Republic of the Philippines

COMMISSION ON ELECTIONS
Intramuros, Manila SECOND DIVISION NEIL PARONDA, Protestant-Appellee, -versusPEDRO B. SALAZAR, Protestee-Appellant, x-----------------------------------x EAC (Brgy-SK) No. 212-2011

APPELLEES BRIEF
Protestant-appellee NEIL PARONDA, by the undersigned counsel, unto the Honorable Commission on Elections, most respectfully states that: TIMELINESS OF THE FILLING OF APPELLEES BRIEF

I.

On July 7, 2011, the undersigned counsel received a Notice from this Honorable Commission that Protestant-Appellee should file his Appellees Brief within thirty (30) days after his receipt of the Appellants Brief. On August 18, 2011, the Appeallants Brief of the Protestee-Appellant PEDRO SALAZAR was received by the undersigned. The thirtieth day after August 18, 2011 is September 17, 2011, but since September 17, 2011 is a Saturday, the last day for the filing of Appellees Brief will be on September 19, 2011, a Monday. Therefore, the filing of this Appellees Brief is timely.

II.

COUNTER-STATEMENT OF FACTS

1. The Revision of Ballots was conducted in accordance with pertinent laws, rules, and jurisprudence. The result of the Revision Proceedings in Election Protest No. 69 may be a big, shocking, and horrible surprise to the protestee-appellant, but, with all due respect, it should not be seen as such per dictates of simple logic and arithmetic. The Revision of Ballots in Election Protest No. 69, including Election Protest Nos. 70 and 71, was conducted in accordance with law, rules, and jurisprudence.
1

Aside from the proceedings in such Revision, the

Decision that was penned by the Honorable respondent judge of MTC Caramoan, Camarines Sur was also in accordance with law, rules, and settled jurisprudence. This fact will be further discussed later. This Honorable
1

Please see the Revision Reports dated January 3 and 4, 2011.

Commission will see that there is no spurious ballot to speak of since there really was no ballot that was unearthed during the Revision of Ballots that satisfies the qualifications laid down by the law, rules, and jurisprudence for a ballot to be considered as spurious.2 2. Judicial admission that some of the ballots are spurious is not a ground to declare a ballot as spurious. If indeed there was such admission, the ballots in question (Exhibits 113, 124, 194, 197, 205, 110, 112, 156, 170, 196, 201, 206, and 220 for the protestant) should not be treated as spurious because judicial admission does not satisfy the standard set by A.M. No. 07-4-15-SC and Libanan vs. House of Representatives Electoral Tribunal (HRET),3 to treat a ballot as spurious. Furthermore, such admission does not affect protestant-appellee NEIL PARONDA because it was allegedly made during the revision in Election Protest Nos. 70 and 714 and not in Election Protest No. 69. This is a separate case with a separate Revision Proceedings and Revision Reports. This argument will be thoroughly and further discussed later. 3. No evidence that some individuals tinkered with the result of the contested Elections. Protestee-appellant has no proof that some interested individuals tinkered with the result of the Barangay Elections in Bikal, Caramoan, Camarines Sur by introducing spurious ballots in the ballot boxes contrary to the allegations made by protestee-appellant on page 17 of his Appellants Brief. In fact, it was established during the Revision Proceedings that the election paraphernalia that were used during the October 26, 2011 Barangay and SK Elections were properly preserved and kept. Let us take a look at the following exchanges in open court: TSN, 3 January 2011, pages 4-5 xxx Chairman: We now open Precinct No. 0020A and 0020B. Envelope for the key for the ballot box properly sealed with serial number 1349245. Atty. Alarcon: In the ballot box there is only one padlock. Chairman: The key taken from the envelope no. 134-9245. Atty. Alarcon: The key taken from the envelope Precinct 0020A 0020B with Serial No. 1349247.
2

Please see the Revision of Ballots dated January 3 and 4, 2011 and the Decision of the court a quo dated May 6, 2011.
3 4

GR No. 129783, 22 December 1997 Please see page 13 of the Appellants Brief and the January 20, 2011 TSN.

