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COMELEC memorandum election case

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  • 8/12/2019 COMELEC memorandum election case

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    Republic of the PhilippinesCOMMISSION ON ELECTIONS

    Second DivisionIntramuros, Manila

    DAUD N. DALID, SPR Brgy. Case No. 24 - 2014Petitioner;

    - versus - for

    HON. UD!E ANNABELLE P. PIAN!, CERTIORARI ANDPublic Respondent, INUNCTION

    "#$% Urge&$ Prayer 'orIss(a&)e o' a Res$ra#&g

    - and - Or*er a&*+ or Pre##&aryI&(&)$#o& a&*+ or S$a$(s/(o A&$e Or*er

    NORUDIN A. PENDATUN,Private Respondent.

    x----------------------------------------x

    M E M O R A N D U MOR PETITIONER

    PETITIONER DAUD N. DALID, through the undersignedcounsel, unto this Honorable ommission, most respectfull! states,"H#" ---

    PREATOR STATEMENT

    In granting or denying injunctive relief, a court abuses

    its discretion when it lacks jurisdiction, 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, clearly gives too much weight to

    one factor, relies on erroneous conclusions of law or equity, or

    misapplies its factual or legal conclusions.[Almeida v. Court

    of Appeals, 4! "hil #4! $%&&'(), cited in Varias v.COMELEC *En Banc, +.. -o. !&/, 0ebruary , %&&)

    NATURE O THE PETITION a&*STATEMENT O THE CASE

    $% "his Pe$#$#o& is filed to correct and reverse the SPECIALORDER 'or $%e Iss(a&)e o' a r#$ o' E3e)($#o& o'(*ge&$ Pe&*#&g Aea1 dated Mar)% 11, 2014 of the

    Annex A of "etition dated 1arch /, %&4.

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    Ho&ora5e (*ge A&&a5ee P. P#a&g&hereinafter also calledHonorable Public Respondent' in Ee)$#o& Case No. 06-20178S9P:, entitled Norudin K. Pendatun (Protestant) versusDaud N. Dalid (Protestee)(

    )% Ee)$#o& Case No. 06-2017, entitled NORUDIN A.PENDATUN (Protestant) versus DAUD N. DALID(Protestee) for *+*"I PR"*S" .as filed under theR(es o' Pro)e*(re #& Ee)$#o& Co&$es$s 5e'ore $%e Co(r$sI&;o;#&g Ee)$#;e M()#a a&* Bara&gay O''#)#as 8A.M.No. 06-4-1< SC:(

    /% "he Honorable Public Respondent decided the case in favor ofPrivate Respondent in its appealed Or*er2 dated March /,

    )0$1% n the other hand, the Honorable Public Respondentalso issued the assailed SPECIAL ORDER 'or $%e Iss(a&)e o'a r#$ o' E3e)($#o& Pe&*#&g Aea7 and directed theissuance of the corresponding 2rit of *xecution after the lapseof t.ent! &)0' da!s, hence, this Instant Petition(

    1% "here is no plain and speed! remed! under the ordinar! courseof la., except this Petition(

    STATEMENT O ACTS

    3% Herein Petitioner &Protestee in the lo.er court' .as proclaimed.inner in the said elections on ctober )4, )0$/ b! the5aranga! 5oard of anvassers of 5aranga! "onggol, 6en%S%7% Pendatun, Maguindanao, .herein he .on b! a .idemargin of se;e&$y-&e 86=: ;o$es as against PrivateRespondent herein &Protestant in the lo.er court', asevidenced b! his Cer$#'#)a$e o' Ca&;ass a&* Pro)aa$#o&4(

    #. #n *lection Protest case .as filed b! Protestant &herein PrivateRespondent' relative to the said 5aranga! *lections onovember 8, )0$/, alleging, primaril! that In those three

    precincts Fifty Nine (59)unofficial ballots were dropped on the ballot

    boxes, ixty Ei!ht ("#) official ballots for the $rotestant were

    excluded fro% the countin!&'' and that herein PrivateRespondent pra!ed that after notice and hearin!, and udicialrecount of ballots

    , ud!%ent be rendered settin! aside the

    procla%ation of protestee atu&sic'N* alid&herein Petitioner' by

    the Baran!ay Board of +anassers of Baran!ay -on!!ol, .en* */*$endatun, 0a!uindanao&9 &underscoring ours', per cop! ofPr#;a$e Reso&*e&$>s 8as Pro$es$a&$ $%ere#&: Ee)$#o&Pro$es$?(

    %upra* Annex I.2upra* Annex A.4upra* Annex B.'upra* Annex C. Pararap! " of the 3lection "rotest.#upra*

    %

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    8% Petitioner &Protestee in the lo.er court' belied the allegations ofPrivate Respondent in his A&s"erdated ovember $3, )0$/,and even asserted that it .as, as a matter of fact, the PrivateRespondent herein, .ho caused to insert the :unofficial9 ballotsinto the 5allot 5ox of one of the contested precincts, C(s$ere*Pre)#&)$ Nos. 61A+ 61B@

