VIRGINIO VILLAMOR, G.R. No.

169865
Petitioner,
Present:

Panganiban, C.J.,
Puno,
Quisumbing,
Ynares-Santiago,
Sandoval-Gutierrez,
- versus - Carpio,
Austria-Martinez,
Corona,
Carpio-Morales,
Callejo, Sr.,
Azcuna,
Tinga,
Chico-Nazario,
Garcia, and
Velasco, Jr., JJ.
COMMISSION ON ELECTIONS
and AMYTIS* DE DIOS-BATAO, Promulgated:
Respondents.
July 21, 2006
x ---------------------------------------------------------------------------------------- x

DECISION

YNARES-SANTIAGO, J.:

This petition for certiorari under Rule 65 of the Rules of Court seeks to annul the April 11,
2005 Resolution[1] of the Second Division of the Commission on Elections (COMELEC) in EAC
No. A-11-2004 as well as the Order of the COMELEC En Banc dated August 5, 2005. The
assailed resolution affirmed the Order[2] dated July 23, 2004 of
the Regional Trial Court of Danao City, Branch 25 in Case No. EP-2004-02 which reconsidered
its Order[3] dated June 24, 2004dismissing the election protest filed by respondent Amytis De
Dios-Batao.

The antecedent facts are as follows:

On May 13, 2004, petitioner Virginio Villamor was proclaimed as mayor of Carmen, Cebu, by
the Municipal Board of Canvassers (MBC) in the elections held on May 10, 2004 over his
opponent, respondent Amytis De Dios-Batao. On May 17, 2004, respondent filed a petition to
annul the proclamation of petitioner alleging as grounds the illegal composition of the MBC and
its proceedings. The case was docketed as SPC No. 04-083 and raffled to the COMELEC
Second Division.[4]

Subsequently, or on May 24, 2004, respondent filed an election protest with

the Regional Trial Court of Danao City which was docketed as Case No. EP-2004-02 and raffled
to Branch 25 thereof. Petitioner filed his Answer to the Petition with Counter Protest on June 7,
2004.[5] However, in its Order[6] dated June 24, 2004, the trial court dismissed the election
protest for lack of jurisdiction because it was filed one-day late.

Under Section 3, Rule 35 of the COMELEC Rules of Procedure, an election protest

should be filed within 10 days from the date of proclamation of the results of the election. Since
petitioner was proclaimed on May 13, 2004, respondent had until May 23, 2004 to file an
election protest. However, respondent filed the same only on May 24, 2004, thus, it was
dismissed by the trial court in an Order dated June 24, 2004.[7]

A Motion for Reconsideration was filed by the respondent which was granted by the trial
court in an Order dated July 23, 2004 because it found that the election protest was actually
filed on time. Since the last day to file the protest fell on May 23, 2004 which was a Sunday,
thus, under Section 1, Rule 22 of the Rules of Court, the time should not run until the next
working day which was May 24, 2004.Section 5, Rule 135 of the Rules of Court gives the courts
inherent power to amend and control its processes and orders to conform with law and justice.[8]

Petitioner appealed the Order granting respondents motion for reconsideration to the
COMELEC and was docketed as EAC No. A-11-2004 and was raffled to its Second Division. In
the assailed Resolution dated April 11, 2005, the Second Division of the COMELEC dismissed
the appeal for lack of merit. On August 5, 2005, the COMELEC En Banc denied petitioners
motion for reconsideration.

In the meantime, the Second Division of the COMELEC issued on May 9, 2005 a
Resolution[9] in SPC No. 04-083 which is the petition to annul the proclamation of petitioner, the
dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the Petition To Declare Null And Void
Proclamation dated 17 May 2004 filed by petitioners Amythis De Dios Batao, et
al., is hereby DISMISSED for lack of merit.

SO ORDERED.[10]
 Hence, this petition raising the following issues:

1. MAY A REGULAR COURT, IN AN ELECTION PROTEST, ACT ON A MOTION

FOR RECONSIDERATION FROM AN ORDER OF DISMISSAL OF THE
ELECTION PROTEST CONSIDERING THAT A MOTION FOR
RECONSIDERATION IS A PROHIBITED PLEADING?

