provisional remedies rule 58 section 5

7/18/2019 Provisional Remedies Rule 58 Section 5

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[A.M. No. MTJ-02-1453. April 29, 2003]

EDITHA PALMA GIL, complainant , vs. JUDGE

!AN"I#"$ H. L$PE%, J!., M&'i(ip)l

"ir(&i* Tri)l "o&r*, L&po', D)+)o

$ri'*)l, respondent .

! E # $ L U T I $ N

NA!E#-#ANTIAG$, J.

A magistrate should dispose of the courts business

promptly and decide cases within the required

periods. Delay in the disposition of cases erodes the

faith and condence of the public in the institution of

justice, lowers its standards and brings them into

disrepute. Every judge must cultivate a capacity for

quick decision he must not delay the judgment which

a party justly deserves. !he public trust reposed in a judges o"ce imposes upon him the highest degree of

responsibility to promptly administer justice. #$%

&n an A"davit'(omplaint#)% dated *ctober +,

)$, complainant Editha -alma il charged

respondent /udge 0rancisco 1. 2ope3, /r. of the

4unicipal (ircuit !rial (ourt of 2upon, Davao *riental,

with 4anifest 5ias and -artiality, 6ndue Delay in the

Disposition of (ase and &gnorance of the 2aw.

(omplainant alleged that she is the defendant in

(ivil (ase 7o. $$$ for 0orcible Entry and Damageswith -reliminary -rohibitory and 4andatory &njunction,

entitled Carlos Palen, Sr., Plaintif versus Editha Palma

Gil, Deendant, pending before the sala of respondent

judge and that respondent failed to render judgment

therein within the thirty'day period required by 8ule

9, :ection $$ of the $;;9 (ode of (ivil -rocedure. :he

further averred that on *ctober ;, )$, the plainti< in

the said case led a motion for temporary restraining

order, which respondent /udge granted on the same

day, despite procedural defects therein such as the

lack of a verication, bond, and service of summons, all

in violation of 8ule =>, :ection ? of the $;;9 8ules of

(ivil -rocedure. (omplainant further assails themanner in which the temporary restraining order was

implemented with the assistance of policemen.

&n his (omment dated 4arch $, )), respondent

judge denied that there was a deliberate and

unreasonable delay in the resolution of (ivil (ase 7o.

$$$. 1e alleged that aside from his court, he had to

hear the cases in the municipal courts in overnor

eneroso and :an &sidro, Davao *riental due to the

inhibition of the presiding judges therein. 4oreover, he

alleged that the legal and factual issues raised in (ivi

(ase 7o. $$$ are complicated. Anent the alleged

issuance of a temporary restraining order, respondent

claims that what he issued was a status quo orde

because complainants men entered the land in dispute

and attempted to prevent the harvesting of palay by

plainti<.0inally, respondent states that he had to seek

the assistance of the police to implement the orderbecause his court had no regular sheri< and because

there were armed guards employed by both parties. #+%

&n compliance with our 8esolution dated August

$?, )),#?% both parties manifested their willingness to

submit the case on the basis of the pleadings led.#=%

After evaluation, the *"ce of the (our

Administrator @*(A found respondent guilty of delay in

the rendition of judgment in (ivil (ase 7o. $$$ and

erred in issuing a temporary restraining order despite

procedural defects. 1ence, it recommended that

respondent be ned in the amount of !en !housand

-esos @-$,..

Be agree with the ndings of the *(A, however

we nd the recommended penalty to be not

commensurate with the gravity of respondents

misdeeds.

!he reasons pro<ered by respondent

judge, i.e., that he had to hear cases in the othe

courts, will not eCcuse his delay in deciding (ivil (ase

7o. $$$.#% &f he felt that he could not decide the case

within the reglementary period, he should have askedfor a reasonable eCtension of time to decide the same.#9%

!he o"ce of a judge eCists for one solemn end to

promote the ends of justice by administering

it speedily and impartially. !he judge as the person

presiding over that court is the visible representation of

the law and justice.#>% 0ailure to resolve cases submitted

for decision within the period Ced by law constitutes a

serious violation of the constitutional right of the

parties to a speedy disposition of their cases. #;%

8ules $.) of (anon $ and +.= of (anon + of the

(ode of /udicial (onduct state

8ule $.). A judge should administer justice impartially

and without delay . @Emphasis ours

8ule +.=. A judge shall dispose of the courts

business promptly and decide cases within the

required periods. @Emphasis ours

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4oreover, :( Administrative (ircular 7o. $+'>9

provides

+. Judges shall observe scrupulously the periods

prescribed by Article VIII, Section 15 of the

onstitution for the ad!udication and resolution

of all cases or matters submitted in their

courts. !hus, all cases or matters must be decided or

resolved within twelve months from date of submission

by all lower collegiate courts while all other lowercourts are given a period of three months to do so. . .

@Emphasis ours

Along the same vein, :( Administrative (ircular

7o. $'>> states

.$ All -residing /udges must endeavor to act

promptly on all motions and

interlocutory matters pending before

their courts. C C C.

(onsidering the summary nature of (ivil (ase 7o.$$$, which is an action for forcible entry, 8ule 9,

:ection $$ of the $;;9 8ules of :ummary -rocedure

eCpressly provides

Period or rendition o judgment. "ithin thirty #$%&

days after receipt of the a"davits and position papers,

or the eCpiration of the period for ling the same, the

court shall render judgment.

1owever, should the court nd it necessary to clarify

certain material facts, it may, during the said period,

issue an order specifying the matters to be claried,

and require the parties to submit a"davits or other

evidence on the said matters within ten @$ days from

receipt of said order. /udgment shall be rendered within

fteen @$= days after receipt of the last a"davit or the

eCpiration of the period for ling the same.

'he court shall not resort to the foregoing

procedure !ust to gain time for the rendition of

!udgment( @Emphasis ours

!hus, respondent judge is guilty of gross

ine"ciency for his failure to resolve and dispose of (ivil

(ase 7o. $$$ within the period prescribed by the8ules. !he penalty for gross ine"ciency ranges from

reprimand and admonition#$% to removal from

o"ce#$$% andFor a ne.#$)%

8espondent judge likewise erred in issuing the

temporary restraining order. 8ule =>, :ection ? of the

$;;9 8ules of (ivil -rocedure provides

Veried appli!ation and "ond or preliminary injun!tion

or temporary restraining order. A preliminary injunction

or temporary restraining order may be granted only

when

@a !he application in the action or proceeding is

veried and shows facts entitling the applicant to the

relief demanded and

@b 6nless eCempted by the court, the applicant leswith the court where the action or proceeding is

pending, a bond eCecuted to the party or person

enjoined, in an amount to be Ced by the court, to the

e<ect that the applicant will pay to such party o

person all damages which he may sustain by reason of

the injunction or temporary restraining order if the

court should nally decide that the applicant was not

entitled thereto. 6pon approval of the requisite bond, a

writ of preliminary injunction shall be issued.

@c Bhen an application for a writ of preliminary

injunction or a temporary restraining order is included

in a complaint or any initiatory pleading, the case, if

led in a multiple'sala court shall be raGed to only

after notice to and in the presence of the adverse party

or the person to be enjoined. &n any event, such notice

shall be preceded, or contemporaneously accompanied

by service of summons, together with a copy of the

complaint or initiatory pleading and the applicants

a"davit and bond, upon the adverse party in the

-hilippines.

1owever, where the summons could not be served

personally or by substituted service despite diligen

e<orts, or the adverse party is a resident of the-hilippines, temporarily absent therefrom or is a

nonresident thereof, the requirement of prio

contemporaneous service of summons shall not apply.

@d !he application for a temporary restraining orde

shall thereafter be acted upon only after all the parties

are heard in a summary hearing which shall be

conducted within twenty'four @)? hours after the

sheri<s return of service andFor the records are

received by the branch selected by raGe to which the

records shall be transmitted immediately.

!he records reveal that the motion for temporary

restraining order was not veried. #$+% 8espondent judge

issued the *rder on the same date when the motion

was led without prior notice to the complainant and

without a hearing.

!he issuance of the assailed *rder cannot be

justied under 8ule =>, :ection = of the $;;9 8ules of

(ivil -rocedure, which reads

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Preliminary injun!tion not granted #ithout noti!e$

e%!eption. 7o preliminary injunction shall be

granted without hearing and prior notice to the

person or party sought to be enjoined. & it shall appear

rom the a!ts sho#n "y the a'davits o "y the

veried appli!ation that great or irrepara"le injury

#ould result to the appli!ant before the matter can be

heard on notice, the court to which the application for

preliminary injunction was made, may issue a

temporary restraining order to be e<ective only for aperiod of twenty @) days from service on the party or

person sought to be enjoined, eCcept as herein

provided. Bithin the said twenty'day period, the court

must order said party of person to show cause, at a

specied time and place, why the injunction should not

be granted, determine within the same period whether

or not the preliminary injunction shall be granted and

accordingly issued the corresponding order.

1owever, and subject to the provisions of the

preceding sections, if the matter is of eCtreme urgency

and the applicant will su<er grave injustice and

irreparable injury, the eCecutive judge of a multiple'sala court or the presiding judge of a single'sala court

may issue eC parte a temporary restraining order

e<ective for only seventy'two @9) hours from

issuance but he shall immediately comply with

provisions of the ne)t preceding section as to

service of summons and the documents to be

served therewith. !hereafter, within the aforesaid

seventy'two @9) hours, the judge before whom the

case is pending shall conduct a summary hearing to

determine whether the temporary restraining order

shall be eCtended until the application for preliminary

injunction can be heard. &n no case shall the total

period of e<ectivity of the temporary restraining order

eCceed twenty @) days, including the original

seventy'two @9) hours provided therein. @Emphasis

and italics ours

Aside from the lack of verication of the motion,

no a"davits of the applicant and his witnesses were

appended thereto. 0urthermore, the assailed *rder did

not specify the duration of the temporary restraining

order.

8espondent argues that considering that the

complaint in (ivil (ase 7o. $$$ was veried andprayed for the issuance of a preliminary and

prohibitory injunction, the verication of the motion for

issuance of temporary restraining order may be

dispensed with. Be do not agree.

!he 8ules as above'quoted eCplicitly mandate that

the application for injunction should be veried. Bhile

litigation is not a game of technicalities, every case

must be prosecuted in accordance with the prescribed

procedure to insure an orderly administration of justice#$?%

Be see nothing wrong in respondents act o

securing the assistance of the police in implementing

his *rder. Administrative (ircular 7o. $)'>=, paragraph

9 allows a judge to designate or deputi3e any person to

serve court processes and writs in remote areas in the

absence of the regular sheri< thereat.

0urthermore, the better part of prudence, caution

and plain conventional wisdom dictates the presence of

the police on account of the potentially violent

situation engendered by the presence of armed

followers of the contending factions.

(onsidering the seriousness of the responden

judges o<enses, sti<er penalties should be imposed to

inculcate in him the value of being procient in both

substantive and procedural laws.

&n Caas v. Castigador ,#$=%

we held

*bservance of the law which he is bound to know and

sworn to uphold is required of every judge. Bhen the

law is su"ciently basic, a judge owes it to his o"ce to

simply apply it anything less than that would be

constitutive of gross ignorance of the law. &n short

when the law is so elementary, not to be aware of it

constitutes gross ignorance of the law.

&n the case at bar, the ignorance of respondent

judge is so gross that he should be held

administratively liable even if he acted in good faith#$% 1ence, the imposition of a ne in the amount of

-),. is a more appropriate penalty.

/HE!E$!E, based on the

foregoing, respondent /udge 0rancisco 1. 2ope3, /r. of

the 4unicipal (ircuit !rial (ourt of 2upon, Davao

*riental, is found 6&2!H of gross ignorance of the law

and gross ine"ciency. 1e is ordered to pay a 0&7E in

the amount of !wenty !housand -esos @-),.

and is :!E872H BA87ED that a repetition of the same

or similar acts shall be dealt with more severely.

#$ $!DE!ED.

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http://sc.judiciary.gov.ph/jurisprudence/2000/dec2000/139844.htm





A.M. No. !TJ-10-2255 J)'&)r 1, 2011

orrl $"A IPI No. 10-3335-!TJ

#P$U#E# DEM$"!IT$ AND $LIIA

LAG$, (omplainants,

vs.

JUDGE G$D$!ED$ 6. A6UL, J!., !EGI$NAL

T!IAL "$U!T, 6!AN"H 43, GING$$G

"IT, 8espondent.

D E ( & : & * 7

NA"HU!A, J(*

!he case arose from an amended complaint$ dated

December );, );, led by :pouses Democrito (.

2ago and *livia 8. 2ago @complainants, charging /udge

odofredo 5. Abul, /r. @respondent judge of the

8egional !rial (ourt @8!(, 5ranch ?+, ingoog (ity,

with acts and omissions violative of the :tandards of

(onduct -rescribed for /udges by 2aw, the 8ules of

(ourt, and the (ode of /udicial (onduct.

(omplainants were the defendants in a civil action for

-reliminary &njunction, Easement of 8oad 8ight of Bay,

and AttorneyIs 0ees, with prayer for a !emporary

8estraining *rder @!8*, led on /uly ), ); by

(hristina 4. *bico @*bico before the 8!(, ingoog

(ity, 4isamis *riental, and docketed as (ivil (ase 7o.

);';=. !he action was spawned by the alleged

threats of complainants to close the access road

leading to *bicoIs property, where the latterIs milksh

@bangus farm is located. *bico claimed that, if the

access road leading to her property was closed, she

would be prevented from harvesting her milksh,causing massive sh kills, and leading to heavy

nancial losses on her part.

(omplainants assert that the civil complaint was never

raGed, and that no notice of raGe was ever served

upon them, yet the case went directly to 5ranch ?+,

where respondent judge is the acting presiding judge.

1e is also the acting eCecutive judge of 8!(, ingoog

(ity. (omplainants claim that this is violative of :ection

?@c, 8ule => of the 8ules of (ourt.

*n /uly 9, );, respondent judge issued an*rder) directing the issuance of a !8* Je<ective

seventy two @9) hours from date of issue,J without

requiring *bico to put up a bond. (omplainants allege

that at that time, they were not yet in receipt of the

summons and copy of the complaint, as well as *bicoIs

a"davit and bond. (omplainants claim that this is

violative of :ection ?@c and @d of 8ule => of the 8ules

of (ourt.

*n /uly $?, );, respondent judge issued an

*rder+ eCtending the 9)'hour !8*, which had already

eCpired, Jfor another period provided that the tota

period should not eCceed twenty days.J Again

respondent judge failed to require *bico to put up a

bond even as complainants assert that it is already of

judicial notice that a !8* under the amended new

rules has been elevated to the level of an injunction.

&n his 8esolution?

dated August $$, );, respondent judge ordered, among others, the issuance of the writ

of preliminary injunction conditioned upon the

application of a bond by *bico in the amoun

of -$,.. (omplainants argue, however, tha

said directive was violative of :ection =, 8ule => of the

8ules of (ourt since they were not required Jto show

cause, at a specic time and place, why the injunction

should not be granted.J

Due to these acts of respondent judge, complainants

led a motion for inhibition= from further hearing the

case, since they perceive that respondent judge was

bereft of the cold neutrality of an impartial judge. !he

motion was denied by respondent judge in his

8esolution dated *ctober )>, );. (omplainants thus

consider respondent judgeIs non'inhibition as violative

of the (ode of /udicial (onduct, as it denied them due

process and equal protection of the law.

*n 7ovember $$, );, respondent judge issued an

*rder9 upon *bicoIs motion, directing the reduction of

the bond from -$,. to -=,..

(omplainants then led a 4otion to 1old in Abeyance

0urther -roceedings> on the ground of the pendency oftheir appeal before the :upreme (ourt of the *rde

denying the motion for inhibition. 1owever, at the

December $=, ); setting for pre'trial of the civi

case, respondent judge issued an *rder; denying the

motion to hold in abeyance further proceedings

8espondent judge also allowed *bico to present

evidence eC parte on /anuary ), )$ for failure of

complainants to appear during the pre'trial.$

&n his (omment$$ dated 0ebruary $$, )$, respondent

judge claries that, as of the time of the ling of the

civil complaint, 5ranches )9 and ?+ of the 8!(

ingoog (ity, had no regular presiding judges. 5ranch

)9 was temporarily presided over by /udge 8ustico

-aderanga, the regular presiding judge of 8!(

(amiguin -rovince, while 5ranch ?+ was presided over

by respondent judge, who is the regular judge of 8!(

5ranch ?, 5utuan (ity.

8espondent judge claims that he had faithfully

observed the provisions of 8ule => of the 8ules o

(ourt, with respect to (ivil (ase 7o. );';=. 1e

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eCplains that, as the acting eCecutive judge of 8!(,

ingoog (ity, he took cogni3ance of the civil case,

convinced that it had to be acted upon immediately.

!hus, the issuance of the 9)'hour !8* on /uly 9, );

was by virtue of his sound discretion based on the civil

complaint and its anneCes.

8espondent judge said that he eCplained in his /uly $?,

); *rder that he eCtended the 9)'hour !8* to )

days in this wiseK

(onsidering that the !8* previously granted was only

for seventy'two hours, the same can be eCtended for

another period provided that the total period should

not eCceed twenty days. &n order to prevent plainti<

from incurring serious damage and heavy nancial

losses on her part, this court is inclined to grant the

eCtension of the !emporary 8estraining *rder for

another period not eCceeding twenty @) days

inclusive of the seventy two @9) hour period already

granted previously by this court.$)

Bith respect to the /uly $?, ); hearing for the !8*,

respondent judge claims that it was justied since he,

as a mere acting presiding @and eCecutive judge of

8!(, ingoog (ity, conducts hearings in that sala only

on !uesdays and Bednesdays because he has to travel

about $?? kilometers from 5utuan (ity, where he is

actually stationed. &n the same /uly $?, ); *rder,

respondent judge asserts that the conduct of the

summary hearings on days other than !uesdays and

Bednesdays would cause undue prejudice to the other

cases already scheduled way ahead of the subject civil

action, thus, the sheer improbability of being

accommodated.

8espondent judge asseverates that the writ of

injunction was issued only after a serious consideration

of all the factual and legal circumstances of the case.

*n the other hand, he insists that the denial of the

motion for inhibition was due to its lack of factual and

legal basis.

After due investigation of this administrative case, the

*"ce of the (ourt Administrator @*(A issued its

8eport dated :eptember $+, )$, recommending that

this case be re'docketed as a regular administrative

matter, and, based on its nding that respondent judge

was grossly ignorant of the law and rules of procedure,

recommended that he be meted a ne in the amount

of -)=,., with a stern warning that a repetition of

the same or any similar infraction shall be dealt with

more severely.

!he *(A found respondent judge to have been grossly

and deliberately ignorant of the law and procedure for

violation of 8ule => of the 8ules of (ourt, specically by

means of the following acts @$ when the civi

complaint with prayer for the issuance of a !8* was

led on /uly ), );, respondent judge assumed

jurisdiction thereon and, without the mandated raGe

and notication and service of summons to the adverse

party, issued a 9)'hour !8* on /uly 9, ); @) when

respondent judge set the case for summary hearing on

/uly $?, );, purportedly to determine whether the

!8* could be eCtended for another period, when the

hearing should be set within 9) hours from theissuance of the !8* @+ when he eventually granted

an eCtension of an already eCpired !8* to a full )'day

period and @? when he issued a writ of preliminary

injunction in favor of *bico without prior notice to

herein complainants and without the required hearing.

Be nd the recommendations of the *(A to be well'

taken.

:ections ? and = of 8ule => of the 8ules of (ourt on

preliminary injunction, pertinent to this case, provideK

:E(. ?. Leried application and bond for preliminary

injunction or temporary restraining order.KA

preliminary injunction or temporary restraining orde

may be granted only when

@a !he application in the action or proceeding

is veried, and shows facts entitling the

applicant to the relief demanded and

@b 6nless eCempted by the court, the

applicant les with the court where the action

or proceeding is pending, a bond eCecuted to

the party or person enjoined, in an amount tobe Ced by the court, to the e<ect that the

applicant will pay such party or person al

damages which he may sustain by reason of

the injunction or temporary restraining order if

the court should nally decide that the

applicant was not entitled thereto. 6pon

approval of the requisite bond, a writ o

preliminary injunction shall be issued.

@c Bhen an application for a writ of

preliminary injunction or a temporary

restraining order is included in a complaint orany initiatory pleading, the case, if led in a

multiple'sala court, shall be raGed only after

notice to and in the presence of the adverse

party or the person to be enjoined. &n any

event, such notice shall be preceded, o

contemporaneously accompanied by service of

summons, together with a copy of the

complaint or initiatory pleading and the

applicantIs a"davit and bond, upon the

adverse party in the -hilippines.

-rovisional 8emedies 8ule => :ection = =





1owever, where the summons could not be

served personally or by substituted service

despite diligent e<orts, or the adverse party is

a resident of the -hilippines temporarily absent

therefrom or is a nonresident thereof, the

requirement of prior or contemporaneous

service of summons shall not apply.

