Bonos por Pagar (Continuación) Hydro Caisán, S. A

A preliminary injunction or TRO may be granted only when: 1. The application in the action or proceeding is verified,

and shows facts entitling the applicant to the relief demanded; and

2. Unless exempted by the court the applicant files with the court where the action or proceeding is pending, a bond executed to the party or person enjoined, in an amount to be fixed by the court (Sec. 4, Rule 58). 3. When an application for a writ of preliminary

injunction or a TRO is included in a complaint or any initiatory pleading, the case, if filed in a multiple-sala court, shall be raffled only after notice to and in the presence of the adverse party or the person to be enjoined. In 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 applicant’s affidavit and bond, upon the adverse party in the Philippines. However, where the summons could not be served personally or by substituted service despite diligent efforts, or the adverse party is a resident of the Philippines temporarily absent therefrom or is a nonresident thereof, the requirement of prior or contemporaneous service of summons shall not apply. 4. The application for a TRO shall thereafter be acted

upon only after all parties are heard in a summary hearing which shall be conducted within 24 hours after the sheriff’s return of service and/or the records are received by the branch selected by raffle and to which the records shall be transmitted immediately.

Contemporaneous service of summons in Preliminary Injunction

GR: The enforcement of the writ of preliminary injunction must be preceded by or simultaneously accompanied by service of summons, copy of complaint, application and affidavits for the preliminary injunction and the bond upon the adverse party.

XPNs: Where the summons could not be served personally or by substituted service despite diligent efforts, or the adverse party is a resident of the Philippines temporarily absent therefrom or is a nonresident thereof, the requirement of prior or contemporaneous service of summon shall not apply(Sec. 4(c), Rule 58).

Q: S.P. Corporation filed a complaint for Recovery of Property with application for temporary restraining order and/or preliminary injunction against the heirs of Mr. B. The case was then raffled to Branch 253 of RTC of Las Piñas. Mr. G, one of the heirs of Mr. B, filed an Omnibus Motion praying for another raffle of the case be held because the they were not able to receive any notice of raffle to which S.P. Corporation didn't oppose. S.P. Corporation then filed a Motion for Service of Summons by Publication on all the heirs of Mr. B except Mr. G

because the addresses could not be ascertained despite diligent inquiry. On the day of the raffle date requested by Mr. G both counsels where present however, the counsel of Mr. G opposed the said raffle for the reason that the other defendants where not duly notified.

When the case reached the Supreme Court, Mr. G contends that under §4(c), Rule 58, a case may be raffled only after notice to and in the presence of the adverse party. These requisites according to him are mandatory. Furthermore, he maintains that the latter part of the rule, which allows service of summons to be dispensed with in case the adverse party cannot be located despite diligent efforts, should not be isolated from other related provisions. Decide the case

A: Mr. G's argument is incorrect. Under par. 2 § 4 Rule 58, the required prior or contemporaneous service of summons may be dispensed with in the following instances: (a) when the summons cannot be served personally or by substituted service despite diligent efforts, (b) when the adverse party is a resident of the Philippines temporarily absent therefrom, or (c) when such party is nonresident. In such event, the notice of raffle and the presence of the adverse party must also be dispensed with. The requirement of notice of the raffle to the party whose whereabouts are unknown does not apply because the case will have to be raffled first before the court can act on the motion for leave to serve summons by application (Gonzalo R. Gonzales v.

State Properties Corporation G.R. No. 140765 January 25, 2001).

Ex parte writ of preliminary injunction

No preliminary injunction shall be granted without hearing and prior notice to the party or person sought to be enjoined. The reason is that a preliminary injunction may cause grave and irreparable injury to the party enjoined.

NOTE: If it shall appear from facts shown by affidavits or by the

verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice, the court may issue ex parte a TRO.

If the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of a multiple-sala court or the presiding judge of a single-sala court may issue ex parte a temporary restraining order effective for only 72 hours from issuance but he shall immediately comply with the provisions as to service of summons and the documents to be served therewith. Thereafter, within the aforesaid 72 hours, the judge before whom the case is pending shall conduct a summary hearing to determine whether the temporary restraining order shall be extended until the application for preliminary injunction can be heard. In no case shall the total period of effectivity of the temporary restraining order exceed 20 days, including the original seventy-two hours provided herein.

In 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.

Trial Court cannot issue a writ of preliminary injunction based solely on the applicant’s evidence. The trial court commits grave abuse of discretion when it issues such writ prior to the termination of the presentation of evidence by the party against

whom the injunction shall be issued. The order to show cause why the injunction should not be granted as stated in Sec. 5, Rule 58 of the Rules of Court is precisely directed to such party, not on the injunction’s applicant (Lee v. CA, G.R. No. 147191, July 27, 2006). Instances when a writ of preliminary injunction may be issued

1. In petitions for relief from judgment entered through FAME

2. In petitions for certiorari, prohibition, and mandamus; 3. In actions for annulment of judgments obtained

through fraud

4. In actions for annulment of judgment which are not patent nullity (i.e..want of jurisdiction, lack of due process of law) (BancoEspanol v. Palanca, 37 Phil.

921).

5. To restrain continued breach of valid negative obligation

6. To enjoin repeated trespass on land

7. To restrain city from proceeding with abatement of nuisance per accidens before it has been judicially declared as such

8. To restrain voting of disputed shares of stocks 9. To restrain sheriff from selling property on execution

not belonging to judgment debtor

Issuance of writ of injunction to enjoin criminal prosecution

GR: Public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society.

XPNs:

1. To afford adequate protection to the constitutional rights of the accused (Hernandez v. Albano, et al., L- 19272, January 25, 1967, 19 SCRA 95).

2. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions (Dimayuga, et al. v. Fernandez, 43 Phil. 304; Hernandez

v. Albano, supra; Fortun v. Labang, et al., L-38383, May

27, 1981, 104 SCRA 607).

3. When there is a pre-judicial question which is subjudice (De Leon v. Mabanag, 70 Phil. 202).

4. When the acts of the officer are without or in excess of authority (Planas v. Gil, 67 Phil. 62)

5. Where the prosecution is under an invalid law, ordinance or regulation (Young v. Rafferty, 33 Phil. 556; Yu Cong Eng v. Trinidad, 47 Phil. 385, 389) 6. When double jeopardy is clearly apparent (Sangalang

v. People and Avendia, 109 Phil. 1140)

7. Where the court has no jurisdiction over the offense (Lopez v. City Judge, L-25795, October 29, 1966, 18 SCRA 616)

8. Where there is a case of persecution rather than prosecution (Rustia v. Ocampo, CA-G.R. No. 4760, March 25, 1960)

9. Where the charges are manifestly false and motivated by the lust for vengeance (Recto v. Castelo, 18 L.J. [1953], cited in Rañoa v. Alvendia, CA-G.R. No. 30720- R, October 8, 1962; Cf. Guingona, et al. v. City Fiscal, L- 60033, April 4, 1984, 128 SCRA 577)

10. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied (Salonga v. Paño, et al., L-59524, February 18, 1985, 134 SCRA 438)

11. Preliminary injunction has been issued by the SC to prevent the threatened unlawful arrest of petitioners (Rodriguez v. Castelo, L-6374, August 1, 1953, People

of the Philippines v. Grey, G.R. No. 180109, July 26, 2010).

Second application for preliminary injunction

A second application for injunction, which rests in the sound discretion of the court, will ordinarily be denied

unless it is based on facts unknown at the time of the first

application (Reyes v. Court of Appeals and Sun Life

Insurance Office, Ltd., G.R. No. 87647, May 21, 1990). Actions where preliminary injunction will not lie

1. Against Department of Public Works and Highways to stop government infrastructure projects (Secs. 3 & 4,

RA 8975; PD 1818) XPNs:

a. Extreme urgency

b. Matter involves a constitutional issue c. Grave injustice and irreparable injury will arise d. Supreme Court may issue the writ of preliminary

injunction

NOTE: Only the SC may issue injunction against the

government, officials or any person or entity whether public or private acting under the government direction, to restrain, prohibit, or compel acts pursuant to the implementation and completion of infrastructure projects(Sec 3, RA 8975).

2. Act/s perpetrated outside the inferior courts’ territorial jurisdiction

3. Against judgments of coordinate courts and quasi- judicial bodies of equal rank

4. Issuance will effectively dispose of the main case without trial and/or due process (Boncodin v. Nat’l

Power Corporation Employees Consolidated Union, G.R. No. 162716, September 27, 2006).

5. Labor disputes

6. In issuance of licenses, concessions as to disposition, exploitation, utilization, exploration and/or development of natural resources (Sec. 1, P.D. 605) 7. Implementation of Comprehensive Agrarian Reform

Program, collection of taxes, criminal prosecutions 8. GR: Mandatory foreclosure of a mortgage by a

government financial institution (Sec. 2, P.D. 385) XPN: After hearing, it is established that 20% of outstanding arrearages is paid after the filing of the foreclosure proceedings

9. GR: Act/s sought to be enjoined already consummated XPN: Acts which are continuing in nature and were in derogation of plaintiff’s rights at the outset, preliminary mandatory injunction may be availed of to

restore the parties to the status quo (Dayrit v. De Los

Santos, 18 Phil 275).

10. GR: To transfer the property in litigation from the possession of one party to another where the legal title is in dispute and the party having possession asserts ownership thereto (Almeida v. CA and Sy, G.R.

No. 159124, January 17, 2005).

XPN: Forcible entry and unlawful detainer cases – preliminary mandatory injunction may be issued (Sec. 15,

Rule 70)

11. Generally, injunction will not be granted to take property out of the possession of one party and place it in another whose title not clearly established; 12. When action for damages would adequately

compensate injuries caused (Golding v. Balatbat, 36

Phil. 941).

13. To prevent directors from discharging their offices and restoring former directors;

14. To restrain criminal prosecution where the Ombudsman had authorized the Special prosecutor to conduct a preliminary investigation or to file an injunction.

15. Generally, injunction does not lie to restrain the enforcement of a law alleged to be unconstitutional except if it will result in injury to rights in private property (J.M Tuazon v. Co. et. al.,G.R. No. L-18128

December 26, 1961).

16. GR: Restrain collection of taxes (Valley Trading v. CFI

of Isabela, G.R. No. L-49529, March 31, 1989)

XPN: There are special circumstances that bear the existence of irreparable injury (Churchill & Tait v.

Ratterty, G.R. No. L-10572, December 21, 1915). GROUNDS FOR ISSUANCE OF PRELIMINARY INJUNCTION Ground for the issuance of preliminary injunction

1. That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts either for a limited period or perpetually;

2. That the commission, continuance or non-

performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or

3. That a party, court, agency or a person is doing,

threatening, or is attempting to do, or is procuring or suffering to be done some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual (Sec. 3, Rule 58).

Requisites of preliminary injunction whether mandatory or prohibitory injunction

1. The applicant must have a clear and unmistakable right, that is a right in esse;

2. There is a material and substantial invasion of such right;

3. There is an urgent need for the writ to prevent irreparable injury to the applicant; and

4. No other ordinary, speedy, and adequate remedy exists to prevent the infliction of irreparable injury

(Marquez v. Sanchez, G.R. No. 141849, February 13, 2007).

GROUNDS FOR OBJECTION TO, OR FOR THE DISSOLUTION