515 Phil. 458
Before this Court is a petition for certiorari
assailing the Resolution
of the Commission on Elections ("COMELEC") First Division in SPC No. 04-233 and Resolution No. 7257
of the COMELEC En Banc. The COMELEC promulgated the two Resolutions on 29 June 2004.
The Antecedent Facts
Jeffrey L. Santos ("Santos") and Macario E. Asistio III ("Asistio") were candidates for the position of Councilor for the Second District of Caloocan City in the 10 May 2004 Elections. On 18 May 2004, the City Board of Canvassers proclaimed Asistio as councilor-elect for the Second District of Caloocan City. Based on the Canvass of Election Returns and the Statement of Votes, Asistio garnered 45,163 votes and secured the sixth and last slot for the position of Councilor while Santos placed seventh with 44,558 votes.
On 28 May 2004, Santos filed with the COMELEC a Petition, docketed SPC No. 04-233, for Annulment of Proclamation on the Basis of Erroneous Canvass/Tallies of Votes. Santos alleged that he was a victim of "dagdag-bawas"
and that his votes were reduced in the Statement of Votes while Asistio's votes were increased. Santos further alleged that based on the certified true copies of the NAMFREL's
election returns as well as the Certificates of Votes submitted by the poll watchers in the Second District of Caloocan City, he obtained 46,361 votes while Asistio garnered only 45,514 votes. Santos prayed for the nullification of the proclamation of Asistio and for his declaration as the duly elected Councilor of the Second District of Caloocan City.
The Ruling of the COMELEC First Division
In a Resolution promulgated on 29 June 2004, the COMELEC First Division dismissed SPC No. 04-233 for lack of merit.
The COMELEC First Division ruled that: (1) Santos' lack of watchers and counsel during the early stages of the canvassing proceedings is not a proper ground for the annulment of Asistio's proclamation; (2) the documents submitted by Santos, consisting of a compilation and tabulation of votes which he himself prepared, and which he based on certified true copies of NAMFREL's election returns and the originals of various Certificates of Votes submitted by the poll watchers, are not admissible in evidence; and (3) Santos should have assailed the proceedings via
a pre-proclamation controversy, or through an election protest within ten days after the proclamation of Asistio, instead of a petition for annulment of proclamation.
On 29 June 2004, or on the same date of the promulgation of the Resolution by the COMELEC First Division, the COMELEC En Banc promulgated Resolution No. 7257, as follows:
RESOLUTION NO. 7257
(OMNIBUS RESOLUTION ON PENDING CASES)
WHEREAS, in connnection with the May 10, 2004 National and Local Elections, various petitions docketed as Special Actions, Special Cases and Special Proceeding Cases and other contentious cases were filed with the Office of the Clerk of the Commission;
WHEREAS, the second paragraph of Sec. 16, Republic Act No. 7166, provides:
"All pre-proclamation cases pending before the Commission shall be deemed terminated at the beginning of the term of office involved and the rulings of the boards of canvassers concerned shall be deemed affirmed, without prejudice to the filing of a regular election protest by the aggrieved party. However, proceedings may continue when on the basis of the evidence thus far presented, the Commission determines that the petition appears meritorious and accordingly issues an order for the proceeding to continue or when appropriate order has been issued by the Supreme Court in a petition for certiorari."
WHEREAS, the Commission has disposed of the pre-proclamation and other cases brought before it for adjudication, except those whose disposition requires proceedings extending beyond 30 June 2001;
NOW, THEREFORE, by virtue of its powers under the Constitution, the Omnibus Election Code, Batas Pambansa Blg. 881, Republic Act Nos. 6646 and 7166, and other election laws, the Commission RESOLVED, as it hereby RESOLVES:
ACCORDINGLY, it is hereby
ordered that the proceedings in the cases appearing on the list annexed
and made an integral part hereof, be continued to be heard and disposed
of by the Commission.
- All cases which were filed by private parties without timely payment of the proper filing fee are hereby dismissed;
- All cases which were filed beyond the reglementary period or not in the form prescribed under appropriate provisions of the Omnibus Election Code, Republic Act Nos. 6646 and 7166 are hereby likewise dismissed;
- All other pre-proclamation cases which do not fall within the class of cases specified under paragraphs (1) and (2) immediately preceding shall be deemed terminated pursuant to Section 16, R.A. 7166 except those mentioned in paragraph (4). Hence, all the rulings of boards of canvassers concerned are deemed affirmed. Such boards of canvassers are directed to reconvene forthwith, continue their respective canvass and proclaim the winning candidates accordingly, if the proceedings were suspended by virtue of pending pre-proclamation cases;
- All remaining pre-proclamation cases, which on the basis of the evidence thus far presented, appear meritorious and/or are subject of orders by the Supreme Court or this Commission in petitions for certiorari brought respectively to them shall likewise remain active cases, thereby requiring the proceedings therein to continue beyond 30 June 2004, until they are finally resolved; and
- All petitions for disqualification, failure of elections or analogous cases, not being pre-proclamation controversies and, therefore, not governed by Sections 17, 18, 19, 20, 21, and particularly, by the second paragraph of Sec. 6, Republic Act No. 7166, shall remain active cases, the proceedings to continue beyond June 30, 2004, until the issues therein are finally resolved by the Commission;
This resolution shall take effect immediately.
Annexed to Resolution No. 7257 is a list of cases
that shall remain active before the COMELEC until their final resolution. SPC No. 04-233 is not included in the list.
