Petitioner Torres and respondent Gaviola ran against each other for Punong Barangay of Barangay San Antonio, Makati City in the October 29, 2007 synchronized Barangay and Sangguniang Kabataan Elections. On October 30, 2007 the Barangay Board of Canvassers proclaimed Torres winner with a lead of 71 votes over Gaviola, as follows: Torres - 2,438 votes; Gaviola - 2,367 votes.
On March 4, 2009 the COMELEC Second Division reversed the ruling of the MeTC. Noting that the MeTC did not examine all the contested ballots, the Second Division re-examined them all. It affirmed the MeTC's appreciation of 12 additional ballots for respondent Gaviola and invalidated 100 ballots cast for petitioner Torres because of a) instances of one person filling up two ballots and there were 47 pairs of ballots filled up in this way; b) one person filling up three ballots; c) two distinct handwritings filling up one ballot; and d) and two ballots being marked. As a result, the Second Division proclaimed Gaviola winner by a margin of 35 votes, that is, 2,379 votes for her and 2,344 votes for Torres.7
Petitioner Torres filed a motion for reconsideration but the COMELEC En Banc denied it. The En Banc affirmed with modifications the resolution of the Second Division. As modified, respondent Gaviola still emerged as the winner but her lead had been reduced to 10 votes because the En Banc declared 25 ballots, previously set aside, not written by one person and counted them for Torres. The final results were: Torres: 2,344 + 25 = 2,369, Gaviola: 2,379.
On June 30, 2009 the COMELEC En Banc issued an Order for the implementation of its decision.8 This prompted petitioner Torres to file this petition with prayer for the issuance of a temporary restraining order (TRO). On July 7, 2009 the Court issued the TRO asked of it.9
The issues that this petition presents are whether or not the COMELEC En Banc and its Second Division gravely abused their discretion a) in taking up respondent Gaviola's objections to petitioner Torres' ballots but not the latter's counter objections to Gaviola's ballots; b) in examining and appreciating the contested ballots in the absence of the parties; and c) in invalidating the ballots for Torres.
Although as a rule, the appreciation of contested ballots and election documents involves a question of fact best left to the determination of the COMELEC, still when it can be shown that, as in this case, it grossly misread evidence of such nature that compels a different conclusion, the Court will not hesitate to reverse that body's factual findings.12
It is by now a settled truth that no two persons write alike. Even if two handwritings have a common general outlook, they are apt to be at variance in some basic characteristics that set them apart. Every person uses his own style for forming letters, technically called personal characteristics.13 Whatever features two specimens of handwriting may have in common, they cannot be regarded as written by one person if they show even but one consistent dissimilarity in any feature which is fundamental to the structure of the handwriting.14
Here, the Court did not find, after examining 93 of the excluded ballots pertaining to petitioner Torres, any two or more of ballots that were filled in by a single hand. Of the 47 pairs of ballots that the En Banc excluded, only two pairs were correctly excluded because they were written by one person for each pair. 45 pairs turned out to have been filled up by different hands. While the general outlook of the handwritings on each of the two ballots in any given pair is the same, such handwritings have distinct personal characteristics. In the same way, the three ballots that were supposedly written on by one person turned out to have been the work of three different hands. Thus:
(1) Precinct No. 534A/535A - In GAV-2, the "E's" in TORRES and RENE are connected to the immediately succeeding letter using a stroke from the top most horizontal line of E; while in GAV-1, the connecting stroke comes from the bottom horizontal line of E as in TORRES, APELO, MELVIN, ALBERT and MATEO;
(2) Precinct No. 534A/535A - In GAV-6, there is a loop in the upper zone of "S" in TORRES, BABES, BASMAYOR and UBAS; while there is no loop in the S found in "TORRES" of GAV-5. The final stroke in the "R's" of GAV-6 are either pointing upwards (as in TORRES and ROMY) or slightly curved (as in ALBERT, RC, and ROQUERO). In GAV 5, the terminal stroke in the "R's" are either pointed downwards (as in RAMON) or written horizontally (as in TORRES) but never curved or pointing upwards like those in GAV-6;
(3) Precinct No. 534A/535A - In GAV-40, the connecting stroke between the vertical lines forming the letter "M" in MON, MATEO, and BASMAYOR is a concave stroke; while the connecting stroke in GAV-39 in mon, dumilon, jomci, mateo, and ROMY is an angular stroke that reaches the base line; In GAV-40, the lower portion of the letter "C" in CECIL and CAJES is curved; while those in CAJES, JOMCI and CERRADO of GAV-39 are not curved but written in a horizontal stroke.
