In the last elections for local government officials on January 30, 1980, Espiridion Jagunap (heretofore referred to as JAGUNAP, for short), and Adolfo Jaen (JAEN, for short), were the candidates for the position of Municipal Mayor of Leganes, Iloilo.  JAGUNAP was the official candidate of the Kilusang Bagong Lipunan (KBL, for short), while JAEN was the candidate of the Nacionaiista Party.  After the balloting and canvass of the election returns, JAGUNAP was credited with 3,113 votes against JAEN's 3,027 votes, thereby winning by a majority of 86 votes.

But, before JAGUNAP could be proclaimed the winner, or on February 6, 1980, JAEN filed an urgent petition with the Commission on Elections (heretofore referred to as COMELEC, for short), docketed therein as Comelec Case No. PP-280, entitled:  "Adolfo Jaen, petitioner versus The Municipal Board of Canvassers of Leganes, Iloilo, et al., respondents," praying that the proclamation of the winners for Mayor, Vice-Mayor, and Members of the SangguniangBayan of Leganes, Iloilo, be deferred, and to nullify any proclamation if one had already been made; and to direct the Municipal Board of Canvassers of Leganes, Iloilo, to open the ballot boxes in the 30 Voting Centers of Leganes, Iloilo, and thereafter make the necessary corrections on errors and/or on tampered election returns, claiming, among others, that the election returns are either materially defective, falsified and/or tampered with, and prepared through or under duress or with visible and apparent discrepancies appearing thereof.^[1]

On February 8, 1980, JAEN filed an amended petition which included, as ground for the suspension of the proclamation of the winners, the allegation that he is the official candidate of the Nacionalista Party but that the block votes cast for the party were not counted in his favor and considered stray votes.^[2]

Acting upon both petitions, the respondent COMELEC issued Resolution No. 9070 on February 12, 1980, (1) requiring the Municipal Board of Canvassers of Leganes, Iloilo, to answer the petitions within five (5) days from receipt thereof, and for JAEN to specify the irregularities committed insofar as the election returns of the Voting Centers were concerned; and (2) annulling the proclamation of the winners, if one had already been made.^[3]

The Municipal Board of Canvassers of Leganes, Iloilo, failed to file an answer thereto within the period prescribed, while JAEN submitted his "Compliance" on February 21, 1980, pointing to the specific irregularities and discrepancies in the election returns,^[4] and on February 25, 1980, the COMELEC issued its Resolution No. 9278, (1) ordering "the immediate recounting of the votes in all the Thirty (30) Voting Centers in Leganes, Iloilo, and consequently, the recanvassing of the election returns therefrom and the proclamation of the winning candidates thereafter, with notice to all the parties concerned;" and (2) the designation of "a lawyer from the main office of the Comelec in Manila to act as the Chairman of the Municipal Board of Canvassers of Leganes, Iloilo."^[5]

Pursuant thereto, Atty. Constante B. Leones was designated the Chairman of the Municipal Board of Canvassers of Leganes, Iloilo.  The ballot boxes were opened, and a recount was made, the result of which showed that JAEN won over JAGUNAP with a majority of 107 votes, having obtained 3,303 votes against JAGUNAP's 3,096 votes.^[6] Immediately thereafter, JAEN was proclaimed the duly elected Municipal Mayor of Leganes, Iloilo, on March 1, 1980,^[7] and assumed office after taking his oath of office.^[8]

After the proclamation of JAEN, however, the COMELEC issued Resolution No. 9431, setting aside the proclamation of JAEN.  The resolution reads, as follows:

"9431.  (PP No. 280).  Considering that the Resolution of February 25, 1980 ordering a recounting of votes in all the 30 voting centers in Leganes, Iloilo was based on the fact that the Resolution of February 12, 1980 has not been answered by the Municipal Board of Canvassers, and the representation under oath by the Petitioner that he was considered an Independent candidate notwithstanding his submission to the Comelec Registrar of Leganes of a certificate of nomination by the Nacionalista Party (Annex 'B' of the Amended Petition); considering that it now appears that the failure of the Municipal Board of Canvassers to file an answer was due to the fact that the said Resolution of February 12, 1980 was received by said Board only on February 28, 1980 as explained in their telegram to the Law Department of this Commission received on February 20, 1980; considering that the Comelec Registrar of Leganes, Iloilo, had denied under oath (Annex 'A' of the Urgent Motion of Respondent) and denounced as spurious his alleged signature in acknowledgment of the letter nominating candidates of the Nacionalista Party (Annex 'B' of the Amended Petition) which, to say the least, raises a factual and prejudicial issue as to whether or not Petitioner was really a candidate of the Nacionalista Party and would therefore make a recounting of votes both premature and irregular being in the nature of a fishing expedition for an electoral protest; considering further as pointed out by Respondent in Petitioner's own letter (Annex 'A' of the Amended Petition), that as late as January 30, 1980, Petitioner himself expressly stated that the names of Jaen-Inyan slate are all Independent Candidates; considering finally, that the opening of ballot boxes and the use of the ballots for recounting would actually involve appreciation of ballots, an act which, in the present proceedings, cannot be legally sanctioned; the Commission RESOLVED to reconsider its Resolution of February 25, 1980 and hereby dismisses the Petition.  Any canvass and/or proclamation that may have been made pursuant to the Resolution of February 25, 1980 are hereby annulled and set aside.  The Municipal Board of Canvassers is hereby ordered to proclaim the winning candidates on the basis of the original canvass."^[9]

