EUSTAQUIO R. CAWA, ET AL., PETITIONERS, VS. HON. VICENTE DEL ROSARIO, ET AL., RESPONDENTS.

This is a petition seeking to set aside the decision rendered by
respondent judge on February 19, 1960 ordering the municipal board of
canvassers of Buenavista, Quezon, to proceed with the canvassing of
votes on the basis of the municipal treasurer’s copy of the election
return for Precinct 2-A before its alleged amendment and to proclaim
the winning candidate for the office of municipal mayor, awarding costs
and attorney’s fees in the amount of P1,000.00 and damages in the
amount of P500.00, as well as his order of March 25, 1960 denying the
motion for reconsideration and granting the motion for immediate
execution. Petition also prays for the issuance of a writ of
preliminary injunction.

In a resolution entered on April 4,
1960, the petition was given due course and the writ prayed for was
granted upon petitioners’ posting of bond of P1,000.00.

Eustaquio R. Cawa and Primitivo R. Pasta were the only registered
candidates for Mayor of Buenavista, Quezon, in the elections held on
November 10, 1959. In said municipality there were six election
precincts, namely, 1, 1-A, 2, 2-A, 3 and 3-A. During the canvassing
conducted by the municipal board of canvassers of the election returns
of said precincts, except Precinct No. 2-A Cawa obtained 609 votes while Pasta 623 votes.

In the election return for Precinct No. 2-A submitted by the municipal
treasurer, the municipal board found the following discrepancies: Cawa
received 62 votes in words and 102 votes in figures, while Pasta
received 102 votes in words and 62 votes in figures. The board also
found that in the copy of the election return for said precinct
furnished the provincial treasurer, Cawa received 102 votes in words
and in figures, while Pasta received 62 votes in words and in figures.
In the copy furnished the Commission on Elections, the board also found
102 votes in words and in figures for Cawa, while Pasta received 62
votes in words and in figures. In view of these discrepancies, the
municipal board of canvassers chose to suspend the canvass of votes as
regards the office of mayor until the true result of the count of votes
in said precinct could be determined by the proper court under Sections
163 and 168 of the Revised Election Code.

On November 19,
1959, Eustaquio R. Cawa, together with the chairman of the board of
election inspectors for Precinct No. 2-A, Miss Caridad Lago, and the
poll clerk Profiteza Budoy, filed a verified petition with the Court of
First Instance of Quezon asking (a) for authority to correct the
number of votes appearing in the municipal treasurer’s copy of the
election return for said precinct; and (b) in the event that it
be denied, a recounting be ordered under Section 168, in relation to
Section 163, of the Revised Election Code (Case No. 360-G). When the
petition came up for hearing, respondent judge denied, the request for
authority to correct on the ground that the chairman of the board and
the poll clerk do not constitute the majority of the members of the
board of inspectors who are authorized by law to ask for such
correction, and with regard to the petition for recounting, it was
likewise denied unless the members of the municipal board of canvassers
be included as party petitioners. The Court is of the opinion that a
candidate for the office who is affected by the recount cannot alone petition for such recount.

Yielding to the opinion of the court, Eustaquio R. Cawa filed a motion
for leave to admit his amended petition joining as co-petitioners the
majority members of the municipal board of canvassers, but before
respondent judge could act on said motion, Primitivo R. Pasta, opponent
of Cawa, filed a petition for mandamus, which was later amended,
praying that the municipal board of canvassers be compelled to count
the total votes received by each candidate in the election returns from
all the six precincts of the municipality and that with respect to
Precinct 2-A that the court declare null and void the number of votes
written in figures opposite the names of the candidates and to consider only the number of votes written in words
(Civil Case No. 366-G). Respondents therein were required by the court
to answer, not to file a motion to dismiss, within 10 days from notice,
which they did wherein they set up several special defenses showing
that the canvassing would be futile because of the discrepancy
appearing in the number of votes for the office in question in the
election return of the municipal treasurer for Precinct 2-A.
Immediately upon filing their answer, respondents therein received copy
of the order of the court denying their motion for leave to amend their
petition on the ground that its purpose is not to correct as stated in
the original petition but to recount the votes which, in the opinion of
the court, is in violation of the rules.

