JOHN H. OSMEÑA, PETITIONER, VS. HON. AGAPITO HONTANOSAS, ET AL., RESPONDENTS.

Petitioner John H. Osmeña prays that
respondent Judge Agapito Hontanosas
be ordered to cease and desist from taking further proceedings in Civil Case
No. R-11477 before him in the Court of First Instance of Cebu
(Branch XI), and from enforcing the writ or preliminary injunction issued by
him on December 3, 1969 in the aforesaid case; that respondent Judge be ordered
to dismiss the petition in said Civil Case No. R-11477; and that respondent
Provincial Board of Canvassers of Cebu be ordered to convene itself and forthwith canvass the votes
cast for the office of Representative of the second representative district of Cebu in the elections of November 11, 1969 and thereafter to proclaim the
candidate duly elected to said office.

On December 23, 1969
this Court issued a temporary restraining order directing the respondent Judge,
until further orders from this Court, to cease and desist from taking further proceedings in Civil Case No. R-11477
of the Court of First Instance of Cebu, without prejudice
to the effect of the preliminary injunction is­sued by him on December 3, 1969 in the aforesaid case.

Originally, respondent Josefino Almendras, along with Bernardino Florido
and Merilito Aznar,
petitioned the Court of First Instance of Cebu, in an
ordinary civil action, docketed as Civil Case No. R-11477 in said court, to declare
the election in the City of Cebu, which took place on
November 11, 1969, null and void ab initio, and to enjoin the Provincial Board of
Canvassers of Cebu to desist or refrain from making
any canvass of the votes cast for the office of Representative for the second
representative district of Cebu and to desist from
proclaiming the winner thereof, because: 
(1) on election day, on November 11, 1969 an unruly mob gathered in the
premises of the Comelec office in Cebu
City forcing officials of said office to close the office and flee for their
lives; (2) at about 4:00 in the afternoon of that day Eliseo
Blancaflor (Policy Adviser of the Comelec),
allegedly on orders of the Commission on Elections, unlawfully gained entrance
into the Comelec office in City of Cebu and allowed the henchmen of the Liberal Party to
ransack the files of the office and extracted therefrom
all the lists and voters’ applications and ordered them to be distributed to
the different precincts of the City of Cebu, thereby
allowing some 23,000 voters to cast illegal votes; (3) as a result of the
illegal acts of Eliseo Blancaflor
some 17,000 voters allegedly ordered excluded by Judges Laya
and Villasor, of the Court of First Instance of Cebu, were allowed to vote; (4) in some precincts of Cebu City voting was actually done even until morning,
contrary to law, allowing voters without the proper registration forms and
pictures to cast their votes; (5) the voting records delivered by order of Eliseo Blancaflor to the polling
places were not sealed and signed by the corresponding election registration
boards in violation of the law and of the rules and regulations promulgated by
the Commission on Elections, thus giving rise to frauds in the casting of the
votes; (6) as a result of the illegal orders of Eliseo
Blancaflor the three copies of the registration forms
of individual voters were brought and distributed illegally to different
precincts, thus allowing a single voter to vote three times in three different
precincts contrary to law; and (7) as a consequence of the foregoing facts,
events and circumstances the election in the City of Cebu,
on November 11, 1969, is null and void from the very beginning, it being
impossible to separate the legal votes cast from the illegal ones.

On the same day that the petition in Civil Case No. R-11477 was
filed respondent Judge issued, ex parte,
a writ of preliminary injunction directed to the Provincial Board of Canvassers
of the province of Cebu restraining it from
making any canvass of the votes cast for the office of Representative for the
second representative district of Cebu and/or from
proclaiming the duly elected Congressman for said district.

On December 8, 1969
petitioner John H. Osmeña filed an urgent motion, to
dissolve the writ of preliminary injunction issued on December 3, 1969 and to dismiss the petition in
Civil Case No. R-11477.  In support of said urgent motion, petitioner
contended that respondent Judge “has no jurisdiction to entertain the
petition and to issue the writ of preliminary injunction, because:  (1) there is no law authorizing the courts to
annul an election except in a regular election protest; (2) the alleged irregularities
should be ventilated in an election protest; and (3) in the case of petitioner Osmeña it is the House Electoral Tribunal that is the sole
judge of the election and returns.”

The respondent Judge, on December
19, 1969, denied the motion to dismiss as well as the prayer to
dissolve the writ of preliminary injunction. 
Hence petitioner Osmeña filed before this
Court the present petition for certiorari, prohibition, and mandamus,
with preliminary injunction.

This case was heard on oral argument on January 10, 1970. 
After a careful consideration of the arguments adduced by the parties,
in their pleadings as well as during the oral argument, and of the facts extant
in the record, this Court RESOLVED, as follows:

(a)  
To grant the writs of certiorari
and prohi­bition prayed for, since Court of First Instance have no jurisdiction
to nullify votes cast in a congressional election, apart from the fact that
there is no showing for whom the alleged illegal votes were cast as would
affect the result of the election;

(b)  
To declare permanent the
restraining order issued by this court on December 23, 1969;

(c)  
To set aside the writ of
preliminary injunction issued by respondent Judge Agapito
Hontanosas on December 3, 1969 in Civil Case No. R-11477 of the Court
of First Instance of Cebu, and to order said
respondent Judge, or whoever is the judge that acts in his place, to dis­miss
said case;

(d)  
To order the respondent Provincial
Board of Canvassers of Cebu to convene and canvass
the votes cast for the candidates for the office of Representative for the
second representative district of Cebu in the elections
of November 11, 1969, and to proclaim the result, not later than noon of
Saturday, January 24, 1970.

This resolution is immediately executory
upon promulgation.  No pronouncement as
to costs.

Let copy of this resolution be furnished the Commission on
Elections.

SO ORDERED.

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