Petitioner Emiliano R. Caruncho III was the candidate of the Liberal Party for the congressional seat in the lone district of Pasig City at the May 11, 1998 synchronized elections. The other candidates were: Arnulfo G. Acedera, Jr. (Lakas-NUCD-UMDP); Marcelino P. Arias (Nacionalista Party); Roberto C. Bassig (Independent); Esmeraldo T. Batacan (PDR-LM Coalition); Henry P. Lanot (LAMMP); Francisco C. Rivera, Jr. (PRP/PDR); Elpidio G. Tuason (Independent), and Raoul V. Victorino (Liberal Party/LAMMP).

At 9:00 o’clock in the morning of May 12, 1998, respondent Pasig City Board of Canvassers composed of Atty. Casiano Atuel, Jr. as Chairman, Atty. Grace S. Belvis as Vice-Chairman, and Dr. Florentina Lizano as Member, started to canvass the election returns. The canvass was proceeding smoothly when the Board received intelligence reports that one of the candidates for the congressional race, retired General Arnulfo Acedera, and his supporters, might disrupt and stop the canvassing.

At exactly 6:00 o’clock in the evening of May 14, 1998, General Acedera and his supporters stormed the Caruncho Stadium in San Nicolas, Pasig City, where the canvassing of election returns was being conducted. They allegedly forced themselves into the canvassing area, breaking a glass door in the process. As pandemonium broke loose, the police fired warning shots causing those present in the canvassing venue, including the members of the Board and canvassing units, to scamper for safety. The canvassing personnel exited through the backdoors bringing with them the Election Returns they were canvassing and tallying as well as the Statement of Votes that they were accomplishing. They entrusted these documents to the City Treasurer’s Office and the Pasig Employment Service Office (PESO). Election documents and paraphernalia were scattered all over the place when the intruders left.

The following day, May 15, 1998, the sub-canvassing units recovered the twenty-two (22) Election Returns and the Statement of Votes from the Treasurer’s Office and the PESO. However, page 2 of each of the 22 election returns, which contained the names of candidates for congressmen, had been detached and could not be found. An investigation was conducted to pinpoint liability for the loss but it yielded negative result. Hence, the Board secured proper authority from the Commission on Elections (COMELEC),1 [Footnote 1 of COMELEC en banc Resolution dated October 1, 1998 in SCC 98-123 states: "Acting on the Memorandum of NCR Director Atty. Teresita C. Suarez dated May 12, 1998, Chairman Pardo as Commissioner-In-Charge of NCR, approved opening of ballot boxes and retrieval of election returns in cases where all copies of the election returns were all placed inside the ballot boxes."] through Election Director for the National Capital Region Atty. Teresita Suarez, for the reconstitution of the missing page by making use of the other copies of the election returns, particularly the provincial copy or the copy in the ballot boxes placed therein by the Board of Election Inspectors.

At 2:40 a.m. of May 17, 1998, the Board, satisfied that it had finished canvassing the 1,491 election returns from as many clustered precincts, proclaimed Henry P. Lanot as the winner in the congressional race for the lone district of Pasig.2 [Record of SPC 98-123, p. 72.] The votes obtained by the leading three candidates were: Henry P. Lanot – 60,914 votes; Emiliano R. "Boy" Caruncho III – 42,942 votes, and Arnulfo Acedera – 36,139 votes. The winner, Lanot, led his closest rival, Caruncho, by 17,971 votes.

However, on May 21, 1998, petitioner Caruncho filed a "Motion to Nullify Proclamation on the Basis of Incomplete Returns"3 [Rollo, p. 32.] with the COMELEC. He alleged that the Board had proceeded with the proclamation of Henry Lanot as the winning congressional candidate even though one hundred forty-seven (147) election returns involving about 30,000 votes, were still not canvassed. He prayed that the COMELEC en banc declare the proclamation null and void and that the Board of Canvassers be directed to convene and reopen the ballot boxes to recount the votes of the candidates for the House of Representatives and thereupon proclaim the winner. On June 1, 1998, petitioner filed an amended motion to correct some errors in the listing of precincts under paragraph 10, pages 2 and 3, and paragraph 12, pages 3 and 4, of the original motion.4 [Ibid., p. 52.]

