G.R. No. 53376. May 26, 1981
FRANCISCO C. MOGUEIS, JR., PETITIONER, VS. THE COMMISSION ON ELECTIONS, THE MUNICIPAL BOARD OF CANVASSERS OF SAN FERNANDO, MASBATE, ATTY. RODOLFO DE GUZMAN, AND CESAR AL. BISNA…
MAKASIAR, J.:
This is a petition for certiorari
and prohibition with preliminary injunction with prayer for a restraining order
filed by petitioner Francisco C. Mogueis, Jr., to
review Resolution No. 9449 of the
respondent Commission on Elections dated March 6, 1980, as well as Resolution No. 9552 dated March
10, 1980, in Pre-Proclamation
Case No. 372 entitled
“Cesar Al. Bisnar, petitioner, versus Francisco
C. Mogueis, Jr., respondent.”
In the January 30, 1980
local elections, petitioner Francisco C. Mogueis,
Jr. was the official candidate of the Bicol Saro for mayor of San Fernando,
Masbate; while private
respondent Cesar Al. Bisnar was a candidate for the
same post under the Kilusang Bagong
Lipunan (KBL).
In the canvass of votes cast in San Fernando, Masbate,
by the respondent San Fernando Municipal Board of Canvassers, petitioner Mogueis obtained 3,291 votes as against 3,289 votes of
private respondent Bisnar, or a margin of two (2)
votes. On the basis of the
aforementioned election results, the respondent Municipal Board of Canvassers
of San Fernando, Masbate, proclaimed on January 31,
1980 petitioner Mogueis as the duly elected municipal
mayor (Annex F, Petition for Certiorari, p. 31, rec.). Petitioner, in his petition filed before this
Court, alleged that he took his oath of office as the duly elected municipal
mayor of San Fernando, Masbate, on March 3, 1980 and thereafter discharged the duties and
functions of said office. Private
respondent Bisnar, however, alleged in his comment to
the petition that petitioner Mogueis took his oath
before Judge Leodegario A. Belarmino
on March 15, 1980 as shown by a copy of the program on the inaugural ceremonies
of the newly elected officials of San Fernando, Masbate
(p. 45, rec.).
The records reveal that on February 7, 1980, private respondent Bisnar filed an election protest with the Court of First
Instance of Masbate, docketed as Special Proceedings
No. 2988, alleging that the election returns for voting centers nos. 3-A in Barangay Magsasaka and 4-A in Barangay Bayanihan were tampered
with or falsified in the house of a certain
Salvacion Cantonjos, a
member of the citizens election committee of voting center no. 3-A and who is
publicly known in the community as a Bicol Saro leader and a die-hard follower of petitioner Mogueis, protestee therein. He further alleged that there were
discrepancies in the election returns and that there was also rampant
perpetration of threats, coercion and terrorism by petitioner Mogueis and his followers.
One of the reliefs sought by private
respondent Bisnar, protestant therein, was that after the hearing, examination and
re-appreciation of the ballots, and recounting of the votes cast, and after
finding that he garnered more votes than petitioner Mogueis,
protestee therein, he be declared as the lawful
mayor-elect of San Fernando, Masbate (Annex D,
petition, pp. 23-27, rec.).
It appears that on February 8, 1980, private respondent Bisnar, protestant therein, filed a manifestation with the
Court of First Instance of Masbate, stating that the
filing of his election protest is to be taken and understood as without
prejudice to his filing of a petition for the annulment or nullification of the
proclamation of petitioner Mogueis, protestee therein, before the Commission on Elections (p.
47, rec.).
On February 11, 1980, private respondent Bisnar
filed a petition, which the respondent Commission on Elections docketed as
Pre-Proclamation Case No. 372, praying for the annulment of the canvass and the
proclamation of petitioner Mogueis, respondent
therein, on grounds similar to those alleged in the election protest filed
earlier with the Court of First Instance of Masbate
(Annex C, Petition, pp. 20-22, rec.).
On February 18, 1980, herein petitioner Mogueis,
protestee therein, filed his answer with a counter-protest
to the election protest of herein private respondent Bisnar,
protestant therein, in Special Proceedings No. 2988 before the Court of First
Instance of Masbate (Annex E, petition, pp. 28-30,
rec.).
