G.R. No. L-22540. July 31, 1964
BARTOLOME LAWSIN, PETITIONER, VS. HON. GODOFREDO ESCALONA, JUDGE OF THE COURT OF FIRST INSTANCE OF LEYTE, BR. I, AND VIRGINIO A. ASTILLA, RESPONDENTS.
REYES, J.B.L., J.:
Bartolome Lawsin, and respondent, Virginio Astilla, were duly
registered official candidates of the Nacionalista and Liberal parties,
respectively, for one of the posts for councilors in the City of
Tacloban. On November 27, 1963, Astilla filed a verified petition in
Branch I of the Court of First Instance of Leyte (Election Case No.
3423) pleading that the election inspectors of Precinct No. 65 had
erroneously credited candidate Lawsin with seventy-five (75) votes in
the election returns, instead of sixty-five (65) votes, as shown in the
tally board and certificates of votes duly issued by the election
inspectors; that the said discrepancy erroneously credited candidate
Lawsin an addit.oual ten (10) votes, an error which would affect the
result of the elections in that were it not for the same petitioner
Astilla should be rightfully declared elected with a majority of eight
votes over Lawsin; and prayed for the recount of the votes cast in said
precinct 65 of Tacloban City
Lawsin answered denying that any error was committed; that an action
involving same facts, parties, cause of action, and ultimate relief was
already pending before Branch IV of the same court, being Election Case
No. 3415; and that the petition stated no cause of action, in that a
discrepancy between the election returns and the corresponding tally
board or tally sheet did not warrant a recount of votes under section
163 of the Revised Election Code.
It is admitted that eleven clays previous to the petition in this
case, i.e., on November 16, 1963, Astilla had docketed, in Branch I of
the Court of First Instance of Leyte, a petition against Bartolome
Lawsin, the City Treasurer of Tacloban, and the Boards of Election
Inspectors of Precincts (55 and 70, seeking to compel the latter to
correct their election returns, on the basis of the same discrepancy
between the 75 votes credited to Lawsin and the allegedly true number
of votes (65) cast for him. Later, on November 25, 1064, an amended
petition was filed, praying for a recount of votes as alternative
remedy. The amendment was subsequently withdrawn, and the present
petition for recount was filed independently in Branch IV. This
petition for correction of returns was dismissed by Judge Elias B.
Asuncion of Branch I, and the judgment was sustained by the Court in R.
G. No. L-22246, decided on February 29, 1964.
But while said case (L-22246) was still pending in the Supreme
Court. Judge Godofredo Escalona of Branch IV of the Court of First
Instance of Leyte, on January 22, 1964, adjudged that Astilla was
entitled to a recount due to the discrepancies alleged in his petition,
and enjoined the board of canvassers from proclaiming Lawsin. The
latter moved for a reconsideration, and upon its denial resorted to the
Supreme Court on Certiorari and Prohibition, no appeal being provided
for by law. Upon his request, and the posting of a bond of P1,000.00,
this Court issued a preliminary injunction to halt further proceedings
in the case below.
The issue squarely presented, both in the Court of First Instance
and in this Court, is whether a discrepancy between the tally board or
tally sheet and the election returns constitutes sufficient ground for
the Court of First Instance to order a recount of the votes cast in the
precinct affected (No. 65 of Tacloban City). Section 163 and 168 of the
Revised Election Code provide as follows:
“163. When statements of a precinct are
contradictory.—In 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 tie 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.”“168.
Canvass of the election for municipal offices. The municipal board of
canvassers shall meet immediately after the election. The municipal
treasurer shall produce before it the statements of the 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 manner as hereinbefore
provided for the provincial board, and to that end it shall have the
same powers including that of reporting 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.”
We have held in Parlade vs. Quicho, G. R. No. L-16259, December 29, 1959, that a judicial recount of votes under section 163—
“is a special authority conferred on the
Court and must be restrictively construed, so as not to extend to other
cases that may, more or less, bear some resemblance to the situation
described in said sections”;
that the discrepancy between the statement and another copy or other authentic copies thereof
(mentioned in sections 163 and 168) means a variance existing between
copies of the statement of the election returns presented by the local
treasurers to the respective boards of canvassers, “exclusively”, as
stated in Galang vs. Miranda, 36 Phil., 316, p. 320; and that
a discrepancy between the election returns and a certificate issued to
the watchers is not a ground for a recount, because said certificate is
not the authentic copy of the statement of election returns
contemplated by the law.