Confronted with
this adverse ruling, the majority members of the municipal board of
canvassers, on December 28, 1959, filed a verified separate petition
for recount based on the same ground of discrepancy appearing on the
election return for Precinct 2-A which was docketed as Election Case
No. 369-G. When this petition came up for hearing, petitioners therein
were surprised when they were informed by respondent judge in open
court that their petition could not be entertained because they failed
to include as respondents all the affected candidates, and so, yielding
to the opinion of the court, they filed an amended petition as
suggested. And not to be outdone, considering himself to be the one
directly affected, Eustaquio R. Cawa filed another petition for
recounting based on the same ground of discrepancy in the same election
return not only insofar as its contents are concerned but also when it
is compared with the election returns in possession of the provincial
treasurer and the Commission on Elections (Election Case No. 372-G).
And confronted with the three cases for recounting and the one for
mandamus which involved similar issues and same parties, the court held
a joint trial wherein both oral and documentary evidence was presented.
Thereafter, the court rendered decision dismissing the three cases
for recounting but granting the writ of mandamus, and to that effect it
ordered the municipal board of canvassers to proceed with the
canvassing of the election returns of Buenavista but taking into
account the election returns of Precinct 2-A before its amendment by
Caridad Lago under the circumstances pointed out in the decision, and
awarding to petitioner damages and attorney’s fees.

The
issues posed by petitioners are: (1) When all the requisites prescribed
in Sections 163 and 168 of the Revised Election Code are present, is it
mandatory for the court to recount the votes?; (2) Is the remedy of
mandamus available while the petition for recount is pending?; (3)
Before the finality of the judgment in a case of mandamus, may a writ
of execution be granted without a hearing?; and (4) Has respondent
judge acted with grave abuse of discretion?

The pertinent
provisions of the Revised Election Code covering the issues herein
involved are Sections 163 and 168, which are quoted hereunder:

“Section 163. When statements of a precinct are contradictory.—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. 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 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 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.”

It would appear from the above that the canvass of the election for a
municipal office shall be undertaken by the municipal board of
canvassers on the basis of the statements or election returns submitted
to it by the municipal treasurer, and that in case of contradictions or
discrepancies between the copies of the same statements or returns, the
court of first instance of the province, upon motion of the board or
any candidate affected, may proceed to recount the votes cast in the
precinct involved 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. As to what election returns
are involved, this has already been clarified in the Parlade case.^[1]
They only refer to the return in possession of the municipal treasurer
and to the authentic copies in possession of the provincial treasurer
and the Commission on Elections. The discrepancies must appear “between
copies of the same statements”, and do not refer to those appearing in
an election return and in the certificate of votes that may be given to
the watchers by the inspectors. The law is also clear as to who may
move for the recount. It says “upon motion of the board or of any
candidate affected.” No other party is authorized.

Having
these authorities in mind, we may ask: Do the cases before us present
facts which show that a recount of the votes is necessary in order that
the true result of the election may be known ? The answer must of
necessity be in the affirmative, for here it clearly appears that the
election return for Precinct 2-A in possession of the municipal
treasurer of Buenavista which was submitted to the municipal board of
canvassers appears not only to contain discrepancies on its face but is
in conflict with the entries appearing in the election returns for the
same precinct in possession of the provincial treasurer and of the
Commission on Elections. But the record discloses more than what we
have just noted. The series of steps taken by the very officials or
parties authorized by law to ask not only for correction but even for
recounting of votes were apparently sidetracked if not altogether
disregarded by the trial court to the detriment of public interest.

Thus, it appears that because of the discrepancies appearing on the
face of the election return in dispute, Eustaquio R. Cawa, the
candidate affected, together with the chairman of the board of election
inspectors and the poll clerk, filed a verified petition for authority
to correct the number of votes cast for the different candidates and,
in the alternative, for authority to recount the votes under Section
168 in relation to Section 163 of the Revised Election Code. This was
not entertained on the ground that the chairman and the poll clerk
cannot represent the board in asking for the required relief under the
above provision of law. But it should be noted that the prayer is in
the alternative form, one for correction and another for recount, and
the motion was filed not only by the chairman and poll clerk but also
by the very candidate affected. That being the case, the trial
court was in error in ignoring the petition because under the law a
candidate affected is authorized to file such petition even if he does
it alone.

Then came the verified petition of the majority of
the members of the municipal board of canvassers praying for the same
relief on the same ground of discrepancy existing between the election
return in dispute and those in the possession of the provincial
treasurer and the Commission on Elections. Again, no action was taken
on this motion, because its consideration was only taken up when the
petition for mandamus came up for hearing before the court. Finally,
apparently impatient for the apparent inaction of the court, Eustaquio
R. Cawa himself, the candidate affected, filed also a verified petition
for recounting based on the same ground. And when these three cases for
recount were tried jointly with the petition for mandamus, the trial
court dismissed the cases for recount but granted the petition for
mandamus on the ground that if discrepancies appear in the return they
were the result of an unauthorized action on the part of the chairman
of the board of inspectors, Miss Caridad Lago, who wrote some figures
thereon without authority from the court. The trial court further
justified its denial of the recount by making the following comment:
“The Court cannot consult the ballots because it will have a different
criterion of appreciating their validity from that of the election
inspectors who in appreciating the ballots must necessarily be
different from that criterion which the Court might adopt in
appreciating the ballots of the contending candidates. No two human
judgment coincide on varied controverted facts of varying nature and
scope.”