On February 27, 1980, acting on the petition of respondent Bisnar, the respondent Commission on Elections issued
Resolution No. 9264 suspending the effects of the proclamation of petitioner Mogueis, respondent therein, and required him to answer the
petition filed with it by private respondent Bisnar,
petitioner therein, within five (5) days from notice thereof.
Petitioner Mogueis, respondent therein,
filed on February 28, 1980 a motion for reconsideration of Resolution No. 9264,
alleging that the grounds relied upon by private respondent Bisnar
in his aforestated petition are proper grounds for an
election protest and that the setting aside of his proclamation as mayor-elect is violative
of the Presidential Decree ordering the proclamation of all candidates-elect
despite the pendency of disqualification cases. Acting on said motion, the respondent
Commission on Elections adopted on February 28, 1980 Resolution No. 9330
lifting the suspension of the effects of the proclamation of petitioner Mogueis, respondent therein, as earlier ordered in
Resolution No. 9264.
On February 29, 1980, private respondent Bisnar,
petitioner therein, sought to reconsider Resolution No. 9330 on the ground that
said resolution was issued arbitrarily, amounting to abuse of discretion. On March
6, 1980, the respondent Commission on Elections issued Resolution
No. 9449, the dispositive portion of which reads as
follows:
“Premises considered, the Commission RESOLVED to reconsider
its Resolution Item No. 9330, dated February 28, 1980, consequently restoring
the effects of the Commission Resolution Item No. 9264, dated February 27,
1980; and to order the Citizens Election Committee to reconvene and count the
votes cast in Voting Centers Nos. 3-A and 4-A” (Annex A, Petition, pp.
15-17, rec.).
In order to implement the aforesaid resolution, the respondent
Commission on Elections issued on March 10, 1980 Resolution No. 9552,
authorizing its Executive Director to direct respondent Atty. Rodolfo de
Guzman, COMELEC Senior Attorney, and perform the
following:
“1. To conduct a thorough investigation of the
petitioner’s allegation that the ballot boxes for voting centers nos. 3-A and
4-A were brought to a private house and that the corresponding election returns
were prepared therein;
“2. If findings show the affirmative, you shall
exclude the two ballot boxes and not order the recount of the ballots therein;
“3. In a contrary sense, you shall reconvene the
Citizens Election Committees of Voting Centers Nos. 3-A and 4-A after giving
due notice to all parties concerned and order the opening of the ballot boxes
if after satisfying yourself and the parties that nothing in the ballot boxes
indicates that their identity and integrity have been violated;
“4. After satisfying yourself and the parties
that the integrity of the ballots therein has been duly preserved you shall
order the Election Committees of the said voting centers to recount the votes
affected which shall then be used by the Board of Canvassers as basis of the
canvass;
“5. If however, you shall find that the identity
and integrity of the ballot boxes have been violated and/or the integrity of
the ballots therein has not been duly preserved, you shall direct the Citizens
Election Committee not to recount the votes of these centers;
“6. You are hereby
designated Chairman of the Municipal Board of Canvassers and as Chairman you
shall reconvene the Municipal Board of Canvassers and proclaim the duly
elected Municipal Mayor of that
municipality on the basis of all the election returns counted. If the conditions mentioned in Paragraph (4)
above are substantiated and no recount of the votes for voting centers Nos. 3-A
and 4-A shall have been made, you shall proceed to canvass only the remaining
returns and use the same as basis for the proclamation” (Annex B,
Petition, pp. 18-19, rec.).
Hence, petitioner Mogueis filed on March 15, 1980 the present petition
with this Court alleging that respondent Commission on Elections has acted with
grave abuse of discretion in issuing Resolutions Nos. 9449 and 9552.
Required to comment on the petition, private respondent Bisnar filed one on April
23, 1980, while that of respondent Commission on Elections, represented
by the Solicitor General, was filed on May 23, 1980.
