GREGORIO M. MATAS, PETITIONER, VS. THE HON. HONORIO ROMERO, JUDGE OF THE COURT OF FIRST INSTANCE, BRANCH III, DAVAO AND ISIDRO ORDANEZA, RESPONDENTS.

Has the protestee in an election contest the right to demand the opening of
ballot boxes in precincts included in the petition of protest, if he (the
protestee) did not include the said precincts in his counter-protest, nor make
express allegations in his answer of irregularities prejudicial to him in the
precincts subject of the petition of protest, and the protestant, before the
hearing, informed the court that he wanted to have the ballot boxes in first
eight precincts only brought to court, and may probably desist from
presenting the boxes in the other twelve precincts, and after the termination of
the revision in the first eight precincts, expressly waives his right to present
the remaining twelve ballot boxes on the ground that he has no more funds to pay
for getting the ballot boxes, considering the revision in the first eight
precincts sufficient for his protest? This is the question presented in the
above entitled case.

In the elections for municipal and provincial officials held in the
municipality of Padada, Davao, on November 10, 1959, Gregorio M. Matas was
declared elected as municipal mayor over the other candidate Isidro M. Ordaneza.
On November 27, 1959, Ordaneza filed a petition of protest contesting the
election of Matas, alleging frauds, abuses and irregularities in Precincts Nos.
2, 7, 7-A, 9, 13, 14, 16, 17 and 38 (9 precincts). On November 28, 1959, he
filed an amended petition wherein he included for revision, in addition to the
precincts already mentioned in his original petition, Precincts Nos. 1, 8, 10,
11, 12, 14-A, 18, 35, 35-A, 36 and 39 (11 precincts). Matas filed an answer to
the amended petition of protest denying the allegations of supposed frauds,
irregularities, etc., in the conduct of the elections in the precincts
mentioned. He made no specific allegation or averment, in the various paragraphs
of denial in his answer, that frauds and irregularities in the counting and
appreciation of the ballots were committed to his prejudice, thus
limiting himself to a denial of the alleged irregularities in the counting of
the ballots in favor of the protestant. In the last paragraph of his denial, he
made specific allegation that in all the precincts, names that sounded similar
or equal to his (protestee’s) name or surname were counted in his favor and on
the other hand, names in ballots that did not sound equal or similar to
protestant were counted in protestant’s favor, although these did not change the
result of the election.

The answer also contains a counter-protest alleging frauds and irregularities
committed in Precinct No. 15. The prayer demands the dismissal of the
protestant, the bringing in of the ballot box in Precinct No. 15, together with
the registry list and a recount of said ballots in said precinct No. 15, and a
request for the payment of costs and expenses by protestant, with a general
prayer for relief.

Before proceeding with the bringing in of the ballot boxes, the protestant
filed a motion dated January 9, 1960, alleging that—

“2. That in all probability, protestant will only request for the actual
counting of 8 precincts whereas with respect to the other remaining precincts,
protestant will probably only seek for the comparison of the registry
lists;

“3. That in case necessity arises for the reopening of the entire ballot
boxes under protest, the protestant may from time to time, increase his bond to
answer therefor, pursuant to the pertinent provisions of the Revised Election Law;

“4. That protestant, therefore, is constrained to seek for reduction of the
cash bond to the sum of P500.00 and to the Surety Bond in the sum of P2,500.00.”
(Motion to Reduce Bond, Annex ‘1’, Answer to Petition; Memo for respondents).”
(p. 3, Memo for Respondents)

Protestee Matas did not object to the motion but apparently agreed thereto as
the court in the order dated January 14, 1960 indicates. The said order is as
follows—

“On petition and recommendation of the parties when this case was called for
hearing this morning, the following are hereby appointed Commissioners: Atty.
Eriberto A. Unson, representing the Court; Atty. Gregorio Palabrica,
representing the protestant; and Atty. Primitivo C. Buagas, representing the
protestee, for the re-opening, recounting and classification of the ballots
boxes corresponding to Precincts Nos. 2, 7, 7-A, 13, 14, 17, 38 and 39 of the
Municipality of Padada, Dayao, and for this purpose said Commissioners are
hereby authorized to conduct the re-opening of the ballot boxes corresponding to
the above-named precincts starting tomorrow, January 15, I960, at 8:00 a.m. in
the office of the Clerk of Court, and to continue everyday thereafter from 8:00
a.m. to 12:00 noon and from 2:00 to 5:00 pm. until the same is finished.” (pp.
3-4, Memo for Respondents.)

