Posibles efectos adversos

G.R. No. 92813, July 31, 1991, Regalado, J.

When the attachment is challenged for having been illegally or improperly issued, there must be a hearing with the burden of proof to sustain the writ being on the attaching creditor. That hearing embraces not only the right to present evidence but also a reasonable opportunity to know the claims of the opposing parties and meet them.

Facts:

Private respondent BPI sued petitioners Peroxide Philippines Corporation, Eastman Chemical Industries, Inc., and the spouses Mapua before the CFI for the collection of an indebtedness of Peroxide wherein Eastman and spouses Mapua bound themselves to be solidarily liable. Upon the filing of said action after BPI filed an attachment bond, Judge Pineda of the said the trial court ordered the issuance of a writ of preliminary attachment on the properties of the petitioners. Eastman and spouses Mapua moved to lift the attachment.

Consequently, BPI filed the a motion to set for hearing for the motion to lift attachment and its opposition. Judge Pineda denied the motion to set for hearing filed by BPI and granted the lifting of the attachment. The motion for reconsideration for such decision filed by BPI was re-assigned to Judge Reyes, to which the said Judge ruled upholding the writ of attachment.

However, it appears that in the course of the appeal of Peroxide before the CA, the RTC issued an order suspending the writ of preliminary attachment pursuant to the an ex parte motion filed by it. The CA and SC thereafter ruled affirming the issuance of the preliminary attachment.

Issue:

Whether or not the writ of attachment was validly lifted and suspended.

Ruling:

No. When the attachment is challenged for having been illegally or improperly issued, there must be a hearing with the burden of proof to sustain the writ being on the attaching creditor. That hearing embraces not only the right to present evidence but also a reasonable opportunity to know the claims of the opposing parties and meet them. The right to submit arguments implies that opportunity, otherwise the right would be a barren one. And, as provided by Section 13 of Rule 57, the attaching creditor should be allowed to oppose the application for the discharge of the attachment by counter-affidavit or other evidence, in addition to that on which the attachment was made.

Respondent court was, therefore, correct in holding that the attachment of the properties of Eastman and the Mapuas remained valid from its issuance since the judgment had not been satisfied, nor has the writ been validly discharged either by the filing of a counter-bond or for improper or irregular issuance. The ex parte discharge or suspension of the attachment is a disservice to the orderly administration of justice and nullifies the

underlying role and purpose of preliminary attachment in preserving the rights of the parties pendente lite as an ancillary remedy. Thus, the order of suspension of the trial court was void.

Preliminary Injunction

CONCHITA CARPIO MORALES, in her capacity as the Ombudsman, v. COURT OF APPEALS (SIXTH DIVISION) and JEJOMAR ERWIN S. BINAY, JR.

G.R. Nos. 217126-27, November 10, 2015, Perlas-Bernabe, J.

The issuances of TRO and WPI, which are, by nature, provisional reliefs and auxiliary writs created under the provisions of the Rules of Court, are matters of procedure which belong exclusively within the province of the Court.

Facts:

A complaint was filed before the Office of the Ombudsman against Binay, Jr. and other public officers and employees of the City Government of Makati, accusing them of Plunder and violation of RA No. 3019. Pursuant to this, the Ombudsman issued a preventive suspension order, placing Binay, Jr., et al. under preventive suspension for not more than six (6) months without pay. Consequently, Binay, Jr. filed a petition for certiorari before the CA seeking the nullification of the preventive suspension order, and praying for the issuance of a TRO and/or WPI to enjoin its implementation. The CA granted the application for TRO, and subsequently issued a WPI.

Hence, the Ombudsman filed this present petition assailing the issuance of the TRO on the ground of lack of jurisdiction. First, the Ombudsman argues that Section 14 of RA 6770, or "The Ombudsman Act of 1989," states that no injunctive writ could be issued to delay the Ombudsman's investigation unless there is prima facie evidence that the subject matter thereof is outside the latter's jurisdiction. Second, it contends that it was inappropriate for the CA to have considered the condonation doctrine in the issuance of the injunctive writ since it was a matter of defense which should have been raised and passed upon by her office during the administrative disciplinary proceedings.