The records further reveal that pursuant to the aforestated Resolution No. 9552, respondent Atty. Rodolfo
de Guzman conducted a hearing of PP Case No. 372 from March 13 to 21, 1980 in
the municipal building of San Fernando, Masbate. Then on April 22, 1980, the respondent Commission on Elections,
acting on the report dated March 28,
1980 of respondent Atty. Rodolfo de Guzman,
issued Resolution No. 9704, the dispositive part of
which reads as follows:
“x x x
After considering the aforesaid report which is hereby made an integral part
hereof, the Commission, on motion duly seconded, RESOLVED to adopt the
recommendation of Atty. Rodolfo de Guzman, and hereby orders the Board of
Canvassers of San Fernando, Masbate, to undertake a
new canvass, excluding the election returns pertaining to voting centers nos.
3-A and 4-A, and thereafter, to proclaim the winning candidates thereat”
(p. 77, rec.).
On April
28, 1980, the
respondent Commission on Elections issued a directive to Atty. Rodolfo de Guzman, through Noli
M. Sagadraca, then Executive Director, now Associate
Commissioner, in order to implement the aforesaid April 22, 1980 resolution, the pertinent part of which
reads:
“1. To reconvene the Municipal
Board of Canvassers of San Fernando, Masbate, at the
office of the Provincial Election Officer in Masbate,
Masbate, and supervise the canvass by said board of
the election results of the municipality relative to the January 30, 1980
election, except the election results of Barangay Voting Centers Nos. 3-A and 4-A and, for the Office of
Municipal Mayor only; if the said canvass was not yet made, but in a contrary
case final canvass shall be made
on the basis of the total votes of the candidates already tabulated, excluding
therein the election results of the two (2) barangay
voting centers herein mentioned; after which, to proclaim the winning
candidate.
“2. To designate Atty. Isidro Merillo,
Provincial Election Officer of Masbate, to act as
Chairman of the Municipal Board of Canvassers above-mentioned and further, to
appoint substitute-member or members of the Board in case of non-availability
or recalcitrancy of the regular members. x x”
(Pp. 78-79, rec.).
It appears that on May 1, 1980, the Court of First Instance of Masbate, acting on an ex–parte motion dated March 31, 1980 of private
respondent Bisnar, protestant therein, issued an order
commanding the municipal treasurer of San Fernando, Masbate,
to immediately deposit with the clerk of said court the ballot boxes and
election returns in Voting Centers Nos. 1, 1-A, 2-A, 3-A, 4-A, 7, 8, 17, 21, 22
and 23, subject of the election protest of private respondent Bisnar, protestant therein, and in Voting Centers Nos. 5,
8-A, 11, 14 and 24, subject of the counter-protest of petitioner Mogueis, protestee therein. In said order of May 1, 1980, the lower
court, acting on an ex–parte motion
dated April 28, 1980 filed by petitioner Mogueis, protestee therein, also enjoined the municipal treasurer of
San Fernando, Masbate, from surrendering and
delivering to the municipal board of canvassers of said municipality the
ballot boxes and election returns of the aforementioned voting centers, and for
the Municipal Board of Canvassers to refrain from conducting a new canvass of
the same (p. 80, rec.).
Moreover, it appears that respondent Atty. Rodolfo de Guzman,
following the aforestated April 28, 1980 directive of the respondent Commission on
Elections, constituted and convened an entirely new and different Board of
Canvassers composed of Atty. Isidro C. Merillo, as
chairman, Antonio S. Aribon and Arnulfo
C. Valdemoro as members. And on May 2, 1980, private respondent Bisnar was proclaimed by the Board of Canvassers as the elected mayor of San Fernando, Masbate on the basis of the results of its recounting of
votes wherein he obtained 3,037 votes as against the 2,881 votes of petitioner Mogueis, thus winning by 156 votes (Exhibit E, Petitioner’s
Urgent Manifestation, p. 82, rec.).
Thereafter, on the same day — May 2, 1980 — private
respondent Bisnar took his oath of office before
Acting Provincial Fiscal Gregorio S. Albao of Masbate.
On May 5, 1980, he
assumed office as mayor of San Fernando,
Masbate and discharged the
duties and functions of said office.
