FACTS:

This petition for certiorari under Rule 65 assails the Resolution of the Commission on Elections (COMELEC) En Banc which declared private respondent Arsenio Densing Noble qualified to run for municipal mayor of Kinoguitan, Misamis Oriental, in the May 14, 2007 Synchronized National and Local Elections.  Petitioner Makil U. Pundaodaya is married to Judith Pundaodaya, who ran against Noble for the position of municipal mayor of Kinoguitan, Misamis Oriental in the 2007 elections.

Pundaodaya filed a petition for disqualification against Noble alleging that the latter lacks the residency qualification prescribed by existing laws for elective local officials; that he never resided nor had any physical presence at a fixed place in Purok 3, Barangay Esperanza, Kinoguitan, Misamis Oriental; and that he does not appear to have the intention of residing therein permanently.   Pundaodaya claimed that Noble is in fact a resident of Lapasan, Cagayan de Oro City, where he also maintains a business called OBERT Construction Supply.

ISSUE;

Should “residence” and “domicile” be construed as referring to “dwelling”? Did Noble effectively change his domicile?

RULING:

No to both. In Japzon v. Commission on Elections, it was held that the term “residence” is to be understood not in its common acceptation as referring to “dwelling” or “habitation,” but rather to “domicile” or legal residence, that is, “the place where a party actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain (animus manendi).”  In Domino v. Commission on Elections, the Court explained that domicile denotes a fixed permanent residence to which, whenever absent for business, pleasure, or some other reasons, one intends to return.

The documentary evidence of Noble, however, failed to convince the Court that he successfully effected a change of domicile.  To establish a new domicile of choice, personal presence in the place must be coupled with conduct indicative of that intention.  It requires not only such bodily presence in that place but also a declared and probable intent to make it one’s fixed and permanent place of abode.  In this case, Noble’s marriage to Bernadith Go does not establish his actual physical presence in Kinoguitan, Misamis Oriental.  Neither does it prove an intention to make it his permanent place of residence.