On June 8, 1998, the Second Division of the COMELEC issued an Order requiring respondent Pasig City Board of Canvassers to comment on the amended motion to nullify Lanot’s proclamation. In his comment filed on June 23, 1998, respondent Atty. Casiano G. Atuel, Jr. admitted the disruption and stoppage of the canvass of election returns on May 11, 1998 but asserted that there were only twenty-two (22) election returns, not 147 as claimed by Caruncho, that were missing but these were eventually recovered. The Board stated in part:

x x x x x x x x x."5 [Rollo, pp. 89-91; Record, pp. 34-37.]

On June 24, 1998, the COMELEC Second Division6 [Composed of Commissioners Julio F. Desamito and Japal M. Guiani.] promulgated a Resolution7 [Rollo, p. 59.] decreeing as follows:

Subsequently, on June 26, 1998, respondent Board filed a "Supplemental Comment" raising the following matters: (a) the COMELEC had no jurisdiction over the case under Section 242 of the Omnibus Election Code; (b) petitioner failed to record his objections to the elections returns and the certificate of canvass in the minutes of the proceedings of the Board, and (c) the winning candidate, Henry Lanot, was not impleaded in the motion to nullify his proclamation.8 [Record, p. 55.]

On July 8, 1998, proclaimed winning candidate Henry Lanot filed a motion for leave to intervene in the case.9 [Ibid., p. 58.] He also prayed for the reconsideration of the June 24, 1998 Resolution of the COMELEC Second Division and for referral of the case to the COMELEC en banc. In his motion for reconsideration10 [Ibid., p. 61.] that was attached to said motion to intervene, movant Lanot argued that failure to notify him of the case was fatal as he was a real party in interest who must be impleaded therein. He also alleged that under the Constitution and Republic Act No. 7166, the COMELEC had no jurisdiction over the case and that the Resolution of June 24, 1998 was "not based on facts."

That same day, petitioner, represented by new counsel,11 Froilan M. Bacungan and Associates.11 filed a motion praying for the "formation" of a new Board of Canvassers on account of the June 24, 1998 Resolution of the COMELEC Second Division.12 [Record, p. 85.] The following day, the COMELEC Second Division issued an order setting the case for hearing and postponing the "reconvening of the City Board of Canvassers of Pasig City."13 [Ibid., p. 97.] On July 15, 1998, movant Lanot filed an opposition to the motion for the formation of a new Board of Canvassers on the ground that the Resolution of June 24, 1998 is null and void for the following reasons: (a) he was not notified of the proceedings and therefore his right to due process was violated; (b) said resolution had not become final and executory by his filing of a motion for reconsideration, and (c) the case was no longer a pre-proclamation controversy but an electoral protest under the jurisdiction of the House of Representatives Electoral Tribunal, not the COMELEC.14 [Ibid., p. 103.]

At the hearing on July 21, 1998, the COMELEC Second Division ordered the filing of memorandum. Movant Lanot, however, manifested that he was no longer filing a memorandum. Thus, the COMELEC, ruled that "with or without said memorandum," the case would be deemed submitted for resolution.15 [Ibid., p. 112.] Meanwhile, on July 27, 1998, petitioner filed an opposition to Lanot’s motion for reconsideration16 [Ibid., p. 113.] after which Lanot filed his comment on the opposition.17 [Ibid., p. 122.]

On September 28, 1998, the COMELEC Second Division granted Lanot’s motion for intervention and elevated his motion for reconsideration to the COMELEC en banc.18 [Ibid., p. 131.]