In accordance therewith, JAGUNAP was proclaimed the Municipal Mayor of Leganes, Iloilo, on March 2, 1980 and he assumed office on March 3, 1980.^[10]

But, on that same day, March 3, 1980, the COMELEC sent a telegraphic order to Atty. Constante B. Leones stating the following:

"IN VIEW OF THE FACT THAT ALL VOTES CAST IN ALL VOTING CENTERS OF LEGANES ILOILO WERE RECOUNTED ON MARCH 1 BY THE MUNICIPAL BOARD OF CANVASSERS BY VIRTUE OF RESOLUTION NUMBER 9278 DATED 25 FEBRUARY 1980 AND THAT MAYORALTY CANDIDATE ADOLFO JAEN GARNERED A MAJORITY OF TWO HUNDRED SEVEN VOTES AND THAT AFTER WHICH ADOLFO JAEN WAS IMMEDIATELY PROCLAIMED BY THE MUNICIPAL BOARD OF CANVASSERS AS DULY ELECTED MAYOR OF LEGANES ILOILO CMA THE COMMISSION SEES NO REASON TO SET ASIDE THE PROCLAMATION ON THE CONTRARY THE COMMISSION HEREBY AFFIRMS THE PROCLAMATION MADE BY THE MUNICIPAL BOARD OF CANVASSERS IN FAVOR OF ADOLFO JAEN AND THE OTHER WINNERS IN THE JANUARY 30 ELECTIONS IN THE MUNICIPALITY OF LEGANES ILOILO THE COMMISSION HEREBY ANNULS COMELEC RES. NO. 9431 DATED MARCH 1, 1980 END"^[11]

As a consequence, on March 6, 1980, JAGUNAP filed with this Court a petition for certiorari, with a prayer for the issuance of a temporary restraining order, to annul and set aside the said telegraphic order of March 3, 1980.  The case was docketed as G.R. No. 53062.  As prayed for, the Court ordered the respondents to cease and desist from enforcing and/or implementing the COMELEC telegraphic order dated March 3, 1980.^[12]

After the filing of the petition, however, the COMELEC promulgated Resolution No. 9456, nullifying the disputed telegraphic order of March 3, 1980.  The resolution reads, as follows:

"9456.  Considering that there is no resolution adopted by the Commission annulling Comelec Resolution No. 9431 dated March 1, 1980, and considering further that there are legal and factual basis of the Urgent Motion for Reconsideration filed by respondent as in fact the records of the Commission show that candidate Adolfo Jaen is not actually an official candidate of the Nacionalista Party, the Commission RESOLVED as it hereby resolves to reiterate Resolution No. 9431 setting aside and annulling whatever canvass and/or proclamation made by the Municipal Board of Canvassers of Leganes, Iloilo pursuant to Comelec Resolution No. 9278 dated February 25, 1980, and hereby affirms the canvass and proclamation made by the original Board of Canvassers of Leganes, Iloilo, on March 2, 1980.

"The Commission FURTHER RESOLVED to nullify whatever action, if any, has been taken pursuant to the telegram sent to Atty. Constante Leones dated March 3, 1980."^[13]

By reason thereof, JAEN filed a cross-petition on March 11, 1980, to annul and set aside the said Resolution No. 9456, claiming that the resolution "is patently illegal because it was issued without any notice and hearing." The Cross-Petition was docketed separately as G.R. No. 53345.^[14]

On March 22, 1980, JAEN filed a Second Cross-Petition, to annul and set aside COMELEC Resolution No. 9431, dated March 1, 1980, which set aside his proclamation, on the ground that the COMELEC acted arbitrarily and capriciously in issuing the said resolution.^[15]

From the records of the case it would appear that the COMELEC had authorized the proclamation of both JAEN and JAGUNAP as the elected Mayor of Leganes, Iloilo, and both had assumed the position after taking their respective oaths of office.  JAEN was proclaimed on March 1, 1980, after a recount and recanvass of the votes cast in the Voting Centers of Leganes, Iloilo, pursuant to COMELEC Resolution No. 9278, dated February 25, 1980, while JAGUNAP was proclaimed on March 2, 1980, in accordance with COMELEC Resolution No. 9431, dated March 1, 1980.