As to why in the election return in dispute Cawa
received 62 votes in words and 102 votes in figures, while Pasta
received 102 votes in words and 62 votes in figures, Miss Lago
explained that she wanted to correct the number of votes appearing
after the names of Pasta and Cawa in order to make them conform with the number of votes appearing after their names in the other copies of election return for the same precinct,
but was able to go as far as correcting the figures only, and this was
done with the approval of one inspector and the poll clerk who also
intervened in the preparation of said returns. That Miss Lago was right
in making the correction is borne by the fact that in the copies of the
election returns in possession of the provincial treasurer and the
Commission on Elections Cawa received 102 votes in words and figures
while Pasta received 62 votes in words and in figures. There was,
therefore, every reason not only for correction but for recounting and
yet the move was denied by the trial court. Even granting that the
correction made by Miss Lago was unauthorized, however, she wanted to
rectify the same by asking the court for the necessary authority, but
her request was denied on a mere technical ground. And even if erasures
were found by the trial court on the face of the copies of the election
returns in possession of the provincial treasurer and the Commission on
Elections, they should not however deter the court from complying with
the law with regard to the recount for, undoubtedly, if said erasures
are true, they furnish additional reason why the recount should be
made. Only in that way can the truth be determined and the true result
of the election ascertained.

In expressing the opinion that
it cannot consult the ballots for it will have a different criterion of
appreciating them from that of the election inspectors because no two
human judgment can coincide, the trial court undoubtedly is of the
impression that it can exercise such discretion in acting on a motion
for a recounting of votes. No such authority is contemplated by law.
The law is explicit that the proceeding is summary in nature and merely
consists in the mathematical counting of the votes received by each
candidate. It does not involve any appreciation of the ballots or
determination of their validity as is required in an election contest.
The only purpose of the recount is merely to count the number of votes
received by each candidate as they appear on the face of the ballots.

“*
* * any conflict between the several statements and certificates issued
by the same board of election inspectors as to the result of the
election regarding municipal and provincial positions should be right
away threshed out by the summary procedure of the judicial recounting
of the voters, which will take a small fraction of the day. The purpose
of the law is to offer a prompt relief to a simple controversy that can
immediately be settled through a summary judicial proceeding that may
dispense with the long drawn and complicated proceedings of a
full-dressed electoral contest and, at the same time, * * * to restore
public tranquility by dispelling all doubts as to the true number of
votes cast in a given precinct. Legal technicalities should be used to
help in arriving at a clear intention of the law and not to defeat said
intention.” (Board of Election Inspectors vs. Piccio, 81 Phil., 577)

Moreover, the remedy of mandamus lies only where the party concerned
“unlawfully neglects the performance of an action which the law
specifically enjoins as a duty” or “unlawfully excludes another from
the use and enjoyment of a right or office to which such other is
entitled” and “there is no other plain, speedy and adequate remedy in
the ordinary course of law” (Section 3, Rule 67, of the Rules of
Court). Here there is no such neglect in the performance of a duty
enjoined by law. On the contrary, the municipal board of canvassers,
petitioners herein, wanted to perform their duty of canvassing the
results of the elections but were prevented from doing so because of
the discrepancy they found in the election return in question, and so
that they may proceed with the canvassing, they took the only step
offered to them for that purpose—to file a motion for recount as
authorized by law. And, then, petitioners cannot find their way to
comply with the injunction of the trial court that they proceed with
the canvassing taking into account the election return as originally
prepared or before its amendment by Miss Lago for then they will be
confronted by the fact that the same is at odds with the election
returns in the possession of the provincial treasurer and the
Commission on Elections. Verily, the trial court committed an error in
sustaining the petition for mandamus.

Wherefore, the
decision of the trial court dated February 19, 1960, as well as its
order of March 25, 1960 granting the motion for immediate execution,
are hereby set aside. The trial court is hereby ordered to proceed with
the recount of the votes as prayed for by petitioners in the several
motions they filed to that effect. Costs against respondent Primitivo
R. Pasta.

Paras, C. J., Bengzon, Montemayor, Labrador, Concepcion, Barrera, and Gutierrez David, JJ., concur.

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^[1] Parlade vs. Quicho, G. R. No. L-16259, December 29, 1959.