final draft certiorari

7/28/2019 Final Draft Certiorari

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Karen Kate C. Pascual 1

Republic of the Philippines

COURT OF APPEALS

Far Far Away

SHREK DOGRE

FIONA DOGRE

Petitioners, CA-G.R. SP. NO. 123456

(Petition for Certiorari withApplication for Preliminary

Mandatory Injunction and

Temporary Restraining Order)-versus-

JUDGE JULIE ANDREWS,

Honorable Judge of the Regional

Trial Court of the Swamps,

Respondent.

x------------------------------------------x

PETITION FOR CERTIORARI WITH APPLICATION FOR

PRELIMINARY MANDATORY INJUNCTION AND TEMPORARY

RESTRAINING ORDER

Petitioners, through the undersigned counsel, unto this Honorable Court,

respectfully state that:

PREFATORY STATEMENT

The right of suffrage lies at the center of our constitutional democracy. The right of

every Filipino to choose the people who will lead the country and participate, to

the fullest extent possible, in every national and local election is so zealously

guarded by the fundamental law that it devoted an entire article solely therefor:

ARTICLE V

SUFFRAGE

SECTION 1. Suffrage may be exercised by all citizens of the


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Philippines not otherwise disqualified by law, who are at least

eighteen years of age, and who shall have resided in the

Philippines for at least one year and in the place wherein they

propose to vote for at least six months immediately preceding the

election. No literacy, property or other substantive requirement

shall be imposed on the exercise of suffrage.

NAMES OF PETITIONER AND RESPONDENT

1. Petitioners, Spouses Shrek DOgre and Fiona DOgre, are Filipino citizens,of legal age, married and with residence at No. 9 Faraway Land St., Duloc,

Far Far Away.

2. The Petitioners may be served with summons and other legal processesthrough their counsel of record, Atty. Karen Kate Pascual at Unit 902aN

North Joya Rockwell Drive, Makati City.

3. Respondent Honorable Judge Julie Andrews of Regional Trial Court of theSwamps, who has issued the questioned order on 17 December 2012, with

office address at Swamps Muunicipal Hall, Duloc, Far Far Away where it

may be served notices, orders, resolutions, judgment and other court

processes.

GROUNDS RELIED UPON/ STATEMENT OF THE CASE

4. This Petition is about the exercise of a fundamental right upon which thefabric of any democracy is founded-- the right of suffrage. Petitioners seek

to temporarily restrain the Respondent Honorable Judge Julie Andrews of

the Regional Trial Court of the Swamps from enforcing her order to the


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Electoral Registration Board to exclude the names of the Petitioners from the

list of Voters of the municipality of Duloc, Far Far Away.

5. The judgment was issued by the respondent Judge with grave abuse ofdiscretion amounting to lack or excess of jurisdiction and such authority was

practiced in a whimsical, capricious and despotic manner, without regard to

the basic right of the petitioners to suffrage.

6. The issuance of its decision resolving all the motions together with thedenial of the appeal of the Petitioner was a patent violation of this

Constitutional right.

7. The judgment was ordered without taking into consideration the factualfindings of the Election Registration Board, who after having received

evidence on the matter, issued an order finding that the Petitioners

substantially complied with the requirements of the law.

8. The prayer for the reversal of the decision of Respondent judge is anchoredon (2) two crucial grounds, first it was issued with grave abuse of discretion

amounting to lack or excess of jurisdiction, and second, it is a patent

violation of the Constitutional right to Suffrage of the petitioners who stand

to be disenfranchised by the said order in the upcoming 2013 elections.

9. The respondent judge acted with grave abuse of discretion amounting to lackof jurisdiction in denying the appeal and ordering the exclusion of Spouses

Shrek DOgre and Fiona DOgre from the list of voters of Duloc, Far Far

Away by merely relying on private respondents mere allegations in the

petition for exclusion without taking into consideration that petitioners

possess all the qualifications and none of the disqualifications of a voter

according to law.


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10.This Petition is a special civil action for Certiorari and Mandamus broughtunder Rule 65 of the Rules of Court. Under the circumstances obtaining in

this case, herein Petitioners have no plain, speedy, and adequate remedy in

the ordinary course of law which will promptly and immediately relieve

herein Petitioners from the injurious effects of the unconstitutional acts of

the respondent in the issuance and implementation of the assailed decision.

11.At the core of the issues raised in the instant Petition is a precious andcherished right imbued with public interestthe right of suffrage.