@d !he application for a temporary restraining

order shall thereafter be acted upon only afterall parties are heard in a summary hearing

which shall be conducted within twenty'four

@)? hours after the sheri<Is return of service

andFor the records are received by the branch

selected by raGe and to which the records

shall be transmitted immediately.

:E(. =. -reliminary injunction not granted without

notice eCception.K7o preliminary injunction shall be

granted without hearing and prior notice to the party or

person sought to be enjoined. &f it shall appear from

facts shown by a"davits or by the veried application

that great or irreparable injury would result to the

applicant before the matter can be heard on notice, the

court to which the application for preliminary injunction

was made, may issue eC parte a temporary restraining

order to be e<ective only for a period of twenty @)

days from service on the party or person sought to be

enjoined, eCcept as herein provided. Bithin the twenty'

day period, the court must order said party or person

to show cause, at a specied time and place, why the

injunction should not be granted. !he court shall also

determine, within the same period, whether or not the

preliminary injunction shall be granted, and

accordingly issue the corresponding order.

1owever, subject to the provisions of the preceding

sections, if the matter is of eCtreme urgency and the

applicant will su<er grave injustice and irreparable

injury, the eCecutive judge of a multiple'sala court or

the presiding judge of a single'sala court may issue eC

parte a temporary restraining order e<ective for only

seventy'two @9) hours from issuance, but shall

immediately comply with the provisions of the neCt

preceding section as to the service of summons and

the documents to be served therewith. !hereafter,

within the aforesaid seventy'two @9) hours, the judge

before whom the case is pending shall conduct asummary hearing to determine whether the temporary

restraining order shall be eCtended until the application

for preliminary injunction can be heard. &n no case shall

the total period of e<ectivity of the temporary

restraining order eCceed twenty @) days, including

the original seventy'two hours provided herein.

&n the event that the application for preliminary

injunction is denied or not resolved within the said

period, the temporary restraining order is deemed

automatically vacated. !he e<ectivity of a temporary

restraining order is not eCtendible without need of any

judicial declaration to that e<ect, and no court shal

have authority to eCtend or renew the same on the

same ground for which it was issued.

1owever, if issued by the (ourt of Appeals or a

member thereof, the temporary restraining order shal

be e<ective for siCty @ days from service on theparty or person sought to be enjoined. A restraining

order issued by the :upreme (ourt or a membe

thereof shall be e<ective until further orders.

!he trial court, the (ourt of Appeals, the

:andiganbayan or the (ourt of !aC Appeals that issued

a writ of preliminary injunction against a lower court

board, o"cer, or quasi'judicial agency shall decide the

main case or petition within siC @ months from the

issuance of the writ.$+

(ulled from the foregoing provisions, particularly with

respect to the second paragraph of :ection =, 8ule =>

of the 8ules of (ourt, as amended, it is clear that, on

the matter of the issuance of an eC parte 9)'hour !8*

an eCecutive judge of a multiple'sala court @applicable

to respondent judge, or the presiding judge of a

single'sala court, is empowered to issue the same in

matters of eCtreme emergency, in order to preven

grave injustice and irreparable injury to the applicant

1owever, it is also an unequivocal provision that, after

the issuance of the 9)'hour !8*, the eCecutive judge

of a multiple'sala court is bound to comply with :ection

?@c of the same rule with respect to the service of

summons and the documents to be served therewith.

!he records of this case clearly show that respondent

judge failed to cause the raGe of (ivil (ase 7o. );

;=, since 8!(, ingoog (ity, is a multiple'sala court

or to cause the notication and service of summons to

complainants after he issued the 9)'hour !8*

8espondent judgeIs /uly 9, ); *rder was eCplicit

when the civil case was set for summary hearing on

/uly $?, );, purportedly to determine whether or not

the !8* issued could be eCtended for another period

!hus, it is manifest that respondent judge had directly

assumed jurisdiction over the civil action and al

together disregarded the mandatory requirements of

:ection ?@c, 8ule =>, relative to the raGe in the

presence of the parties, and service of summons. !his

is gross error.

Even assuming that there was a valid raGe to 8!(

5ranch ?+, ingoog (ity, where respondent judge acts

as the presiding magistrate, the supposed eCtreme

urgency of the issuance of the 9)'hour !8* was belied

by his setting of the required summary hearing for the

-rovisional 8emedies 8ule => :ection =





determination of the necessity of eCtending the 9)'

hour !8* to ) days, one week after the issuance

thereof. &ndeed, :ection =, 8ule => is eCplicit that such

summary hearing must be conducted within the said

9)'hour period. 7otwithstanding the eCplanation of

respondent judge that he could not set the required

summary hearing eCcept on !uesdays and

Bednesdays, it should be noted that /uly 9, );, the

date of the issuance of the 9)'hour !8*, was a

!uesday, yet respondent judge could have set thesummary hearing on /uly >, );, a Bednesday. 1e

failed to do so on the mistaken notion that, aside from

his alleged hectic schedule, he could, at any time,

eCtend the 9)'hour !8* for another period as long as

the total period did not eCceed ) days.

Bhat is more appalling is that respondent judge

eCtended the 9)'hour !8*, which had already and

obviously eCpired, into a full )'day !8*. An already

eCpired !8* can no longer be eCtended. 8espondent

judge should have known that the !8* he issued in his

capacity as an acting eCecutive judge was valid for

only 9) hours. 5eyond such time, the !8*automatically eCpires, unless, before the eCpiration of

the said period, he, supposedly in his capacity as

presiding judge to whom the case was raGed,

conducted the required summary hearing in order to

eCtend the !8*Is lifetime. &ndubitably, a 9)'hour !8*,

issued by an eCecutive judge, is a separate and distinct

!8* which can stand on its own, regardless of whether

it is eventually eCtended or not. &t is not, as respondent

judge attempts to impress upon us, a mere part of the

)'day !8* issued by a presiding judge to whom the

case is raGed.

4oreover, respondent judge committed another

blunder when he ordered the issuance of a writ of

preliminary injunction without the required hearing and

without prior notice to the defendants, herein

complainants. !he records plainly disclose that the only

hearing conducted prior to the August $$, );

8esolution granting the preliminary injunction was the

/uly $?, ); summary hearing for the eCtension of the

9)'hour !8*. !his could be gathered from the August

$$, ); 8esolution, wherein respondent judge

declaredK

During the hearing for the determination of thepropriety @sic the !emporary 8estraining *rder should

be eCtended or whether the Brit of &njunction be

granted, the plainti< presented (hristina 4. *bico, who

in essence testied that she operated sh cages at

ingoog 5ay. C C C.$?

Again, 8ule =>, as amended, mandates a full and

comprehensive hearing for the determination of the

propriety of the issuance of a writ of preliminary

injunction, separate from the summary hearing for the

eCtension of the 9)'hour !8*. !he preliminary

injunction prayed for by the applicant can only be

heard after the trial court has ordered the issuance of

the usual )'day !8*. Bithin that period of ) days

the court shall order the party sought to be enjoined to

show cause at a specied time and place why the

injunction should not be granted. During that same

period, the court shall also determine the propriety of

granting the preliminary injunction and then issue thecorresponding order to that e<ect. &n the case o

respondent judge, he gravely failed to comply with

what the rule requires, i.e., to give complainants the

opportunity to comment or object, through a full'blown

hearing, to the writ of injunction prayed for. &nstead

respondent judge railroaded the entire process by

treating the summary hearing for the eCtension of the

!8* as the very same hearing required for the

issuance of the writ of preliminary injunction.(avvphi(

Lerily, the absence of the hearing required by the 8ules

of (ourt is downright reprehensible and, thus, should

not be countenanced. !he requirement of a hearing isso fundamental that failure to comply with it not only

amounts to gross ignorance of rules and procedure, but

also to an outright denial of due process to the party

denied such a hearing. 6ndoubtedly, the acts and

omissions of respondent judge warrant sanction from

this (ourt.

!hough not every judicial error bespeaks ignorance of

the law or of the rules, and that, when committed in

good faith, does not warrant administrative sanction

the rule applies only in cases within the parameters of

tolerable misjudgment. Bhen the law or the rule is soelementary, not to be aware of it or to act as if one

does not know it constitutes gross ignorance of the law.

*ne who accepts the eCalted position of a judge owes

the public and the court prociency in the law, and the

duty to maintain professional competence at all times

Bhen a judge displays an utter lack of familiarity with

the rules, he erodes the condence of the public in the

courts. A judge is eCpected to keep abreast of the

developments and amendments thereto, as well as of

prevailing jurisprudence. &gnorance of the law by a

judge can easily be the mainspring of injustice.$=

&n the absence of fraud, dishonesty, or corruption, theacts of a judge in his judicial capacity are not subject to

disciplinary action. 1owever, the assailed judicial acts

must not be in gross violation of clearly established law

or procedure, which every judge must be familiar with

Every magistrate presiding over a court of law must

have the basic rules at the palm of his hands and

maintain professional competence at all times.$

-rovisional 8emedies 8ule => :ection = 9










:ection >, 8ule $? of the 8ules of (ourt classies

gross ignorance of the law or procedure as a serious

o<ense for which the imposable sanction ranges from

dismissal from the service to suspension from o"ce,

and a ne of more than -),. but not

eCceeding -?,.. 6nder the premises, this (ourt

nds it appropriate to impose on respondent judge the

penalty of a ne in the amount of -)=,..

B1E8E0*8E, /udge odofredo 5. Abul, /r., of the8egional !rial (ourt, 5ranch ?+, ingoog (ity, is found

liable for ross &gnorance of the 2aw and -rocedure,

and is hereby meted a ne of -)=,., with a stern

warning that a repetition of the same, or any similar

infraction in the future, shall be dealt with more

severely.

:* *8DE8ED.

-rovisional 8emedies 8ule => :ection = >



A.M. No. !TJ-05-1901 No+7r 30, 2008

$!TUNE LIE IN#U!AN"E, "$MPAN, IN".,

rpr'*: 7 AM6!$"IA G.

"AN"I$, (omplainant,

vs.

JUDGE JIMM H. . LU"%$N, J!., Pri:i'; J&:;,

!;io')l Tri)l "o&r*, T&;&;)r)o, 6r)'(<

1,8espondent.

8 E : * 2 6 ! & * 7

"A!PI$, J(

0or resolution is the administrative complaint led by

0ortune 2ife &nsurance (ompany, &nc. @JcomplainantJ,

through its :enior Lice'-resident Ambrocia . (ancio,

against /immy 1. 0. 2uc3on, /r. @Jrespondent /udgeJ,

-residing /udge of the 8egional !rial (ourt of

!uguegarao @J8!('!uguegaraoJ, 5ranch $. !he charges

are grave abuse of authority, gross ignorance of the

law, knowingly rendering an unjust order, and bias andpartiality under :ection +, 8ule $? of the 8evised

8ules of (ourt.

(omplainant had sought the foreclosure of a real

estate mortgage eCecuted in its favor by 4aria Lictoria

8ealty and Development (orporation @J4L8D(J. *n >

*ctober )+, however, 4L8D( led a petition for

annulment of real estate mortgage and accounting

with prayer for the issuance of a preliminary injunction

and temporary restraining order @JpetitionJ against

complainant. !he case was led before the 8!('

!uguegarao and docketed as (ivil (ase 7o. )?. *n

the same day, 8!('!uguegarao ECecutive /udge Lilma !. -auig @J/udge -auigJ issued a temporary restraining

order @!8* enjoining complainant and the deputy

sheri< from holding a foreclosure sale of 4L8D(Is real

properties on $ *ctober )+. !he !8* was to be

e<ective for 9) hours. !he clerk of court sent a notice

for the special raGe of the case on $+ *ctober )+.

*n $+ *ctober )+, 4L8D( led a motion for the

eCtension of the !8* @Jmotion for eCtensionJ, with

notice of hearing for $ *ctober )+. *n the latter

date, after the raGe of the case to his sala, respondent

/udge issued an *rder

$

eCtending the !8* for another$9 days.

*n )> *ctober )+, respondent /udge issued the writ

of preliminary injunction prayed for by 4L8D(.

8espondent /udge had not yet conducted any hearing

on the case. !he injunction order reads

(onsidering the fact that the temporary restraining

order will eCpire on *ctober +, )+ a date appearing

from the allegations of the motion#,% that irreparable

injuries may result should the sheri< pursue the

foreclosure of the mortgage#,% the (ourt hereby grants

the injunction subject however to a bond which wil

answer for the damages which the defendants may

su<er as a result of the injunction and the bond is Ced

at -+,.

!his injunction will take e<ect upon ling of the bond

and shall continue until further orders from this (ourt.

!he :heri< and any of his deputies are hereby enjoined

from enforcing the foreclosure of the mortgage during

the pendency of this injunction.

C C C C)

(omplainant assailed the eCtension of the !8* and the

issuance of the writ of preliminary injunction Jbased

purely on the unilateral allegations of 4L8D(.J

(omplainant argued that respondent /udge should not

have issued the !8* or writ without a summaryhearing, especially considering that 4L8D(Is petition

lacked an a"davit of merit. (omplainant asserted that

it clearly had the right to foreclose the mortgage

4L8D( defaulted in the payment of its loan, as shown

by copies of dishonored 4L8D( checks

totaling -+,$=,>$.+ (omplainant pointed out tha

under the law, 4L8D( would have the right to redeem

any of its foreclosed properties. !hus, according to

complainant, there was no eCtreme urgency, grave

injustice or irreparable injury which would justify the

injunction in 4L8D(Is favor.

&n its $st &ndorsement dated ) 4arch )?, the *"ceof the (ourt Administrator @*(A required respondent

/udge to le his comment and to show cause why he

should not be sanctioned.

&n his defense, respondent /udge claimed that he did

not know personally the counsels of either party to the

case or any of their incorporators. 8espondent /udge

maintained that he dealt with the parties on a

professional level and he always acted fairly.

8espondent /udge claimed that complainant received a

copy of the motion for eCtension, as shown by aregistry receipt posted on $+ *ctober )+. 1e granted

the motion for eCtension in view of the urgency of the

case and to avoid irreparable injuries to 4L8D(

8espondent /udge further claimed that complainant

received a copy of the 4otion to :et 1earing for the

&ssuance of -reliminary &njunction, as shown by a

registry receipt posted on $9 *ctober )+. At any

rate, respondent /udge stressed, he already issued an

order dissolving the writ of preliminary injunction on $>

4arch )? after complainant led a motion to

-rovisional 8emedies 8ule => :ection = ;

http://www.lawphil.net/judjuris/juri2006/nov2006/am_rtj-05-1901_2006.html#fnt1









dissolve the writ and 4L8D( had led its comment to

the motion.

&n its evaluation of the allegations of both complainant

and respondent /udge, the *(A stated

!he instant complaint is partly meritorious.

(omplainant stresses pertinent points to account for

respondentIs alleged culpability. A probe into each

reveals that many of the issues raised are judicial innature. :ave for one, the enumerated points warrant

no culpability on the part of respondent /udge.

(omplainant assails the supposed lack of an A"davit

of 4erit. Liewed in the conteCt of the actual petition for

preliminary injunction, this contention cannot be

countenanced. !he absence of an A"davit of 4erit is

not nal where the petition itself, which is under oath,

recites the circumstances or facts which constitute the

grounds of the petition.

(omplainant also takes issue with the fact that it wasnot furnished a copy of the bond. Apparently, this

contention is premised on :ection 9 of 8ule =>, $;;9

8ules of (ivil -rocedure, which in e<ect allows the

adverse party to JeCcept to the su"ciency of the bond,

or of the surety or sureties thereon.J Again, said

contention cannot be sustained in light of the

circumstances of the case at hand. A check with the

records of the instant case discloses that the

summons, a copy of the petition, and raGe notication

were actually received by the complainant on $

*ctober )+. &n Caluya v. )amos, the failure of the

defendants to furnish the adverse parties with copies

of the bonds prior to their approval is not su"cient toinvalidate the orders dissolving the preliminary

injunction where the attorneys for the latter were

notied of the ling of the rst bond where they

ultimately received copies of the bonds and where

they do not contend that said bonds are insu"cient or

that the sureties are not solvent.

ECcept for the allegation of lack of summary hearing,

complainantIs charges against respondent /udge

should be dismissed for being judicial in nature.

Essentially the same allegations were raised in the

4otion to Dissolve Brit of -reliminary &njunction. !he

complainant assails the wisdom of the assailed *rders

of respondent. 1owever, it must be noted that the

complainant has adequate remedy under the 8ules of

(ourt to challenge said *rders. &n fact, it led a

#m%otion to #d%issolve the #w%rit of #p%reliminary

#i%njunction which was eventually granted on $> 4arch

)?.

Be submit, however, that the absence of summary

hearing cannot be eCcused. !he conduct of a summary

hearing is mandated under :ection =, 8ule =>, $;;9

8ules of -rocedure C C C C.

!he requirement of hearing is so basic and

fundamental that an omission of #such% amounts to

gross ignorance of rules and procedure and invites due

sanction. &n this case, respondent #/udge% twice ignored

this elementary requisite. 0irst, he eCtended the !8*

!hen, after its eCpiration, he converted the same into a

preliminary injunction. 5oth *rders were issued withoutconducting a summary hearing. !he rules on

preliminary injunction plainly provide that it cannot be

granted without notice to the defendant.

Bhen the law or the rule is so elementary, not to be

aware of it or to act as if one does not know it

constitutes gross ignorance of the law. /udges are duty'

bound to be faithful to the law and the rules and to

maintain professional competence at all times. !hei

role in the administration of justice requires a

continuous study of the law, rules and jurisprudence

lest public condence in the judiciary be eroded by

incompetence and irresponsible conduct.

C C C #&%t bears stressing that a writ of injunction is an

eCtraordinary, peremptory remedy that should be

dispensed with circumspection, and both sides should

rst be heard whenever possible. &n fact, judges are

enjoined to observe utmost caution, prudence and

judiciousness in the issuance of #a% !8* and in the

grant of preliminary injunction. &nVillanueva v. Court o

*ppeals, it was found that the issuance of the assailed

!8* was tainted with grave abuse of discretion fo

having been issued without prior notice and hearing.

6nder A.4. 7o. $'>'$':(, Jross &gnorance of the

2aw or -rocedureJ is classied as #a% serious o<ense for

which the imposable sanction ranges from a ne to

dismissal. 1owever, we nd #respondent /udgeIs% acts

not ingrained with malice or bad faith. C C C C

8ecommendation 8espectfully submitted for the

consideration of the 1onorable (ourt are the

recommendations that

$. !he instant complaint be re'docketed as a

regular administrative case

). 8espondent #/udge% be meted a ne in the

amount of ve thousand pesos for gross

ignorance of the law and

+. !he rest of the charges against respondent

#/udge% be D&:4&::ED for being judicial in

nature.?







!he evaluation and recommendation of the *(A are

well'taken, eCcept for the penalty.

!he 8ules of (ourt and Administrative (ircular 7o. )'

;== require the holding of a hearing where both parties

can introduce evidence and present their side before

the court may issue a !8* or an injunctive writ. :ection

= of 8ule => provides

:E(. =. Preliminary injun!tion not granted #ithout noti!e$ e%!eption. K No prlii')r i'=&'(*io' <)ll

7 ;r)'*: >i*<o&* <)ri'; )': prior 'o*i( *o

*< p)r* or pro' o&;<* *o 7 '=oi':. &f it

shall appear from facts shown by a"davits or by the

veried application that great or irreparable injury

would result to the applicant before the matter can be

heard on notice, the court to which the application for

preliminary injunction was made, may issue e% parte a

temporary restraining order to be e<ective only for a

period of twenty @) days from service on the party or

person sought to be enjoined, eCcept as herein

provided. /i*<i' *< )i: *>'*-:) prio:, *<

(o&r* &* or:r )i: p)r* or pro' *o <o>

()&, )* ) p(i?: *i )': pl)(, >< *<

i'=&'(*io' <o&l: 'o* 7 ;r)'*:, :*ri'

>i*<i' *< ) prio: ><*<r or 'o* *<

prlii')r i'=&'(*io' <)ll 7 ;r)'*:, )':

)((or:i';l i& *< (orrpo':i'; or:r.

1owever, and subject to the provisions of the

preceding sections, if the matter is of eCtreme urgency

and the applicant will su<er grave injustice and

irreparable injury, the eCecutive judge of a multiple'

sala court or the presiding judge of a single'sala court

may issue e% parte a temporary restraining ordere<ective for only seventy'two @9) hours from issuance

but he shall immediately comply with the provisions of

the neCt preceding section as to service of summons

and the documents to be served

therewith. T<r)@*r, >i*<i' *< )@or)i:

+'*-*>o 2 <o&r, *< =&:; 7@or ><o

*< () i p':i'; <)ll (o':&(* ) &)r

<)ri'; *o :*ri' ><*<r *< *por)r

r*r)i'i'; or:r <)ll 7 *':: &'*il *<

)ppli()*io' @or prlii')r i'=&'(*io' ()' 7

<)r:. &n no case shall the total period of e<ectivity of

the temporary restraining order eCceed twenty @)

days, including the original seventy'two hours providedherein. @Emphasis supplied

6pon the application for a writ of preliminary

injunction, where the matter is of eCtreme urgency and

grave injustice and irreparable injury will arise, the

ECecutive /udge may issue e% parte a !8* e<ective for

9) hours from issuance. 5efore the eCpiry of the 9)

hours, the presiding judge to whom the case is raGed

shall conduct a summary hearing to determine whether

the !8* can be eCtended until the pending application

for injunction can be heard.(+#phi(

Evidently, the hearing of the motion for eCtension set

on $ *ctober )+ did not take place. All the same

respondent /udge granted the motion on that date

without mentioning the reason for the lack of hearing

or whether he intended to conduct one in the future on

the prayer for the issuance of an injunction. 0urthe

compounding his error, respondent /udge failed toconduct a hearing on the injunction within the )'day

life of the !8*, as prescribed by the 8ules of (ourt. Het

he issued the assailed injunction order against

complainant. !he injunction order did not even eCplain

why no hearings had taken place prior to its issuance.

