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Prof. Joselito Guianan Chan's The Labor Code of the Philippines, Annotated Labor Standards & Social Legislation Volume I of a 3-Volume Series 2019 Edition (3rd Revised Edition)
 

 
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UNITED STATES SUPREME COURT JURISPRUDENCE
 

 
PHILIPPINE SUPREME COURT JURISPRUDENCE
 

   
November-2004 Jurisprudence                 

  • G.R. NOS. 123562-65 - LEONORA A. GESITE, ET AL. v. THE COURT OF APPEALS, ET AL.

  • G.R. No. 107566 - BAGUIO MIDLAND COURIER, ET AL. v. THE COURT OF APPEALS, ET AL.

  • Gesite v. CA: 123562-65 : November 25, 2004 : J. Sandoval-Gutierrez : En Banc : Decision

  • G.R. No. 126454 - BIBLE BAPTIST CHURCH, ET AL. v. COURT OF APPEALS, ET AL.

  • G.R. No. 126275 - JOHANNE J. PE A, ET AL. v. THE HON. COURT OF APPEALS

  • G.R. No. 127089 - RAFAEL RENDON v. PEOPLE OF THE PHILIPPINES, ET AL.

  • G.R. No. 129416 - ZENAIDA B. TIGNO, ET AL. v. SPOUSES ESTAFINO AQUINO, ET AL.

  • G.R. No. 136438 - TEOFILO C. VILLARICO v. VIVENCIO SARMIENTO, ET AL.

  • G.R. No. 136477 - M.A. SANTANDER CONSTRUCTION, INC. v. ZENAIDA VILLANUEVA

  • G.R. No. 137862 - ALFREDO ESTRADA, ET AL. v. COURT OF APPEALS, ET AL.

  • G.R. No. 138085 - AZOLLA FARMS, ET AL. v. COURT OF APPEALS, ET AL.

  • G.R. No. 138090 - ELIZA PABLO y MARTIN, ET AL. v. PEOPLE OF THE PHILIPPINES

  • G.R. No. 138379 - PLACIDO O. URBANES, JR. v. COURT OF APPEALS, ET AL.

  • G.R. No. 138381 - GOVERNMENT SERVICE INSURANCE SYSTEM v. COMMISSION ON AUDIT

  • G.R. No. 138490 - DESIREE L. PAGE-TENORIO v. WILFREDO C. TENORIO, ET AL.

  • G.R. No. 139067 - SPS. MA. CARMEN L. JAVELLANA, ET AL. v. HON. PRESIDING JUDGE, REGIONAL TRIAL COURT, BRANCH 30, MANILA, ET AL.

  • G.R. No. 138954 - ASUNCION GALANG ROQUE v. PEOPLE OF THE PHILIPPINES

  • G.R. NOS. 139275-76 and 140949 - LIGHT RAIL TRANSIT AUTHORITY v. COURT OF APPEALS, ET AL.

  • LRT v. CA: 139275-76 : November 25, 2004 : J. Austria-Martinez : Second Division : Decision

  • G.R. No. 140228 - FRANCISCO MEDINA, ET AL. v. GREENFIELD DEVELOPMENT CORPORATION

  • G.R. No. 140931 - RAMON BALITE, ET AL. v. HON. COURT OF APPEALS, ET AL.

  • G.R. No. 140973 - JUSTINO LARESMA v. ANTONIO P. ABELLANA

  • G.R. No. 141145 - REPUBLIC OF THE PHILIPPINES v. WILSON P. ORFINADA, SR., ET AL.

  • G.R. No. 142441 - PEDRO BONGALON v. COURT OF APPEALS, ET AL.

  • G.R. No. 142609 - SEASTAR MARINE SERVICES, INC., ET AL. v. LUCIO A. BUL-AN, JR.

  • G.R. No. 142759 - PHILTREAD TIRE & RUBBER CORPORATION v. ALBERTO VICENTE

  • G.R. No. 143214 - PHILIPPINE PORTS AUTHORITY v. CITY OF ILOILO, ET AL.

  • G.R. No. 143289 - CRESENCIA L. TAN v. DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS (DPWH)

  • G.R. No. 144742 - REPUBLIC OF THE PHILIPPINES v. HAMILTON TAN KEH

  • G.R. No. 144880 - PASCUAL AND SANTOS, INC. v. THE MEMBERS OF THE TRAMO WAKAS NEIGHBORHOOD ASSOCIATION, INC., ET AL.

