EN BANC

[G.R. No. 170365. February 2, 2010.]

ABDUL GAFFAR P.M. DIBARATUN , petitioner, vs . COMMISSION ON

ELECTIONS and ABDUL CARIM MALA ABUBAKAR , respondents.

DECISION

PERALTA , J : p

This is a petition for certiorari 1 of the Resolution of the Commission on Elections

(COMELEC) en banc dated October 17, 2005 in SPA No. 02-481, which declared a
failure of elections in Precinct No. 6A/7A, Barangay Bagoainguid, Municipality of
Tugaya, Lanao del Sur and annulled the proclamation of petitioner Abdul Gaffar 2 P.M.
Dibaratun as the duly elected Punong Barangay of Barangay Bagoainguid in the July 15,
2002 Synchronized Barangay and Sangguniang Kabataan Elections.
The facts are as follows:
Respondent Abdulcarim Mala Abubakar, 3 a re-electionist candidate for the
position of Punong Barangay of Barangay Bagoainguid, Tugaya, Lanao del Sur, led a
petition 4 before the COMELEC to declare a failure of elections in Precinct No. 6A/7A,
Barangay Bagoainguid, Tugaya, Lanao del Sur and to annul the proclamation of
petitioner Abdul Gaffar P.M. Dibaratun as the duly elected Punong Barangay of
Barangay Bagoainguid in the July 15, 2002 Synchronized Barangay and Sangguniang
Kabataan Elections.
In his petition, respondent Abubakar alleged:
xxx xxx xxx

3. That on July 15, 2002 at around 10:30 o' clock in the morning, the casting of
votes in the above named precinct was commenced at its designated
Polling Place in Cayagan Elementary School and while only ten (10) voters
had actually voted, a certain ALIPECRY ACOP GAFFAR, who is the son of
respondent Punong Barangay candidate ABDULGAFFAR DIBARATUN got
inside the polling place and was caught in possession of Three (3) filled up
ballots where candidate ABDULGAFFAR DIBARATUN were voted which he
wanted to place or insert inside the ballot box for official (sic).
IDScTE

4. That when said ALIPECRY GAFFAR was confronted by the petitioner's watcher
and other watchers confronted him of said o cial ballots, he got mad and
ared up and committed violence which disrupted and stopped the casting
of votes and because of the commotion, the chairman left the ballot box
which was held by the companions of Alipecry Acop Gaffar and destroyed
the said ballot box, took the o cial ballot contained therein and inserted,
placed therein a bundle of substituted ballots.
5. That due to the facts adverted to above, the casting of votes was stopped and
it was never resumed nor continued. Only Ten (10) voters had actually
voted out of One Hundred Fifty One (151) registered voters.
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 6. That even candidates for Barangay Chairmen and Barangay Kagawad were
unable to cast their votes because the casting of votes was illegally
disturbed, disrupted, interrupted and stopped by Alipecry Acop Gaffar
despite the presence of numerous registered voters ready to cast their
votes.

xxx xxx xxx

9. The Election O cer knowing fully that there was really a failure of election in
the said precinct recommended that a special election be called for the
said precinct.

10. That unknown to the petitioner, the respondent Board of Election Inspectors, in
conspiracy and connivance with respondent — Abdulgaffar Dibaratun,
surreptitiously and clandestinely canvassed the election returns and then
illegally proclaimed the respondent Abdulgaffar Dibaratun and issued
Certi cate of Canvass of Votes and Proclamation of Winning Candidates
dated July 16, 2002 which was antedated xerox copy of which is hereto
attached as Annex "C" hereof. 5

Respondents therein led their Answer denying the allegations of herein private
respondent. They contended that as 10 voters had actually voted, there was no failure
of elections in the aforementioned precinct. They further contended that the petition
was filed out of time.
In the Resolution dated October 17, 2005, the COMELEC en banc granted the
petition, the dispositive portion of which reads:
WHEREFORE, premises considered, the Commission (en banc) RESOLVED,
as it hereby RESOLVES, to GIVE DUE COURSE to the instant petition.

