EN BANC

G.R. No. 186359 : March 5, 2010

JESUS O. TYPOCO,Petitioner, v. COMMISSION ON ELECTIONS; THE NEW MUNICIPAL BOARD OF CANVASSERS OF LABO, CAMARINES NORTE, represented by its Chairman, Atty. Raffy Olano; THE NEW PROVINCIAL BOARD OF CANVASSERS OF CAMARINES NORTE, represented by its Chairman, Atty. Allen Francis B. Abaya; and EDGARDO A. TALLADO, Respondents.

DISSENTING OPINION

VELASCO, JR., J.:

With due respect, I dissent.chanroblesvirtua|awlibary

A summary of the pertinent facts is as follows:

In the May 14, 2007 elections, both Typoco and Tallado were candidates for the Office of the Governor of the Province of Camarines Norte.Typoco won the election with 80,830 votes, while Tallado garnered 78,287 votes or a margin of 2,543.chanroblesvirtua|awlibary

Previously, during the canvassing proceedings of the Provincial Board of Canvassers (PBOC) of Camarines Norte, Tallado objected to the inclusion of the Certificate of Canvass (COC) from the Municipalities of Paracale, Jose Panganiban, and Labo on the ground that they were falsified, tampered, and manufactured.The objections were subsequently denied by the PBOC, which prompted Tallado to appeal the rulings of the PBOC to the Commission on Elections (COMELEC). The cases were docketed as SPC Nos. 07-78, 07-79, and 07-80.chanroblesvirtua|awlibary

On May 25, 2007, the COMELEC Second Division issued an Omnibus Resolution dismissing the appeal. Consequently, on May 29, 2007, the PBOC convened and proclaimed Typoco as the governor-elect of Camarines Norte.chanroblesvirtua|awlibary

On June 4, 2007, Tallado filed a Motion for Reconsideration of the May 25, 2007 Omnibus Resolution. Likewise, he filed a Petition for Annulment of Proclamation of Typoco, which was docketed as SPC No. 07-243. The petition was, however, subsequently dismissed by the COMELEC Second Division in a Resolution dated August 22, 2007, prompting Tallado to move for its reconsideration on September 3, 2007.chanroblesvirtua|awlibary

On September 11, 2007, the COMELEC Second Division denied Tallados Motion for Reconsideration of the May 25, 2007 Omnibus Resolution.chanroblesvirtua|awlibary

On September 17, 2007, Tallado filed a Petition for Correction of Manifest Error before the COMELEC, docketed as SPC No. 07-312. He contended that the proclamation of Typoco as governor-elect of Camarines Norte was void, since it was predicated on void certificates of canvass coming from the Municipal Board of Canvassers (MBOC) of Labo and Jose Panganiban, Camarines Norte.chanroblesvirtua|awlibary

Answering, Typoco averred that the petition was filed out of time and Tallado submitted manufactured Statement of Votes by Precinct (SOVP).chanroblesvirtua|awlibary

On November 28, 2007, the COMELEC First Division conducted a hearing on the petition and, thereafter, ordered the parties to submit their respective memoranda.chanroblesvirtua|awlibary

In the meantime, the COMELEC en banc issued a Resolution dated January 30, 2008 in SPC No. 07-243 dismissing Tallados Motion for Reconsideration of the August 22, 2007 Resolution, which dismissed the Petition for Annulment of Proclamation of Typoco.chanroblesvirtua|awlibary

On April 30, 2008, the COMELEC First Division promulgated the assailed Resolution in SPC No. 07-312 granting the petition and annulling the proclamation of Typoco while ordering the proclamation of Tallado as the winner.chanroblesvirtua|awlibary

On May 8, 2008, Typoco filed a motion for reconsideration contending that he was denied due process, followed by an Urgent Omnibus Motion for Leave of Court to Admit Supplemental Argument in support of his motion for reconsideration and to set the case for hearing.chanroblesvirtua|awlibary

