JOSE “PEPING” NAVARRO, PETITIONER, VS. COMMISSION ON ELECTIONS AND JOSE “PEMPE” MIRANDA, RESPONDENTS.

This is a special civil action for certiorari with a
prayer for the issuance of a temporary restraining order or a preliminary
mandatory injunction, to enjoin: (a)
respondent Commission on Elections (COMELEC) from implementing its questioned
Resolution dated June 29, 1992, and (b) the proclamation of private respondent as Mayor of Santiago, Isabela.

Petitioner Jose “Peping” Navarro and private respondent
Jose “Pempe” Miranda were mayoralty candidates in Santiago, Isabela during the synchronized elections
held on May 11, 1992.

Petitioner lost to
private respondent.

On May 21, 1992, petitioner filed with the COMELEC an appeal
under Section 245 of the Omnibus Election Code, in relation to Section 20 of
R.A. No. 7166, to annul and set aside the rulings of the Board of Canvassers of
Santiago, Isabela and the order of Manuel Agpalo, the acting Provincial
Election Supervisor in the canvassing of votes in the mayoralty contest (SPC.
No. 92-116). The petition alleged that:

1) The respondent
Board erred in not issuing to the appellant a written notice of the canvassing
that took place on May 12, 1992, in
violation of Section 228 of the Omnibus Election Code;

2) The respondent Board erred in continuing
with the canvassing of the election returns despite appellant’s petition to
disqualify Domingo Gorospe and Rodrigo Santos to sit in the board of
canvassers, whose integrity have been assailed for obvious partiality towards
the candidacy of Jose Miranda;

3) The respondent
Board erred in continuing with the canvassing of contested returns despite
verbal and written petitions to exclude, supported by clear and convincing
evidence;

4) The respondent Board erred in continuing
with the canvassing of contested election returns despite the filing of notices
of appeal by appellant and for failure to observe the provisions of Section 20,
7166;

5) Respondent Agpalo erred
in issuing an order setting aside appellant’s notice of appeal, a denial of due
process” (Rollo, pp. 188-189).

In his Answer/Opposition, private respondent alleged that:

1) Petitioner failed to
make a timely objection to the
118 returns from the 118 precincts subject matter of the appeal (Rollo, p. 42).

2) The affidavits
submitted by petitioner in support of his written objections to the 118
precincts do not make out a prima facie case showing the existence of
fraud, irregularity or other circumstances constituting the ground for the
objection (Rollo, p. 44).

In his Supplemental Answer, private respondent further alleged: a) that like petitioner, he was not given a
written notice by the Board of Canvassers of its initial meeting; b) that two
lawyers appeared in representation of petitioner at the meeting of the Board of
Canvassers; c) that said lawyers did not register their objections to the
regularity of the proceedings; d) that also present at the meeting were several
supporters of petitioner; and e) that, at any rate, such failure of the Board
of Canvassers to give notice of the initial meeting was not his fault and a
ground for a pre-proclamation controversy (Rollo, pp. 48-49).

In its Resolution dated June 29, 1992, the COMELEC en banc dismissed the petition without prejudice to the
filing of a regular electoral protest (Rollo, pp. 37-51).

Hence, this petition which alleges that the COMELEC has gravely
abused its discretion:

1) When it upheld the regularity of the
canvassing of the election returns inspite of the lack of due notice thereof
and the failure of the board of canvassers to attach the proof of service of
notice to the records;

2) When it allowed the municipal board of
canvassers to continue with the canvassing despite the filing of the motion to
disqualify some of the members;

3) When it upheld the illegal composition of
the board;

4) When it affirmed the anomalous membership of
a fourth member of the board, who prepared the minutes under the Domingo board
and Acierto board and erased from said minutes petitioner’s participation
during the proceedings; and

5) When it arbitrarily
ruled that the grounds raised for excluding 118 returns are not grounds for
pre-proclamation (Rollo, pp. 151-152).

The COMELEC found that petitioner failed to make timely
objections to the alleged illegal acts committed by the Board of Canvassers, as
well as to its composition and proceedings.

The COMELEC stated that:

“In the light of these conflicting claims, resort to the
minutes of the respondent board is necessary.