    4% Petitioner additionall! asserted in his A&s"er6dated ovember$3, )0$/, among others, that ---

    a% During the election, Petitioner;s .atchers assigned inC(s$ere* Pre)#&)$ No. 61A+ 61Bnoticed that the 55*"hairman did not sign his name at the bac< of the fficial5allots .henever he issued the same to the voters, and

    also he tore the fficial 5allots in such a .a! that theserial numbers .ere torn from the fficial 5allots%Petitioner;s .atchers complained to the 55*" hairman,but he brushed them aside and did not mind them(

    b% Petitioner;s .atchers .ere forced to complain to *lectionfficer Ra('*e& Ma&gee&, .ho later confronted the55*" hairman, .ho merel! said that he :forgot9 to signthe bac< of fficial 5allots and to exclude the serialnumbers .hen tearing the fficial 5allots(

    c% (It would be worth mentioning at this point that S.K.Pendatuan, Maguindanao was considered a CM!"!C#hot spot$ and that personnel %rom the Philippine &ationalPolice (P&P' were assigned to serve as Poll Clers and)hird Members during the *aranga+ !lections, asteachers were a%raid to serve as **!) members'(

    d% During the counting and appreciation of ballots, .hich

    .as done at the Municipal Hall of S%7% Pendatun,Maguindanao, since the said Municipal Hall .as po.eredonl! b! a generator, there .as a sudden complete po.erfailure at around 8 to 4 pm of ctober )4, )0$/(

    e% 2hen the lights .ent off, the 55*" chairman sat on top ofthe 5allot 5ox, but he deliberatel! left a portion of the5allot box open% Suddenl!, Protestant;s &PrivateRespondent herein' supporters came to.ards the 5allot

    box and put some papers therein% # .atcher fromanother rival candidate sa. the act of Protestant;ssupporters and shouted :Nahulugan ng alota (The!inserted allots") &in Maguindanaon'=9 *ver!bod! .asalerted and immediatel! the supporters scampered a.a!%Protestee;s &Petitioner herein' .atchers demanded to

    /upra* Annex #.

    2

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    suspend the counting until the *lection fficer, Ra('*e&Ma&gee&,.as summoned(

    f% Protestee;s &Petitioner herein' .atchers immediatel!called upon EO Ra('*e& Ma&gee&, .ho .ent at once tothe canvassing area and confronted the 55*"% "he!confirmed that there .ere unidentified persons .hoinserted several :unofficial ballots9 inside the 5allot box.hen the lights .ent off(

    g% * Mangelen as

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    l% Protestee;s &Petitioner herein' .atchers again complainedto * Raufden Mangelen about the excess of 10 votes inlustered Pre)#&)$ No. 61A+ 61B, and assailed the sameas among those previousl! inserted b! Protestant;s&Private Respondent herein' supporters% Ho.ever, *Mangelen said that even if the 10 votes .ere included&presumabl! bearing Private Respondent;s name',Protestee &Petitioner herein' .ould still lead the overalltall! in the three &/' clustered precincts b! 6= ;o$es%Hence, * Mangelen said that the canvassingproceedings must be finished and that the .inningcandidate must be proclaimed(

    m% In the end, even if there .ere about fort! &10' inserted

    and spurious ballots bearing the name of Protestant&Private Respondent herein' and counted in his favor, stillit .as Protestee &Petitioner herein' .ho .on and .asproclaimed as dul!-elected Punong 5aranga! of "unggol,S%7% Pendatun, Maguindanao(

    n% EO Ra('*e& Ma&gee& prepared his Narra$#;e Reor$

    detailing the said incident, among others, involving theinsertion of ballots in lustered Precinct o% 08$#A 08$5(

    C% It .ould be uite preposterous if it .ould be Petitioner&Protestee in the lo.er court' herein .ho .ould cause to:insert9 genuine ballots bearing the name of his opponent,Private Respondent herein% "his .ould either simpl! besuicidal or .ould border the lines of insanit!% In other .ords,$%a$ Pe$#$#o&er "o(* &o$ %a;e a&y o$#;e $o #&ser$ 5ao$s5ear#&g %#s oo&e&$>s 8Pr#;a$e Reso&*e&$ %ere#&: &ae#&s#*e $%e Bao$ Bo3, ese)#ay #' %e 8Pe$#$#o&er: #s ea*#&g$%e )o(&$#&g, s%o(* 5e o($ o' $%e (es$#o&(

    $0% "he *lection Protest .as then set for Preliminar!onference and the parties herein .ere directed b! theHonorable Public Respondent to submit their respectivePreliminar! onference 5riefs(

    $$% During the Preliminar! onference, the Honorable PublicRespondent noted that Petitioner;s &Protestee in the lo.ercourt' counsel did not include in his Preliminar! onference

    5rief, the :procedure to be follo.ed9 in case the election protestor counter-protest see

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    %.Petitioner submitted his Ma'es$a$#o& a&* (s$#'#)a$#o&explaining, primaril!, that he does not see< the examination,verification or re-tabulation of election returns in the contestedprecincts, and that R(e =, Se). 4 8: of the Rules of Proceduremust be read in conBunction .ith R(e =, Se). 1 8: thereof.here it merel! presents a circumstance or situation .herein inthe event that the election protest or counter-protest .ould seeS MAIN AR!UMENTS