The Parlade ruling is decisive in the case before us. It should be
obvious that if a discrepancy between the statements of election
returns and a certificate signed by the inspectors and issued to a
watcher docs not warrant a recount as ruled in that case, then a
variance between the returns and the corresponding tally board or
sheet can not be a ground for a recount either, since the sheet is not
a copy of the former. Tally board and tally sheet were already provided
by law and were in life in previous elections (see R.A. No. 180 (1947)
section 148) and yet they were not included or referred to in sections
163 and 168 of the Election Code as documents to be taken into account
in determining discrepancies that justify a recount.
It is argued that under the “instructions for Boards of Inspectors”,
issued by the Commission on Elections in 1963, the votes counted are
recorded in the tally board by the poll clerk and on the tally sheet by
one inspector; that the tally sheet is certified by the later as true
and correct, while the chairman, the other inspector and the poll
clerk certify in turn that it is the tally sheet used by the certifying
inspector, so that the tally sheet has the same guarantees of
authenticity as the election returns. Yet a certification of
correctness by one inspector is certainly not the equivalent of a
certification by all the members of the board of inspectors, who, in
the case of the election returns, collectively attest that the data
contained therein are true and correct. The additional precautions
prescribed by the Commission on Elections, pursuant to its regulatory
power, would not warrant the conclusion that the tally sheet is one of
the authentic copies referred to in Section 163, since the Commission
on Elections may not increase its scope, nor alter or amend the
Election Code elected by the Legislature. If sections 163 and 168 did
not originally include the tally sheet (or board), the Commission is
powerless to subsequently insert it therein.
The special nature and limited scope of the summary judicial recount
provided by section 168 of the Election Code is admittedly aimed at
delaying as little as practicable the proclamation of the winning
candidate, without prejudice to a thorough revision of the election
results in proper cakes by means of the corresponding election protest,
which is the normal process provided for the purpose. To multiply the
grounds for a recount of votes before a proclamation by the board of
canvassers is made has the effect of downgrading the election protest
as a remedy, and to prolong the periods during which the contested
positions will remain without an occupant, thereby provoking suspicion,
conjecture, and unrest. The case at bar is a prime example; over six
months have elapsed since the election without the canvassers being
able to make a proclamation. Thus it seems fair and just to require
clear statutory authority for a recount based on discrepancies found
elsewhere than in election returns.
But there is another ground upon which Astilla’s petition for
recount should be denied; by filing separate proceedings for the
correction of the returns and for the recount of votes, respondent
herein, Virgilio Astilla, was guilty of splitting one and the same
cause of action. The operative facts were the same in the two cases he
has filed in the Court of First Instance of Leyte, to wit, the averred
discrepancy between the tally sheet and the copies of the election
returns, whereby Lawsin was allegedly credited with ten more votes than
he really obtained, to the prejudice of Astilla. Upon that single cause
of action[1] , Astilla could
seek either a correction of returns or a recount, but not make it the
subject of two or more suits, either simultaneously or successively.
Wherefore, in accordance with section 4 of Rule 2 of the Revised Rules
of Court (also section 4 of Rule 2 of the old Rules), the judgment in
the correction case should be a bar to the other suit for recount.[2]
Even when he resorted to this Court (in case L-22246) against the
denial by Judge Asuncion of his petition for correction, Astilta could
still have asked that this Court direct the Judge to order a recount;
but he did not do so, evidently .preferring to continue with the
separate proceeding before Judge Escalena, and thereby maintain an
unnecessary multiplicity of suits. This fact was called by petitioner
Lawsin to the attention of respondent Judge, but the later improperly
failed to consider it. The result, as previously observed, was to
unwarrantedly delay the .proclamation for eight months, contrary to the
spirit of the Election Code.
Respondent Astilla urges that the certiorari petition should be
considered barred for not having been interposed within five days,
citing section 178 of the Election Code. That legal provision, be it
noted, clearly refers to an appeal from a decision in an electoral
protest. We have found no unnecessary delay in Lawsin’s seeking
reconsideration, nor in his resort to this Court, allowing for the fact
that the judgment complained of was rendered in Leyte. Basically, the
delay was due to Astilla’s filing two suits for one and the same cause
of action.
For the foregoing reasons, the lower court’s order for recount and
its injunction against a proclamation by the municipal board of
canvassers are hereby revoked and set aside, and the preliminary
injunction issued heretofore by this Court is made permanent. Costs
against respondent Virginio Astilla.
Bengzon, C. J., Bautista Angelo, Concepcion Parades, Regala and Makalintal, JJ., concur.
[1] Cf. Baguioro vs. Baguio, 77 Phil., 120
[2] Camara vs. Aguilar, 94 Phil., 527; 50 Off. Gaz, 1549; Lavarro vs. Labitona, 54 Phil., 791-792.