JAEN assails the arbitrariness and capriciousness of the annulment of his proclamation, claiming that the annulment of his proclamation was made without due notice and hearing as required by Section 175 of the 1978 Election Code.

JAGUNAP, upon the other hand, contests the proclamation of JAEN, claiming that the said proclamation was based on a recount of votes which was illegally ordered by the COMELEC since the COMELEC has no power to order the recount in a pre-proclamation proceeding; and that the order for a recount was made without due notice and hearing.

Upon the facts of the case, We find that the COMELEC had, indeed, gravely abused its discretion, amounting to lack of jurisdiction, in annulling the proclamation of JAEN as the elected Municipal Mayor of Leganes, Iloilo.  JAEN was not furnished with a copy of any petition or motion to set aside his proclamation; nor was he notified of the hearing of such petition or motion.  As a matter of fact, the records of the case do not indicate that a hearing was ever conducted by the COMELEC before it ordered the annulment of the proclamation of JAEN.  This to Us is an irregularity.  JAEN, who has already been proclaimed by the Municipal Board of Canvassers of Leganes, Iloilo, has the right to be notified of any proceeding to set aside his proclamation, and a hearing is necessary before the COMELEC can order the annulment of his proclamation.  Section 175 of the 1978 Election Code explicitly provides that the COMELEC can order the annulment of a proclamation of a candidate-elect on any of the grounds mentioned in Sections 172, 173 and 174 thereof (defective, tampered and falsified election returns, and discrepancies in the election returns) only after due notice and hearing.  Said section reads, as follows:

"Sec. 175.  Suspension and annulment of proclamation. - The Commission shall be the sole judge of all pre-proclamation controversies and any of its decisions, orders or rulings shall be final and executory.  It may motuproprio or upon written petition, and after due notice and hearing order the suspension of the proclamation of a candidate-elect or annul any proclamation, if one has been made, on any of the grounds mentioned in Sections 172, 173 and 174 hereof." (Underscoring for emphasis)

It results that COMELEC Resolution No. 9431, dated March 1, 1980, and COMELEC Resolution No. 9456, dated March 6, 1980, which were issued without the notice and hearing, are arbitrary, and, therefore, null and void.  The proclamation of JAGUNAP, being based upon these void resolutions, is, consequently, of no legal effect, and should be set aside.

The claim of JAGUNAP that the COMELEC had no power to order a recount in this case is without merit.  Under Sections 172, 173 and 174 of the 1978 Election Code, the COMELEC is authorized to order the opening of the ballot boxes and order a recount when there are material defects in the election returns; when the election returns appear to be tampered with or falsified; or when there are discrepancies in the election returns.  The said sections read, as follows:

"Sec. 172.  Material defects in the election returns. - If it should clearly appear that some requisites in form or data had been omitted in the election returns, the board shall return them by the most expeditious means, to the corresponding election committee for correction.  Said election returns, however, shall not be returned for a recount of the ballots or for any alteration of the number of votes set forth therein; Provided, That in case of the omission in the election returns of the name of any candidate and/or his corresponding votes, the board of canvassers shall require the election committee concerned to complete the necessary data in the election returns and affix therein their initials; Provided, further, That if the votes omitted in the returns cannot be ascertained by other means except by recounting the ballots, the Commission after satisfying itself that the identity and integrity of the ballot box have not been violated, shall order the election committee to open the ballot box, and also after satisfying itself that the integrity of the ballots therein has been duly preserved, order the committee to count the votes for the candidate whose votes have been omitted in the presence of the candidate affected, or his representative and thereafter complete the returns.

"Sec. 173.  When election returns appear to be tampered with or falsified. - If the election returns submitted to the board of canvassers appear to be tampered with, altered or falsified after it has left the hands of the election committee, the board shall use the other authentic copies of said election returns and, if necessary, the copy inside the ballot box which upon previous authority given by the Commission may be retrieved in accordance with Section 163 hereof.  If the other copies of the returns are likewise tampered with, altered or falsified, the board of canvassers or any candidate affected shall bring the matter to the attention of the Commission.  The Commission shall then, after giving notice to all candidates concerned and after satisfying itself that nothing in the ballot box indicates that its identity and integrity have been violated, order the opening of the ballot box and likewise after satisfying itself that the integrity of the ballots therein has been duly preserved shall order the election committee to recount the votes of the candidates affected and prepare a new return which shall then be used by the board of canvassers as basis of the canvass.