  • G.R. No. 144887 - ALFREDO RIGOR v. PEOPLE OF THE PHILIPPINES

  • G.R. No. 145855 - PEPSI-COLA PRODUCTS PHILIPPINES, INC. v. THE COURT OF APPEALS, ET AL.

  • G.R. No. 145483 - LORENZO SHIPPING CORP. v. BJ MARTHEL INTERNATIONAL, INC.

  • G.R. No. 146195 - AVELINA ZAMORA, ET AL. v. HEIRS of CARMEN IZQUIERDO, ET AL.

  • G.R. No. 146225 - NASIPIT LUMBER COMPANY, ET AL. v. NATIONAL ORGANIZATION OF WORKINGMEN (NOWM), ET AL.

  • G.R. No. 146703 - SUNRISE MANNING AGENCY, INC. v. NATIONAL LABOR RELATIONS COMMISSION, ET AL.

  • G.R. No. 146717 - TRANSFIELD PHILIPPINES, INC. v. LUZON HYDRO CORPORATION, ET AL.

  • G.R. No. 147937 - THE PHILIPPINE AMERICAN LIFE & GENERAL INSURANCE COMPANY v. HON. AUGUSTO V. BREVA, ET AL.

  • G.R. No. 147227 - MARIA REMEDIOS ARGANA, ET AL. v. REPUBLIC OF THE PHILIPPINES

  • G.R. No. 148189 - EMERITO REMULLA v. JOSELITO DP. MANLONGAT

  • G.R. No. 148199 - HENRY JAMES PIKE v. NATIONAL POWER CORPORATION

  • G.R. No. 148223 - FERNANDO GABATIN, ET AL. v. LAND BANK OF THE PHILIPPINES

  • G.R. No. 148256 - ADELINO FELIX v. NATIONAL LABOR RELATIONS COMMISSION, ET AL.

  • G.R. No. 148287 - PET PLANS, INC., ET AL. v. COURT OF APPEALS

  • G.R. No. 148318 - NATIONAL POWER CORPORATION v. HON. ROSE MARIE ALONZO-LEGASTO, ET AL.

  • G.R. No. 148333 - VIRGILIO SANTIAGO v. BERGENSEN D.Y. PHILIPPINES, ET AL.

  • G.R. No. 148541 - DEVELOPMENT BANK OF THE PHILIPPINES v. BONITA O. PEREZ, ET AL.

  • G.R. No. 148562 - TAGBILARAN INTEGRATED SETTLERS ASSOCIATION, ET AL. v. HONORABLE COURT OF APPEALS, ET AL.

  • G.R. No. 148739 - FAR CORPORATION v. RENATO MAGDALUYO, ET AL.

  • G.R. No. 149734 - DR. DANIEL VAZQUEZ, ET AL. v. AYALA CORPORATION

  • G.R. No. 149848 - ARSADI M. DISOMANGCOP, ET AL. v. THE SECRETARY OF THE DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS, SIMEON A. DATUMANONG, ET AL.

  • G.R. No. 150033 - PEOPLE OF THE PHILIPPINES v. DANILO ESPIDOL y VILLANUEVA, ET AL.

  • G.R. No. 150178 - FLORIAN R. GAOIRAN v. HON. ANGEL C. ALCALA, Retired Chairman, Commission on Higher Education, ET AL.

  • G.R. No. 150241 - EDUARDO S. MERCADO v. THE COURT OF APPEALS, ET AL.

  • G.R. No. 150308 - VIVE EAGLE LAND, INC., ET AL. v. COURT OF APPEALS, ET AL.

  • G.R. No. 150607 - SANCHO MILITANTE v. PEOPLE OF THE PHILIPPINES, ET AL.

  • G.R. No. 150793 - FRANCIS CHUA v. HON. COURT OF APPEALS, ET AL.

  • G.R. No. 151160 - SPOUSES JOSE and ESTER MARCHADESCH, ET AL. v. JUANITA CINCO VDA. DE YEPES

  • G.R. No. 151298 - SPOUSES MINIANO and LETA DELA CRUZ v. HON. COURT OF APPEALS, ET AL.