On May 30, 1980,
petitioner Mogueis filed with this Court an urgent
manifestation and reiteration of the prayer for preliminary injunction dated May 26, 1980. Subsequently, on June 5, 1980, this Court
issued an order restraining respondents Commission on Elections, Municipal
Board of Canvassers of San Fernando, Masbate, and Atty. Rodolfo de Guzman from further
acting in Pre-Proclamation Case No. 372 and restraining likewise private
respondent Bisnar from assuming the office of mayor of San Fernando, Masbate,
pursuant to the aforecited Exhibit “E”
(Certificate of Canvass and Proclamation of private respondent Bisnar) of petitioner’s urgent manifestation.
Private respondent Bisnar, filed on July 9, 1980 an urgent motion dated June 24, 1980 to reconsider, set
aside, lift or dissolve the temporary restraining order of June 5, 1980, and to strike off from the records
of the case the urgent manifestation dated May 26, 1980 of petitioner Mogueis. He alleged that the restraining order had
already become moot and academic because the acts sought to be restrained have
already been consummated long before June
5, 1980, it appearing, that he was proclaimed and took his oath on May 2, 1980 as well as assumed office
on May 5, 1980.
On July 15, 1980,
this Court, in a resolution, required herein petitioner to comment on the
aforesaid urgent motion of herein private respondent. Petitioner filed on August 7, 1980 his comment to the urgent motion.
On August 8, 1980,
petitioner Mogueis filed a motion praying that
private respondent Bisnar should be cited for
contempt of Court for defying the temporary restraining order of June 5, 1980. It was alleged by herein petitioner that the
aforesaid temporary, restraining order was transmitted on June 6, 1980 to
private respondent Bisnar by way of a telegram sent by Gloria C. Paras, Clerk of Court of the Supreme Court (p. 88, rec.),
and that the formal resolution containing the temporary restraining order was
received on June 20, 1980 by private respondent through the mails as shown by
a certification of the acting postmaster of San Fernando, Masbate,
who certified that registered letter No. 58011 addressed to herein private
respondent and containing the temporary restraining order was received by him
(p. 111, rec.). He further alleged that
despite the receipt and knowledge of the aforesaid restraining order, private
respondent Bisnar continued to assume the office of
mayor and discharged the duties and functions attendant thereto.
In Our resolution of September
4, 1980, We required private respondent Bisnar
to comment on the said motion for
contempt. On November 28, 1980, private respondent Bisnar
filed his comment on petitioner’s motion for contempt which was noted in this
Court’s resolution of December 4, 1980. In
said resolution, the Court also considered the aforesaid comment as answer to
the petition and this case submitted for decision.
On February 26, 1981, this Court, acting on the telegrams sent by
Cpl. Leander Cantonjos, Integrated National Police Command; Rev. Infante,
VFP Chaplain; and Manuel Domingo of San Fernando
Irrigation Association, all dated February 20, 1981, stating that the aforesaid
restraining order was defied and ignored and that violence and tension have
already started in San Fernando, Masbate, directed
the Court Administrator to check as to the truth of the above allegations.
In a report dated March
27, 1981, Court Administrator Lorenzo Relova,
informed this Court that both petitioner Mogueis and
respondent Bisnar are holding office in the same building
but in separate rooms with PC soldiers detailed as their security; that
respondent Bisnar is presently performing the
functions of mayor of San Fernando, Masbate, and he
does not deny having received the restraining order, although he received it after
he had already taken his oath of office on May 2, 1980, thus he claims that the
acts sought to be restrained had already been consummated.
Petitioner Mogueis, on one hand,
alleges that he was elected
mayor by a majority of two (2) votes and was
proclaimed on January 31, 1980 and he is awaiting the decision of the case
by the Supreme Court; and that while there is confusion in the community and a
feeling of tension, there is, however, no violence as reported.
I
The pivotal issue to be
resolved in the instant case is whether or not the respondent Commission on
Elections acted with grave abuse of discretion, amounting to lack of
jurisdiction, in entertaining and proceeding with Pre-Proclamation Case No.
372 and promulgating therein questioned resolutions Nos. 9449 and 9552.