&njunction is an eCtraordinary remedy to be resorted to

when there is a pressing necessity to avoid injurious

consequences that cannot be remedied under any

standard compensation. A court may issue an

injunction only if it is fully convinced of its eCtreme

necessity and after it has complied with the procedura

requirements set by law.

&n the absence of fraud, dishonesty or corruption, the

acts of a judge in his judicial capacity are not subject to

disciplinary action.9 1owever, the assailed judicial acts

must not be in gross violation of clearly established law

or procedure, with which every judge must be familiar

Every judge, while presiding over a court of law, must

have the basic rules at the palm of his hands and

maintain professional competence at all times.>

8espondent /udgeIs failure to abide by :ection =, 8ule

=> and Administrative (ircular 7o. )';= constitutesgross ignorance of the law for which he must be

disciplined accordingly.; 6nder 8ule $? of the 8ules of

(ourt, as amended by A.4. 7o. $'>'$':(, gross

ignorance of the law is classied as a serious charge

and penali3ed with dismissal, suspension, or a ne

ranging from above -), to -?,.

/HE!E$!E, we nd respondent /udge /immy 1. 0

2uc3on, /r. of the 8egional !rial (ourt of !uguegarao

5ranch $, liable for G!$## IGN$!AN"E $ THE

LA/ and INE him -)$,. Be #TE!NL /A!N him

that a repetition of the same or similar act in the future

shall merit a more severe sanction.

:* *8DE8ED.

-rovisional 8emedies 8ule => :ection = $$















[A.M. No. !TJ-04-1B83. $(*o7r 22, 2004]

ATT. J$#E AL$N#$ M. G$M$#, UND $!

A##I#TAN"E T$ P!IATE EDU"ATI$N

APE, complainants, vs. JUDGE #ANT$#

6. ADI$NG, !;io')l Tri)l "o&r*, 6r)'(< B,

M)r)>i "i*, respondent .

D E " I # I $ N

NA!E#-#ANTIAG$, J.

&n two veried complaints dated 4arch $), )$

and 4arch )), )$ led with the *"ce the (ourt

Administrator @*(A, :ultan :abdulah Ali -acasum, in

his capacity as -resident and (hairman of -acasum

(ollege, &nc., Atty. Alfonso 4. omos and Dr. 8oberto !.

5orromeo, as counsel and -resident of the 0und for

Assistance to -rivate Education @0A-E respectively,charged respondent /udge :antos 5. Adiong of 8!(,

5ranch >, 4arawi (ity with gross ignorance of law,

abuse of authority and gross misconduct.

!he antecedent facts are as follows

*n 0ebruary ), )$, :aripada Ali -acasum led

:pecial (ivil Action 7o. ;'$ for mandamus with

application for preliminary mandatory injunction

against 0A-E. 1e alleged that 0A-E was required by law

to pay subsidy to -acasum (ollege, &nc. under the

Educational :ervice -rogram of the Department of Education, (ulture and :ports @DE(: that although

the DE(: has already released to 0A-E the total

amount of -9?,,. for payment to di<erent

participating schools, 0A-E refused to release to

-acasum (ollege, &nc. the sum of -$,>?=,?. which

represented the remaining unpaid collectible of the

said institution for the school year )')$ that the

continued refusal by 0A-E to release the said amount

has caused the school to fail in its obligation to pay the

salaries of its teachers for + months.

*n the same day the petition was led,

respondent judge granted#$% the application forpreliminary mandatory injunction upon the posting by

the petitioner of a surety or property bond in the

amount of -),..

*n 0ebruary )>, )$, the respondent judge

issued another order directing the president of 0A-E,

Dr. 8oberto !. 5orromeo, to prepare and issue a check

for -$,>?=,?. representing the payment to the

-acasum (ollege, &nc. C C C payable to its president

and chairman :aripada Ali -acasum, the petitione

herein.#)% *n the same day, :heri< Acmad Alipanto

served upon 0A-E, throught its president, summons

and a copy of the petition.

*n 4arch =, )$, 0A-E led a -etition fo

(ertiorari and -rohibition docketed as (A'.8. 7o

+=++#+% before the (ourt of Appeals, challenging the

*rders, both dated 0ebruary ), )$, issued by therespondent judge. &t argued that a pending ownership

dispute between :ultan :abdulah Ali -acasum and

:aripada Ali -acasum over the shares of the -acasum

(ollege before the :ecurities and ECchange

(ommission precludes the release of the remaining

balance of the subsidy to -acasum (ollege under the

E:( -rogram, which requires that any dispute must be

settled rst before the release could be made. !he

petition further stated that the 8!( of 4arawi (ity has

no jurisdiction to enforce the writs of mandamus and

preliminary injunction to 0A-E, in its principal o"ce in

4akati (ity, since the place is outside the $)th judicia

region where it belongs.#?% 0A-E also prayed for the

issuance of a !8* against :aripada Ali -acasum and

his agents who have been harrassing its employees

with hourly calls and threats of bodily harm.

*n 4arch ;, )$, :heri< Acmad Alipanto and

:aripada Ali -acasum served an *rder dated 4arch 9,

)$, which was allegedly issued on a mere e%

parte motion by :aripada Ali -acasum, reiterating the

*rders of 0ebruary ), )$ with a warning that failure

to comply would be under pain of contempt of court.#=% *n 4arch $+, )$, :aripada Ali -acasum togethe

with a 4akati policeman served warrant of arrest uponDr. 5orromeo.

*n 4arch $?, )$, the (ourt of Appeals issued a

!8* enjoining the respondent judge from enforcing the

orders of 0ebruary ), )$. Despite the !8*

respondent judge ordered the arrest of Dr. 5orromeo

and certain 0A-E employees for failure to comply with

his directive. !wo of 0A-Es employees, namely

Evangeline Domondon and 7enita !orres, were

subsequently arrested and detained.

*n 4arch $), )$, :ultan :abdulah Ali -acasum

led a letter complaint before the *(A charging the

respondent judge with gross ignorance of the law and

gross misconduct. *n 4arch )), )$, a similar letter'

complaint was led by Atty. /ose omos on the same

ground that the respondent judge violated the hearing,

notice and jurisdictional requirements of the 8ules of

(ourt in issuing the questioned orders of 0ebruary )

and )>, )$.

-rovisional 8emedies 8ule => :ection = $)

http://sc.judiciary.gov.ph/jurisprudence/2004/oct2004/am_rtj_04_1863.htm#_ftn1














&n his (omment, respondent judge claimed that he

took cogni3ance of :pecial (ivil Action 7o. ;'$ after

it was raGed to his court. 1e found that the pleadings

were in order that after a careful eCamination of the

pleadings submitted by the petitioner, he saw an

eCtreme necessity to resolve the case eCpeditiously

and that all the pending incidents has been rendered

moot and academic with the dismissal of :pecial (ivil

Action 7o. ;'$.

After evaluation of the records, the *(A found that

the respondent judge was liable for gross ignorance of

the law, oppression and abuse of authority that the

respondent, as the -residing /udge of 8!(, 4arawi (ity,

has no authority to enforce a preliminary injunction in

4akati (ity where the principal o"ce of 0A-E was

located that he violated the rights of 0A-E employees

when he summarily cited them in contempt without

regard to the procedure prescribed by the 8ules of

(ourt. 1e abused his authority when he issued a

warrant of arrest on 4ay )=, )$ despite a !8* issued

by the (ourt of Appeals. Accordingly, the *(A made

the following recommendations

$. !his matter be re'docketed as a regular

administrative case against the

respondent judge

). 8espondent judge be found guilty of gross

ignorance of the law and the rules

+. 8espondent judge be meted with the

penalty of 0&7E in the sum of 0orty

!housand -esos @-?,..#%

6pon being directed by the (ourt, #9% complainants

manifested their willingness to submit the case for

decision on the basis of the pleadings submitted.#>% 8espondent judge, on the other hand, failed to le

his manifestation hence, the (ourt was constrained to

dispense with the ling thereof.

Be agree with the recommendations of the *(A,

eCcept as to the penalty.

8espondent judge granted :aripada Ali -acasums

application for preliminary mandatory injunction on thevery same day the :pecial (ivil Action 7o. ;'$ was

led on 0ebruary ), )$. :ections ?@c and =, 8ule =>

of the $;;9 8ules of (ivil -rocedure#;% is very eCplicit

that the writ of preliminary injuction may issue only

after prior notice and hearing upon the adverse party.

&n issuing the subject writ on the very same day the

application was led and considering that the person

against whom the same was to be served was located

in 4akati, summons could not have been served upon

them or a hearing conducted in evident disregard of

the due process requirements of the 8ules of (ourt.

8espondent judges failure to comply with

procedural due process is aggravated by his tota

inattention to the parameters of his jurisdiction. As the

presiding judge of 8!(, 4arawi (ity, he should have

known that 4akati (ity was way beyond the

boundaries of his territorial jurisdiction insofar as

enforcing a writ of preliminary injunction is concerned:ection )$@$ of 5.-. 5lg. $);, as amended, provides

that the 8!( shall eCercise original jurisdiction in the

issuance of writs of certiorari, prohibition, mandamus

quo warranto, ha"eas !orpusand injunction which may

be enforced in any part of their respective regions. !he

rationale, as eCplained in Em"assy -arms, &n!. v. Court

o *ppeals,#$% is that the trial court has no jurisdiction

to issue a writ of preliminary injunction to enjoin acts

being performed or about to be performed outside its

territorial jurisdiction.

&n the case at bar, the issuance of the writ of

preliminary injunction is not a mere deciency in

prudence, or lapse of judgment on the part o

respondent judge but a blatant disregard of basic rules

constitutive of gross ignorance of the law. !he

responsibility of judges to keep abreast of the law and

changes therein, as well as with the latest decisions of

the :upreme (ourt, is a pressing need. *ne canno

seek refuge in a mere cursory acquaintance with the

statute and procedural rules. &gnorance of the law

which everyone is bound to know, eCcuses no one not

even judges.#$$%

8espondent judge is likewise guilty of grossignorance of the law for summarily punishing 0A-Es

president and employees without any written charge

for indirect contempt or giving them any opportunity to

eCplain their refusal to obey the courts order, as

mandated by :ection +, 8ule 9$ of the $;;9 8ules of

(ivil -rocedure.#$)% Bhat makes the act more

reprehensible was the four 0A-E employees cited for

contempt, two of whom were arrested and detained

with the eCception of Dr. 5orromeo, were not even

impleaded in :pecial (ivil Action 7o. ;'$. Borse

the arrest of the said employees was made despite the

issuance by the (ourt of Appeals of a !8* enjoining

the respondent from enforcing the *rder of 0ebruary), )$.

!he contempt power was given to the courts in

trust for the public, by tradition and necessity

inasmuch as respect for the courts, which are ordained

to administer the laws necessary to the good order of

society, is as necessary as respect for the laws

themselves. As in all other powers of the court, the

contempt power, however plenary it may seem, must

-rovisional 8emedies 8ule => :ection = $+



















[A.M. No. !TJ-99-1508. A&;&* 9, 2001]

J$#EINA

ME!$NT$# Vda. de #A#$N, complainant

, vs( J&:; $#"A! E. %E!NA, respondent .

D E " I # I $ N

PANGANI6AN, J(*

A temporary restraining order @!8* may be

issued e% parte by an eCecutive judge in matters of

eCtreme emergency, in order to prevent grave injustice

and irreparable injury. 5ecause such issuance of a !8*

shall be e<ective only for seventy'two hours therefrom,

as provided under Administrative (ircular 7o. )';=,

the e% parte issuance of a )'day !8* is unauthori3ed

and may make the judge administratively liable.

T< ")

5efore us is an administrative case arising from a

veried 2etter'(omplaint#$% dated 0ebruary )=, $;;9,

led by /osena 4erontos vda. de :ayson against

/udge *scar E. Nerna of the 8egional !rial (ourt of

2anao del 7orte, 5ranch 9. &n a letter#)% dated 4arch +,

$;;9, -ublic Attorney && Lermin 4. Ouimco of the -ublic

Attorneys *"ce, &ligan (ity, endorsed the (omplaint to

then (ourt Administrator Alfredo 2. 5enipayo. Attorney

Ouimco requested an investigation of the charges

leveled against respondent namely, gross ignorance of the law, gross misconduct and grave abuse of

authority.

T< )(*

!he facts of this case are as follows.

*n /une 9, $;;, respondent issued a !emporary

8estraining *rder#+% in (ivil (ase 7o. 9'+9+ in favor of

the plainti<, 7apoleon 2ee :r. and against the

defendants '' 0rancisco 2umayag, /ose 5ravo and

8icardo :ayson '' as well as their agents, heirs and

representatives. !he *rder directed defendants to

refrain from entering the parcel of land covered by *(!

7o. -'$$9=, registered under the plainti<s name in

the 8egistry of Deeds of 2anao del 7orte. !he disputed

lot, which is situated

in 5arangay umagamot, 2ala, 2anao del 7orte, has an

area of $,9?$ sq m. &t is bounded southeast,

southwest, and northwest by the umagamot 8iver

and northeast by the property claimed by herein

complainant.

*n /une ;, $;;, the !8* was served upon

complainant by Deputy :heri< (onrado 1ingco /r., who

thereafter entered her two'hectare shpond and

harvested prawn and sh products from it.

&n her veried 2etter'(omplaint, complainan

sought injunction and damages from respondent

whom she charged with bad faith in the issuance of the

!8* without notice and hearing. :he claims that the !8* was issued with patent violation and disregard of

the constitutional right of due process of the

undersigned who is not even a party to the case, and

that it was a clear disregard and disobedience to

:upreme (ourt (ircular 7o. )';= prohibiting judges

from issuing !emporary 8estraining *rders @!8*s

without the observance of the mandatory requirement

of notice and summary hearing of the parties

concerned. &n her words

!hat on or about the second week of /une $;;, while

he was actually acting and performing his functions

and duties as #p%residing #j%udge of 8!( 5ranch 9

!ubod, 2anao del 7orte, with apparent and manifes

bias in favor of the plainti< in (ivil (ase 7o. 9'+9+, in

the person of 7apoleon 2ee :r., and with patent

violation and disregard of the constitutional right o

due process of the undersigned who is not even a party

to the case, said /udge *scar Nerna, wilfully

wrongfully, and if not with gross ignorance of the

constitution and pertinent law, and clear disregard and

disobedience to :upreme (ourt (ircular 7o )';=

prohibiting judges from issuing !emporary 8estraining

*rders @!8*s without the observance of the

mandatory requirement of notice and summaryhearing of the parties concerned, did actual#ly% issue

and promulgate a temporary restraining order. A

certied copy of said restraining order which would

speak for itself is hereto attached as AnneC A of this

veried complaint.

!hat is the very same temporary restraining orde

utili3ed by :heri< (onrado 1ingco /r. the #p%rovincia

#s%heri< of /udge *scar Nerna, in entering C C C the

land that & possessed and titled to my name, right after

the issuance of said !8*, and capitali3ing on my

ignoranceFinnocence about legal process, he deceived

me and my family to believe that such orde

authori3e#d% him to harvest the prawn and shpond

products we introduced in my said shpond. C C C.

!hat as the restraining order speaks for itself, neithe

#complainant% nor any of the defendants were a<orded

by /udge Nerna C C C due process which includes the

opportunity to be notied and heard in a summary

hearing as required by the cited :upreme (ourt circular

before issuance of the same.#?%

-rovisional 8emedies 8ule => :ection = $=

http://sc.judiciary.gov.ph/jurisprudence/2001/aug2001/am_rtj_99_1506.htm#_edn1











&n his (omment dated /uly $=, $;;9, respondent

denied that the !8* was issued with ignorance of the

law and abuse of authority. 1e contended

*n /une 9, $;;, a complaint was led by plainti<

7apoleon !. 2ee, :r. versus 0rancisco 2umayag, /ose

5ravo alias /oe and 8icardo :ayson for &njunction and

Damages. !he plainti< alleged that he #was% an owner

of a certain parcel of land at 5arangay umagamot

with an area of $,9?$ sq. m., which is bounded on the:.E., :.B., and 7.B., along lines $')'+'?'=''9'>'; by

umagamot 8iver and on the 7.E., along lines ;'$'$$'

$)'$+'$?'$#, a% property claimed by /osena :ayson. '

-lainti< further alleged that he ha#d% title of ownership

over the land as evidenced by *(! 7o. @PA!&5AHA7 7

*8&&7A2 7A !&!62* 7o. -'$$,9=, Paloob na -atente

5lg. $)+=;'$;=')$, as registered in the 8egistry of

Deeds of 2anao del 7orte C C C.

6pon receipt of the complaint and nding #that% the

subject matter of this case was the harvest of the

prawn over the lot in question, the (ourt issued a

!emporary 8estraining *rder as prayed for considering

the perishable nature of the prawn and the ready buyer

during the harvest by enjoining the defendants for a

period of ) days from harvesting the same. !he

defendants complained of the issuance of !emporary

8estraining *rder even charging the #c%ourt of

ignorance of the law by citing Administrative (ircular

7o. )';='that the #c%ourt did not conduct summary

hearing with notice within )? hours#% however the

#c%ourt did not also #lose% sight of the fact that in his

opinion the matter was of eCtreme urgency considering

the perishable nature of the prawn and its ready

buyer. !his is also provided for in par. + of said (irc. 7o.)';= in that if the matter is of eCtreme urgency and

that grave injustice and irreparable injury will arise, the

#e%Cecutive #j%udge shall issue a !emporary 8estraining

*rder e<ective only for ) days from its issuance. #=%

!(o':)*io' o@ *< "o&r* A:i'i*r)*or

After evaluating the pleadings and the records

led by the parties, the court administrator found that

respondent was remiss in the performance of his

duties. 1e granted the !8* e<ective, not for seventy'

two hours as prescribed by law in cases of eCtreme

urgency, but for the maCimum of ) days and he did

so without conducting beforehand a summary hearing,

as required under Administrative (ircular 7o. )';=.

1e recommends that respondent judge be

ned -=, and sternly warned that a repetition of the

same or similar o<ense will be dealt with more

severely.#%

T< "o&r* !&li';

Be agree with the court

administrator. Administrative (ircular 7o. )';=

requires that an application for a !8* shall be acted

upon, only after all parties are heard in a summary

hearing. &t clearly provides

:65/E(! 8E :-E(&A2 862E: 0*8

!E4-*8A8H 8E:!8A&7&7 *8DE8: A7D

-8E2&4&7A8H &7/67(!&*7:.

$. Bhere an application for temporary restraining order

@!8* or writ of preliminary injunction is included in a

complaint or any initiatory pleading led with the tria

court, such complaint or initiatory pleading shall be

raGed only after notice to the adverse party and in the

presence of such party or counsel.

). !he application for a !8* shall be acted upon only

after all parties are heard in a summary hearing

conducted within twenty'four @)? hours after the

records are transmitted to the branch selected by

raGe. !he records shall be transmitted immediately

after raGe.

+. &f the matter is of eCtreme urgency, such that unless

a !8* is issued, grave injustice and irreparable injury

will arise, the ECecutive /udge shall issue the !8*

e<ective only for seventy'two @9) hours from issuance

but shall immediately summon the parties fo

conference and immediately raGe the case in thei

presence. !hereafter, before the eCpiry of the seventy

two @9) hours, the -residing /udge to whom the case is

assigned shall conduct a summary hearing to

determine whether the !8* can be eCtended fo

another period until a hearing #o%n the pendingapplication for preliminary injunction can be

conducted. &n no case shall the total period C C C

eCceed twenty @) days, including the origina

seventy'two @9) hours, for the !8* issued by the

ECecutive /udge.

C C C C C C C C C.

!he (ircular aims to restrict the e% parte issuance

of a !8* only to cases of eCtreme urgency, in order to

avoid grave injustice and irreparable injury.#9% :uch !8*

shall be issued only by the eCecutive judge and shaltake e<ect only for seventy'two @9) hours from its

issuance. 0urthermore, within the said period, a

summary hearing shall be conducted to determine

whether the *rder can be eCtended for another period

until a hearing on the pending application fo

preliminary injunction can be conducted.

