SERGIO BAUTISTA, PETITIONER, VS. HON. JOSE P. CASTRO, IN HIS CAPACITY AS PRESIDING JUDGE OF BRANCH IX (QUEZON CITY, COURT OF FIRST INSTANCE OF RIZAL, AND ROBERTO MIGUEL, RESPOND…

This petition seeks the reversal of the decision of respondent
Court of First Instance (now Regional Trial Court) of Rizal, Branch 9, Quezon
City rendered in an appealed election case and which decision proclaimed herein
private respondent Roberto Miguel as the duly elected Barangay Captain of
Barangay Teachers Village East, Quezon City, in the Barangay Elections held on
May 17, 1982, with a plurality of twenty-four (24) votes over herein petitioner
Sergio Bautista.

Both the petitioner Sergio Bautista and private respondent
Roberto Miguel were candidates for the office above mentioned. After canvass, petitioner Bautista was
proclaimed the winner by the Barangay Board of Canvassers on May 17, 1982 with a
plurality of two (2) votes.

On May 25, 1982, Roberto Miguel filed a protest before the City
Court of Quezon City, (docketed as Election Case No. 82-408) on the ground of
fraud and illegal acts or practices allegedly committed by Bautista. The latter filed an answer but filed no
counter-protest.

It appears that the results of the election in all the four (4)
voting centers in Bgy. Teachers Village East, Quezon City were contested. A revision and recounting of the ballots was
conducted which resulted in a tie. The
votes obtained by each of the protagonists were as follows:

“1. In Voting Center No. 519:

MIGUEL         =          126 votes

BAUTISTA =          180 votes

Protestant-appellant
contested the ruling of the lower Court on the following ballots: Exhs. a, b, c, d, e, f, g, h, i, j, k, l, m, n, and o.

Protestee-appellee
contested the ruling of the lower Court on the following ballots: Exhs. 1, 2, 3, 4 and 5.

“2. In Voting Center No. 520:

MIGUEL         =
         152 votes

BAUTISTA     =          122 votes

Protestant-appellant
contested the ruling of the lower Court on the following ballots: Exhs. P, Q and R.

“3. In Voting Center No. 521:

MIGUEL         =          150
votes

BAUTISTA     =          136
votes

Protestant-appellant
contested the ruling of the lower Court on the following ballots: Exhs. 6 and 7.

“4. In Voting Center No. 522

MIGUEL         =          222 votes

BAUTISTA     = 212 votes

Protestant-appellant
contested the ruling of the lower Court on the following ballots: Exhs. AA, BB, BB-1, BB-2 and CC.

Protestee-appellee
contested the ruling of the
lower court on the following ballots: Exhs.
8, 9, 9-a, 10, 10-a, 11, 11-a, 12, 12-a, 13, 14, 14-a, 15, 15-a, 16 and 16-a.

“5. Total Votes in all Voting Centers Nos. 519, 520, 521 and 522:

MIGUEL         =
         650

BAUTISTA     =          650”
(pp. 11-12, Rollo)

The trial court rendered a
decision, the dispositive portion of which reads:

“ACCORDINGLY, Roberto
Miguel is hereby declared to have received the same number of votes as the
protestee Sergio Bautista for the position of Bgy. Captain of Bgy. Teachers
Village East, Quezon City.” (p. 12, Rollo)

From this decision of the city court, protestant Roberto Miguel
filed an appeal to the Court of First Instance of Rizal.* On July
29, 1982, judgment was rendered on the appeal which, as stated in the first
portion of this decision, declared protestant Roberto Miguel the duly elected
Barangay Captain of Bgy. Teachers Village East, Quezon City and setting aside
as null and void the proclamation of protestee Sergio Bautista. The dispositive portion of the decision
reads:

“WHEREFORE, judgment is hereby rendered declaring and proclaiming
protestant-appellant ROBERTO MIGUEL as the duly elected Barangay Captain of
Barangay Teachers Village East, Quezon City, in the Barangay elections held on
May 17, 1982 with a plurality of twenty-four (24) votes over and above his protagonist protestee-appellee SERGIO
BAUTISTA; setting aside as null and void the proclamation of protestee-appellee
as the elected Barangay Captain made by the Barangay Board of Canvassers on May
17, 1982; sentencing protestee-appellee to pay protestant-appellant the costs
and expenses that the latter has incurred in this protest, in accordance with Sec. 7 of COMELEC Resolution no. 1566, to wit:

P 25.00 for filing and research
fee for petition of protest;

2,500.00 for cash deposit for
expenses for revision of ballots;

25.00 for appellant docket
and research fee;

50.00 for
appeal bond deposit;

P2,600.00 Total

“The Clerk of Court is hereby directed to furnish copies of this
Decision to the Commission on Elections, the Ministry of Local Governments, the
Commission on Audit, and the Secretaries of the Sangguniang Bayan and
Sangguniang Barangay, in accordance with Sec. 15 of Comelec Resolution No.
1566.”

“SO ORDERED.” (pp. 87-88, Rollo)

Petitioner Sergio Bautista filed the instant petition for review
by certiorari on August 13, 1982 on the following questions of law:

1) Whether or not the supposed opinion of a person, who was
brought by private respondent but who was never presented as a witness, is
competent and admissible evidence to support the appellate court’s (CFI)
conclusion that no less than eighteen (18) votes cast in favor of your
petitioner were written by one and the same person.

2) Whether or not a ballot which does not contain the signature of
the poll chairman be considered a valid ballot.

3) Whether or not respondent judge acted correctly in its
appreciation of the contested ballots (Exhibits “Z,” “Z-1,” “S,” “5,” “6,” “7.”

Considering that the term for the contested office had expired on
June 7, 1988^[1],
this petition has become moot and academic. However, this case had already been submitted for decision as early as
December 19, 1984, prior to the expiration of the contested office. Hence, We deem it proper to resolve this
case on the merits and determine the true winner of that elections.

Anent the first question, petitioner Bautista questions the
reliance by respondent court on the opinion of one Desiderio A. Pagui, who was
never presented and qualified as an expert witness. The report of Pagui allegedly appeared only in the records of the
case on file with the CFI which was attached in the Memorandum for Protestant
Miguel.

The ballots involved in this objection of petitioner are exhibits
“B” to “0” which all pertained to voting center No. 519 and Exhibits “T,”
“T-1,” “U,” “U-1,” “V” and “V-1” from voting center No. 521. Respondent court ruled:

“b) Exhs. ‘B, C, D, E,
F, G, H, I, J, K, L, M, N and O
were counted by the lower court for BAUTISTA, over the objection of protestant-appellant
that these ballots were written by a single hand. These ballots and the writings therein contained were the subject
of QUESTIONED HANDWRITINGS EXAMINATIONS and PDIL REPORT NO. 09-682 of Atty. Desiderio
A. Pagui, Examiner of Questioned
Documents (Ret. Chief Document Examiner, NBI), who was allowed by the lower
court to assist it in the appreciation of ballots contested by either party as
having been written by a single hand and to take photographs of the questioned
ballots, his report and photographs having been submitted by
protestant-appellant to this Court accompanying his memorandum. The pertinent portions of the FINDINGS in
the said report read as follows:

‘Comparative examinations between and among the various letter
designs, their structural constructions and other characteristics appearing in
Exhibits ‘B’ to ‘O’ inclusive, ‘T’, ‘T-1’, ‘U’, ‘U-1,’ ‘V’ and ‘V-1’, reveal
the existence of significant identifying handwriting characteristics, more
particularly in –

‘1. general style of writings;

‘2. size and proportion (sic) of letter designs;
base and height alignments; and relationship between adjacent letters;

‘3. lateral spacing; and initial and terminal strokes;

‘4. structural constructions and more perplexed
elements embedded in the structures of letter forms; and such characteristics
are exemplified in the following words/names: x x x; and the scientific evaluation of the aforementioned writing
characteristics includes the consideration of the idiosyncrasies of natural
variation as shown in the numerous similar letter forms, although at some
instances, the writer succeeded in having changed the entire letter designs of
certain letters (at different style), but somehow certain significant writing characteristics
reappeared in the various letters during the process of writing, thus be able
to connect one writing from the others as having emanated from one source.’

‘The probative value of the above-mentioned writing characteristics
are further augmented by the presence of unusual structural construction of
letter forms and/or in combinations with adjacent letters, thus x x x.’