Miss Arteta: We would like to put on record that keys in the envelope 0020A 0020B [were] able to open the padlock in ballot box, can you please take the serial number of the ballot box[?] Chairman: Ballot box No. CE 9548407 Only the Precinct No. 0020A 0020B of Bikal, Caramoan, Camarines Sur. Atty Alarcon: The metal seal is properly placed in the ballot box. Atty Alarcon: We found another padlock inside the ballot box. Miss Arteta: There is also a metal seal inside the ballot box. Atty. Alarcon: Another metal seal which properly sealed the key taken from envelope no. 1349245 were able to open the padlock inside the ballot box which is properly placed. (Boldfacing is supplied for emphasis) xxx It is obvious that since the metal seals were still intact when the ballot boxes were re-opened during the Revision of Ballots. Therefore, it is very unlikely that evil and fraudulent hands manipulated the entries in the ballots between the counting of the votes during the contested elections and the Revision proceedings since the contents of the ballot boxes were secured as evidenced by the presence of such metal seals. 4. The disallowance of the technical examination was nobodys fault but the protestee-appellants. Although protestee-appellant PEDRO SALAZAR did move for technical examination and the same was denied by the Honorable Court, it was not the fault of the Honorable Court and protestant-appellee NEIL PARONDA because protestee-appellant slept with his right to present a technical expert. Therefore, the denial of protestee-appellants Motion for Technical Examination was reasonable. Such denial was based on Section 1, Rule 11 of A.M. No. 07-4-15-SC since it was established during the oral arguments rules.5 5. The Notice of Appeal of protestee-appellant PEDRO SALAZAR was not timely filed and not perfected. The Second Division of this Honorable Commission will see during the course of this Brief that protestee-appellants filing of his notice of appeal was in violation of Section 8, Rule 14 of A.M. No. 07-4-15-SC because, that protestee-appellant filed his Motion for Technical

Examination at least one (1) day after the five-day period provided by the

Please see pages 20-29 of TSN dated 16 March 2011, 9:30 AM.

as admitted by protestee-appellant himself, he filed it on May 11, 20116 which is earlier than the promulgation of the Decision being assailed in this appellate case. The above-mentioned rule is clear that appeal should be made AFTER promulgation of the case. Therefore, it is INCORRECT to say that the appeal made by protestee-appellant was timely filed and duly perfected when there is even no notice of appeal to speak of. 6. Protestee-appellant failed to mention in his statement of facts that the Decision in question was submitted to the Clerk of Court on May 9, 2011 and that copies of which were sent to the parties counsel thereafter. It is important to state those facts because they are important discussions in the issue on promulgation of said Decision. Said Decision was submitted to the Clerk of Court on May 9, 2011 7 and copies of which were sent to parties counsel pursuant to Section 4, Rule 14 of A.M. No. 07-4-15-SC. The copy for protestant-appellee was received by the undersigned on May 18, 2011.8 Therefore, promulgation was completed upon receipt of the parties pursuant to Section 4, Rule 14 of A.M. No. 07-4-15-SC.

III.

COUNTER-ARGUMENTS

On his Appellants Brief, protestee-appellant raised three (3) issues and six (6) sub-issues concerning the alleged errors committed by the court a quo in rendering its May 6, 2011 Decision. They are the following, and we quote: 1. Whether or not the Honorable Municipal Trial Court seriously and palpably erred in relying on the result of the Revision of Ballots and not on the three election returns and certificate of canvass in violation of the well-established ruling of the Supreme Court in a number of cases including that enunciated in the fairly recent case of Mayor Noel E. Rosal vs. Commission on Elections, et al. 1.1 Whether or not the Honorable Municiapal Trial Court seriously and palpably erred in failing to consider a number of ballots as spurious based on parties own judicial admissions in the light of the provision of Section 4, Rule 129, Rules of Court;

Please refer to herein protestee-appellants Notice of Appeal dated May 11, 2011; also to paragraph 4.5 of the Petition for Certiorari and Prohibition filed by protestee-appellant in the case Salazar vs. Judge Aganan, et al. (SPR (Brgy.-SK) No. 74-2011), a copy of which is attached hereto and marked as Appendix 1.
7 8

Please see the received stamp on the upper right of the Decisions first page.

Please see Comment on Protestees Vigorous Opposition dated May 26, 2011, a copy of which is attached hereto and marked as Appendix 2; please see also the return card from the records.

1.2 Whether nor (sic) not the Honorable Municipal Trial Court seriously and palpably erred in failing to consider a number of ballots as spurious claimed in court as such by appellee Paronda and agree to or admitted by herein appellant Salazar; 1.3 Whether or not the Honorable Municipal Trial Court seriously and palpably erred in considering as valid the votes in the ballots which mysteriously and without any explanation bear the name of the municipality of Balayan, Batangas, a municipality several hundred miles and entirely different, from Caramoan, Camarines Sur.

2. Assuming that the revised ballots could be appropriately considered, whether or not the Honorable Municipal Trial Court seriously and palpably erred when he failed to deduct seventy (70) votes from the total votes of appellee Paronda consisting of 3.1. The votes in the spurious ballots as claimed and expressly judicially admitted by both appellee Paronda and appellant Salazar during the Revision of Ballots; 3.2. The votes in the spurious ballots claimed in court as such by appellee Paronda and agreed to or admitted by herein appellant Salazar as spurious ballots; 3.3. The contested votes of appellee Paronda including those whose ballots mysteriously and without any explanation bear the name of the Municipality of Balayan, Batangas, a Municipality several hundred miles and entirely different, from Caramoan, Camarines Sur; and 3.4. The votes in the spurious ballots as identified and testified to by witnesses Regalado Emerenciana and Ricky Dianela, both public school teachers. 3. Whether or not the Honorable Municipal Trial Court seriously erred in preventing appellant from presenting an expert to testify and conduct technical examination of questioned ballots pursuant to Section 1, Rule 11 and Section 8, Rule 10 of the Rules of Procedure in Election Contests before the courts involving (sic) election municipal Barangay officials.
5

