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DISSENTING OPINION

DE LEON, JR., J.:

With due respect, I dissent from the majority decision or ponencia of Mr. Justice Artemio V. Panganiban which grants the petition in the case at bench.

Before us is a special civil action for certiorari under Rule 65 which seeks to set aside the Resolution¹ dated June 8, 1999 of the Commission on Elections (COMELEC) en banc in SPA Case No. 97-276, denying petitioners petition to declare a failure of election in Precinct No. 12, Barangay Maidan, Tugaya, Lanao del Sur and to annul the proclamation of private respondent and seven (7) others as winners of the August 30, 1997 barangay special election.d

The petitioner captioned and erroneously stated that the nature of this petition is a "petition for review on certiorari." However, in this verified petition, the petitioner alleges that respondent COMELEC "acted without or in excess of jurisdiction and/or grave abuse of discretion:" (a) in dismissing the petition in SPA No. 97-276 for alleged lack of merit; (b) in not declaring a failure of election on August 30, 1997 and not calling for a special election in Precint No. 12, Barangay Maidan, tugaya, Lanao Del Sur; and (c) in not declaring as illegal, null and void ab initio the proclamation on August 30, 1997 of private respondent as the duly elected Punong Barangay of Barangay Maidan. Petitioner then prays that COMELECs assailed Resolution be reversed, the proclamation of private respondent as Punong Barangay be annulled and that COMELEC be ordered to set a special election in the same precint or barangay. Considering the well-settled rule that what determines the nature of action are the allegations of the complaint or petition, and the character of the relief sought,² and considering the interest of justice, we accordingly treat this petition as a special civil action for certiorari under Rule 65.

During the May 12, 1997 barangay election, petitioner Hadji Rasul Batabor Basher, the incumbent punong barangay, and private respondent Abulkair Ampatua were candidates for the position of punong barangay. However, there was a failure of election in Precint No. 12, the lone precint of Barangay Maidan, prompting the COMELEC to reset the election to June 11, 1997. Unfortunately, there was again a failure of election. Election was reset to August 30, 1997.

Reports submitted to the COMELEC indicated that election was held as re-scheduled, and that private respondent along with Monatao Ebrahem, Lontowa Pokaan, Baser Abdala, Saadia Gonteng, Kodos Mangebarat, Bonsa Mabatao and Kamilo Hadji Rasul were proclaimed as duly elected punong barangay and barangay kagawads, respectively, of Barangay Maidan, Tugaya, Lanao del Sur.

In his letters dated September 2, 1997³ and September 5, 1997⁴ to the COMELEC, petitioner requested that a failure of election be declared in Precinct No. 12. Petitioner claimed:

"x x x

"That in the early morning of August 30, 1997, I together with other candidates for Barangay Officials and registered voters of Precinct No. 12, Barangay Maidan, and several others including local officials and some candidates of other barangays, were in the Municipal Hall of Tugaya, Lanao del Sur to observe and witness the releases (sic) of Ballot boxes and other election paraphernalias (sic) intended for the eight (8) barangays where special elections will be conducted including barangay Maidan;

"That the ballot boxes and other election paraphernalia for the seven (7) barangays were released to the Board of Election tellers and the special elections therein have (sic) functioned but in Barangay Maidan, Tugaya, Lanao del Sur, there was again a failure of election thereat (sic) because of the disagreement among candidates and watchers on (sic) the venue of the voting on account of the presence of an estimated number (sic) of two hundred (200) heavily armed persons in the nearby premises of the Polling Place (sic) of Precinct No. 12, Barangay Maidan at Cayagan Elementaryhool who were determined to commit violence or disrupt and/or disturb the election therein to ensure the victories of their beloved candidates;

"That on account of said serious disagreement and the intercession of local officials, civic and religious not to conduct the special election in Barangay Maidan to avoid bloodshed and loss of lives and damage to properties, it was agreed that no election will be held and so the Acting Election Officer, Mrs. Diana T. Datu Imam, delivered and turn (sic) over the ballot box containing all election paraphernalia intended for Barangay Maidan, Tugaya, Lanao del Sur to Malic Bantuas, OIC Satition (sic) Commander or Chief of Police of said Municipality as evidenced by an acknowledgement Receipt signed by said OIC Station Commander xerox copy of which is hereto attached marked as Annex "A" and formed integral part hereof;

"That after turning over and delivery of said ballot box to the aforesaid OIC Station Commander, the Acting Election Officer left and never returned to the Municipal Hall where I and other candidates had been waiting for further advice from the same Election Officer;

"x x x

"That to my great surprise with other candidates for barangay officials in our barangay and the electors thereat (sic), we learned on the following morning of August 31, 1997, that Acting Election Officer and her alleged designated Board of Election Tellers conducted an election in an unknown place at around 2:00 A.M. of August 31, 1997, without any notice to me and other candidates and the electors themselves (sic) and then allegedly proclaimed some candidates for Punong Barangay and Barangay Kagawads as winners;⁵cräläwvirtualibräry

x x x."