6ntenable is respondent judges contention tha

the (ircular allows an eCecutive judge, in case o

eCtreme urgency, to issue an e% parte !8* e<ective fo











twenty days. /udges should be diligent in keeping

abreast of developments in law and jurisprudence,

consistent with the mandate that the study of law is a

never'ending process.#>%

&n Golang!o v. Villanueva,#;% the (ourt held that the

judges disregard of the :upreme (ourts

pronouncement on !8*s was not just ignorance of the

prevailing rule, but also misconduct and grave abuse of

authority. !o be punishable, however, ignorance of thelaw must be motivated by bad faith, fraud, dishonesty

or corruption.#$% Be nd bad faith and dishonesty on

the part of respondent judge. 1e avers in his (omment

that there was eCtreme urgency in the e% parte !8*

because the prawns, which were subject to spoilage

were perishable and the buyer was already waiting for

the harvest. 5ut 7apoleon 2ees (omplaint did not

contain such allegations. 7owhere was there any

mention of the immediate need of harvesting prawns

or any produce from the disputed property. *bviously,

respondent is now clutching at straws. 1e had no

justiable reason at all in immediately issuing the )'

day !8*.

5esides, the !8* was clearly rushed. /ust a day

after the plainti<s (omplaint was led on the afternoon

of /une 9, $;; the !8* was issued and served on

herein complainant, without any e<ort to notify the

defendants or to schedule a summary hearing.

/HE!E$!E, /udge *scar E. Nerna is hereby

found &*/E for gross ignorance of the law,

misconduct and grave abuse of discretion

and -&0ED-=, with a 1*)0&0G that a repetition of

the same or a similar o<ense will be dealt with moreseverely.

#$ $!DE!ED.

-rovisional 8emedies 8ule => :ection = $9









[$"A I.P.I. No. 01-32-"A-J.7r&)r 13, 2002]

IN THE MATTE! $ ADMINI#T!ATIE "$MPLAINTAGAIN#T H$N. A6E#AMI#, et al(

:E(*7D D&L&:&*7

G'*l'

2uoted hereunder, or your inormation, is a resolutiono this Court dated E6 13 2002.

*(A &.-.&. 7o. $'+)'(A'/@&n the matter o *dministrative Complaint against 3on. /ernardo P. *"esamis, 3on. Eugenio S. a"itoria and 3on. Elvi 4ohnS. *sun!ion, *sso!iate 4usti!es and mem"ers o the-ormer Spe!ial 5#elth Division o the 3onora"le Court o *ppeals.

-etitioners, employees of Hear /an &ndustries, -hil., &nc.and members of the Hear /an &ndustries of Alliance of 7ationalist and enuine 2abor *rgani3ation'Pilusang

4ayo 6no @A72*'P46, charge respondent (ourt of Appeals /ustices Abesamis, 2abitoria and Asuncion,with grave misconduct and abuse of authority.

!he case arose from a labor dispute betweenpetitioners and their employer, Hear /an &ndustries,-hil., &nc. @(ompany, for brevity, for illegal dismissal. !he 2abor Arbiter ruled in favor of petitioners,declaring their dismissal illegal and ordering them tobe reinstated to their former position without loss of seniority rights and other privileges, and withbackwages, $+th month pay and sick and vacationleave. *n appeal, the 7ational 2abor 8elations(ommission @728( a"rmed the aforesaid decision but

deleted the money claims. 1owever, upon motion forreconsideration, the 728( reinstated the 2aborArbiterQs decision.

!he (ompany assailed the 728( decision before the(ourt of Appeals, which was docketed as (A'.8. 7o.=?=;> and raGed to the :pecial !welfth Division,composed of respondent justices.

*n August +, $;;;, an alias writ of eCecution wasissued against the (ompany to collect -=,?+9,;;).constituting the computed backwages, $+th month payand sick and vacation leave pay of the petitioners. Anotice of garnishment was issued against the

(ompanyQs account in the 8i3al (ommercial 5anking(orporation @8(5(.

*n :eptember )$, $;;;, the (ompany led a JLery6rgent 4otion for &ssuance of a !emporary 8estraining*rder and a Brit of -reliminary &njunctionJ to enjoin theimplementation of the writ of eCecution and the orderof garnishment, and if the same has already beenimplemented, to restrain 8(5( from transferring thegarnished amount to the 728( :heri<, or if thegarnished amount has already been transferred, to

enjoin the 728( from releasing the same to thepetitioners.

*n :eptember )+, $;;;, respondents issued atemporary restraining order. *n 0ebruary );, ), the(ompanyQs application for preliminary injunction wasgranted upon the ling of a bond in the amount of-=,?+9,;;).). !he (ompany, however, failed to postthe bond required.

*n 4arch ), ), the (ompany led an *mnibus4otion seeking to modify the 0ebruary );, )8esolution which was denied on August $, ).

*n *ctober , ), the (ompany led another 6rgent4otion for &ssuance of !8* andFor -reliminary&njunction, this time, to enjoin the 2abor Arbiter fromimplementing the alias writ of eCecution dated:eptember $;, ), for the collection o->,?$,$+.+ representing additionabackwagesFsalaries of the petitioners. !his was grantedby respondents per 8esolution dated *ctober $$, )

Aggrieved by issuance of the said 8esolutionpetitioners moved to inhibit the respondents but wasdenied on /anuary +, ).

-etitioners contend that the questioned 8esolution ofthe (ourt of Appeals deprived them of their right to bereinstated and to be paid their lost income. !hey alsoassert that the issuance of the !8* without requiringthe posting of the required surety bond and withoutdening the period of its e<ectivity or durationtransgresses :ections = and 9 of 8ule => of the 8ules of(ourt and the (anon of /udicial Ethics.

8espondents, upon the other hand maintain, vi67 @$that the !8*s never enjoined nor restrained thereinstatement of the complainants @) that under :ec?, 8ule => of the 8ules of (ourt, the bond is postedonly when required by court @+ that the phrase 8untiurther orders o this Court8 did not make the period ofthe !8*s indenite and @? that the charges averred inthe complaint have already been passed upon andconsidered by this (ourt in .8. 7o. $?9+>>.

!he complaint should be dismissed.

!he respondents, in issuing the assailed 8esolutionacted within the connes and limits of the law and their

authority.

&. -etitioners, in their motion for writ of eCecutionmoved only for the eCecution of the money judgment&n the restraining orders issued by respondents, whatwas restrained and enjoined is the payment of themonetary claims adjudged by the 2abor Arbiter and the728( and not the reinstatement of the petitioners totheir former positions. !hus, with or without therestraining orders, the judgment of the 728(reinstating the petitioners is immediately eCecutorypursuant to Article ))+ of the 2abor (ode.[1]cralaw

-rovisional 8emedies 8ule => :ection = $>

http://www.chanrobles.com/scresolutions/resolutions/2002/february/01_32.php#_ftn1




&&. !he failure of the respondents to require the(ompany to post a bond did not violate the 8ules of (ourt. -aragraph @b of :ection ?, 8ule => of the $;;98ules of (ivil -rocedure, gives the court discretion torequire such bond.[2]cralaw !he court may, in propercases, eCempt the applicant from ling the bondnormally required.[3]cralaw &n issuing the *ctober $$,) 8esolution, respondents were merely eCercising adiscretion granted them by law. (ertainly, we nd noabuse of discretion, much less a grave or patent abuseof judgment when they issued the assailed *rder. &tmust be stressed however, that respondents in their8esolution dated 0ebruary );, ), required the(ompany to post a bond for the issuance of thepreliminary injunction. 6nfortunately, the (ompanyfailed to comply, hence, the writ was never issued.

&&&. !he !8* dated *ctober $$, ) was not issued foran indenite time. 6nder :ection =, -aragraph ?, of the$;;9 8ules of (ivil -rocedure, a temporary restrainingorder issued by the (ourt of Appeals shall be e<ectivefor siCty @ days from service on the party or personsought to be enjoined. &t automatically terminates uponthe eCpiration of the day period without need of any judicial declaration to that e<ect.

&n the assailed 8esolution, the (ourt of Appealsordered, among others, that Jthe public respondent728( is also restrained and enjoined from surrenderingor releasing the garnished amount to the privaterespondents, until further orders of this ourt .8 Asit is clear under the 8ules that the e<ectivity of a !8*issued by the (ourt of Appeals is only for a period of days, it must be stressed that the phrase 8until urther orders o this Court8 embodied in said resolution shouldbe understood in such manner that the (ourt of Appeals may, in the eCercise of its discretion, shortenthe lifespan of the !8* when circumstances sowarrant. Applying the foregoing, we nd petitionersQ

allegation that the questioned resolution transgressesthe pertinent rules erroneous.

2astly, the charges alleged in the complaint havealready been passed upon and considered by this (ourtin .8. 7o. $?9+>>. &t must be recalled that after theissuance of the *ctober $$, ) 8esolution,petitioners led a motion for inhibition groundedmainly on the issuance of the aforesaid resolution andcontending that the judicial action of respondents inissuing the assailed 8esolution impelled them Jtobelieve that they could no longer obtain labor justice.J !he motion was denied by respondents on /anuary +,)$, hence, petitioners elevated the matter to this

(ourt. *n /une )9, )$, we issued a 8esolutiondenying the petition Jfor failure of the petitioners tosu"ciently show that the (ourt of Appeals committedany reversible error in the challenged resolutions as towarrant the eCercise by this (ourt of its discretionaryappellate jurisdiction in this case.J[4]cralaw !hedismissal of the petition, in e<ect, upholds thecorrectness of respondentsQ acts in issuing therestraining orders. !he present administrativecomplaint is nothing but an attempt on the part of thepetitioners to re'ventilate or re'litigate issues alreadypassed upon and denitively resolved by this (ourt.[5]

/HE!E$!E, the complaint is hereby D&:4&::ED folack of merit.

#$ $!DE!ED.

-rovisional 8emedies 8ule => :ection = $;











G.!. No. 1845 J&' 28, 200

MIGUEL M. LLAM%$N, petitioner,

vs.

ALMA L$!EN"E L$G!$NI$, NE#T$! HUN NADAL

)': NI"AN$! $LIA! (o'*i*&*i'; *<

PHILIPPINE E"$N$MI" %$NE AUTH$!IT

"ENT!AL 6$A!D $ INCUI!, INE#TIGATI$N

AND DI#"IPLINE PE%A-"6IID, PE%A #p(i)l

Pro(&*or N$!MA "AJULI# )': PE%A Dir(*orG'r)l LILIA DE LIMA, respondents.

D E ( & : & * 7

TINGA, J(*

!he instant petition for review stems from the

Decision$ and 8esolution) of the (ourt of Appeals in (A'

.8. :- 7o. 9?>9?

promulgated on $ /une )?, and 9 April )=,

respectively which annulled and set aside the statusquo order of the 8egional !rial (ourt @8!(, 5ranch ?,

5alanga, 5ataan,+ dated ) December )),? and

a"rmed the order dated $$ December ))= denying

respondentsI motion to dismiss.

!he antecedents follow.

-etitioner 4iguel 4. 2lam3on is an Enterprise :ervice

*"cer &&& at the &ndustrial 8elations 6nit, 5ataan

Economic None. 1e was formally charged with

dishonesty, grave misconduct and conduct prejudicial

to the best interest of service for having billed Edison

@5ataan (ogeneration (orporation overtime fees for

unloading of fuel for the dates )> 0ebruary ) and

) 4arch ), despite knowledge that the -hilippine

Economic None Authority @-ENA had discontinued

billing registered locatorFenterprises for overtime fees

since $9 December $;;;. -etitioner led his answer

denying the charges against him and requested a

formal investigation and the transfer of the venue of

the case to the (ivil :ervice (ommission 8egional

*"ce in :an 0ernando, -ampanga. !his request was

however denied, and the investigation was conducted

by the -ENA (entral 5oard of &nquiry, &nvestigation and

Discipline @-ENA'(5&&D.

Bhile investigation was on'going, petitioner requested

the -ENA'(5&&D to allow the -7- (rime 2aboratory to

eCamine the written contents of the billings for

overtime fees. !he request was denied by -ENA'(5&&D

considering that the 7ational 5ureau of &nvestigation

had already issued a nding that the signatures

appearing in the billings are those of the petitioner.

0eeling aggrieved, petitioner led a complaint on $9

:eptember )) for damages against respondents

with a prayer for the issuance of a temporary

restraining order @!8* and writ of preliminary

injunction, for allegedly depriving him of his right to

present witnesses for himself and to have compulsory

process to secure the attendance of witnesses in the

administrative investigation. *n the same date, /udge

5enjamin Lian3on, presiding judge of 8!(, 5ranch ?

5alanga, 5ataan, issued a !8* for twenty @) daysJfor the maintenance and preservation of the status

quo,J and scheduled the hearing for preliminary

injunction.9

8espondents moved to lift the !8* on the ground of

non'holding of a summary hearing and failure o

petitioner to show eCtreme urgency for the issuance of

said !8*. 8espondentsI motion was denied by /udge

Lian3on.>

8espondents led before the *"ce of the (ourt

Administrator a complaint for incompetence, gross

ignorance of the law, grave abuse of authority

misconduct, and conduct prejudicial to the prope

administration of justice against /udge Lian3on. !hey

also led a motion for his inhibition in (ivil (ase 7o

=='42 which /udge Lian3on granted in his *rder dated

)$ *ctober )).;

8espondents moved for the dismissal of (ivil (ase 7o

=='42 but petitioner opposed the motion. &n the

interim, petitioner led a motion to maintain the status

quo, which /udge Lian3on granted through an *rde

dated ) December )) @status

quo order.$

-etitioner, on the other hand, led amotion for reconsideration of the order of inhibition

dated )$ *ctober )),$$ and a motion to cite

petitioner in contempt for resuming the administrative

investigation upon the eCpiration of the !8*.

(onfused with the orders of /udge Lian3on

respondents led a manifestation seeking clarication

whether the judge had recalled his earlier order o

inhibition. &n his *rder dated $= 7ovembe

)),$) /udge Lian3on claried that he had indeed

recalled his order of inhibition and would proceed to try

the case, considering that 5ranch

? is a single'sala court and the matter of inhibition

would have to be referred to the :upreme (ourt, and it

would take months before a new judge is designated.

4eanwhile, respondentsI motion to dismiss (ivil (ase

7o. =='42 was denied by /udge Lian3on in his *rder

dated $$ December )).$+


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8espondents brought the matter to the (ourt of

Appeals, imputing grave abuse of discretion on the part

of /udge Lian3on in @i his conduct of the proceedings

before him @ii vacating his earlier order of inhibition

@iii issuing the status quo order dated )> 7ovember

)) and @iv issuing the $$ December )) *rder

denying their motion to dismiss.

!he (ourt of Appeals found the petition partly

meritorious. &t ruled that /udge Lian3on failed toobserve :ection =, 8ule => of the 8ules of (ivil

-rocedure concerning applications for preliminary

injunction and !8*. According to the appellate court,

/udge Lian3on granted a !8* for ) days instead of

only 9) hours, and he did not conduct a summary

hearing within 9) hours to determine whether the !8*

should be eCtended.$? !he status quo order was issued

also in violation of the aforementioned 8ule,

specically the portion which provides that the !8*

shall not eCceed ) days and is deemed vacated if the

application for preliminary injunction is not resolved

within the )'day period and that no court has the

authority to eCtend or renew the !8* on the sameground for which it was issued.$=

&n addition, the (ourt of Appeals considered moot the

issue of grave abuse of discretion on the part of /udge

Lian3on in recalling his order of inhibition. &t found that

the judge had already inhibited himself from hearing

(ivil (ase 7o. =='42 via an *rder dated )? 0ebruary

)+.$

!he appellate court also found that respondents were

unable to show that the issuance of the $$ December

)) *rder denying their motion to dismiss wastainted with grave abuse of discretion. !hey likewise

failed to le a motion for reconsideration of the said

order of denial, and were unable to show that the ling

thereof was unnecessary.

&n the end, the (ourt of Appeals annulled and set aside

the ) December )) status quo order, but dismissed

the petition with respect to the order dated $$

December )) denying the motion to dismiss.$9

-etitioner sought partial reconsideration of the

decision, arguing for the propriety of the )'day !8*

and the status quo order of /udge Lian3on, and

pointing out alleged defects in respondentsI petition.

!he (ourt of Appeals denied the motion for lack of

merit.$>

-etitioner now proposes that the (ourt of Appeals erred

when it @i ruled that the !8* and status quo order

were wrongfully issued and @ii did not dismiss

respondentsI petition despite several defects which

should have merited the outright dismissal thereof.

According to petitioner, the !8* and status quo orde

were made in compliance with :ec. =, 8ule => of the

$;;9 8ules of (ivil -rocedure. &n particular, he claims

that a )'day !8* can be issued without prior notice or

hearing if it is shown that great or irreparable injury

would result to the applicant. *n the other hand, he

justies the status quoorder by saying that it was

issued on a ground di<erent from that for which the

earlier !8* was made.$; 1e adverts to severa

inrmities in respondentsI petition which the (ourt ofAppeals disregarded when it gave due course to the

petition.

As for the alleged defects in respondentsI petition

before the (ourt of Appeals, petitioner claims that

respondents @i failed to attach the certied true copies

of the assailed *rders @ii omitted the

discussion on the denial of the motion to dismiss @iii

failed to state the date of receipt of the third assailed

*rder @iv questioned the issuance of the )'day !8*

embodied in the $9 :eptember )) *rder when it was

not even among those included in the *rders assailed

in their petition @v failed to le a motion fo

reconsideration of all the assailed orders @vi led a

defective certicate against forum shopping @vii failed

to include an a"davit of service and @viii are

politically motivated when they led the charges

against petitioner.)

0or their part, respondents, through the *"ce of the

:olicitor eneral, argue that an e%parte !8* is issued

only ine%tremis, and has a lifetime of only 9) hours. &n

the instant case, the trial court issued the !8* e%

parte for a full term of ) days, and despite there beingno clear showing that the applicant had a clear lega

right that should be protected by the writ being sought

0urthermore, respondents see the status quo orde

issued by /udge Lian3on as very much akin to a writ of

injunction, forbidding respondents from prosecuting

the case against petitioner.)$

Anent /udge Lian3onIs order of inhibition, respondents

state that while the matter of inhibition is within the

sound discretion of the

judge concerned, that same discretion could not be

invoked by the same judge in determining whether or

not to recall or vacate his earlier order inhibiting

himself. !here must be good and valid legal grounds

for such recall, otherwise, it becomes grave abuse of

discretion and an indication of bias and partiality for a

judge to recall his earlier order of recusation.))

!he petition must be denied.

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At the onset, it must be emphasi3ed that the propriety

of the )'day !8* is a non'issue. &t was never raised as

an issue in the petition before the (ourt of Appeals, nor

squarely ruled upon by the appellate court. &nstead, it

was discussed in conjunction with the propriety of

/udge Lian3onIs issuance of the status quo order dated

) December )). 5ut in any case, the (ourt will delve

into the mechanics of issuing !8*s, if only to provide

the proper perspective to the discussion of the related

issue.

:ec. =, 8ule => of the 8ules of (ourt)+ proscribes the

grant of preliminary injunction without hearing and

prior notice to the party or person sought to be

enjoined. 1owever, the rule authori3es the court to

which an application for preliminary injunction is made

to issue a !8* if it should appear from the facts shown

by a"davits or by the veried petition that Jgreat or

irreparable injury would result to the applicant before

the matter can be heard on notice,J)? but only for a

limited 9)'hour period.

!he second paragraph of :ec. =, 8ule => was actually

lifted from paragraph + of Administrative (ircular 7o.

)';=,)= which aims to restrict the e% parte issuan!e of

a !8* only to cases of eCtreme urgency in order to

avoid grave injustice and irreparable injury. :uch !8*

shall be issued only by the eCecutive judge or single'

sala station judge and shall take e<ect only for 9)

hours from its issuance.

0urthermore, within the said period, a summary

hearing shall be conducted to determine whether the

*rder can be eCtended for another period until a

hearing on the pending application for preliminaryinjunction can be conducted.)

!he rule thus holds that before a !8* may be issued,

all parties must be heard in a summary hearing rst,

after the records are transmitted to the branch

selected by raGe. !he only instance when a !8* may

be issued e% parte is when the matter is of such

eCtreme urgency that grave injustice and irreparable

injury will arise unless it is issued immediately. 6nder

such circumstance, the ECecutive /udge shall issue the

!8* e<ective for 9) hours only. !he ECecutive /udge

shall then summon the parties to a conference during

which the case should be raGed in their presence.

5efore the lapse of the 9) hours, the -residing /udge to

whom the case was raGed shall then conduct a

summary hearing to determine whether the !8* can

be eCtended for another period until the application for

preliminary injunction can be heard, which period shall

in no case eCceed ) days including the original 9)

hours.)9

&t thus becomes apparent that /udge Lian3on erred in

issuing a !8* e<ective, not for 9) hours as prescribed

by law in cases of eCtreme urgency, but for the

maCimum of ) days and he did so

without conducting beforehand a summary hearing

and without showing that it falls under the eCceptiona

circumstances enumerated by the Administrative

(ircular 7o. )';= where a !8* may be issued by the

ECecutive /udge before assignment by raGe to a judgewithout rst conducting a summary hearing.