  • G.R. No. 151319 - MANILA MEMORIAL PARK CEMETERY, INC. v. PEDRO L. LINSANGAN

  • G.R. No. 152304 - PHILIPPINE VALVE MFG. COMPANY, ET AL. v. NATIONAL LABOR RELATIONS COMMISSION, ET AL.

  • G.R. No. 152317 - VICTORIA MORE O-LENTFER, ET AL. v. HANS JURGEN WOLFF

  • G.R. No. 152526 - RAMON R. JIMENEZ JR., ET AL. v. JUAN JOSE JORDANA

  • G.R. No. 152574 - FRANCISCO ABELLA JR. v. CIVIL SERVICE COMMISSION

  • G.R. No. 152997 - SALVADOR MARZALADO, JR. v. PEOPLE OF THE PHILIPPINES

  • G.R. No. 153004 - SANTOS VENTURA HOCORMA FOUNDATION, INC. v. ERNESTO V. SANTOS, ET AL.

  • G.R. No. 154095 - FRANCISCO C. ROSALES, JR. v. MIGUEL H. MIJARES

  • G.R. No. 154614 - THE CITY OF ILOILO v. HON. JUDGE EMILIO LEGASPI, ET AL.

  • G.R. No. 154689 - UNICORN SAFETY GLASS, INC., ET AL. v. RODRIGO BASARTE, ET AL.

  • G.R. No. 154895 - JOSIE GO TAMIO v. ENCARNACION TICSON

  • G.R. No. 155126 - GABI MULTI PURPOSE COOPERATIVE, INC. v. REPUBLIC OF THE PHILIPPINES

  • G.R. No. 155173 - LAFARGE CEMENT PHILIPPINES, INC., ET AL. v. CONTINENTAL CEMENT CORPORATION, ET AL.

  • G.R. No. 155193 - ELEUTERIO OLAVE, ET AL. v. TEODULO MISTAS, ET AL.

  • G.R. No. 155336 - COMMISSION ON HUMAN RIGHTS EMPLOYEES' ASSOCIATION v. COMMISSION ON HUMAN RIGHTS

  • G.R. No. 156109 - KHRISTINE REA M. REGINO v. PANGASINAN COLLEGES OF SCIENCE AND TECHNOLOGY, ET AL.

  • G.R. No. 156118 - PABLO T. TOLENTINO, ET AL. v. HON. OSCAR LEVISTE, ET AL.

  • G.R. No. 156187 - JIMMY T. GO v. UNITED COCONUT PLANTERS BANK, ET AL.

  • G.R. No. 156800 - ISIDORO A. PADILLA, JR., ET AL. v. LUIS ALIPIO, ET AL.

  • G.R. No. 156810 - GERMAN MACHINERIES CORPORATION v. EDDIE D. ENDAYA

  • G.R. No. 156963 - THE PHILIPPINE AMERICAN LIFE AND GENERAL INSURANCE CO. v. ANGELITA S. GRAMAJE

  • G.R. No. 157826 - titlexxx

  • G.R. No. 158311 - HUNTINGTON STEEL PRODUCTS, INC., ET AL. v. NATIONAL LABOR RELATIONS COMMISSION, ET AL.

  • G.R. No. 157907 - CHRONICLE SECURITIES CORPORATION, ET AL. v. NATIONAL LABOR RELATIONS COMMISSION, ET AL.

  • G.R. No. 158397 - NEIL TAMONDONG v. COURT OF APPEALS, ET AL.

  • G.R. No. 158568 - ALICIA D. TAGARO v. ESTER A. GARCIA, ET AL.

  • G.R. No. 158610 - ESTEBAN M. ZAMORAS v. COMMISSION ON ELECTIONS, ET AL.

  • SEPARATE OPINION : TINGA, J.: G.R. NO. 158693 : November 17, 2004 - JENNY M. AGABON and VIRGILIO C. AGABON, Petitioners, v. NATIONAL LABOR RELATIONS COMMISSION (NLRC), RIVIERA HOME IMPROVEMENTS, INC. and VICENTE ANGELES, Respondents.

  • G.R. No. 158693 - JENNY M. AGABON v. NATIONAL LABOR RELATIONS COMMISSION, ET AL.