When the commissioners were about to complete the recounting and
classification of the ballots in the first 8 precincts already brought before
the court, protestee Matas filed an urgent motion dated January 21, 1960 praying
that an the other 12 ballot boxes be opened also and the ballots therein
revised. Opposition thereto was filed by the protestant on January 26, 1960.
Shortly thereafter, i.e., on February 8, 1960, the protestant moved that since
he had previously filed a petition to reduce the bond and said reduction was
approved by the court and he believes that he has already sufficient number of
votes to off-set the majority obtained by the protestee, he declared that he
“waives and renounces his right to proceed with the opening and recounting of
the ballots contained in the other 12 precincts, namely, Nos. 9, 16, 1, 8, 10,
11, 12, 14-A, 18, 35, 35-A and 36, but demanding comparison of the Voter’s
Registry lists for the election years 1955, 1957 and 1959 of the aforementioned
precincts, and praying for the dismissal of the protest as to said 12 remaining
precincts. (Annex “G” of Petition).

The court promulgated two separate orders, one dated February 20, 1960
granting the protestant’s motion dated February 3, 1960, and another dated
February 22, 1960, dismissing the protest as regards the twelve unrevised
Precincts Nos. 9, 16, 1, 8, 10, 11, 12, 14-A, 18, 35, 35-A and 36. The protestee
moved to reconsider the order of the court but the court denied the motion for
reconsideration. Whereupon this petition for certiorari with preliminary
injunction was filed before Us.

The petitioner has not filed any memorandum before Us evidently because the
petition and the arguments which he adduced before the court below, in support
of his petition regarding the ballot boxes which the protestant declined to
have opened, were reproduced in his petition in this case, and he believed
evidently that they are complete and sufficient, for the purposes of his
petition before Us. The said arguments may be summarized as follows: The right
of protestee to ask for the opening of the ballot boxes in question is
recognized by Section 175 of the Revised Election Code which provides that

“Upon the petition of any interested party, or motu proprio, if the interests
of justice so require, the court shall immediately order that the copies of the
registry lists, the ballot boxes, the election statements, the voters’
affidavits, and the other documents used in the election be produced before it
and that the ballots be examined and the votes recounted, and for such purpose
it may appoint such officers as it may deem necessary and shall fix the
compensation of each at not less than five pesos but not more than fifteen pesos
for every election precinct which they may completely revise and report
upon.”

Further that it is not necessary for the protestee to include in his
counter-protest precincts already covered by the protest, in accordance with
section 176 of the Revised Election Code, which provides—

“* * * (c) Should the protestee desire to impugn the votes received by the
protestant in other precincts, he shall file a counter-protest within the same
period fixed for the answer, serving a copy thereof upon the protestant by
registered mail or by personal delivery or through the
sheriff.”

Section 175 of the Revised Election Code refers to the right of any party in
an election to file the corresponding petition of protest. The provision that
the court may “motu, proprio, if the interest of justice so requires,”
immediately order that documents be produced and ballots examined and votes
recounted evidently refers to a case, where an election contest has already been
presented and the court desires to make further examination in the
interest of justice. In the case at bar, the court did not order but actually
refused the revision in the 12 precincts which the protestant waived to present;
so, the provision in question is not applicable.

It has been suggested that the result of an election is a matter of public
concern, so that the right of a protestee, to demand revision in precincts not
included in his counterprotest should not be denied. Our answer to this
suggestion is that in this jurisdiction the rule has invariably been to deny
revision in precincts that are not contested either in the petitim of protest
or in a counter-protest. To permit revision in precincts not subject of
petition of protest or counter-protest would mean allowing any party to conduct
a fishing expedition and unduly prolong the contest resulting in cutting down
the term of the winner. The decisions of this Court and those of the House
Electoral Tribunal are to the effect that a protestant must specify in his
answer the precincts in which he desires or demands revision, and that he may
not demand the revision in precincts which he did not include in his protest. If
the protestant is not permitted to demand revision in precincts not included in
his petition of protest, neither should the defendant or protestee be allowed to
do so; to permit otherwise would encourage unscrupulous litigants to frustrate
prompt termination of protests, delay proceedings and even frustrate the will of
the electorate, and would give protestee more rights than the protestant. They
should be treated equally.

Paragraph (c) of section 176 quoted above limits the right of the protestee
to the filing of a counter-protest within the same period for the answer and the
latest decision of this Court is to the effect that the right of the protestee
is to demand revision only in those precincts in which he demanded revision in
his counter-protest.

“The main theme of petitioner is that the trial court committed an abuse of
discretion in granting the motion of respondent that he be authorized to
withdraw 36 out of the 92 precincts covered by his protest on the ground that
after the recanvass of the first 29 precincts he found that his protest with
regard to said 36 precincts was unnecessary. Petitioner contends that to allow
such withdrawal at that stage would be tantamount to amending the protest which
can no longer be done because the period fixed for doing so bad already expired.
And this contention is apparently predicated upon the fact that at the time the
motion for withdrawal was filed the recanvass of the votes had already started
and the period for filing the pleadings has expired.