7ow on to the real issues of this case.

!he status quo order dated ) December )) reads

(onsidering the J#4%otion to 4aintain :tatus OuoJ led

by plainti<, through counsel Atty. 0rancisco 0laminiano

/r., and nding the same to be in order, and considering

further that the hearing on the propriety on the

issuance of the writ of preliminary injunction is stil

pending hearing and no subsequent order has beenissued after the issuance of the courtIs order dated

:eptember $9, )), let the eCisting status quo be

maintained restraining and enjoining defendants from

continuing with the hearing of Administrative (ase 7o

))'$ until further orders from this court.

:* *8DE8ED. @Emphasis supplied

!he above *rder was improperly issued by /udge

Lian3on. &t was, for all intents and purposes, a mere

continuation of the )'day !8* erroneously issued

&ndeed, this (ourt has ruled that a status quo

ante order has Jthe nature of a temporary restraining

order.J)> A !8*

shall be e<ective only for a period of ) days from

notice to the party or person sought to be enjoined

During the )'day period, the judge must conduct a

hearing to consider the propriety of issuing a

preliminary injunction. &f no action is taken by the

judge on the application for preliminary injunction

within the said ) days, the !8* would automatically

eCpire on the )th day by the sheer force of law, no

judicial declaration to that e<ect being necessary. &n

the instant case, no such preliminary injunction wasissued in fact, as stated in the *rder, Jthe hearing on

the propriety on the issuance of the writ of preliminary

injunction is still pending,J hence, the !8* earlie

issued, assuming arguendo that it was indeed validly

issued, automatically eCpired under the aforesaid

provision of the 8ules of (ourt.

!he ) December )) *rder which directed that the

JeCisting status quo be maintained restraining and

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enjoining defendants from continuing with the hearingJ

was, for all intents and purposes an indenite

eCtension of the rst !8*, or Ja renewed or second

temporary restraining order proscribed by the rule and

eCtant jurisprudence.J);

!he status quo order is in fact, worse than a second

!8* since unlike an ordinary !8* which has a lifetime

of only ) days, /udge Lian3on directed the

maintenance of the status quo for an indenite period,or Juntil further order from this court.J &t was not a writ

of preliminary injunction, because as previously

mentioned, the hearing on the application for the writ

is still pending. 5esides, in the event of an injunctive

writ, an injunction bond is required, unless eCempted

by the (ourt.+

Another important factor which militates against the

correctness of the issuance of the status quo order is

the fact that /udge Lian3on no longer had authority to

do so because he had already inhibited himself from

hearing the case as early as )$ *ctober )), or more

than a month before he issued the ) December

)) status quo order. &t appears that /udge Lian3on

did not even forward his order of inhibition to this

(ourt, nor waited for the (ourtQs resolution, but instead

immediately recalled his order of inhibition and

proceeded to try the case.

7ow, to the alleged inrmities of respondentsI petition

before the (ourt of Appeals which petitioner claims

should have merited its outright dismissal. 4ost of the

alleged defects are connected with /udge Lian3onIs $=

7ovember )) *rder which recalled his earlier order

of inhibition. -etitioner submits that respondents didnot attach a certied true copy of the said *rder,

neither did it indicate the date of receipt of the same,

nor led a motion for its reconsideration. !he other

remaining issues are @i the alleged failure to le a

motion for reconsideration of, and failure to discuss,

the $$ December )) *rder of denial of respondentsI

motion to dismiss @ii the failure to state in the

certicate on non'forum shopping that they led

administrative complaints against /udge Lian3on and

@iii the failure to attach the a"davit of service to the

petition.

As eCplained by the (ourt of Appeals, the order of

recall of /udge Lian3onIs inhibition is already moot and

academic, since he had already issued an *rder dated

)? 0ebruary )++$ inhibiting himself once again from

the proceedings. 5esides, a new judge has already

been assigned to hear the case.+) !hus, the fact that

only a photocopy of the $= 7ovember )) *rder was

attached to the petition cannot justify the dismissal of

the entire petition, especially since respondents

attached the certied true copies of the other assailed

*rders @) December )) status quo order and $$

December )) denial of the motion to dismiss to the

petition. 0or the same reason, respondentsI failure to

state the date of receipt of the $= 7ovember ))

*rder will not justify the dismissal of the petition.

Even the purported absence of a discussion on the

order denying respondentsI motion to dismiss cannot

be a ground of the petitionIs outright dismissal, since

the other issues raised therein were su"cientlydiscussed. As pointed out by the (ourt of Appeals, it is

because of this failure to show that the denial o

motion was tainted with grave abuse of discretion, and

that respondents failed to le a motion fo

reconsideration of the denial, that the petition was

dismissed for lack of merit insofar as it assailed the

validity of the $$ December )) *rder.

Bhile the general rule is that before certiorari may be

availed of, petitioner must have led a motion fo

reconsideration of the act or order complained of, the

(ourt has dispensed with this requirement in severa

instances. !hus, a previous motion for reconsideration

before the ling of a petition for certiorari is necessary

unless @i the issue raised is one purely of law @ii

public interest is involved @iii there is urgency @iv a

question of jurisdiction is squarely raised before and

decided by the lower court and @v the order is a

patent nullity.++ &n the instant case, respondents stated

that they did not le a motion for reconsideration of

the status quo order because it would be a useless

eCercise considering /udge Lian3onIs predilection fo

issuing orders without stating or specifying his basis

therefor. &n any case, the (ourt of Appeals found

the status quo order to be a nullity, since it was madein violation of the 8ules of (ourt.

-etitioner maintains that respondents submitted a

defective certicate against forum shopping when they

failed to declare the administrative complaints they

led against /udge Lian3on. !he (ourt nds that the

omission of the administrative cases against /udge

Lian3on is not fatal to respondentsI petition

6ltimately, what is truly important to consider in

determining whether forum shopping eCists or not is

the veCation caused the courts and party'litigant by a

party who asks di<erent courts to rule on the same o

related causes andFor to grant the same osubstantially the same reliefs, in the

process creating the possibility of conRicting decisions

being rendered by the di<erent fora upon the same

issue.+? !he administrative cases against /udge Lian3on

pending before the *"ce of the (ourt Administrator

will not a<ect the outcome of the civil case a quo.

-rovisional 8emedies 8ule => :ection = )+

















0inally, on the alleged failure to attach an a"davit of

service, the (ourt defers to the nding of the (ourt of

Appeals that an a"davit of service was Jattached to

the petition stating that copies thereof were sent to

respondents by registered mail on /anuary $?, )+, as

evidenced by registry receipts nos. ?;? and ?;=.J+=

B1E8E0*8E, the instant petition is DE7&ED for lack of

merit and the challenged Decision of the (ourt of

Appeals of $ /une )? and 8esolution of 9 April )=in (A'.8. :- 7o. 9?>9? are hereby A00&84ED.

(osts against petitioners.

:* *8DE8ED.

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G.!. No. 18854 #p*7r 12, 200

UM6!A M. T$MA/I#, petitioner,

vs.

ATT. N$!A M. TA6A$-"AUDANG, respondent.

D E " I # I $ N

NA"HU!A, J(

!his is a -etition for 8eview on Certiorari of the

Decision$ of the (ourt of Appeals @(A, dated

:eptember >, )?, in (A'.8. :- 7o. >??)?, and its

8esolution) dated December ), )?. !he assailed

Decision annulled and set aside the Decision+ of the

8egional !rial (ourt @8!( of 2anao del :ur, 5ranch >,

4arawi (ity, dated :eptember $=, )+ in :pecial (ivil

Action 7o. >)'), as well as its *rder? and Brit of

ECecution= dated April )+, )?.

)(*&)l )': Pro(:&r)l A'*(:'*

*n :eptember $, $;>9, then *"ce of 4uslim A<airs

@*4A ECecutive Director /iamil &.4. Dianalan

@Dianalan appointed Atty. 7ora 4. !abao'(audang

@(audang as 8egional Director of 8egion M&&'5,

pursuant to :ection > of ECecutive *rder @E.*. 7o.

$))'A, as amended by E.*. 7o. );=. At that time, the

*4A sta< and 8egional Directors were not yet

classied as (areer ECecutive :ervice @(E: positions.

1ence, the (ivil :ervice (ommission @(:( approved

(audangQs appointment as permanent.

*n 0ebruary $>, $;;$, the directorship positions in the

*4A, including those of 8egional Directors, were

classied as (E: positions thereby requiring (E:

eligibility for permanent appointments. :aid

reclassication was embodied in (:( 8esolution 7o.

;?');)= and (:( 4emorandum (ircular 7o. )$, both

dated 4ay $+, $;;?.

*n 0ebruary ?, $;;+, (audang received a notice9 that

she had been replaced by 4r. 6mbra !omawis

@!omawis, the latter having been appointed by then

-resident 0idel L. 8amos. Aggrieved, (audang

requested a ruling from the (:( on her status @of

appointment as 8egional Director. 5efore the (:(could resolve the matter, on April );, $;;+, (audang

led a petition for quo #arranto against !omawis

before this (ourt, but the same was dismissed for lack

of certication of non'forum shopping and veried

statement of material dates, as required by 8evised

(ircular 7o. $'>> and (ircular 7o. )>';$.>

*n /anuary ?, $;;?, the (:( promulgated 8esolution

7o. ;?'$?; declaring (audangQs appointment as

permanent. :he was declared as the lawful incumbent

giving her the right to recover the position through a

petition for quo #arranto before the appropriate court.

*n the basis of the above resolution, on 0ebruary ?

$;;?, (audang led a petition for quo

#arranto docketed as (A'.8. :- 7o. ++)?. *n /une

+, $;;?, the (A granted (audangQs petition

reinstating her to the position and ordering !omawis to

vacate and relinquish the same.$

1owever, on motionfor reconsideration led by the :olicitor eneral, the

(A reversed itself in an Amended Decision$$ dated

*ctober $9, $;;?, ruling that the petition should not

have been entertained in the rst place for being

violative of the procedural rules on non'forum

shopping, given the identical petition (audang earlier

led with this (ourt. *n appeal before this (ourt via a

petition for review on!ertiorari, we denied the petition

for failure to show that a reversible error had been

committed by the appellate court. !he said denial had

become nal and eCecutory and the same was

subsequently entered in the 5ook of Entries o

/udgments.$)

2eft with no other recourse, (audang went to the (:(

and moved for the issuance of a writ of eCecution of

(:( 8esolution 7o. ;?'$?. &n 8esolution 7o

;)+$$+ dated :eptember )+, $;;, the (:( denied

(audangQs motion. !he (:( noted that (audangQs

petition for quo #arranto was dismissed by the (A

thus, the motion for eCecution must necessarily fail

!he (:( likewise held that the services of (audang

were terminated by the (hief ECecutive prior to the

ling of the petition for quo #arranto, thus, preventing

the (ommission from an inquiry into the saidseparation from service e<ected by the -resident as

the issue is reviewable only by the 1igh (ourt. $? !he

(:( later denied (audangQs motion for reconsideration

*n /uly +, $;;>, then *4A ECecutive Director Acmad

!omawis removed !omawis from the contested position

and appointed Engr. Dardagan 4aruhom in his stead

!omawis did not challenge his removal and, instead

claimed terminal pay equivalent to his earned leave

credits. 1e was re'appointed to the same position on

/uly +$, ) by then *4A ECecutive Director &smae

7aga, /r. but his appointment was characteri3ed

as temporary , because he did not possess theappropriate (E: eligibility.

*n December $>, )$, then *4A ECecutive Director

1abib 4ujahab A. 1ashim @1ashim issued a

4emorandum$= to !omawis clarifying that his

appointment was merely temporary and that a new

appointment may be issued either in his favor or to

another qualied individual. 1e was directed to start

clearing himself of money, property and all other o"ce

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accountabilities. *n 4arch >, )), 1ashim issued

*"ce *rder 7o. 9;, series of ))$ reinstating

(audang to the contested position. (onsequently,

!omawis was directed to vacate and formally relinquish

the position and turn over the o"ce, along with its

funds and properties, to (audang.

(audang then requested the (:( to issue an order

a"rming the continuity of her service from the time

she was separated from service on 0ebruary >, $;;+until her reinstatement in )). *n /uly );, )), the

(:( denied (audangQs request in 8esolution 7o.

)$.$9 !he (:( held that (audangQs request had no

legal basis because (:( 8esolution 7o. ;?'$? @which

was ostensibly the basis of 1ashimQs *"ce *rder was,

in e<ect, reversed by the (ourt of Appeals in its

*ctober $9, $;;? Amended Decision.$>

Aggrieved by 1ashimQs order requiring him to vacate

his position, !omawis instituted an action for injunction

and prohibition$; against (audang and 1ashim before

the 8!(. !he case was docketed as :pecial (ivil Action

7o. >)').

!omawis likewise led a veried complaint against

1ashim for alleged violation of the JAnti'raft 2awJ for

issuing *"ce *rder 7o. 9;. !he -residential Anti'

raft (ommission conducted a fact'nding inquiry and,

acting on its recommendation, the *"ce of the

-resident @*- dismissed the complaint on the ground

that the reinstatement of (audang was just and lawful

pursuant to (:( 8esolution 7o. ;?'$?.)

4eanwhile, on :eptember $=, )+, the 8!( rendered

a Decision in favor of !omawis, the dispositive portionof which reads

B1E8E0*8E, foregoing premises considered,

the instant petition for &njunction and

-rohibition is hereby granted for being highly

meritorious. 8espondent *4A ECecutive

Director 1on. 1A5&5 46/A1A5 A. 1A:1&4 or

any person acting in his behalf is hereby

directed to cease, desist and refrain from

enforcing o"ce *rder 7o. 9;, :eries of ))

dated 4arch >, )). 8espondent Atty. 7ora !.

(audang is likewise ordered to cease, desist

and refrain from further assuming the powers

and functions of *4A 8egional Director, 8egion

M&&'5, 4arawi (ity.

:* *8DE8ED.)$

A copy of the decision was served on (audang on

:eptember )?, )+. !he following day, (audang led

a motion for reconsideration)) which was denied)+ on

December $=, )+. 1owever, it appears from the

records that (audang never received a copy of the

December $= *rder.)?

*n December $>, )+, (audang led a

4anifestation)= praying for the immediate dismissal of

the case, attaching thereto a copy of the Decision of

the *"ce of the -resident in *- (ase 7o. )'/'=)+ and a

(ertication issued by the *4A Director fo

Administrative :ervices that (audang is the incumben

8egional Director of 8egion M&&.)

1owever, this4anifestation @which was really a motion for the

dismissal of the pending case was not set for hearing.

!hereafter, the 8!( issued an *rder)9 dated /anuary 9

)? setting aside its :eptember $= and December $=

decision and resolution, respectively, on the ground

that the legal authority of (audang as 8egiona

Director was administratively upheld by the *4A and

the *-.

*n /anuary $, )?, !omawis led an 6rgent E%

Parte 4otion for ECecution of the :eptember $=

decision and December $= order of the 8!( averring

that they had become nal and eCecutory for failure of

(audang to appeal the same within the reglementary

period. (audang, however, opposed the motion

claiming that she had not been served a copy of the

order denying her motion for reconsideration.

*n April )+, )?, the court granted)> the motion and

the corresponding writ of eCecution); was accordingly

issued. *n 4ay 9, )?, (audang moved+ to quash the

writ which the court denied in an *rder +$ dated 4ay $;

)?.

-ursuant to the above writ of eCecution, then6ndersecretaryF*4A ECecutive Director Datu

Nam3amin 2. Ampatuan issued *"ce *rder 7o. ?'

)9+) dated /une +, )? re'installing !omawis to the

contested position until the issuance of a new

appointment either in his favor or to other qualied

applicant.

*n /une ;, )?, (audang elevated the matter to the

(A via a special civil action for !ertiorari and

prohibition assailing the validity of the writ of eCecution

issued by the 8!( on the ground that the decision

sought to be eCecuted did not attain nality. (audang

claimed that it was the /anuary 9++ *rder of the 8!(

that had, instead, become nal and eCecutory.

*n :eptember >, )?, the (A rendered the assailed

Decision in favor of (audang, the pertinent portion of

which reads

/HE!E$!E, premises considered, the

petition is G!ANTED. !he Decision of the

8egional !rial (ourt, 5ranch >, 4arawi (ity in











































:pl. (vl. Action 7o. >)') dated $= :eptember

)+, the *rder dated )+ April )? and the

Brit of ECecution dated )+ April )? are

hereby ANNULLED and #ET A#IDE. *"ce

*rder 7o. ?')9, :eries of )?, issued by

*4A ECecutive Director Nam3amin Ampatuan

directing the re'installation of respondent

6mbra !omawis as *4A 8egional Director,

8egion M&&'5, 4arawi (ity is hereby

declared NULL )': $ID. Director Ampatuanis further directed to recogni3e petitioner A!!H.

7*8A !A5A*'(A6DA7 as the legitimate

holderFoccupant of the o"ce. 2and 5ank of the

-hilippines, 4arawi 5ranch, through its bank

o"cials, is directed to desist from honoring

checks and withdrawals signedFissued by

respondent !omawis. 8espondent 6mbra

!omawis is hereby ordered to cease and desist

from performing the functions of *4A 8egional

Director, 8egion M&&'5, 4arawi (ity and to

surrender said o"ce to petitioner (audang. 7o

pronouncement as to costs.

#$ $!DE!ED.+?

!he appellate court held that in both procedural and

substantive aspects of the case, the 8!( committed

grave abuse of discretion rst , the :eptember $=

Decision of the 8!( never attained nality because

(audang had not received a copy of the resolution

denying her motion for reconsideration the rule on

constructive receipt of mails is not applicable because

the envelope containing said resolution was marked

Jreturn to senderJ se!ond, the /anuary 9 *rder of the

8!( is null and void for failure to comply with theprocedural requirement of a valid hearing and third,

the petition for injunction commenced by !omawis is a

disguised petition for quo #arranto which should never

have been entertained because !omawis had no legal

standing to le the same since he held the contested

position merely in a temporary capacity.

!omawisQ motion for reconsideration was denied in a

8esolution+= dated December ), )?. !omawis, now

the petitioner, led the instant petition, and in his

4emorandum,+ he raises the following issues

@$.

D&D 7*! !1E (*68! *0 A--EA2: (*44&!

8ALE A56:E *0 D&:(8E!&*7 A7D A(!ED

B&!1*6! *8 &7 EM(E:: *0 &!: /68&:D&(!&*7

B1E7 &! A77622ED A7D :E! A:&DE !1E

DE(&:&*7 *0 /6DE AD&*7 DA!ED

:E-!E45E8 $=, )+.

@).

D&D 7*! !1E (*68! *0 A--EA2: E88 &7

862&7 !1A! !1E -E!&!&*7E8 1AD 7* 2EA2

8&#1%! !* 0&2E :-2. (&L&2 A(!&*7 7*. >)').

-rovisional 8emedies 8ule => :ection = )9











@+.

D&D 7*! !1E 8E:-*7DE7! (*44&! 462!&-2E

0*864 :1*--&7.+9

&n his memorandum, !omawis claims that the (A erred

in reviewing the merits of the 8!( decision, as it was

never raised as an issue before the appellate court. 1e

claims that the only issue elevated to the appellate

court was whether or not the decision sought to beeCecuted attained nality in order to warrant the

issuance of a writ of eCecution.+> !omawis also insists

that he has the legal personality to commence the

injunction case being the occupant of the contested

position, albeit in a temporary capacity.+; 1e further

avers that the (A should not have relied on the

decision of the *- in *- (ase 7o. )'/'=)+ because it

was in the nature of a forgotten evidence since the

respondent failed to present the same in her evidence'

in'chief .? 2astly, the petitioner argues that respondent

is guilty of multiple forum shopping in litigating her

claim before the (:(, the (A and this (ourt. ?$

!he petition is without merit.

!he rst and second issues, being interrelated, shall be

discussed together.

&t must be understood that there are two 8!( decisions

involved in the present case, the second @/anuary 9

entirely incompatible with the rst @:eptember $=.

0rom the factual circumstances surrounding this case,

and as correctly held by the (A, the /anuary 9 *rder is

null and void because of an incurable procedural

defect,?) i.e., it was never set for hearing. !hus, theonly decision material to our consideration is the

:eptember $= Decision. Did the aforesaid decision

attain nality to justify the issuance of a writ of

eCecutionS Be answer in the negative.

:ection ;, 8ule $+ of the 8ules of (ourt provides

Servi!e o judgments, nal orders or

resolutions. T /udgments, nal orders or

resolutions shall be served either personally or

by registered mail. C C C.

:ection $ of the same 8ule provides

Completeness o servi!e. T -ersonal service is

complete upon actual delivery. :ervice by

ordinary mail is complete upon the eCpiration

of ten @$ days after mailing, unless the court

otherwise provides. :ervice by registered mail

is complete upon actual receipt by the

addressee, or after ve @= days from the date

he received the rst notice of the postmaster

whichever date is earlier.

