FEDERICO B. ABLAN, SR., PETITIONER, VS. THE HONORABLE JOSE A. MADARANG AND DR. DAMASO T. SAMONTE, RESPONDENTS.

The question before us in this certiorari and prohibition
proceeding, one raised for the first time, is the interpretation to be accorded
the provision in the 1971 Constitutional Convention Act^[1]
empowering courts of first instance to recount the votes cast at the election
of delegates, but only on a showing of the existence of “another authentic
copy or copies of returns from an election precinct submitted to the [Board of
Canvassers] giving any candidate a different number of votes, or there is a
difference in the words and figures of the number of votes for any candidate, and
in either case the difference affects the result of the election, * * *. “^[2]
Petitioner Federico B. AbIan, Sr., a candidate for
the post of delegate in such an election would have been proclaimed as a
winner, having garnered the second largest number of votes, had it not been for
respondent Judge entertaining a petition for judicial recount filed by the
other respondent, Dr. Damaso T. Samonte,
the candidate who obtained the third place in such voting.  Petitioner assailed the assumption of
jurisdiction in a motion to dismiss, there being a failure to satisfy the above
statutory requirements, evident on the face of the pleading filed by respondent
Samonte. 
Respondent Judge was not impressed, unable to discern any merit in such
a plea, and would not budge from his position notwithstanding a vigorous motion
for reconsideration.  Hence this petition
before us.  For reasons to be set forth,
we find for petitioner.

The facts alleged in the petition filed on December 24, 1970 are undisputed.  In the election for delegates to the first
district of Ilocos Norte held on November 10, 1970
for the 1971 Constitutional Convention, both petitioner and respondent Samonte were candidates, the former, having in his favor
15,415 votes as shown by the canvass, next to Delegate Antonio V. Raquiza, who was proclaimed as such, no objection having
been raised as to his election. 
Respondent Samonte, with 12,802 votes, was in
the third place.  Thereafter, on November
23, 1970, respondent Samonte filed with the lower
court, presided by respondent Judge, a petition for judicial recount for the
counting of votes in the enumerated precincts in the municipalities of Pagudpud, Bangui, Bacarra and Sarrat, alleging that the election returns as prepared and
submitted by the Board of Election Inspectors of each of the above precincts
did not reflect the true, correct and actual results of the election in view of
the irregularities enumerated thus: “(a) That the election returns in each
and all of the precincts questioned in paragraph 6 hereof, were tampered and/or
prepared under duress; (b) In each and all of the above-mentioned questioned
precincts, votes cast for petitioner Damaso Samonte were read, counted, and illegally adjudicated in
favor of respondent Federico Ablan, Sr. ; (c) In each
and all of the above-mentioned questioned precincts, whenever the total votes
cast in favor of the petitioner was greater than that of respondent Ablan, their respective votes were interchanged in order to
make it appear in the election returns that the respondent Ablan
obtained the greater number of votes and the petitioner received the lesser
number of votes; (d) In each and all of the above-mentioned questioned
precincts, ballots wherein the space were left blank or ballots containing the
names of persons other than that of respondent Ablan
were deliberately, maliciously, and illegally read, counted, and adjudicated in
favor of respondent Ablan; (e) In each and all of the
above-mentioned questioned precincts, watchers for petitioner and other
candidates, were not permitted by the Board of Election Inspectors to stay at a
vantage point where they could read the ballots being read by the Chairman; (f)
That in precincts 45, 45-A, 46, 86 and 87, of Laoag
City, the votes cast as mentioned in the election returns of said precincts are
obviously contrary to all statistical probabilities, utterly improbable and
clearly incredible, and/or manifestly fabricated which fraud or falsification
is so palpable from the returns themselves; * * *. “^[3]

In view of the above allegation failing to show on its face that
the lower court was duly vested with authority to order a judicial recount
under the express provision of Section 6, paragraph (H) of the 1971
Constitutional Convention Act, a motion to dismiss was filed by petitioner on December 7, 1970 alleging lack of
jurisdiction.^[4]
There was an opposition to such motion to dismiss dated December 12, 1970 as well as a reply by
petitioner three days thereafter.^[5]
On December 17, 1970, an
order was issued by the lower court denying such motion to dismiss.^[6]
Then came a motion for reconsideration of December 20, 1970, stressing anew that the requirements
of the law are too plain to be misinterpreted and that the petition of
respondent for judicial recount did not fall within its purview.  The motion for reconsideration was denied by
respondent Judge in an order of December
22, 1970.  Hence this
petition.