On 9 July 2004, Santos filed with the COMELEC En Banc a motion for the reconsideration assailing the COMELEC First Division's Resolution.
On 30 August 2004, Santos filed before this Court a petition for certiorari
assailing the 29 June 2004 Resolution of the COMELEC First Division and
Resolution No. 7257 of the COMELEC En Banc.
In his Comment on the petition, Asistio accused Santos of forum shopping. Asistio informed the Court that the COMELEC En Banc only disposed of Santos' motion for reconsideration in its Order of 15 September 2004 when it affirmed the 29 June 2004 Resolution of the COMELEC First Division. Hence, at the time of the filing of the petition for certiorari
before this Court, Santos' motion for reconsideration was still pending before the COMELEC En Banc.
Santos, in his Reply to Asistio's Comment, maintains that he is not guilty of forum shopping because the petition before the Supreme Court only challenges Resolution No. 7257 and not
the 29 June 2004 Resolution of the COMELEC First Division. Santos further argues that by excluding SPC No. 04-233 from the list of cases annexed to Resolution No. 7257, the COMELEC En Banc effectively terminated the case to its finality. Santos claims that he only learned on 22 July 2004 of the exclusion of SPC No. 04-233 from the list of cases, after the petition before this Court had been filed. However, he admits that Resolution No. 7257 was published in the Philippine Daily Inquirer on 30 June 2004.
The issues for resolution of this Court are:
- Whether Santos is guilty forum shopping;
- Whether the COMELEC First Division committed grave abuse of discretion in dismissing SPC No. 04-233;
- Whether the COMELEC En Banc committed grave abuse of discretion in excluding SPC No. 04-233 from the list of cases annexed to Resolution No. 7257.
The Ruling of This Court
The petition has no merit.
Santos is Guilty of Forum-Shopping
Forum shopping is an act of a party, against whom an adverse judgment or order has been rendered in one forum, of seeking and possibly securing a favorable opinion in another forum, other than by appeal or special civil action for certiorari
It may also be the institution of two or more actions or proceedings grounded on the same cause on the supposition that one or the other court would make a favorable disposition.
In this case, Santos filed the petition for certiorari
before this Court during the pendency of his motion for reconsideration with the COMELEC En Banc. The petition clearly states that he is questioning the two Resolutions issued by the COMELEC: the 29 June 2004 Resolution of the COMELEC First Division in SPC No. 04-233 and
the COMELEC En Banc Resolution No. 7257.
It was only when Asistio, in his Comment, called the Court's attention that Santos now belatedly asserts that he only seeks to challenge COMELEC Resolution No. 7257 and not the Resolution of the COMELEC First Division.
Santos stated in his petition before this Court that on 9 July 2004, he filed a motion for reconsideration of the COMELEC First Division's Resolution. However, he did not disclose that at the time of the filing of his petition, his motion for reconsideration was still pending before the COMELEC En Banc. Santos did not also bother to inform the Court of the denial of his motion for reconsideration by the COMELEC En Banc. Had Asistio not called this Court's attention, we would have ruled on whether the COMELEC First Division committed grave abuse of discretion in dismissing SPC No. 04-233, which is one of the issues raised by Santos in this petition. This act of Santos alone constitutes a ground for this Court's summary dismissal of his petition.
The Resolution of the COMELEC First Division has attained Finality
Had this Court been apprised at the outset of the pendency of Santos' motion for reconsideration before the COMELEC En Banc, it would have dismissed the petition outright for premature filing. When the COMELEC En Banc finally resolved the motion for reconsideration, Santos no longer elevated the denial of his motion before this Court. He could no longer do that without exposing his act of forum shopping. Thus, by Santos' inaction, the Order of the COMELEC En Banc is now final and executory.
The Exclusion of SPC No. 04-233 in the List of Cases
Annexed To Resolution No. 7257 has become Moot
Contrary to Santos' claim, the COMELEC En Banc did not dismiss outright SPC No. 04-233 even though the case was excluded in the list annexed to Resolution No. 7257. The COMELEC First Division in fact resolved SPC No. 04-233. When Santos filed a motion for reconsideration, the COMELEC En Banc accepted, considered and disposed of the motion. Hence, the issue of whether the COMELEC En Banc committed grave abuse of discretion in excluding SPC No. 04-233 in the list of cases annexed to Resolution No. 7257 is now moot since the COMELEC in fact accepted, considered and disposed of SPC No. 04-233. WHEREFORE,
the petition.SO ORDERED.
Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, and Garcia, JJ., concur.
Under Rule 65 of the 1997 Rules of Civil Procedure.
 Signed by Presiding Commissioner Rufino S.B. Javier and Commissioner Resurreccion Z. Borra. Rollo, pp. 118-124.
Signed by COMELEC Chairman Benjamin S. Abalos, Sr., and Commissioners Rufino S.B. Javier, Mehol K. Sadain, Resurreccion Z. Borra and Florentino A. Tuason, Jr. Rollo, pp. 32-35. 
National Citizen's Movement for Free Elections, a COMELEC-accredited citizens' arm for the elections.
Rollo, pp. 32-34. Ibid.
, pp. 36-66.
Repol v. Commission on Elections, G.R. No. 161418, 28 April 2004, 428 SCRA 321. Ibid.
Rollo, pp. 14-15. Ibid.
, p. 238.