2. MAY A REGULAR COURT ADMIT AN ELECTION PROTEST PREMATURELY

CONSIDERING THAT THE PROTESTANT HAS STILL A PENDING PETITION
FOR PRE-PROCLAMATION CONTROVERSY IN THE ANNULMENT OF THE
PROCLAMATION OF THE PROTESTEE IN THE COMELEC AND IF IT DOES
SO, MAY THE PERIOD FOR THE FILING OF THE COUNTER-PROTEST BE
COUNTED FROM THE RECEIPT OF THE RESOLUTION OF THE COMELEC
DENYING THE PETITION FOR THE ANNULMENT OF THE PROCLAMATION?
[11]

The core issues for resolution are as follows: (1) whether the trial court can act on a
motion for reconsideration in an election protest; and (2) whether the trial court prematurely
admitted respondents election protest pending a pre-proclamation controversy.

We shall first discuss the second issue. As a general rule, the proper remedy after the
proclamation of the winning candidate for the position contested would be to file a regular
election protest or a petition for quo warranto.[12] The filing of an election protest or a petition
for quo warranto precludes the subsequent filing of a pre-proclamation controversy or amounts
to the abandonment of one earlier filed, thus depriving the COMELEC of the authority to inquire
into and pass upon the title of the protestee or the validity of his proclamation.[13] The reason is
that once the competent tribunal has acquired jurisdiction of an election protest or a petition
for quo warranto, all questions relative thereto will have to be decided in the case itself and not
in another proceeding. This procedure will prevent confusion and conflict of authority.[14]
Moreover, not all actions seeking the annulment of proclamation suspend the running of
the period for filing an election protest or a petition for quo warranto.[15] For it is not the relief
prayed for which distinguishes actions under 248 [16]from an election protest or quo
warranto proceedings, but the grounds on which they are based.[17]

In the case at bar, respondents petition to annul the proclamation rested mainly on the
alleged illegal composition of the municipal board of canvassers [18]and its proceedings which is
an issue that may be properly raised in a pre-proclamation controversy.[19] Under paragraph (b)
of Section 5 of Rule 27 of the COMELEC Rules of Procedure, if the petition involves the illegal
composition of the board of canvassers, it must be filed immediately when the board begins to
act as such, or at the time of the appointment of the member whose capacity to sit as such is
objected to if it comes after the canvassing of the board, or immediately at the point where the
proceedings are or begin to be illegal. Thus, we held in Laodenio v. Commission on
Elections[20] that when the issue involves the illegal composition of the Board, the same cannot
be questioned after the proclamation of the winner, to wit:

Although Sec. 17 of R.A. 7166 and Sec. 5 par. (a)(1) (not Sec. 4 as
erroneously cited by petitioner), of Rule 27 of the COMELEC Rules of Procedure
also allow filing of a petition directly with respondent COMELEC when the issue
involves the illegal composition of the Board, Sec. 5, par. (b), of the same Rule
requires that it must be filed immediately when the Board begins to act as such,
or at the time of the appointment of the member whose capacity to sit as such is
objected to if it comes after the canvassing of the Board, or immediately at the
point where the proceedings are or begin to be illegal. In the present case, the
petition was filed five (5) days after respondent Longcop had been proclaimed by
the Board. At any rate, the real issue appears to be not what it appears to
petitioner whether he can still dispute the composition of the Board after having
actively participated in the proceedings therein. In this regard, we sustain
respondent COMELEC.[21]

In the instant case, respondents petition to annul petitioners proclamation based on the
alleged illegal composition of the board of canvassers is a pre-proclamation controversy which
should have been filed prior to petitioners proclamation. However, respondent filed the petition
on May 17, 2004 only or four days after petitioners proclamation. As such, the filing of the
petition to annul the proclamation of petitioner did not suspend the running of the reglementary
period within which to file an election protest and inevitably, it did not suspend the latters period
to file an Answer with Counter Protest. Accordingly, the subsequent filing of the election protest
on May 24, 2004 by respondent amounted to the abandonment of the pre-proclamation
controversy earlier filed.

Anent the first issue, petitioner asserts that a motion for reconsideration of the election protest
filed by respondent was a prohibited pleading thus its filing did not toll the running of the period
to appeal. Consequently, when the latter failed to appeal within five days from the June 24,
2004 Order of the trial court, the dismissal of the election protest became final.

On the other hand, respondent alleges that a motion for reconsideration is not a prohibited
pleading and claims that even if the motion was not filed, the trial court could reinstate the
petition motu proprio before the said order became final.
We agree with petitioner.

