Before us is a petition for certiorari and prohibition to annul and set aside the resolution of the Commission on Elections (COMELEC) En Banc dated October 12, 1998 which dismissed herein petitioner Jesus Typoco, Jr.’s (TYPOCO) petition for Annulment of Election or Election Results and/or Declaration of Failure of Elections docketed as SPA No. 98-413. miso

The factual antecedents insofar as pertinent to the instant petition are as follows:

TYPOCO and private respondent Jesus Pimentel (PIMENTEL) were both candidates for the position of Governor in Camarines Norte during the May 11, 1998 elections. On May 22, 1998, TYPOCO together with Winifredo Oco (OCO), a candidate for the position of Congressman of the Lone District of Camarines Norte filed a Joint Appeal before the COMELEC docketed as SPC-No. 98-133. TYPOCO and OCO questioned therein the ruling of the Provincial Board of Canvassers of Camarines Norte which included in the canvass of votes the Certificate of Canvass of the Municipality of Labo, Camarines Norte. TYPOCO also filed a Motion to Admit Evidence to Prove That a Substantial Number of Election Returns Were Manufactured as They Were Prepared by One Person based on the report of one Francisco S. Cruz, a Licensed Examiner of Questioned Document, who examined copies of election returns of the LAKAS-NUCD.

On June 4, 1998, COMELEC (Second Division) issued an Order dismissing the Joint Appeal. Thereafter, TYPOCO filed a Motion for Reconsideration reiterating his motion to admit evidence to prove the manufacturing and/or spurious character of the questioned returns which were allegedly prepared in group by only one person and which will materially affect the results of the election for the position of Governor.

In the meantime, on June 10, 1998, TYPOCO and OCO filed with the COMELEC En Banc a separate petition for Annulment of Election or Election Results and/or Declaration of Failure of Elections in several precincts, docketed as SPA No. 98-413, subject of the instant petition. The petition alleged that massive fraud and irregularities attended the preparation of the election returns considering that upon technical examination, 305 election returns were found to have been prepared in group by one person. Sdaadsc

On July 15, 1998, the COMELEC En Banc issued an Order directing the Voters Identification Division of the Commission’s Election Records and Statistics Department (ERSD) to examine the COMELEC copies of the 305 election returns questioned by TYPOCO.

On August 12, 1998, the COMELEC’s ERSD Voters Identification Division submitted its Questioned Document Report to the COMELEC En Banc on the results of its technical examination of the questioned election returns. The report disclosed, among others, that the "handwritten entries on 278 COMELEC copies of election returns particularly under the columns Congressman/Governor/Vice-Governor Nickname or Stage Name, were written by one and the same person in groups."1 [Rollo, pp. 79-80.]

On August 31, 1998, the COMELEC En Banc issued the resolution denying petitioner’s motion for reconsideration in SPC No. 98-133 on the ground that an election protest is the proper remedy. Rtcspped

TYPOCO then filed a petition for certiorari and prohibition under Rule 65 with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction assailing the Order dated June 4, 1998 and the Resolution dated August 31, 1998, respectively issued in SPC No. 98-133 by the COMELEC (Second Division) and the COMELEC En Banc.2 [Docketed as G.R. No. 135020-21.] In a resolution dated September 22, 1998, this Court dismissed the petition finding no grave abuse of discretion on the part of respondent COMELEC in issuing the aforesaid assailed orders. TYPOCO’s motion for reconsideration was likewise denied by this Court with finality on September 29, 1998.