ACCORDINGLY, the proclamation of respondent Abdulgaffar P.M.

Dibaratun as the duly elected Punong Barangay of Barangay Bagoainguid,
Tugaya, Lanao del Sur is hereby ANNULLED and he is thus ORDERED to CEASE
AND DESIST from exercising the powers and responsibilities of the said o ce.
Pending the conduct of the special elections yet to be scheduled by this
Commission and until no Punong Barangay has been duly elected and quali ed,
the incumbent Punong Barangay shall continue to exercise the powers and duties
of such o ce in a hold-over capacity in accordance with Section 5 of R.A. No.
9164 (An Act Providing for Synchronized Barangay and Sangguniang Kabataan
Elections, Amending Republic Act No. 7160, As Amended, Otherwise Known as
The 'Local Government Code of 1991,' and For Other Purposes). CEDHTa

Let the O ce of the Deputy Executive Director for Operations (ODEDO),

this Commission, furnish a copy of this Resolution to the Provincial Election
Supervisor of Lanao del Sur for the implementation of the same upon its nality.
6

Dibaratun filed this petition, raising the following issues:

1) The COMELEC en banc gravely abused its discretion amounting to lack or
excess of jurisdiction when it unjustly gave due course to the
unmeritorious petition of respondent Abubakar for the simple reason that it
was led out of time and the validity of the proclamation of petitioner
Dibaratun on July 16, 2002 can no longer be legally assailed after the
expiration of ten (10) days.

CD Technologies Asia, Inc. © 2018 cdasiaonline.com

 2) Private respondent Abubakar is estopped to assert whatever rights he has in
the election laws/rules of procedure when he desparately failed to make
the proper objections during the casting, counting and canvassing of votes,
and, therefore, the COMELEC en banc gravely abused its discretion
amounting to lack or excess of jurisdiction when it erroneously heard and
considered the unmeritorious petition of respondent Abubakar.

3) Public respondent COMELEC en banc gravely abused its discretion amounting

to lack or excess of jurisdiction when it erroneously declared failure of
elections in Precinct No. 6A/7A of Barangay Bagoainguid, Tugaya, Lanao
del Sur and called for special elections in the said precinct. 7

The main issue is whether or not the COMELEC en banc committed grave abuse
of discretion amounting to lack or excess of jurisdiction in declaring a failure of
elections in Precinct No. 6A/7A of Barangay Bagoainguid, Tugaya, Lanao del Sur and in
annulling the proclamation of petitioner as the elected Punong Barangay.
The petition is unmeritorious.
The 1987 Constitution vests in the COMELEC the broad power to enforce all the
laws and regulations relative to the conduct of elections, as well as the plenary
authority to decide all questions affecting elections except the question as to the right
to vote. 8
Section 6 of the Omnibus Election Code provides for the instances when the
COMELEC may declare failure of elections, thus:
SEC. 6. Failure of election. — If, on account of force majeure, violence,
terrorism, fraud, or other analogous causes the election in any polling place has
not been held on the date xed, or had been suspended before the hour xed by
law for the closing of the voting, or after the voting and during the preparation
and the transmission of the election returns or in the custody or canvass thereof,
such election results in a failure to elect, and in any of such cases the failure or
suspension of election would affect the result of the election, the Commission
shall, on the basis of a veri ed petition by any interested party and after due
notice and hearing, call for the holding or continuation of the election not held,
suspended or which resulted in a failure to elect on a date reasonably close to the
date of the election not held, suspended or which resulted in a failure to elect but
not later than thirty days after the cessation of the cause of such postponement
or suspension of the election or failure to elect.
AIHaCc

Sec. 6 of the Omnibus Election Code is re ected in Sec. 2, Rule 26 of the

COMELEC Rules of Procedure.
In its Resolution, the COMELEC en banc, citing Banaga, Jr. v. Commission on
Elections, 9 enumerated the three instances when a failure of elections may be declared
by the Commission:
(1) the election in any polling place has not been held on the date xed on
account of force majeure, violence, terrorism, fraud or other analogous
causes;
(2) the election in any polling place had been suspended before the hour
xed by law for the closing of the voting on account of force
majeure, violence, terrorism, fraud or other analogous causes; or
(3) after the voting and during the preparation and transmission of the election
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 returns or in the custody or canvass thereof, such election results in a
failure to elect on account of force majeure, violence, terrorism, fraud or
other analogous causes.