Under Section 256 of the Omnibus Election Code (OEC),[22] the trial court cannot
entertain a motion for reconsideration of its decision in an election contest affecting municipal
officers filed by the aggrieved party. However, the latter may appeal to the Intermediate
Appellate Court (now COMELEC) within five days after the receipt of a copy of the
decision. Likewise, Section 19, Rule 35 of the COMELEC Rules of Procedure implementing the
abovementioned Section 256 provides:

Sec. 19. Promulgation and Finality of Decision. The decision of the Court shall be
promulgated on a date set by it of which due notice must be given the parties. It
shall become final five (5) days after its promulgation. No motion for
reconsideration shall be entertained. (Emphasis supplied)

Respondent received a copy of the Order dismissing the election protest for lack of jurisdiction
on June 25, 2004. Thus, respondent had until June 30, 2004 within which to file an appeal with
the COMELEC but failed to do so. Instead, respondent filed a motion for reconsideration which
is a prohibited pleading. As such, it did not toll the running of the prescriptive period.

In Veloria v. Commission on Elections,[23] a case involving candidates for municipal

mayor, vice-mayor, and members of the Sangguniang Bayan of Manaoag, Pangasinan, where
instead of perfecting an appeal within five days as provided by law, petitioners filed a motion for
reconsideration, we held that:

The COMELEC, therefore, correctly ruled that the motion for

reconsideration filed by the petitioners in the trial court on March 20, 1990 did not
suspend the period to appeal since a motion for reconsideration is prohibited
under Section 256 of the Omnibus Election Code.

Since the right to appeal is not a natural right nor is it a part of due
process, for it is merely a statutory privilege that must be exercised in the manner
and according to procedures laid down by law, x x x and its timely perfection
within the statutory period is mandatory and jurisdictional x x x, Judge Abasolo
gravely abused his discretion when he gave due course to the petitioners tardy
appeal from his predecessors x x x resoluti(o)n x x x dismissing the petitioners
election protest.Said resolution had become final and unappealable.[24]

The rules in ordinary civil procedure do not apply in election cases except by analogy or in a
suppletory character and whenever practicable and convenient.[25]Section 256 of the Omnibus
Election Code and Section 19, Rule 35 of the COMELEC Rules of Procedure clearly state that
no motion for reconsideration should be entertained. Thus, there is no room to apply the rules of
ordinary civil procedure suppletorily. Nor can resort be made by the trial court to Section 5(g)
[26]
of Rule 135 of the Rules of Court to sustain its actions. The trial court did not conform to law
and justice when it granted the motion for reconsideration which is a prohibited pleading.

WHEREFORE, in light of the foregoing, the petition is GRANTED. The Resolution

dated April 11, 2005 of the COMELEC Second Division and the Order dated August 5, 2005 of
the COMELEC En Banc in EAC No. A-11-2004 which affirmed the Order dated July 23, 2004 of
the Regional Trial Court of Danao City, Branch 25 in Case No. EP-2004-02 granting the motion
for reconsideration of respondent Amytis De Dios-Batao, are ANNULLED and SET ASIDE. The
Order dated June 24, 2004 of the Regional Trial Court dismissing respondents election protest
for lack of jurisdiction is REINSTATED.

SO ORDERED.

G.R. No. L-25444 January 31, 1966

WENCESLAO RANCAP LAGUMBAY, petitioner,

vs.
THE COMMISSION ON ELECTIONS and CESAR CLIMACO, respondents.

Wenceslao R. Lagumbay for the petitioner.

Ambrosio Padilla for the respondents.

BENGZON, C.J.:

This petition prays for revision of an order of the Commission on Elections declining to reject the
returns of certain precincts of some municipalities in Mindanao. The Constitution provides for
review by this Court of the rulings of the said Commission.

The matter being urgent, and having reached the conclusion that the returns of certain
questioned precincts were "obviously manufactured" within the meaning of pertinent
jurisprudence, particularly Mitchell v. Stevens,1 we issued on December 24, 1965, a short
resolution upholding the Commission's power and duty to reject the returns of about fifty
precincts.

