JOSE SOL BALORIA, PETITIONER, VS. HONORABLE DOROTEO DE GUZMAN, PRESIDING JUDGE, BRANCH II, COURT OF FIRST INSTANCE OF ZAMBOANGA DEL NORTE, JACOBO S. AMATONG AND MUNICIPAL BOARD …

Petitioner Jose Sol Baloria filed on
February 2, 1971 this petition dated January 25, 1971 for certiorari
with preliminary mandatory injunction seeking to declare as null and void the
order dated January 13, 1971 of the respondent Judge of the Court of First
Instance of Zamboanga del Norte disallowing his
appeal and the order dated January 14, 1971 considering the decision final and executory and granting the motion of protestant Jacobo S. Amatong for execution of
judgment (Annexes “M” and “N”, pp. 50-52, rec.).

By way of factual background, herein petitioner Jose Sol Baloria and herein private respondent Jacobo
S. Amatong were candidates for municipal councilor of
the municipality of Dipolog, Zamboanga
del Norte in the election held on November
14, 1967.  However, the
municipal board of canvassers suspended the proclamation of herein petitioner
as the elected councilor because the municipal treasurer’s copy of the election
returns from Precinct No. 18 showed a total of thirty-seven (37) votes cast for
herein private respondent Amatong, while the Nacionalista Party and the Liberal Party copies of the same
returns as well as the tally sheet gave herein private respondent Amatong forty-seven (47) votes, which difference materially
affects the result of the election for the eighth councilor.

On November 23, 1967,
herein private respondent Amatong petitioned the
Court of First Instance of Zamboanga del Norte for a
recount of the votes in Precinct No. 18 because of the aforesaid
discrepancy.  The Court of First Instance
denied Baloria’s motion to dismiss as well as the
motion to introduce the provincial treasurer’s copy of the return, constraining
Baloria to file a petition for certiorari and mandamus
to annul the aforesaid order of the Court of First Instance.

In Our decision dated April 30, 1970, We sustained the petition
of Baloria on the ground that to justify a judicial
recount under Section 163 of the Revised Election Code, the discrepancy must be
between one copy of the election return and another authentic copy of the same
return prepared in accordance with Section 150 of the Revised Election Code, as
amended, and not a discrepancy between a copy, of the election return prepared
in accordance with Section 150 and a copy furnished to the political parties;
and We accordingly set aside the order of the Court of First Instance for the recount
of the votes cast in Precinct No. 18 of the then municipality of Dipolog, Zamboanga del Norte and
directed the municipal board of canvassers to reconvene and proceed without
delay with the canvass of the votes on the basis of the municipal treasurer’s
copy of the election returns of Precinct No. 18 and thereafter to proclaim the
winner.^[1]

Pursuant to Our aforesaid decision, herein petitioner Jose Sol Baloria was proclaimed on June 17, 1970 as the duly elected eighth councilor of Dipolog.

During the pendency of the first case
of Baloria vs. Abalos,
supra, the municipality of Dipolog was converted into a
city when Republic Act No. 5520, the charter of the city of Dipolog approved on June 21, 1969, took effect on January 1, 1970.

After the proclamation of herein petitioner Baloria
as the number eight city councilor of Dipolog City,
herein private respondent Jacobo S. Amatong filed an election protest against herein petitioner
Baloria with the Court of First Instance of Zamboanga del Norte which was docketed as Election Case No.
2058 (Annex A, pp. 12-15, rec.), to which herein petitioner filed on July 14,
1970 his Answer with specific defenses and a counter-protest covering Precincts
Nos. 14, 39 and 48 of Dipolog (Annex B”, pp.
16-20, rec.).  On July 30, 1970, herein private respondent filed
his reply and on August 10, 1970,
herein petitioner filed an amended answer which was admitted by the trial court
(Annex “C”, pp. 21-25, rec.).

In his decision dated December 28, 1970, respondent Judge
declared herein private respondent Jacobo S. Amatong as winner over Jose Sol Baloria
with a majority of four (4) votes and declared said herein private respondent Amatong as the duly elected eighth councilor of Dipolog (Annex “G”, pp. 33-37, rec.).

Herein petitioner received on January 4, 1971 the aforesaid
decision and on January 6, 1971, he filed his notice of appeal to “make
known that the protestee (herein petitioner) will
appeal to the Court of Appeals” and depositing the amount of P120.00 as
appeal bond (Annex “H”, p. 38, rec.).

