JEREMIAS F. DAYO, PETITIONER, VS. COMMISSION ON ELECTIONS AND AMADEO M. GAASIS, RESPONDENTS.

An election protest was filed in the Municipal Court of Mauban, Quezon on February 5,
1988, by Amadeo Gaasis
against Jeremias Dayo in
connection with the local elections held on January 25, 1988, where they were
both candidates for councilor of the Sangguniang Bayan of Sampaloc, Quezon, with Dayo having been
proclaimed by the Board of Canvassers as
the 8th member of the Sanggunian (Case No.
07-88).  A petition for intervention was filed by Ramon D. Dayo, Mercedes D. Barnes and Rosita Valle, all defeated
candidates for the same office, not only
against Jeremias Dayo
but also against four other candidates. 
Eventually, those petitions for intervention were dismissed.

The grounds of Gaasis‘ protest were:

(a)  that fraud and irregularity tainted the
counting of ballots by the Board of Election Inspectors in Precincts Nos. 3, 6,
12, 14, 15, 17, 17-A and 19 (total of eight [8] precincts) for said Boards illegally read, counted and credited
respondents with more than 300 ballots which if recounted, including those
illegally excluded and not credited to petitioner, the latter would receive
more votes than respondent Dayo; and

(b)  that 203 voters in
precinct 14 were not allowed to vote.

Dayo denied the material allegations of
the petition and, as affirmative
defenses, averred that Gaasis‘ watchers never protested the minutes
of the board of election inspectors, which they in fact signed, and, during the
canvass of the votes, they did not register any protest.

As counter-protest, Dayo alleged that
he could have garnered more votes had not his followers been intimidated by Gaasis and his leaders during the campaign
and on election day.

The protest of Gaasis against
Dayo (Case No. 07- 88) was, by order of the trial
court, consolidated with the protest of Rodolfo S. Obnamia
against Agnes Devanadera over the mayorship
of Sampaloc, Quezon (Case
No. 06-88) “because the two (2) cases raise identical issues emanating
from the same set of facts” (p. 8, Rollo).  Gaasis did not oppose the motion.

On June 15, 1989,
the trial court issued a summary judgment dismissing the protests.  It held:

“Under the circumstances, this Court must sustain the motion
of the respondent.  To begin with, the
mere fact that there is admission of the fact that the petitioner had watchers
in each of the contested precincts and yet did not record any objection in the
Minutes of the Voting and Counting of Votes is reason enough to sustain the
respondent because it has been held that objections should not only be written
but should be made before the votes reflected in the returns are tallied.  Guiao vs. Comelec, 137 SCRA 356. 
Then we have the fact that petitioner never did question the genuineness
and due execution of the Minutes of Voting and Counting of Votes.  Since the minutes were made in the
performance of official duties, the contents therein are sufficient evidence of
the facts therein stated (Geromo vs. Comelec, 118 SCRA 165). 
The foregoing being clear from the records and have arisen from the availment of a discovery device which this Court is
ordained to maximize pursuant to Circular Order No. 13 of the Supreme Court dated
July 1, 1987, this Court has sufficient basis to render summary judgment
against petitioner.” (pp. 43-44, Rollo.)

Gaasis appealed
to the COMELEC (EAC No. 41-89) which reversed the trial court and reinstated
the protest (Case No. 07-88) filed by Gaasis against Dayo.  The latter
filed this petition for certiorari alleging that the COMELEC gravely
abused its discretion and acted in excess of its jurisdiction –

1.  in failing to consider
the interrogatories in Protest Case No. 07-88 for being violative
of due process, and

2.  in
setting aside the trial court’s summary judgment dismissing Gaasis‘
election protest.

The petition for review has no merit.

The COMELEC did not abuse its discretion in holding that
admissions made by Obnamia in his answers to the interrogatories
addressed to him by Devanadera in Protest Case No.
06-88 (in which neither Gaasis nor Dayo was a party),
could not be used as basis for a
summary judgment dismissing Protest Case No. 07-88 filed by Gaasis
against Dayo.