It appearing therein that contrary to all statistical probabilities in the first set, in
each precinct the number of registered voters equalled the number of ballots and the
number of votes reportedly cast and tallied for each and every candidate of the Liberal
Party, the party in power; whereas, all the candidates of the Nacionalista Party
got exactly zero; and in the second set, again contrary to all statistical probabilities
all the reported votes were for candidates of the Liberal Party, all of whom were credited
 with exactly the same number of votes in each precinct, ranging from 240 in one precinct
to 650 in another precinct; whereas, all the candidates of the Nacionalista Party were
given exactly zero in all said precincts.

We opined that the election result to said precincts as reported, was utterly improbable and
clearly incredible. For it is not likely, in the ordinary course of things, that all the electors of one
precinct would, as one man, vote for all the eight candidates of the Liberal Party, without giving
a single vote to one of the eight candidates of the Nacionalista Party. Such extraordinary
coincidence was quite impossible to believe, knowing that the Nacionalista Party had and has a
nationwide organization, with branches in every province, and was, in previous years, the party
in power in these islands.

We also know from our experience in examining ballots in the three Electoral Tribunals
(Presidential, Senate, and House) that a large portion of the electors do not fill all the blanks for
senators in their ballots. Indeed, this observation is confirmed by the big differences in the votes
received by the eight winning senators in this as well as in previous national elections;2 almost a
million votes between the first place and the eight. Furthermore, in 1965, the total number of
electors who cast their votes was 6,833,369 (more or less). If every voter had written eight
names on his ballot, the total number of votes cast for all the candidates would be that number
multiplied by 8, namely 54,666,952. But the total number of the votes tallied for the candidates
for senator amounted to 49,374,942 only. The difference between the two sums represents the
number of ballots that did not contain eight names for senators. In other words, some 5 million
ballots did not carry eight names. Of course, this is a rough estimate, because some ballots may
have omitted more names, in which case, the number of incomplete ballots would be less. But
the general idea and the statistical premise is there.

The same statistical result is deducible from the 1963 election data: total number of electors
who voted, 7,712,019; if each of them named eight senators, the total votes tallied should have
been 61,696,152; and yet the total number tallied for all the senatorial candidates was
45,812,470 only. A greater number of incomplete ballots.

It must be noted that this is not an instance wherein one return gives to one candidate all the
votes in the precinct, even as it gives exactly zero to the other. This is not a case
where some senatorial candidates obtain zero exactly, while some others receive a
few scattered votes. Here, all the eight candidates of one party garnered all the votes, each of
them receiving exactly the same number, whereas all the eight candidates of the other party got
precisely nothing.

The main point to remember is that there is no block-voting nowadays.

What happened to the vote of the Nacionalista inspector? There was one in every precinct.
Evidently, either he became a traitor to his party, or was made to sign a false return by force or
other illegal means. If he signed voluntarily, but in breach of faith, the Nacionalista inspector
betrayed his party; and, any voting or counting of ballots therein, was a sham and a mockery of
the national suffrage.
Hence, denying prima facie recognition to such returns on the ground that they are manifestly
fabricated or falsified, would constitute a practical approach to the Commission's mission to
insure free and honest elections.

In Mitchell vs. Stevens, supra, the returns showed a noticeable excess of votes over the number
of registered voters, and the court rejected the returns as obviously "manufactured". Why? The
excess could have been due to the fact that, disregarding all pertinent data, the election officers
wrote the number of votes their fancy dictated; and so the return was literally a "manufactured",
"fabricated" return. Or maybe because persons other than voters, were permitted to take part
and vote; or because registered voters cast more than one ballot each, or because those in
charge of the tally sheet falsified their counts. Hence, as the Mitchell decision concluded, the
returns were "not true returns . . . but simply manufactured evidences of an attempt to defeat
the popular will." All these possibilities and/or probabilities were plain fraudulent practices,
resulting in misrepresentation of the election outcome. "Manufactured" was the word used.
"Fabricated" or "false" could as well have been employed.

The same ratio decidendi applies to the situation in the precincts herein mentioned. These
returns were obviously false or fabricated prima facie. Let us take for example, precinct No. 3
of Andong, Lanao del Sur. There were 648 registered voters. According to such return all the
eight candidates of the Liberal Party got 648 each,3 and the eight Nacionalista candidates got
exactly zero. We hold such return to be evidently fraudulent or false because of the inherent
improbability of such a result against statistical probabilities specially because at least one
vote should have been received by the Nacionalista candidates, i.e., the vote of the Nacionalista
inspector. It is, of course, "possible" that such inspector did not like his party's senatorial line-up;
but it is not probable that he disliked all of such candidates, and it is not likely that he favored all
the eight candidates of the Liberal Party. Therefore, most probably, he was made to sign an
obviously false return, or else he betrayed his party, in which case, the election therein if any
was no more than a barefaced fraud and a brazen contempt of the popular polls.

