DR. CESAR SAMSON, PETITIONER, VS. HON. NUMERIANO G. ESTENZO, JUDGE OF THE COURT OF FIRST INSTANCE OF LEYTE, 13TH JUDICIAL DISTRICT, 5TH BRANCH AT ORMOC CITY, AND (MRS.) ASUNCION…

This is a petition for certiorari and prohibition to enjoin the
Court of First Instance of Leyte, presided over by respondent Judge,
Hon. Numeriano G. Estenzo, from enforcing its order of December 1,
1959, to open the ballot boxes of Precincts Nos. 8, 17 and 28, of Ormoc
City and make a recount of the votes therein cast. The petition,
likewise, contained a prayer for a writ of preliminary injunction,
which we issued upon the filing of the requisite bond.

Petitioner Dr. Cesar Samson and respondent herein, Mrs. Asuncion
Conui Omega, were, among others, candidates for councilor of the City
of Ormoc in the general elections held on November 10, 1959. After a
canvass by the City Board of Canvassers of the votes then cast, it
appeared, on November 23, 1959, that Samson had garnered enough votes
to be proclaimed as the last of the eight (8) councilors elected to the
city council, with a plurality of three (3) votes over his nearest
opponent, said Mrs. Conui Omega. However, on the same date, the latter
filed with the aforementioned Court of First Instance a petition for
the recounting of the votes cast in Precincts Nos. 17 and 28 of said
city, upon the ground that the election returns therefore, which gave
her 68 votes in each precinct, were contradicted by the certification
of the result of the election therein, incorporated in Form No. 8 of
the Commission on Elections, according to which she got only 67 and 59
votes, respectively. On November 24, Mrs. Omega amended her petition by
including in her request for recount the ballot box of Precinct No. 8
of Ormoc City, upon the ground that, in said precinct, “the * * *
election result certified by the Board of Election Inspectors in the
Transcript of Election Returns (Elecsee form) submitted to and as
gathered by the 59th PC Company, Ormoc City, which is duly deputized
agency of the Commission on Elections, only 41 votes were tallied in
favor of Dr. Cesar Samson,” whereas “the same Board of Election
Inspectors * * * in another statement” (referring to the election
returns), “certified that the same candidate Dr. Cesar Samson got 71
votes”. Upon the filing of said amended petition, the Court of First
Instance issued an order enjoining the Municipal Board of Canvassers
“from further proceeding with the canvass” until further orders, and,
relying upon sections 163 and 168 of the Revised Election Code, the
court issued on November 25, 1959, another order the dispositive part
of which reads:

“The Board of Canvassers is hereby directed to open
the ballot boxes for precinct Nos. 8, 17 and 28 so that they may
proceed to recount the votes of Dr. Samson and Mrs. Omega for the sole
purpose of determining who is the elected candidate for city councilor.

“Taking
into account the fact that there are ten members of the Board of
Canvassers, the members of the Board of Canvassers are hereby directed
to divide themselves into three divisions so that each division of
three may take care in the counting of votes in every precinct and the
Chairman will act as the supervisor. Dr. Samson and Mrs. Asuncion C.
Omega may appoint watchers with one watcher for each of said party for
every division. The counting shall take place immediately before this
Court.”

A reconsideration of this order was denied by another order bearing the same date, which, likewise, stated that:

“Taking into account that tomorrow is a special
public holiday and there is no probability that the said keys will
arrive Ormoc City on that day, the said members of the Board of
Canvassers are hereby notified that the ballot for precincts Nos. 8, 17
and 28 will be opened before this Court on November 27, 1959 at
7:30 A.M., with notice to all the members of the Board of Canvassers,
as well as to Attorneys Benjamin Tugonon, Mendola, Teleron, and Brocoy,
in open court.”

A motion for reconsideration of the latter order having had the same
fate, Dr. Samson instituted the present case, for the purpose adverted
to above.

At the outset, it is clear that, insofar as they direct the Board of
Canvassers to open the ballot boxes of Precincts Nos. 8, 17 and 28, the
orders complained of are contrary to law. Respondents herein seem to
have acted under the impression that this case falls under section 168,
in relation to section 163, of Republic Act No. 180, authorizing the
recount of the votes cast in a given precinct when “another copy or
other authentic copies of the statement from an election precinct
submitted to the board gives a candidate a different number of votes
and the difference affects the result of the election * * *”. However,
the recount so authorized, must be made by “the Court of First
Instance” itself, not by the Board of Canvassers, as ordered
by respondent Judge. Moreover, said recount is authorized “for the sole
purpose of determining”, not “who is the elected candidate” as stated
in the first order of respondent Judge, dated November 25, 1959, but “which is the true statement or which is the true result of the count of the votes cast” in the precincts in question.

Again, the alleged conflicts in the case at bar exist between the
election returns, or statements of the count alluded to in section 150
of said Act, on the one hand, and the certificate mentioned in section
153 thereof, on the other, and we have already held in Jose Parlade, et
al. vs. Hon. Perfecto Quicho, et al., G. R. No. L-16259
(December 29, 1959) that the aforementioned sections 163 and 168 are
inapplicable to such situation.

Wherefore, the orders complained of are set aside and the writ of
preliminary injunction issued herein is hereby made permanent, with
costs against respondent Mrs. Asuncion Conui Omega. It is so ordered.

Bengzon, Padilla, Labrador, Reyes, J. B. L., and Barrera, JJ., concur.
Paras, C. J., Bautista Angelo, Endencia and Gutierrez David, JJ., reserve their votes.