provisional remedies rule 58 section 5
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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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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.
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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
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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.$
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: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.
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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
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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
$. !he instant complaint be re'docketed as a
regular administrative case
). 8espondent #/udge% be meted a ne in the
amount of ve thousand pesos for gross
ignorance of the law and
+. !he rest of the charges against respondent
#/udge% be D&:4&::ED for being judicial in
nature.?
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!he evaluation and recommendation of the *(A are
well'taken, eCcept for the penalty.
!he 8ules of (ourt and Administrative (ircular 7o. )'
;== require the holding of a hearing where both parties
can introduce evidence and present their side before
the court may issue a !8* or an injunctive writ. :ection
= of 8ule => provides
:E(. =. Preliminary injun!tion not granted #ithout noti!e$ 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.
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[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 )), )$, a similar letter'
complaint was led by Atty. /ose omos on the same
ground that the respondent judge violated the hearing,
notice and jurisdictional requirements of the 8ules of
(ourt in issuing the questioned orders of 0ebruary )
and )>, )$.
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&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
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[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.#?%
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&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
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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.
#$ $!DE!ED.
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[$"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
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&&. !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$!E, the complaint is hereby D&:4&::ED folack of merit.
#$ $!DE!ED.
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G.!. No. 1845 J&' 28, 200
MIGUEL M. LLAM%$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.
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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
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: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%! !* 0&2E :-2. (&L&2 A(!&*7 7*. >)').
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@+.
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.
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!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.
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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
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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
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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,$; he or she
may decide to reconsider the self'inhibition and re
assume jurisdiction after a re'assessment of the
circumstances giving cause to the inhibition. !he
discretion to reconsider acknowledges that the tria
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judge is in the better position to determine the issue of
inhibition, and a reviewing tribunal will not disturb the
eCercise of that discretion eCcept upon a clear and
strong nding of arbitrariness or whimsicality.) !hus,
/udge DabalosI re'assumption of jurisdiction was legally
tenable, having come from his sei3ing the opportunity
to re'assess the circumstances impelling his self'
inhibition upon being faced with the urgent need to
hear and resolve (5:Is application for preliminary
injunction. :uch action was commendable on his part,given that the series of self'inhibitions by the other 8!(
/udges had left no competent judge in the station to
hear and resolve the application. &t can even be rightly
said that a refusal by /udge Dabalos to re'assess and
reconsider might have negated his sacred and sworn
duty as a judge to dispense justice.
&n this connection, the urgency for the 8!( to hear and
resolve the application for preliminary injunction
factually eCisted. &n fact, (5: had communicated it to
the (ourt in its letter dated 4arch =, )), )$ 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
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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.
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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.
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: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. $'$$=)) had no eCisting right to be protected byinjunction, because their right and cause of action werepremised on the future and contingent event that the
petitioners !(! 7o. !'==+ would be cancelledthrough a separate proceeding for the purpose and @!the writ of preliminary prohibitory injunction to enjointhe eCecution was issued long after the 4arch $9, $;;; judgment of the 4!(( had become nal and eCecutory.
I&
!he petition presents the following issues, to
wit
a. Bhether the present petition is aproper remedy to assail the7ovember $), )) order of the
8!( and". Bhether the 8!( lawfully issuedthe !8* and the writ of preliminaryprohibitory injunction to enjoin theeCecution of the already nal andeCecutory 4arch $9, $;;; decisionof the 4!((.
!&li';
Be give due course to the petition as a petition
for !ertiorari.
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!he 8!( was guilty of manifestly grave abuse
of discretion amounting to lack or eCcess of jurisdictionin taking cogni3ance of :(A (ase 7o. $'$$=)) 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
$. !hat it is directed against a
tribunal, board or o"cer eCercising judicial or quasi'judicial functions
). !hat such tribunal, board or o"cer
has acted without or in eCcess of jurisdiction or with grave abuse of discretion and
+. !hat there is no appeal nor any
plain, speedy and adequateremedy in the ordinary course of law.#)9%
Certiorari being an eCtraordinary remedy, the
party who seeks to avail of the same must strictlyobserve the rules laid down by law.#)>% !heeCtraordinary writ of !ertiorari may be availed of onlyupon a showing, in the minimum, that the respondenttribunal or o"cer eCercising judicial or quasi'judiciafunctions has acted without or in eCcess of its or his jurisdiction, or with grave abuse of discretion.#);%
0or a petition for !ertiorari and prohibition to
prosper and be given due course, it must be shownthat @a the respondent judge or tribunal issued theorder #ithout or in e%!ess o jurisdiction or #ith gravea"use o dis!retion or @" the assailed interlocutoryorder is patently erroneous, and the remedy of appea
cannot a<ord adequate and eCpeditious relief.#+%
Hetthe allegation that the tribunal, board or o"ceeCercising judicial or quasi'judicial functions has actedwithout or in eCcess of its or his jurisdiction or withgrave abuse of discretion will not alone su"ce. Equallyimperative is that the petition must satisfactorilyspecify the acts committed or omitted by the tribunalboard or o"cer that constitute grave abuse odiscretion.
Grave a"use o dis!retion means such
capricious or whimsical eCercise of judgment which is
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equivalent to lack of jurisdiction.#+$% !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
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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
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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.