Protestee-appellants arguments under the above-mentioned issues will be answered below by protestant-appellee especially that those are mere reiteration of laws, rules, and jurisprudence that were erroneously applied in this case. With all due respect, protestant-appellee presents the following counterarguments: 1. With regard to protestee-appellants first issue, the court a quo did not base its Decision on the result of the Revision Report alone since it is also based its Decision largely on pertinent laws, rules, and jurisprudence; 2. Also with regard to protestee-appellants first issue, it was proven that the ballots that were revised were the very same ballots actually cast and counted in the elections; 3. With regard to protestee-appellants first and second sub-issues under the first main issue, judicial admission does not make a ballot spurious and subject it to rejection; 4. With regard to protestee-appellants third sub-issue under the first main issue, the court a quo did not err in considering as valid votes the votes in the ballots intended for Balayan, Batangas. 5. With regard to protestee-appellants second issue, protestant-appellee does not deserve to be stripped off of his seventy (70) votes contrary to protesteeappellants contention for being unlawful. 6. With regard to protestee-appellants third issue, his motion to present a technical expert deserves to be denied. 7. With regard to this appeal case itself, protestant-appellee respectfully argues that this appeal must be DISMISSED for not being properly perfected.

FIRST COUNTER-ARGUMENT (RE: THE FIRST ISSUE)

THE COURT A QUO DID NOT BASE ITS DECISION ON THE RESULT OF THE REVISION REPORT ALONE SINCE IT ALSO BASED ITS DECISION LARGELY ON PERTINENT LAWS, RULES, AND JURISPRUDENCE
It is undeniable that the ballots are the best evidence in ascertaining the will of the electorate. Unless otherwise proven, the ballots shall enjoy their presumption of genuineness and should not be subject to rejection. It is wrong for protestee-appellant PEDRO SALAZAR to conclude that the court a quo based its Decision solely on the results of the Revision of Ballots. If indeed it solely relied on the Revision, then protestant-appellee NEIL PARONDAs margin against protestee-appellant should still be 60 votes as concluded by the Revision Committee. Let us take note that it is stated in the WHEREFORE clause9 of the assailed Decision that the margin between the two contending parties is only 27. Why only 27 from 60? It is because the court a quo based its Decision on pertinent laws, rules, and jurisprudence governing the appreciation of ballots and did not hastily conclude that the results of the Revision hearings are indeed the result of the October 26, 2011 Decision. To further enlighten the 2nd Division of this Honorable Commission and to show that some votes garnered by protestant-appellee during the Revision of Ballots were not credited to him by the court a quo due to some legal reasons, let us take a look at pages 32 to 39 of the assailed Decision. These pages contain the illustration and explanation of the Honorable Municipal Trial Court of Caramoan, Camarines Sur of its ruling.

Page 40 of the Decision.

SECOND COUNTER-ARGUMENT (ALSO RE: FIRST ISSUE)

IT WAS PROVEN THAT THE BALLOTS THAT WERE REVISED WERE THE VERY SAME BALLOTS ACTUALLY CAST AND COUNTED IN THE ELECTIONS
Protestee-appellant is also mistaken by his argument that it should be the Certificates of Canvass that should be appreciated over the ballots. With due respect, the ballots are the best evidence to show the results of the election and not the Certificates of Canvass or other election paraphernalia. This rule is applicable in this case since it was established during the Revision proceedings that there was no way that a post-election intervention or fraud was made since the contents of the ballot boxes were secured as evidenced by the presence of the METAL

SEALS.10 To reiterate again, pages 4 to 5 of the 3 January 2011 TSN say it all. The
exchanges in open court may be referred to pages 2 to 3 of this Brief. Even the Election Officer11 of Caramoan, Camarines Sur said so: xxx

Court: The Court will ask, if the metal seal is forced open, do you know how can it be returned to the original state? Ms. Fe Hufancia: If the metal seal is forced to open[,] it cannot be returned in the original state. (TSN, 11 January 2011, 1:30 PM page 7) xxx
So it is very unlikely or impossible that the ballots that were revised during the Revision proceedings were tampered with since the metal seals and the ballot boxes themselves were in tact before the re-opening of the ballot boxes. This fact is even admitted by protestee-appellant.12 Therefore, we can be sure that those are the original ballots used during the October 26, 2011 Barangay and SK Elections.

10

Please see the Revision of Ballots dated January 3 and 4, 2011 and the Decision of the court a quo dated May 6, 2011; also page 31 of the assailed Decision.
11 12

Miss Fe Hufancia. Please see pages 5 and 7 of TSN dated January 3, 2011; also page 8 of TSN dated January 11, 2011, 1:30 PM.

