Republic of the Philippines

MUNICIPAL CIRCUIT TRIAL COURT

TAYASAN-JIMALALUD
Province of Negros Oriental

PETRA ASENTISTA DECANO, ELECTION CASE NO. 0009

Protestant,

-versus- ELECTION PROTEST

AND BALLOT RECOUNT
TEODORO CORONEL GOZAREM,
Protestee,

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DECISION

This Election Protest Case was filed by Protestant, PETRA ASENTISTA

DECANO, through Counsel Atty. Anthony Isidro B. Bayawa III, on November 7,
2013 against TEODORO CORONEL GOZAREM, praying for the immediate
deposit in the Honorable Court the Ballot boxes of Precinct Nos. 0015A, 0016B
and 0017A 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
Banga, 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, PETRA ASENTISTA

DECANO is a Filipino Citizen, of legal age, married, and a resident of Banga,
Tayasan, Negros Oriental and the Protestee is also of legal age, married, Filipino
and a resident of Banga, Tayasan, Negros Oriental.

That Protestant, duly filed her Certificate of Candidacy for the position of
Punong Barangay in Barangay Banga, 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 0015A, 0016B and 0017A 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:

PETRA ASENTISTA DECANO, Protestant …………….181

TEODORO CORONEL GOZAREM, Protestee ………..182

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 Thereafter, on October 28, 2013, the Barangay Board of Canvassers
proclaimed, Candido Probisado Avenido, the Protestee, as the duly elected
Barangay Captain of Barangay Banga, 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. The issues of the case are the following:

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

appreciation of the ballots during the last Barangay elections held on
October 28, 2013 at Banga, Tayasan, Negros Oriental.
II. Whether or not the name of Protestant written by the voter in the
space intended for the Punong Barangay be counted in favor of the
Protestant.

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”, “10”,“11”, “A”, “B”, “C”, “D” and “E”. The Court ruled that:

a) The ballots in Exhibit 1,2,3,4, 5, 9.10, and 11 are invalid and considered
as a stray vote. 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.

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 Considering that the vote for Protestant in Exhibit 1,2,3,4, 5, 9.10, and
11 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.

b) The ballot in Exhibit 6 is invalid and considered as a stray vote wherein

the letters PTR are written on the space for Punong Barangay. In
applying paragraph 7 of Section 211 of the Omnibus Election Code,
which reads:

A name or surname incorrectly written which, when read, has a sound

similar to the name or surname of a candidate when correctly written
shall be counted in his favor. The idem sonans rule does not require
exactitude nor perfection in the spelling of names. The question whether
a name sounds the same as another is not one of spelling but of
pronunciation.

Here, the letters “PTR” is pronounced differently with “Petra” which

is the First name of the Protestant. Hence, the Board of Canvassers is
correct in not counting it in favor of the Protestant.

c) The ballot in Exhibit 7 is invalid and considered as a stray vote wherein

the name PET is written on top of the ballot. 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.

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 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.

Here, the line for Punong Barangay was left vacant and the
name PET was written above the instructions to the voter and below
the words Tayasan, Negros Oriental similar to what happened in the
abovementioned case. Hence, the Board of Canvassers is correct in
not counting the vote in favor of the Protestant.

d) The ballot in Exhibit 8 wherein the initials PTTO are written on top of
the ballot is invalid and a stray vote. Here, the name written seems to be
“PTTO” such cannot be equated to PETRA (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, G.R. No. 133840 , November 13, 1998. 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.

e) The ballots in Exhibits A to E are valid and should be counted in favor of

the Protestee. Section 155 (11) of the 1978 Election Code provides that
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 names written were "DORO" accompanied by the words

“Papa”, “Lolo” and “Teyo”, there was no doubt that the voter intended to
vote for "TEODORO", the nickname of which protestant was popularly
known. Hence, the votes were correctly counted by the Board of
Canvassers in favor of the Protestee.

To recapitulate, the Court considered the ballots in Exhibits 1to11 as

stray votes, while the ballots in Exhibits A to E are considered as valid in
favor of the Protestee. The Board of Canvassers correctly appreciated the

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votes during the 2013 elections in Tayasan, Negros Oriental. Moreover, the
proclamation of the Protestee as the duly elected Punong Barangay is valid.

Viewed from all the foregoing, judgment is hereby rendered in favor

of the protestee, DISMISSING the protest of the protestant PETRA ASENA
DECANO for lack of merit.

SO ORDERED.

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

TIRSO F. BANQUERIGO
Circuit Trial Judge