(4) Precinct No. 536A/537A - In GAV-6, the "A's" are connected to the immediately succeeding letter using an overhand stroke that creates a loop from the bottom of the right diagonal line and extends to the upper zone of the next letter (as in RAMON, ALBERT, GABUYA and BASMAYOR); while in GAV-5, the "A's" are connected to the next letter by a horizontal upward stroke that extends from the middle of the left diagonal line of A to the upper zone of the following letter (as in BASMAYOR and ALBERT). In GAV-6, the connecting stroke between the 2 vertical lines of M is concave in shape; while that in GAV-5 is angular and tapering downwards;
(5) Precinct No. 538A/542A - In GAV-22, the vertical line and horizontal top and bottom lines of the letter E are written using a single stroke that resembles a "C" (as in TORRES and MATEO); while an E with extended horizontal top and middle strokes appear in GAV-21 (TORRES, MATEO and ROMEO); In GAV-22, the upper portion of "Y" is concave (WILLY); while in GAV-21, the same is angular in ARBY of GAV-21;
(6) Precinct No. 548A/548B - The characters in GAV-1 are bigger than those in GAV-2. Also in GAV-2, the "R's" in TORRES and CABRAL are leaning to the right; while the "R's" in GAV-1 are written in straight up and down strokes (TORRES, FERRERA, CERRADO and ALEGRE). In GAV 2, the "C's" found in "CABRAL" and "CUDIAMAT" have loops at the upper zone while no such loops are found in the "Cs" of "CERRADO" and "CAJES" in GAV 1. The letter "G's" in GUANZON and GABUYA in GAV-2 have an angular lower portion while a rounded base characterizes the "G" in GUANZON of GAV-1;
(7) Precinct No. 549A - In GAV-22, the "M's" are narrow and angular in structure (as in RAMON, MATEO, ROMEO, and BASMAYOR) while in GAV-21, the "M's," and all the other characters, are written in wide angular letters. The vertical stroke of the "B's" in GAV-21 extends above the upper and lower loops (as in BASMAYOR, ALBERT, and GABUYA);
(8) Precinct No. 550A - In GAV-1, a buckle (or a loop made as a flourish),15 connects the second and final stroke in the "R's" found in "Ramon" "Romy," "RC" and "RaqueÃ±o"; while no such loop is found in the "R's" of "RC" and "RaqueÃ±o" in GAV-2. In GAV-1, "Î±" is used at the beginning of the name and surname while GAV-2 uses the character "A."
(9) Precinct No. 550A - In GAV-5, the letter "G" in GABUYA has a spur16 at the final stroke; while the "G's" in ALEGRE and GUDIAMAT of GAV-6 has no spurs. Also in GAV-6, the "J's" in CAJES, BAJUN, and JEBONG have beards (preliminary embellished initial stroke which usually occur in capital letters);17 the "J" in JOSELITO in GAV-5 has no beard.
(10) Precinct No. 550A - In GAV-16, the "A's" are formed by 2 slanting lines that overlap at the upper zone with the horizontal stroke written close to the intersection, as in BASMAYOR, GABUYA and MATEO. In GAV-16, the diagonal lines at upper zone of the "A's" are concave to slightly tapering but they never overlap as in GAV-15 and the horizontal line of the "A's" is written in the middle portion of the diagonal lines (as in RAMON, MATEO, GABUYA, ALBERT and BASMAYOR).
