G.R. No. 87440-42, June 13, 1990
AGUEDO F. AGBAYANI, petitioner, vs. THE COMMISSION ON ELECTIONS AND RAFAEL M. COLET, respondents.

FACTS

Petitioner Aguedo Agbayani filed pre-proclamation cases (SPC Nos. 88-309, 88-445, and 88-485) challenging election returns from nine precincts in the Pangasinan gubernatorial race. He simultaneously filed an election protest, denominated ad cautelam, covering all precincts. The COMELEC First Division dismissed the pre-proclamation cases, ruling that the filing of the election protest constituted abandonment of the pre-proclamation controversy and that the controversy was mooted by the proclamation of private respondent Rafael Colet as Governor. This was affirmed by the COMELEC en banc.
Agbayani argued that the ad cautelam protest was a precautionary measure to preserve all ballot boxes under COMELEC Resolution No. 2035, which allowed their reuse unless involved in a pending case. He expressly reserved his pre-proclamation petitions. The COMELEC, however, gave due course to the protest, noting Agbayani filed a reply to Colet’s answer.

ISSUE

Whether the COMELEC committed grave abuse of discretion in dismissing the pre-proclamation controversy on the grounds of abandonment and mootness due to proclamation.

RULING

Yes. The Supreme Court reversed the COMELEC’s dismissal. On abandonment, the Court held the filing of an ad cautelam protest, with an express reservation of the pre-proclamation cases, did not signify an intent to abandon. Its purpose was to preserve evidence by preventing the ballot boxes from being emptied for the barangay elections. The COMELEC’s act of giving due course to the protest and Agbayani’s filing of a reply to avoid a waiver did not convert the precautionary measure into an abandonment of the pre-proclamation issues.
On mootness, the general rule that proclamation renders a pre-proclamation controversy moot admits an exception where the proclamation is based on an incomplete canvass. Here, the pre-proclamation cases precisely alleged that certain returns were manufactured and others lost, raising the question of whether a special election was warranted. These issues, affecting the validity of the canvass and proclamation itself, remained unresolved and were proper for pre-proclamation adjudication. The Court cited Duremdes v. COMELEC, where a proclamation based on an incomplete canvass did not preclude continuation of a pre-proclamation case. Furthermore, the COMELEC violated its own procedural rule by having the same Commissioner pen both the Division Order and the en banc Resolution on the motion for reconsideration. The cases were reinstated for resolution.