“There is no merit in this contention. While it is true that the period for
filing the pleading has already expired and the recanvass of the ballots covered
by the protest has already started when the motion for withdrawal was filed and
protestee had traversed the allegation of the motion insofar as the 36 precincts
are concerned, it can not be said that the trial court erred in allowing the
withdrawal considering that the move of protestant in asking for such withdrawal
is not to amend his protest but merely to inform the court that he was desisting
from it with regard to said 36 precincts. We have no quarrel with the theory
that an election protest is impressed with public interest in the sense that the
public is interested in knowing what has actually happened in the elections, but
that issue is not involved herein. This is a matter that wholly depends upon
protestant even if the withdrawal of the protest is not effected if the
protestant desists from acting thereon or from presenting evidence to
substantiate it that will be the end of tile ease. The most that can happen is
that the protest should be dismissed for lack of action or proof and to such
eventuality protestee can not object nor complain because the precincts
concerned are not involved in his counter protest. In other words he can not
allege prejudice if the withdrawal is allowed. This is the exclusive prerogative
of protestant.” (Dimaporo vs. Estipoña, et al., 112 Phil., 220).

The following circumstances also indicate the conformity of the protestee
that revision be limited to the. first eight precincts. Before the hearing
started the protestant announced his intention to limit revision only to the 8
precincts mentioned in his original petition. The protestee did not file any
objection or opposition thereto; he actually consented to the revision only of
such 8 precincts. The reservation by the protestant (to present the other 12
precincts if said is necessary for his protest) was made also without objection
on the part of the protestee. There are reasons why a protestant should have the
right to withdraw from his protest some precincts included in his original
protest, even without the consent of the protestee. The protestant is required
by the election law to file a protest within two weeks after the proclamation of
the results of the election (in case of provincial or municipal officials).
The rule enforced in this jurisdiction is not to permit the protestant or the
protester to demand revision of the ballots in precincts which one or the other
has not protested in the petition of protest or counter-protest. Inclusion of
additional precincts after the expiration of the period for filing the protest
is not permitted. (Fernando vs. Constantino, 37 Off. Gaz., 107; Almeda vs.
Silvosa, et al., 100 Phil., 844; Araneta vs. Araneta, 47 Phil. 850.)
Consequently, the proteatant has a very limited time to investigate where the
frauds or irregularities have taken place, so that the precincts wherein the
same occurred may be included in his petition of protest. Naturally, he should
be allowed a leeway to include in his petition of protest as many precincts as
he has been informed or believes that irregularities have been committed; at the
same time he should be given the choice of the precincts in which he desires
revision, after he had had the opportunity to determine, what evidence of such
irregularities, he may be able to muster in support of his petition of protest.
There is no valid reason why he should not be permitted to withdraw his petition
as to precincts where he has subsequently found no evidence of irregularities or
frauds. Not only is this conducive to simplification and limitation of the
issues but it will ultimately result in a prompt dispatch or termination of the
election contest. Because of the fact that the revision of ballots involves a
very long and tedious process and the corresponding shortness of the term of
office, withdrawal of the petition as to precincts already included in the
original protest should be encouraged instead of discouraged.

The above view is also supported by the fact that the choice of precincts in
which the ballots are to be revised is a choice of the evidence that the
protestant desires to submit to the court for the purpose of proving that he had
actually received a greater number of votes than his opponents. As indicated
above, while the rule that the court may, in the invest of justice, order the
revision in other precincts is justified by the fact that the question of
election is a public question, the need of prompt termination of the contest
demands limitation of revision to those precincts which the protestant deems
sufficient to establish the allegations of his petition of protest. This
practice of admitting evidence of facts not alleged is not allowed in ordinary
cases; neither should it be permitted in election contests, especially because
in this case the protestee demanded that the other 12 precincts be brought to
court for revision only after he found out that the results of the revision
would perhaps be adverse. To permit such change would mean allowing any party to
change the issues at any time of the trial as his conveniences demands. To cap
it all, he made the demand subject to the obligation of the protestant; to
deposit the expenses necessary to the revision.

We hold that in view of the foregoing reasons and circumstances above
indicated, the protestee voluntarily acquiesced to limiting the revision to the
eight precincts already, examined, and may not, at this stage, demand revision
of all the other 12 precincts.

Wherefore for all the foregoing considerations the petition, for certiorari
is hereby denied, with costs against the petitioner.

Bengzon, C. J., Padilla, Bautista Angelo, Concepcion, Reyes, J. B. L.,
Barrera, Paredes, Dizon, and De Leon, JJ., concur.