AURELIO ALEMAN, PETITIONER, VS. HON. MELECIO GENATO (RETIRED) AS FORMER PRESIDING JUDGE OF THE COURT OF FIRST INSTANCE OF MISAMIS OCCIDENTAL (NOW REGIONAL TRIAL COURT, BRANCH XV…

This special civil action for Certiorari seeks to reverse the
Decision of the then Court of First Instance of Misamis Occidental
declaring private respondent Nicanor CARAMBA the duly elected Barangay
Captain of Mialen, Clarin, Misamis Occidental.

In the Barangay elections of May 17, 1982, Aurelio ALEMAN
(petitioner herein) and Nicanor CARAMBA (the private respondent) were
candidates for the position of Barangay Captain of Mialen, Clarin,
Misamis Occidental.

On May 17, 1982, the Board of Canvassers proclaimed ALEMAN as the
duly elected Barangay Captain, with 393 votes as against 358 votes for
CARAMBA, or a margin of 35 votes.

On May 24, 1982, CARAMBA filed an election protest against ALEMAN
before the Municipal Circuit Court of Clarin-Tudela, Misamis
Occidental, alleging, among others, that non-registered voters were
allowed to vote in certain precincts, and that a good number of ballots
were incorrectly appreciated in ALEMAN’s favor.

ALEMAN denied all material allegations and contended that the
names of voters named in the protest appear in the permanent list of
voters and that those whose names did not were given election cards by
the COMELEC upon verification that they were permanent voters in their
respective precincts.

After hearing, the Municipal Circuit Court, on July 20, 1982,
invalidated 12 votes and deducted them from the 393 votes of ALEMAN on
the ground that they were cast by non-registered voters. ALEMAN’s votes
were thus reduced to 381, but still with a margin of 23 votes over
those of CARAMBA’s 358 votes.

On appeal, respondent Court of First Instance, on Decem­ber 27,
1982, invalidated 26 more votes and deducted them from the votes of
ALEMAN on the ground that they were cast by flying voters. This left
ALEMAN with only 355 votes as against 358 votes for CARAMBA, who was
then declared as the duly elected Barangay Captain.

Finding validity in ALEMAN’s argument that granting arguendo
that the questioned voters were “flying voters”, there is no evidence
to prove that they had cast their votes in his favor, hence, their votes
should not be deducted from the total votes obtained by him, we
required Judge Melecio Genato, who had penned the Decision, to specify
his basis for deducting the ballots cast by flying voters from the votes
cast in favor of protestee ALEMAN. But because said Judge had already
retired, his successor, respondent Judge Glicerio V. Carriaga, Jr., who
had, in the meantime, denied ALEMAN’s Motion for Reconsideration,
explained that he had relied on his “presumption in good faith that when
Judge Genato decided the (case) he was very meticulous in reading the
transcript as well as the records of the case.”

In the meantime, we issued a Temporary Restraining Order
enjoining respondent Court from implementing its judgment, thereby
restraining CARAMBA from taking his oath and as­suming the position of
Barangay Captain of Mialen.

Considering that an examination of the record yields no
evidentiary proof that the questioned flying voters, had, in fact, cast
their votes for ALEMAN, which votes should be deducted from the total
votes obtained by the latter, the Court has RESOLVED, in order to
determine with certainty in whose favor those votes were cast, and to be
able to better determine the true will of the electorate, that the
ballots be recounted in the presence of the parties.

ACCORDINGLY, respondent Judge is hereby required
to make the recount with deliberate speed and to resolve the election
protest anew according to his own appreciation of the ballots cast.

No costs.

SO ORDERED.

Teehankee, (Chairman), Plana, Gutierrez, Jr., and De la Fuente, JJ., concur.

Relova, J., took no part.