    )4% In ans.er to !ro(&* A, Petitioner posits, "H#" -- "#$%a *(e rese)$, $%e Ho&ora5e P(5#) Reso&*e&$)o#$$e* gra;e a5(se o' *#s)re$#o& ao(&$#&g $o a) ore3)ess o' (r#s*#)$#o& "%e& #$ #ss(e* $%e Assa#e* Or*er 'orE3e)($#o& Pe&*#&g Aea *es#$e $%e 'a)$ $%a$ $%ee3e)($#o& "as &o$ (s$#'#e* as $%e ;#)$ory 5y Pr#;a$e

    Reso&*e&$ "as NOT a'es$ #& $%e Aeae* De)#s#o&'or $%e reaso& $%a$ $%e Ho&ora5e P(5#) Reso&*e&$ ---

    I - Failed to consider the entries in the omputeri>edoters; +ist &+' relative to the existence or inexistenceof illiterateA disabled voters .ho ma! have availed ofassisted voting, and instead relied mainl! on the :blan

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    invalidated b! the 55*" in Precinct o% 8$#A 8$5 duringthe counting, despite the fact the integrit! of the ballots.ere alread! violated, and the fresh appreciation ofballots .as not .arranted under the circumstances as this.as not pleaded b! Private Respondent, .ho merel!pra!ed for a :Budicial recount of ballots9, and despite thefact that there .as no evidence presented that .ouldoverturn the validit! of ballots filled-up using assistedvoting(

    - ommitted a 6rave *rror .hen it declared Petitioneras in default for alleged failure to :propose the procedureto be follo.ed9 during the Preliminar! onference eventhough the same is not fatal(

    )C% In ans.er to !ro(&* B, Petitioner posits, "H#" -- .ith alldue respect, Petitioner has perfected his #ppeal and that hepaid #++ the reuired #ppeal Fees as prescribed under theM*+* Rules, as amended(

    PETITIONER>S DETAILED DISCUSSION

    ON !ROUND A

    I #$% a *(e rese)$, $%e Ho&ora5e P(5#) Reso&*e&$)o#$$e* gra;e a5(se o' *#s)re$#o& ao(&$#&g $o a) or

    e3)ess o' (r#s*#)$#o& "%e& #$ #ss(e* $%e Assa#e* Or*er 'orE3e)($#o& Pe&*#&g Aea *es#$e $%e 'a)$ $%a$ $%e e3e)($#o&

    "as &o$ (s$#'#e* as $%e ;#)$ory 5y Pr#;a$e Reso&*e&$ "as NOTa'es$ #& $%e Aeae* De)#s#o& 'or $%e reaso& $%a$ P(5#)

    Reso&*e&$ ##$e* #$s 'o)(s o& $%e s(ose* a) o' e&$r#es #&$%e or$#o& #&*#)a$#&g Ass#s$e* Fo$#&g #& $%e M#&($es o' Fo$#&ga&* Co(&$#&g a&* $%a$ $%ere "as &o e&$#o& o' "%e$%er or &o$$%e Ho&ora5e P(5#) Reso&*e&$ aso $oo #&$o )o&s#*era$#o&

    $%e e&$r#es o' $%e Co($er#Ge* Fo$ers> L#s$ 8CFL: rea$#;e $o $%ee3#s$e&)e o' ##$era$e or *#sa5e* ;o$ers, #' a&y, "%o )as$ $%e#r

    ;o$es $%ro(g% ass#s$ors #& $%e )o&$es$e* re)#&)$s@

    2&. 2hen the Honorable Public Respondent issued its #ssailed8Se)#a: Or*er 'or E3e)($#o& o' (*ge&$ Pe&*#&gAea)), it stated that the decision sou!ht to be executed pendin!

    appeal spea:s for itself* -he decision of this +ourt sou!ht to beexecuted confor%s to the prescribed %andatory for% of a decision in

    ection ; of 84=4754+&In the said decision,

    the defeat of the protestee aud N* alid or the ictory of the

    protestant Norudin 2* $endatun has been clearly established&;'

    %%Annex A.%2upra* Paes , and -.

    &

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    /$% 2hile it ma! be true that the said appealed Decision ofthe Honorable Public Respondent conformed to the prescribedmandator! form under the Rules of Procedure, ho.ever, .ithall due respect, the victor! of Protestant &Private Respondentherein' .as " manifest in the appealed Decision as theHonorable Public Respondent limited its focus in the supposedlac< of entries in the portion indicating oting b! #ssistors in theMinutes of oting and ounting of otes of the contestedprecincts(

    /)% 2ith all due respect, there .as no mention in the saidappealed Decision of .hether or not the Honorable PublicRespondent also too< into consideration the entries in theCo($er#Ge* Fo$ers> L#s$ 8CFL: relative to the existence of

    illiterate andA or disabled voters .ho ma! have cast their votesin the said contested precincts(

    22.In deciding that the ballots for Petitioner herein cannot becredited in his favor, the Honorable Public Respondent ruledthat :it is obiously ?ritten By ne person as seen in the scratches,dents, loops, stro:es and slants* -he %inutes of otin! and countin!

    do not indicate that illiterates and3 or persons with disabilities oted

    throu!h assistors*' It then cited the Supreme ourt;s ruling in

    Balinit v. COMELEC *+.. -o. /&2&&, 0ebruary !, %&&/) indeclaring that the said ballots must be ruled to be of singleauthorship and must be reBected(