Before the COMELEC can act on a veri ed petition seeking to declare a failure of
elections, two conditions must concur: (1) no voting took place in the precinct or
precincts on the date xed by law, or even if there was voting, the election resulted in a
failure to elect; and (2) the votes not cast would have affected the result of the
elections. 1 0 The cause of such failure of election could only be any of the following:
force majeure, violence, terrorism, fraud or other analogous causes. 1 1
The COMELEC en banc based its decision to declare a failure of elections in
Precinct No. 6A/7A on the second instance stated in Section 6 of the Omnibus Election
Code, that is, the election in any polling place had been suspended before the hour xed
by law for the closing of the voting on account of force majeure, violence, terrorism,
fraud or other analogous causes.
The COMELEC en banc held that in this case, it was undisputed that after only 10
registered voters cast their votes, the voting was suspended before the hour xed by
law by reason of violence. This was supported by the a davits submitted by both
petitioner and private respondent, who only disagreed as to the perpetrator of the
violence as each party blamed the other party.
In its Resolution, the COMELEC en banc averred:
The letter of Mayor Abdul Jabbar Mangawan A.P. Balindong, Municipal
Mayor of Tugaya, Lanao Del Sur, addressed to Chairman Benjamin Abalos, Sr.,
the Joint A davit of Norhata M. Ansari and Sahara T. Guimba, Poll Clerk and
Third Member, respectively, of the Board of Election Inspectors of Precinct No.
6A/7A of Barangay Bagoainguid and the Joint A davit of PO1 Yahya M.
Dirindigun and PO1 Casary C. Modasir all state that it is the petitioner and his
relatives and followers who started the violence that caused the suspension of
the voting. AcHaTE

Meanwhile, the a davits submitted by the witnesses of the petitioner all

state that it is respondent Dibaratun and his followers and relatives who were the
cause of the violence which resulted in the suspension of the election after only
ten (10) people managed to vote. 1 2

The COMELEC en banc ruled that since both parties agreed that the elections
were suspended before the hour xed by law due to violence caused by undetermined
persons, there was obviously a failure of elections in the aforementioned precinct. 1 3
The ndings of fact of the COMELEC en banc are binding on this Court. The
grounds for failure of election (i.e., force majeure, violence, terrorism, fraud, or other
analogous cases) involve questions of fact, which can only be determined by the
COMELEC en banc after due notice to and hearing of the parties. 1 4 An application for
certiorari against actions of the COMELEC is con ned to instances of grave abuse of
discretion, 1 5 amounting to lack or excess of jurisdiction. The COMELEC, as the
administrative agency and specialized constitutional body charged with the
enforcement and administration of all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and recall, has the expertise in its eld so that
its findings and conclusions are generally respected by and conclusive on the Court. 1 6
Thus, the Court agrees with the COMELEC that the elections in Precinct No.
6A/7A were suspended before the hour xed by law for the closing of the voting due to
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 violence. Only 10 voters were able to cast their votes out of 151 registered voters;
hence, the votes not cast would have affected the result of the elections. The
concurrence of these two conditions caused the COMELEC en banc to declare a failure
of elections. When there is failure of elections, the COMELEC is empowered to annul the
elections and to call for special elections. 1 7 Public respondent, therefore, did not
commit grave abuse of discretion in its resolution of the case.
Moreover, petitioner contends that respondent Abubakar's petition for the
declaration of failure of elections and to annul the proclamation of petitioner was in the
nature of a pre-proclamation controversy under Sec. 241 of the Omnibus Election Code,
but respondent failed to comply with the procedures therefor. Petitioner also contends
that the petition was led out of time, and that respondent failed to pay the docket fees
on time.
Petitioner's arguments lack merit.
Respondent Abubakar's petition for declaration of failure of elections falls under
Sec. 6 of the Omnibus Election Code. The allegations in respondent's petition
constitute one of the instances for the declaration by the COMELEC of failure of
elections in Precinct No. 6A/7A. Hence, the COMELEC en banc took cognizance of the
petition pursuant to Sec. 4 of Republic Act No. 7166, 1 8 thus: AHCaES