The factual allegations were admitted in the answer of respondent
Samonte of January
20, 1971, but he would stress that this suit for certiorari
and prohibition before us is premature.^[7]
Thereafter, in his supplemental answer, for which leave was sought and granted,
he set up as affirmative defenses the procedural objection to this proceeding
not being available to contest an order denying a motion to dismiss and that
respondent Judge did not act without or in excess of his jurisdiction in
denying petitioner’s motion to dismiss. 
It is to be noted that respondent Judge himself, as early as January 11, 1971, filed his own
answer maintaining a jurisdiction to act on the petition of respondent before
him.  Thereafter, petitioner as well as
respondents filed their respective memoranda, and the case was deemed submitted
for decision.

The foregoing recital yields no other conclusion except that the
adamantine stand of respondent Judge is difficult to understand and legally
impossible to justify.  He ought to have
sustained the jurisdictional objection raised. 
His failure to do so calls for a remedy from this Court.  Petitioner, to repeat, is entitled to the
writs prayed for.

1.  The threshold question is
one of procedure. Private respondent is unable to discern the appropriateness
of the certiorari proceeding under the circumstances obtaining.  It is his view that the denial of a motion to
dismiss does not suffice for reliance on such a special civil action.  Private respondent ought to have known
better.  Only last May, in Time, Inc. v.
Reyes,^[8]
in an opinion penned by Justice J. B. L. Reyes, speaking for the Court, it was
categorically announced: “The motion to dismiss was predicated on the
respondent court’s lack of jurisdiction to entertain the action; and the
rulings of this Court are that writs of certiorari or prohibition, or
both, may issue in case of a denial or deferment of action on such a motion
to dismiss for lack of jurisdiction.”^[9]
More specifically, in two cases involving judicial recounts, with the question
of jurisdiction being adversely decided to the party obtaining, certiorari
was successfully invoked.  Reference is
made to Ginete v. Arcangel^[10]
and Baloria v. Abalos.^[11]
Thus the special defense raised by private respondent that certiorari
does not lie is manifestly untenable.

2.  Now as to the
merits.  As noted, to prevent the
proclamation of petitioner as the candidate who obtained the second highest
number of votes in the election for delegates to the Constitutional Convention,
private respondent filed a petition on November 23, 1970 with respondent Judge
alleging that in the enumerated precincts in the municipalities of Pagudpud, Bangui, Bacarra and Sarrat the election returns submitted by the Board of
Election Inspectors did not reflect the true, correct and actual results of the
voting, as the preparation thereof was made under duress or tampering was
resorted to, votes cast for private respondent Samonte
being read and counted in favor of now petitioner Ablan,
who was likewise favored by making it appear through the interchange of votes
that he obtained the greater number, with ballots either left blank or
containing the names of candidates other than now petitioner Ablan being read and counted in his favor.  There was likewise the assertion that
watchers for petitioners and other candidates in such precincts were not
permitted to stay at a place where they could perform their duties as such and
thus see for whom the ballots were really cast. 
The last ground in such petition by private respondent was the claim
that the doctrine of statistical probability could be rightfully invoked by
him.

The 1971 Constitutional Convention Act, on the other hand, limits
the power of the Court in a petition for judicial recount only on a showing of
“another authentic copy or copies of returns from an election precinct
submitted to the Board giving any candidate a different number or votes”
or of “a difference in the words and figures of the number of votes for
any candidate, ” in either of which cases the results of the election
would be affected by such discrepancy. Evidently the intent of the law is to
distinguish grounds appropriate for a protest.

Private respondent did not meet the requirements of the law.  His allegations were not covered by the above
provision.  Respondent Judge then, upon
his attention being called to such fatal defect, ought to have sustained the
motion to dismiss.  He is devoid of
jurisdiction.  This is a case where the
law is clear.  It speaks in a language
that is categorical.  It is quite
explicit; it is too plain to be misread. 
No interpretation is needed.  All
that is called for is to apply the statutory command.^[12]
Obedience on the part of the lower court is mandatory.  Surprisingly and certainly unjustifiably, he
failed to do so.  He would go ahead and
entertain the suit.  Without his so
intending it, the result was a plain defiance of what is expressly ordained in
the 1971 Constitutional Convention Act. 
Such conduct calls for correction; there can be no more appropriate
occasion for the remedy of certiorari. 
The rule of law cannot be satisfied with anything less.

3.  The conclusion reached by
us gains added strength from the doctrine invariably and consistently adhered
to in the adjudication of cases under the Election Code that a court of first
instance may order a judicial recount only on the statutory grounds therein
specifically enumerated.^[13]
Absent such a showing, it cannot assume jurisdiction.  The boundaries of its competence are spelled
out.  It is thus strictly circumscribed.  It can go no further than the law
allows.  To do so would be to act outside
its competence.^[14]
Respondent Judge was unmindful of such a well-settled principle. This Court,
under the circumstances then, cannot lend the imprimatur of its approval.