"Sec. 174.  Discrepancies in election returns. - In case it appears to the board of canvassers that there exists discrepancies in the other authentic copies of the election returns from a voting center or discrepancies in the votes of any candidate in words and figures in the same return and in either case, the difference affects the results of the election, the Commission, upon motion of the board of canvassers or any candidate affected and after due notice to all candidates concerned, shall proceed summarily to determine whether the integrity of the ballot box had been preserved and once satisfied thereof, shall order the opening of the ballot box to recount the votes cast in the voting center solely for the purpose of determining the true result of the count of votes of the candidates concerned:  Provided, however, That if upon the opening of the ballot box it should appear that there are evidences or signs of replacement or tampering of the ballots, the Commission shall not recount the ballots but shall forthwith seal the ballot box and order its safekeeping."

In his petition, filed with the COMELEC, JAEN alleged that "election returns are either materially defective, falsified and/or tampered, prepared through or under duress or with visible and apparent discrepancies appearing thereon." Asked to specify, JAEN submitted a "Compliance" wherein he enumerated the specific irregularities, discrepancies, tampering with, alterations and/or defects in the election returns.  Obviously, the requirements of the law were complied with since the COMELEC ordered a recount and re-canvass of the election returns and the COMELEC attorney from the main office in Manila who was designated to act as the Chairman of the Municipal Board of Canvassers of Leganes, Iloilo, proceeded with the recanvass of the election returns in the presence of JAGUNAP's representatives who entered no objections thereto, nor made any protest against such proceedings.

There is, likewise, no merit in the claim of JAGUNAP that he was denied due process.  In its Resolution No. 9278, dated February 25, 1980, the COMELEC ordered the recount and recanvass of the election returns and the consequent proclamation of the winning candidates "with due notice to all the parties concerned." This requirement was complied with.  Before opening the ballot boxes and in proceeding with the recount and the recanvass of the election returns, Atty. Constante B. Leones, Chairman-designate of the Municipal Board of Canvassers of Leganes, Iloilo, made the following manifestation:

"Atty. Leones"

"x x x As Chairman of the Board I have sent notices to the chairman of the NP, chairman of the KBL and also to the other candidates of the NP and KBL.  The board believes that we have complied with the provisions of the resolution of the Comelec and there is no detriment in our canvassing of the votes today or this afternoon.  x x x."^[16]

These statements are undisputed, so that JAGUNAP, who was ably represented during the proceedings, cannot now be heard to complain that he was denied due process.

WHEREFORE, judgment is hereby rendered, as follows:

(1)   The petition for certiorari with prayer for a temporary restraining order, docketed as G.R. No. 53062, is DISMISSED for lack of merit and the temporary restraining order, heretofore issued, is, consequently, lifted and set aside.  The petitioner, Espiridion Jagunap, however, is granted ten (10) days from notice hereof within which to file the proper election protest or quo warranto proceedings, if he so desires; and

(2)   The cross-petitions, docketed as G.R. No. 53345, are GRANTED and COMELEC Resolution Nos. 9431 and 9456, dated March 1, 1980 and March 6, 1980, respectively, both issued in Comelec Case No. PP-280, entitled:  "Adolfo Jaen, petitioner, versus The Municipal Board of Canvassers of Leganes, Iloilo, and Espiridio Jagunap, respondents", are ANNULLED and SET ASIDE.

With costs against Espiridion Jagunap.

SO ORDERED.

Barredo, Fernandez, Abad Santos, and Melencio-Herrera, JJ., concur.
Fernando, C.J., concurs in the opinion of Justice Concepcion and makes the observation with reference to the Arcenas, Aguinaldo, Laguda, and Singco decisions cited in the concurring opinion of Justice Teehankee that a pre-proclamation controversy is still viable and must be decided by this Court if the Commission on Elections had acted on the petition and the matter thereafter elevated to us prior to such local election.  This is the ruling in Aguinaldo v. Commission on Elections, GR. 53953, January 5, 1981, by a unanimous Court, a separate concurrence being filed by Justice Teehankee.
Teehankee, J., files a separate concurring opinion.
Makasiarand Guerrero, JJ.,join in the dissenting opinion of J. De Castro.
De Castro, J., see dissenting opinion.
Aquino, J., concurs.  The dismissal of Jagunap's petition and the granting of Jaen's cross-petitions mean that Jaen's proclamation on March 1, 1980 is upheld.  Jaen can sit as mayor.

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^[1] Rollo of G.R. No. 53062, p. 14.

^[2] Id., p. 19.

^[3] Id., p. 71.

^[4] Id., p. 72.

^[5] Id., p. 119.

^[6] Id., pp. 120-121.

^[7] Id., p. 122.

^[8] Id., p. 123.

^[9] Id., p. 34.

^[10] Id., p. 37.

^[11] Id., p. 38.

^[12] Id., p. 45.

^[13] Rollo of G.R. No. 53345, p. 8.

^[14] Id., p. 2.

^[15] Rollo of G.R. No. 53062, p. 150.

^[16] Id., pp. 156-157.

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