12.It should be noted further that the issue at hand has been previously dealtwith by the Supreme Court in the case of Jalosjos v. COMELEC 1, with

regard to the 2010 election. In that case, Jalosjos applied with the ERB of

Ipil, Zamboanga for the transfer of his voters registration record from

Tampilisan, Zamboanga del Norte to a precinct in Ipil. After the ERB

granted his application, a petition for exclusion of Jalosjos name was filed

before the Municipal Circuit Trial Court of Ipil. The petition was given due

course on the ground that Jalosjos did not satisfy the residency requirement

because he did not abandon his domicile in Tampilisan. Jalosjos appealed to

the RTC which affirmed the MCTC decision. Jalosjos elevated the matter to

the Court of Appeals through a petition for Certiorari with an application for

the issuance of a writ of preliminary injunction. The CA granted his

application and enjoined the courts from enforcing their decisions. His name

was reinstated in the Voters List of Ipil, where he was also elected as the

Representative of the Second District of Zamboanga Sibugay.

13.Noteworthy in that case was the fact that when Jalosjos filed his petition for1 Jalosjos v. Commision on Elections, G.R. Nos. 192474, 192704, 193566, June 26, 2012.


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registration as a voter in Ipil, he was still serving as Mayor in Tampilisan,

Zamboanga del Norte. Still, the Court gave credence to the fact that previous

to his application for transfer of voters registration, Jalosjos bought a

residential house and lot in Ipil where he desired to be a voter and that he

also occupied that house after further renovations and furnishing.

RELIEF

14.Petitioners thus humbly pray that the Honorable Court issue a judgment:a. Enjoining Honorable Judge Julie Andrews of the RTC of Duloc, Far Far

Away from enforcing its order issued on 17 December 2012 dismissing the

appeal of the Petitioners and;

b. Ordering the Election Registration Board to include the names of thepetitioners to the List of Voters of Duloc, Far Far Away, and reinstate their

Registration Records from the corresponding Book of Voters and to

thereafter place the records in the active file, for complying with all the

qualifications and possessing none of the disqualifications required by law.

Furthermore:

15.The petitioners are likewise praying for the issuance of a temporaryrestraining order due to the seriousness and extreme urgency of the matters

involved, as well as the grave and irreparable injuries that will be sustained

by Petitioners due to Respondent Judge Julie Andrewss order to exclude the

names of the petitioners from the voters list, a patent violation and denial of

the right of suffrage of the petitioners.

16.The prayer for a temporary restraining order on the questioned order of


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exclusion of respondent Judge is anchored on the crucial ground that it

violates and neglects the fundamental right of the petitioners to suffrage.

17.Grave and irreparable injury shall result to petitioners if they cannot beaccommodated on the list of voters for purposes of exercising their right of

suffrage on the scheduled May 2013 elections.

18.The decision of Respondent Judge Julie Andrews to order the exclusion ofthe petitioners names from the list of voters would work injustice to the

petitioners who will thereby be prevented from taking part in the upcoming

2013 elections. In other words, it would cause the disenfranchisement of the

petitioners as voters.

19.That respondent Judge Julie Andrews is very adamant in its denial of thepetitioners appeal despite repeated motions to Inhibit and to transfer venue

and to Defer proceedings pending the resolution of these aforesaid motions,

in order to give the petitioners due process to be heard via the dispositions of

such motions. Thus, there is a necessity for a temporary restraining order in

order not to render the judgment ineffectual.

20.There is no other plain, speedy, and adequate remedy to address theseinevitable injuries to the Petitioners who run the risk of not being able to

exercise their right to vote for the purposes of the May 2013 elections,

before this Petition could be heard by the Honorable Court.

21.Hence, based on the foregoing allegations, Petitioners are entitled to theissuance of a Preliminary Mandatory Injunction or temporary restraining

order to require Respondent Judge to order the reinstatement of the names of

Petitioners to the list of voters in the Municipality of Duloc, Far Far Away.

STATEMENT OF MATERIAL DATES


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22.Petitioners spouses DOgre filed their application for registration as votersof the Municipality of Duloc, Far Far Away on 19 March 2012. An

opposition/ comment to the petitioners application was then filed on the

ground that the spouses were not qualified to register because they lacked

the residency requirement. On 28 September 2012, after hearing and

receiving of testimonial and documentary evidence, he ERB of the

Municipality of Duloc, Far Far Away issued an Order finding that the

spouses DOgre have substantially complied with the requirements of the

law and gave due course to their applications for registration as voters of the

municipality.

23.On 5 October 2012, a Petition for Exclusion was filed before the MunicipalCircuit Trial Court of the Swamps, Far Far Away against spouses DOgre.

On 12 October 2012, the spouses DOgre filed their Answer arguing that

they possess all the qualifications and none of the disqualifications to be

eligible registered voters of Duloc at the time they filed their respective

applications; that spouses DOgre have been in actual and physical residence

in Duloc, Far Far Away and evidence on this point was submitted to the

ERB; that the Resolution dated 28 September 2012 of the Election

Registration Board should be accorded respect and finality most especially if

based on substantial evidence; and finally that Petition for exclusion is

nothing but a futile exercise to harass and deprive spouses DOgre of their

fundamental right of suffrage, which right they can validly exercise as

registered voters of Duloc, Far Far Away.