On February 16, 2009, the COMELEC en banc conducted a hearing regarding Typocos Omnibus Motion, as well as his motion for reconsideration. The COMELEC en banc then directed the parties to submit their respective memoranda.chanroblesvirtua|awlibary

On February 24, 2009, the COMELEC en banc issued a Resolution affirming the findings of the COMELEC First Division denying the Motion for Reconsideration.chanroblesvirtua|awlibary

Aggrieved, petitioner Typoco filed the instant petition on February 26, 2009.chanroblesvirtua|awlibary

In the meantime, on March 2, 2009, the COMELEC en banc issued an Order denying Typocos request to admit certain exhibits,c�fa1c�fac�fal�.w including ten (10) representative samples of the election returns, which were submitted to prove that Tallados SOVPs did not match the results in the election returns. It further appointed new members for the MBOC of the Municipality of Labo, as well as for the PBOC of Camarines Norte, to re-tabulate the votes for the position of Governor of Camarines Norte, to prepare new election documents, and to proclaim Tallado as the winning candidate. Lastly, the COMELEC ordered the National Bureau of Investigation (NBI) to investigate the fraudulent acts alleged by Typoco. The dispositive portion reads:

WHEREFORE, premises considered, the Commission en banc RESOLVED to, as it hereby RESOLVES to, DENY the prayer of Private Respondent Jesus Typoco for admission of exhibits 1 to 8-G for the specific purposes mentioned in the Memorandum.chanroblesvirtua|awlibary

Consequently, relative to our February 24, 2009 Resolution, and in order to expedite proceedings x x x speedily and judiciously, the Commission en banc accordingly names and appoints the following members of the New Municipal Board of Canvassers (NMBOC) for Labo, Camarines Norte: x x x which must hereafter convene at COMELEC session hall in Intramuros, Manila within three (3) days from receipt of this Order, re-tabulate the votes for the position of Governor of Camarines Norte, prepare a new SVOP and MCOC for the municipality of Labo with the corrections, and thereafter submit the same to the New Provincial Board of Canvassers (NPBOC) of Camarines Norte.chanroblesvirtua|awlibary

The following are likewise named and appointed to the New Provincial Board of Canvassers of Camarines Norte and performed duties as follows: x x x The same NPBOC shall convene at COMELEC session hall in Intramuros, Manila, within three (3) days from receipt of this Order, prepare a new Statement of Votes per Municipality (SVOM) and Provincial Canvass of Votes (PCOC) as corrected, and thereafter proclaim Edgardo Tallado as the duly elected governor of the province of Camarines Norte in May 14, 2007 elections.chanroblesvirtua|awlibary

Further, the Commission en banc hereby endorses this matter to the National Bureau of Investigation (NBI) for proper investigation, the results of which would be material to any further action that may be taken against any such responsible parties who may be found liable for any of the fraudulent acts alleged by the Private Respondent Typoco. For this same purpose, the NBI is hereby directed to coordinate with the COMELEC Law Department and Atty. Romulo B. Macalintal to expedite this investigation.

 cralaw

SO ORDERED.c�fa2c�fac�fal�.w (Emphasis supplied.)

Upon endorsement of the said Order from COMELEC, the NBI conducted an investigation of the two sets of SOVPs submitted by both parties. The NBI was able to examine four (4) copies of the SOVPs: the first copy coming from the Office of the Provincial Election Supervisor of Camarines Norte; the second, from the Parish Pastoral Council for Responsible Voting, Camarines Norte Chapter; the third (blue carbon copy), from the Election Records and Statistics Department (ERSD); and the fourth, from the MBOC for Labo.chanroblesvirtua|awlibary

On May 22, 2009, the NBI released a Progress Report3c�fac�fal�.w with the following findings:

After the investigation conducted so far, the undersigned Agents of the National Bureau of Investigation (NBI) assisted by other investigators, hereby state their findings, thus:

That the First Copy (black copy/original copy) of the Statement of Votes by Precinct (SOVP) Nos. 0006482, 0006483, 0006484, 0006485, 0006486, 0006487, 0006488 and 0006489 for Local Positions from Labo, Camarines Norte during the May 14, 2007 Elections which were turned over by the Office of the Provincial Election Supervisor of Camarines Norte, Provincial Capitol, Daet, Camarines Norte represented by Atty. MAICO JULIA to the NBI for examination are SPURIOUS.chanroblesvirtua|awlibary

That the Second Copy (red carbonized impression) of the Statement of Votes by Precinct (SOVP) Nos. 0006482, 0006483. 0006484, 0006485, 0006486, 0006487, 0006488 and 0006489 for Local Positions from Labo, Camarines Norte during the May 14, 2007 Elections which were turned over by the Parish Pastoral Council for Responsible Voting NAMFREL, Camarines Norte Chapter, Daet, Camarines Norte represented by Fr. NORBERTO EYULI to the NBI for examination are GENUINE.chanroblesvirtua|awlibary

That the Third Copy (blue carbonized impression) of the Statement of Votes by Precinct (SOVP) Nos. 0006482, 0006483. 0006484, 0006485, 0006486, 0006487, 0006488 and 0006489 for Local Positions from Labo, Camarines Norte during the May 14, 2007 Elections which were turned over by the Election Records & Statistics Division, Comelec, Intramuros, Manila represented by Atty. JUANA S. VALEZA to the NBI for examination are SPURIOUS.chanroblesvirtua|awlibary

That the Fourth Copy (green carbonized impression) of the Statement of Votes by Precinct (SOVP) Nos. 0006482, 0006483. 0006484, 0006485, 0006486, 0006487, 0006488 and 0006489 for Local Positions from Labo, Camarines Norte during the May 14, 2007 Elections which were turned over by the Municipal Board of Canvassers (MBOC) for Labo, Camarines Norte represented by Mr. VIRGILIO VERAS to the NBI for examination are GENUINE.c�fa4c�fac�fal�.w (Emphasis supplied.)

After a careful examination of the facts and law applicable to the case, I submit that the petition should be granted.chanroblesvirtua|awlibary

Existence of Forum-Shopping

At the outset, it should be pointed out that COMELEC erroneously entertained the Petition for Correction of Manifest Errors filed by Tallado, since such petition already constituted deliberate and willful forum shopping.chanroblesvirtua|awlibary

The COMELEC Rules of Procedure provides that the Rules of Court in the Philippines shall be applicable by analogy or in suppletory character and effect.5c�fac�fal�.w

Accordingly, the certification against forum shopping is required under Section 5, Rule 7 of the 1997 Rules of Civil Procedure, to wit:

Sec. 5. Certification against forum shopping. The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.chanroblesvirtua|awlibary

Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt as well as a cause for administrative sanctions.chanroblesvirtua|awlibary

 cralaw

In a complaint or other pleading initiating an action in court, the plaintiff or principal party shall certify as to three undertakings: (1) that he has not commenced any action or filed any claim involving the same issues in any court, tribunal, or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (2) if there is such other pending action or claim, he should make a complete statement of the present status of said action or claim; and (3) if he should thereafter learn that the same or similar action has been filed or is pending in any court, tribunal, or quasi-judicial agency, he shall report that fact within five (5) days therefrom to the court where his complaint or initiatory pleading has been filed. Failure to comply with these requirements shall be cause for dismissal of the case without prejudice or with prejudice but only upon motion and after hearing. The submission of a false certification or the non-compliance with any of the undertakings therein may subject the party to indirect contempt of court. If the partys or his counsels acts constitute willful and deliberate forum shopping, the same shall be a ground for summary dismissal of the case with prejudice.chanroblesvirtua|awlibary

The test for determining the existence of forum shopping is whether the elements of litis pendentia are present, or whether a final judgment in one case amounts to res judicata in another. Thus, there is forum shopping when the following elements are present: (1) identity of parties, or at least such parties represent the same interests in both actions; (2) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (3) the identity of the two preceding particulars, such that any judgment rendered in the other action will, regardless of which party is successful, amount to res judicata in the action under consideration. These requisites are also constitutive of the requisites of auter action pendant or lis pendens.c�fa6c�fac�fal�.w

In the present case, the records reveal that not only did Tallado fail to declare in the certification against forum shopping in his Petition for Correction of Manifest Errors the existence of his Motion for Reconsideration of the dismissal of his Petition for Annulment of Proclamation of Typoco (SPC No. 07-243) then pending before the COMELEC,7c�fac�fal�.w but he also engaged in willful and deliberate forum shopping.