SEC. 4. Postponement, Failure of Elections and Special Elections. — The

postponement, declaration of failure of election and the calling of special
elections as provided in Sections 5, 6 and 7 of the Omnibus Election
Code shall be decided by the Commission sitting en banc by a majority
vote of its members. The causes for the declaration of a failure of election may
occur before or after the casting of votes or on the day of the election. 1 9

The Court nds the petition for declaration of failure of elections under Section 6
of the Omnibus Election Code to be in order, and it was properly disposed of by the
CO ME LE C en banc. Hence, petitioner erred in contending that the petition of
respondent Abubakar was in the nature of a pre-proclamation controversy under Sec.
241 of the Omnibus Election Code, but failed to comply with the procedures therefor.
The issue addressed by the COMELEC en banc was whether the evidence submitted
supported the allegations in the petition that violence suspended the elections in
Precinct No. 6A/7A, Barangay Bagoainguid, Tugaya, Lanao del Sur, before the hour xed
by law for the closing of the voting on July 15, 2002, which resulted in failure of
elections. The issue does not fall under pre-proclamation controversies. The issues that
may be ventilated in a pre-proclamation controversy are enumerated in Sec. 243 of the
Omnibus Election Code, 2 0 thus:
1. Illegal composition or proceedings of the board of canvassers;
2. The canvassed election returns are incomplete, contain material defects,
appear to be tampered with or falsi ed, or contain discrepancies in the
same returns or in other authentic copies thereof as mentioned in Sections
233, 234, 235 and 236 of the Omnibus Election Code;

3. The election returns were prepared under duress, threats, coercion, or

intimidation, or they are obviously manufactured or not authentic; and

4. When substitute or fraudulent returns in controverted polling places were

canvassed, the results of which materially affected the standing of the
aggrieved candidate or candidates. 2 1
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 A petition to declare a failure of elections is neither a pre-proclamation
controversy as classi ed under Sec. 5 (h), Rule 1 of the Revised COMELEC Rules of
Procedure, nor an election case. 2 2
Further, petitioner's basis for the allegation that private respondent's petition
was led out of time is Sec. 252 of the Omnibus Election Code, 2 3 covering election
contests for barangay o ces, wherein a petition is led with the proper municipal or
metropolitan trial court within ten days after the proclamation of the results of the
election. Granting that the petition led was for an election contest, it would have been
led on time, since it was led on July 26, 2002, which was within the ten-day period
from the proclamation of petitioner on July 16, 2002. CASTDI

