Republic of the Philippines

MUNICIPAL CIRCUIT TRIAL COURT

TAYASAN-JIMALALUD
Province of Negros Oriental

EMILIE CALLAO BALASABAS, ELECTION CASE NO. 0008

Protestant,

-versus- ELECTION PROTEST

AND BALLOT RECOUNT
CANDIDO PROBITSADO AVENIDO, JR,
Protestee,

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DECISION

This Election Protest Case was filed by Protestant, EMILIE CALLAO

BALASABAS, through Counsel Atty. Anthony Isidro B. Bayawa III, on
November 6, 2013 against CANDIDO PROBITSADO AVENIDO, JR praying for
the immediate deposit in the Honorable Court the Ballot boxes of Precinct Nos.
0047A, 0047B and 0048A with the ballots and their keys, list of voters and voting
records, book of votes, and other documents used in the election, the revision of
the ballots and annulment of the proclamation of Protestee as Barangay Captain of
Barangay Mata-uta, Tayasan, Negros Oriental, and to declare and cause the
proclamation of Protestant as the duly elected Barangay Captain with an order to
the Protestee to pay the Protestant the cost and Attorney’s Fees in connection with
the case.

Protestant’s Election Protest alleged that Protestant, EMILIE CALLAO

BALASABAS is a Filipino Citizen, of legal age, married, able to read and write
English, Tagalog and Visayan Dialect, a registered voter of precinct No. 0046A
and a resident of Mata –uta Tayasan, Negros Oriental and the Protestee CANDIDO
PROBITSADO AVENIDO, JR is also of legal age, married, Filipino and a resident
of Mata –uta, Tayasan, Negros Oriental.

That Protestant, duly filed her Certificate of Candidacy for the position of
Punong Barangay in Barangay Mata-uta, Tayasan, Negros Oriental, during the last
concluded Barangay Elections held on October 28, 2013. Likewise, Protestee has
also filed his Certificate of Candidacy in the same position as Punong Barangay.

That during the canvassing of ballots of the said Barangay elections, more
than ten (10) ballots in the precinct numbers 0047A, 0047B and 0048A were not
credited to Protestant for that the space for Punong Barangay was left blank and
the name of Protestant was written if not on the first line for the Barangay
Kagawad, it is placed in the upper left portion of the ballot. As a result, the
candidates for Punong Barangay have obtained the following votes:
 EMILIE CALLAO BALSABAS, Protestant …………….172
CANDIDO PROBISADO AVENIDO, Protestee ………..174

Thereafter, on October 28, 2013, the Barangay Board of Canvassers

proclaimed, Candido Probisado Avenido, the Protestee, as the duly elected
Barangay Captain of Barangay Mata-uta, Tayasan, Negros Oriental.

Protestee’s answer specifically denied that there was misappreciation of the

ballots by the Board of Election Tellers &/or Board of Canvassers during the
counting and Protestant’s reliance in the ruling of Farin vs. Gonzales and Bautista
vs. Jose Castro is misplaced.

That the petition for election protect is fatally defective for it was not
verified in violation of section 7, Rule 2 of A.M. 07-4-15-SC, effective May 15,
2007 known as the Rules of Procedure in Election Contest before the Courts
involving Elective Municipal and Barangay Officials.

That the petition for election protest does not comply with Bar Matter 1922
which non-compliance authorized its automatic dismissal.

That the petition failed to comply with Section 11(d), Rule 2 of A.M/ 07-4-
15-SC as it did not state the total number of precincts of the barangay concerned.

And that the protest is based merely on speculation and it also failed to state
a detailed specification of the alleged violation which is required under Section 11
(f).

And with the submission of the protestee’s answer, this case was set for
preliminary conference. During the preliminary conference, the parties failed to
arrive at an amicable settlement. Then the parties had the following stipulations
and admitted facts:

1. The identities of the parties

2. That the case is within the jurisdiction of the Honorable Court;

3. That the parties are both candidates during October 2013 elections;

4. That the protestant gathered 172 votes and the protestee garnered 174
votes;

5. That the protestee was proclaimed during the Barangay election of

Barangay Mata-uta, Tayasan, Negros Oriental.

Then the protestant has marked the following exhibits:

1. Exhibit A the petition itself and the succeeding pages

 Exhibit A – 1
Exhibit A- 2
Exhibit A– 3
Exhibit A-4-a the name and signature of Emilie C. Balasabas
Exhibit B the judicial Affidavit

And the protestee have also marked the following exhibits:

Exhibit 1 as the answer.

The issues raised by the protestant are the following:

I. Whether or not the Board of Canvassers misappreciated the ballots

during the October, 2013 elections at Barangay Mata-uta, Tayasan, Negros
Oriental;
II. Whether or not the name of Emelie C. Balasabas written by the voter
below the space for Punong Barangay be counted in of favor of the
protestant;

The following issued were raised by the Protestee:

I. Whether or not the proclamation as elected Punong Barangay of

Mata-uta is valid;
II. Whether the ruling of the Supreme Court in the case of Farin vs.
Gonzales, et.al., G.R. No. L-36893, September 28, 1973 is applicable;
III. Whether the ruling of the Supreme Court in the case of Velasco vs.
Comelec, G.R. No. 166931, February 22, 2007 is applicable;

The counsel of the Protestant asked for the reservation of the right to mark
their exhibits during the trial of the case. Then the court created the Revision
Committee.

