Defective jurat; election protest sufficient in form, substance

EN BANC [ G.R. No. 209593, January 14, 2014 ] CASIMIRO A. YNARES III V. COMMISSION ON ELECTIONS AND DANILO O. LEYBLE. RESOLUTION.

This resolves petitioner Casimiro A. Ynares III's (petitioner) Motion for Reconsideration[1] of this Court's November 19, 2013 Resolution.[2] The November 19, 2013 Resolution dismissed petitioner's Petition on the following grounds: (1) failure to state all the material dates to show that the Petition was filed on time;[3] (2) insufficient or defective verification and certification on non-forum shopping as the affiant thereof was not personally known to the notary public or identified by the notary public through competent evidence of identity;[4] (3) failure to attach a verified declaration that the pleading and annexes submitted electronically are complete and true copies of the printed document and annexes filed with the Court;[5] (4) being the wrong remedy; and, (5) failure to sufficiently show that any grave abuse of discretion was committed by the respondent Commission on Elections (COMELEC) in rendering the challenged Orders which, on the contrary, appear to be in accord with the facts and applicable law and jurisprudence.

Upon a closer scrutiny of the Petition, it is apparent that indeed all the material dates were indicated as to show that the Petition was timely filed. However, this would not in any way result to the reversal of the Court's November 19, 2013 Resolution. As already mentioned, the Petition suffers from several other defects meriting its outright dismissal.

Petitioner's counsel admits that he inadvertently failed to attach a verified declaration that the pleading and annexes submitted electronically are complete and true copies of the printed document submitted to the Court due to heavy workload. Heavy workload, however, is not a compelling reason to justify non-compliance with the requirements.

As regards the verification and certification of non-forum shopping, petitioner contends that the same is not defective considering that the jurat thereof states that the "affiant is personally known to me (notary public) and who is the same person who personally appeared and signed the foregoing."Petitioner, however, must be reminded that under the 2004 Rules on Notarial Practice, the identification of an individual by a notary public must be based on: (1) at least one current identification document issued by an official agency bearing the photograph and signature of the individual; or (2) the oath or affirmation of one credible witness not privy to the instrument, document or transaction who is personally known to the notary public and who personally knows the individual, or of two credible witnesses neither of whom is privy to the instrument, document or transaction who each personally knows the individual and show to the notary public documentary identification.[6] Absent any of these as in this case, the verification and certification of non-forum shopping is considered insufficient or defective.
Even if we brush aside the above technicalities, the Petition must still be dismissed because petitioner resorted to the wrong remedy. In the present Motion for Reconsideration, petitioner insists that he correctly resorted to the remedy of certiorari under Rule 64 of the Rules of Court which principally governs the review of any final judgments or orders of the COMELEC in relation to Rule 65 of the same rules. He cites Mitra v. Commision on Elections[7] wherein it was explained that the basis for the Court's review of COMELEC rulings is Rule 64 in relation to Rule 65 of the Rules of Court and not an appeal under Rule 45.

Petitioner misses the point. In Cagas v. Commission on Elections,[8] petitioner therein elevated to this Court by way of a Petition for Certiorari the COMELEC First Division's denial of his special affirmative defenses. This was after it found that the protestant in the election protest therein had substantially complied with Sections 7(g) and 9(e), Rule 6 of COMELEC Resolution No. 8804. In dismissing the Petition for Certiorari, the Court held that while it has the power to review any decision, order or ruling of the COMELEC, such power of review is limited to a final decision or resolution of the COMELEC en banc, and does not extend to an interlocutory order issued by a Division of the COMELEC.

In this case, petitioner is assailing the Preliminary Conference Order of the COMELEC First Division which, among others, found respondent Danilo O. Leyble's (Leyble) election protest sufficient in form and substance. Without a doubt, said Order is interlocutory in nature since the same does not dispose of the case completely but leaves something more to be done on the merits. Hence, petitioner's resort to this Court is unavailing. The proper remedy, as intimated in Cagas, is for petitioner to wait for the COMELEC First Division to decide first the protest on the merits. If the result should aggrieve him, petitioner's remedy is to appeal the denial of his affirmative defenses (e.g., that the election protest failed to comply with Section 7 (f) and (g) of COMELEC Resolution No. 8804) to the COMELEC en banc along with the other errors committed by the said Division upon the merits.

ACCORDINGLY, there being no substantial arguments raised or compelling reason as to warrant reconsideration of this Court's Resolution of November 19, 2013, the Motion for Reconsideration is DENIED with FINALITY. No further pleadings shall be entertained in this case. Let Entry of Judgment be issued in due course.

Sereno, C.J., on leave.

[1] Rollo, unpaginated.
[2] Id.
[3] Pursuant to Section 5, Rule 64 in relation Section 3 (2nd par.), Rule 46, 1997 Rules of Civil Procedure, as amended.
[4] As required by the 2004 Rules on Notarial Practice.
[5] As required in the Guidelines on Submission and Processing of Soft Copies of Supreme Court-bound Papers pursuant to the Efficient Use of Paper Rule.
[6] Sec. 12, Rule II, 2004 Rules on Notarial Practice.
[7] G.R. No. 191938, October 19, 2010, 633 SCRA 580.
[8] G.R. No. 194139, January 24, 2012, 663 SCRA 644.

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