Herein private respondent Amatong filed
his opposition dated January 7, 1971 to the said notice of appeal on the ground
that Section 178 of the Revised Election Code does not authorize any appeal
from the decision in an election protest involving municipal councilors; that Dipolog was still a municipality in the election of
November 14, 1967; that as a matter of fact, it was still the municipal board
of canvassers of Dipolog that proclaimed protestee Baloria as the eighth
councilor; that the supervening fact of cityhood of Dipolog as of January 1, 1970 by reason of the approval of
the city charter, Republic Act No. 5520,on June 21, 1969, does not affect nor
amend Section 178 of the Revised Election Code; that the right to appeal of
herein petitioner shall be determined by the status of the elective position
involved as of the elections of November 14, 1967 and not after the conversion
of the municipality of Dipolog into a city; and that
the appeal of herein petitioner Baloria to the Court
of Appeals is patently one of fact, which is prohibited or not allowed by
Section 178 of the Revised Election Code as ruled in the case of Calano vs. Cruz^[2]
(Annex “I”, pp. 39-41, rec.).

Herein petitioner Baloria filed his
reply dated January 12, 1971 to the aforesaid opposition of herein private
respondent Amatong, contending that the municipality
of Dipolog was converted into a city as of January 1,
1970; that pursuant to Section 88 of Republic Act No. 5520, the charter of the
city of Dipolog, “the incumbent Mayor,
Vice-Mayor and Councilors of the Municipality of Dipolog
shall automatically become the Mayor, Vice-Mayor and Councilors, respectively
of the city of Dipolog and they shall continue to be
such until their respective successors shall have been duly elected and shall
have qualified in the next general election for provincial, city and municipal
officials”; that he became automatically thereafter a city councilor of Dipolog City; that Section 178 of the Revised Election Code
authorizes an appeal from a decision in an election contest involving city
councilors, which appeal should be filed within five (5) days from notice of
the decision as in this case; that he was proclaimed on June 17, 1970 by the
municipal board of canvassers as the eighth duly elected councilor of Dipolog after the town was converted into a city on January
1, 1970; that thereafter, he took his oath of office and discharged his duties
as city councilor, not as municipal councilor; that the claim that the notice
of appeal raises only a question of fact is presumptuous, premature and without
legal basis, because the notice of appeal does not expressly limit the same to
a factual question and that the law does not allow such a conclusion (Annex
“K”, pp. 44-47, rec.).

In an order dated January 13, 1971, respondent Judge disallowed
the appeal on the ground that herein petitioner was elected as a municipal
councilor in the 1967 elections when Dipolog was
still a municipality, that the appeal raises an issue of fact only
“considering that protestant was declared winner after an examination and
co(rr)ecting of the ballots
cast (in) the question(ed) precin(c)t,” and that
Section 178 of the Revised Election Code allows municipal councilors to appeal
only on questions of law, as ruled in the case of Calano
vs. Cruz, supra (Annex “M”, pp. 50-51, rec.).

Herein private respondent Amatong filed
an urgent motion for execution of judgment dated January 11, 1971 (Annex
“J”, pp. 42-43, rec.), which was granted by the respondent Judge in
an order dated January 14, 1971 directing the issuance of a writ of execution
in favor of herein private respondent Amatong (Annex
“N”, p. 52, rec.), despite the opposition dated January 12, 1971 of
herein petitioner (Annex “L”, pp. 48-49, rec.).

Hence, this petition for review.

Because We are not persuaded by the arguments advanced by herein
petitioner, the orders of the respondent Judge should be sustained.

The right to appeal in election contests over local elective
positions is purely statutory.  It cannot
even be conferred by agreement of the parties. 
Hence, in the absence of a statute expressly authorizing such appeals, a
dismissal of such an appeal does not constitute a denial of due process of
law.  Under Section 178 of Republic Act
No. 180, otherwise known as the Revised election Code, as amended, no appeal on
questions of fact lies from the decision of the Court of First Instance in an
election contest involving the position of vice-mayor or municipal
councilor.  An appeal lies only when it
raises purely a question of law, for under Section 2 of Article VIII of the
Philippine Constitution, the Supreme Court cannot be deprived of its appellate
jurisdiction to review all cases involving errors or questions of law.^[3]

The character of the position involved in an election protest
should be determined as of the time of the elections held for that particular
elective position and not thereafter.  When
the local elections were held on November
14, 1967, Dipolog was still a
municipality; hence, herein petitioner could only run for the position of
municipal councilor, not city councilor. 
Accordingly, his right to appeal from an election contest involving said
position under Section 178 of the Revised Election Code should be reckoned as
of said date, November 14, 1967.  The supervening fact that Dipolog
was converted into a city on January 1,
1970 did not amend said Section 178 so as to grant him a right to
appeal on questions of fact which was denied him prior to January 1, 1970 as interpreted by this Court in
the aforecited cases.