  • De Villa v. Director, New Bilibid Prisons : 158802 : J. Callejo Sr : En Banc : Separate Concurring Opinion

  • G.R. No. 158802 - IN RE: THE WRIT OF HABEAS CORPUS FOR REYNALDO DE VILLA

  • De Villa v. Director, New Bilibid Prisons : 158802 : November 17, 2004 : J. Carpio : En Banc : Separate Concurring Opinion

  • G.R. No. 158874 - MAYOR SOBAIDA T. BALINDONG v. VICE GOVERNOR TIMOTEO D. DACALOS, ET AL.

  • G.R. No. 159010 - NIPPON PAINT EMPLOYEES UNION-OLALIA v. COURT OF APPEALS, ET AL.

  • G.R. No. 159636 - VICTORY LINER, INC. v. ROSALITO GAMMAD, ET AL.

  • G.R. No. 160890 - BANK OF THE PHILIPPINE ISLANDS v. COURT OF APPEALS, ET AL.

  • G.R. No. 160215 - HYDRO RESOURCES CONTRACTORS CORPORATION v. NATIONAL IRRIGATION ADMINISTRATION

  • G.R. No. 161382 - MANUEL DACUBA v. THE COURT OF APPEALS, ET AL.

  • G.R. No. 162035 - GILBERTO CANTORIA v. HON. COMMISSION ON ELECTIONS, ET AL.

  • G.R. No. 162704 - MEMORIA G. ENCINAS, ET AL. v. NATIONAL BOOKSTORE, INC.

  • G.R. No. 162214 - MARIALEN C. CORPUZ, ET AL. v. THE SANDIGANBAYAN, ET AL.

  • G.R. No. 163256 - CICERON P. ALTAREJOS v. COMMISSION ON ELECTIONS, ET AL.

  • A.C. No. 4179 - ALICE GOKIOCO v. ATTY. RAFAEL P. MATEO

  • Adm. Case No. 4711 - ROMEO H. SIBULO v. FELICISIMO ILAGAN

  • A.C. No. 4585 - MICHAEL P. BARRIOS v. ATTY. FRANCISCO P. MARTINEZ

  • A.C. No. 5041 - SALVADOR G. VILLANUEVA v. ATTY. RAMON F. ISHIWATA

  • A.C. No. 5454 - CARMELINA Y. RANGWANI v. ATTY. RAMON S. DI O

  • A.C. No. 6238 - LINDA VILLARIASA-RIESENBECK v. ATTY. JAYNES C. ABARRIENTOS

  • A.C. No. 6294 - ATTY. MINIANO B. DELA CRUZ v. ATTY. ALEJANDRO P. ZABALA

  • A.C. No. 6492 - MELANIO L. ZORETA v. ATTY. HEHERSON ALNOR G. SIMPLICIANO

  • A.M. No. 00-06-09-SC - RE: IMPOSITION OF CORRESPONDING PENALTIES FOR HABITUAL TARDINESS COMMITTED DURING THE FIRST SEMESTER OF 2004 BY THE FOLLOWING EMPLOYEES OF THIS COURT: MARIA LIZA S. ALMOJUELA, EFREN ASCRATE, MARITA FLORA C. AYLLON...

  • A.M. No. 00-7-320-RTC - REPORT ON THE JUDICIAL AUDIT CONDUCTED IN THE REGIONAL TRIAL COURT, BRANCH 136, MAKATI CITY

  • A.M. No. 02-12-01-SC - RE: RESOLUTION GRANTING AUTOMATIC PERMANENT TOTAL DISABILITY BENEFITS TO HEIRS OF JUSTICES AND JUDGES WHO DIE IN ACTUAL SERVICE.

  • A.M. No. 03-11-628-RTC - RE: REPORT ON THE JUDICIAL AUDIT CONDUCTED IN THE REGIONAL TRIAL COURT, BRANCH 144, MAKATI CITY

