DIOSCORO O. ANGELIA, petitioner, vs. COMMISSION ON ELECTIONS and FLORENTINO R.

TAN,
respondents.

FACTS:

Petitioner Angelia and Private respondent Tan were candidates for the position of member of
Sangguniang Bayan of Leyte during the May 1998 elections.

After canvass of votes: Angelia ranked 8th (4 votes ahead of Tan who ranked 9th).

Tan filed a petition for quo warranto with RTC against Angelia. He alleged that in Precinct No.
84 A and 84 A1, he was credited with only 82 votes, when he actually obtained 92. In precinct No
23A, Angelia was credited with 18 votes, when he actually garnered only 13. Therefore, according to
Tan, he received a total of 7771 votes, as to Angelia’s 7760 votes.

On June 12, 1998, Angelia took his oath and assumed office.

On June 23, 1998, Tan filed a motion to withdraw his petition. Subsequently, he filed petition
for annulment of proclamation of petitioner with Comelec. He presented several pieces of evidence,
including Election Returns, affidavit of poll clerk (stating that she inadvertently entered only 82 votes
instead of 92 for Tan), and affidavit of another poll clerk (indicated 18 instead of 13 as total votes for
Angelia). Tan also submitted affidavit of Matugas, chairperson of BEI of Precinct 84 A and A1,
corroborating the affidavit of Duavis.

COMELEC annulled the proclamation of petitioner (Aug 18, 1998)… “Commission en Banc
hereby annuls the proclamation of Angelia, the same being based on an erroneous tally and directs
the municipal board of canvassers… to effect the corrections in the total number of votes received..
and thereafter PROCLAIM the winning candidate for Municipal Kagawad based on the corrected
results.

Angelia filed a motion for reconsideration, alleging that he was not given due notice and
hearing.

Without waiting for the resolution of his motion, he filed the instant petition for certiorari,
assignment of error: COMELEC gravely erred and violated petitioner’s constitutional right to due
process when it passed the Aug 18, 1998 resolution, annulling his proclamation and reconvening the
Municipal Board of Canvassers without prior notice and hearing.

ISSUE:

Whether or not the instant petition for certiorari is premature for having been filed while a
motion for reconsideration is pending.

HELD:

NO.

Petitioner acted correctly in filing the present petition because the resolution of the COMELEC
in question is not subject to reconsideration and, therefore, any party who disagreed with it had only
one recourse: file a petition for certiorari under Rule 65 of Rules of Civil Procedure.

Rule 13, Comelec Rules of Procedure provides:

What Pleadings are Not Allowed. — The following pleadings are not allowed:

xxx xxx xxx

d) motion for reconsideration of an en banc ruling, resolution, order or decision except in

election offense cases;
xxx xxx xxx

As the case did not involve an election offense, reconsideration of the Comelec resolution
was NOT POSSIBLE and petitioner had no appeal or any adequate remedy. For him to wait until
Comelec denied his motion would be to allow the reglementary period for filing a petition for
certiorari with this Court to run and expire.

COMELEC contends that petitioner should not have speculated on the outcome of his M4R,
which he has not formally withdrawn. True, it would have been more appropriate for petitioner to
withdraw. BUT, the filing of petitioner of the instant petition sufficiently indicated his intention
to abandon his motion for reconsideration.