It would be apropos to review the factual milieu of the case at this juncture. The first cases, docketed as SPC Nos. 07-78, 07-79, and 07-80, filed by Tallado were objections to the inclusion of the COCs from the Municipalities of Paracale, Jose Panganiban, and Labo on the ground that they were falsified, tampered, and manufactured. Thereafter, he filed a second casea Petition for Annulment of Proclamation of Typoco. Still unsatisfied, he filed the Petition for Correction of Manifest Error, his third case, saying that the proclamation of Typoco is void, since it was based on void COCs from the municipalities aforementioned. In effect, each of these three cases is anchored on the same groundvoid COCs.chanroblesvirtua|awlibary

Applying the test to determine the existence of forum shopping to the facts of the case, it is easily decipherable that forum shopping indeed exists. First, there is identity of parties. Tallado is the petitioner in all three (3) cases against Typoco as respondent. Second, the relief prayed for is founded on the same facts, i.e., void COCs for the Municipalities of Labo, Jose Panganiban, and/or Paracale. And third, the resolution of the COMELEC in SPC Nos. 07-78, 07-79, and 07-80 regarding the authenticity of the COCs is a decision on the merits which amounted to res judicata. Thus, Tallado could no longer question Typocos proclamation based on the same COCs in the subsequent Petitions for Annulment of Proclamation and Correction of Manifest Error.chanroblesvirtua|awlibary

Such fact of deliberate and willful forum shopping should have prompted COMELEC to dismiss outright the Petition for Correction of Manifest Error.chanroblesvirtua|awlibary

Existence of Grave Abuse of Discretion

The ponencia finds that the COMELEC did not gravely abuse its discretion in the instant case ratiocinating that the appreciation of election documents involves a question of fact that is best left to the determination of the COMELEC, a specialized agency tasked with the supervision of elections all over the country. Further, it says that the findings of fact of such agency, when supported by substantial evidence, are final and cannot be reviewed by courts of justice. While such is the general rule, the principle admits of certain exceptions. In Life Assurance Company Ltd. v. Court of Appeals, this Court enumerated the exceptions, to wit:

It is a settled rule that in the exercise of the Supreme Courts power of review, the Court is not a trier of facts and does not normally undertake the re-examination of the evidence presented by the contending parties during the trial of the case considering that the findings of facts of the CA are conclusive and binding on the Court. However, the Court had recognized several exceptions to this rule, to wit: (1) when the findings are grounded entirely on speculation, surmises or conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of facts are conflicting; (6) when in making its findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; x x x (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record x x x.8c�fac�fal�.w (Emphasis supplied.)

In the instant case, there are two conflicting sets of SOVPs, and by deciding the petition of Tallado solely on the basis of the ERSD copy of the SOVP, such act by the COMELEC constituted grave abuse of discretion.chanroblesvirtua|awlibary

First, there were glaring discrepancies between the two (2) sets of SOVP submitted by the parties. On the one hand, petitioner Typoco avers that he obtained his copy of the SOVP from the Office of the Election Officers in the municipalities of Labo, while private respondent Tallado claims that he secured his copy of the SOVP from the Office of the Provincial Election Supervisor (OPES), allegedly as certified by the latter.