As to the genuineness of the ballots, there is no doubt that those are genuine ballots. As mentioned above, ballots enjoy the presumption of genuineness unless refuted. Section 6, Rule 13 of A.M. No. 07-4-15-SC states that:

Disputable presumptions. The following presumptions are considered as facts, unless contradicted and overcome by other evidence: xxx (b) On election paraphernalia: (1) Ballots and election returns that bear the security markings and features prescribed by the Commission on Elections are genuine; xxx (c) On the appreciation of ballots: (1) A ballot with appropriate security markings is valid. xxx
On January 11, 2011, at 1:30 in the afternoon, the court a quo inquired about the security markings and vital information relative to the ballots and election documents pursuant to Section 8, Rule 10 of A.M. No. 07-4-15-SC. The exchanges of such inquiry can be found on pages 2 to 8 of the TSN dated January 11, 2011 at 1:30 PM. During said inquiry, it was established that the security markings were present, therefore rendering the ballots in this case as eligible to fall under the presumption laid down by Section 6, Rule 13. With all due respect, the case13 cited on page 21 of the Appellants Brief is not applicable in this case since the ballots have not been tampered with. It is clear that between the counting of votes and the re-opening of the ballot boxes during the Revision proceedings, the ballot boxes were kept safe and the integrity of the contents thereof were unharmed. Protestant-appellee NEIL PARONDA did not need to prove such fact himself because it was already proven (and admitted by protesteeappellant) in open court. Furthermore, protestee-appellant failed to destroy such presumption because their evidences were either weak or devoid of any weight. Firstly, he failed to present technical witness that would testify in his favor. Secondly, his witnesses are not credible enough to be given any weight. And thirdly, he has
13

Rosal vs. COMELEC, GR No. 168253 citing Cailles vs. Gomez.

no other evidence disputing the above-mentioned presumptions other than selfserving allegations that the ballots are spurious. Therefore, the presumption laid down by Section 6, Rule 13 of A.M. No. 07-4-15-SC should remain.

THIRD COUNTER-ARGUMENT (RE: THE FIRST AND SECOND SUBISSUES UNDER THE FIRST MAIN ISSUE) -

JUDICIAL ADMISSION ALONE DOES NOT MAKE A BALLOT SPURIOUS AND SUBJECT THE SAME TO REJECTION
One of the court a quos bases in rendering its Decision is Section 48 of COMELEC Resolution No. 9030, which states that in the appreciation of ballots, every ballot shall be presumed valid unless there is clear and good reason to justify its rejection. Said rule is in corroboration with the Supreme Courts pronouncement in Libanan vs. HRET:14

xxx A ballot is considered valid and genuine for as long as it bears any one of these authenticating marks, to wit: (a) the COMELEC watermark, or (b) the signature or initials, or thumbprint of the Chairman of the BEI; and (c) in those cases where the COMELEC watermarks are blurred or not readily apparent to the naked eye, the presence of red and blue fibers in the ballots. It is only when none of these marks appears extent that the ballot can be considered spurious and subject to rejection. (Boldfacing is supplied for emphasis)

As we can see, judicial admission is not included as among those grounds to consider a ballot as spurious contrary to protestee-appellants contention that some of the ballots, particularly Exhibits 113, 124, 194, 197, 205, 110, 112, 156, 176, 196, 201, 206, and 220 for the protestants. Protestant-appellee PEDRO SALAZAR is mistaken to cite Section 4, Rule 129 of the Rules of Court because this is an election case. Section 4, Rule 1 of the Rules of Court states that the rules of court shall not apply to election cases. Section 4 of Rule 129 cannot be applied even by analogy or in suppletory character since Libanan case and A.M. No. 07-4-15-SC are clear on the matter. This fact was also noted by the Supreme Court in the case Tabanda vs. Court

14

Supra.

10

of Appeals and Rosal.15 We should, therefore, exclude judicial admission as among those grounds in declaring a ballot as spurious because of the legal maxim in statutory construction expressio unius est exclusio alterius (what is not included should be deemed excluded).16 The court a quo was correct in not considering the ballots subject of the alleged admissions because of the following reasons: 1.) presence of signatures at the back of the ballots;17 2.) presence of security fibers; and 3.) absence of compelling evidence that those ballots are spurious. Furthermore, if we will exclude those ballots granting that protestee-appellant is correct, it will still not affect the result. Let us take a look: 1. Per the assailed Decision, protestant-appellee has a 27-vote advantage over protestee-appellant; 2. If we will rule that Exhibits 113, 124, 194, 197, and 205 for the protestantappellee (5 ballots) are spurious as alleged by protestee-appellant,18 protestantappellee still has twenty-two (22) more votes than the former; 3. If we will rule that Exhibits 110, 112, 156, 176, 196, 201, 206, and 220 for the protestants (8 ballots) are spurious as alleged by protestee-appellant,19 protestant-appellee still has fourteen (14) more votes than the former.