(11) Precinct No. 550C/550D - In GAV-6 the second and final strokes of the "R's" do not intersect with the first vertical stroke (as in TORRES and RESTY); while the "R's" in GAV-5, have a gap between the first vertical stroke and the point where the second and terminal stroke fuses (as shown in TORRES, RESTY, RS, ROMY, LIRIO and NARDING).
(12) Precinct No. 551A/551B - In GAV-1 the "R's" in TORRES, FERRERA and CABRAL appear to have a loop created by the intersection of the second and final strokes with the first vertical line; while no such loop appear in the "R's" in GAV-2. In GAV-2, the right vertical stroke of the "N's" is unusually higher than the left vertical stroke as shown in RAMON, CHAN, and GUANZON; while the "N's" in RAMON, BAJUN, and ENTENG in GAV-1 are regularly shaped and proportioned.
(13) Precinct No. 552A/552B - In GAV-4, the "m's" in Ramon, Melinda, Dumilon, and Basmayor have three shoulders (or the outside portion of the top curve);18 while in GAV-5, the same letter is made up of four shoulders as shown in Ramon, Basmayor, Cudiamat, and Romeo.
(14) Precinct No. 552A/552B - The characters in GAV-6 are medium sized while in GAV-7, the letters are elongated. In GAV-6, the "J's" in CAJES, JOMEL, JOSEPH and JOEL have beards (or preliminary embellished initial stroke which usually occur in capital letters); while none appears in the "J's" found in CAJES, JHE, and JOSE of GAV-7.
(15) Precinct No. 552A/552B - In GAV-46, the vertical line of the letter "T" is a continuous stroke that merges with the upper portion of the immediately following vowel in TORRES and MATEO; while in GAV-45, said letters are written in separate strokes.
(16) Precinct No. 552A/552B - In GAV-48 the "R's" in RAMON, TORRES, LIRIO, NARDING, RESTY and CERRADO have a spur (or a short initial stroke) but they do not have buckles nor retraced portions; while in GAV-49, the "R's" have no spurs and are characterized by buckles and retraced portions as in TORRES, RAMON, BASMAYOR, ALBERT, LEONARDO and MARIA. In GAV-48, the final stroke in "R" points upwards while in GAV-49, the final stroke points downwards.
(17) Precinct No. 554A - In GAV-4, the vowel "U" in GABUYA, UBAS, CUDIAMAT and RAQUEÃ‘O has a spur (short terminal stroke) but none appears in CUDIAMAT, GABUYA, and UBAS of GAV-3. In addition, the lower case "m's" in GAV-4 have spurs (either in the initial or both in the initial and terminal strokes) while the upper case "M" in GAV-3 are without spurs.
(18) Precinct No. 554B - In GAV-6 the horizontal stroke in the lower portion of the letter "L" in RONALD, JONNEL, ALBERT and ALEGRE is curved upwards; while the same is diagonal in the "L" found in RONALD, LIRIO, ALBERT and CECIL in GAV-7. In addition, the angle formed by the "L" in GAV-7 is sharper and more pronounced;
(19) Precinct No. 555B/555C - In GAV-6, the lower case of the letter "L" forms a loop with rounded top in Dumilon, Arnaldo, Silverio, Melvin, Joselito, and Melinda; while in GAV-5, said letter is written either as a loop with tapering top or a single stroke as in Jomel, Dumilon, Joel, and Ronald. In GAV-6, lower case of "M" is written with three arcs (curves formed inside the top curve or loop) as in Ramon, Dumilon, and Cudiamat; while in GAV-5, the same is written with two arcs as shown in Jomel and Dumilon.
