G.R. No. 164225.

 April 19, 2006. *

JUHARY A. GALO, petitioner, vs. THE COMMISSION ON ELECTIONS, THE

MUNICIPAL BOARD OF CANVASSERS OF LUMBA-BAYABAO, LANAO DEL
SUR, and MINDA DAGALANGIT, respondents.
Election Law; Failure of Elections; Words and Phrases; The term failure to elect means
“nobody emerged as a winner”; Failure of elections may be declared when (1) the election in
any polling place has not been held on the date fixed on account of force majeure, violence,
terrorism, fraud and other analogous cases, (2) the election in any polling place has been
suspended before the hour fixed by law for the closing of the voting on account of any of such
cases, or (3) after the voting and during preparation, transmission, custody or canvass of
election returns, the election results in a failure to elect on account of any analogous
cases.—We cannot sustain petitioner’s contention that the COMELEC En Banc gravely
abused its discretion in dismissing his petition for a declaration of a failure of elections and
for the annulment of the election results. Section 6 of the Omnibus Election Code prescribes
the conditions for such a declaration, thus: Section 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 fixed, or had been suspended before the hour
fixed by law for closing of the voting, or after the voting and during the preparation
and the transmission of the 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 the verified 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 but not later than thirty days after the cessation of the cause of
such postponement or suspension of the election or failure to elect. (Italics supplied) In Tan
v. COMELEC, 417 SCRA 532 (2003), we held that the above provisions lay down three
instances where a failure of election may be
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 EN BANC.
*

549
VOL. 487, APRIL 19, 2006 549
Galo vs. Commission on Elections
declared, namely: (1) the election in any polling place has not been held on the date
fixed on account of force majeure, violence, terrorism, fraud or other analogous causes; (2)
the election in any polling place has been suspended before the hour fixed by law for the
closing of the voting on account of any of such causes; or (3) after the voting and during the
preparation, transmission, custody or canvass of the election returns, the election results in
a failure to elect on account of any of said aforementioned causes. In all instances, there
must have been a failure to elect. This is obvious in the first two scenarios, where the
election was not held and where the election was suspended. As to the third scenario,
the circumstances attending the preparation, transmission, custody or canvass of
the election returns cause a failure to elect. The term failure to elect means “nobody
emerges as a winner.”
Jurisdictions; The established rule is that the nature of an action and the jurisdiction of
the tribunal are determined by the law and the allegations in the petition regardless of
whether or not the petitioner is entitled to the relief sought.—The established rule is that the
nature of an action and the jurisdiction of the tribunal are determined by the law and the
allegations in the petition regardless of whether or not the petitioner is entitled to the relief
sought. Here, it is not disputed that all the 39 precincts in Lumba-Bayabao functioned in
the May 12, 2004 special elections. And as correctly observed by respondent COMELEC En
Banc, petitioner himself failed to allege in his petition that no election was conducted; and
that the use of fake ballots is not a ground to declare a failure of elections.

SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.

The facts are stated in the opinion of the Court.

     Benjamin B. Lanto and Manuel D. Ballelos for petitioner.
     Alioden D. Dalaig for respondent Commission on Elections.
550
550 SUPREME COURT REPORTS ANNOTATED
Galo vs. Commission on Elections

SANDOVAL-GUTIERREZ, J.:

Before us for resolution is the Petition  for Certiorari,  assailing the

1 2

Resolution  dated July 2, 2004 of the Commission on Elections (COMELEC) En

3

Banc in SPA No. 04-348.

Juhary A. Galo, petitioner, and Minda P. Dagalangit, private respondent, were
among the five candidates for mayor in the Municipality of Lumba-Bayabao, Lanao
del Sur in the May 10, 2004 national and local elections.
On May 10, 2004, however, there was a failure of election in Lumba-Bayabao due
to serious disagreements among the various local candidates involving the
clustering of precincts, the distribution of election paraphernalia, and the
appointment of the members of the various Boards of Election Inspectors. As a
consequence, the COMELEC scheduled and held a special election on May 12, 2004.
On May 19, 2004, petitioner Galo filed with the COMELEC En Banc a
petition  to declare a failure of election and to annul the results of the May
4

12, 2004 special election involving six precincts located in six Barangays of
Lumba-Bayabao, namely: Precinct Nos. 1A (Barangay Maribu), 34A (Barangay
Sunggod), 29B (Barangay Rumayas),
_______________