On October 12, 1998, the COMELEC En Banc promulgated a resolution in SPA 98-413, dismissing TYPOCO’s petition for the Declaration of Failure of Elections and/or Annulment of Elections in Camarines Norte for lack of merit, thus:

Hence, the instant petition on the grounds that the COMELEC En Banc gravely abused its discretion as follows: 1. in holding that the grounds cited by TYPOCO do not fall under any of the instances enumerated in Section 6 of the Omnibus Election Code; 2. in refusing to annul the election or the election results or to declare a failure of election despite the fact that massive fraud and irregularities attended the preparation of the election returns; 3. in failing to proclaim TYPOCO as the winning candidate for Governor; 4. in failing to annul the proclamation of PIMENTEL which is null and void from the beginning; 5. in ruling that an election protest is the proper remedy and not an annulment of the election or election results and/or declaration of failure of elections.4 [Rollo, pp. 13-14.] Sclaw

Simply stated, did the COMELEC commit grave abuse of discretion in not declaring a failure of elections for the position of Governor in Camarines Norte in the May 11, 1998 elections?

In a Manifestation and Motion (In Lieu of Comment) filed by the Office of the Solicitor General (OSG), the latter joins TYPOCO’s prayer for affirmative relief. The OSG explains thus:

The authority of the COMELEC to declare a failure of elections is derived from Section 4 of Republic Act No. 7166, otherwise known as, "The Synchronized Elections Law of 1991," which provides that the COMELEC sitting En Banc by a majority vote of its members may decide, among others, the declaration of failure of election and the calling of special elections as provided in Section 6 of the Omnibus Election Code. Said Section 6, in turn, provides as follows:

The same provision is reiterated under Section 2, Rule 26 of the Revised COMELEC Rules. Sc

Based on the foregoing laws, the instant petition must fail because the allegations therein do not justify a declaration of failure of election.

The COMELEC correctly pointed out that in the case of Mitmug vs. Commission on Elections6 [230 SCRA 54 (1994).], this Court held that before COMELEC can act on a verified petition seeking to declare a failure of election, two (2) conditions must concur: first, no voting has taken place in the precincts concerned on the date fixed by law or, even if there was voting, the election nevertheless resulted in a failure to elect; and second, the votes cast would affect the result of the election. In Loong vs. Commission on Elections7 [257 SCRA 1 (1996).], this Court added that the cause of such failure of election should have been any of the following: force majeure, violence, terrorism, fraud of other analogous cases. Further, in Borja, Jr. vs. Commission on Elections8 [260 SCRA 604 (1996).], we stated that:

Clearly then, there are only three (3) instances where a failure of election may be declared, namely: (a) 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; (b) the election in any polling place had been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud or other analogous causes; (c) after the voting and during the preparation and transmission of the election 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.9 [Canicosa vs. Comission on Elections, 282 SCRA 512 (1997).] In all instances there must have been failure to elect; this is obvious in the first scenario where the election was not held and the second where the election was suspended. As to the third scenario, the preparation and transmission of the election returns which give rise to the consequence of failure to elect must as aforesaid be literally interpreted to mean that nobody emerged as a winner.

None of these circumstances is present in the case at bar. While the OSG joins TYPOCO in pinpointing anomalies in the preparation of the election returns due to the uniformity of the handwriting in the same, implying that fraud was committed at that stage, the fact is that the casting and counting of votes proceeded up to the proclamation of the winning candidate thus precluding the declaration of a failure of election. While fraud is a ground to declare a failure of election, the commission of fraud must be such that it prevented or suspended the holding of an election including the preparation and transmission of the election returns.10 [See above-quoted Section 6.] Missc

It can thus readily be seen that the ground invoked by TYPOCO is not proper in a declaration of failure of election. TYPOCO’s relief was for COMELEC to order a recount of the votes cast, on account of the falsified election returns, which is properly the subject of an election contest.11 [Sanchez vs. Commission on Elections, 153 SCRA 67 (1987).]

The COMELEC, therefore, had no choice but to dismiss TYPOCO’s petition in accordance with clear provisions of the law and jurisprudence.

WHEREFORE, finding no grave abuse of discretion committed by public respondent Commission on Elections, the petition is DISMISSED and its Resolution En Banc of October 12,1998 dismissing the petition before it on the ground that the allegations therein do not justify a declaration of failure of election is AFFIRMED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Buena, Ynares-Santiago, and De Leon, Jr., JJ., concur.

Pardo, J., no part.