Nowhere has this doctrine applied with such undeviating rigidity
been better stated than in Acuña v. Golez.^[15]
In the opinion for the Court by the Chief Justice “Indeed, since
Provincial Board v. Baron, G. R. No. L-3483 (December 16, 1949), we have
consistently adhered to the view that Section 163 of the Revised Election Code
should be construed restrictively * * * because of the special nature of the authority
conferred therein and because otherwise that authority could be so used as to
delay the proclamation of the winning candidate beyond the date set for the
beginning of the term of the office involved. The necessity of avoiding this
contingency becomes apparent when we consider that, the effect of said delay
is, in the case of national offices, for which there is no hold over, to
leave the office without any incumbent, and, in the case of local offices,
whose incumbents may hold over, to often permit the defeated candidate to
unduly extend his tenure, at the expense of the true choice of the
electorate.”^[16]
The remedy of judicial recount, as was emphasized by Justice Makalintal in Navarro v. Tizon,^[17]
“is a special one” that “may be resorted to” only if there
be strict compliance with the statutory requisites.  There is no resisting the conclusion,
therefore, that there was an utter failure on the part of respondent Judge to
abide by the statutory limits set forth by the Constitutional Convention Act of
1971.  The lack of jurisdiction is thus
manifest.

WHEREFORE, the writ of certiorari prayed for is
granted.  The order of respondent Judge
of December 17, 1970
denying the motion to dismiss of petitioner as well as his order of December 22, 1970 denying
petitioner’s motion for reconsideration are declared null and set aside.  The writ of prohibition is likewise granted,
restraining respondent Judge from further taking cognizance of the petition
before him, Election Case No. 4643, filed by private respondent Damaso T. Samonte on December 7,
1970, except for the purpose of issuing an order dismissing the same for lack
of jurisdiction.  With costs against
respondent Damaso T. Samonte.

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

Castro, J., did not take part.

^[1]
Republic Act No. 6132 (1970).

^[2]
Section 6 (H) of the above Republic Act No. 6132 reads as follows: “In
case it appears to the Board of Canvassers that there exist another authentic
copy or copies of returns from an election precinct submitted to the Board giving
any candidate a different number of votes, or there is a difference in
the words and figures of the number of votes for any candidate, and in either
case the difference affects the result of the election, upon motion of the
Board or any candidate affected, the corresponding Court of First Instance
shall proceed to determine summarily on the face of the original and copy or
copies of the returns whether or not the contradiction or difference is the
result of tampering, alteration or falsification of the original or any copy or
copies thereof after they had been signed by the Board of Inspectors; and
should it so find, it shall direct the Board to use whichever document or
documents it finds authentic.  Should the
Court entertain any doubt as to which document is authentic, or should the
contradiction or difference in their contents be an authentic discrepancy, and
if there are no visible signs on the key or on the clamp to which the key is
attached and/or on the ballot box of an attempt to open the box or replace the
key nor signs of welding on any side which would give the court reasonable
grounds to believe that the integrity of the ballot box has been violated, it
may proceed to recount the votes cast in the precinct for the sole purpose of
determining which is the true result of the count of the votes cast in the
precinct in question:  Provided,
however, That if upon opening there are extraneous matters or visible
signs of replacement or tampering, the court may not proceed to recount and
shall forthwith close and seal the ballot box and deliver the same to the Commission
on Elections for safekeeping.  Should it
be impossible to determine the true result of the count, the court shall
instruct the Board that no votes shall be counted from the precinct.”

^[3]
Petition, Annex A, par. 7.

^[4] Ibid,
Annex B.

^[5] Ibid,
Annexes D and E.

^[6] Ibid,
Annex F.

^[7]
Answer of respondent Damaso T. Samonte.

^[8] L-28882,
May 31, 1971, 39 SCRA 303.

^[9] Ibid,
p. 315. Cf. Baguioro v. Barrios, 77 Phil. 120
(1946); Torres v. Peña, 78 Phil. 231 (1947); Jamora v. Blanco, 78 Phil. 497 (1947); General v.
De Venecia, 78 Phil. 780 (1947); Espinosa v. Makalintal, 79 Phil. 134 (1947); Ma-ao
Sugar Central Co. v. Barrios, 79 Phil. 666 (1947); Bangala
v. Barbaza, Jr., 80 Phil. 767 (1948); Nico v. Blanco, 81 Phil. 213 (1948); Alvarez v.
Ibañez, 83 Phil. 104 (1949); Floro
v. Granada, 83 Phil. 487 (1949); Ruperto v.
Tianco, 83 Phil. 943 (1949); Pacific Importing and
Exporting Co. v. Tinio, 85 Phil. 239 (1949);
Rural Progress Administration v. Guzman, 87 Phil. 176 (1950); Muñoz v. Llamas, 87 Phil. 737 (1950); Treasurer of
the Philippines v. Encarnacion, 93 Phil. 610
(1953); Pillado v. Lasala,
95 Phil. 490 (1954); Benga-Oras v. Evangelista,
97 Phil. 612 (1955); Reyes v. Yatco, 100 Phil.
964 (1957); Blaquera v. Rodriguez, 103 Phil.
267 (1958); Phil. Land-Sea Labor Union v. Ortiz, 103 Phil. 409
(1958); Yao Lit v. Geraldez,
106 Phil. 545 (1959); Lopez v. Santiago, 107 Phil. 668 (1960).

