Tugade vs. COMELEC

In certiorari proceedings under Rule 65, questions of fact are not reviewable; the inquiry is limited to whether the respondent tribunal acted without or in excess of jurisdiction or with grave abuse of discretion, and the determination of whether a tie exists between candidates is a factual question beyond the scope of certiorari.

Petitioner Eduard V. Tugade and private respondent Florencio P. Agustin were rival candidates for the position of Punong Barangay of Barangay San Raymundo, Balungao, Pangasinan during the July 15, 2002 synchronized Barangay and Sangguniang Kabataan elections. The election protest was initially filed before the Municipal Trial Court of Balungao, Pangasinan, with subsequent appeal to the Commission on Elections. The governing statutory framework includes Section 240 of Batas Pambansa 881, the Omnibus Election Code, which provides the procedure for resolving an election resulting in a tie through the drawing of lots.

Petitioner Eduard V. Tugade and private respondent Florencio P. Agustin were candidates for the position of Punong Barangay of Barangay San Raymundo, Balungao, Pangasinan during the July 15, 2002 synchronized Barangay and Sangguniang Kabataan elections. The canvass showed that Tugade obtained 246 votes while Agustin garnered 245, a margin of only one vote. On July 16, 2002, the Barangay Board of Canvassers proclaimed Tugade as the elected Punong Barangay.

On July 23, 2002, Agustin filed an election protest with the Municipal Trial Court of Balungao, Pangasinan, docketed as Election Protest Case No. 900, questioning the results of the votes cast and counted in Precinct No. 60-A/60-A-1. Tugade countered in his answer with counterclaim that the conduct and final outcome of the election had been regular, credible, and in accordance with the Omnibus Election Code and the Rules and Regulations governing the elections. On August 13, 2002, the MTC created a Revision Committee, whose report based on the election returns and tally sheets showed Agustin with 119 votes and Tugade with 126 votes in the contested precinct, for a total of 245. After the segregation and recount of the ballots contained in the sealed envelopes, the results showed Agustin with 119, Tugade with 125, and 11 stray ballots, for a total of 255. The parties then submitted their respective objections and claims: Agustin objected to three ballots counted for Tugade (Exhibits "A," "B," "C") and claimed one ballot considered stray by the Board of Canvassers, while Tugade objected to two ballots counted for Agustin (Exhibits "1" and "2") and claimed two ballots (Exhibits "3" and "4"), later withdrawing his claim to Exhibit "4."

On September 3, 2002, the MTC rendered its Decision declaring Agustin the duly elected Punong Barangay. The MTC's recapitulation showed that in the contested precincts (Nos. 60-A/60-A-1), Agustin had 120 votes (119 plus 1 claimed) and Tugade had 122 (125 minus 3 invalidated), yielding a final tally of 246 for Agustin and 242 for Tugade. On the same date, Agustin filed a motion for execution of the MTC Decision pending appeal. Tugade filed a notice of appeal and an opposition to the motion for execution pending appeal on September 4, 2002. On September 9, 2002, the MTC denied Agustin's motion for execution pending appeal and ordered the transmittal of the complete records to the COMELEC.

On appeal, the COMELEC Second Division, on October 25, 2005, issued the assailed Resolution declaring a tie between the two candidates at 246 votes each. The COMELEC computed the totals by adding the uncontested precinct votes (126 for Agustin, 120 for Tugade), the physical count from the contested precinct (119 for Agustin, 125 for Tugade), validated claimed votes (1 for Agustin, 2 for Tugade), and subtracting invalidated votes per COMELEC ruling (0 for Agustin, 1 for Tugade), yielding 246 for each candidate. The COMELEC reversed and set aside the MTC Decision and ordered the Barangay Board of Canvassers to reconvene and, after five days' notice, hold a special public meeting for the drawing of lots, proclaiming as elected the candidate favored by luck pursuant to Section 240 of the Omnibus Election Code. Tugade filed a motion for reconsideration with the COMELEC En Banc on November 11, 2005, which was denied by Order dated January 5, 2006 on four procedural grounds: failure to file within the five-day reglementary period, failure to pay required motion fees, lack of verification, and failure to file the required number of copies.

• Error of COMELEC: Petitioner argued that the questioned Resolution dated October 25, 2005 and the Order dated January 5, 2006 of the COMELEC are not in accord with the law or with the applicable decisions of the Supreme Court, contending that the COMELEC erred in declaring a tie between the two candidates.

• Absence of Grave Abuse of Discretion: Respondent Agustin countered that the petition for certiorari should be dismissed because it does not allege facts showing grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the COMELEC, the petition containing only a general and sweeping statement that the assailed Resolution and Order "are not in accord with the law or with the applicable decisions."

• Certiorari — Question of Fact vs. Question of Law: Whether the question of whether a tie exists between the two candidates is a factual issue not reviewable in certiorari proceedings under Rule 65.
• Grave Abuse of Discretion: Whether the COMELEC committed grave abuse of discretion in declaring a tie and ordering the drawing of lots pursuant to Section 240 of the Omnibus Election Code.

• Certiorari — Question of Fact vs. Question of Law: Yes. The determination of whether a tie exists between candidates is a factual issue, and questions of fact are not reviewable in certiorari proceedings, which are limited to whether the tribunal acted without or in excess of jurisdiction or with grave abuse of discretion.
• Grave Abuse of Discretion: No. The COMELEC did not commit grave abuse of discretion, having acted in accordance with Section 240 of the Omnibus Election Code, which mandates the drawing of lots when two or more candidates receive an equal and highest number of votes.

