550 Phil. 395
AZCUNA, J.:
The Commission (First Division) painstakingly examined every piece of evidence from the records and used the applicable rules on appreciation of ballots enumerated under Section 49 of Resolution No. 4846 (Rules and Regulations on the Conduct of the July 15, 2002 Synchronized Barangay and SK Elections) and other applicable jurisprudence....On May 8, 2006, petitioner filed a motion for reconsideration, while on the next day or on May 9, 2006, private respondent filed a motion for execution pending appeal.x x x
The protestee-appellant DOLORIEL leads with a margin of 28 votes over the protestant-appellee SALAZAR.
WHEREFORE, premises considered, the Commission (First Division) RESOLVED as it hereby RESOLVES to GRANT the herein appeal. The decision of [the] Municipal Trial Court In Cities, Bislig City, Surigao del Sur, dated December 10, 2003 is hereby REVERSED and SET ASIDE.
Consequently, Protestant-Appellant MIGUELA M. DOLORIEL is hereby DECLARED the duly elected Barangay Chairman in Barangay Poblacion, Bislig City, Surigao del Sur, during the July 15, 2002 Synchronized Barangay and Sangguniang Kabataan elections.
SO ORDERED.[4]
Based on the above findings[,] only six (6) ballots of the protestee contested by the protestant is invalidated, therefore the final tally is one thousand three hundred ninety eight (1398) votes for protestee-appellant Doloriel and one thousand three hundred seventy six (1376) votes for protestant-appellee Salazar. Protestee-appellant Doloriel leads with a margin of twenty two (22) votes over the protestant-appellee Salazar.Hence, this petition based on the following grounds:
WHEREFORE, premises considered, the Commission's (First Division) Resolution promulgated in April 18, 2006 is hereby AFFIRMED with modification as to the final number of votes obtained by the parties.
SO ORDERED.[5]
Briefly, the issue is whether the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in ruling that private respondent is the duly elected Punong Barangay of Barangay Poblacion, Bislig City, Surigao del Sur.
- The COMELEC (First Division) committed grave abuse of discretion amounting to lack or excess of jurisdiction in rendering its questioned Resolution dated April 18, 2006 in EAC No. 02-2004 reversing the December 10, 2003 Decision of the Municipal Trial Court in Cities, Bislig City, Surigao del Sur in Election Protest Case No. 03 and thereby validating several ballots in favor of Miguela M. Doloriel, said questioned Resolution not being supported by evidence on record and is not in accordance with law.
- The COMELEC (en banc) committed grave abuse of discretion amounting to lack or excess of jurisdiction in rendering its questioned Resolution denying the herein petitioner David K. Salazar's Motion for Reconsideration and affirming with modification the said questioned Resolution of the COMELEC (First Division) dated April 18, 2006 in EAC No. 02-2004, such resolution being clearly without basis in fact and in law.
(b) Where the first name of a candidate is written on the ballot which when read has a sound similar to the surname of another candidate, the vote shall be counted in favor of the candidate with such surname.While both the Division and the COMELEC en banc had similar findings as regards the winning candidate, the Court agrees with the COMELEC en banc in invalidating the six (6) ballots for protestee-appellant Doloriel for the reason that four of the ballots were marked[8] and the rest were written by two distinct persons.[9]
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(i) When in a space in the ballot there appears a name of a candidate that is erased and another clearly written, the vote is valid for the latter.
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(l) Ballots which contain prefixes such as "Sir", "Mr.", "Datu", "Don", "Ginoo", "Hon", "Gob", or suffixes like "Hijo", "Jr.", "Segundo" (sic) are valid;
(m) The use of nicknames and appellations of affection and friendship, if accompanied by the first name or surname of the candidate, does not annul such vote, except when they are used as a means to identify the voter, in which case the whole ballot is invalid. Provided, that if the nickname used is unaccompanied by the name or surname of a candidate and it is one by which he is generally or popularly known in the locality, the name shall be counted in favor of the said candidate for the same office with the same nickname;. . .
(o) Any ballot written with crayon, lead, pencil or ink wholly or in part shall be valid;
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(r) If the candidates voted for exceeded the number of those to be elected, the ballot is valid, but the votes shall be counted only in favor of the candidates whose names were firstly written by the voter within the spaces provided for said office in the ballot until the authorized number is covered;
(s) Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a candidate for an office for which he did not present himself shall be considered as a stray vote, but it shall not invalidate the whole ballot;
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(t) Circles and crosses, or line put on the spaces on which the voter has not voted shall be considered as signs to indicate the desistance from voting and shall not invalidate the ballot;
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(u) Unless it should clearly appear that they have been deliberately put by the voter to serve as identification mark, commas, dots, or hyphens between the first name and the surname of a candidate, or in other parts of the ballots, traces of the letter "T", "J" and other similar ones, the first letters or syllables of names which the voter does not continue, of two (2) or more kinds in writing and unintentional or accidental flourishes, strokes, or strains shall not invalidate the ballot.