(20) Precinct No. 556B - In GAV-1, the "A's" resemble a triangle as the connecting horizontal strokes are written too close to the base of the two intersecting and tapering slanting strokes (as in ALBERT, BASMAYOR, DANNY, RAQUEÃ‘O, BABES, and GABUYA); while the "A" in APELO of GAV-2, is regularly shaped with the horizontal line written between the middle portion of the diagonal strokes.
(21) Precinct No. 556B - In GAV-3, the letter "M" has a concave shaped connecting stroke (MON, JOMEL, BASMAYOR, and CUDIAMAT); while the connecting stroke in GAV-4 is tapering downwards (in RAMON, BASMAYOR, JOMEL, ROMY and MATEO). The "U's" in GAV-4 have a narrow base or lower portion such as those in GABUYA and UBAS; while in GAV-3, the "U's" have wider semi-rectangular shape as in CUDIAMAT, RESTITUTO, UBAS and GUANZON;
(22) Precinct No. 556B - In GAV-16 the angular lower case "m" has three shoulders and a spur (either at the initial only or both at the initial and terminal strokes) as in MON, DUMILON, ROMY, and MATEO; while in GAV-15, the "M" used is in upper case and has a concave connecting line. Also in GAV-16, the lower case "y" has an elongated lower portion (RESTY, ROMY and GABUYA); while in GAV 15, the letter "Y' used in GABUYA is the printed upper case character.
(23) Precinct No. 556C - In GAV-1, the "S" is either lower case printed (TORRES and UBAS) or cursive with rounded top (Basmayor); while GAV-2 a shows consistently cursive lower case "s" with tapering top (Torres, Basmayor, Babes, RaqueÃ±o, and Ubas).
(24) Precinct No. 556C - In GAV-5, the "E" is connected to the immediately succeeding letter by a stroke from the upper most horizontal line of "E" and extends to the upper portion of the next letter (TORRES, APELO, ALBERT JEBAG, ALEGRE, ROMEO and MATEO); while the "E" in GAV-6 is written as a separate letter and not connected to the next character.
(25) Precinct No. 558A/559A - In GAV-1, the final stroke of the letter "B" forms a connecting loop that extends to the upper portion of the next letter (ALBERT, BASMAYOR and BABES). All the "B's" in GAV-2, even those without a connecting loop (GABUYA, UBAS, and ZABLAN), have an open lower portion. In GAV-2, the final stroke in "B" neither forms a connecting loop nor extends to the next letter but ends or closes at the base of the vertical stroke of "B" (UBAS, BASMAYOR, BABES, and GABUYA).
(26) Precinct No. 561B - In GAV 1, the top portion of the lower case "r" is curved or pointing downwards (Torres, Cerrado, Maria. Ferrera, Alegre, and Victor); while in GAV 2, the top portion is a straight vertical stroke (Torres, Cerrado, Basmayor, Albert, and Ferrera). In GAV-1 the voter consistently used the printed lower case 'Î±' in RÎ±mon, CerrÎ±do, MelindÎ±, and MÎ±riÎ±; while in GAV-2, the character used is 'a' in Cerrado, Melinda, Cudiamat, Basmayor, Chan, Ferrera and Ronald.
(27) Precinct No. 562A - In GAV-1, the cursive upper case "M" has a spur pointed upwards (Melinda and Melvin); while in GAV-2, the spur of the same letter is downwards (Mon).
(28) Precinct No. 563A/563B - In GAV-1, the "R's" are leaning to the right. Also, the point where the second and final strokes fuses is connected to the middle portion of the first stroke (Torres, Basmayor, Albert, R.C., Resty). In GAV-2 the "R's" are slightly ascending and there is a gap between the first stroke and the point where the second and final stroke fuses (TORRES and CERRADO).