Significantly, nothing in the said minutes will show any such
objection by petitioner or his counsels of the said respondent Board’s failure
to send notices to the candidates or political parties as required under
Section 228 of the Omnibus Election Code. Or that if such objections were raised, the same was pursued to the end. Neither is there in the Minutes any showing
that petitioner’s objection to the composition of respondent Board particularly
Chairman Gorospe and Vice Chairman Santos was
made pursuant to the procedural requirement provided for by Section 19,
R.A. No. 7166. Failing thus, petitioner
cannot now raise and pursue said objections for the first time in this appeal.

At this juncture, it needs re-stating that this instant appeal is
on the various rulings of respondent Board on the following objections raised
before it by the Petitioner, to quote:

1.     Misreading of ballots;

2.    
Interchanging of results;

3.    
Tampering/falsification of election returns;

4.    
Discrepancies in the Returns;

5.    
Election Returns prepared under duress; threats, coercion or
intimidations;

6.    
Substitute/fraudulent returns will materially affect the
standing of the aggrieved candidate (Annex “I”, “J” and
“K”).

Petitioner’s injection therefore of matters related to the
composition or proceedings of respondent Board in the discussion of the instant
appeal is a failed attempt to resurrect an abandoned right. In fine,
petitioner/appellant raised, although belatedly and at a time when estoppel had
set in, grounds which could have been proper for a pre-proclamation controversy
but for his failure to pursue it in the manner and within the period provided
for by law. This is fatal.

Going over the grounds
relied upon in the instant appeal, the Commission is not persuaded to consider
the same as appropriate in a pre-proclamation case. Likewise, the evidence submitted does not warrant such a finding”
(Rollo, pp. 49-51).

The main issue in this petition is whether or not petitioner made timely oral objections as to
the alleged illegal proceedings and composition of the Board of Canvassers.

The finding that petitioner failed to make timely objections to
the composition and the proceedings of the Board of Canvassers involves a
question of fact, which is left to the determination of the COMELEC.

The Constitution did not intend to place the COMELEC – explicitly
made independent by the Constitution itself – on a lower level than that of statutory administrative agencies, whose factual findings are
generally not disturbed by the courts
except when there is no substantial evidence to support such findings. Factual matters are not proper for
consideration in proceedings
brought either as an original
action for certiorari or as
an appeal by certiorari. The main issue in the former case is one of
jurisdiction – lack of jurisdiction or grave abuse of discretion amounting to
excess of jurisdiction; while in the latter case, the issues are limited to the
consideration of questions of law (Padilla v. Commission on Elections,
137 SCRA 424 [1985]).

In the absence of jurisdictional infirmity or error of law, the
conclusion reached by the COMELEC on a matter that falls within its competence
is entitled to utmost respect (Pimping v. Commission on Election, 140 SCRA 192
[1985]).

Petitioner, more particularly, failed to follow the procedure
laid down in Section 244 of the Omnibus Election Code, which provides:

“Parties adversely affected by a ruling of the board of
canvassers on questions affecting the composition or proceeding of the board
may appeal the matter to the Commission within three (3) days from a ruling
thereon. The Commission shall summarily
decide the case within five days from the filing thereof.”

and Section 7 of the COMELEC Rules of
Procedure, which provides:

“Procedure before the Board of Canvassers when composition or
proceedings of the board are contested.

a) When the composition or proceedings of the
board of canvassers are contested, the board of canvassers shall, within 24
hours, make a ruling thereon with notice to the contestant who, if adversely
affected, may appeal the matter to the commission within 5 days after the
ruling with proper notice to the board of canvassers.”

With respect to the alleged mistakes committed by the Board of
Canvassers in the inclusion of certain returns, petitioner failed to follow the
procedure laid down in Section 245 of the Omnibus Election Code. This provision requires that the party
contesting the inclusion or exclusion in the canvass of any election returns
should interpose his verbal objections to the Chairman of the Board of
Canvassers at the time the questioned return is presented for inclusion or
exclusion.

As to Zenaida Taguba, the alleged fourth member of the Board of
Canvassers, there is nothing on record to show that she participated in the
proceedings of the said Board. At most,
she merely acted as a secretary, whose work involved the purely mechanical act
of taking down notes of the discussion.

WHEREFORE, the Court Resolved to DISMISS the petition.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Regalado,
Davide, Jr., Romero, Nocon, Bellosillo, Melo, Puno, and Vitug, JJ., concur.