“The CONCLUSION of the said report states:

‘The questioned handwritings appearing in Exhs. ‘B’ to ‘O’,
inclusive, ‘T’, ‘T-1, ‘U’, ‘U-1’, ‘V’ and ‘V-1’, were WRITTEN BY ONE AND THE
SAME PERSON.’

Notwithstanding this report, this Court has
taken pains and meticulous effort to examine with its naked eye the questioned
ballots and handwritings, and compare the same with each other in order to
determine whether or not they were indeed written by a single hand, and this
Court is convinced beyond doubt that Exhs. B, C, D, E, F, G, H, K, L, M, N and
O, were written by a single hand, considering the remarkable similarity if not
almost identity of the writings on these ballots. The lower Court’s ruling on these twelve (12) ballots is hereby
reversed, and the twelve (12) votes for protestee-appellee based thereon should
be deducted from him.

With respect to Exhs. I and J, this Court
entertains some doubt on their having been written by a single hand, and
therefore resolves the doubt in favor of the validity of these two (2) ballots,
as votes for protestee-appellee. Therefore, the ruling of the lower Court counting Exhs. I and J for
protestee-appellee stands.” (pp. 78-80, Rollo)

The contention of petitioner that respondent court relied on the
report of an alleged handwriting expert is misplaced. It should be noted that while respondent court considered the
report of Atty. Pagui, it did not rely solely on the said report. In the words of respondent court, “(I)t has
taken pains and meticulous effort to examine with its naked eye the questioned
ballots and handwritings and compare the same with each other …” In fact, in
its effort to determine the true value of the contested ballots and in order
not to disenfranchise bona fide voters, it counted certain
ballots in favor of petitioner which the alleged handwriting expert found as
written by only one person. It
contradicted said report as regards Exhibits “I,” “J,” “V” and “V-1.” The
respondent court was circumspect in relying on its own findings on whether or
not these contested ballots were prepared by one person. The ballots are the best evidence of the
objections raised. Resort to handwriting
experts is not mandatory. Handwriting
experts, while probably useful, are not indispensable in examining or comparing
handwriting, this can be done by the COMELEC (in this case, the court taking
cognizance of the appeal in this election protest) itself (Bacobo v. COMELEC,
G.R. No. 94173, November 21, 1990, 191 SCRA 576).

Petitioner also argues that respondent court misinterpreted and
misapplied Section 36(f) of Comelec Resolution No. 1539. It allegedly failed to take into
consideration the other provisions of said Section 36 of the Resolution.

We do not agree. Section
36 in its entirety provides:

“Sec. 36. Procedure in
the casting of votes. (a) Identification of voter. – The chairman shall check in the certified
list of voters the name of the person offering to vote. He shall then announce the voter’s name
distinctly in a loud tone. If there is
no challenge, or if having been challenged and the question is decided in his
favor, the voter shall be allowed to vote and he shall affix his signature on the
proper space of the Voting Record (Comelec Form No. 5).

“(b) Delivery
of ballot. – Before
delivering the ballot to the voter, the chairman shall,
in the presence of the voter, the other members of the board and the watchers
present, affix his signature at the back thereof and write the serial number of
the ballot in the space provided in the ballot, beginning with No. ‘1’ for the
first ballot issued, and so on consecutively for the succeeding ballots, which
serial number shall be entered in the corresponding space of the voting
record. He shall then fold the ballot
once, and without removing the
detachable coupon, deliver it to the voter, together
with a ballpen.

“(c) Instructions
to the voter. If a voter so requests, the poll clerk
shall instruct him on how to fill the ballot. The voter shall be reminded that he should fill the ballot secretly and return it folded so as not to show the names of
the candidates he voted for. He shall
also be warned not to use any other ballot; not to show the contents of his
ballot; not to put any mark thereon; not to erase, deface or tear the same; and
not to remove the detachable coupon.

“(d) Preparing
the ballot. Upon
receiving the ballot, the voter shall fill the ballot secretly.

“(e) Returning
the ballot. (1) In the presence of all the
members of the Board, the voter shall affix his right hand thumbmark on the
corresponding space in the detachable coupon, and shall give the folded ballot
to the chairman. (2) The chairman shall
without unfolding the ballot or looking at its contents, and in the presence of
the voter and all the members of the Board, verify if it bears his signature
and the same serial number recorded in the voting record. (3) If the ballot is
found to be authentic, the voter shall
then be required to imprint his right
hand thumbmark on the proper space in
the voting record. (4) The chairman shall than detach the
coupon and shall deposit the folded ballot
in the compartment for valid ballot and the coupon in the compartment for spoiled ballots. (5) The voter shall then leave the voting
center.