(29) Precinct No. 565A/565B - The letter "B's" in GAV-5 have an open loop at the lower portion as in GABUYA, BABES, UBAS, and BASMAYOR. In GAV-4, the loop in the lower portion of "B" (UBAS, GABUYA and BASMAYOR) is closed. The "U's" in GAV-4 have spurs (short terminal stokes) while those in GAV-5 have none;
(30) Precinct No. 573A - In GAV-9, the letter "U" in UTO, UBAS, and CUDIAMAT has a spur in the final stroke; while the "U" in GAV-10 (UBAS) has none.
(31) Precinct No. 573A - In GAV-12, the upper portion of the "R's" in TORRES, RAMON, CABRAL MARCIANO and RESTITUTIO is an ascending elongated curve; while in GAV-11, said upper portion is rounded in shape (TORRES, RAMON, FERRERA and CABRAL). In GAV-12, the vertical as well as the top and bottom horizontal strokes of the letter "E" are written using a single stoke that resembles a letter "C" while the E's in GAV-11 are regularly shaped.
(32) Precinct No. 573B - In GAV-4, the characters are rounded while those in GAV-3 are angular. In GAV-4, the "R's" in RAMON, TORRES, RAQUENO and BASMAYOR have a buckle while the "R's" in GAV-3 have none (RAMON, TORRES, FERRERA and RESTY).
(33) Precinct No. 574A - In GAV-2, the lower zone of the lower case "y" curves back to the baseline (Resty and Gabuya); while in GAV-1 said lower zone is an elongated stroke that slightly curves at the tip (Basmayor and Danny).
(34) Precinct No. 574A - In GAV-6, the final stroke of the "R's" in RAMON, TORRES, RESTY and CABRAL is directed downwards; while the same final stroke is going right ward in GAV-5 (TORRES).
(35) Precinct No. 574A - The "r" in TORRES in GAV-9 is written in the cursive lower case and has a loop at the upper left side; while there is none in the plateau shaped top of the cursive lower case "r" in GAV-10.
(36) Precinct No. 575A - The letter "T's" in GAV-2 (TORRES and MATEO) are written using a single stroke that resembles a âˆš. In GAV - 3, the vertical stroke of the "Ts" intersect at the middle portion of the top horizontal stroke (TORRES, LITO, ALBERT, CUDIAMAT, and MATEO); while in GAV-4, the intersection is at the left most portion of the horizontal stroke (TORRES, ALBERT and CUDIAMAT).
(37) Precinct No. 575A - In GAV-9, the vertical stroke in "T" slightly overlaps with the top horizontal stoke (TORRES, ALBERT and MATEO); while in GAV-10 the vertical and horizontal strokes do not overlap.
(38) Precinct No. 575A - In GAV-12 the connecting stroke in "M" is angular and tapering downwards (MON, BASMAYOR, CUDIAMAT, and MATEO) while in GAV-11, the connecting stroke is angular and does not extend beyond the middle portion.
(39) Precinct No. 575A - In GAV-36 and GAV-37, the characters differ in all aspects. GAV-37 appears to have been written by a literate voter using regular cursive lower and upper case stokes; while GAV-36 is by a semi-literate voter using a combination of printed and cursive strokes, mostly retraced, with some characters scribbled below the base line.
(40) Precinct No. 575B/576B - In GAV-13, the connecting stroke in "M" is angular and tapering downwards (MON, BASMAYOR, and MATEO) while in GAV-14, the connecting stroke is concave (MON, DUMLON, ROMY and MATEO). In GAV-14, the voter used both upper and lower case characters in the middle of the words but is consistent in using the lower case "Y" with elongated single stroke at the lower portion.
