G.R. No. L-28395 December 26, 1967
LILIA PEÑA, NENITA TISBE, RODRIGO GELLE, CARLOS LEYNES and ROGELIO MAGSINO, petitioners, vs. HON. DAMASO S. TENGCO, Judge, Branch II, Court of First Instance of Batangas, and WENCESLAO VIVAS, respondents.

FACTS

Petitioner Rogelio Magsino and respondent Wenceslao Vivas were candidates for Councilor of Lipa City in the November 14, 1967 elections. Magsino filed a petition for recount of votes in several precincts (Election Case 1888) on November 23, 1967, alleging a discrepancy between the returns submitted to the board of canvassers and the copies furnished to his watcher and the Liberal Party. On November 24, 1967, respondent Judge granted a recount for precincts 94 and 100, conducted the count in open court, and issued an order directing the board of canvassers to credit Magsino with 42 votes from Precinct 100 and 69 votes from Precinct 94. However, on November 27, 1967, the Judge motu proprio set aside this order. On November 25, 1967, Vivas also petitioned for a recount of his votes in Precinct 94 (Election Case 1890), claiming that during the November 24 recount he obtained 64 votes, while the returns showed only 60. This petition was denied. Subsequently, on November 30, 1967, all members of the board of election inspectors for Precinct 94 filed a petition (Election Case 1895) seeking correction of the returns to change Magsino’s votes from 61 to 69, attributing the error to fatigue and poor lighting. On December 6, 1967, the Judge granted the board’s petition for Magsino and also directed, sua sponte, that Vivas be credited with 64 votes instead of 60, citing Vivas’s earlier record of his claim during the November 24 recount. Magsino’s motion for reconsideration to eliminate the portion crediting Vivas with 64 votes was denied, leading to this certiorari petition.

ISSUE

Whether respondent Judge committed grave abuse of discretion in his December 6, 1967 order in Election Case 1895 by directing the correction of the election returns for Precinct 94 to increase the votes of respondent Wenceslao Vivas from 60 to 64.

RULING

Yes. The Supreme Court granted the petition for certiorari. It upheld the portion of the order correcting Magsino’s votes from 61 to 69, as it was based on the unanimous petition of the board of inspectors and confirmed by an actual recount, in accordance with Section 154 of the Revised Election Code and jurisprudence requiring unanimous consent of the board for corrections. However, the Court found grave abuse of discretion in the portion directing the correction of Vivas’s votes. The Judge’s order was based solely on Vivas’s own claim during the earlier recount, not on a finding from that recount or a petition from the board of inspectors. The board did not petition for Vivas’s correction, and there was no established fact from the recount proceedings that Vivas actually obtained 64 votes. To base a correction on Vivas’s mere averment, without the board’s unanimous consent or a judicial confirmation of the error, was improper. The order as to Vivas was declared null and void, and the restraining order was made permanent. Costs were imposed on respondent Vivas.