!he rule on service by registered mail contemplates

two situations @$ actual service, the completeness of

which is determined upon receipt by the addressee of

the registered mail and @) constructive service, which

is deemed complete upon eCpiration of ve @= days

from the date the addressee received the rst notice

from the postmaster.?+

!hus, there is constructive service by registered mai

only if there is conclusive proof that a rst notice was

duly sent by the postmaster to the addressee and that

such rst notice had been delivered to and received by

the addressee. !he best evidence to prove that notice

was sent would be a certication from the postmaster

to the e<ect that not only was notice issued or sent but

also on how, when and to whom the delivery was

made. !he mailman may also testify that the notice

was actually delivered.??

&n the instant case, there was no su"cient proof that

the respondent actually received a copy of the

December $= resolution. 7either was there proof that a

rst notice was indeed received by her. As such, the

rule on constructive notice cannot apply. Accordingly

since the respondent was not served a copy of the

resolution, the decision could never attain nality

(onsequently, there can be no valid basis for the

issuance of the writ of eCecution.

5efore a writ of eCecution may issue, there must

necessarily be a nal judgment or order that disposes

of the action or proceeding. !he writ of eCecution is themeans by which a party can enforce a nal judgment

or order of the court. Absent a nal judgment or order,

there is nothing to enforce or eCecute thus, there can

be no valid writ of eCecution.?=

Aside from nullifying the questioned writ of eCecution

the (A also delved into the intrinsic validity of the

:eptember $= decision of the 8!(, and !omawis

challenges the procedural propriety of such review by

the appellate court.

&t is true that in her petition before the (A, (audangmerely sought the nullication of the writ of eCecution

for having been issued with grave abuse of discretion

:he did not raise as an issue the propriety of the 8!(Qs

decision granting the writ of injunction. 5ut the

procedural lapse, if any, is of no great moment.

5e it remembered that in the performance of thei

duties, courts should not be shackled by stringent rules

which would result in manifest injustice. 8ules o

procedure are mere tools designed to facilitate the

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attainment of justice. !heir strict and rigid application,

if they result in technicalities that tend to frustrate

rather than promote substantial justice, must be

avoided. :ubstantive rights must not be prejudiced by

a rigid and technical application of the rules. &ndeed,

when a case is impressed with public interest, we

should relaC the application of the rules.

!he controversy between !omawis and (audang

started in $;;+. :everal cases had been broughtbefore both judicial and administrative tribunals, and

no nal resolution had been reached. &n the meantime,

the legitimacy of the public o"cer who should occupy

the position of *4A 8egional Director, 8egion M&&'5,

remains in question. -ublic service is compromised.

!he 8!( judge, who should have been resolute, proved

to be indecisive. 0irst, he ordered 1ashim and (audang

to cease and desist from enforcing *"ce *rder 7o.

9; and from occupying the position of 8egional

Director, respectively then, in his claricatory order,

he declared that his decision did not include the

reinstatement of !omawis to the position. !his

vacillating attitude only served to create a hiatus in

public service, totally repugnant to the basic rule that

title to public o"ce should not be subjected to

continued uncertainty. &n addition, as observed by the

(A, the 8!( judge remained deafeningly silent on the

alleged /anuary 9 *rder, neither conrming nor

denying issuance of the same.

4oreover, the appellate court could not have simply

turned a blind eye to the obvious blunder committed

by the trial court in issuing the injunctive writ. !o

overlook such a manifest mistake would have beeninconsistent with substantial justice, and would have

allowed a party to unjustly benet from a mistake or

inadvertence of the trial court. !hus, the 8ules reserve

to the appellate court the right, resting in public duty,

to take cogni3ance of palpable error on the face of the

record and proceedings, especially such as clearly

demonstrate that the suitor has no cause of action. !he

rule does not intend for the @appellate court to sift the

record and deal with questions which are of small

importance, but only to notice errors which are obvious

upon inspection and are of a controlling character. !he

underlying purpose of this reservation in the rule is to

prevent the miscarriage of justice resulting fromoversight.

*n the merit of the 8!( decision, we agree with the (A

that !omawis had no clear legal right to institute his

petition for injunction. &ndeed, the !omawis suit before

the 8!( was a thinly disguised petition for quo

#arranto, and not having any legal title to the position

of 8egional Director @his temporary appointment

having been terminated, he did not possess prope

personality to le the action.?

Even if the initiatory pleading led by !omawis before

the 8!( is truly a special civil action for injunction and

prohibition, our conclusion remains T he still had no

clear legal right to institute the same.

&njunction is a judicial writ, process or proceeding

whereby a party is ordered to do or refrain from doinga certain act. &t may be the main action or merely a

provisional remedy for and as an incident in the main

action.?9 As a rule, to justify the injunctive relief prayed

for, the movant must show @$ the eCistence of a right

in esse or the eCistence of a right to be protected and

@) that the act against which injunction is to be

directed is a violation of such right.?>A Jclear lega

rightJ means one clearly founded on or granted by law

or is enforceable as a matter of law.?; !heonus

pro"andi is on movant to show that there eCists a right

to be protected, which is directly threatened by the

acts sought to be enjoined. 0urther, there must be a

showing that the invasion of the right is material and

substantial and that there is an urgent and paramount

necessity for the writ to prevent a serious damage.=

!he facts clearly show that !omawis was appointed

8egional Director. 1owever, because he did not

possess the requisite (E: eligibility, pursuant to

established rules and jurisprudence, his appointment

was characteri3ed merely as temporary. 1is

appointment papers dated /uly +$, ), specically

provided that his appointment was merely temporary

As such, he had no security of tenure.=$ 6pon the

issuance of *"ce *rder 7o. 9; appointing (audangto the position, !omawisQ right to the position ceased to

eCist. !hus, he should have vacated and relinquished

the position and turned over the duties, funds and

properties of the o"ce to (audang.

Accordingly, his petition for injunction should have

been denied outright by the court. &n the absence of a

clear legal right, the issuance of the injunctive writ

constitutes grave abuse of discretion.=)

2astly, we cannot sustain petitionerQs claim that

respondent is guilty of multiple forum shopping. !here

is forum shopping where the elements of litis

pendentia are present or where a nal judgment in one

case will amount to res judi!ata in the other.=+ !rue

respondent had previously instituted quo

#arranto proceedings involving the same contested

position, and her petitions had been dismissed with

nality by this (ourt. Be, however, nd that the issue

in the instant case is based on a di<erent set of facts.

-rovisional 8emedies 8ule => :ection = );























!his case was initiated by no less than the petitioner

himself through a petition for injunction before the 8!(

in order to enjoin the enforcement of *"ce *rder 7o.

9; which recogni3ed the new appointment of the

respondent thereby terminating his @petitionerQs

temporary appointment. !he previous quo

#arranto actions instituted by the respondent were

based on her appointment on :eptember $, $;>9. *n

the other hand, the present action is based on her

appointment on 4arch >, )). Although the issues inall of the cases brought to this (ourt involve the

rightful occupant of the contested position, the fact

remains that the JappointmentsJ are distinct from one

another.

&n view of all the foregoing, we hereby a"rm the nullity

of the writ of injunction issued by the 8!( for failure of

the petitioner to show clear legal right to enjoin the

enforcement of the o"ce order. Be likewise a"rm the

ndings of the appellate court that the :eptember $=

Decision of the 8!( never attained nality.

(onsequently, the corresponding writ of eCecution is

null and void. *"ce *rder 7o. ?')9 @installingpetitioner to the contested position issued pursuant to

the writ of eCecution is, likewise, annulled.

/HE!E$!E, the petition is hereby DENIED. !he

:eptember >, )? Decision of the (ourt of Appeals

and its December ), )? 8esolution are AI!MED.

#$ $!DE!ED.




G.!. No. 15315 D(7r 1, 2010

"IT G$E!NMENT $ 6UTUAN )': "IT MA$!

LE$NIDE# THE!E#A 6. PLA%A, *< l)**r i' <r

pro')l ()p)(i* )': ) rpr'*)*i+ o@ <r

(o-:@':)'*, -etitioners,

vs.

"$N#$LIDATED 6!$AD"A#TING ##TEM "6#,

IN"., :oi'; 7&i' &':r *< ') )': *l

D6! 6o7o !):o 6&*&)', rpr'*: 7 i*M)');r, Nor7r*o P. P);)p), )': H$N.

!$#A!IT$ . DA6AL$#, P!E#IDING JUDGE, !T",

6!AN"H 2, $ AGU#AN DEL N$!TE AND 6UTUAN

"IT,8espondents.

D E ( & : & * 7

6E!#AMIN, J(*

-etitioners (ity overnment of 5utuan and (ity 4ayor

2eonides !heresa 5. -la3a @petitioners appeal the

adverse decision dated *ctober )>, )) @dismissingtheir petition for certiorari and prohibition to challenge

the grant by the trial judge of the application for a writ

of preliminary injunction after reconsidering his earlier

self'inhibition,$ and the resolution dated /anuary );,

)+ @denying their motion for reconsideration, both

promulgated by the (ourt of Appeals @(A in (.A.'.8.

:- 7o. ;9); entitled (ity overnment of 5utuan and

(ity 4ayor 2eonides !heresa 5. -la3a, the latter in her

personal capacity and as representative of her co'

defendant v. (onsolidated 5roadcasting :ystem @(5:,

&nc., doing business under the name and style JDM58J

5ombo 8adyo 5utuan, represented by its 4anager,

7orberto -. -agaspas, and the 1on. 8osarito 0. Dabalos,-residing /udge, 8!(, 5ranch ), of Agusan del 7orte

and 5utuan (ity.

A'*(:'*)

&n 0ebruary, )), (ity 4ayor -la3a @4ayor -la3a

wrote to the :angguniang -anlungsod of 5utuan (ity to

solicit its support for her decision to deny the

application for mayorIs permit of respondent 5ombo

8adyoF(onsolidated 5roadcasting :ystem @(5:, and to

eventually close down (5:Is radio station. :he justied

her decision by claiming that (5:Is operating itsbroadcasting business within the Arujiville :ubdivision,

a residential area, had violated the (ityIs 3oning

ordinance. 1er letter pertinently reads

&n $;;?, 5ombo 8adyoF(onsolidated 5roadcasting

:ystem manifested their intention to operate on their

current site at Arujiville :ubdivision which is a

residential area. !hey were informed that they cannot

situate their business in the area as it violates our

3oning ordinance. 1owever, they have pleaded and

was agreeable to operate in the area by virtue of a

!emporary 6se -ermit @!6- CCC.

!he !6- allowed them to operate in the area but only

for a very limited period. As a matter of fact, the !6-

was good only for one year, which can be renewed

every year for a maCimum of ve @= years or unti

$;;;. !hus, right from the beginning they have been

informed and forewarned that they cannot operate in

the area forever and that they have to relocate to aproper area.

5ombo 8adyo renewed its !6- only in $;;= and $;;.

!hey have failed to renew their !6- up to today.

!his o"ce has received numerous complaints agains

5ombo 8adyo for violation of private rights, inciting

people to go rise against the government, malicious

imputations, insinuations against people not of thei

liking, false or fabricated news, etc. !he list is so long

to enumerate. (opies of the petitions, manifestos from

various groups is hereto attached for your perusal.

!hus, for violation of the city 3oning ordinance, the

eCpiration of their !6-, which was never renewed since

$;;9, failure to secure E(( and the numerous

complaints against the station of the residents within

the immediate vicinity of their premises and the threat

they are causing to the peace and order of the (ity, &

have decided to deny their application for a mayorQs

permit and thereafter to close the radio station.

&n view of the foregoing premises, & am forwarding this

matter to the :angguniang -anlungsod to solicit your

resolution of support on the matter.

!his is not a decision calculated to deprived @sic 8adio

5ombo of its freedom of speech or eCpression. !his is

just a simply matter of whether or not 8adyo 5ombo

has complied with eCisting laws and ordinances.

!hereupon, the :angguninang -anlungsod adopted

8esolution'=9')) Jto strongly support the decision

of the (ity 4ayor to deny the application of

(onsolidated 5roadcasting :ystem Developmen

(orporation @5ombo 8adyo'5utuan for a 4ayorIs

-ermit and thereafter close the radio station.J+

*n 0ebruary $>, )), the (ityIs licensing o"ce

served on (5:Is station manager a nalFlast notice of

violation and demand to cease and desist illega

operation, with a warning that he would recommend

the closure of its business in case of non'compliance.

*n 0ebruary $;, )), (5: and its manager, 7orberto

-agaspas, led a complaint for prohibition, mandamus

-rovisional 8emedies 8ule => :ection = +$

http://www.lawphil.net/judjuris/juri2010/dec2010/gr_157315_2010.html#fnt1









and damages against the petitioners in the 8egional

!rial (ourt in 5utuan (ity @8!(,? with prayer for a

temporary restraining order @!8* and writ of

preliminary injunction to restrain the petitioners from

closing its station, or from disturbing and preventing its

business operations. !he case, docketed as (ivil (ase

7o. =$;+, was raGed to 5ranch ), presided by /udge

8osarito -. Dabalos.

*n 0ebruary ), )), /udge Dabalos voluntarilyinhibited and directed the return of (ivil (ase 7o. =$;+

to the *"ce of the (lerk of (ourt for re'raGe.= 1e cited

the circumstances that might a<ect his objectivity and

impartiality in resolving the controversy as his

justication, to wit

CCC

a !hat the undersigned was the object of its

@plainti<Qs attacks and criticism which are

judgmental and not inquisitorial in the

comments over the air

b !hat the undersigned was shouted at

disrespectfully by one of plainti<Qs

reportersFnews gatherers in the vicinity of the

1all of /ustice

c !hat plainti<Qs commentaries are making

pronouncements on legal matters, substantive

and procedural, based on its perception and

not on laws

d !hat in its commentaries in attacking public

o"cials as well as private individuals, words

which are disrespectful and indecent are used.

and the net e<ect and result of its commentaries over

the air causes confusion on the minds of the public,

including the young that the court and government

o"ces and public o"cials will lose their credibility and

respect which are due them.

!he court is aware of press freedom is enshrined in our

constitution but such freedom should not be abused

because in every right there is a concomitant

obligation.

2et therefore this case be returned immediately to the

o"ce #of the% (lerk of (ourt L& for re'raGing.

:* *8DE8ED.

*n the same day, /udge Lictor !omaneng, -residing

/udge of 5ranch ++, issued an order also inhibiting

himself from handling (ivil (ase 7o. =$;+, and in his

capacity as Lice ECecutive /udge @in lieu of ECecutive

/udge (ipriano 5. Alvi3o, /r., then on sick leave

directed the assignment of (ivil (ase 7o. =$;+ to

5ranch = without raGe, vi6

CCC (onsidering that the ECecutive /udge 1on. (ipriano

5. Alvi3o, the -residing /udge of 8!('5ranch ? and

Acting'Designate -residing /udge of 8!('5ranch +, but

who is now in (ebu (ity for medical treatment, it would

be impractical to include his courts in the re'raGing ofcases for the reason that the case is for prohibition

mandamus, injunction, etc., that needs immediate

action. !he herein Lice'ECecutive /udge who is the

-residing /udge of 8!('5ranch ++, could not also act on

this case on the ground of Qdelicade3aQ considering that

defendant 1on. 4ayor 2eonides !heresa 5. -la3a is his

QkumadreQ plus the fact that before becoming judge he

was the legal counsel of the 2D- party here in 5utuan

(ity, in the election of $;;) and $;;=, which is the

political party of the -la3as. 8!('5ranch $, being the

eCclusive 0amily (ourt cannot also be included in any

raGe.

&n view of the foregoing, and on the ground o

eCpediency, the (lerk of (ourt is ordered to send this

case to 8!('5ranch =, without raGe anymore, it being

the only practical available court in this jurisdiction as

of this moment.

(ivil (ase 7o. =$;+ was forwarded to 5ranch =

presided by /udge Augustus 2. (alo, who recused

because his wife had been recently appointed by

4ayor -la3a to the (ityIs 2egal *"ce. /udge (alo

ordered the immediate return of the case to the (lerk

of (ourt for forwarding to Lice ECecutive /udge !omaneng.

Bithout any other judge to handle the case, /udge

!omaneng formally returned (ivil (ase 7o. =$;+ to

/udge Dabalos, stating in his letter that /udge Dabalos

reason for inhibition did not amount to a plausible

ground to inhibit. /udge !omaneng instructed /udge

Dabalos to hear the case unless the :upreme (ourt

approved the inhibition.9

*n 0ebruary )$, )), /udge !omaneng issued a

!8*,> to wit

!he (ourt believes that there is a need to maintain the

status quo until all the other issues in the complaint

shall have been duly heard and determined withou

necessarily implying that plainti< is entitled to the

prayers for injunction. !he (ourt hereby resolves in the

meantime to grant a temporary restraining order.

B1E8E0*8E, defendants (ity ovQt of 5utuan and (ity

4ayor 2eonides !heresa 5. -la3a, their attorneys

-rovisional 8emedies 8ule => :ection = +)














agents, employees, police authorities andFor any

person acting upon the 4ayorIs order and instruction

under her authority are hereby enjoined to cease,

desist and to refrain from closing or padlocking 8ADH*

5*45* or from preventing, disturbing, or molesting its

business operations, including but not limited to the

use and operation of its building, structures and

broadcasting facilities, and the ingress or egress of its

employees therein.

As this (ourt cannot issue a seventy'two @9) hour

!emporary 8estraining *rder because of the incoming

delay on 4onday, 0ebruary )=, )), a temporary

restraining order is hereby issued e<ective for twenty

@) days from issuance @:ec. =, 8ule =>, $;;9 8evised

8ules on (ivil -rocedure.

4eanwhile, let this case be set for summary hearing on

4arch $$, )) at >+ in the morning to resolve the

pending application for injunction and for the

defendants to show cause why the same shall not be

granted.

&! &: :* *8DE8ED.

*n 0ebruary )=, )), the petitioners led an urgent

motion to lift or dissolve temporary restraining order in

5ranch ) @sala of /udge Dabalos.

*n 0ebruary ), )), /udge Dabalos referred his order

of inhibition in (ivil (ase 7o. =$;+ to the (ourt

Administrator for consideration, with a request for the

designation of another /udge not stationed in 5utuan

(ity and Agusan del 7orte to handle the case. ;

(onsequently, (5: requested the (ourt to designate

another judge to hear its application for the issuance of

a writ of preliminary injunction, the hearing of which

/udge !omaneng had set on 4arch $$, )).$

&n the meanwhile, or on 4arch >, )), the petitioners

led their answer to the complaint, alleging a"rmative

and special defenses and praying for the dismissal of

the complaint, the lifting of the !8*, the denial of the

prayer for preliminary injunction, and the granting of

their counterclaims for moral and eCemplary damages,

attorneyIs fees, and litigation eCpenses.

During the hearing on 4arch $$, )) of (5:Is

application for the issuance of a writ of preliminary

injunction, at which the petitioners and their counsel

did not appear, (5:Is counsel manifested that he was

desisting from his earlier request with the (ourt for the

designation of another judge to hear (ivil (ase 7o.

=$;+. /udge Dabalos noted the manifestation but reset

the hearing of the application for preliminary injunction

on 4arch $), )), to give the petitioners an

opportunity to show cause why the writ prayed fo

should not issue. 0or the purpose of the resetting

/udge Dabalos caused a notice of hearing to be served

on the petitioners.$$

6pon receipt of the notice of hearing, the petitioners

moved to quash the notice and prayed that the !8* be

lifted, insisting that /udge Dabalos had already lost his

authority to act on (ivil (ase 7o. =$;+ by virtue of hisinhibition.$)

7onetheless, (ivil (ase 7o. =$;+ was called on 4arch

$), )). !he parties and their respective counse

appeared. At the close of the proceedings on that date

/udge Dabalos granted (5:Is prayer for a writ o

preliminary injunction,$+ to wit

B1E8E0*8E, in view of the foregoing as the

defendants did not introduce any evidence in spite of

the order of the (ourt to show cause why no writ of

preliminary injunction be issued and the repeated

directive of the court in open court for the defendants

to present evidence which the defendants rmly

refused to do so on Rimsy grounds, the (ourt resolves

to issue a writ of preliminary injunction as the

complaint under oath alleges that plainti< is a grantee

of a franchise from the (ongress of the -hilippines and

the act threatened to be committed by the defendants

curtail the constitutional right of freedom of speech of

the plainti< which the (ourt nds that it should be

looked into, the defendantsQ refusal to controvert such

allegations by evidence deprived the (ourt #of% the

chance to be guided by such evidence to act

accordingly that it left the court no alternative but togrant the writ prayed for, the (ity overnment o

5utuan and (ity 4ayor 2eonides !heresa 5. -la3a, their

attorneys, agents, employees, police authorities andFo

any person acting upon the 4ayorQs order o

instructions or under her authority are hereby enjoined

to cease and desist and to refrain from closing o

padlocking 8ADH* 5*45* or from preventing

disturbing or molesting its business operations

including but not limited to the use and operation of its

building, structures, broadcasting facilities and the

ingress or egress of its employees therein upon

plainti<Qs putting up a bond in the amount o

-),. duly approved by this court whichinjunction bond shall be eCecuted in favor of the

defendants to answer for whatever damages which the

defendants may sustain in connection with or arising

from the issuance of this writ if, after all the court wil

nally adjudge that plainti< is not entitled thereto.