Issues:

1. Whether or not the CA can not issue a TRO and/or WPI against the Ombudsman on the ground of Section 14 of RA 6770.

2. Whether or not the CA is correct in considering the condonation doctrine in issuing the injunctive relief.

3. Whether or not the CA gravely abused its discretion in applying the condonation doctrine in issuing the injunctive writ.

Ruling:

1. No. The power to promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts belongs exclusively to the Supreme Court. Pursuant to this, Section 9(1), Chapter I of BP 129 provides that the Court of Appeals shall exercise original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and auxiliary writs or processes, whether or not

in aid of its appellate jurisdiction. This jurisdiction is not only original but also concurrent with the RTC and the SC.

With these considerations in mind, when Congress passed Section 14 of RA 6770, it took away from the courts their power to issue a TRO and/or WPI to enjoin an investigation conducted by the Ombudsman. This encroached upon the Court's constitutional rule-making authority. Clearly, these issuances, which are, by nature, provisional reliefs and auxiliary writs created under the provisions of the Rules of Court, are matters of procedure which belong exclusively within the province of the Court.

2. Yes. The CA was not precluded from considering condonation doctrine given that it was material to the propriety of according provisional injunctive relief. Thus, since condonation was duly raised by Binay, Jr. in his petition, the CA did not err in passing upon the same at least for the purpose of issuing the subject injunctive writs.

3. No. It is well-settled that an act of a court or tribunal can only be considered as with grave abuse of discretion when such act is done in a capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction.

The CA's resolutions directing the issuance of the assailed injunctive writs were all hinged on cases enunciating the condonation doctrine. Thus, by merely following settled precedents on the condonation doctrine, which at that time, unwittingly remained good law, it cannot be concluded that the CA committed a grave abuse of discretion based on its legal attribution above. Accordingly, the WPI against the Ombudsman's preventive suspension order was correctly issued.

When preliminary injunction improper

BANK OF THE PHILIPPINE ISLANDS v. HON. JUDGE AGAPITO L. HONTANOSAS, JR., Regional Trial Court, Branch 16, Cebu City, SILVERIO BORBON, SPOUSES XERXES

and ERLINDA FACULTAD, and XM FACULTAD & DEVELOPMENT CORPORATION G.R. No. 157163, June 25, 2014, Bersamin, J.

Injunction should not issue except upon a clear showing that the applicant has a right in esse to be protected, and that the acts sought to be enjoined are violative of such right. A preliminary injunction should not determine the merits of a case, or decide controverted facts, for, being a preventive remedy, it only seeks to prevent threatened wrong, further injury, and irreparable harm or injustice until the rights of the parties can be settled.

Facts:

Respondents Spouses Borbon, Spouses Xerxes and Erlinda Facultad,and XM Facultad and Development Corporation commenced a case to seek the declaration of the nullity of the promissory notes,real estate and chattel mortgages and continuing surety agreement they had executed in favor of the petitioner. They further applied for a writ of preliminary injunction to prevent the petitioner BPI from foreclosing on the mortgages against their properties. BPI filed its opposition to the issuance of the writ of preliminary injunction contending that the foreclosure of the mortgages was within its legal right to do. However, the RTC issued the writ of preliminary injunction. This was affirmed by the CA.

Issue:

Whether or not the issuance of the writ of preliminary injunction against BPI was in order.

Ruling:

No. The conditions for the issuance of the injunctive writ are: (a) that the right to be protected exists prima facie; (b) that the act sought to be enjoined is violative of that right;

and (c) that there is an urgent and paramount necessity for the writ to prevent serious damage. An injunction will not issue to protect a right not in esse, or a right which is merely contingent and may never arise; or to restrain an act which does not give rise to a cause of action; or to prevent the perpetration of an act prohibited by statute. Indeed, 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.