Tallado alleges that based on his copy of the SOVP, his total number of votes in the Municipality of Labo is 13,172, while Typoco received only 11,359 votes. When the said figures were, however, copied to the Municipal COC, Tallados votes were reduced to only 11,490 votes, while those of Typoco were increased to 12,285 votes.chanroblesvirtua|awlibary

But Typoco contends in his petition that the election documents used by respondent COMELEC in issuing the questioned resolutions, which nullified the 2,543 vote-lead of Typoco, and in declaring Tallado as the winner, are fake and spurious. He further asserts that the copies provided by Tallado are also fake and spurious.

Typoco counters that the correct total numbers of votes are those found in the Municipal COC, which shows that Tallado received only 11,490 votes, while Typoco garnered 12,285 votes. Typoco further argues that these figures are supported by the SOVP (MBOC copy), which he obtained from the Offices of the Election Officer of Labo.chanroblesvirtua|awlibary

In such a scenario, the COMELEC should not have decided based on the ERSD copies of the SOVP alone. It departed from settled jurisprudence when it did not make use of the election returns and simply relied on the SOVP copy of the ERSD. As the ponencia stated, [T]he original petition filed before the COMELEC, one for correction of manifest errors, is a pre-proclamation controversy which, ordinarily, does not involve the opening of ballot boxes, examination and appreciation of ballots and/or election returns.In order, however, to determine the true and genuine results of the elections, this Court has constantly ruled that the best evidence is the election returns themselves, and not the certificate of votes or SOVPs.chanroblesvirtua|awlibary

In Garay v. COMELEC,9c�fac�fal�.w the Court held that [a] certificate of votes does not constitute sufficient evidence of the true and genuine results of the election; only election returns are, pursuant to Sections 231, 233-236, and 238 of B.P. Blg. 881.chanroblesvirtua|awlibary

Again in De Guzman v. COMELEC,10c�fac�fal�.w the Court stated that in an election contest where the correctness of the number of votes is involved, the best and most conclusive evidence are the ballots themselves; where the ballots can not be produced or are not available, the election returns would be the best evidence. (Emphasis supplied.)

Moreover, the ponencia pounds on the fact that this Court can only look at records and materials brought to the COMELECs attention and consideration by the parties. But it neglects to take into account the long standing principle that procedural rules are but tools to accomplish the ends of justice, and it is always in the power of the Court to suspend its own rules whenever the purposes of justice require.11c�fac�fal�.w Similarly, it would be wise to remember that election contests involve public interest, and technicalities and procedural barriers should not be allowed to stand in the way if they constitute an obstacle to the determination of the true will of the electorate in the choice of their elective officials. In election cases this Court has an imperative duty to ascertain, by all means within its command, who are the real candidates voted by the electorate.12c�fac�fal�.w

Thus, in the higher interest of substantial justice, this Court decided to use the election returns in the precinct subject of the petition to finally determine the actual votes cast in favor of the contending parties. Such action has been upheld by the Court in Mastura v. COMELEC.13c�fac�fal�.wIn Mastura, two (2) congressional candidates were vying for the first district of Maguindanao during the May 8, 1995 elections. One of the candidates, Didagen P. Dilangalen, objected to the inclusion of the COC of the Municipality of Matanog on the ground that the same was allegedly tampered. The Court ruled that the act of COMELEC in ordering the production and examination of the election returns was proper. Noteworthy is the fact that Mastura involved a pre-proclamation controversy and yet the COMELEC reviewed the election returns. This is contrary to the argument of the Office of the Solicitor General that the remedy of recanvass of election returns is patently illegal, as this would take the form of an election protest, particularly a retabulation of election returns under A.M. No. 07-4-15-SC.