Thereafter, the COMELEC en banc19 [Per COMELEC Chairman Bernardo P. Pardo, with Commissioners Julio F. Desamito, Teresita Dy-Liacco Flores, Japal M. Guiani, Luzviminda G. Tancangco and Abdul Gani M. Marohombsar, Al Hadj concurring. Commissioner Manolo B. Gorospe took no part.] promulgated a Resolution dated October 1, 1998 reconsidering the Resolution of the COMELEC Second Division and dismissing petitioner’s amended motion (petition) to nullify the proclamation on the basis of incomplete returns for lack of merit.20 [Rollo, p. 73.] Relying on facts narrated by the Pasig City Board of Canvassers in its comment on the motion to nullify the proclamation, the COMELEC en banc found:

Hence, this petition for certiorari.

Petitioner seeks to nullify respondent COMELEC en banc’s Resolution of October 1, 1998, contending that said body acted in excess of jurisdiction and with grave abuse of discretion in overruling his claim that 147 election returns involving about thirty thousand (30,000) votes were not canvassed. Petitioner argued that it was enough reason for contesting the proclamation of Lanot as winner under an incomplete canvass. However, as in the proceedings before the COMELEC, petitioner failed to implead in the instant petition the proclaimed winning candidate, Lanot.

The petition must be dismissed.

Petitioner initiated this case through a motion to nullify the proclamation of Lanot as the winner in the congressional race in Pasig City. Named respondents in the motion were the individual members of the Board of Canvassers in that city. The proclaimed winner was not included among the respondents. For that reason alone, the COMELEC should have been forewarned of a procedural lapse in the motion that would affect the substantive rights of the winning candidate, if not the electorate. Due process in quasi-judicial proceedings before the COMELEC requires due notice and hearing.21 [Bince, Jr. v. COMELEC, G.R. No. 106271, February 9, 1993, 218 SCRA 782, 792-793.] The proclamation of a winning candidate cannot be annulled if he has not been notified of the motion to set aside his proclamation.22 [Jagunap v. COMELEC, G.R. Nos. 53062 & 53345, April 24, 1981, 104 SCRA 204, 213.] It was only the intervention of Lanot in SPC 98-123, which the Second Division of the COMELEC allowed, which cured the procedural lapse that could have affected the popular will of the electorate.

However, petitioner again failed to implead Lanot in the instant petition for certiorari. In this connection, Section 2, Rule 3 of the 1997 Rules of Civil Procedure provides that every action must be prosecuted or defended in the name of the real party in interest. By real interest is meant a present substantial interest, as distinguished from a mere expectancy or a future, contingent, subordinate, or consequential interest.23 [De Leon v. Court of Appeals, 343 Phil. 254, 265 (1997).] As the winning candidate whose proclamation is sought to be nullified, Henry P. Lanot is a real party in interest in these proceedings. The COMELEC and the Board of Canvassers of Pasig City are mere nominal parties whose decision should be defended by the real party in interest, pursuant to Rule 65 of the said Rules:

Hence, quasi-judicial agencies should be joined as public respondents but it is the duty of the private respondent to appear and defend such agency.24 [FERIA, 1997 RULES OF CIVIL PROCEDURE (Annotated), 1997 ed., p. 267.] That duty cannot be fulfilled by the real party in interest such as the proclaimed winning candidate in a proceeding to annul his proclamation if he is not even named as private respondent in the petition. Ordinarily, the nonjoinder of an indispensable party or the real party in interest is not by itself a ground for the dismissal of the petition. The court before which the petition is filed must first require the joinder of such party. It is the noncompliance with said order that would be a ground for the dismissal of the petition.25 [Ibid., pp. 10-11.] However, this being an election case which should be resolved with dispatch considering the public interest involved, the Court has not deemed it necessary to require that Henry P. Lanot be impleaded as a respondent in this case.