In this case, the issuance of the writ of preliminary injunction upon the application of the respondents was improper. The respondents had admittedly constituted the real estate and chattel mortgages to secure the performance of their loan obligation, as such, they were fully aware of the consequences on their rights in the properties given as collaterals should the loan secured be unpaid. Thus, the foreclosure of the mortgages would be the remedy provided by law for the mortgagee to exact payment.

Receivership

MILA CABOVERDE TANTANO and ROSELLER CABOVERDE v. DOMINALDA ESPINA-CABOVERDE, EVE CABOVERDE-YU, FE CABOVERDE-LABRADOR, and JOSEPHINE E.

CABOVERDE

G.R. No. 203585, July 29, 2013, Velasco, Jr., J.

Even in cases falling Sec. 1(d) of Rule 59 on receivership, it is essential that there is a clear showing that there is imminent danger that the properties sought to be placed under receivership will be lost, wasted or injured.

Facts:

Eve and Fe Caboverde sought to annul the deed of sale allegedly executed by their parents in favor of two of their siblings, Mila and Roseller. Their mother, Dominalda declared that there was never a sale of parcels of land and that she intended to divide all their properties equally among their children.

The lower court approved the Partial Settlement Agreement, leaving three contested properties for further proceedings in the main case. Fearing that the contested properties would be squandered, Dominalda filed an application for receivership. She insisted that unless a receiver is appointed by the court, the income or produce from these properties is in grave danger of being totally dissipated, lost and entirely spent solely by Mila. The RTC approved the application for receivership. It held that placing the disputed properties under receivership would ensure that Dominalda would receive her share in the income which she supposedly needed in order to pay for her medicines.

Issue:

Whether or not the application for Receivership must be sustained.

Ruling:

No. Based on the allegations in her application, it appears that Dominalda sought receivership mainly because she considers this the best remedy to ensure that she would receive her share in the income of the disputed properties. Much emphasis has been placed on the fact that she needed this income for her medical expenses and daily sustenance. But it can be gleaned from her application that, aside from her bare assertion that petitioner Mila solely appropriated the fruits and rentals earned from the disputed properties in connivance with some of her siblings, Dominalda has not presented or alleged anything else to prove that the disputed properties were in danger of being wasted or materially injured and that the appointment of a receiver was the most convenient and feasible means to preserve their integrity.

Nature of replevin

ADVENT CAPITAL AND FINANCE CORPORATION v. NICASIO I. ALCANTARA and EDITHA I. ALCANTARA

G.R. No. 183050, January 25, 2012, Abad, J.

Upon the dismissal of the replevin case for failure to prosecute, the writ of seizure, which is merely ancillary in nature, becomes functus officio and should be lifted.

Facts:

Advent filed for corporate rehabilitation with the RTC. The rehabilitation court approved the rehabilitation plan submitted by Advent. The car which was in possession of Advent’s former president, Young, was included in the inventory of the assets of Advent.

The trial court issued a writ of seizure when Advent filed a replevin case. Upon receipt of the Writ of Seizure, Young turned over the car to Advent, which delivered the same to the rehabilitation receiver. However, the trial court dismissed the replevin case for Advent’s failure to prosecute.

Young prayed that Advent return the subject car and pay him P1.2 million in damages or the improper and irregular seizure of the subject car, to be charged against the replevin bond posted by Advent.

The Court of Appeals ruled in favor of Young. It held that upon dismissal of the case by the trial court, the writ of seizure issued as an incident of the main action (for replevin) became functus officio and should have been recalled or lifted. Since there was no adjudication on the merits of the case, the issue of who between has the better right to possess the car was not determined. As such, the parties should be restored to their status immediately before the institution of the case.

Issue:

Whether or not the seized car must be returned to Young.

Ruling:

Yes. The Court agrees with the Court of Appeals in directing the trial court to return the seized car to Young since this is the necessary consequence of the dismissal of the replevin case for failure to prosecute without prejudice. Upon the dismissal of the replevin case for failure to prosecute, the writ of seizure, which is merely ancillary in nature, became functus officio and should have been lifted. There was no adjudication on the merits, which means that there was no determination of the issue who has the better right to possess the subject car. Advent cannot therefore retain possession of the subject car considering that it was not adjudged as the prevailing party entitled to the remedy of replevin.