The rule on the use of interrogatories is provided in Section 1,
Rule 25 of the Rules of Court which reads as follows:

“Section 1.  Interrogatories to parties;
Service thereof. ? Under the same conditions specified in Section
1 of Rule 24, any party may serve upon any adverse party written
interrogatories to be answered by the party served x x
x.”

Based on the foregoing rule, public
respondent correctly observed “that
interrogatories may be used only as between parties to a case” (p. 67, Rollo).  Agnes T. Devanadera, respondent in Case No. 06-88 and author of the
interrogatories, and herein private respondent Gaasis,
protestant in Case No. 07-88, were not adverse parties, despite the consolidation of
their cases.  Moreover, there is no
showing in the records that private respondent either agreed to the adoption
of, or was given opportunity to answer, Devanadera’s
interrogatories.  The summary dismissal
of Gaasis‘ election protest against Dayo, based merely on interrogatories where both of them
had no participation, clearly constitutes a violation of due process.

That an election protest may not be disposed of by summary judgment, is inferable from the following provision of the
Election Code.

“Where the allegations in a protest x x
x so warrant,
or whenever in the opinion of the court the interest of justice so
requires, it shall immediately order x x x that the ballots be examined and the votes counted.”
(Sec. 255, Omnibus Election Code.)

Summary judgment applies only to ordinary civil actions for the
recovery of money claims (Remedial Law Compendium by Regalado,
Vol. I, 1986 Edition, p. 209, citing the case of Roque vs. Encarnacion, et al., 50
O.G. 4193).  The rules on summary
judgment have no application to election protests for “beyond the narrow
personal stakes of the opposing candidates, the rights of the electorate, or
the people, are involved” (Ong vs. Comelec, 22 SCRA 241;
Vda. de Mesa vs. Mencias,
18 SCRA 533; De Leon vs. Guadiz, 104 SCRA 591).  Expediency is not an excuse for not pursuing
to the maximum the efforts necessary in
the ascertainment of the real and actual winner in the election, by
examining the best evidence available – the ballots.  By rendering a summary judgment, the trial
court denied itself the chance to directly scrutinize and appreciate the
primary evidence of the true will of the voters – the ballots.  Hence, in an election protest, the trial
court may not make a finding that there is no genuine issue to be resolved
until and unless it shall have given the protestant a chance to substantiate
his protest.

When fraud and irregularities are alleged in the protest and the
court believes the interest of justice so requires,
it should order that the ballots be examined and the votes counted (Sec.
255 Omnibus Election Code).  If the court
is not satisfied that the allegations of the protest are sufficient, it should
give the protestant an opportunity to prove his allegations, instead of
dismissing the protest on the basis of interrogatories taken in
another case involving other parties. 
Allegations of fraud and irregularities are sufficient grounds for
opening the ballot boxes and examining the questioned ballots (Moguis Jr. vs. CA & Bisnar,
G.R. No. 66547, May 7, 1985).  Evidence
of irregularities is not necessary to justify the revision of ballots (Jaguros vs. Villamor, 134 SCRA
553).  To require parole and other
evidence on the alleged irregularities before opening the ballot box, would
only give the protestee time and opportunity to delay
the settlement of the controversy through lengthy presentation of testimonial evidence and cross-examination (Astorga vs. Fernandez, 19 SCRA 331).  The trial court committed grave abuse of discretion when it declared, based only on
the interrogatories in the
companion case (Protest Case No. 06-88) that there is no evidence of fraud or
irregularities committed.  As
wryly observed by the Solicitor
General in his Comments on the petition: 
“there was precisely no evidence of fraud and irregularities on
record because the trial court did not give private respondent (the protestant)
a chance to substantiate his allegations.”

WHEREFORE, finding no grave abuse of discretion in the decision of the COMELEC
in Case No. 07-88, the petition for certiorari is dismissed for
lack of merit, and the assailed decision is affirmed.  Costs against the petitioner..

SO ORDERED.

Fernan, C.J., Narvasa,
Melencio-Herrera, Cruz, Paras,
Feliciano, Gancayco, Padilla, Bidin,
Sarmiento, Medialdea, Regalado, and Davide, Jr., JJ., concur.

Gutierrez, Jr., J.,  concurs because of
Sec. 2(2), Article IX-C of the Constitution.