“(f) When ballot
may be considered spoiled. Any ballot returned to the chairman with its
coupon already detached, or which does not bear the signature of the chairman,
or any ballot with a serial number that does not tally with the serial number
of the ballot delivered to the voter as recorded in the voting record, shall
be considered as spoiled and shall be marked and signed by the members of the
board and shall not be counted.”

The ballots concerned were marked Exhibits “BB,” “BB-1” and
“BB-2” from voting center No. 522. The
respondent court ruled that:

“b) Exhs. BB, BB-1
and BB-2 were counted by the lower court for BAUTISTA over the objection of
protestant-appellant that these ballots are not duly authenticated by the
absence of the signature of the Chairman of the Board of Election Tellers at
the back thereof. An examination of the
back portion of these ballots reveals that it is completely blank of any
signature or initial. The mandatory
requirement of authentication of ballots is found in Sec. 14 of B.P. 222 and in
Sec. 36 of COMELEC Resolution No. 1539, and the legal consequence for the
absence of such authentication is stated precisely in Sec. 36, sub-par. (f),
and generally in Sec. 152 of the 1978 Election Code, x x x.” (p. 84, Rollo)

The law (Sec. 14 of B.P. 222) and the rules implementing it (Sec.
36 of Comelec Res. No. 1539), leave no room for interpretation. The absence of the signature of the Chairman
of the Board of Election Tellers in the ballot given to a voter as required by
law and the rules as proof of the authenticity of said ballot is fatal. This requirement is mandatory for the
validity of the said ballot.

As regards exhibit “Z” and “Z-1,” respondent court reversed the
decision of the trial court which ruled that these were not marked ballots and
hence, were valid votes for petitioner BAUTISTA. In reversing the trial court, respondent court ruled that the
presence of an arrow with the words “and party,” was meant for no other purpose
than to identify the voter.

We agree. It cannot be
said that these writings were accidental. As a general rule, a voter must write on the ballot only the names of
candidates voted for the offices appearing thereon. Certain exceptions, however, were provided in Section 149 of the
Revised Election Code. For example,
prefixes such as “Sr.,” “Mr.,” and the like and suffixes such as “hijo,” “Jr.,”
etc. will not invalidate the ballot (par. 5). Initials (paragraph 15), nicknames or appellation of affection and
friendship will not invalidate the ballot, if accompanied by the name or
surname of the candidate, and above all, if they were not used as a means to
identify the voter. Even under a
liberal view, the words written on the ballots under consideration cannot be
considered as falling within the exception to the rule. Consequently, they are irrelevant
expressions that nullified the ballots. (Lloren v. CA, et al., No. L-25907, January 25, 1967, 19 SCRA 110). Hence, respondent court excluded Exhibits
“Z” and “Z-1.”

Exhibit “S” (Voting Center No. 521) was excluded by respondent
court as a vote for petitioner. It
held:

“a) Exh. S was counted by the lower court for
BAUTISTA over the objection of protestant-appellant that this ballot was found
in the small compartment of the ballot box for spoiled ballots and the said
ballots appear to be in excess of the number of ballots actually used. The records show that as reflected in the
MINUTES OF VOTING AND COUNTING OF VOTES found inside the ballot box, (1) there
were 311 voters who cast their votes, and the ballots actually used bear Serial
Nos. 1-311, (2) 1 voter did not return his/her ballot, 8 ballots were spoiled
ballots and 302 ballots appreciated by the Board of Election Tellers. The questioned ballot, Exh. S, together with
blank questioned ballot, was found by the Committee in the small compartment
for spoiled ballots. It does clearly
appear that these two(2) ballots, one of which is Exh. S, are in excess of the
311 ballots actually used and must be considered as ‘EXCESS BALLOTS’ under Sec.
151 of the 1978 Election Code and ‘shall not be read in the counting of votes.’
In view of the foregoing considerations, the ruling of the lower court on Exh.
S is hereby reversed, and this ballot shall not be counted as a vote of
protestee-appellee and therefore deducted from him.” (pp. 81-82, Rollo)

We affirm.