    24.#s a matter of fact, all its ruling on the invalidation of ballotscredited in favor of Petitioner herein bore the same notation andthe same citation made in Balinit v. COMELEC3

    /3% nfortunatel!, the M#&($es o' Fo$#&g a&* Co(&$#&g forthe contested precincts cannot be relied upon as these .ere

    mostl! left blan< b! the 5aranga! 5oard of *lection "ellers&55*"', .ith even basic information as serial numbers ofballots or the time .hen the election started and ended leftunaccomplished(

    /@% *xpectedl!, the portion for :oting b! IlliterateA Person.ith Disabilit! &P2D'9, .here the assistors .ere to declareunder oath, to print and sign their names therein, .ere all leftblan< and not accomplished, per copies of the M#&($es o'

    Fo$#&g a&* Co(&$#&g 'or Pre)#&)$s No. 61A+ 61B, 62A+ 62Ba&* 67A24@

    /8% Hence, the M#&($es o' Fo$#&g a&* Co(&$#&g, as the!.ere substantiall! left unaccomplished, could not be reliedupon and could not be a valid basis to determine .hether or notthe ballots bearing the same hand.ritings .ere filled-up b!assistors% In short, the Minutes of oting and ounting .ere

    %4upra* Annexes M% M1+% M1'.

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    readil! attached to the Private Respondent;s *lection Protest asone of his annexes and exhibits, then it .ould be able toreasonabl! ascertain that there a total of roughl! o&e %(&*re*'or$y-&e 814=:registered illiterate andA or disabled voters .hoactuall! voted in the protested precincts during the 5aranga!*lections in 5rg!% "onggol, 6en% S%7% Pendatun, Maguindanao(

    1$% 5ased from the said computation, the fact that there .ere14= ##$era$e+ *#sa5e* ;o$ers .ho actuall! voted in thesecontested precincts .ould alread! support the premise that theo&e %(&*re* ee;e& 8111: ;o$esthat .ere invalidated b! theHonorable Public Respondent during the revision proceedingsfrom the votes previousl! credited to Petitioner herein&Protestee in the lo.er court' on the ground that the same .ere

    :.ritten b! one person9, could ver! .ell be resulting from avalidl!-obtained assisted voting, as can be readil! verified fromboth the Co($er#Ge* Fo$ers> L#s$ 8CFL: and Ee)$#o& DayCo($er#Ge* Fo$ers> L#s$ 8EDCFL:@

    1)% "hat the Honorable Public Respondent could readil!obtain the said omputeri>ed oters; +ist &+' from either theProvincial *lection Supervisor of Maguindanao or the *lectionfficer of 6en% S%7% Pendatun, Maguindanao cannot beundermined since it even reuested for the :securit! mar L#s$8CFL:, then it follo.s that the victor! of the Protestant &PrivateRespondent herein' and the defeat of the Petitioner herein&Protestee in the lo.er court' are unclear and not manifest inthe said Decision(

    2

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    4'.In the more recent ruling in Leonor Dangan-Corral v. COMELEC[En Banc, G.R. No. 190156, Feb. 12, 2010], the Supreme ourtdeclared, thus ---

    A valid exercise of discretion to allow execution

    pending appeal requires that it must be manifest in the decision

    sought to be executed that the defeat of the protestee and the

    victory of the protestant have been clearly established. The

    Rules of Procedure in Election Contests now embody this

    doctrine, which the Comelec has in the past given value to and

    used in resolving cases before it, and which has formed part of

    our jurisprudence.

    xxxxxxxxx

    In the present case, the victory of the protestant and the

    defeat of the protestee were not clearly established in the

    Decision because of the RTCs failure to conform to the

    prescribed form of the Decision. Because of said infirmity,

    there is no certainty, it not being mentioned in the Decision, on

    whether the ballots of those who voted through assistors were

    also invalidated or not, in conjunction with the lack of a

    specific number of ballots invalidated for being written by one

    person. The ballots of those who voted through assistors, if

    any, could validly be written by one person. It being unclearfrom the Decision whether these ballots, if any, were

    invalidated, it follows that the victory of the protestant and

    defeat of the protestee are unclear and not manifest therein.

    Consequently, to allow the execution of such a grossly

    infirm RTC Decision in disregard of established jurisprudence

    and clear and straightforward rules is arbitrary and whimsical

    and constitutes grave abuse of discretion amounting to lack or

    excess of jurisdiction.

    4#.#lso, in the eparate +oncurrin! pinion of Mr% Eustice #ntonio "%arpio inanother more recent ruling inMendo7a v. COMELEC*En Banc,+.. -o. !&4, 1arch %', %&&), the good Mr% Eusticearpio declared, thus ---

    I vote to grant the petition solely on the ground of

    the incomplete appreciation of the contested ballots, and

    not on the ground that the decision of the COMELEC

    Second Division was abandoned, resulting in the dismissalof the election protest, when the COMELEC En Banc

    failed to reach a majority decision. (emphasis ours'

    The fundamental reason for granting the petition

    is the incomplete appreciation of the contested ballots.