• Certiorari — Question of Fact vs. Question of Law: In certiorari proceedings, questions of fact are not generally permitted; the inquiry is limited essentially to whether the respondent tribunal acted without or in excess of its jurisdiction or with grave abuse of discretion. Petitioner challenged the COMELEC's conclusion that a tie existed between the two candidates, which is inherently a factual issue — involving the appreciation and recounting of ballots, the validation and invalidation of claimed and objected ballots, and the computation of final vote totals. Because the petition raised a question of fact rather than a jurisdictional error or grave abuse of discretion, it fell outside the proper scope of certiorari under Rule 65.

• Grave Abuse of Discretion: Grave abuse of discretion is committed when an act is done contrary to the Constitution, the law, or jurisprudence, or executed whimsically or arbitrarily in a manner so patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform the duty enjoined. No such capricious or whimsical exercise of judgment was shown in the COMELEC's actions. The COMELEC En Banc, in ordering the implementation of the Second Division's Resolution for the drawing of lots, acted in accordance with Section 240 of Batas Pambansa 881, the Omnibus Election Code, which expressly provides that whenever it appears from the canvass that two or more candidates have received an equal and highest number of votes, the board of canvassers shall, upon five days' notice to all tied candidates, hold a special public meeting and proceed to the drawing of lots, proclaiming as elected the candidate favored by luck. The COMELEC's application of this provision to a declared tie was a proper exercise of its mandate, not a grave abuse of discretion.

• Scope of Certiorari under Rule 65 — Certiorari is limited to questions of jurisdiction and grave abuse of discretion; questions of fact are not reviewable. The inquiry is confined to whether the respondent tribunal acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. The Court applied this doctrine by holding that petitioner's challenge to the COMELEC's declaration of a tie raised a factual question — the appreciation and recounting of ballots — which is beyond the purview of certiorari.

• Grave Abuse of Discretion — Grave abuse of discretion is committed when an act is (1) done contrary to the Constitution, the law, or jurisprudence, or (2) executed whimsically or arbitrarily in a manner so patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform the duty enjoined, as where power is exercised in an arbitrary and despotic manner because of passion or personal hostility. The Court found no such abuse in the COMELEC's actions, the latter having acted pursuant to Section 240 of the Omnibus Election Code.

• Drawing of Lots in Case of Tie — Under Section 240 of the Omnibus Election Code, when two or more candidates receive an equal and highest number of votes, the board of canvassers shall, upon five days' notice to all tied candidates, hold a special public meeting and proceed to the drawing of lots, proclaiming as elected the candidate favored by luck. The candidate so proclaimed has the right to assume office as if elected by plurality of vote. The provision does not deprive a candidate of the right to contest the election.

• "In certiorari proceedings, questions of fact are not generally permitted, the inquiry being limited essentially to whether or not the respondent tribunal had acted without or in excess of its jurisdiction or with grave abuse of discretion." — This passage states the ratio decidendi of the case, defining the boundary of certiorari review and explaining why the petition was dismissed: the question of whether a tie exists is factual, not jurisdictional.

• "Grave abuse of discretion is committed when an act is 1) done contrary to the Constitution, the law or jurisprudence, or 2) executed 'whimsically or arbitrarily' in a manner 'so patent and so gross as to amount to an evasion of a positive duty or a virtual refusal to perform the duty enjoined,' as where the power is exercised in an arbitrary and despotic manner because of passion or personal hostility." — This is the canonical formulation of grave abuse of discretion applied in the case, frequently cited in Philippine jurisprudence to define the threshold for certiorari relief.

• Quiambao vs. Court of Appeals, G.R. No. 128305, March 28, 2005, 454 SCRA 17 — Cited for the proposition that questions of fact are not generally permitted in certiorari proceedings, the inquiry being limited to jurisdiction or grave abuse of discretion.
• Pablo-Gualberto vs. Gualberto V., G.R. No. 154994, June 28, 2005, 461 SCRA 450 — Cited for the definition of grave abuse of discretion as an act done contrary to the Constitution, the law, or jurisprudence, or executed whimsically or arbitrarily in a gross and patent manner.
• Angeles vs. Secretary of Justice, G.R. No. 142612, July 29, 2005, 465 SCRA 106 — Cited as additional authority for the definition of grave abuse of discretion, specifically where power is exercised in an arbitrary and despotic manner because of passion or personal hostility.

• Section 240, Batas Pambansa 881 (Omnibus Election Code of the Philippines) — Provides that whenever it appears from the canvass that two or more candidates have received an equal and highest number of votes, the board of canvassers shall, upon five days' notice to all tied candidates, hold a special public meeting and proceed to the drawing of lots, proclaiming as elected the candidate favored by luck. The COMELEC applied this provision in ordering the Barangay Board of Canvassers to reconvene and conduct the drawing of lots after declaring a tie at 246 votes each.
• Section 2, Rule 19, COMELEC Rules of Procedure — Provides the five-day reglementary period for filing a motion for reconsideration, which petitioner was found to have failed to observe.
• Section 7(f), Rule 40, COMELEC Rules of Procedure, as amended by COMELEC Minute Resolution No. 02-0130 — Prescribes the required motion fees, which petitioner failed to pay.
• Section 3, Rule 19, COMELEC Rules of Procedure — Requires verification of motions, which petitioner failed to comply with.
• Section 1, Rule 7, COMELEC Rules of Procedure — Requires the filing of the prescribed number of copies of motions, which petitioner failed to satisfy.

Chief Justice Reynato S. Puno, and Associate Justices Leonardo A. Quisumbing, Consuelo Ynares-Santiago, Antonio T. Carpio, Ma. Alicia Austria-Martinez, Renato C. Corona, Conchita Carpio Morales, Romeo J. Callejo, Sr. (on official leave), Adolfo S. Azcuna, Dante O. Tinga, Minita V. Chico-Nazario, Cancio C. Garcia, Presbitero J. Velasco, Jr., and Antonio Eduardo B. Nachura concurred.