violative of due process – that might give rise
to suspicions of bias.

Much is made in
the majority opinion of the fact that petitioner dared not deny categorically
during the oral argument before this court that Gullas obtained sixty-seven
(67) votes, nor assert that Gullas obtained
much less than sixty-seven (67) votes; that all that he candidly admitted was
that “he does not really know how many votes Gullas got”.  This position is perfectly under­standable.  Why expect him to prove his opponent’s case,
or supply what the members of the Board of Inspectors say they forgot
to write on the return allegedly because they were sleepy or otherwise
physically exhausted?  Instead of
petitioner’s candidness and sincerity being taken against him, it should be
considered as an unmistakable sign of his good faith.

Lastly, even admitting, arguendo, that the proceeding had before
the respondent judge falls within the provisions of Section 154 of the Revised Election Code and that, there­fore, it was
discretionary with His Honor to make it summary or give notice to petitioner
Cuenco before taking any action therein, I say that such discretion must
always be deemed to be sound judicial discretion and that, in the
present case, it was not so exercised.

I, therefore, vote
to grant the writs prayed for, with the result that the order complained of is hereby set aside, and the respondent
judge is ordered to re-open the case, serving due notice of the
proceeding upon petitioner herein and other parties who might be adversely
affected by the relief sought by the Board of Election Inspectors of Precinct 33
of Carcar, Cebu.

Dissenting Opinion

ZALDIVAR, J.:

I concur with Mr. Justice Arsenio Dizon that “upon the facts set forth above (in his
dissenting opinion), the respondent judge committed a grave abuse of discre­tion
in considering it (the petition) ex parte
and in issuing the order complained of.” After reading the record I cannot
help but get the impression that respond­ent Judge denied petitioner Antonio V.
Cuenco a chance to present his side regarding the controverted election return of precinct 33 of the municipality
of Carcar, province
of Cebu.  While the correction of an election return,
under Section 154 of the Revised Election Code, may proceed ex parte, it would only be in consonance with
fairness and sound discretion had respondent Judge given petitioner Cuenco notice of the filing of the petition so he could
take the steps that he considered necessary for the protection of his rights
and interests, because this was precisely what he intended to do when he wrote
the letter requesting respondent Judge to inform him of any action that Atty.
Eduardo Gullas would file “in con­nection with the election returns from
the third congres­sional district of Cebu which will
soon be canvassed by the Provincial Board of Canvassers.”^[1]
Again, it would only be in consonance with fairness and sound discretion if
respondent judge afforded petitioner Cuenco a chance
to be present at the hearing on the petition when he took the testimonies of
the chairman and the poll clerk of the board of inspectors of precinct 33 of Carcar, and in receiving
the only
documentary evidence consisting of a copy of the alleged
advance election results^[2].  Had petitioner Cuenco been given notice of the filing
of the petition, and of the hearing on the petition, he could have
ascertained whether the election inspector representing his party had knowingly joined the petition for correction of
the election return in question; he
could have cross-examined the
two witnesses, to test their credibility and to determine the correctness of their statements; and he could have had a chance to
show whether the alleged copy of the advance election results was genuine or
not, or whether the statements contained therein were accurate or not.  I have taken note of the fact, as gathered
from the order of res­pondent Judge,
complained of, that he mainly based his order on the testimonies of the
chairman and the poll clerk of the board of election inspectors, and on the alleged
copy of the advance election results.  It
strikes me that while the two witnesses made mention of the
tally board in precinct 33 of Carcar, said tally board was not presented at all during the
hearing.  The tally board is a document
that was not placed inside the ballot box after the canvass of the votes, but
was delivered to the municipal treasurer
of Carcar.  The
record shows that the hearing on the petition for correction was held in
the very municipality of Carcar and respondent Judge
could have asked for the tally board to
find out if candidate Eduardo Gullas had
obtained votes in precinct 33 of Carcar.  I consider the tally board a very vital piece of evidence which should have been examined by
respondent Judge, especially because the pro­ceeding was held ex parte.  The tally board could easily be
tampered.  The herein respondents have attached a
photographic copy of the tally board in their answers to the petition before
this Court.  But according to counsel for the
respondents who argued the case before this Court on December 4, 1969, the photograph of the tally board was
taken only on December 2, 1969.  The ex-parte hearing
before respondent Judge took place on November
18, 1969.  That tally board
was in the possession of the
municipal treasurer of Carcar and was available for
examination.  Whoever was, or were,
interested in the correction of the election return — by adding therein the
name of candidate Gullas and the votes he obtained —
could, and should, have brought that tally board before the respond­ent
Judge.  Or the respondent Judge should
have asked for the tally board after hearing the chairman and the poll clerk make reference
to it
in their testi­monies.  It is, therefore,
my view that respondent Judge abused his discretion when he failed to give
petitioner a chance to be heard regarding
the petition for correction, and that respondent Judge had not acted with due dili­gence when he issued the order in question
without first examining the tally board. 
I believe that public interest will be subserved
if the order complained of is set aside and the hearing of the petition in
Election Proceeding No. 1 in the Court of First Instance of Cebu
(Branch XII) is reopened to give petitioner Cuenco an
opportunity to present evidence, or show cause, why the election return in precinct 33 of Carcar,
Cebu, in the elections of November 11, 1969, should
not be corrected or amended.

In view of the foregoing observations, I dissent from the
opinion of the majority.

^[1]
Annex G-3.

^[2]
Exhibit B in the court below.