    Section 211 of Batas Pambansa Blg. 881 (BP 881),

    otherwise known as the Omnibus Election Code of the

    Philippines, states that [i]n the reading and appreciation of

    4

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    ballots, every ballot shall be presumed to be valid unless

    there is a clear and good reason to justify its rejection. It is

    therefore imperative that extreme caution be exercised

    before any ballot is invalidated, and in the appreciation of

    ballots, doubts should be resolved in favor of their validity.

    For after all, the primary objective in the appreciation of

    ballots is to discover and give effect to the intention of the

    voter and, thus, preserve the sanctity of the electoralprocess. (emphasis supplied'

    4/.In another recent ruling in #elos 8e9es v. COMELEC *En Banc,+.. -8. /&&/&, 0eb. %, %&&/%!), the Supreme ourt li

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    II #$% a *(e rese)$, $%e Ho&ora5e P(5#) Reso&*e&$)o#$$e* gra;e a5(se o' *#s)re$#o& ao(&$#&g $o a) or

    e3)ess o' (r#s*#)$#o& "%e& #$ #ss(e* $%e Assa#e* Or*er 'orE3e)($#o& Pe&*#&g Aea *es#$e $%e 'a)$ $%a$ $%e e3e)($#o&

    "as &o$ (s$#'#e* as $%e ;#)$ory 5y Pr#;a$e Reso&*e&$ "as NOTa'es$ #& $%e Aeae* De)#s#o& 'or $%e reaso& $%a$ P(5#)

    Reso&*e&$, #& ro(ga$#&g #$s Aeae* De)#s#o&, r(e* $%a$$%ere "ere aege*y 4

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    8$5% #s a matter of fact, even the Honorable PublicRespondent also ac

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    point, the Honorable Public Respondent alread! committed aserious mathematical error, and its succeeding :computations9,no matter ho. exhaustive the! ma! seem, .ere also erroneousas the! .ere premised on a .rong number of ballotssupposedl! released to the said contested precinct, .hich is:1309 ballots% 2ith all due respect, perhaps even theHonorable Public Respondent .as confused .ith the seemingl!:irreconcilable9 computations that confronted it resulting fromthe increase in the number of :unaccountable9 ballots, .hich.ere dra.n from the 5allot 5ox(

    '#. Hence, based from the said .rongl! premised computations ofthe total number of fficial 5allots issued for Precinct o% 8$#A8$5, the Honorable Public Respondent proceeded to conduct a

    ph!sical examination of all $%ree %(&*re* se;e&$y-e#g%$ 876:5ao$s &computed as /$31$ballots as dra.n from the 5allot5ox plus @/ ballots that .ere also seen inside the 5allot 5oxbut .hich .ere earlier excluded b! the 55*" during thecounting', and from there, deducted several valid and officialballots earlier credited to Petitioner herein &as Protestee in thelo.er court' on the premise that the same .as :.ritten b! oneperson9(

    38% "he same .as also true for C(s$ere* Pre)#&)$s No.62A+ 62B and 67A, .herein the Honorable Public Respondentli

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    3C% In the said COMELEC C.E. or No. 14, it is ver! clearthat the follo.ing .ere the a)$(a &(5er o' O''#)#a Bao$s"#$% $%e#r )orreso&*#&g Ser#a N(5ers that .ere releasedto the three &/' contested precincts, thus ---

    Ta5e 2 N(5er o' Bao$s A)$(ay Reease*To $%e C(s$ere* Pre)#&)$s o' Brgy. To&ggo, S9P, Mag(#&*a&ao

    A&* $%e )orreso&*#&g Ser#a N(5ers o' Bao$s erC(s$ere* Pre)#&)$ 5ase* o& COMELEC C.E. or No. 14

    C(s$ere*Pre)#&)$ No.

    No. o' O''#)#a Bao$sA)$(ay Reease* o&

    Ee)$#o& Da

    y

    Ser#a N(5ers o'Bao$s Reease* o&

    Ee)$#o& Day

    8$#A 8$5 /3@ 00$)/3@ 00$)8$$8)#A 8)5 )C$ 00$)8$) 00$/00)

    8/# $01 00$/00/ 00$/$0@

    "otal 6

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    erroneous computation of a .rong premise, the same could notalso be independentl! verified from an! M*+* source(

    @/% In addition, for C(s$ere* Pre)#&)$ No. 62A+ 62B, theHonorable Public Respondent also declared that eleven &$$'used upper stubs and lo.er stubs bearing SN 0012601 $o001261147 .ere allegedl! :missing9% Ho.ever, a cursor!verification of M*+* %*% Form o% $1 or the ertificate ofReceipt of fficial 5allots .ould clearl! sho. that these eleven&$$' supposedl! :missing9 ballots .ere actuall! issued andreleased to C(s$ere* Pre)#&)$ No. 61A+ 61B% ote that theending serial number for said precinct .as SN 001261144,.hich corresponds to the ending serial number of thesupposedl! :missing9 stub in Precinct o% 8)#A 8)5(

    #4.#lso, the Honorable Public Respondent declared that t.o &)'official ballots bearing SN 0017001 $o 00170024