Although such a task could have very well been delegated to the COMELEC, time constraints strongly argued against a remand and compelled this Court to review the election returns themselves.chanroblesvirtua|awlibary

Accordingly, by Resolution on July 28, 2009, the Court directed the COMELEC to present for examination the COMELEC copy of all the 163 election returns of Labo, Camarines Norte under the custody of the ERSD.As a measure then to discern the will of the electorate, the Court took it upon itself to make a verification. In compliance with the said resolution, the COMELEC submitted copies of E.R. Nos. 3000501 to 3000663 on August 11, 2009. Upon inspection, the election returns were found to be regular.chanroblesvirtua|awlibary

Subsequently, on September 29, 2009, the Court issued another resolution requiring the parties to submit their comments on the results of the election returns.Petitioner Typoco confirmed the genuineness and due execution of the election returns in his comment. He further stated that the results also confirmed the findings of the NBI that the SOVPs used by COMELEC in annulling his proclamation were not genuine.chanroblesvirtua|awlibary

On the other hand, respondent Tallado raises the argument that the review of the election returns is not within the power of the Court. He argues that reviewing the said election returns would transgress the principle that the Court is not a trier of facts. Furthermore, he contends that the findings of fact of the COMELEC are final and non-reviewable. Lastly, he states that any review of precursor documents is anathema to the summary nature of pre-proclamation controversies.chanroblesvirtua|awlibary

Had the majority only looked at the evidence before the Court, the returns would have carried the day for Typoco:

From the table above, it is very clear that the election returns mirror the SOVPs submitted by Typoco, and not the SOVPs submitted by Tallado. As such, Typocos copies of the SOVPs obtained from the Municipal Election Officer of Labo, Camarines Norte reflect the true will of the electorate in the said municipality.chanroblesvirtua|awlibary

Second, the COMELEC failed to consider the annexes attached to the Answer of Typoco in SPC No. 07-312, namely: (1) the COC of votes for the Municipality of Labo filed with the ERSD; (2) the respective affidavits of Provincial Election Supervisor (PES) Atty. Said Ali Maganduga and MBOC Chairperson Rosendo Vales; and (3) certified true copies of the genuine SOVPs for the Municipality of Labo. These documents should have been admitted, as these are relevant and material to the determination of the genuineness of the SOVP copy of the ERSD and that of the Labo Municipal Election Officer. If admitted, these documents tend to show that the SOVP copy of the ERSD is spurious and cannot be the sole basis for the resolution of the petition. The February 24, 2009 COMELEC en banc Resolution affirming the findings of the COMELEC First Division relied on the SOVP copy deposited with the ERSD on the ground that said document enjoys the presumption of regularity until proved otherwise. The point is that the disputable presumption has been successfully overturned by the SOVP copy of the Labo Municipal Election Officer. Moreover, the COMELEC should have taken cognizance of the affidavit of PES Atty. Said Ali Maganduga, who attested that the Form 20-A-2 used for the SOVP copy of the ERSD did not conform to the genuine forms printed and distributed by the COMELEC for use in the May 14, 2007 elections, and that the questioned ERSD SOVP was duly certified and issued by an unauthorized employee.chanroblesvirtua|awlibary

While Tallado claims his copy of the SOVP came from the OPES which allegedly certified the copy, Atty. Maganduga denies having certified such document and even goes so far as to declare that Tallados SOVP is fake and manufactured. In his affidavit, Atty. Maganduga states:

11. The latest petition is clearly unfounded, suffers incurable defects, and lacking the element of Good Faith. It is susceptible to outright dismissal for the following reasons, to wit:

11.1The machine copies of Statement of Votes by Precincts being kept by the Office of the Provincial Election Supervisor and duly certified as such to be the true copies of the Original Statement of Votes by Precincts from the Municipalities of Labo and Jose Panganiban, and sets forth in the Petition for Correction of Manifest Error, are not reflective of a genuine or authentic copies of Statement of Votes by Precincts, after having been compared with the Statement of Votes by Precincts, being kept by the Office of the Election Officer of both Municipalities of Labo and Jose Panganiban;cralaw

11.2The entries of votes made in the Spurious or fake Statement of Votes by Precincts being kept by the Office of the Provincial Election Supervisor were clearly tampered, falsified, and obviously bloated in favor of Mr. E. Tallado, the herein petitioner;cralaw

11.3The papers used (Form 20-A-2) did not conform to the genuine Statement of Votes by Precincts printed and distributed by the Commission of Elections to different cities and municipalities all over the Philippines in connection with the May 14, 2007 National and Local Elections;cralaw

11.4The original or genuine copies of the Statement of Votes by Precincts being kept inside the ballot box were all missing and fake or spurious Statement of Votes by Precincts were deliberately mixed with other genuine documents;cralaw

11.5The substitute spurious or fake Statement of Votes by Precincts were duly certified and issued by unauthorized employee of the Office of the Provincial Election Supervisor thereby making the same appear as genuine or authentic documents.c�fa14c�fac�fal�.w (Emphasis supplied.)