  • A.M. No. 03-1515-MTJ - DOLORES IMBANG v. JUDGE DEOGRACIAS K. DEL ROSARIO

  • A.M. No. 04-3-63-MTCC - RE: REPORT ON THE JUDICIAL AUDIT CONDUCTED IN THE MTCC, BRANCH 5, BACOLOD CITY

  • A.M. No. 2004-19-SC - RE: ALLEGED VIOLATION BY MR. EFREN ASCRATE OF CIVIL SERVICE RULES ON ABSENTEEISM AND TARDINESS

  • A.M. No. CA-04-17-P - RUPERTO G. JUGUETA v. RICARDO ESTACIO

  • A.M. No. MTJ-00-1318 - NELIA A. ZIGA v. JUDGE RAMON A. AREJOLA

  • A.M. No. MTJ-01-1348 - JUDGE DOLORES L. ESPA OL, ET AL. v. JUDGE LORINDA T. MUPAS

  • A.M. No. MTJ-04-1539 - ELENA R. ALCARAZ v. JUDGE FRANCISCO S. LINDO

  • A.M. OCA No. 03-1800-RTJ - CHIEF STATE PROSECUTOR JOVENCITO R. ZUÑO v. JUDGE ALEJADRINO C. CABEBE

  • A.M. No. P-02-1564 - CONCERNED EMPLOYEE v. GLENDA ESPIRITU MAYOR

  • A.M. No. P-02-1644 - ARNEL S. CRUZ v. ATTY. LUNINGNING Y. CENTRON

  • A.M. No. P-04-1897 - ARTURO GRAYDA v. NOEL G. PRIMO

  • A.M. No. P-04-1901 - JUDGE TEODORO L. DIPOLOG v. Clerk of Court II DARRYL C. MONTEALTO, ET AL.

  • A.M. No. P-91-621 - OFFICE OF THE COURT ADMINISTRATOR v. VIRGILIO G. CA ETE

  • IBP v. Pamintuan : AM RTJ-02-1691 : November 19, 2004 : J. Callejo Sr : En Banc : Dissenting Opinion

  • A.M. No. RTJ-02-1691 - THE OFFICERS AND MEMBERS OF THE INTEGRATED BAR OF THE PHILIPPINES, BAGUIO-BENGUET CHAPTER v. JUDGE FERNANDO VIL PAMINTUAN

  • A.M. No. RTJ-03-1812 - PABLITO R. SORIA, ET AL. v. JUDGE FRANKLYN A. VILLEGAS

  • Soria v. Villegas : AM RTJ-03-1812 : November 18, 2004 : J. Ynares-Santiago : En Banc : Dissenting Opinion

  • A.M. No. RTJ-04-1857 - GABRIEL DELA PAZ v. JUDGE SANTOS B. ADIONG

  • A.M. No. RTJ-04-1885 - STATE PROSECUTOR PABLO FORMARAN III, ET AL. v. JUDGE MARIVIC TRABAJO-DARAY

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    G.R. No. 162035 - GILBERTO CANTORIA v. HON. COMMISSION ON ELECTIONS, ET AL.

      G.R. No. 162035 - GILBERTO CANTORIA v. HON. COMMISSION ON ELECTIONS, ET AL.

    PHILIPPINE SUPREME COURT DECISIONS

    EN BANC

    [G.R. NO. 162035 : November 26, 2004]

    GILBERTO CANTORIA, Petitioner, v. HON. COMMISSION ON ELECTIONS and CIRIACO P. LOMBOY, Respondents.

    D E C I S I O N

    QUISUMBING, J.:

    This special civil action for certiorari with prayer for a Temporary Restraining Order and/or Preliminary Injunction seeks to annul the Resolution,1 dated January 29, 2004, of the Commission on Elections (COMELEC) in EAC No. 33-2002, which affirmed the Decision,2 dated September 5, 2002, of the Municipal Trial Court of Santa Maria, Pangasinan in Election Case No. 314.

    The antecedent facts and proceedings are as follows:

    In the July 15, 2002 election for Barangay Captain in Poblacion East, Sta. Maria, Pangasinan, petitioner Gilberto Cantoria and private respondent Ciriaco Lomboy were the only competing candidates.

    In the statement of votes, petitioner garnered two hundred thirty-three (233) votes, while private respondent got two hundred thirty-one (231) votes. Hence, petitioner was proclaimed as the duly elected Barangay Captain.

    On July 19, 2002, private respondent filed an election protest docketed as Election Case No. 314 with the Municipal Trial Court (MTC) of Santa Maria, Pangasinan.

    Upon agreement of the parties, the MTC ordered a revision of the ballots by a Revision Committee. The Revision Committee found that the votes actually cast for petitioner was two hundred twenty-eight (228), and for private respondent, two hundred thirty-one (231).