Therefore, protestee-appellant is just wasting time in insisting that those thirteen (13) ballots are spurious because not only that he is mistaken, but also because such allegation does not help his cause.

15 16 17 18 19

GR No. L-2695, 28 May 1951 Malinas vs. COMELEC, et al., GR No. 146943, 4 October 2002. Please see all ballot exhibits. Page 14 of the Appellants Brief Pages 15 and 16 of the Appellants Brief

11

FOURTH COUNTER-ARGUMENT (RE: THIRD SUB-ISSUE UNDER THE FIRST MAIN ISSUE)

THE COURT A QUO DID NOT ERR IN CONSIDERING AS VALID VOTES THE VOTES IN THE BALLOTS INTENDED FOR BALAYAN, BATANGAS
According to protestee-appellant PEDRO SALAZAR, Exhibits 37 to 70 for protestant-appellee should be considered as spurious for bearing the name Balayan, Batangas instead of the name Caramoan, Camarines Sur. With due respect, protestantappellee NEIL PARONDA desires that the Honorable Commission review the allegation of protestee-appellant PEDRO SALAZAR that Exhibits 37 to 70 are votes for protestantappellee NEIL PARONDA. It could seem to mean that said protestee-appellant is praying this Honorable Commission to invalidate 34 votes from protestant-appellee because, according to him, Exhibits 37 to 70 are spurious ballots. Again, with due respect, it is the contention of protestant-appellee that such Exhibits are not spurious ballots and we will explain this as we go along. Yet, these allegations of protesteeappellant are misleading, and even granting that Exhibits 37 to 70 are spurious ballots because of the name Balayan, Batangas, still, NEIL PARONDA, the protestantappellee, will win the elections. This is so because protestant-appellee has reviewed the ballots denominated as Exhibits 37 to 70 where, indeed, there appears the name of the municipality of Balayan, Batangas. This Honorable Commission will agree, as it takes another look at these Exhibits, that of the 33 votes, SIXTEEN ballots under the name Balayan, Batangas appear to be votes for protestant-appellee NEIL PARONDA, FOURTEEN ballots contain votes for protestee-appellant PEDRO SALAZAR. This means that even if these Exhibits are considered as spurious, still, only TWO votes are the definite difference between the votes of Salazar and Paronda. The rest of the votes in the alleged spurious ballots were those votes for the third candidate, namely Jose Delloba. Again, it is humbly stated, that Exhibits 37 to 70 are NOT SPURIOUS BALLOTS Again, expressio unius est exclusio alterius. It is not among those grounds to consider the ballots as spurious. With all due respect, it is protestee-appellant who entirely missed the point. Nothing in the law, the rules, or jurisprudence supports his contention that ballots such as Exhibits 37 to 70 for protestant-appellee should be deemed as spurious. The reason why ballots for Balayan, Batangas were present is just a simple mistake. BUT, protestee-appellant is apparently blaming the Commission on

12

Elections for sending ballots intended for Balayan, Batangas to Caramoan, Camarines Sur. It is actually an allegation of negligence on the part of the COMELEC. However, what is important is the will of the electorate of Bikal, Caramoan, Camarines Sur and not this mundane fact. To reiterate, it was proven that the ballots that were counted during the Revision were the same ballots used during the elections. If indeed there was something fishy about those ballots, then why is it that protestee-appellant did not raise any objection during the Revision? In fact, he actually admitted that the metal seals were actually intact.20 FIFTH COUNTER-ARGUMENT (RE: SECOND ISSUE)

CONTRARY TO PROTESTEEAPPELLANTS ARGUMENT, PROTESTANT-APPELLEE DOES NOT DESERVE TO BE STRIPPED OFF OF HIS SEVENTY (70) VOTES BY VIRTUE OF COMELEC RESOLUTION 9030 AND THE FACT THAT PROTESTEEAPPELLANTS WITNESSES DO NOT HAVE CREDIBILITY
The court a quo cannot just magically add some votes to protestant-appellee NEIL PARONDA. He was present during the revision, he reviewed the ballots, and he ruled on the ballots in accordance with law, rules, and jurisprudence. The following votes were and should be credited to protestant-appellee (with explanation why it should be credited to him) despite the contention of protesteeappellant:

Exhibit No. 26 for protestant 27 for protestant 21 for protestee 29 for protestant

Total Added votes 1 2

3 4

Rationale Neighborhood rule Section 48 (g) of COMELEC Resolution No. 9030 (idem sonans). The word written is Puronda. Section 48 (m), supra. The word written is Itoy, the nickname of protestant-appellee. Section 48 (g), supra. The word written is Niel, referring to the first name of protestantappellee.