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    @@% Indeed, if onl! the Honorable Public Respondent verifiedits computations from the ertificate of Receipt of fficial5allots &M*+* %*% Form o% $1', it .ould not have madeseveral erroneous computations and assumptions of thesupposedl! actual number of fficial 5allots issued to thecontested precincts(

    @8% Ho.ever, the said #ppealed Decision .as bereft of an!mention that the Honorable Public Respondent resorted to averification of the fficial 5allots actuall! released to thecontested clustered Precincts b! the Municipal "reasurer;sffice of 6en% S%7% Pendatun, Maguindanao% It .ould onl!sho. that the Honorable Public Respondent did not considerother competent sources of information in order to verif! the

    correct number of 5allots released to the contested precincts(

    #.ertainl!, in general, if the Honorable Public Respondent .ouldhave based its ph!sical examination of ballots for the three &/'contested precincts on C30 supposedl! issued ballots, then it.ould necessaril! include in its erroneous computations, the @/inserted and excess ballots bearing the name of PrivateRespondent &Protestant in the lo.er court', and in the end,.ould have un.ittingl! and un

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    a&* $%e &(5er o' ;o$ers "%o a)$(ay ;o$e* #& Pre)#&)$ No.61A+ 61B@

    80% Petitioner herein most respectfull! repleads b! referenceall his previous assertions as the! are relevant and applicable(

    /.#s previousl! argued, since the Honorable Public Respondentbased its ph!sical examination of ballots for lustered Precincto% 8$#A 8$5 on the 130 supposedl! issued ballots, then it.ould have necessaril! included in its erroneous computations,the sixt!-three &@/' inserted and excess ballots bearing thename of Private Respondent &Protestant in the lo.er court',and in the end, it .as not Bust a case of non-appreciation ofvotes, but a literal increase or padding of votes (da!da!4

    bawas'in the local parlance' in favor of Private Respondent, tothe preBudice of Petitioner herein(

    8)% It must be recalled that the Honorable Public Respondentrightl! observed that there .ere $"o %(&*re* &e$y-$%ree82=7: #e)es (se* o"er s$(5s4found and counted .ith theircorresponding serial numbers% pon cursor! verification, thesefigures actuall! correspond to the total number of voters .hoactuall! voted per the individual signatures and thumbprints of

    voters as appearing in the Ee)$#o& Day Co($er#Ge*Fo$ers> L#s$ 8EDCFL:4=.herein it can be seen that there .ere2=7 a)$(a s#g&a$(res a&* $%(5r#&$s o' ;o$ers , and .hich.ere actuall! the same set of documents adopted fromProtestant;s &Private Respondent herein' o.n evidence andattached to his Ee)$#o& Pro$es$30(

    8/% Perforce, #' $%ere "ere o&y 2=7 ;o$ers "%o a)$(ay;o$e* #& C(s$ere* Pre)#&)$ No. 61A+ 61B, %o" *#* $%eHo&ora5e P(5#) Reso&*e&$ )oe ( "#$% o$%er '#g(res,

    &o$a5y 7? or 76 ;o$es

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    )he said computation can be veri%ied as %ollows

    )% 5allots found inside the 5allot 5oxduring Revision of Precincts 8$#A 8$5 - /$33/

    #ddG 5allots that .ere dropped into"he ballot box during theounting and claimed b!Protestant, .hich .as also foundDuring Revision - @/31

    "otal 5allots found 76 5ao$sJJJJJJJJJJ

    -sing the derivative %igures o% /0 ballots,

    the %ollowing were the actual #e1cess$ballots discovered inside the *allot*o1 during Revision proceedings

    /% "otal 5allots found inside the 5allot 5oxverified from the number of votes received b!all candidates &computations $ and ) above' - /84+essG umber of oters .ho actuall! voted - )C/33

    et :*xcess9 5allots < 5ao$sFound inside the 5allot 5ox JJJJJJJJJJ

    /'. Put differentl!, .hen the revisors opened the 5allot 5ox inlustered Precinct o% 8$#A 8$5, the! .ere confronted b! thefact that there .ere e#g%$y-'#;e 8

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    election despite the presence of the Kexcess; ballots that .ereearlier dropped during the bro.nout, but .hich .ere notcompletel! excluded from the counting(

    88% 5ut it still does not ans.er the uestion as to ho. did theHonorable Public Respondent Bustifi! the presence of /84ballots inside the 5allot 5ox during revisionL 5! declaring,albeit erroneousl!, that the total ballots issued to lusteredPrecinct o% 8$#A 8$5 .ere 4

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    Protestant &Private Respondent herein' but a case of 43additional ballots literall! appearing out of no.here, resulting ina drastic increase of votes in favor of Private Respondent, tothe preBudice of Petitioner herein(

    4)% onseuentl!, .ith all due respect, to allo. the executionof such grossl! infirm #ppealed Decision b! the HonorablePublic Respondent based on an erroneous computation ofballots, .hich resulted in the inclusion of the other.ise excessballots in the ph!sical examination of ballots in the contestedprecinct and in disregard of the actual number of fficial 5allotsactuall! released to the contested lustered Precincts isarbitrar! and .himsical, and constitutes grave abuse ofdiscretion amounting to lac< or excess of Burisdiction(