(41) Precinct No. 575B/576B - In GAV-22, the top most and middle horizontal strokes in "E" do not overlap with the vertical stroke (TORRES CERRADO, JOSEPH, CECILLE, ALEGRE, CAJES and RESTY); while in GAV-21, said overlapping exist in TORRES and CECIL.Ï‚Î·Î±Ã±rÎ¿blÎµÅ¡ Î½Î¹râ€ Ï…Î±l lÎ±Ï‰ lÎ¹brÎ±rÃ¿
(42) Precinct No. 575B/576B - In GAV-25, the "R's" have small and rounded upper portion (TORRES, ALBERT, and BASMAYOR); while in GAV-24 such upper portion has wider breadth (TORRES, R.C. and ROMY). The spur of the letter "U" in GAV-25 is curved to the right (GABUYA, CUDIAMAT, RAQUEÃ‘O, and UBAS); while the spur of the same letter in GAV-24 is a vertical stroke (GABUYA, DANNY, and RAOUSN).
(43) Precinct No. 575B/576B - GAV-27 has retraced characters (as in CAAN and CABRAL) and overlapping strokes (as in ENTENG); while GAV-28 has neatly written single-stroke letters. The "S' in GAV-27 has an over extended lower portion that reaches up to the upper left portion of the letter (TORRES and UBAS). In GAV - 28, a small loop appears on the upper portion of the "S" in TORRES and UBAS.
(44) Precinct No. 575B/576B - In GAV-29, the "A's" resemble an asterisk (*) due to the overlapping of the diagonal and vertical stokes that form the letter "A" in UBAS, BADJUN, CABRAL, BABES, GABUYA, ALEGRE, MARIA, BASMAYOR and ALBERT; while the "A" in GAV-30 is regularly shaped as in OROPESA and CABRAL.
(45) Precinct No. 576A - In GAV-2, a spur appears as an initial stroke in the "R's" of TORRES, CERRADO, RESTY, and ALEGRE. The "R's" in GAV-1 have no spurs (TORRES, RESTITUTO, and RAQUEÃ‘O).
(46) Precinct No. 576A - In GAV-30, breaks or gaps, not found in the characters of GAV-29, occur in letters - "G" in ALEGRE, "A" in CABRAL, in "B" and "A" in UBAS, "G" in SALANGA and in "Z" and "A" in ALZONA.
As for the remaining seven ballots that the COMELEC En Banc invalidated, the Court affirms the common findings of the En Banc and the Second Division that Exhibits GAV-3 and GAV-4 (Precinct No. 549B/D) were marked ballots. Indeed, the irrelevant words "JUMONG HE HE HE" in GAV-3 and 'Y.S." in GAV-4 are indicative of an intention to identify the voter.
We also affirm the ruling of the COMELEC that GAV-2 and GAV-3 from Precinct No. 552A/B were written by one person as shown by the manner in which the letters "R," "G" and "O" were written on the ballots; and GAV-1 and GAV-2 in Precinct No. 565A/565B, in view of the striking similarities in the stroke and handwriting style. These ballots were correctly invalidated, there being neither an assisted voter nor an assistor authorized to prepare the ballots. GAV-1 of Precinct No. 566A/D was correctly invalidated for having been written by two persons. The difference in the style or stroke in writing "DANILO ROQUERO" and "CUDIAMAT ARNALDO" is evident.
Considering that the 93 ballots nullified by the COMELEC Second Division are valid votes for petitioner Torres, the same are to be added to the latter's votes, thus: 2,344 + 93 votes = 2,437. Consequently, Torres won by a margin of 58 votes over respondent Gaviola who garnered 2,379 votes.
WHEREFORE, the Court REVERSES and SETS ASIDE both the May 25, 2009 Resolution of the Commission on Elections En Banc and the March 4, 2009 Resolution of the COMELEC Second Division in EAC (BRGY.) 214-2008 that annulled the proclamation of petitioner Ramon P. Torres and proclaimed respondent Josephine "Joy" Gaviola as the elected Punong Barangay of Barangay San Antonio, Makati City. The Court AFFIRMS the October 30, 2007 proclamation of petitioner Torres by the Barangay Board of Canvassers and the May 7, 2008 decision of the Metropolitan Trial Court of Makati City in Election Case 07-2874 that affirmed such proclamation but now based on the revised counts of votes stated in this decision.