20

TSN, 3 January 2011, pages 4-5

13

24 for protestee 33 for protestant 34 to 37 protestant 38 for protestant 39 for protestant 40 to 42 protestee 43 for protestee

5 6 for 17 18

Section 48 (g), supra. The vote is Parondo. Section 48 (g), supra. The vote is Nel Paroda. Section 48, supra. Section 48 (g), supra. The vote is Nel P. Nel refers to the first name of protestant-appellee while P. is the first letter of his surname. Section 48, supra. The vote is Neil Paronda, the exact name of protestant-appelle. Section 48 (g), supra. Exhibit 42 has the name Nil Paronda. Section 48 (a), supra. The vote is Neil, the first name of protestant-appellee. Section 48 (g), supra. The votes are N. Parowda and Farondad, respectively. Section 48 (a), supra. The vote is Paronda. Section 48 (g), supra. The vote is Nil Parda. Section 48, supra. The vote is Neil Paronda. Section 48 (g), supra. The vote is Nill. Section 48 (a), supra. The vote is Neil. Section 48 (j), supra. The vote is N. Paronda. Section 48 (g), supra. The vote is Nill P. Section 48, supra. The vote is Paronda Neil.

19 for 22 23 25 26 27 28 29 30 31 32 33 33

44 and 45 for protestee 46 for protestee 47 for protestee 64 for protestee 72 for protestant 66 for protestee 67 for protestee 75 for protestant 69 for protestee TOTAL ADDED VOTES

Also, twenty-two (22) votes for protestant-appellee should not be deducted from his votes since the testimonies of Regalado Emerenciana and Ricky Dianela are devoid of any credibility. According to them, some ballots contain signatures at the back thereof which do not correspond to his signature because, quoting him, I know when one is not mine and which signature was (sic) mine theres no need for an expert to determine the difference because comparison (sic) with my signature in (sic) this, will tell the difference (please see pages 30 to 46 of TSN dated March 16, 2011, 9:30 in the morning). However, it was shown later in the cross examination that the witness was confused on the following matters: 1. The ex-officio notary public who signed the jurat portion of his sworn statement, according to Regalado Emerenciana, was Fiscal Rosales who signed but He said that it was Fiscal Rosales but he later pointed to Prosecutor Esperidion Solano, Prosecutor II of Camarines Sur, as the Fiscal who administered the oath. Sadly, as a badge of incredibility, witness for the protestee maintained that it was Prosecutor Solano, whose office was at Pili, Camarines Sur, who signed the affidavit at Caputatan, Camarines Sur. This alone is a certain budge of either the incompetency or the incredibility of the witness Emerenciana; and 2. For instance, witness Regalado Emerenciana at first, claimed that Exhibit 212 contained a signature at the back thereof that is not his signature. However, on

14

further questioning, he admitted that he is not sure whether the signature was his or not his. This happened in numerous other ballots.

The above-mentioned declaration of Chairman Emerenciana cannot be given any weight since his credibility was destroyed during the cross examination as shown above. By using the principle falsus in uno, falso in omnibus, the entire declaration of Emerenciana must be stricken off for being an incredible testimony. It is obvious that Emerenciana was either favoring the petitioner or covering up his negligence in counting the votes, or both. With due respect, witness Emerenciana finds it very easy for a person to deny a signature. This fact is confirmed by the wife of the private respondent, who declared in open court that Emerenciana was biased by not allowing the pollwatchers for Paronda to witness the counting of votes (please see TSN, 14 April 2011 1:30 PM). Let us take a look: TSN,16 March 2011, 1:30 PM, pages 15 and 16: xxx QUESTION: Mr. Witness, you identified this morning Exhibit 212 this is vote for Neil Paronda and you said that the signature is not yours because the vote is for Paronda. ATTY. LEGACION: Misleading, Your Honor, that was not the reason. ATTY. MANLAGNIT: Alright, I will remove Neil Paronda. You said that is not your signature, is that correct in Exhibi 212? Your Honor, let the counsel not lead the witness. COURT: You distance, Atty. Legacion. ATTY. MANLAGNIT: You said this morning that this is not your signature is it not or are you having doubts? ANSWER: I doubt sir. ATTY. MANLAGNIT: So this could be your signature or could not be your signature? A: (No answer). Q: In Exhibit 63 I am showing to you the same signature, is that your signature? A: That is my signature in Exhibit 63. Q: Are you sure this is your signature? A: Yes, sir.
15

Q: But this one although it looks the same at the signature in Exhibit 63 you cannot ascertain whether it is your signature. I am referring to Exhibit 212, you cannot be sure that is your signature? A: Yes, sir. (Boldfacing and underlining are supplied for emphasis) xxx

Chairman Emerenciana seems to have a selective memory. A while ago, he categorically stated that Exhibit 212 contains a signature that is not his and that I know when one is not mine and which signature was (sic) mine theres no need for an expert to determine the difference because comparison (sic) with my signature in (sic) this, will tell the difference. And then all of a sudden, during the cross examination, he is not sure. To corroborate with the fact that Chairman Emerenciana was not being truthful with his statements, protestant-appellees witness and wife, ROWENA PARONDA, testified in open court on April 14, 2011 at 1:30 in the afternoon that Chariman Emerenciana was biased. According to Mrs. Paronda, Emerenciana did not allow protestant-appellees pollwatchers to observe the counting of the votes. Also, the testimony of Ricky Dianela is questionable. He admitted that he did not personally appear before the notary public to subscribe and swear his affidavit21 that constituted his direct testimony as prescribed by paragraph 4 of Section 1, Rule 13 of A.M. No. 07-4-15-SC. THIS IS A GREAT FLAW AND VIOLATION OF HIS DIRECT TESTIMONY REQUIREMENT.