    IF - #$% a *(e rese)$, $%e Ho&ora5e P(5#) Reso&*e&$)o#$$e* gra;e a5(se o' *#s)re$#o& ao(&$#&g $o a) or

    e3)ess o' (r#s*#)$#o& "%e& #$ #ss(e* $%e Assa#e* Or*er 'orE3e)($#o& Pe&*#&g Aea *es#$e $%e 'a)$ $%a$ $%e e3e)($#o&

    "as &o$ (s$#'#e* as $%e ;#)$ory 5y Pr#;a$e Reso&*e&$ "as NOTa'es$ #& $%e Aeae* De)#s#o& 'or $%e reaso& $%a$ P(5#)Reso&*e&$ )o&*()$e* a 'res% are)#a$#o& o' 5ao$s #& $%e

    )o&$es$e* re)#&)$s *es#$e $%e 'a)$ $%a$ #$ ear#er )o&'#re* $%a$#&;a#* 5ao$s "ere *roe* #&$o $%e Bao$ Bo3 o' Pre)#&)$ No.61A+ 61B, "%#)% "o(* ea* $o a )o&)(s#o& $%a$ $%e #&$egr#$y o'

    $%e 5ao$s "ere area*y ;#oa$e*@ a&* e;e& $%o(g% $%e 'res%are)#a$#o& o' 5ao$s "ere &o$ "arra&$e* (&*er $%e

    )#r)(s$a&)es as #$ "as &o$ raye* 'or 5y Pr#;a$e Reso&*e&$,a&* $%a$ &o e;#*e&)e "as rese&$e* $o o;er$(r& $%e res($#o&

    $%a$ $%ere "ere 5ao$s '#e*-( (s#&g ass#s$e* ;o$#&g@

    4/% Petitioner herein most respectfull! repleads b! reference

    all his previous assertions as the! are relevant and applicable(

    4.In rendering its #ppealed Decision, the Honorable PublicRespondent noted that alle!ations of parties indicated that therewere ballots dropped or stuffed into the ballot boxes durin! the

    countin! when a brown out occurred and despite of the fact that there

    were ballots drawn, still the parties are uncertain whether the drawn

    ballots corresponded to the nu%ber of ballots ille!ally dropped*#'*

    #fter several mathematical computations, the Honorable Public

    Respondent observed that this fact supports the alle!ations ofprotestant &Private Respondent herein' that his otes wereexcluded fro% the countin!* -his also explains why there are excess

    and %issin! ballots as discoered based on %athe%atical erification

    of data#%'6

    #Annex I% Pae +'.#%upra* Pae +,.

    %'

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    '."hen the Honorable Public Respondent proceeded that thedata reflected in the election returns cannot be used to !au!e the true

    results of the elections in -on!!ol, .en* */* $endatun,

    0a!uindanao* -he ano%alies bein! perpetrated durin! the countin!,

    it is presu%ed that the ballots are still credible eidence than the

    election returns#2*'$rotestant &Private Respondent herein'clai%ed that all the 75" ballots under his na%e %ust be credited in

    his faor and the ballots in the na%e of $rotestee &Petitioner herein'be inalidated for bein! written by one person* -hus, there is a need

    to subect the ballots to appreciation pursuant to the rules on

    appreciation of ballots#4*'&+learly, the ano%alies as stated were

    all done durin! the countin! of otes and not after the elections* It is

    but lo!ical that the ballots shall be exa%ined and appreciated to

    deter%ine which ballots are authentic and for who% shall the ballots

    be credited* It has been held that the ballots are the best eidence ofthe will of the electorate"5'6

    4@% Hence, the Honorable Public Respondent made a freshappreciation of ballots based on the claims and obBections ofProtestant;s &Private Respondent herein' revisor(

    48% #fter the fresh appreciation of ballots for the three &/'protested precincts, the ne. tabulation of votes sho.ed that

    Petitioner &Protestee in the lo.er court' onl! had a total of 12=valid votes, .hile Private Respondent &Protestant in the lo.ercourt' received a total of 1

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    returns, the court shall order such revision of ballots or

    eBamination, verification or re@tabulation of election

    returns. 7he court shall proceed to render judgment based

    on the results of the revision or eBamination, verification

    or re@tabulation of election returns. ;uring the revision or

    eBamination, verification or re@tabulation of election

    returns, only the revisors of the protestant may participate.

    7he protestee or duly authoriEed representative has the

    right to be present and observe the proceedings without the

    right to object and make claims to ballots and election

    returns.

    C0% pon the other hand, R(e =, Se). ? of the said Rulesalso provides, thus ---

    =EC. . Effe:t of failure to appear.@ F 7he

    failure of the protestee or counsel to appear at the

    preliminary conference shall have the same effect as

    provided in 5ection 4$c(, ule 4 of these ules, that is, the

    court may allow the protestant to present evidence eB parte

    and render judgment based on the evidence presented.