In her unrebutted report to COMELEC Commissioner Manolo B. Gorospe, Election, Officer Mrs. Diana T. Datu Imam recounted the events that took place on August 30, 1997 as follows:

"x x x

"Prior to the Election, on August 29, 1997, I coordinated with the Battalion Commander, Col. Luciano Campos of Malanang, Lanao del Sur and discussed the prevailing peace, and order condition of (sic) Tugaya. Later, I proceeded to the Municipality of Pualas to personally confer with the my (sic) Military In-Charge regarding probable causes of failure of elections that might be imposed (sic) by the people who doesn't (sic) want an election. At 1:30 in the afternoon, the military personnel were deployed in Tugaya on that same day (sic).

"On Election Day, as I was approaching the PNP Headquarters, some religious leaders advised me not to pursue with the election because an election in Tugaya will cause trouble and might trigger bloodshed. The Mayor invited me for a short conference and furnished me a copy of then spurious resolution to bar the holding of election. In return, I gave him a copy of the Memo of Atty. Pio Jose S. Joson and proceeded immediately to distribute the Election Paraphernalia to the respective Military BETs.

"Without further ado, I personally escorted the BETs to their respective polling places westward (sic) of Tugaya at the same time directing the Military to go eastward for Brgy. Maidan, so that I will be going back (sic) to personally supervise their election after delivering the 7 Barangays (sic).

"When I returned to certain (sic) the situation in Maidan, the Mayor, being too hysterical, yelled and threatened me to declare failure of elections in Maidan. When I insisted to personally confirm the probable cause of bloodshed (at Maidan), his armed followers/escorts pointed their guns to me (sic) and my escorts. Likewise, my military escorts pointed their guns to (sic) the mayor and his men men (sic) "Man to Man." The Datus and religious leaders pacified us at the PNP Headquarters.

"After a couple of hours, the military officer and I agreed to adapt (sic) another strategy just to pursue with the elections in Maidan hook or by crook. Considering that they forcibly took away from us the ballot box containing paraphernalia of Maidan, I didn't have any recourse but give them (sic). I turned-over the ballot box to the Acting Chief of Police, Malik Bantuas with proper receipt, taking away from the box the CEF 2 & 2-A, declaring verbally a failure of elections in Maidan just to ease their aggression and so that we could pull-out of the place freely (sic).

"When the tension was slightly alleviated, I directed the military personnel to pull-out of the Municipio and withdrew to a nearby Barangay (for safety) where some of the militaries (sic) were deployed. After planning and coordinating with the Batallion (sic) Commander, we waited for the additional troops (sic) that arrived at around 8:30 in the evening. At the stroke of 9:00 O'clock, we started for Maidan via the national Highway thru the Municipality of Balindong and others thru a short-cut way (sic) eastward of Tugaya. Utilizing the election paraphernalia earlier shipped by the Commission as I have requested (sic) and a ballot box from the PES, we went on with the election (after announcing it over the mosque) peacefully and orderly despite the tiredness (sic) and exhaustion felt by the people the whole day waiting/expecting for the election as I have assured them earlier (sic). The people were very thankful and relieved because the alleged report of creating bloodshed were brazen lie and merely tricks (sic).

"The Special Elections in Tugaya was finished at 3 O-clock a in the morning. All of the 8 Barangays functioned."⁶cräläwvirtualibräry

Petitioner then filed a petition with the COMELEC, docketed as SPA Case No. 97-276, praying that the barangay special election in Precinct No. 12 be declared a failure and that the proclamation of private respondent and the other kagawads be declared null and void. The COMELEC dismissed the petition and found that the barangay special election was held in fact in Barangay Maidan and that it started only at 9:00 o'clock p.m. due to the presence of the Mayor's armed followers who earlier in the day confiscated the original ballot box and pointed their guns at Election Officer Datu Imam and her military escorts. Hence, COMELEC held that the said election is valid inasmuch as Section 22, Article IV of COMELEC Resolution No. 2971 permits the casting of ballots even after 3:00 o'clock p.m. if there are voters within thirty (30) meters from the polling place who have not cast their votes. The COMELEC also considered the importance attached to barangay elections by the barangay electorate as evidenced by the fact that voters of the said Precinct No. 12, which significantly is the lone precinct in Barangay Maidan, continued to stay within the vicinity of the polling place obviously to be able to vote even when the commencement of voting has long been delayed. The COMELEC stressed that this was precisely the case in Barangay Maidan, considering that the barangay election therein has already been postponed twice. The COMELEC pointed out that the two (2) conditions for declaring a failure of election cited in Mitmug v. COMELEC,[7] namely (1) no voting has taken place in the precinct or precincts on the date fixed bylaw or, even if there was voting, the election nevertheless results in failure to elect, and (2) the votes not cast would affect the result of the election, are not present in this case.