SIXTH COUNTER-ARGUMENT (RE: THIRD ISSUE)

PROTESTEE-APPELLANTS MOTION TO PRESENT A TECHNICAL EXPERT DESERVED TO BE DENIED

Please see TSN, 14 April 2011, 9:30 AM

16

On March 16, 2011, the issue had already been settled as evidence of the exchanges in open court:22

Atty. Manlagnit: Your Honor, during the recess everybody helped in locating to the record the date of receipt of the completion of the revision and it states from the order that it was received by Atty. Legacion on February 7, 2011. Court: February 7 order referring to the completion of Committee Revision report of the Election protest No. 69. Atty: Manlagnit: Now, Your Honor[,] counsel has pointed out to the Honorable Court that there is allegedly, according to him, a modified order but that modified order was received by no less that the parties Salazar, the protestee in Election Case No. 69. With that Your Honor we submit that the 5 day period had lapsed even if we count from February 7, 2011 from the motion of Atty. Legacion that motion is dated February 17, so even if we grant that the receipt was February 11, 2011 still the 5 day period had already lapsed. (Boldfacing is supplied for emphasis)
Therefore, it is clear as the sun that the court a quos denial of protesteeappellants motion to present a technical expert was well deserved. Protesteeappellant PEDRO SALAZAR himself slept with his right to present a technical expert, and he cannot fault protestant-appellee NEIL PARONDA or the Honorable Court.

IT WAS PROTESTEE-APPELLANTS FAULT ALLOWED TO PRESENT A

WHY HE WAS NOT TECHNICAL EXPERT.

22

Pages 20 to 29 of TSN dated March 16, 2011, 9:30 AM.

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SEVENTH COUNTER-ARGUMENT -

THIS APPEAL MUST BE DISMISSED FOR NOT BEING PERFECTED AND IMPROPERLY FILED

It has been held that the right to appeal is a mere statutory privilege and may be exercised only in the manner prescribed by, and in accordance with, the provision of law.23 If there is a defect in appellants appeal, such appeal must be dismissed, especially if the defect is with regard to the period allotted by law to perfect an appeal. Perfection of an appeal within the period and in the manner prescribed by law is jurisdictional and non-compliance with such legal requirements is has the effect of rendering the judgment final and executory.24

FATAL and

In this case, the appeal made by protestee-appellant PEDRO SALAZAR is in violation of Section 8, Rule 14 of A.M. No. 07-4-15-SC. Therefore, his notice of appeal did not constitute as perfection of this appeal, and jurisdiction is not properly bestowed to this Honorable Commission.

Section 8 above states that appeal of the Decision to the Commission on Elections must be done within 5 days after promulgation of the Decision. In this case, protestee-appellant filed his notice of appeal on May 11, 2011.

Per Section 4, Rule 14 of the same rules of procedure states that promulgation may be done by either of the following methods: 1. By reading of the dispositive portion in open court and its filing with the clerk of court; or 2. Through delivery of a copy of the signed decision to the clerk of court who shall forthwith indicate the DATE OF RENDITION and cause true copies thereof to be served, personally or by registered mail, upon the counsel or the parties, if not represented by counsel.

23 24

Calucag vs. Commission on Elections, 274 SCRA 405 Laza vs. Court of Appeals, 269 SCRA 654

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In this case, the court a quo chose to promulgate the Decision through delivery. The copy of said Decision was received by the parties counsel on May 18, 2011. The receipt of the parties counsel must be the date of promulgation. We should take note that the date of rendition is different from promulgation, therefore making it impossible for the Decision to be promulgated on May 6, 2011. Furthermore, copies of the Decision must be sent to parties counsel, making it impossible for the Decision to be promulgated on May 9, 2011.

Section 8, Rule 14 is clear that appeal must be made AFTER the promulgation. This period provided by the rules must be followed strictly since appeal is just a mere statutory privilege. Failure to follow this prescribed period also fails the acquisition of jurisdiction by the appellate court such as this Honorable Commission since perfection of an appeal within the statutory or reglamentary period is not only mandatory but also jurisdictional.25 Therefore, this appeal case must not be given due course and must be DISMISSED for lack of jurisdiction. Dismissal of an appeal for lack of appellate jurisdiction based on a partys failure to perfect his appeal on time is not a technicality26 and a party who has not himself appealed cannot obtain from the appellate court any affirmative relief than those granted in the decision of the lower court.27

On this premise, the Decision in Election Protest No. 69 deserves to be executed for being final and executory and for the failure of protestee-appellant to perfect his appeal within the period set by the rules. The Supreme Court said in the case Gutierrez vs. Commission on Elections28 that one cannot but perceive the wisdom of allowing the immediate execution of decisions in election cases adverse to the protestees, xxx as long as there are, in the sound discretion of the court, good reasons therefor.