24.On 15 October 2012, spouses DOgre filed an Urgent Omnibus Motion withthe following prayer: (1) To Inhibit the Honorable Presiding Judge Lord


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Farquaad; (2) To Defer / Reset the Hearing on 16 October 2012; (3) To Re-

Raffle and Assign the Case to Another Presiding Judge. Likewise, spouses

DOgres collaborating counsel filed an Urgent Motion to Dismiss . On 16

October 2012, the Honorable Lord Farquaad, voluntarily inhibited himself

from sitting on the case. An Urgent Motion for Reconsideration was then

filed following the Order of Inhibition issued on 16 October 2012. On Even

date, the Respondent Judge Julie Andrews issued an Order granting said

urgent motion for reconsideration. As a consequence, Petitioner spouses then

filed their Comment to the Urgent Motion for reconsideration. The MCTC

of the Swamps issued an order on 10 October 2012 considering the Order of

Inhibition dated 16 October 2012 ineffective.

25.Subsequently, on 19 October 2012, the lower Court issued an Orderdenying the urgent omnibus motion to inhibit the Honorable Presiding Judge

Lord Farquaad and Re-Raffle and Assign Case to Another Presiding Judge.

On 23 October 2012, Petitioner spouses DOgres counsel filed a Motion for

Reconsideration (to the Orders dated 17 and 19 October 2012). On even

date, the Honorable Court denied in open court the said motion. Evidence

was received and thereafter, the parties were directed to submit their

respective position papers on 24 October 2012;

26.On 25 October 2012, or one day after the parties were directed to submittheir respective position papers, a decision excluding the names of Shrek

DOgre and Fiona DOgre from the list of voters of Duloc, Far Far Away

was issued and the same was received by the spouses DOgre last 29

October 2012.


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27.Petitioners then filed an appeal shortly after on November 3 2012; Pendingthe resolution of the petitioners appeal, said petitioners also filed a Motion

to Inhibit and to Transfer Venue on 9 November and 12 November 2012;

Likewise another Omnibus Motion to Inhibit and to Defer Proceedings

Pending Resolution of the Motion to Inhibit and to Transfer Venue and

Supplemental Motion Thereto and to Issue Status Quo Order was filed by

petitioners on 27 October 2012; petitioner received a copy of the order

denying the appeal and resolving all the motions on 19 December 2012;

28.The instant petition is filed within 60 days from the receipt of said order.

PRAYER

WHEREFORE, premises considered, Petitioners most respectfully pray of the

Honorable Court the following:

1. That this petition be given due course;2. That the respondent Honorable Judge Julie Andrews of the RTC of the

Swamps be enjoined from enforcing the decision dismissing the appeal of

the Petitioners;

3. That a Preliminary Mandatory Injunction and/or temporary restraining orderbe issued ordering the Election Registration Board to include the names of

the petitioners to the List of Voters of Duloc, Far Far Away, and reinstate

their Registration Records from the corresponding Book of Voters and to

thereafter place the records in the active file, for complying with all the

qualifications and possessing none of the disqualifications required by law.

Petitioners likewise pray for such other reliefs as are just and equitable under


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the circumstances.

RESPECTFULLY SUBITTED.

Far Far Away, 29 January 2013.

KAREN KATE PASCUALCounsel for the Petitioners

Unit 902aN North Joya, Rockwell, Makati

Appointment No. 123, Until December 2013Roll of Attorney No. 70124

P.T.R. No. 8985654, 01/05/2012, Makati City

I.B.P. Lifetime Member No. 10020, Makati Chapter

M.C.L.E. Compliance No. III-0011385, 4/12/12

VERIFICATION AND CERTIFICATION AGAINST FORUM SHOPPING

We, SHREK DOGRE and FIONA DOGRE, Filipino citizens, of legal age, do

hereby state that: We are the petitioners in the case filed for Petition for

Certiorari with Application for Preliminary Mandatory Injunction and

Temporary Restraining Order. We have read its contents and affirm that they

are true and correct to the best of our own personal knowledge; We hereby

certify that there is no other case commenced or pending before any court

involving the same parties and the same issue and that, should We learn of

such a case, We shall notify the court within five (5) days from my notice.

IN WITNESS WHEREOF, We have signed this instrument on 29 January

2013.

SHREK DOGRE

Affiant

FIONA DOGRE

Affiant


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ACKNOWLEDGMENT

SUBSCRIBED AND SWORN to before me this 29th day of January 2013, in the

Land of Far Far Away, affiant exhibiting her Community Tax Certificate No. 123-

456-789, issued at Far Far Away on 01 July 2012.

KARLA MARGARITA HERRERANotary Public for The Swamps

Unit 902 Batac St. Duloc, Far Far Away

Appointment No. 122, Until December 2013

Roll of Attorney No. 70123P.T.R. No. 8985655, 01/05/2012, Far Far Away

I.B.P. Lifetime Member No. 10020, Far Far Away Chapter

M.C.L.E. Compliance No. III-0011385, 4/12/12

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