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DECISION
That Protestant, duly filed her Certificate of Candidacy for the position of
Punong Barangay in Barangay Mata-uta, Tayasan, Negros Oriental, during the last
concluded Barangay Elections held on October 28, 2013. Likewise, Protestee has
also filed his Certificate of Candidacy in the same position as Punong Barangay.
That during the canvassing of ballots of the said Barangay elections, more
than ten (10) ballots in the precinct numbers 0047A, 0047B and 0048A were not
credited to Protestant for that the space for Punong Barangay was left blank and
the name of Protestant was written if not on the first line for the Barangay
Kagawad, it is placed in the upper left portion of the ballot. As a result, the
candidates for Punong Barangay have obtained the following votes:
EMILIE CALLAO BALSABAS, Protestant …………….172
CANDIDO PROBISADO AVENIDO, Protestee ………..174
That the petition for election protect is fatally defective for it was not
verified in violation of section 7, Rule 2 of A.M. 07-4-15-SC, effective May 15,
2007 known as the Rules of Procedure in Election Contest before the Courts
involving Elective Municipal and Barangay Officials.
That the petition for election protest does not comply with Bar Matter 1922
which non-compliance authorized its automatic dismissal.
That the petition failed to comply with Section 11(d), Rule 2 of A.M/ 07-4-
15-SC as it did not state the total number of precincts of the barangay concerned.
And that the protest is based merely on speculation and it also failed to state
a detailed specification of the alleged violation which is required under Section 11
(f).
And with the submission of the protestee’s answer, this case was set for
preliminary conference. During the preliminary conference, the parties failed to
arrive at an amicable settlement. Then the parties had the following stipulations
and admitted facts:
3. That the parties are both candidates during October 2013 elections;
4. That the protestant gathered 172 votes and the protestee garnered 174
votes;
The counsel of the Protestant asked for the reservation of the right to mark
their exhibits during the trial of the case. Then the court created the Revision
Committee.
Viewed from all the foregoing, this Court believed and was convinced for
the protestee. The ballots involved in this case are Exhibits “1”, “2”, “3”, “4”, “5”,
“6”, “7”, “8”, “9”, and “10”. The Court ruled that:
c) As to the ballot in Exhibit 3, the name written in the first line provided
for Barangay Kagawad is not discernible and to consider it a vote is
highly speculative and conjectural. Hence, it is a stray vote.
Moreover, the case of Farin vs. Gonzalez does not apply to the present
case. In the said case, while the name of petitioner was written in the space
for barangay councilman, his name was preceded by the name of the office
for which he is being elected, that as Punong Barangay or Barangay Captain.
The court ruled that what was placed before the name BAUTISTA was Bo.
Barangay and not Po. Barangay for Punong Barangay (or Barangay
Captain). There was the voter's intention to vote for BAUTISTA as
Barangay Captain and said vote should be counted in favor of him.
TIRSO F. BANQUERIGO
Circuit Trial Judge