Dissatisfied, petitioner filed the instant petition.

The petition is not meritorious.

Petitioner assails the validity of the August 30, 1997 barangay special election on two (2) grounds: first, as to the time when it was conducted, and second, as to the place where it was held. It is not disputed that the said barangay special election in Barangay Maidan was finally conducted from 9:00 o'clock p.m. on August 30, 1997 until 3:00 o'clock a.m. of the following day in view of the presence of the Mayor's armed followers who earlier in the day pointed their guns at Election Officer Datu Imam and her military escorts. It cannot be denied that the COMELEC has the power to declare a failure of election.⁸cräläwvirtualibräry

Petitioner, alleges that candidates and voters were not given prior notice that the said barangay special election would take place in the evening of August 30, 1997; that the designated time for the special election was contrary to Section 22, Article IV of COMELEC Resolution No. 2971, which specifies that voting hours shall promptly start at 7:00 o'clock a.m. and shall end at 3:00 o'clock p.m.; and that the barangay election was held at the residence of a former mayor, allegedly in an area far from the designated polling place, and that only one or a few individuals allegedly accomplished the ballots. As a consequence thereof, Petitioner, his running mates for barangay kagawad and their respective supporters were allegedly unable to cast their votes thereby warranting a declaration by the COMELEC that there was a failure of election.

The time during which the election in Barangay Maidan was conducted on August 30, 1997 was somewhat unusual due to the extraordinary circumstances. However, that it was allegedly contrary to COMELEC Resolution No. 2971 and Section 190 of the Omnibus Election Code was not actually so. We bear in mind our disquisition in Hassan v. COMELEC⁹ that:

"It is essential to the validity of the election that the voters have notice in some form, either actual or constructive, of the time, place and purpose thereof. The time for holding it must be authoritatively designated in advance. The requirement of notice even becomes stricter in cases of special elections where it was called by some authority after the happening of a condition precedent, or at least there must be a substantial compliance therewith so it may fairly and reasonably be said that the purpose of the statute has been carried out. The sufficiency of notice is determined on whether the voters generally have knowledge of the time, place and purpose of the elections so as to give them full opportunity to attend the polls and express their will or on other hand, whether the omission resulted in depriving a sufficient number of the qualified electors of the opportunity of exercising their franchise so as to change the result of the election."¹⁰cräläwvirtualibräry

In Hassan which involves a municipal election, we held that notice given in the afternoon of May 28, 1995, resetting the special election to May 29, was insufficient. However, in the case at bench which involves a barangay special election in Precinct No. 12 which is the sole precinct in Barangay Maidan, the announcement was made in the mosque a few hours before voting actually commenced. Unlike Hassan, the circumstances of the case at bench, impel us to arrive at a different conclusion. In Hassan, we found that only 328 out of the 1,546 registered voters in five (5) precincts of Madalum, Lanao del Sur were able to cast their votes. In the case at bench, the records are bereft of any evidence that the said announcement or notice made in the mosque of Barangay Maidan whose populace is predominantly Muslim living in the small territorial jurisdiction of said barangay, resulted in the disenfranchisement of a substantial number of voters and that the votes not cast would materially affect the results of the election. Petitioner merely alleges that private respondent, who is one of his opponents for the position of punong barangay, garnered 250 votes whereas he (petitioner) was credited with only 15 votes. Petitioner disputes the probability of these results in view of the fact that he was the incumbent punong barangay with several relatives, friends and supporters in Barangay Maidan. Apart from his bare assertions, there was no indication in the subject petition, much less evidence, as to the total number of registered voters in Barangay Maidan and the number of voters who were allegedly unable to exercise their right of suffrage in the said barangay special election. X