Of course we agree that frauds in the holding of the election should be handled and finally
settled by the corresponding courts or electoral tribunals. That is the general rule, where
testimonial or documentary evidence, is necessary; but where the fraud is so palpable from the
return itself (res ipsa loquitur the thing speaks for itself), there is no reason to accept it and
give it prima facie value.

At any rate, fraud or no fraud, the verdict in these fifty precincts may ultimately be ascertained
before the Senate Electoral Tribunal.4 All we hold now, is that the returns show "prima facie" that
they do not reflect true and valid reports of regular voting. The contrary may be shown by
candidate Climaco in the corresponding election protest.

The well-known delay in the adjudication of election protests often gave the successful
contestant a mere pyrrhic victory, i.e., a vindication when the term of office is about to expire, or
has expired. And so the notion has spread among candidates for public office that the "important
thing" is the proclamation; and to win it, they or their partisans have tolerated or abetted the
tampering or the "manufacture" of election returns just to get the proclamation, and then let the
victimized candidate to file the protest, and spend his money to work for an empty triumph.
It is generally admitted that the practice has prevailed in all previous elections. Never was the
point pressed upon us in a more clear-cut manner. And without, in any way, modifying our stand
as outlined in the Nacionalista Party vs. Commission decision, we feel the mores of the day
require application even extension of the principle in the Mitchell decision, which is
realistic and common sensical even as it strikes a blow at such pernicious "grab - the -
proclamation - prolong - the - protest" slogan of some candidates or parties.

It is strongly urged that the results reported in these returns are quite "possible", bearing in mind
the religious or political control of some leaders in the localities affected. We say, possible, not
probable. It is possible to win the sweepstakes ten times; but not probable. Anyway, judges are
not disposed to believe that such "control" has proved so powerful as to convert the electors into
mere sheep or robots voting as ordered. Their reason and conscience refuse to believe that
100% of the voters in such precincts abjectly yet lawfully surrendered their precious freedom to
choose the senators of this Republic.

Indeed, social scientists might wonder whether courts could, consistently with morality and
public policy,5 render judgment acknowledging such "control" or validating such "controlled
votes" as candidate Climaco chose to call them.

In view of the foregoing, and overlooking some intemperate language which detracts from the
force of the arguments, we hereby deny the motion to reconsider our resolution of December
24, 1965, as well as the petition for a re-hearing.

G.R. No. 120426 November 23, 1995

NICOLAS C. CASTROMAYOR, petitioner,

vs.
COMMISSION ON ELECTIONS and the MUNICIPAL BOARD OF CANVASSERS OF
CALINOG, ILOILO, respondents.

MENDOZA, J.:

This is a petition for certiorari, prohibition, and mandamus seeking to set aside a resolution of
the Commission on Elections (COMELEC) which directs the Municipal Board of Canvassers of
Calinog, Iloilo to reconvene for the purpose of annulling the proclamation of petitioner Nicolas C.
Castromayor as councilor of that municipality and of proclaiming the winner after a
recomputation of the votes.

Petitioner was a candidate for a seat in the eight-member Sangguniang Bayan of the
municipality of Calinog, Iloilo in the elections held on May 8, 1995.

After the votes had been cast, the Municipal Board of Canvassers (MBC) convened at 6:00 p.m.
of that day and began the canvass of the election returns from the different precincts in the
municipality. The canvassing lasted well into the night of May 9, 1995. The totals of the votes
cast were checked by the Municipal Accountant who acted as recorder of votes. 1
On May 10, 1995, the winners were proclaimed on the basis of the results of the canvass which
showed that petitioner received 5,419 votes and took eighth place in the election for members of
the Sangguniang Bayan. 2

However, when Alice M. Garin, Chairman of the MBC, rechecked the totals in the Statement of
Votes the following day, she discovered that the number of votes cast for Nilda C. Demorito, as
member of the Sangguniang Bayan, was 62 more than that credited to her. As Garin later
explained to the Provincial Election Supervisor, the returns from one precinct had been
overlooked in the computation of the totals. 3 Two employees of the Treasurer's Office, who were
assigned to post the returns on the tally board outside the municipal building, also discovered
the error and reported it to Garin.