WE hold that under the premises, respondent Commission on
Elections committed a grave abuse of discretion.
It is undisputed, as alleged by petitioner Mogueis,
that he was duly proclaimed on January 31, 1980 as mayor of San
Fernando, Masbate by the Municipal Board of
Canvassers. On February 7, 1980,
respondent Bisnar filed an election protest against
petitioner before the Court of First Instance alleging the tampering of the
election returns of Voting Centers Nos. 3-A and 4-A. However, on February 11, 1980, or four
(4) days after he filed his election protest with the Court of First Instance of Masbate,
private respondent Bisnar filed a petition with the
respondent Commission on Elections seeking to nullify the canvass and proclamation
of petitioner herein also invoking the same grounds on which his election
protest is predicated, which was docketed as Pre-Proclamation Case No. 372.
While it is true that under Section 175 of the 1978 Election
Code, the Commission on Elections is the “sole judge of all pre-proclamation
controversies and any of its decisions, orders or rulings shall be final and executory,” the aforesaid case, now subject of the
instant petition, cannot be considered a pre-proclamation controversy for the
reasons herein below stated.
WE consider the fact that after the proclamation of petitioner Mogueis on January 31, 1980, private respondent Bisnar immediately resorted to the remedy of filing a
regular election protest, which he filed on February 7, 1980 with the Court of
First Instance of Masbate; consequently, the Court of
First Instance of Masbate acquired jurisdiction over
the controversy to the exclusion of the Commission on Elections, before which
the so-called pre-proclamation petition was filed only four days later — on
February 11, 1980. This is consistent
with the established rule that:
“Once a court of first instance has acquired jurisdiction by virtue
of the filing of an election protest, all questions relative thereto will be
decided in the case itself and not in another proceeding before a different
forum” (Filart vs. Comelec,
L-35154, Oct. 26, 1973, 53 SCRA 457, 473; Reyes vs.
Reyes, L-28476, Jan. 31, 1968, 22 SCRA 485; Acain vs. Board of Canvassers,
L-16445, May 23, 1960, 108 Phil. 165).
Explaining the rationale of the above doctrine in Reyes vs. Reyes, supra,
Mr. Chief Justice Enrique M. Fernando, then Associate Justice, stated that —
“x x x There
can be no more appropriate disposition of a dispute of this character than a recognition of the prior competence of
a court of justice whenever an election protest has been filed to determine who
of the parties is entitled to the position in controversy. It would be conducive to confusion and
conflict in authority if under the circumstances, as above disclosed, the
Commission on Elections would still be considered as having the residual power
to interfere with a pending election protest.
Such an undesirable result should be avoided and the Acain
holding if referred to, as respondent Commission on Elections did, would serve
such purpose.”
It is true that private
respondent Bisnar subsequently filed on February 8,
1980 (one day after he filed on February 7, 1980 his election protest) a
manifestation with the Masbate Court of First
Instance wherein he stated that the filing of his election protest is to be
taken and understood as without
prejudice to his filing of a petition for the annulment of the proclamation of
petitioner Mogueis before the Commission on
Elections. But, aside from the fact that
it was rather belated, the same appears to be an afterthought on the part of
private respondent Bisnar that merits no
consideration at all.
It may also be added that having availed of an election protest
before the Court of First Instance of Masbate,
instead of properly raising a pre-proclamation controversy before the
Commission on Elections, private respondent Bisnar is
deemed estopped from filing a petition with the
Commission on Elections. His actuation
is not only a recognition of petitioner’s proclamation as the duly elected
municipal mayor but also that the case is not proper as a pre-proclamation
controversy.
Moreover, private respondent’s petition was filed only on February 11, 1980 with the Commission
on Elections, after the January 30,
1980 local elections and after
the proclamation of petitioner Mogueis on January
31, 1980 and after respondent Bisnar
filed an electoral protest on February
7, 1980. Under such
circumstances, We must adhere to the doctrine that “after an election duly
held and a proclamation thereafter made, a pre-proclamation controversy should
no longer be viable” (Aguinaldo vs. Comelec, G.R. No. 53953, Feb. 5,
1981; Arcenas vs. Comelec, G.R. No. 54039, Nov. 28, 1980; Singco
vs. Comelec, G.R. No.