COMELEC likewise arbitrarily failed to consider the affidavit of Labo MBOC Chairperson Rosendo Vales, who attested that the SOVP copy of the ERSD was tampered and fabricated, thus:

6. As all members of the Tabulating Committee for the Local Position had lately reviewed/recomputed all entries in the SVOP and the CCV copies for the MBOC Labo, Camarines Norte on October 8, 2007, all entries in the SVOP and the CCV copies for the MBOC Labo, Camarines Norte, and compared the findings to the attachments of the petition, [w]e staunchly conclude and assert:

1. That the petitioners [Tallado] claim of alleged error commited by the committee/board is an act of dancing with his own shadow.chanroblesvirtua|awlibary

2.   cralawThat the Statement of Voter per Precincts attached by the petitioner [Tallado] to his petition had been cunningly TAMPERED and FABRICATED purposely to attack and destroy the veracity of the Certificate of Canvass of Votes of the municipality of Labo and the province of Camarines Norte eventually, like in his early multifaceted self-serving attempts and complaints; and

3.Further, petitioner [Tallado] by criminal intent and purpose, had to the extent forged and/or had caused the forging of the signatures of the members and staff of the board in order to give semblance to his attached SVOP as faithful reproduction of the original.c�fa15c�fac�fal�.w(Emphasis supplied.)

Included also in the documents submitted by Vales before the COMELEC was a machine copy of the Summary Statement of Votes with serial number 0991195,c�fa16c�fac�fal�.w showing that Tallado garnered 11,490 votes, while Typoco got 12,285 votes. These figures match the documents submitted by Typoco and the election returns.

Notwithstanding the compelling nature of the pieces of evidence Typoco adduced and the facts they tended to prove or were deducible therefrom, COMELEC simply ignored or considered them without provable value as to be worthy of evaluation. Those pieces of evidence by themselves appear to be compelling as to arouse, at the minimum, reasonable suspicion that the respective copies of the SOVP Tallado presented and in the possession of the ERSD were both spurious and/or tampered. Unfortunately, COMELEC still opted to rely on the results reflected in the ERSD copy of the SOVP. A thorough investigation of conflicting SOVPs and a comprehensive inquiry into the precursor documents of the SOVPs, more particularly the election returns in the poll bodys custody, would have been the logical approach to take. In fine, COMELEC looked at what Pecson v. Commission on Electionsc�fa17c�fac�fal�.w referred to as the wrong material considerations as basis to annul the proclamation of Typoco as governor-elect. Pecson, while not on all fours with the present case, teaches that the use by the court or adjudicating body of wrong considerations in arriving at a decision constitutes grave abuse of discretion.c�fa18c�fac�fal�.w Of similar tenor albeit dealing with an entirely different subject, was what the Court said in Almeida v. Court of Appeals, thus: [A] court abuses its discretion when [in granting or denying injunctive relief], it x x x fails to consider and make a record of the factors relevant to its determination, relies on clearly erroneous factual findings, considers clearly irrelevant or improper factors x x x or misapplies its factual or legal conclusions.c�fa19c�fac�fal�.w

Considering that the determinative issue in this case revolves around the genuineness of the SOVP copies, it behooves the COMELEC, in line with its duty to ascertain the true will of the electoratethe voting will of the people of Labo, in this instanceto have asked government experts to determine which of the conflicting SOVPs was valid before deciding the Tallado petition. Or at the very least, it should have, given the uncertainties prevailing on the ground, remanded the case to the provincial election officer, with an instruction to look into the relevant election documents to determine who the real winner was.chanroblesvirtua|awlibary

The Court has certainly taken stock of the COMELECs order to the NBI to investigate the issue of the genuineness of the SOVP copy of the ERSD. But it cannot be overemphasized that the COMELEC took this course of action only after denying Typocos motion for reconsideration. In net effect, COMELEC merely went through the motion of ordering an investigation as to the authenticity of critical documents, but without intending to use the results of the probe to assist it arrive at a judicious, precise conclusion.