As matters stood, therefore the total number of votes cast for Demorito was 5,470, or 51 more
than the 5,419 votes cast for petitioner. 4

Garin reported the matter to the Regional Election Director, Atty. Rodolfo Sarroza, who advised
her to request authority from the COMELEC to reconvene for the purpose of correcting the
error.

On May 13, 1995, a fax letter was sent to the Law Department of the COMELEC in Manila. The
letter explained the problem and asked for authority for the MBC to reconvene in order to
correct the error, annul the proclamation of petitioner and proclaim Demorito as the eighth
member of the Sangguniang Bayan.

A formal letter was later sent to the COMELEC on May 17, 1995.

On May 23, 1995, the COMELEC issued the following resolution:

95-2414. In the matter of the Fax-letter dated 13 May 1995 from

Election Officer Alice M. Carin [sic], requesting for an authority to
reconvene the MBC of Calinog, Iloilo to annul the proclamation of
Nicolas Castromayor for the No. 8 place for councilor and to
proclaim Nilda C. Demorito as the duly elected number eight (8)
SB member of said municipality,

RESOLVED:

1 To direct the Municipal board of Canvassers of said municipality to reconvene

to annul the proclamation of Nicolas C. Castromayor for the number 8 place for
councilor; and

2 To proclaim the winning number eight (8)councilor, and to submit compliance

hereof within five (5) days from receipt of notice. 5

On May 25, 1995, not yet apprised of the resolution of the COMELEC en banc, Garin sent a
letter to petitioner Castromayor, informing him of the error in the computation of the totals and of
the request made by the MBC for permission to reconvene to correct the error.
Petitioner protested the proposed action in a letter dated June 5, 1995 to COMELEC Executive
Director Resurreccion A. Borra. He questioned the legality of the actuations of Garin as stated in
her letter. 6

On June 9, 1995, the MBC was informed by fax of the COMELEC's action on its request. 7

Accordingly on June 14, 1995, the MBC sent notices to the parties concerned that it was going
to reconvene on June 22, 1995, at 10:00 a.m., at the Session Hall of the Sangguniang Bayan, to
make a correction of errors.

Hence this petition to annul COMELEC Resolution No. 95-2414.

Petitioner complains that the COMELEC en banc issued the resolution in question without
notice and hearing, solely on the basis of the fax letter of the MBC. He claims that even if the
matter were treated as a preproclamation controversy, there would nonetheless be a need for
hearing, with notice to him and an opportunity to refute any contrary argument which might be
presented. He invokes the ruling of this Court in Bince, Jr. v. COMELEC 8 that the COMELEC is
"without power to partially or totally annul a proclamation suspend the effects of a proclamation
without notice and hearing."

Petitioner's contention is well taken. That is why upon the filing of the petition in this case, we
issued a temporary restraining order against respondents enjoining them from enforcing the
resolution of the COMELEC. Public respondents, through the Solicitor General, now claim,
however,

that said resolution merely stated the purpose of the reconvening of respondent
Board, and that the process and hearing for the annulment of petitioner's
proclamation, due to mistake in computing the votes of Sangguniang Bayan
candidate Nilda Demorito, will formally take place when respondent Board
reconvenes, at which time and place, petitioner was already informed of
(see Annex E, Petition).

xxx xxx xxx

In the aforesaid reconvening, petitioner would have been free to interpose all his
objections, and discuss his position regarding the matter. 9

To be sure, the COMELEC did not itself annul the proclamation of petitioner, but, by "direct[ing]
the Municipal Board of Canvassers of said municipality to reconvene to annul the proclamation
of Nicolas C. Castromayor," the COMELEC in effect did so. After all, the authority of the
COMELEC was sought because, without such authority, the MBC would not have the power to
annul the proclamation of petitioner.