52830, Nov. 28, 1980).
The foregoing vital facts distinguish the instant petition from
the Olfato case (G.R. No.
52749, March 31, 1981), which was a pure — not a hybrid – pre-proclamation
proceeding, as it was filed on February 2, 1980 by therein respondent Lirio or three (3) days prior to the proclamation on
February 5, 1980 of therein petitioner Olfato.
There is no prejudice
whatsoever that could be caused to private respondent Bisnar
because he could still prove the alleged tampering, alteration and
falsification of election returns as well as the existence of
discrepancies in the returns in the election protest which he himself had filed
on February 7, 1980 with the Court of First Instance of Masbate, and to which petitioner Mogueis
had filed on February 18, 1980 an answer with a counter-protest. It is, to Our mind,
the appropriate remedy. For, “it
would save the time and energy of the litigants as well as respondent
Commission, and eventually this Court in view of its appellate jurisdiction, if
the matter were passed upon in an election protest or quo warranto petition in the lower court, the office
involved being that of municipal mayor” (Arcenas
vs. Comelec,
supra; Venezuela vs. Comelec, G.R. No. 53532, July 25,
1980).
Again, in the more recent case of Mitmug
vs. Comelec (G.R. No.
54082, March 24, 1981), Mr. Chief Justice Fernando, speaking for the Court,
declared that “an election protest should settle the matter conclusively
once and for all, instead of the parties being
caught in the procedural meshes of a pre-proclamation controversy.”
II
With respect to the motion for contempt, it appears that
respondent Bisnar had already assumed the office of
mayor of San Fernando, Masbate before he received the restraining
order dated June 5, 1980. Since the said restraining order merely
restrained respondent Bisnar “from assuming the
office of mayor” and did not require him to vacate the same in case he had
already assumed the office, it would seem that he cannot be held in contempt of
court.
The alleged contemptuous remark of respondent Bisnar
referring to the fact that “if ever there was any restraining order at all
it was a mere scrap of toilet paper,” which claim of petitioner is
supported by the affidavit of 30 residents, is denied by respondent Bisnar, whose denial is also supported by 61 residents. Under such a situation, the contempt charge
is not tenable.
To repeat, petitioner Francisco C. Mogueis
Jr. took his oath of office on March 3 or 15, 1980, after he was duly
proclaimed as the duly elected mayor of San Fernando,
Masbate on January 31, 1980.
WHEREFORE, THE PETITION IS HEREBY GRANTED, THE QUESTIONED
RESOLUTIONS OF RESPONDENT COMMISSION ON
ELECTIONS ARE HEREBY SET ASIDE, AND RESPONDENT CESAR AL. BISNAR IS HEREBY ORDERED TO SURRENDER THE OFFICE OF
MAYOR OF SAN FERNANDO, MASBATE TO PETITIONER FRANCISCO C. MOGUEIS
JR., WITHOUT PREJUDICE TO THE
CONTINUANCE OF THE ELECTORAL PROTEST FILED BY RESPONDENT BISNAR ON FEBRUARY 7, 1980 WITH THE COURT OF FIRST INSTANCE OF MASBATE. NO COSTS.
THIS DECISION IS
IMMEDIATELY EXECUTORY.
SO ORDERED.
Fernando, C.J., Teehankee,
Barredo, Guerrero, De Castro, and Melencio-Herrera, JJ., concur.
Aquino, J., dissents because no grave abuse of discretion was committed by the Comelec in issuing the questioned resolutions.
Concepcion, Jr., and Fernandez, JJ., on leave.
Abad Santos, J., concurs. This is another case where the Commission
on Elections issued flip-flopping resolutions within a period of about a week.
Resolution No. 9264 of February 27, 1980 suspended the effects of the proclamation of
petitioner; Resolution No. 9330 of February 28, 1980 lifted the suspension; and Resolution No. 9449 of March 6, 1980 restored the suspension imposed by the first
resolution. Capriciousness is manifest.