A crucial issue in this petition is what body has jurisdiction over a proclamation controversy involving a member of the House of Representatives. The 1987 Constitution cannot be more explicit in this regard. Article VI thereof states:

The foregoing constitutional provision is reiterated in Rule 14 of the 1991 Revised Rules of the Electoral Tribunal of the House of Representatives, to wit:

In the recent case of Rasul v. COMELEC and Aquino-Oreta,26 [G.R. No. 134142, August 24, 1999.] the Court, in interpreting the aforesaid constitutional provision, stressed the exclusivity of the Electoral Tribunal’s jurisdiction over its members, thus:

In the same vein, considering that petitioner questions the proclamation of Henry Lanot as the winner in the congressional race for the sole district of Pasig City, his remedy should have been to file an electoral protest with the House of Representatives Electoral Tribunal (HRET).27 [Pangilinan v. COMELEC, G. R. No. 105278, November 18, 1993, 228 SCRA 36.]

Even granting arguendo that the thrust of petitioner’s case is to question the integrity of the election returns or the validity of the "incomplete canvass" as the basis for Henry Lanot’s proclamation, and not the proclamation itself, still, the instant petition is devoid of merit.

The factual question of how many election returns were missing as a consequence of the disruption of the canvassing of election returns has been definitely resolved by the COMELEC en banc. Thus, raising the same issue before this Court is pointless because this Court is not a trier of facts.28 [David-Chan v. Court of Appeals, 335 Phil. 1140, 1148 (1997).] The facts established below show that all the legal steps necessary to carry out the reconstitution of the missing page 2 of the twenty-two (22) election returns have been followed. Proper authorization for the reconstitution of that page was secured from the COMELEC. The reconstitution was based on the provincial copy of the election returns that was retrieved from the sealed ballot boxes. For his part, petitioner failed to have the anomaly recorded in the minutes of proceedings of respondent Board as required by Section 15 of Republic Act No. 7166. Respondent Board, therefore, observed the following provisions of the Omnibus Election Code:

Granting that the proclamation was made without taking into account the twenty-two (22) election returns, still, the COMELEC did not abuse its discretion. The election returns represented only 4,400 votes. That number cannot affect the result of the election because Henry Lanot’s lead over his closest rival, herein petitioner, was 17,971 votes. As the second paragraph of Section 233 of the Omnibus Election Code aforequoted states, the Board of Canvassers could have totally disregarded the twenty-two (22) election returns and legally proclaimed Lanot as the winner in the election in Pasig City for Member of the House of Representatives.

An incomplete canvass of votes is illegal and cannot be the basis of a subsequent proclamation.29 [Datu Sukarno Samad v. Commission on Elections, 224 SCRA 631, 642 (1993); Tiglao v. Commission on Elections, 31 SCRA 719, 729 (1970); Mutuc v. Commission on Elections, 22 SCRA 662, 666 (1968); Demafiles v. Commission on Elections, 21 SCRA 1462, 1468 (1967).] A canvass cannot be reflective of the true vote of the electorate unless all returns are considered and none is omitted.30 [Duremdes v. Commission on Elections, 178 SCRA 746, 758 (1989); citing Datu Sinsuat v. Pendatun, L-31501, June 30, 1970, 33 SCRA 630.] However, this is true only where the election returns missing or not counted will affect the results of the election. It bears stressing that in the case at bar, the COMELEC has categorically found that the election returns which were not counted by respondent canvassers represented only 4,400 votes. To be sure, this number will not affect the result of the election considering that Lanot’s lead over petitioner was already 17,971 votes.

On the whole, this Court finds that respondent COMELEC did not commit grave abuse of discretion when it issued the assailed Resolution of October 1, 1998 dismissing petitioner’s motion to nullify the proclamation of Henry P. Lanot as Member of the House of Representatives for the lone district of Pasig City.

WHEREFORE, the instant petition for certiorari is DISMISSED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Buena, and Gonzaga-Reyes, JJ., concur.

Pardo, J., no part. Was COMELEC Chairman.