    !.Hence, .hen R(e 4, Se). 4 8) :is invo

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    .as not overturned, in that the said ballots, even if it appearsthat the! bore the same hand.riting, could not be unilaterall!invalidated, other.ise, the same .ould contradict thedisputable presumption that the said ballot or ballots .ere.ritten b! assistor or assistors as clearl! provided for in R(e17, Se). ? 8) :84: of the same Rules(

    C1% In addition, .hen the Honorable Public Respondent .asconfronted .ith the fact that there .ere :excess9 ballots, .hich.ere earlier dropped and inserted in lustered Precinct o%8$#A 8$5, a matter, .hich the Honorable Public Respondentreadil! admitted% "hus, .ith the proliferation of :excess9genuine ballots inside the 5allot 5ox, the Honorable PublicRespondent could not have reasonabl! determined if these

    ballots that .ere found during the revision proceedings .erethe same ballots that .ere cast b! the voters and counted b!the 55*" in the elections(

    !'. It must be emphasi>ed that the Honorable Public Respondentrepeatedl! mentioned that the ballots .ere the :best evidence9of the .ill of the electorate@@% Ho.ever, .ith all due respect, indetermining the ballots to be :best evidence9, the HonorablePublic Respondent should have reasonabl! ascertained thatthe ballots found during revision .ere the ver! same ballotscast b! voters and counted b! the 55*"(

    C@% T%e 'a)$ $%a$ $%e Bao$ Bo3es eas#y oe&e* *(r#&g$%e re;#s#o& ro)ee*#&gs (s#&g $%e eys ro;#*e* 5y $%eBBET *#* &o$ )a$egor#)ay ea& $%a$ $%e #&$egr#$y o' $%e5ao$ 5o3es a&* $%a$ o' $%e 5ao$s "ere &o$ ;#oa$e*% ponthe other hand, .hen both Petitioner and Private Respondentasserted &and the Honorable Public Respondent li

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    b% the number of used lo.er stubs &)C/ stubs' and unusedtorn ballots &3/ ballots'(

    c% the number of voters as appearing in the *lection Return&/// voters'(

    --- all point to the obvious fact that the 5allot 5ox forPre)#&)$ No. 61A+ 61Bhad been violated, and the ballotscontained therein, .ere alread! tampered(

    C4% 2ith all due respect, based on the foregoingdiscrepancies, the uestion of .hether the ballots during therevision proceedings could be relied on as the same ones castand counted during the elections could not obviousl! be settled

    b! a ph!sical examination of the ballots themselves% learl!,the determination of .hich of the said ballots .ere authentic orspurious or .hich ballot should be credited to .hom N a detailof utmost importance N could not possibl! have beendetermined b! that means(

    CC% #s there .as no mention in the #ppealed Decision of thefact that the Honorable Public Respondent .as reasonabl!satisfied that the ballots found in the 5allot 5ox .ere the sameballots cast b! the voters and counted b! the 55*", there .asno legal nor factual basis to resort to a ph!sical examination ofballots found inside the 5allot 5ox, and more so, in determining.hether the said ballot .as :genuine9 simpl! b! declaring that it.as not :.ritten b! one person9(

    $00% In addition, as reasonable suspicion exists that theintegrit! of the 5allot 5ox in lustered Precinct o% 8$#A 8$5had been violated and that the ballots therein .ere tampereddue to an insertion of several invalid ballots, the Honorable

    Public Respondent should not have relied on the ballotsthemselves, but on the results as reflected in the *lectionReturns, as the same appeared to have maintained its integrit!(

    &. In the recent ruling in Varias v. COMELEC *En Banc, +..-o. !&/, 0ebruary , %&/), the Supreme ourt li

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    should not have relied on the ballots but on the results

    reflected in the election returns. 7hus, the 3on #venue, otabato otabato #pril /0, )0$1

    I execute this #ffidavit pursuant to and in accordance .ith Sections / and

    3 in relation to section $0 of Rule $/ of the $CC8 Revised Rules of ourt as proofof service of the aforesaid Petition%

    "hat pursuant to section $$ of Rule $/ of the $CC8 Rules of ivilProcedures, mail service is resorted to in filing copies of this Memorandum to theHonorable ommission on *lections and also in furnishing copies of the saidMemorandum to the public and private respondents in vie. of lac< of materialtime and lac< of messengerial staff to effect personal service%

    In .itness .hereof, I am executing this #ffidavit to attest to the truth of theforegoing facts this Ar# 70, 2014in otabato it!, Philippines%

    MARILOU C. !ADAIN!AN, MPA#ffiant

    SUBSCRIBED AND SORNto before me this #pril /0, )0$1 in otabatoit!, b! the affiant, .ho is personall!

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    "han< !ou%

    EREMIAH C. COMPLETANO, CPAounsel for Petitioner

    Roll of #ttorne!s o% 140$@P"R o% 4//18$), 0$-0)-$1, ot% it!

    I5P +ifetime Member o% 0$08$8M+* ert% os% &III' 0000)0)( Sept% $4, )004(

    &I' 0000C$@( Dec% $1, )0$0!O, BALLE/UE AND COMPLETANO LA OICES

    $@@5 Puretan 5uilding, Sinsuat #venue, otabato it! C@00gbcOla.!ahoo%comA &0@1' 1)$ )$C4

    E3a&a$#o&

    Deliver! of service to this Honorable ommission, PrivateRespondent;s ounsel and to Public Respondent b! Reg#s$ere* Ma#.as resorted to due to lac< of material time, and due to lac< ofmessengerial staff of Petitioner;s counsel to underta


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