!his order is without prejudice to the ndings of the

court after a formal hearing or a full blown trial.

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I

J&:; D)7)lo l)>@&ll r-)&: =&ri:i(*io'

o+r "i+il ") No. 5193

&n its decision, the (A ruled that /udge Dabalos did not

gravely abuse his discretion in re'assuming jurisdiction

over (ivil (ase 7o. =$;+ in the light of the obtaining

circumstances cogently set forth in its assailed

decision, to wit$9

:eemingly, petitioners lost sight of the reality that after

the respondent judge issued his order of inhibition and

directed the return of the case to the *"ce of the (lerk

of (ourt for re'raGe to another judge, Lice'ECecutive

/udge Lictor A. !omaneng, noting that there is no other

judge to handle the case, directed the return thereof to

the public respondent in view of the eCtreme urgency

of the preliminary relief therein prayed for. 6nder the

circumstances then obtaining, the respondent judge

could do no less but to act thereon. :o it is that he

proceeded with the scheduled hearing on the

application for preliminary injunction on 4arch $$,

)) and thereafter reset it for continuation the

following day to a<ord the petitioners an opportunity to

oppose the application and show cause why the writ

prayed for should not issue. !he urgency of the action

demanded of the respondent judge is further

accentuated by the fact that the !8* issued by /udge

!omaneng was then about to eCpire on 4arch $+, )),

not to mention the circumstance that ECecutive /udge

(ipriano 5. Alvi3o, /r., who happened to be around,

advised the respondent judge to resolve the issues to

the best of his discretion. CCC

!he petitioners disagree, and insist that /udge Dabaloslost the authority to act upon (5:Is application for

preliminary injunction by virtue of his prior self'

inhibition from hearing (ivil (ase 7o. =$;+.

Be cannot sustain the petitionersI insistence.

:ection $, 8ule $+9 of the 8ules of (ourt, which

contains the rule on inhibition and disqualication of

judges, states

:ection $. Disqualication of judges.T 7o judge or

judicial o"cer shall sit in any case in which he, or hiswife or child, is pecuniarily interested as heir, legatee,

creditor or otherwise, or in which he is related to either

party within the siCth degree of consanguinity or

a"nity, or to counsel within the fourth degree,

computed according to the rules of civil law, or in

which he has been eCecutor, administrator, guardian,

trustee or counsel, or in which he has presided in any

inferior court when his ruling or decision is the subject

of review, without the written consent of all parties'in'

interest, signed by them and entered upon the record.

A judge may, in the eCercise of his sound discretion,

disqualify himself from sitting in a case, for just and

valid reasons other than those mentioned above.

!he self'inhibition of /udge Dabalos was one taken in

accordance with the second paragraph of :ection $

*ur resolution herein turns, therefore, on the proper

interpretation and application of the second paragraph

!he second paragraph of :ection $ @unlike the rstparagraph does not eCpressly enumerate the specic

grounds for inhibition. !his means that the

determination of the grounds is left to the sound

discretion of the judge, who must discern with only his

or her conscience as guide on what may be just and

valid reasons for self'inhibition. !he vesting o

discretion necessarily proceeds from the reality tha

there may be many and di<erent grounds for a judge

to recuse from a case, and such grounds cannot all be

catalogued in the )ules o Court . !hus did the (ourt

cogently point out in Gutang v. Court o *ppeals$>

CCC !he import of the rule on the voluntary inhibition of

judges is that the decision on whether or not to inhibit

is left to the sound discretion and conscience of the

trial judge based on his rational and logical assessment

of the circumstances prevailing in the case brought

before him. &t makes clear to the occupants of the

5ench that outside of pecuniary interest, relationship

or previous participation in the matter that calls fo

adjudication, there might be other causes that could

conceivably erode the trait of objectivity, thus calling

for inhibition. !hat is to betray a sense of realism, for

the factors that lead to preference or predilections are

many and varied.la#phi(

&n his case, /udge Dabalos clearly discerned after the

return of (ivil (ase 7o. =$;+ to him by the Lice

ECecutive /udge that his self'doubt about his ability to

dispense justice in (ivil (ase 7o. =$;+ generated by

the airing of criticisms against him and other public

o"cials by (5:Is commentators and reporters would

not ultimately a<ect his objectivity and judgment. :uch

re'assessment of the ground for his self'inhibition

absent a showing of any malice or other imprope

motive on his part, could not be assailed as the product

of an unsound eCercise of his discretion. !hat, it seems

to us, even the petitioners conceded, their objection

being based only on whether he could still re'assume

jurisdiction of (ivil (ase 7o. =$;+.

Be hold that although a trial judge who voluntarily

inhibits loses jurisdiction to hear a case,$; he or she

may decide to reconsider the self'inhibition and re

assume jurisdiction after a re'assessment of the

circumstances giving cause to the inhibition. !he

discretion to reconsider acknowledges that the tria

-rovisional 8emedies 8ule => :ection = +=











judge is in the better position to determine the issue of

inhibition, and a reviewing tribunal will not disturb the

eCercise of that discretion eCcept upon a clear and

strong nding of arbitrariness or whimsicality.) !hus,

/udge DabalosI re'assumption of jurisdiction was legally

tenable, having come from his sei3ing the opportunity

to re'assess the circumstances impelling his self'

inhibition upon being faced with the urgent need to

hear and resolve (5:Is application for preliminary

injunction. :uch action was commendable on his part,given that the series of self'inhibitions by the other 8!(

/udges had left no competent judge in the station to

hear and resolve the application. &t can even be rightly

said that a refusal by /udge Dabalos to re'assess and

reconsider might have negated his sacred and sworn

duty as a judge to dispense justice.

&n this connection, the urgency for the 8!( to hear and

resolve the application for preliminary injunction

factually eCisted. &n fact, (5: had communicated it to

the (ourt in its letter dated 4arch =, )), )$ to wit

&f not for the temporary restraining order issued on

0ebruary )$, )) by the 1onorable /udge L&(!*8 A.

!*4A7E7, Lice'ECecutive /udge and -residing /udge

of 5ranch ++ of said court CCC violent confrontations

would have continued between supporters of plainti<

8AD&* 5*45* 56!6A7, on the one hand, and the

loyalists of (ity 4ayor 2E*7&DE: !1E8E:A -2ANA

@including some city employees led by the 4ayor

herself and her husband, former 4ayor DE4*(8&!*

-2ANA &&, on the other hand.

CCC

As set forth in the temporary restraining order, the

hearing on the application for a writ of preliminary

injunction is set on 4onday, 4arch $$, )) because

the twenty'day lifetime of the temporary restraining

order would eCpire on 4arch $+, )). A repeat of the

violent scenario of 0ebruary )$ may occur unless the

application is heard as scheduled by a 8egional !rial

(ourt /udge who had not inhibited himself. CCC

Lerily, /udge DabalosI decision to hear the application

for preliminary injunction pending the (ourtIs

resolution of the query on whether or not anothe

/udge sitting outside the (ity of 5utuan should take

cogni3ance of (ivil (ase 7o. =$;+ did not constitute or

equate to arbitrariness or whimsicality. 1e had

reasonable grounds to do so in the conteCt of the tight

circumstances that had developed in (ivil (ase 7o

=$;+ following his self'inhibition. :urely, his decision to

reconsider did not proceed from passion or whim, butfrom his faithful adherence to his solemn oath to do

justice to every man. 1e thereby neither violated any

law or canon of judicial conduct, nor abused his

juridical authority.

II.

P*i*io'r *o )::&( +i:'( )@*r ;r)'*i'; o@

T!$

!he petitioners submit that /udge Dabalos improperly

resolved (5:Is application for preliminary injunction by

not rst requiring the applicant to adduce evidence in

support of the application.

Be do not agree with the petitioners.

A preliminary injunction is an order granted at any

stage of an action or proceeding prior to the judgment

or nal order requiring a party or a court, an agency, or

a person to refrain from a particular a particular act o

acts.)) &t may also require the performance of a

particular act or acts, in which case it is known as a

preliminary mandatory injunction.)+ !hus, a prohibitory

injunction is one that commands a party to refrain from

doing a particular act, while a mandatory injunctioncommands the performance of some positive act to

correct a wrong in the past.)?

As with all equitable remedies, injunction must be

issued only at the instance of a party who possesses

su"cient interest in or title to the right or the property

sought to be protected.)= &t is proper only when the

applicant appears to be entitled to the relief demanded

in the complaint,) which must aver the eCistence of

the right and the violation of the right,)9 or whose

averments must in the minimum constitute a prima

facie showing of a right to the nal relief

sought.)> Accordingly, the conditions for the issuance of

the injunctive writ are @a that the right to be

protected eCists prima facie @b that the act sought to

be enjoined is violative of that right and @c that there

is an urgent and paramount necessity for the writ to

prevent serious damage. An injunction will not issue to

protect a right not in esse, or a right which is merely

contingent and may never arise or to restrain an act

which does not give rise to a cause of action or to

prevent the perpetration of an act prohibited by



























statute.); &ndeed, a right, to be protected by injunction,

means a right clearly founded on or granted by law or

is enforceable as a matter of law.+

Bhile it is true that (5: was not required to present

evidence to prove its entitlement to the injunctive writ,

the writ was nonetheless properly granted on the basis

of the undisputed facts that (5: was a grantee of a

franchise from the 2egislature, and that the acts

complained against @i.e., refusal of the 4ayorIs permitand resulting closure of the radio station were

imminent and, unless enjoined, would curtail or set at

naught (5:Is rights under the franchise. &n this regard,

worthy of mention is that even the Lice ECecutive

/udge, acknowledging that (5: had stood to su<er

grave

injustice and irreparable injury should its radio station

su<er closure, had issued eC parte the !8*.

&t was error on the part of the petitioners to insist that

the evidence of (5: should have rst been required

before /udge Dabalos issued the writ of preliminary

injunction. 8ule => of the 8ules of (ourt clearly lays the

burden on the shoulders of the petitioners, as the

parties against whom the !8* was issued, to show

cause why the application for the writ of preliminary

injunction should not issue,+$ thus

:ection =. -reliminary injunction not granted without

notice eCception. K 7o preliminary injunction shall be

granted without hearing and prior notice to the party or

person sought to be enjoined. &f it shall appear from

facts shown by a"davits or by the veried application

that great or irreparable injury would result to theapplicant before the matter can be heard on notice, the

court to which the application for preliminary injunction

was made, may issue eC parte a temporary restraining

order to be e<ective only for a period of twenty @)

days from service on the party or person sought to be

enjoined, eCcept as herein provided. Bithin the said

twenty'day period, the court must order said party or

person to show cause, at a specied time and place,

why the injunction should not be granted, determine

within the same period whether or not the preliminary

injunction shall be granted, and accordingly issue the

corresponding order.

CCC

&n ne, /udge Dabalos properly directed the petitioners

to rst present evidence why the application for the

writ of preliminary injunction should not be granted. 5y

their refusal to comply with the directive to show cause

by presenting their evidence to that e<ect, the

petitioners could blame no one but themselves.

/HE!E$!E, we deny the petition for review on

certiorari, and a"rm the decision dated *ctober )>

)) promulgated by the (ourt of Appeals in (.A.'.8.

:- 7o. ;9);.

(osts of suit to be paid by the petitioners.

:* *8DE8ED.

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ANGELINA PAHILA-GA!!ID$,-etitioner,

' versus '

ELI%A M. T$!T$G$,LE$NILA L$!E#,ANANIA# #ED$NI$, ADELIN$ M$NET,

ANGIE M$NET, JUANIT$ GA!"IA, ELE$N$! GA!"IA,6ENITA M$A, JULI$ ALTA!E#,LEA ALTA!E#,"LA!ITA #A6ID$, JULIE ANN ILLAM$!, JUANITA TUALA,I"T$! L$!E# III, J$HNN M$A,HA%EL AAN"EA,#$NIA EANGELI$, )':GENN M$NTA$,8espondents.

G.!. No. 15835B

-resent (*8*7A, C.4.,2E*7A8D*'DE (A:!8*,5E8:A4&7,DE2 (A:!&22*, and

L&22A8A4A, /8.,

-romulgated

August $9, )$$

%%

D E " I # I $ N

6E!#AMIN, J(

7othing is more settled in law than that once a judgment attains nality it thereby becomesimmutable and unalterable.#$% !he enforcement of such judgment should not be hampered or evaded, for theimmediate enforcement of the parties rights, conrmedby nal judgment, is a major component of the idealadministration of justice. !his is the reason why weabhor any delay in the full eCecution of nal and

eCecutory decisions.#)%

!hus, a remedy intended tofrustrate, suspend, or enjoin the enforcement of a nal judgment must be granted with caution and upon astrict observance of the requirements under eCistinglaws and jurisprudence. Any such remedy allowed inviolation of established rules and guidelines connotesbut a capricious eCercise of discretion that must bestruck down in order that the prevailing party is notdeprived of the fruits of victory.

Via her pleading denominated as a petition for

review on !ertiorari, the petitioner has come directly tothe (ourt from the 8egional !rial (ourt @8!(, 5ranch?>, in 5acolod (ity for the nullication of the orderdated 7ovember $), )) @granting the respondents

application for a writ of preliminary prohibitoryinjunction #enjoining the eCecution of the nal andeCecutory decision rendered in an ejectment suit bythe 4unicipal !rial (ourt in (ities #4!((%, 5ranch , in5acolod (ity% issued in :(A (ase 7o. $'$$=))#+% forbeing in violation of law and jurisprudence.

!he petitioner also prays that the (ourt should

enjoin the 8!( from taking further proceedings in :(A(ase 7o. $'$$=)), eCcept to dismiss it.

A'*(:'*

*n /une )+, $;;9, Domingo -ahila commenced in the4!(( in 5acolod (ity an action for ejectment withprayer for preliminary and restraining order to evictseveral defendants, including the respondents hereinfrom his properties, docketed as (ivil (ase 7o. )+9$and raGed to 5ranch of the 4!((. 1e amended thecomplaint to implead the spouses of some of thedefendants. 1owever, he died during the pendency ofthe action, and his surviving spouse, herein petitioneAngelina -ahila'arrido, was substituted for him on:eptember )?, $;;>. !he defendants in (ivil (ase 7o. )+9$ were dividedinto two discrete groups. !he rst group, representedby Atty. 8omeo :ubaldo, included those defendantsoccupying 2ot ?$'5'$, covered by !ransfer (erticateof !itle @!(! !'$9;)? 2ot ?$'5'), covered by !(!7o. !'$9;)= and 2ot 7o. ?$'5'+, covered by !(! 7o !'$9;), all owned by the plainti<. !he defendants inthis group relied on the common defense of beingagricultural tenants on the land. !he second group, onthe other hand, was represented by Atty. 8anela de la0uente of the -ublic Attorneys *"ce @-A* and countedthe defendants occupying 2ot 7o. 0'L'+'+9?;'D

covered by !(! 7o. !'==+, also owned by theplainti<. !he second groups common defense was thatthe plainti<s title was not valid because theirespective portions were situated on foreshore landalong the uimaras :trait, and thus their respectiveareas were subject to their own acquisition from the:tate as the actual occupants. After the parties submitted their respective positionpapers, the 4!(( rendered a decision dated 4arch $9$;;; in favor of the petitioner,#?% to wit

B1E8E0*8E, /6D4E7! &: 8E7DE8ED&7 0AL*8 *0 !1E -2A&7!&00 A7DAA&7:! !1E DE0E7DA7!: eCcept the

defendant Damiana Daguno, asfollows

$. *rdering the a<ected

defendants or any personor persons in acting intheir behalf, assignees orsuccessors'in'interestsincluding members of their family to vacateportions of 2ot 7o. ?$'5'$ covered by !(! 7o.$9?), 2ot 7o.?$'5')covered by !(! 7o. !'

$9;) and 2ot -lan'0'L'++9?;'D covered by !(!7o. !'==+ which theyoccupy and turn over thepossession of the saidproperty to the plainti<,and to pay the cost of thesuit.

!he prayer for preliminaryinjunctionFrestraining order is deniedfor lack of basis.

-rovisional 8emedies 8ule => :ection = +>

http://sc.judiciary.gov.ph/jurisprudence/2011/august2011/156358.htm#_ftn1











All the defendants appealed. *n :eptember )), $;;;,

the 8!( in 5acolod (ity a"rmed the decision of the4!((.#=%

*nly the second group, which includes

respondents herein, appealed the 8!(s decision to the(ourt of Appeals @(A, insisting that the land wasforeshore land and that the petitioners title @!(! 7o.==+ was not valid. (onsidering that the rst groupdid not appeal, the 8!(s decision became nal andeCecutory as to them.

*n December , $;;;, the (A dismissed thesecond groups appeal, and later denied their motionfor reconsideration on April $9, ). #%

!he respondents herein appealed the dismissal

to the (ourt via a petition for !ertiorari @.8. 7o.$?+?=>, but the (ourt rejected their recourse on /uly$;, ), and issued an entry of judgment on *ctober), ).#9%

&n the meantime, on 0ebruary $, ), the

4!(( amended its decision to correct typographicalerrors in the description of the properties involved.#>%

7one of the parties objected to or challenged thecorrections.

*n April =, ), the 4!(( issued the writ of

eCecution upon the petitioners motion.#;% !he writ of eCecution was duly served on August )?, )upon all the defendants, including the respondents, asthe sheri<s return of service indicated.#$%

*n April ), )$, the respondents led amotion to quash against the April =, ) writ of eCecution and its aliases, and a motion to stay theeCecution of the 4arch $9, $;;; decision and the0ebruary $, ) amended decision.#$$% !hey anchoredtheir motions on the supposedly supervening ndingthat the lot covered by the writ of eCecution was

foreshore land belonging to the :tate. !o support theircontention, they presented the following administrativeissuances from the Department of Environment and7atural 8esources @DE78, namely

9a: 4emorandum dated August +,

) issued by the (ommunityEnvironment and 7ational8esources *"ce @(E78* of theDE78 recommending thecancellation of 0ree -atent 0.-. 7o.+;=) from which was derived*riginal (erticate of !itle @*(!7o. -'$, and petitioners !(! 7o. !'

==+ and 9": 4emorandum dated 7ovember $+,

) of the DE78 8egionalECecutive Director for 8egion L& in&loilo (ity.

!hey argued that such supervening event directlya<ected the eCecution of the 4arch $9, $;;; decisionand its amendment, whose continued eCecutiona<ecting foreshore land would be unjust to the

occupants or possessors of the property, includingthemselves.#$)%

*n 4ay ?, )$, the 4!(( denied the

respondents motion to quash, observing that thecancellation of the petitioners !(! 7o. !'==+ was anevent that might or might not happen, and was not thesupervening event that could stay the eCecution. #$+% Amonth later, on /une >, )$, the 4!(( denied therespondents motion for reconsideration,#$?% vi6

As of this point in time the

movant has not shown that she has abetter right to possess the land she ispresently occupying as a squatter, thanthe plainti< who is in possession of aclean !orrens !itle. &t is not true thatthe eCecution of the decision of thiscourt would be unjust to her. !o put itbluntly, it would be more unjust to theplainti< who was deprived of possession of his land for a very longtime, because of the movantsinsistence in occupying said land evenafter the decision ejecting her from the

plainti<s land had become nal andeCecutory.

&n ne, the movant has not

shown additional evidences orarguments which would warrant thereversal of the order dated 4ay ?,)$.

B1E8E0*8E, the motion for

reconsideration dated /une $, )$ isdenied.

:* *8DE8ED.

!he story would have ended then but for thefact that on *ctober $, )$, or more than a year aftethe writ of eCecution was served upon the defendantsin (ivil (ase 7o. )+9$, the respondents, led byrespondent Elisa 4. !ortogo, and now assisted byAtty2eon 4oya, led a petition for !ertiorari and prohibition@with prayer for the issuance of a writ of preliminaryinjunction and restraining order in the 8!( in 7egros*ccidental, docketed as :(A (ase 7o. $'$$=))#$=% praying

B1E8E0*8E, premises

considered, it is most respectfullyprayed of this 1*7*8A52E (*68! that

the assailed *8DE8: dated ? 4ay )$and > /uly )$ be 8ELE8:ED,A77622ED and :E! A:&DE.

-E!&!&*7E8: are further praying

that after due notice and hearing, atemporary restraining order and a writof preliminary prohibitory injunction beissued to enjoin theeCecutionFimplementation of theDecision dated $9 4arch $;;; and the$ 0ebruary ) Amended Decision.

-rovisional 8emedies 8ule => :ection = +;


























:uch other and further reliefs just

and equitable under the premises.