As it were, the results of the examination conducted by experts from the Questioned Documents Division of the NBI buttressed the finding that the SOVPs turned over by the MBOC of Labo were genuine, while the SOVPs yielded by the ERSD of the COMELEC were spurious. The NBI progress report states in part:

That the Fourth Copy (green carbonized impression) of the Statement of Votes by Precinct (SOVP) Nos. 0006482, 0006483, 0006484, 0006485, 0006486, 0006487, 0006488 and 0006489 for Local Positions from Labo, Camarines Norte during the May 14, 2007 Elections which were turned over by the Municipal Board of Canvassers (MBOC) for Labo, Camarines Norte represented by Mr. VIRGILIO VERAS to the NBI for examination are GENUINE.c�fa20c�fac�fal�.w

The NBI Report, while not necessarily binding on the COMELEC or the Court, elaborated on the fact that the Labo MBOC SOVPs jibed with the SOVPs submitted by the Parish Pastoral Council for Responsible Voting-NAMFREL, Camarines Norte Chapter; these SOVPs were also found to be genuine. On the other hand, the SOVPs turned over by the Election Records and Statistics Division of COMELEC were found to be spurious.

Furthermore, the testimoniesc�fa21c�fac�fal�.w of Labo MBOC Vice-Chairperson Roberto Villaflores, Tabulator Roberto Ramirez, Tabulator Vivencio Maigue, and Chief Assessor Igmedio Estrella gathered by the NBI also confirmed the fake and spurious character of the SOVPs obtained from the ERSD, as well as the SOVP turned over by the OPES.chanroblesvirtua|awlibary

In all then, COMELEC was confronted with enough related substantial evidence, the combined effect of which points to the obvious fact that the SOVPs Tallado adduced were spurious, if not tampered documents. Sadly, the poll body, without so much of an explanation, refused to look at these pieces of evidence, the relevant considerations in this case, in arriving at its ruling. And with the path it chose to take, COMELEC veritably latched its final determination as to who won the 2007 gubernatorial race in Camarines Norte on spurious election documents. To borrow from Almeida, a court grossly abuses its discretion when, for its case disposition, it relies on clearly erroneous factual anchors and/or considers irrelevant factors. The spurious SOVP copy of the ERSD is doubtless an irrelevant factor adverted to, a clearly wrong quantity to predicate a ruling on. The COMELECs reliance thereon as basis for its assailed resolutions cannot but be tagged as a whimsical and capricious exercise of discretion.chanroblesvirtua|awlibary

Upon the foregoing considerations, I cannot, with due respect, plausibly sustain the ruling of the COMELEC in annulling the proclamation of Typoco and proclaiming Tallado as the winning gubernatorial candidate based on the SOVPs from the ERSD.I declare that, indeed, petitioner Typoco is the duly elected Governor of Camarines Norte. Accordingly, the proclamation made by the PBOC on May 29, 2007 ought to stand.chanroblesvirtua|awlibary

In this electoral contest, we are called upon to protect the sovereign will of the people of Camarines Norte and not to stifle or frustrate it. Thus, the Court must employ all means bestowed upon it to safeguard the rule of the majority. If this means going through the motion of mathematically adding the votes, should the situation so demands, so be it. The will of the electorate must be heeded.chanroblesvirtua|awlibary

Therefore, I vote to grant the petition.chanroblesvirtua|awlibary

PRESBITERO J. VELASCO, JR.

Associate Justice