Be that as it may and in order to obviate the necessity of remanding this case to the COMELEC
for further proceedings in accordance with due process, we will accept this representation of the
public respondents that what the COMELEC resolution contemplates is a hearing before the
MBC at which petitioner will be heard on his objection and that only if warranted will the MBC be
authorized to set aside the proclamation of petitioner previously made on May 10, 1995. We find
this to be the expedient course of action to take, considering that, after all, in its notice to the
candidates, the MBC did not state that it was going to reconvene to annul petitioner's
proclamation and make a new one but only that it was going to do so "for the correction of the
errors noted in the Statement of Votes Per Precinct/Municipality." 10

The proceedings before the MBC should be summary. Should any party be dissatisfied with the
ruling of the MBC, the party concerned shall have a right to appeal to the COMELEC en banc, in
accordance with Rule 27, 7 of the COMELEC Rules of Procedure, which provides as follows:

7. Correction of Errors in Tabulation or Tallying of Results by the Board of

Canvassers. (a) Where it is clearly shown before proclamation that manifest
errors were committed in the tabulation or tallying of election returns, or
certificates of canvass, during the canvassing as where (1) a copy of the election
returns of one precinct or two or more copies of a certificate of canvass were
tabulated more than once, (2) two copies of the election returns or certificate of
canvass were tabulated separately, (3) there was a mistake in the adding or
copying of the figures into the certificate of canvass or into the statement of votes
by precinct, or (4) so-called election returns from non-existent precincts were
included in the canvass, the board may motu propio, or upon verified petition by
any candidate, political party, organization or coalition of political parties, after
due notice and hearing, correct the errors committed.

(b) The order for correction must be made in writing and must be promulgated.

(c) Any candidate, political party, organization or coalition of political parties

aggrieved by said order may appeal therefrom to the Commission within twenty-
four (24) hours from the promulgation.

(d) Once an appeal is made, the board of canvassers shall not proclaim the
winning candidates, unless their votes are not affected by the appeal.

(e) The appeal must implead as respondents the Board of Canvassers

concerned and all parties who may be adversely affected thereby.

(f) Upon receipt of the appeal, the Clerk of Court concerned shall forthwith issue
summons, together with a copy of the appeal, to the respondents.

(g) The Clerk of Court concerned shall immediately set the appeal for hearing.

(h) The appeal shall be heard and decided by the Commission en banc.

Athough this provision applies to preproclamation controversies and here the proclamation of
petitioner has already been made, there is nothing to suggest that it cannot be applied to cases
like the one at bar, in which the validity of the proclamation is precisely in question. On the
contrary, in Duremdes v. COMELEC, 11 this Court sustained the power of the COMELEC en
banc to order a correction of the Statement of Votes to make it conform to the election returns in
accordance with a procedure similar to the procedure now embodied in Rule 27, 7. If the Rule
was not applied, it was only because it was adopted after that case had arisen. Otherwise, as
we said there, this procedure "best recommends itself specially considering that the Statement
of Votes is a vital component in the electoral process."

Indeed, since the Statement of Votes forms the basis of the Certificate of Canvass and of the
proclamation, any error in the statement ultimately affects the validity of the proclamation. It
begs the question, therefore, to say that this is not a preproclamation controversy and the
procedure for preproclamation controversies cannot be applied to the correction in the
computation of the totals in the Statement of Votes.

It should be pointed out, in this connection, that what is involved here is a simple problem of
arithmetic. The Statement of Votes is merely a tabulation per precinct of the votes obtained by
the candidates as reflected in the election returns. In making the correction in computation, the
MBC will be acting in an administrative capacity, under the control and supervision of the
COMELEC. Hence any question pertaining to the proceedings of the MBC may be raised
directly to the COMELEC en banc in the exercise of its constitutional function to decide
questions affecting elections.

What has just been said also disposes of petitioner's other contention that because his
proclamation has already been made, any remedy of the losing party is an election protest. As
held in the Duremdes case:

It is DUREMDES' further submission that this proclamation could not be declared

null and void because a pre-proclamation controversy is not proper after a
proclamation has been made, the proper recourse being an election protest. This
is on the assumption, however, that there has been a valid proclamation. Where
a proclamation is null and void, the proclamation is no proclamation at all and the
proclaimed candidate's assumption of office cannot deprive the COMELEC of the
power to declare such nullity and annul the proclamation. (Aguam vs.
COMELEC, L-28955, 28 May 1968, 23 SCRA 883). 12

WHEREFORE, the petition is DISMISSED and the Temporary Restraining Order previously
issued is hereby LIFTED.

SO ORDERED.