However, the petition led by private respondent was not for an election contest
under Sec. 252 of the Omnibus Election Code, but for the declaration of failure of
elections under Section 6 of the same Code. The Court notes that the provisions on
failure of elections in Section 6 of the Omnibus Election Code 2 4 and Sec. 2, Rule 26 of
the COMELEC Rules of Procedure do not provide for a prescriptive period for the ling
of a petition for declaration of failure of elections. It appears that the COMELEC en
banc has the discretion whether or not to take cognizance of such petition. In this case,
the petition was led 11 days after the scheduled election. In its Resolution, the
COMELEC en banc declared that petitioner's allegation that the petition was led out of
time was rendered moot and academic by the fact that the petition was already heard
by the Commission and submitted for resolution. 2 5 The COMELEC's resolution of
private respondent's petition was in keeping with its function to ensure the holding of
free, orderly, honest, peaceful, and credible elections.
Lastly, petitioner's allegation that private respondent failed to pay the docket fee
on time does not appear to have been raised before the COMELEC; hence, it cannot be
raised for the first time on appeal.
Petitioner's allegation of grave abuse of discretion by public respondent
COMELEC en banc implies such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction or, in other words, the exercise of the power in an
arbitrary manner by reason of passion, prejudice, or personal hostility; and it must be so
patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to
perform the duty enjoined or to act at all in contemplation of law. 2 6 It is not present in
this case, as public respondent issued the COMELEC Resolution dated October 17,
2005 based on the evidence on record and the law on the matter.
WHEREFORE , the instant petition for certiorari is hereby DISMISSED .
SO ORDERED .
Puno, C.J., Carpio, Corona, Carpio Morales, Velasco, Jr., Nachura, Leonardo-de
Castro, Brion, Bersamin, Del Castillo, Villarama, Jr. and Perez, JJ., concur.
Abad, J., is on official leave.
Mendoza, J., is on leave.

Footnotes
1. Under Rule 64 in relation to Rule 65 of the Rules of Court.
2. Also spelled as "Abdulgaffar" in the COMELEC Resolution dated October 17, 2005.

3. Also spelled as "Abubacar" in the COMELEC Resolution dated October 17, 2005.
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 4. Entitled Abdulcarim Mala Abubacar v. Board of Election Inspectors/Tellers of Precinct No.
6A/7A, Barangay Bagoainguid, Tugaya, Lanao del Sur.
5. COMELEC Resolution dated October 17, 2005, rollo, pp. 32-33.

6. Rollo, pp. 35-36.

7. Id. at 15-16.
8. Soliva v. Commission on Elections, G.R. No. 141723, April 20, 2001, 357 SCRA 336.
9. G.R. No. 134696, July 31, 2000, 336 SCRA 701.
10. Id.

11. Id.
12. Rollo, p. 34.
13. Id. at 35.
14. Immam v. Commission on Elections, G.R. No. 134167, January 20, 2000, 322 SCRA 866.
15. Matalam v. Commission on Elections, G.R. No. 123230, April 18, 1997, 271 SCRA 733.

16. Supra note 8.

17. Id.
18. An Act Providing for Synchronized National and Local Elections and for Electoral Reforms,
Authorizing Appropriations Therefor, and for Other Purposes. Approved on November 26,
1991.
19. Emphasis supplied.
20. As amended by Sections 17 to 22 of R.A. No. 7166.
21. Supra note 15.
22. Borja, Jr. v. Commission on Elections, G.R. No. 120140, August 21, 1996, 260 SCRA 604.

23. Sec. 252. Election contest for barangay o ces. — A sworn petition contesting the election
of a barangay o cer shall be led with the proper municipal or metropolitan trial court
by any candidate who has duly led a certi cate of candidacy and has been voted for
the same office, within ten days after the proclamation of the results of the election. . . .
24. SEC. 6. Failure of election. — If, on account of force majeure, violence, terrorism, fraud, or
other analogous causes the election in any polling place has not been held on the date
xed, or had been suspended before the hour xed by law for the closing of the voting,
or after the voting and during the preparation and the transmission of the election
returns or in the custody or canvass thereof, such election results in a failure to elect, and
in any of such cases the failure or suspension of election would affect the result of the
election, the Commission shall, on the basis of a veri ed petition by any interested party
and after due notice and hearing, call for the holding or continuation of the election not
held, suspended or which resulted in a failure to elect on a date reasonably close to the
date of the election not held, suspended or which resulted in a failure to elect but not
later than thirty days after the cessation of the cause of such postponement or
suspension of the election or failure to elect.
25. Rollo, p. 35.
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
 26. Sangcopan v. Comelec, citing Land Bank of the Philippines v. Court of Appeals, G.R. No.
129368, August 25, 2003, 409 SCRA 455.

CD Technologies Asia, Inc. © 2018 cdasiaonline.com