IV.

CONCLUSION

Being the best evidence, the ballots told us loud and clear that protestantappellee NEIL PARONDA is the duly-elected Punong Barangay of Bikal, Caramoan, Camarines Sur. What transpired during the counting of votes by the Board
25 26

Asuncion vs. NLRC, 272 SCRA 704 Calucag vs. Commission on Elections, supra 27 Quintanilla vs. Court of Appeals, 279 SCRA 397 28 270 SCRA 413

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of Election Inspectors during the elections is either misreading of votes or blatant partiality in favor of protestee-appellant PEDRO SALAZAR. Rosal vs. COMELEC is not a binding precedence in this case since the integrity of the ballots were kept safe and such facts was established during the course of the Revision proceedings in Election Protest Nos. 70, 71, and 72. Pursuant to the assailed Decision dated May 6, 2011, protestee-appellant NEIL PARONDA got 317 while protestee-appellant got 290, a difference of 27 votes in favor of the former.

V.

PRAYER

WHEREFORE, it is most respectfully prayed of this Honorable Commission on Elections that judgment be rendered AFFIRMING the Decision of the May 6, 2011 Decision of the Municipal Trial Court of Caramoan, Camarines Sur proclaiming herein protestant-appellee as the duly elected winner of the October 26, 2011 Barangay and SK Elections for the position of Punong Barangay and this appeal case be DISMISSED for lack of merit and jurisdiction. It is likewise prayed that said Decision be EXECUTED for being final and executory. Naga City for Manila, 19th September 2011.

GUALBERTO C. MANLAGNIT Counsel for Protestant-Appellee Neil Paronda Attorneys Roll No. 17869 PTR No. 8954051 April 15, 2010 IBP No. 846532 January 10, 2011 MCLE No. III-0017143, June 5, 2010 Diamond St., Filoville Subdivision, N.C. Copy furnished by registered mail: Atty. Nelson Legacion Lead counsel for Protestee-Appellant Lot 22, Block 12, Jardin Real Subd. Concepcion Grande, Naga City

The Honorable Municipal Trial Court Caramoan, Camarines Sur

EXPLANATION: Service by registered mail was resorted to due to distance and lack of personnel to effect personal service. GUALBERTO C. MANLAGNIT
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Republic of the Philippines ) City of Naga ) S.S.

VERIFICATION
I, NEIL PARONDA, of legal age, Filipino, married, and a resident of Bikal, Caramoan, Camarines Sur, after being sworn to in accordance with law, do hereby depose and state that: 1. I am the named protestant-appellee in the above-entitled case; 2. I have caused the preparation of this Appellees Brief; 3. I have read the contents thereof; 4. I declare that the contents of this pleading are true and correct; 5. The contents thereof are of my own personal knowledge and based on authentic documents. IN WITNESS WHEREOF, I have hereunto set my hand this 19 th day of September 2011 at Naga City, Philippines.

NEIL PARONDA Affiant SUBSCRIBED and SWORN to before me this 19th day of September 2011 at Naga City, Philippines, affiant satisfactorily proved to me his identity and that he is the same person who executed the foregoing Verification through his Community Tax Certificate No. CCI2010-25588355 issued on June 10, 2011 at Caramoan, Camarines Sur.

NOTARY PUBLIC

Doc. No. _________ Page No. _________ Book No. _________ Series of 2011.

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Republic of the Philippines ) City of Naga ) S.S.

AFFIDAVIT OF SERVICE
I, NEIL PARONDA, of legal age, Filipino, married, and a resident of Bikal, Caramoan, Camarines Sur, after being sworn to in accordance with law, do hereby depose and state that on September 19, 2011, I have sent one (1) copy each of this Appellees Brief to: 1. Atty. Nelson Legacion, with office address at Lot 22, Block 12, Jardin Real Subdivision, Concepcion Grande, Naga City (Registry Receipt No. ________________); and to 2. The Honorable Municipal Trial Court of Caramoan, Camarines Sur (Registry Receipt No. __________________). IN WITNESS WHEREOF, I have hereunto set my hand this 19 th day of September 2011 at Naga City, Philippines.

NEIL PARONDA Affiant SUBSCRIBED and SWORN to before me this 19th day of September 2011 at Naga City, Philippines, affiant satisfactorily proved to me his identity and that he is the same person who executed the foregoing Verification through his Community Tax Certificate No. CCI2010-25588355 issued on June 10, 2011 at Caramoan, Camarines Sur.

NOTARY PUBLIC

Doc. No. _________ Page No. _________ Book No. _________ Series of 2011.

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