    Thus, in its Decision,3 dated September 5, 2002, the trial judge decreed as follows:

    WHEREFORE, the Court hereby renders judgment declaring the protestant CIRIACO LOMBOY as the duly elected Punong Barangay of Poblacion East, Sta. Maria, Pangasinan.

    SO ORDERED.4

    Petitioner appealed the said Decision to public respondent Commission on Elections (COMELEC) asserting that the trial court erred in ruling certain ballots as marked ballots. Private respondent in his Appellee's Brief prayed for the dismissal of the appeal for lack of merit.

    In its Second Division Resolution, dated January 29, 2004, COMELEC dismissed the appeal for lack of merit, to wit:

    WHEREFORE, premises considered, the instant appeal is DISMISSED for LACK OF MERIT.

    Accordingly, the 5 September 2002 Decision of the Municipal Trial Court of Santa Maria, Pangasinan in Election Case No. 314 is hereby AFFIRMED.

    SO ORDERED.5

    Without filing a Motion for Reconsideration, petitioner elevated the case to this Court via a special civil action for certiorari with prayer for a Temporary Restraining Order and/or Preliminary Injunction. Petitioner assigns to the COMELEC, the following errors:

    i

    PUBLIC RESPONDENT, WITH DUE RESPECT, GRAVELY ABUSED ITS DISCRETION WHEN IT AFFIRMED THE ASSAILED DECISION OF THE MTC DESPITE THE CLEAR AND APPARENT LACK OF FACTUAL AND LEGAL BASIS TO SUPPORT THE SAME.

    ii

    PUBLIC RESPONDENT, WITH DUE RESPECT, GRAVELY ABUSED ITS DISCRETION WHEN IT AFFIRMED THE DECISION OF THE MTC.6

    Petitioner contends that: (1) ballots containing the nickname "Boyet Cantoria" or "Boy Boyet" clearly written on them should be respected and credited to him as these nicknames are indicated in his Certificate of Candidacy; (2) ballots with the words "Cristo Eleiser Lomboy" and "Adong Lomboy" written on the space for Punong Barangay were counted in favor of private respondent, allegedly in violation of election rules and regulations; (3) ballots with the word "Acong" written on the space for Punong Barangay was credited in favor of private respondent despite the fact that the same was not his registered name or nickname; and (4) a ballot wherein the space line for Punong Barangay is blank and the full name of private respondent was written in the first space line for Kagawad Sangguniang Barangay was credited in favor of private respondent, which should not be the case as said vote is a stray vote.

    For his part, private respondent counters that the assailed Resolution of public respondent is already final and executory for petitioner's failure to file a Motion for Reconsideration within the reglementary period. Accordingly, private respondent points out, the assailed Resolution of public respondent was recorded in the Book of Entries of Judgments on March 2, 2004.7 Private respondent argues that a restraining order may no longer be issued against public respondent as the latter has already lost jurisdiction over the case. At any rate, private respondent avers that the present petition concerns errors of appreciation of facts, not grave abuse of discretion tantamount to whimsical exercise of judicial prerogative.

    For public respondent, the Office of the Solicitor General (OSG), argues that the appreciation of contested ballots involves a question of fact best left to the determination of the COMELEC as the constitutional creation vested with the power to be the sole judge of election contests involving barangay officials. Consequently, the OSG continues, this Court's jurisdiction to review COMELEC's decisions operates only upon a showing of grave abuse of discretion.

    We find the petition without merit.

    We have said time and again that the special civil action of certiorari is not a substitute for the lost or lapsed remedy of appeal.8 A petition for certiorari under Rule 65 may be allowed only where there is no appeal, or any other plain, speedy, and adequate remedy in the ordinary course of law.9

    In the instant case, the proper remedy available to petitioner is a Motion for Reconsideration of the questioned Resolution of public respondent COMELEC.

    Section 2, Rule 19 of the 1993 COMELEC Rules of Procedure fixes the period for the filing of a Motion for Reconsideration, thus:

    SEC. 2. Period for Filing Motions for Reconsideration. - A motion to reconsider a decision, resolution, order, or ruling of a Division shall be filed within five (5) days from the promulgation thereof. Such motion, if not pro-forma, suspends the execution or implementation of the decision, resolution, order or ruling.

    In this connection, Section 13 (c), Rule 18 of the said Rules provides that:

    SEC. 13. Finality of Decisions or Resolutions. -'

    . . .