1
 Petitioner re-filed the instant petition on July 16, 2004 after his similar petition filed on July 12,
2004, docketed as G.R. No. 164116, was dismissed in our Resolution dated July 13, 2004 for lack of proper
verification (see Rollo of G.R. No. 164116, p. 234).
2
 Filed under Rule 65 of the 1997 Rules of Civil Procedure, as amended.
3
 Rollo of G.R. No. 164225, pp. 54-60.
4
 Entitled “In Re Urgent Petition to Nullify Results, Annul Elections in Precinct Nos. 1-A, Barangay
Maribu, 34A Barangay Sunggod, 29B, Barangay Rumayas, 22A, Barangay Lubo Basara, 31A Barangay
Salaman, 36A, Barangay Tamlang, Municipality of Lumba-Bayabao, Lanao del Sur During the Special
Election of May 12, 2004, with a Prayer for a Restraining Order; Juhary A. Galo, Petitioner, versus The
Municipal Board of Canvassers of Lumba-Bayabao, Lanao del Sur, and Minda Dagalangit,” Rollo, pp.
61-66.
551
VOL. 487, APRIL 19, 2006 551
 Galo vs. Commission on Elections
22A (Barangay Lubo Basara), 31A (Barangay Salaman), and 36A (Barangay
Tamlang). Galo’s petition, docketed as SPA No. 04-348, is based on his claim that
there were “serious and massive irregularities committed by the supporters
of Dagalangit, in conspiracy with members of the Board of Election
Inspectors.” Specifically, petitioner alleged that respondent Dagalangit’s
supporters succeeded in placing fake ballots inside a ballot box in Precinct No. 1A
(Barangay Maribo); that in Precinct No. 34A (Barangay Sunggod), the voting was
irregular because the election inspectors hid a ballot box allegedly to protect it from
being forcibly taken; that during the counting of votes, fake ballots were found in
the ballot boxes in Precinct Nos. 22A (Barangay Lubo Basara), 29B (Barangay
Rumayas), 31A (Barangay Salaman), 34A (Barangay Sunggod), and 36A (Barangay
Tamlang); that the election inspectors in the said precincts refused to enter in the
minutes their valid objections; that all the election returns accomplished
based on the fake ballots do not reflect the true will of the electorate; and
that the said irregularities justify the annulment of the election
held. Petitioner thus prayed that the COMELEC issue a temporary restraining
order (TRO) directing the Board of Canvassers to desist from canvassing the
election returns from the said precincts. Petitioner further prayed that after due
hearing, the results of the election be annulled; and that an immediate
investigation of the anomalies committed during the election be conducted.
On May 21, 2004, the COMELEC En Banc issued a TRO directing the Municipal
Board of Canvassers of Lumba-Bayabao to SUSPEND its proceedings,
particularly the proclamation of the winning candidates, until further
orders.
In her Answer dated May 24, 2004, respondent Dagalangit denied petitioner’s
allegations of the existence of fake ballots in the specified precincts. She averred
that during the May 12, 2004 special election, all the 39 precincts of Lumba-
552
552 SUPREME COURT REPORTS ANNOTATED
Galo vs. Commission on Elections
Bayabao functioned in an orderly and peaceful manner; that the ballots have been
properly appreciated, counted and entered in the election returns duly accomplished
by the Board of Election Inspectors under the close scrutiny of the candidates’
watchers; and that the use of fake ballots is not a valid ground for nullifying the
elections. She then prayed that SPA No. 04-348 be dismissed.
During the May 27, 2004 hearing, petitioner did not appear before the
COMELEC En Banc. Instead, he filed an “Urgent Ex
Parte Motion/Manifestation”  stating that he was already proclaimed as the winning
5

candidate on May 20, 2004, thereby rendering his petition “moot and academic;”
and that he “has lost interest in the prosecution of the same.” He prayed that his
petition be considered withdrawn.
Thereafter, pursuant to the order of the COMELEC En Banc, the contending
parties filed their respective memoranda.
 On July 2, 2004, the COMELEC En Banc issued the assailed Resolution (1)
dismissing the petition for lack of merit; (2) annulling petitioner’s proclamation on
May 20, 1994 for having been “made surreptitiously and in contravention of the
May 21, 2004 Order of the Commission;” and (3) ordering the Municipal Board of
Canvassers of Lumba-Bayabao “to immediately convene, complete the canvass, and
proclaim the winning candidates.” The COMELEC En Banc held that pursuant to
the Omnibus Election Code, the alleged use of fake ballots in the questioned
precincts is not one of the grounds for nullifying the election results. In fact, all the
39 precincts of Lumba-Bayabao functioned during the May 12, 2004 special
elections.
On July 4, 2004, the Municipal Board of Canvassers of Lumba-Bayabao
completed its canvass proceedings and pro-
_______________

 Annex “G,” Petition, Rollo, pp. 124-127.