Contrary to Advent's view, Olympia International Inc. v. Court of Appeals applies to this case. The dismissal of the replevin case for failure to prosecute results in the restoration of the parties status prior to litigation, as if no complaint was filed at all. To let the writ of seizure stand after the dismissal of the complaint would be adjudging Advent as the prevailing party, when precisely no decision on the merits had been rendered. Accordingly, the parties must be reverted to their status quo ante. Since Young possessed the subject car before the filing of the replevin case, the same must be returned to him, as if no complaint was filed at all.

Declaratory relief treated as prohibition

RENATO V. DIAZ and AURORA MA. F. TIMBOL v. THE SECRETARY OF FINANCE and THE COMMISSIONER OF INTERNAL REVENUE

G.R. No. 193007, July 19, 2011, Abad, J.

There are precedents for treating a petition for declaratory relief as one for prohibition if the case has far-reaching implications and raises questions that need to be resolved for the public good.

Facts:

Diaz and Timbol filed a petition for declaratory relief assailing the impending imposition of VAT on the collection of tollway operators.

The Court issued a temporary restraining order enjoining the implementation of the VAT. Later, the Court issued another resolution treating the petition as one for prohibition.

The government contends that the petition does not meet the requirements of Rule 65 for actions for prohibition since the BIR did not exercise judicial, quasi-judicial, or ministerial functions when it sought to impose VAT on toll fees. Besides, petitioners Diaz and Timbol has a plain, speedy, and adequate remedy in the ordinary course of law against the BIR action in the form of an appeal to the Secretary of Finance.

Issue:

Whether or not the Court may treat the petition for declaratory relief as one for prohibition

Ruling:

Yes. There are precedents for treating a petition for declaratory relief as one for prohibition if the case has far-reaching implications and raises questions that need to be resolved for the public good. The Court has also held that a petition for prohibition is a proper remedy to prohibit or nullify acts of executive officials that amount to usurpation of legislative authority.

Here, the imposition of VAT on toll fees has far-reaching implications. Its imposition would impact, not only on the more than half a million motorists who use the tollways everyday, but more so on the government’s effort to raise revenue for funding various projects and for reducing budgetary deficits. To dismiss the petition and resolve the issues later, after the challenged VAT has been imposed, could cause more mischief both to the tax-paying public and the government. A belated declaration of nullity of the BIR action would make any attempt to refund to the motorists what they paid an administrative nightmare with no solution. Consequently, it is not only the right, but the duty of the Court to take cognizance of and resolve the issues that the petition raises.

Function of writ of certiorari

ERNESTO B. FRANCISCO, JR. and JOSE MA. O. HIZON v. TOLL REGULATORY BOARD G.R. No. 166910, October 19, 2010, Velasco, Jr., J.

Verily, when an act of a branch of government is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute.

Facts:

To attract private sector involvement in the establishment of toll facilities, P.D. 1112 allowed the collection of toll fees for the use of certain public improvements. The Toll Regulatory Board (TRB) was established to fix initial toll rates from time to time. On the other hand, Philippine National Construction Corporation (PNCC) was granted a franchise to construct toll facilities.

The Government Corporate Counsel then allowed PNCC to enter into a joint venture agreements with private entities without going into public bidding. They executed a Memorandum of Understanding aimed at infusing private capital in the expansion of the expressways. The Memorandum states that the TRB prescribes the periodic toll rate adjustment. The Supplemental Toll Operation Agreement (STOA) includes provisions on initial toll rate and a built-in formula for adjustment of toll rates.

Petitioners Francisco and Hizon, as taxpayers and expressway users, seek to nullify the various STOAs and the corresponding TRB resolutions, fixing initial rates and/or

Petitioners Francisco and Hizon, as taxpayers and expressway users, seek to nullify the various STOAs and the corresponding TRB resolutions, fixing initial rates and/or