    (c) Unless a motion for reconsideration is seasonably filed, a decision or resolution of a Division shall become final and executory after the lapse of five (5) days in Special actions and Special cases and after fifteen (15) days in all other actions or proceedings, following its promulgation.

    Clearly, the questioned Resolution of public respondent has become final and executory due to petitioner's own failure to seasonably file a Motion for Reconsideration of the same. Considering that petitioner, by his own neglect or error in his choice of remedies, failed to file the appropriate remedy within the period prescribed by the aforecited COMELEC Rules of Procedure, he cannot now come to us on a special civil action for certiorari .

    Notwithstanding the availability of ordinary appeal or other remedies, however, resort to the special civil action of certiorari may still be allowed, but only upon a showing of grave abuse of discretion amounting to lack or excess of jurisdiction.10

    By grave abuse of discretion is meant such capricious and whimsical exercise of judgment equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. It must be grave, as when it is exercised arbitrarily or despotically by reason of passion or personal hostility. Such abuse must be so patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.11

    In this case, petitioner imputes to the MTC errors of judgment tantamount to grave abuse of discretion. First, petitioner alleges that ballots with the words "Boyet Cantoria" and "Boy Boyet" should be credited to him. We note that the MTC, in fact, counted the said ballots in favor of petitioner since "Boyet" is his registered nickname.12

    Second, petitioner claims that ballots with the words "Cristo Eleiser Lomboy" and "Adong Lomboy" were erroneously counted in favor of private respondent. However, records show that the MTC actually disallowed the ballots with the words "Cristo Eleiser Lomboy" since "Cristo Eleiser" is not the first name or registered nickname of private respondent.13 The ballot with the words "Adong Lomboy" instead of "Acong Lomboy," were rightly counted by the MTC in favor of private respondent. Under the idem sonans rule, 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 favor of such candidate.14 Since the name "Adong" sounds similar to private respondent's registered nickname, "Acong," the MTC correctly counted the said ballot in favor of private respondent.

    Third, petitioner alleges that the MTC incorrectly counted in favor of private respondent ballots with the word "Acong." However, as we have previously noted, "Acong" is the registered nickname of private respondent. Thus, the MTC only properly credited the said ballots to private respondent.

    Lastly, in yet another attempt to mislead the Court, petitioner alleges that a ballot, where the space line for Punong Barangay was blank and the full name of private respondent was written in the first space line for Kagawad Sangguniang Barangay, was credited to private respondent. However, the MTC, as a matter of fact, did not even count the said ballot as a vote for private respondent for the simple reason that the latter did not present himself as a candidate for Kagawad, but for Barangay Captain.15

    Obviously, petitioner failed to show in this case that public respondent committed grave abuse of discretion warranting the issuance of a writ of certiorari . On the contrary, we find that public respondent did not abuse its discretion in affirming the MTC ruling. The Decision of the MTC is in accordance with law and thus ought to be upheld.

    WHEREFORE, the petition is DISMISSED for lack of merit.

    SO ORDERED.

    Davide, Jr., C.J., Puno, Panganiban, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr., Azcuna, TINGA, Chico-Nazario, and Garcia, JJ., concur.
    Corona, J., on leave.

    Endnotes:


    1 Rollo, pp. 9-12.

    2 Id. at 13-18.

    3 Ibid.

    4 Id. at 18.

    5 Id. at 11.

    6 Id. at 5-6.

    7 Id. at 29.

    8 Monterey Foods Corp. v. Eserjose, G.R. No. 153126, 11 September 2003, 410 SCRA 627, 634.

    9 Revised Rules of Court, Rule 65, Section 1.

    10 Ibid.

    11 Eastern Assurance & Surety Corporation (EASCO) v. Land Transportation Franchising and Regulatory Board (LTFRB), G.R. No. 149717, 7 October 2003, 413 SCRA 75, 88.

    12 Rollo, p. 14.

    13 Id. at 16.

    14 Section 49 (g), Commission on Elections Resolution No. 4846, otherwise known as Rules and Regulations on the Conduct of the July 15, 2002 Synchronized Barangay and Sangguniang Kabataan Elections, promulgated 13 June 2002.

    15 Rollo, p. 17.

    G.R. No. 162035 - GILBERTO CANTORIA v. HON. COMMISSION ON ELECTIONS, ET AL.


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