With respect to petitioner's allegation that the barangay election in Barangay Maidan was held at the house of former Mayor Alang S. Fukunum in Pandiaranao, Tugaya, Lanao del Sur, we find the same unworthy of credence. In support of his allegation, petitioner presented the affidavits of Cpl. Conrado Doroy, Cpl. Ale Garcia and Pfc. Ferdinand Bangayan. However, as found by the COMELEC, the said affiants testified before the Provincial Election Supervisor of Lanao del Sur that voting was actually held in Barangay Maidan. More importantly, the said affiants executed another affidavit[11] disclaiming the contents of their first affidavit on the ground that they were "ready made" and that they had no knowledge of its contents as their first affidavit was not translated to them in the vernacular. In his petition before this Court, petitioner alleges that the barangay election was held at the house of the former mayor while in his affidavit,¹² which was executed three (3) days after the barangay special election, he states that the election was allegedly held at an unknown place. Those conflicting allegations cast doubt on the petitioner's credibility. On the other hand, this Court, not being a trier of facts, has to give due weight and credence to the findings of facts of COMELEC, and more particularly to the unrebutted Report[13] of Election Officer Datu Imam that the subject barangay special election, was in fact held in Barangay Maidan, Tugaya, Lanao del Sur, and that the registered voters of said barangay were sufficiently notified as to the place and time of said barangay special election which was in fact a neighborhood election. The notification or announcement was made in the mosque in that barangay because the voters of Barangay Maidan are predominantly Muslim.

The power to declare a failure of election and to set aside the results thereof is an extraordinary remedy. As early as Mandac v. Samonte,[14] we held that courts should be slow in nullifying elections, exercising the power only when it is shown that the irregularities and frauds are so numerous as to show an unmistakable intention or design to defraud, and which in fact defeat the true expression of the will of the electorate.¹⁵ As a rule, therefore, the following conditions must be satisfied before the COMELEC can favorably act upon a petition to declare a failure of election: (1) that no voting has taken place in the precinct or precincts on the date fixed by law or, even if there was voting, the elections nevertheless result in a failure to elect; and (2) the votes not cast would affect the result of the election.¹⁶ In the light of the facts as borne in the records, these two conditions do not obtain in the case at bench. Consequently, in Balindong v. COMELEC¹⁷ and Co v. COMELEC,[18] we refused to declare a failure of election despite alleged irregularities in the conduct of elections in the absence of evidence that the right of suffrage of a substantial portion of the electorate was prejudiced thereby. We find no compelling reason to deviate from these jurisprudential rulings of this Court. In the case at bar, there is certainly absence of evidence that the right of suffrage of a substantial portion of the electorate of Barangay Maidan was allegedly prejudiced in the said barangay special election in Precint No. 12 which is the only precinct of the said barangay. On the other hand, to grant the Petition, in the light of the unique circumstances in this case, means to declare a failure of the barangay special election for the third time, and thereby unwittingly frustrate the will of the majority of the barangay electorate to elect the private respondent as Punong Barangay and to reject the petitioner who resorted to legal technicalities and relied on the presence of the threatening armed followers of the Mayor who is obviously sympathetic to the petitioner. Is that just and equitable?

IN VIEW OF ALL THE FOREGOING , I vote to deny the Petition. It is my considered opinion that respondent COMELEC, in rendering its subject Resolution dated June 8, 1999 in SP Case No. 97-276, did not act with grave abuse of discretion. The Petition in the case at bench should be as it is hereby DISMISSED.

¹ Annex "A" of the Petition, Rollo, pp. 13-21; Concurred in by Chairman Harriet O. Demetriou and Commissioners Manolo B. Gorospe, Julio F. Desamito, Teresita Dy-Liacco Flores, Japal M. Guiani, Luzviminda G. Tancangco and Abdul Gani Marohombsar Al Hadj.

² Union Bank of the Philippines v. Court of Appeals, 290 SCRA 198 (1998).

³ Addressed to Commissioner Manolo B. Gorospe as Commissioner-in-Charge of Region IX, XII and the ARMM; Records, p. 6.

⁴ Addressed to Atty. Muslemen P. Tahir, Provincial Election Supervisor of Lanao del Sur; Records, p. 7.

⁵ Records, p. 14-15.

⁶ Records, p. 89-90.

⁷ 230 SCRA 54 (1994).

⁸ Republic Act No. 7166, Section 4.

⁹ 264 SCRA 125 (1996).

¹⁰ Id., p. 134.

¹¹ Records, p. 110.

¹² Supra, note 4.

¹³ Records, pp. 89-90.

¹⁴ 49 Phil. 284 (1926).

¹⁵ Id., p. 299.

¹⁶ Supra note 6; Sardea v. COMELEC, 225 SCRA 275 (1993); Usman v. COMELEC, 42 SCRA 667 (1971).

¹⁷ 260 SCRA 494 (1996).

¹⁸ Unsigned Resolution, G.R. No. 78820, May 17, 1988.