While it is true that herein petitioner’s notice of appeal did
not specify the issues he raises or will raise or appeal, the fact that he
filed his notice of appeal to “make known that the protestee
(herein petitioner) will appeal to the Court of Appeals” (p. 38, rec.),
can only mean that he raises questions of fact, which the Court of Appeals
alone can review.  If he intended to
raise merely questions of law on appeal, his notice of appeal should have expressly
stated that he was appealing specifically to the Supreme Court to which such
appeal on legal issues should be brought, as he did in this instant case after
his aforesaid notice of appeal was disallowed by the respondent Judge.^[4]

And even if he would raise in his appeal mixed questions of fact
and of law, the same will not vary the result. 
Thus, in the Gonzales case, supra, where the protestee
filed his intention to appeal on questions of fact and of law, We ruled:

“This Court has noted the possibility of a direct appeal to
this Supreme Court even in election protests for the offices of vice-mayor and
city councilor if the only issues involved are questions of law (Sec. 2, Art.
VIII, Constitution of the Philippines;
Marquez vs. Prodigalidad, 46 Off. Gaz.,
Supp., No. 11, 264; Calano vs. Cruz, G.R. No. L-6404,
January 12, 1954).  In this contest, however, it is undisputed
that the issues are mixed questions of law and fact; indeed, respondent-appellant
has so stated in his amended notice of appeal. 
Furthermore, if the findings of fact of the Court of First Instance of
Agusan regarding the existence of fraud and irregularity in the conduct of the
elections in sitio Maguinda of the city are correct,
and we have no appellate power to review said findings, then we should concede
that there was legal propriety in the annulment decreed by the trial court of
the votes cast therein (see 18 Am. Jur.
333-336).  Recourse to this Court, under
the circumstances, would have been futile.”^[5]

Because there remain only three months of the term, which ends on
December 31, 1971, the
immediate execution of the judgment should be decreed.

WHEREFORE, the petition is hereby dismissed, with costs against
herein petitioner.  This decision is
hereby made immediately executory.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Fernando, Barredo,
and Villamor,
JJ., concur.

Teehankee, J., dissents in a separate opinion.

^[1] Baloria vs. Abalos,
L-28457, Apr. 30, 1970, 32
SCRA 368-373.

^[2] L-6404,
Jan. 12, 1954, 94 Phil.
230, 232-33.

^[3] Sarmiento vs. Quemado,
L-18027, June 29, 1962, 5
SCRA 438, 441; Gonzales vs. Court of Appeals, et. al., L-18255, Nov. 21, 1961, 3 SCRA 465, 468-469; Tumakay, et. al. vs. Orbiso,
et. al., L-8354, Aug. 22, 1955,
97 Phil. 431, 432-33; Calano vs. Cruz, L-6404,
Jan. 12, 1954, 94 Phil.
230, 232-33; Lucena vs. Tan, et. al., 47 O.G.
1121; Marquez vs. Prodigalidad, L-2098, May 30, 1949, 83 Phil., 813, 815-818.

^[4]
Gonzales vs. Court of Appeals, et. al., supra, 3 SCRA 465, 468; Calano vs. Cruz, supra; Marquez vs. Prodigalidad, supra.

^[5]
Gonzales vs. Court of Appeals, et. al., supra, 3 SCRA 468-69.

Clean
Clean

6 pt
6 pt
0
3

MicrosoftInternetExplorer4

st1:*{behavior:url(#ieooui) }

/* Style Definitions */
table.MsoNormalTable
{mso-style-name:”Table Normal”;
mso-tstyle-rowband-size:0;
mso-tstyle-colband-size:0;
mso-style-noshow:yes;
mso-style-parent:””;
mso-padding-alt:0in 5.4pt 0in 5.4pt;
mso-para-margin:0in;
mso-para-margin-bottom:.0001pt;
mso-pagination:widow-orphan;
font-size:10.0pt;
font-family:”Times New Roman”;}