G.R. No.

193314 : February 26, 2013

SVETLANA P. JALOSJOS, Petitioner, v. COMMISSION ON ELECTIONS,

EDWIN ELIM TUMPAG and RODOLFO Y. ESTRELLADA, Respondents.
SERENO, J.:

FACTS:

On 20 November 2009, petitioner filed her Certificate of Candidacy (CoC) for mayor of
Baliangao, MisamisOccidental for the 10 May 2010 elections. She indicated therein her
place of birth and residence as BarangayTugas, Municipality of Baliangao, Misamis
Occidental (Brgy. Tugas).

Asserting otherwise, private respondents filed against petitioner a Petition to Deny Due
Course to or Cancel the Certificate of Candidacy, in which they argued t hat she had
falsely represented her place of birth and residence, because she was in fact born in San
Juan, Metro Manila, and had not totally abandoned her previous domicile, Dapitan City.

On the other hand, petitioner averred that she had established her residence in the said
barangay since December 2008 when she purchased two parcels of land there, and that
she had been staying in the house of a certain Mrs. Lourdes Yap (Yap) while the former
was overseeing the construction of her house. Furthermore, petitioner asserted that the
error in her place of birth was committed by her secretary. Nevertheless, in aCoC, an
error in the declaration of the place of birth is not a material misrepresentation that
would lead to disqualification, because it is not one of the qualifications provided by law.
The Petition to Deny Due Course to or Cancel the Certificate of Candidacy remained
pending as of the day of the elections, in which petitioner garnered the highest number
of votes. On 10 May 2010, the Municipal Board of Canvassers of Baliangao, Misamis
Occidental, proclaimed her as the duly elected municipal mayor.

On 04 June 2010, the COMELEC Second Division ruled that respondent was
DISQUALIFIED for the position of mayor.

The COMELEC En Banc promulgated a Resolution on 19 August 2010 denying the

Motion for Reconsideration of petitioner for lack of merit and affirming the Resolution
of the Second Division denying due course to or cancelling her CoC.

ISSUE: Whether COMELEC committed grave abuse of discretion in holding that

petitioner had failed to prove compliance with the one-year residency requirement for
local elective officials.

HELD: Petitioner failed to comply with theone-year residency requirement

forlocal elective officials
Petitioner uncontroverted domicile of origin is Dapitan City. The question is whether
she was able to establish, through clear and positive proof, that she had acquired a
domicile of choice in Baliangao, Misamis Occidental, prior to the May 2010 elections.

When it comes to the qualifications for running for public office, residence is
synonymous with domicile. Accordingly, Nuval v. Guray held as follows:

The term residence as so used, is synonymous with domicile which imports not only
intention to reside in a fixed place, but also personal presence in that place, coupled
with conduct indicative of such intention.

There are three requisites for a person to acquire a new domicile by choice.
First, residence or bodily presence in the new locality. Second, an intention
to remain there. Third, an intention to abandon the old domicile.

These circumstances must be established by clear and positive proof, as held in

Romualdez-Marcos v. COMELECand subsequently in Dumpit- Michelena v. Boado:

In the absence of clear and positive proof based on these criteria, the residence of origin
should be deemed to continue. Only with evidence showing concurrence of all three
requirements can the presumption of continuity or residence be rebutted, for a change
of residence requires an actual and deliberate abandonment, and one cannot have two
legal residences at the same time.

Moreover, even if these requisites are established by clear and positive proof, the date of
acquisition of the domicile of choice, or the critical date, must also be established to be
within at least one year prior to the elections using the same standard of evidence.

In the instant case, we find that petitioner failed to establish by clear and positive proof
that she had resided in Baliangao, Misamis Occidental, one year prior to the 10 May
2010 elections.

There were inconsistencies in the Affidavits of Acas-Yap, Yap III, Villanueva,

Duhaylungsod, Estrellada,Jumawan, Medija, Bagundol, Colaljo, Tenorio, Analasan,
Bation, Maghilum and Javier.

First, they stated that they personally knew petitioner to be an actual and physical
resident of Brgy. Tugassince 2008. However, they declared in the same Affidavits that
she stayed in Brgy. Punta Miray while her house was being constructed in Brgy. Tugas.

Second, construction workers Yap III, Villanueva, Duhaylungsod and Estrellada

asserted that in December 2009, construction was still ongoing. By their assertion, they
were implying that six months before the 10 May 2010 elections, petitioner had not yet
moved into her house at Brgy. Tugas.
Third, the same construction workers admitted that petitioner only visited Baliangao
occasionally when they stated that "at times when she (petitioner) was in Baliangao, she
used to stay at the house of Lourdes Yap while her residential house was being
constructed."

These discrepancies bolster the statement of the Brgy. Tugas officials that petitioner was
not and never had been a resident of their barangay. At most, the Affidavits of all the
witnesses only show that petitioner was building and developing a beach resort and a
house in Brgy. Tugas, and that she only stayed in Brgy. Punta Miray whenever she
wanted to oversee the construction of the resort and the house.

Assuming that the claim of property ownership of petitioner is true, Fernandez v.

COMELEC has established that the ownership of a house or some other property does
not establish domicile. This principle is especially true in this case as petitioner has
failed to establish her bodily presence in the locality and her intent to stay there at least
a year before the elections.

Finally, the approval of the application for registration of petitioner as a voter only
shows, at most, that she had met the minimum residency requirement as a voter. This
minimum requirement is different from that for acquiring a new domicile of choice for
the purpose of running for public office. The Petition is DENIED.

On the question of who should assume the post vacated by

the ineligible candidate, this Court amply explained in
Jalosjos, Jr. that:

Decisions of this Court holding that the second-placer cannot be proclaimed winner if the first-
placer is disqualified or declared ineligible should be limited to situations where the
certificate of candidacy of the first placer was valid at the time of filing but subsequently had
to be cancelled because of a violation of law that took place, or a legal impediment that took
effect, after the filing of the certificate of candidacy. If the certificate of candidacy is void ab
initio, then legally the person who filed such void certificate of candidacy was never a
candidate in the elections at any time. All votes for such non-candidate are stray votes and
should not be counted. Thus, such non-candidate can never be a first-placer in the elections. If a
certificate of candidacy void ab initio is cancelled on the day, or before the day, of the election,
prevailing jurisprudence holds that all votes for that candidate are stray votes. If a certificate of
candidacy void ab initio is cancelled one day or more after the elections, all votes for such candidate
should also be stray votes because the certificate of candidacy is void from the very beginning. 17 x x
x. (Citations omitted)
There is another more compelling reason why the eligible candidate who garnered the
highest number of votes must assume the office. The ineligible candidate who was
proclaimed and who already assumed office is a de facto officer by virtue of the ineligibility.

The rule on succession in Section 44 of the Local Government Code18 cannot apply in

instances when a de facto officer is ousted from office and the de jure officer takes over. The
ouster of a de facto officer cannot create a permanent vacancy as contemplated in the Local
Government Code. There is no vacancy to speak of as the de jure officer, the rightful winner
in the elections, has the legal right to assume the position.