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EN BANC

G.R. No. L-2591 March 15, 1949

EMILIO Z. CABABASADA, Petitioner, vs. THE COURT OF APPEALS and CIRIACO VALMORIA, Respondents.

Lorenzo Sumulong and Antonio C. Masaquel for petitioner.
Tañada, Pelaez & Teehankee for respondent Valmoria.

PERFECTO, J.:

Ciriaco Valmoria was proclaimed elected as Mayor of Kinoguitan, Oriental Misamis, in the elected of November 11, 1947, with 687 votes against 686 received by his rival candidate Emilio Z. Cababasada.chanroblesvirtualawlibrary chanrobles virtual law library

The election was contested. The trial court found that 678 votes must be credited to Cababasada and 636 to Valmoria and declared the former elected with a plurality of forty two (42) vote. Valmoria appealed. The Court of Appeals found that both candidates receiver 678 votes each and declared the election to have resulted in tie.chanroblesvirtualawlibrary chanrobles virtual law library

One of the several question raised by Cababasada in his appeal before us is the court of Appeals failure to add in the final computation to the vote received him, ballots 7-A and 7-B which in the body of the decision of said court were found to have been legally cast in favor of Cababasada.chanroblesvirtualawlibrary chanrobles virtual law library

Said ballots were objected by Valmoria on the ground that they contain names of person who are not candidate. There is no question that said ballots are valid vote for Cababasada under the provision of section 149, No. 13, of the Revised Election Code which we quote:

13. Any vote in favor of a person who has not filed a certificate of candidate for an office for which he did not present himself shall be void and counted as a stray vote but shall invalidate the whole ballot.

Evidently the Court of Appeals erred in not crediting said two ballots to Cababasada in the final computation, and the error should be corrected.chanroblesvirtualawlibrary chanrobles virtual law library

Valmoria contends that the two ballots in question were rejection by the trial court and that Cababasada could and cannot claim said ballot for his failure to make an express assignment of error in his brief regarding said two ballots. The contention has merit. When it appears that the trial court has illegally rejected ballots that have been legally cast in favor of a candidate the appellate court must correct the error, even without an express assignment of error made in the brief. An appellate court may affirm an appealed decision on grounds different from those stated in the decision of the trial court. According to section 178 of the Revised Election Code appeals in election contests shall proceed as in criminal cases and in a criminal case the appellate court may consider errors of the trial court not expressly pointed out in an assignment of error so as to render substantial justice. Lastly not to count in favor of Cababasada the two ballots in Question is to defeat the popular will and such result must be avoided in view of the fundamental principle of the Constitution sovereignty resides in the people.chanroblesvirtualawlibrary chanrobles virtual law library

With the two ballots credited to Cababasada the latter appears to have been elected mayor of Kinoguitan. It is not necessary in view of this result to consider the other question raised by Cababasada.chanroblesvirtualawlibrary chanrobles virtual law library

For all the foregoing the decision of the court of Appeals is reversed and Emilio Z. Cababasada is declared as the duty elected mayor of Kinoguitan in the election of November 11, 1947, and Ciriaco Valmoria is ordered to turn over him the office with costs in the three instance in favor of Cababasada. In View of the nature of this case and the circumstances surrounding it, it is ordered that this decision shall become final executory five days after its promulgation.chanroblesvirtualawlibrary chanrobles virtual law library

Moran, C.J., Paras, Feria, Pablo, Bengzon, Briones, Tuason, Montemayor and Reyes, JJ., concur.