^[10]
L-28358, December 8, 1967,
21 SCRA 1178.

^[11]
L-28457, April 30, 1970, 32
SCRA 368.

^[12] Cf. People v. Mapa,
L-22301, Aug. 30, 1967, 20 SCRA 1164; Pacific Oxygen & Acetylene Co. v.
Central Bank, L-21881, March 1, 1968, 22 SCRA 917; Dequito
v. Lopez, L-27757, March 28, 1968, 22 SCRA 1352; Padilla v. City
of Pasay, L-24039, June 29, 1968, 23 SCRA 1349;
Garcia v. Vasquez, L-26808, March 28, 1969, 27 SCRA 505; La Perla Cigar & Cigarette Factory v. Capapas, L-27948 & 28001-11, July 31, 1969, 28 SCRA
1085; Mobil Oil Phil., Inc. v. Diocares,
L-26371, Sept. 30, 1969, 29 SCRA 656; Luzon Surety Co., Inc. v. De
Garcia, L-25659, Oct. 31, 1969, 30 SCRA 111; Vda. de Macabenta v. Davao
Stevedore Terminal Company, L-27489, April 30, 1970, 32 SCRA 553; Republic
Flour Mills, Inc. v. Commissioner of Customs, L-28463, May 31, 1971, 39
SCRA 269; Maritime Company of the Philippines v. Reparations Commission,
L-29203, July 26, 1971; Allied Brokerage Corp. v. Commissioner of
Customs, L-27641, Aug. 31, 1971.

^[13]
According to Section 163 of Republic Act No. 180 (1947) as amended: “In
case it appears to the provincial board of canvassers that another copy or
other authentic copies of the statement from an election precinct submitted to
the board give to a candidate a different number of votes and the
difference affects the result of the election, the Court of First Instance of
the province, upon motion of the board or of any candidate affected, may
proceed to recount the votes cast in the precinct for the sole purpose
of determining which is the true statement or which is the true result of the
count of the votes cast in said precinct for the office in
question.  Notice of such proceeding
shall be given to all candidates affected. “Section 168 is likewise
relevant. Thus: “The municipal board of canvassers shall meet immediately
after the election.  The municipal
treasurer shall produce before it the statements of election from the different
election precincts filed with him, and the board shall count the votes cast for
candidates for municipal offices and proclaim as elected for said offices those
who have polled the largest number of votes for the different offices, in the
same number as hereinbefore provided for the provincial board,
and to that end it shall have the same powers including that of resorting to
the court in the case of contradictory statements.  The municipal board of canvassers shall not
recount the ballots nor examine any of them but shall proceed upon the
statements presented to it.  In case of
contradictions or discrepancies between the copies of the same statements, the
procedure provided in section one hundred and sixty-three of this Code shall be
followed.” The present Election Code, Rep. Act No. 6388 (1971) has a
substantially similar provision in its Section 206.

^[14] Cf. Clarin v. Alo, 94 Phil. 432 (1954); Cawa v.
Del Rosario, 108 Phil. 520 (1960); Lim v. Maglanoc,
L-16566, August 31, 1961, 2 SCRA 1189; Lawsin v.
Escalona, L-22540, July 31, 1964, 11 SCRA 643; Acuña v. Golez, L-25399,
January 27, 1966, 16 SCRA 32; Ong v.
Commission on Elections, L-28415, January 29, 1968, 22 SCRA 241; Sanidad v. Saquing,
L-27951, May 28, 1968, 23 SCRA 878; French v. Commission on Elections,
L-28561, July 8, 1968, 24 SCRA 23; Navarro v. Tizon,
L-28524, July 29, 1968, 24 SCRA 374; Villalon v.
Arrieta, L-29177, September 30, 1969, 29 SCRA 671; Abrigo v. Commission on Elections, L-31374, January
21, 1970, 31 SCRA 26; Baloria v. Abalos, L-28457, April 30, 1970, 32 SCRA 368.

^[15]
L-25399, January 27, 1966,
16 SCRA 32.

^[16] Ibid,
pp. 37-38 citing Parlade v. Quicho, 106 Phil. 1171 (1959); Samson v. Estenzo,
106 Phil. 1140 (1960); Lawsin v. Escalona, L-22540, July 31, 1964, 11 SCRA 643.

^[17]
L-28524, July 29, 1968, 24
SCRA 374.