5

553
VOL. 487, APRIL 19, 2006 553
Galo vs. Commission on Elections
claimed respondent Dagalangit as the winning candidate for mayor of that
municipality. 6

Petitioner now comes to this Court through the instant Petition

for Certiorari alleging that the COMELEC, in issuing the challenged Resolution,
acted with grave abuse of discretion amounting to lack or excess of jurisdiction.
Respondents, in their respective Comments, vehemently opposed the petition and
prayed that the same be dismissed for being utterly unmeritorious.
The petition is bereft of merit.
We cannot sustain petitioner’s contention that the COMELEC En Banc gravely
abused its discretion in dismissing his petition for a declaration of a failure of
elections and for the annulment of the election results. Section 6 of the Omnibus
Election Code prescribes the conditions for such a declaration, thus:
Section 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 fixed,
or had been suspended before the hour fixed by law for closing of the voting, or after the
voting and during the preparation and the transmission of the 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 the verified 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 but not later than thirty days after
the cessation of the cause of such postponement or suspension of the election or failure to
elect. (Emphasis supplied)
In Tan v. COMELEC,  we held that the above provisions lay down three instances
7

where a failure of election may be

_______________

 Par. 11, public respondent’s Comment, Rollo, pp. 733, 738.

6

 G.R. Nos. 148575-76 and 152882-83, December 10, 2003, 417 SCRA 532.
7
 554
554 SUPREME COURT REPORTS ANNOTATED
Galo vs. Commission on Elections
declared, namely: (1) the election in any polling place has not been held on the date
fixed on account of force majeure, violence, terrorism, fraud or other analogous
causes; (2) the election in any polling place has been suspended before the hour
fixed by law for the closing of the voting on account of any of such causes; or (3)
after the voting and during the preparation, transmission, custody or canvass of the
election returns, the election results in a failure to elect on account of any of said
aforementioned causes. In all instances, there must have been a failure to
elect. This is obvious in the first two scenarios, where the election was not held and
where the election was suspended. As to the third scenario, the circumstances
attending the preparation, transmission, custody or canvass of the election
returns cause a failure to elect. The term failure to elect means “nobody
emerges as a winner.” 8

The established rule is that the nature of an action and the jurisdiction of the
tribunal are determined by the law and the allegations in the petition regardless of
whether or not the petitioner is entitled to the relief sought.  Here, it is not disputed
9

that all the 39 precincts in Lumba-Bayabao functioned in the May 12, 2004 special
elections. And as correctly observed by respondent COMELEC En Banc, petitioner
himself failed to allege in his petition that no election was conducted; and that the
use of fake ballots is not a ground to declare a failure of elections.
In Mitmug v. Commission on Elections,  we further held that before the
10

COMELEC can act on a verified petition seeking to declare a failure of election, two
conditions must concur: first, no voting has taken place in the precinct or precincts
on the date fixed by law or, even if there was voting,
_______________

8
 Typoco, Jr. v. Commission on Elections, G.R. No. 136191, November 29, 1999, 319 SCRA 498.
9
 Tan v. Commission on Elections, supra.
10
 G.R. Nos. 106270-73, February 10, 1994, 230 SCRA 54.
555
VOL. 487, APRIL 19, 2006 555
Galo vs. Commission on Elections
the election nevertheless results in a failure to elect; and, second, the votes cast
would affect the result of the election. In the case at bar, both conditions are not
present.
Petitioner himself admits in his petition that during the special election, voting
took place in the questioned precincts. He also failed to show that the votes cast
would affect the results of the election.
Petitioner also questions the COMELEC’s nullification of his proclamation on
May 20, 2004 by the Municipal Board of Canvassers. We sustain the COMELEC En
Banc’s action. As shown by the records, petitioner was proclaimed as mayor on the
basis of the results of “the elections held on May 10, 2004.”  As stated earlier, no
11

election was held on that day.

 In fine, the COMELEC, in issuing the assailed Resolution, did not act with grave
abuse of discretion.
WHEREFORE, the petition is DISMISSED. Costs against petitioner.
SO ORDERED.
     Panganiban (C.J.), Ynares-Santiago, Carpio, Austria-Martinez, Corona, Car
pio-Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, Garcia and Velasco, Jr., JJ.,
concur.
     Puno, J., On Leave.
     Quisumbing, J., No Part. Former counsel of family of a party.
Petition dismissed.
Notes.—Where the propriety of a pre-proclamation controversy ends, there may
begin the realm of a special action for declaration of failure of elections. (Loong vs.
Commission on Elections, 257 SCRA 1 [1996])
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11
 See Annex “F” (Certificate of Canvass of Votes and Proclamation of the Winning Candidates for
Municipal Offices), Petition, Rollo, p. 123.
556
556 SUPREME COURT REPORTS ANNOTATED
Tower Industrial Sales vs. Court of Appeals
Where it becomes apparent that a pre-proclamation suit is inadequate, lawyers
handling election cases should immediately choose another timely remedy, like a
petition to annul the election results or to declare a failure of elections or even an
election protest, so that election irregularities may be fully ventilated and properly
adjudicated by the competent tribunal. (Matalam vs. Commission on Elections, 271
SCRA 733 [1997])

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