*n *ctober $$, )$, /udge orgonio /. Hbae3,to whose branch :(A (ase 7o. $'$$=)) was raGed,granted the respondents prayer for a temporaryrestraining order @!8* in the following terms,#$% to wit

CCCC

B1E8EA:, the matter of issuanceor not of a !8* was summarily heardon *ctober =, )$ in the presence of the parties and counsels who wereboth heard in supportFamplication of their respective stand@s

B1E8EA:, it appears that the

issuance of a !8* prayed for would bein order at this stage in this casebecause there appears an imminentdanger of demolition of the structuresof herein petitioners at the premises inquestion, pending the trial and naldetermination of the merits in this case

in this case @sic wherein the privaterespondent -ahila does not appear tohave prior possession of the premisesin question, and, wherein although itappears that the title of the premises inquestion is in the name of respondent-ahila, there also is a showing that thesame title may have been illegallyissued

B1E8EA:, the very imminent

danger of demolition may result toirreparable damage to hereinpetitioners, thus, the impendingdemolition appears to be a compelling

reason for the issuance of a !8* at thisstage in this case.

7*B !1E8E0*8E, H*6, theherein respondents, H*68 AE7!:,8E-8E:E7!A!&LE:, or A7H -E8:*7acting for and in your behalf, arehereby E7/*&7ED to (EA:E and DE:&:!from further implementing the = April) Brit of ECecution andFor any of itsAliases or any demolition order, if onemight have already been issued, in civilcase 7o. )+9$, 4!((, 5ranch ,5acolod (ity, until further orders fromthis (ourt.

*n *ctober )=, )), the petitioner sought aclaricatory order,#$9% moving that the !8* be vacateddue to its being e<ective for only twenty days andbecause such e<ectivity could neither be eCtended norbe made indenite. :he complained that her hands hadalready been tied for a year from eCecuting thedecision and from availing herself of the writ of demolition and pleaded that it was time to give her justice in order that she could already enjoy thepossession of the property.

*n *ctober +, )), the respondents moved

for the early resolution of the case and for the issuanceof the writ of prohibitory injunction.#$>%

*n 7ovember $), )), the 8!( issued theassailed writ of preliminary prohibitory injunction,#$;% asfollows

7*B, !1E8E0*8E, H*6, the

herein respondents, H*68 AE7!:,8E-8E:E7!A!&LE:, or any personacting for and in behalf, are herebyE7/*&7ED to (EA:E and DE:&:! fromfurther implementing the April )=,) Brit of ECecution andFor any of itsaliases, or any demolition order, if onemight have been issued already, in(ivil (ase 7o. )+9$ before 4!((,5ranch , 5acolod (ity, pending thehearing and nal determination of themerits in this instant case, or untilfurther orders from this (ourt.

CCCC

:* *8DE8ED. !he petitioner then directly came to the (our

through her so'called petition for reviewon !ertiorari, seeking to annul and set aside the writ ofpreliminary prohibitory injunction issued by the 8!(pursuant to its order dated 7ovember $), )). :hecontended that @a the 8!( issued the writ opreliminary prohibitory injunction in a way not inaccord with law or the applicable jurisprudencebecause the injunction was directed at the eCecution ofa nal and eCecutory judgment of a court of law @"the respondents @as the petitioners in :(A (ase 7o. $'$$=)) had no eCisting right to be protected byinjunction, because their right and cause of action werepremised on the future and contingent event that the

petitioners !(! 7o. !'==+ would be cancelledthrough a separate proceeding for the purpose and @!the writ of preliminary prohibitory injunction to enjointhe eCecution was issued long after the 4arch $9, $;;; judgment of the 4!(( had become nal and eCecutory.

I&

!he petition presents the following issues, to

wit

a. Bhether the present petition is aproper remedy to assail the7ovember $), )) order of the

8!( and". Bhether the 8!( lawfully issuedthe !8* and the writ of preliminaryprohibitory injunction to enjoin theeCecution of the already nal andeCecutory 4arch $9, $;;; decisionof the 4!((.

!&li';

Be give due course to the petition as a petition

for !ertiorari.

-rovisional 8emedies 8ule => :ection = ?












!he 8!( was guilty of manifestly grave abuse

of discretion amounting to lack or eCcess of jurisdictionin taking cogni3ance of :(A (ase 7o. $'$$=)) and inissuing the !8* and the writ of preliminary prohibitoryinjunction to restrain the eCecution of the nal andeCecutory decision of the 4!((.

I

No+7r 12, 2002 or:r o@ *< !T" i )'i'*rlo(&*or or:r *<)* >) 'o* &7=(* o@

)pp)l

Bith the petition being self'styled as a petitionfor review on !ertiorari, a mode of appeal, we have rstto determine whether the assailed order of 7ovember$), )) was an interlocutory or a nal order. !hedistinction is relevant in deciding whether the order isthe proper subject of an appeal, or of a special civilaction for !ertiorari.

!he distinction between a nal order and an

interlocutory order is well known. !he rst disposes of the subject matter in its entirety or terminates a

particular proceeding or action, leaving nothing moreto be done eCcept to enforce by eCecution what thecourt has determined, but the latter does notcompletely dispose of the case but leaves somethingelse to be decided upon.#)% An interlocutory order dealswith preliminary matters and the trial on the merits isyet to be held and the judgment rendered. #)$% !he testto ascertain whether or not an order or a judgment isinterlocutory or nal is does the order or judgment leave something to "e done in the trial !ourt #ithrespe!t to the merits o the !aseS &f it does, the orderor judgment is interlocutory otherwise, it is nal.

!he order dated 7ovember $), )), which

granted the application for the writ of preliminary

injunction, was an interlocutory, not a nal, order, andshould not be the subject of an appeal. !he reason fordisallowing an appeal from an interlocutory order is toavoid multiplicity of appeals in a single action, whichnecessarily suspends the hearing and decision on themerits of the action during the pendency of theappeals. -ermitting multiple appeals will necessarilydelay the trial on the merits of the case for aconsiderable length of time, and will compel theadverse party to incur unnecessary eCpenses, for oneof the parties may interpose as many appeals as thereare incidental questions raised by him and as there areinterlocutory orders rendered or issued by the lowercourt.#))% An interlocutory order may be the subject of

an appeal, but only after a judgment has beenrendered, with the ground for appealing the orderbeing included in the appeal of the judgment itself.

!he remedy against an interlocutory order not

subject of an appeal is an appropriate special civilaction under 8ule =,#)+%provided that the interlocutoryorder is rendered without or in eCcess of jurisdiction orwith grave abuse of discretion. !hen is!ertiorari under8ule = allowed to be resorted to.#)?%

II

T< p*i*io', 7 )ll;i'; )(*(o'*i*&*i'; )'i@*l ;r)+

)7& o@ :i(r*io', >) ) p*i*io'@or certiorari

Bithout disregarding the rule that aninterlocutory order cannot be the subject of appeal, the(ourt is constrained to treat the present recourse as aspecial civil action for !ertiorari under 8ule =.

Certiorari is a writ issued by a superior court to

an inferior court of record, or other tribunal or o"cereCercising a judicial function, requiring the certicationand return to the former of some proceeding thenpending, or the record and proceedings in some causealready terminated, in cases where the procedure isnot according to the course of the common law.#)=% !heremedy is brought against a lower court, board, oo"cer rendering a judgment or order and seeks theannulment or modication of the proceedings of suchtribunal, board or o"cer, and the granting of suchincidental reliefs as law and justice may require.#)% &t isavailable when the following indispensable elementsconcur, to wit

$. !hat it is directed against a

tribunal, board or o"cer eCercising judicial or quasi'judicial functions

). !hat such tribunal, board or o"cer

has acted without or in eCcess of jurisdiction or with grave abuse of discretion and

+. !hat there is no appeal nor any

plain, speedy and adequateremedy in the ordinary course of law.#)9%

Certiorari being an eCtraordinary remedy, the

party who seeks to avail of the same must strictlyobserve the rules laid down by law.#)>% !heeCtraordinary writ of !ertiorari may be availed of onlyupon a showing, in the minimum, that the respondenttribunal or o"cer eCercising judicial or quasi'judiciafunctions has acted without or in eCcess of its or his jurisdiction, or with grave abuse of discretion.#);%

0or a petition for !ertiorari and prohibition to

prosper and be given due course, it must be shownthat @a the respondent judge or tribunal issued theorder #ithout or in e%!ess o jurisdiction or #ith gravea"use o dis!retion or @" the assailed interlocutoryorder is patently erroneous, and the remedy of appea

cannot a<ord adequate and eCpeditious relief.#+%

Hetthe allegation that the tribunal, board or o"ceeCercising judicial or quasi'judicial functions has actedwithout or in eCcess of its or his jurisdiction or withgrave abuse of discretion will not alone su"ce. Equallyimperative is that the petition must satisfactorilyspecify the acts committed or omitted by the tribunalboard or o"cer that constitute grave abuse odiscretion.

Grave a"use o dis!retion means such

capricious or whimsical eCercise of judgment which is

-rovisional 8emedies 8ule => :ection = ?$































equivalent to lack of jurisdiction.#+$% !o justify theissuance of the writ of !ertiorari, the abuse of discretion must be grave, as when the power iseCercised in an arbitrary or despotic manner by reasonof passion or personal hostility, and the abuse must beso patent and gross as to amount to an evasion of apositive duty or to a virtual refusal to perform the dutyenjoined, or to act at all, in contemplation of law, as tobe equivalent to having acted without jurisdiction.#+)%

A reading of the petition shows that the

petitioner has satised the requirements to justifygiving due course to her petition as a petition under8ule =. :he has identied therein some acts asconstituting the 8!( /udges manifestly grave abuse of discretion amounting to lack or eCcess of jurisdiction,namely @a despite the nal and eCecutory nature of the judgment sought to be enjoined, the 8!( stillissued the !8* and, later on, the assailed writ of preliminary prohibitory injunction to enjoin theimplementation of the writ of eCecution @" the 8!(issued the writ of preliminary prohibitory injunction toprotect the respondents alleged right in the subjectproperties, but the right did not appear to be in esseand @! the issuance of the !8* and the writ of

preliminary prohibitory injunction was in violation of the requirements imposed by 8ule => of the )ules o Court and pertinent jurisprudence.

Did the petitioners failure to rst make a

motion for reconsideration in the 8!( preclude treatingher petition as a petition for!ertiorariS

!he answer is in the negative. !hat thepetitioner did not le a motion for reconsideration inthe 8!( before coming to this (ourt did not precludetreating her petition as one for !ertiorari. !herequirement under :ection $ of 8ule = that there mustbe no appeal, or any plain or adequate remedy in theordinary course of law admits eCceptions. &n -ran!is!o

;otors Corporation v. Court o *ppeals,#++% the(ourt has recogni3ed eCceptions to the requirement,such as @a when it is necessary to prevent irreparabledamages and injury to a party @" where the trial judgecapriciously and whimsically eCercised his judgment@! where there may be danger of a failure of justice@d where an appeal would be slow, inadequate, andinsu"cient @e where the issue raised is one purely of law @ where public interest is involved and @g incase of urgency. !he allegations of the petitiondenitely placed the petitioners recourse under most, if not all, of the eCceptions.

Bas the petition timely ledS

&t was. !he petitioner received a copy of theorder dated 7ovember $), )) on 7ovember $=,)). -ursuant to :ection ? of 8ule =,#+?% she had until /anuary $?, )+, or days from 7ovember $=, )),within which to le a petition for !ertiorari. :he ledthe petition on /anuary ), )+,#+=% well within theperiod for her to do so.

Be also observe that the rule that a petition

should have been brought under 8ule = insteadof under 8ule ?= of the )ules o Court @or vi!e versa isnot inReCible or rigid.#+% !he inReCibility or rigidity of

application of the rules of procedure is eschewed inorder to serve the higher ends o justice. !hus, substance is given primacy over form, foit is paramount that the rules of procedure are notapplied in a very rigid technical sense, but used only tohelp secure, not override, substantial justice. &f atechnical and rigid enforcement of the rules is madetheir aim is defeated.#+9% Lerily, the strict application ofprocedural technicalities should not hinder the speedydisposition of the case on the merits.#+>% !o institute aguideline, therefore, the )ules o Court eCpresslymandates that the rules of procedure shall be liberallyconstrued in order to promote their objective osecuring a just, speedy and ineCpensive disposition ofevery action and proceeding.#+;%

III

M)r(< 1, 1999D(iio' o@ *<

MT"", 7i'; )lr):?')l )': (&*or,

(o&l: 'o* 7))il:F 'or (o&l:

i* (&*io' 7r*r)i':

!he respondents elevated to the (ourt the(A decision dated December , $;;; andresolution dated April $9, ) via a petitionfor !ertiorari @.8. 7o. $?+?=> entitled DamianaDaguno, et al. v. Court o *ppeals, etal. !he (ourt dismissed the petition on /uly $;), and the dismissal became nal andeCecutory on *ctober )) because the respondents did not timely le amotion for reconsideration. (onsequently, the4!(( rightly issued the writ of eCecution on April =). 5ased on the sheri<s return of service, thewrit of eCecution was duly served upon all thedeendants.

6nder the circumstances, the principle of

immutability of a nal judgment must now beabsolutely and unconditionally applied against therespondents. !hey could not anymore be permittedto interminably forestall the eCecution of the judgment through their interposition onew petitions or pleadings.#?% Even as their right toinitiate an action in court ought to be fullyrespected, their commencing :(A (ase 7o. $$$=)) in the hope of securing a favorableruling despite their case having been already fullyand nally adjudicated should notbe tolerated. !heir move should not frustrate the

enforcement of the judgment, the fruit and the endof the suit itself. !heir right as the losing partiesto appeal within the prescribed period could nodefeat thecorrelative right of the winning party toenjoy at last the nality of the resolutionof her case through eCecution and satisfaction othe judgment, which would be the life of the law#?$% !o frustrate the winning partysright through dilatory schemes is to frustrate althe e<orts, time and eCpenditure of the courtswhich thereby increases the costs of litigation. !heinterest of justice undeniably demanded that we

-rovisional 8emedies 8ule => :ection = ?)


























should immediately write nis to the litigation, forall courts are by oath bound to guard against anyscheme calculated to bring about the frustrationof the winning partys right, and to stop anyattempt to prolong controversies already resolvedwith nality.#?)%

&t is true that notwithstanding the principle

of immutability of nal judgments, equity stillaccords some recourse to a party adverselya<ected by a nal and eCecutory judgment,specically, the remedy of a petition to annul the judgment based on the ground of eCtrinsic fraudand lack of jurisdiction, or the remedy of a petitionfor relief from a nal order or judgment under 8ule+> of the )ules o Court .#?+% 1e may also have acompetent court stay the eCecution orprevent the enforcement of a nal judgmentwhenfacts and circumstances that render eCecutioninequitable or unjust meanwhile transpire#??% orwhen a change in the situation of the parties canwarrant an injunctive relief .#?=%

7either of such remaining equitable

remedies is available anymore to the respondents,

however, for the time for such remedies is nowpast. &ndeed, it is now high time for therespondents to bow to the judgment, and to accepttheir fate under it.

I

I&)'( o@ T!$ )':>ri* o@ prlii')r

pro<i7i*ori'=&'(*io' i p)*'*l

>i*<o&* 7)i )':+iol)*: *<

r&ir'* o@ *<+ules of ourt )':

=&ripr&:'(

At this juncture, we nd and declarethat the 8!( /udges issuance of the assailedorder dated 7ovember $), )) granting therespondents application for the writ of preliminaryprohibitory injunction constituted manifestly graveabuse of discretion.

A.

!po':'* <): 'o i*i'; ri;<* +iol)*:7 *< ipl'*)*io' o@ *< >ri* o@

(&*io'

enerally, injunction, being a preservativeremedy for the protection of substantive rights orinterests, is not a cause of action in itself butmerely a provisional remedy, an adjunct to a mainsuit. &t is resorted to only when there is a pressingnecessity to avoid injuriousconsequences that cannot be redressed under anystandard of compensation. !he controlling reasonfor the eCistence of the judicial power to issue thewrit of injunction is that the court may therebyprevent a threatened or continuous irremediable

injury to some of the parties before their claimscan be thoroughly investigated and advisedlyadjudicated. !he application for the writ rests uponan alleged eCistence of an emergency or of aspecial reason for such an order to issue before thecase can be regularly heard, and the essentiaconditions for granting such temporary injunctiverelief are that the complaint allegesfacts that appear to be su"cient to constitute acause of action for injunction and that on the entireshowing from both sides, it appears, in view of althe circumstances, that the injunction is reasonablynecessary to protect the legal rights of plainti<pending the litigation.#?%

A writ of preliminary injunction is an eCtraordinaryevent and is the strong arm of equity or a transcendentremedy. &t is granted only toprotect a!tual and e%isting substantial rightsBithout a!tual and e%isting rights on the part of theapplicant, and in the absence of facts bringing thematter within the conditions for its issuance, theancillary writ must be struck down for being issued ingrave abuse of discretion. !hus, injunction will noissue to protect a right not in esse, which is merely

contingent, and which may never arise, or to restrainan act which does not give rise to a cause of action. #?9%

1ere, the respondents did not establish the

eCistence of an actual right to be protected byinjunction. !hey did not, to begin with, hold anyenforceable claim in the property subject of the 4!((decision and of the writ of eCecution. !he 4emorandaand investigative report, whereby the DE78 appearedto classify the property as foreshore land, conferredupon the respondents no interest or right in the land6nder all circumstances, the classication was not asupervening event that entitled them to the protectionof the injunctive relief. !heir claim to any right as ofthen was merely contingent, and was something that

might not even arise in the future. :imply stated, theycould not lay proper claim to the land before the :tatehas taken a positive act of rst properly classifying theland as foreshore land and the courts have rstconclusively determined and adjudged the ownershipin their favor in a suit brought for the purpose. Bithoutthe :tates positive act of classication and the courtsadjudication, all that the respondents had was aninchoate eCpectation that might not at all materiali3eespecially if we consider that the petitioner wasalready the registered owner of the same property, asevidenced by her e%isting and valid transfer certicateof title covering the land @a fact that they themselvesadmitted and acknowledged,#?>% for which she enjoyed

the indefeasibility of a !orrens title.#?;%

-resumably well aware that the respondents heldabsolutely no valid and eCisting right in the land, the8!( /udge had plainly no factual and legal bases forenjoining the enforcement of the writ of eCecutionthrough the !8* and the writ of preliminary injunction1e obviously acted arbitrarily and whimsically, becauseinjunction protected only an e%isting rightor a!tual interest in property. !hus, he was guilty ocommitting manifestly grave abuse of discretion, and

-rovisional 8emedies 8ule => :ection = ?+






















compounded his guilt by stopping the enforcement of anal and eCecutory decision of the 4!((.

6.T!$ )': >ri* o@ prlii')r pro<i7i*or

i'=&'(*io'>r >ro';@&ll i&: @or )' i':?'i* prio:

Be further note that the 8!( /udge eCpresslymade the !8* e<ective until urther orders romhim. 1e thereby contravened eCplicit rules of procedure. 1e knowingly did so, considering that hethereby disregarded the nature and purpose of the !8*as a temporary and limited remedy, instead of apermanent and unrestricted relief. 1e disregarded:ection =, 8ule => of the )ules o Court , whicheCpressly stated that the life span of a !8* was only) days from service of the !8* on the party or personsought to be enjoined. (onsidering that the limited lifespan of a !8* was a long'standing and basic rule of procedure, he consciously arrogated unto himself apower that he did not have. &gnoring a rule aselementary as the )'day life span of a !8* amountedto gross ignorance of law and procedure. 1is violation

is seemingly made worse by the fact that he therebyusurped the authority of the (ourt as the only courtwith the power to issue a !8* e<ective until urther orders.#=%

Due to its lifetime of only ) days from service

on the party or person to be enjoined, the !8* that the8!( /udge issuedautomati!ally e%pired on thetwentieth day without need of any judicial declarationto that e<ect. Het,

by making the !8* e<ective until urther orders, hemade the e<ectivity of the !8* indenite. 1e thus tookfor granted the caution that injunction, as the strong

arm of equity,#=$% should not be routinely or lightlygranted. Again, restraint was required of him, for thepower to issue injunctions should be eCercisedsparingly, with utmost care, and with great caution anddeliberation. !he power is to be eCercised only wherethe reason and necessity therefor are clearlyestablished, and only in cases reasonably free fromdoubt.#=)% 0or, it has been said that there is no powerthe eCercise of which is more delicate, requires greatercaution and deliberation, or is more dangerous in adoubtful case, than the issuing of an injunction.#=+%

/HE!E$!E, we G!ANT the petitionfor !ertiorari.

Be NULLI and #ET A#IDE the writ o

preliminary prohibitory injunction issued on 7ovember$), )) for being devoid of legal and factual basesand DI!E"T the 8egional !rial (ourt, 5ranch ?>, in5acolod (ity to dismiss :(A (ase 7o. $'$$=)).

-residing /udge orgonio /. Hbae3 of the

8egional !rial (ourt, 5ranch ?>, in 5acolod (ityis $!DE!ED T$ #H$/ "AU#E in writing within tendays from notice why he should not be administrativelysanctioned for gross ignorance of the law andprocedure for his manifest disregard of the prohibitionunder the )ules o Court against unwarrantedrestraining orders and writs of injunction, and foissuing a temporary restraining order e<ective untifurthers of the court.

(osts of suit to be paid by the respondents. #$$!DE!ED.









provisional remedies rule 58 section 5

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