Viewed from all the foregoing, this Court believed and was convinced for
the protestee. The ballots involved in this case are Exhibits “1”, “2”, “3”, “4”, “5”,
“6”, “7”, “8”, “9”, and “10”. The Court ruled that:

a) The ballot in Exhibit 1 is invalid and considered as a stray vote. The

presence of the words “Gins Captain Balasabas Maanyag og Guapa” was
meant for no other purpose than to identify the voter. 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, are 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. Initials, 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).

b) As to the ballots in Exhibit 2 and Exhibit 8, it is invalid and considered as

a stray vote. In Exhibit 2, the name “Gendong Galie. AJ” was written in
the space provided for the Punong Barangay. In Exhibit 8, the name
“Gindong” was written in the space provided for the Punong Barangay.
The names “Gendong Galie.AJ” and “Gindong” does not appear to be a
name of any candidate. Hence, it is a stray vote.

c) As to the ballot in Exhibit 3, the name written in the first line provided
for Barangay Kagawad is not discernible and to consider it a vote is
highly speculative and conjectural. Hence, it is a stray vote.

d) As to the ballots in Exhibit 4, Exhibit 5 and 9, it is invalid and considered

as a stray vote. In Exhibit 4 ballot, the name “Emelie Callao” was written
in the first line for the Barangay Kagawad. In Exhibit 5 ballot, the name
“Emely – Balasabas” was written in the first line for the Barangay
Kagawad. Lastly, in Exhibit 9 ballot, the name “Emelie Balasabas” was
written in the last line for the Barangay Kagawad. In Velasco vs
COMELEC, G.R. No. 166931, February 22, 2007, a similar factual
situation transpired in two protested ballots during the 2002 barangay
elections. A particular ballot marked as Exhibit 13 showed that the lines
for kagawad were properly filled up, but the line for Punong Barangay
was left vacant and therein private respondents name written above the
instructions to the voter and below the words San Pablo City. On the
other hand, the ballot marked as Exhibit 9 similarly had the lines for
kagawad properly filled up, but therein private respondents name was
written in the left uppermost part of the ballot. The Court ruled that the
votes in the ballots marked as Exhibits 9 and 13 for therein private
respondent were stray votes, for they did not relate to any office, and
ratiocinated thus:

Section 211(19), which treats misplaced votes as stray, speaks of a

vote for a candidate for an office for which he did not present himself.
Thus, there is more reason to apply this rule here as the votes in
Exhibits 9 and 13 do not even relate to any office.

Nor do the votes in question fall under any of the exceptions to

Section 211(19) enumerated above. x x x Exhibits 9 and 13 present an
unusual case of extremes while respondents name was written way off
its proper place, the names of persons who were presumably
candidates for Sangguniang Barangay Kagawad were properly placed,
without the slightest deviation, in the first of the seven lines for that
office.
 This gives only two possible impressions. First, that the voters in
these two ballots knew in fact where to write the candidates names, in
which case the votes for respondent written way off its proper place
become stray votes. Second, the voters manner of voting was a devise
to identify the ballots, which renders the ballots invalid. We adopt the
more liberal view that the misplaced votes in Exhibits 9 and 13 are
stray votes under Section 211(19), thus, leaving the ballots valid.

Moreover, the case of Farin vs. Gonzalez does not apply to the present
case. In the said 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.
The court ruled that what was placed before the name BAUTISTA was Bo.
Barangay and not Po. Barangay for Punong Barangay (or Barangay
Captain). There was the voter's intention to vote for BAUTISTA as
Barangay Captain and said vote should be counted in favor of him.

Considering that the vote for Protestant in Exhibit 4, 5 and 9 ballot

does not even relate to any office or the names were not preceded by the
name of the office for which he is being elected, then said misplaced vote is
treated as stray.

e.) As to Exhibit 6 and Exhibit 7 ballots, it is invalid and considered as a

stray vote. In Exhibit 6 ballot, the name “Baslasob” was written in space
provided for the Punong Barangay. In Exhibit 7 ballot, the name “Baslasalo”
was written in the space provided for the Punong Barangay. Both names do
not appear to be a name of any candidate. Since the name written seems to
be “Baslasob” and “Baslasalo” such cannot be equated to Balasabas
(Protestant), much less, credited to her pursuant to Sec. 211(14) of the
Omnibus Election Code, for there is no way of determining the intention of
the voter as held in Bautista v. Comelec. Moreover, it cannot be appreciated
under the doctrine of idem sonans in favor of the Protestant because it did
not indicate or apply for the said names to be recognized as those for which
she can be voted, and neither has it been shown that Protestant is known in
the barangay as such. Hence, the votes are considered as stray votes.

f.) As to Exhibit 10 ballot, it cannot be counted in favor of the Protestee. It

does not appear that it is the Protestee’s registered nickname. Hence, it is a
stray vote.

To recapitulate, the Court considered the ballots in Exhibits 1-10 as

stray votes. The Board of Canvassers correctly appreciated the votes during
the 2013 elections in Tayasan, Negros Oriental. Moreover, the proclamation
of the Protestee as the duly elected Barangay Kagawad is valid.

In view hereof, premises considered, the instant protest of the

Protestantant EMILIE CALAO BALASABAS is hereby ordered
DISMISSED for lack of merit.
SO ORDERED.

Given this 31st day of July, 2018 at Tayasan, Negros Oriental.

TIRSO F. BANQUERIGO
Circuit Trial Judge