Petitioner objects to
respondent court’s ruling rejecting Exh. “5.” The word “BLBIOY” was written in
the space for Barangay Captain. “BIBOY,” petitioner’s nickname was duly registered in his certificate of
candidacy. Section 155(11) of the 1978
Election Code provides:

“11. The use of nicknames and appellations of
affection and friendship, if accompanied by the first name or surname of the
candidate, does not annul such vote, except when they were used as a means to
identify the voter, in which case the whole ballot is invalid: Provided, That if the nickname
used is unaccompanied by the name or surname of a candidate and it is the one
by which he is generally or popularly known in the locality and stated in his
certificate of candidacy, the same shall be counted in favor of said candidate,
if there is no other candidate for the same office with the same nickname.”

While the name written was “BLBIOY,” there was no doubt that the
voter intended to vote for “BIBOY,” the nickname of which petitioner was
popularly known and which nickname was duly registered in his certificate of
candidacy. Hence, the respondent
court’s decision as regards Exhibit “5” is reversed and the vote is counted for
petitioner.

Exhibit “6” was invalidated by both respondent court and the city
court as stray vote on the ground that petitioner’s name, written as “Bo.
Barangay Bautista” was placed on the first line intended for councilmen. In the case of Farin v. Gonzales and CA,
G.R. No. L-36893, September 28, 1973, 53 SCRA 237, cited by petitioner, it was
ruled that where the name of a candidate is not written in the proper space in
the ballot but is preceded by the name of the office for which he is a
candidate, the vote should be counted as valid for such candidate. Such rule stems from the fact that in the
appreciation of the ballot, the object should be to ascertain and carry into
effect the intention of the voter, if it could be determined with reasonable
certainty. In this case, while the name
of petitioner was written in the space for barangay councilman, his name was
preceded by the name of the office for which he is being elected, that as
Punong Barangay or Barangay Captain (See Exh. “6”). The respondent court ruled that what was placed before the name
BAUTISTA was Bo. Barangay and not Po. Barangay for Punong Barangay (or Barangay
Captain). We believe however that the
voter’s intention to vote for BAUTISTA as Barangay Captain was present and said
vote should be counted in favor of petitioner.

Respondent court correctly invalidated Exhibit “7.” This ballot
cannot be considered as a vote for petitioner whose name was written seven (7)
times in the ballot. The writing of a
name more than twice on the ballot is considered to be intentional and serves
no other purpose than to identify the ballot (Katigbak v. Mendoza, L-24477,
February 28, 1967, 19 SCRA 543).

ACCORDINGLY, the decision of respondent court is MODIFIED
as regards Exhibits “5” and “6.” Private respondent Roberto Miguel is declared
the duly elected Barangay Captain of Barangay Teachers Village East, Quezon
City, with a plurality of twenty-two (22) votes. The temporary restraining order issued by this Court on December
2, 1982 is hereby LIFTED.

SO ORDERED.

Narvasa, C.J., (Chairman), Cruz, and
Griño-Aquino, JJ., concur.

* This was the correct procedure
under BP 222 as allowed by the 1973 Constitution Art. IX, Sec. 1(2) of the 1987
Constitution now requires the appeal to be made directly to the Commission on
Elections (see Flores v. Commission on Elections, 184 SCRA 484).

^[1]
Under BP 222, Sec. 3, the term of office of the barangay officials elected
under this Act shall be six years, which shall commence on June 7, 1982 and
shall continue until their successors shall have been elected and shall have
qualified. This term however was cut
short by Proclamation No. 3 of the President dated March 25, 1986 particularly
Sec. 2 of Art. 111 thereof, which provides:

“SECTION 2. All elective and appointive officials and
employees under the 1973 Constitution shall continue in office until otherwise
provided by proclamation or executive order or upon the designation or
appointment and qualification of their successors, if such is made within a
period of one year from February 25, 1986.

Under the present administration,
the first barangay election was conducted on March 28, 1989 by virtue of R.A.
6679 which provides in Section 1 thereof:

“SECTION 1. The elections of barangay officials set on
the second Monday of November 1988 by Republic Act No. 6653 are hereby
postponed and reset to March 28, 1989. They shall serve a term which shall begin on the first day of May 1989
and ending on the thirty-first day of May 1994.”