SECTION 5 The office of a judge exists for one solemn end - to promote the ends of justice by administering
it speedily and impartially. The judge as the person presiding over that court is the visible
A.M. No. MTJ-02-1453 April 29, 2003
EDITHA PALMA GIL, complainant,vs. JUDGE FRANCISCO H. LOPEZ, JR., Municipal Circuit Trial
Court, Lupon, Davao Oriental, respondent.
A magistrate should dispose of the court's business promptly and decide cases within the required
periods. Delay in the disposition of cases erodes the faith and confidence 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. The public trust reposed
in a judge's office imposes upon him the highest degree of responsibility to promptly administer
justice.1
In an Affidavit-Complaint2 dated October 30, 2001, complainant Editha Palma Gil charged respondent
Judge Francisco H. Lopez, Jr. of the Municipal Circuit Trial Court of Lupon, Davao Oriental, with
Manifest Bias and Partiality, Undue Delay in the Disposition of Case and Ignorance of the Law.
Complainant alleged that she is the defendant in Civil Case No. 1110 for Forcible Entry and Damages
with Preliminary Prohibitory and Mandatory Injunction, entitled "Carlos Palen, Sr., Plaintiff versus
Editha Palma Gil, Defendant," pending before the sala of respondent judge; and that respondent failed
to render judgment therein within the thirty-day period required by Rule 70, Section 11 of the 1997
Code of Civil Procedure. She further averred that on October 9, 2001, the plaintiff in the said case filed
a motion for temporary restraining order, which respondent Judge granted on the same day, despite
procedural defects therein such as the lack of a verification, bond, and service of summons, all in
violation of Rule 58, Section 4 of the 1997 Rules of Civil Procedure. Complainant further assails the
manner in which the temporary restraining order was implemented with the assistance of policemen.
In his Comment dated March 1, 2002, respondent judge denied that there was a deliberate and
unreasonable delay in the resolution of Civil Case No. 1110. He alleged that aside from his court, he
had to hear the cases in the municipal courts in Governor Generoso and San Isidro, Davao Oriental
due to the inhibition of the presiding judges therein. Moreover, he alleged that the legal and factual
issues raised in Civil Case No. 1110 are complicated. Anent the alleged issuance of temporary
restraining order, respondent claims that what he issued was a status quo order because
complainant's men entered the land in dispute and attempted to prevent the harvesting of palay by
plaintiff. Finally, respondent states that he had to seek the assistance of the police to implement the
order because his court had no regular sheriff and because there were armed guards employed by
both parties.3
In compliance with our Resolution dated August 14, 2002, 4 both parties manifested their willingness to
submit the case on the basis of the pleadings filed.5
After evaluation, the Office of the Court Administrator (OCA) found respondent guilty of delay in the
rendition of judgment in Civil Case No. 1110 and erred in issuing a temporary restraining order despite
procedural defects. Hence, it recommended that respondent be fined in the amount of Ten Thousand
Pesos (P10,000.00).
We agree with the findings of the OCA, however, we find the recommended penalty to be not
commensurate with the gravity of respondent's misdeeds.
The reasons proffered by respondent judge, i.e., that he had to hear cases in the other courts, will not
excuse his delay in deciding Civil Case No. 1110.6 If he felt that he could not decide the case within the
reglementary period, he should have asked for a reasonable extension of time to decide the same. 7
representation of the law and justice.8Failure to resolve cases submitted for decision within the period
fixed by law constitutes a serious violation of the constitutional right of the parties to a speedy
disposition of their cases.9
Rules 1.02 of Canon 1 and 3.05 of Canon 3 of the Code of Judicial Conduct state:
Rule 1.02. - A judge should administer justice impartially and without delay. (Emphasis ours)
Rule 3.05. - A judge shall dispose of the court's business promptly and decide cases within
the required periods. (Emphasis ours)
Moreover, SC Administrative Circular No. 13-87 provides:
3. Judges shall observe scrupulously the periods prescribed by Article VIII, Section 15 of the
Constitution for the adjudication and resolution of all cases or matters submitted in their
courts. Thus, all cases or matters must be decided or resolved within twelve months from
date of submission by all lower collegiate courts while all other lower courts are given a
period of three months to do so. . . (Emphasis ours)
Along the same vein, SC Administrative Circular No. 1-88 states:
6.1 All Presiding Judges must endeavor to act promptly on all motions and interlocutory
matters pending before their courts. x x x .
Considering the summary nature of Civil Case No. 1110, which is an action for forcible entry, Rule 70,
Section 11 of the 1997 Rules of Summary Procedure expressly provides:
Period for rendition of judgment. - Within thirty (30) days after receipt of the affidavits and
position papers, or the expiration of the period for filing the same, the court shall render
judgment.
However, should the court find it necessary to clarify certain material facts, it may, during
the said period, issue an order specifying the matters to be clarified, and require the parties
to submit affidavits or other evidence on the said matters within ten (10) days from receipt of
said order. Judgment shall be rendered within fifteen (15) days after receipt of the last
affidavit or the expiration of the period for filing the same.
The court shall not resort to the foregoing procedure just to gain time for the rendition of
judgment. (Emphasis ours)
Thus, respondent judge is guilty of gross inefficiency for his failure to resolve and dispose of Civil Case
No. 1110 within the period prescribed by the Rules. The penalty for gross inefficiency ranges from
reprimand and admonition10 to removal from office11 and/or a fine.12
Respondent judge likewise erred in issuing the temporary restraining order. Rule 58, Section 4 of the
1997 Rules of Civil Procedure provides:
Verified application and bond for preliminary injunction or temporary restraining order. - A preliminary
injunction or temporary restraining order may be granted only when:
(a) The application in the action or proceeding is verified and shows facts entitling the applicant to the
relief demanded; and
(b) 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, to the
effect that the applicant will pay to such party or person all damages which he may sustain by reason of
the injunction or temporary restraining order if the court should finally decide that the applicant was not
entitled thereto. Upon approval of the requisite bond, a writ of preliminary injunction shall be issued.
(c) When 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 filed in a multiple-sala court shall be raffled to 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 contemporaneous service of summons shall not apply.
(d) The application for a temporary restraining order shall thereafter be acted upon only after all the parties
are heard in a summary hearing which shall be conducted within twenty-four (24) hours after the sheriff's
return of service and/or the records are received by the branch selected by raffle to which the records shall
be transmitted immediately.
The records reveal that the motion for temporary restraining order was not verified.13 Respondent
judge issued the Order on the same date when the motion was filed without prior notice to the
complainant and without a hearing.
The issuance of the assailed Order cannot be justified under Rule 58, Section 5 of the 1997 Rules of
Civil Procedure, which reads:
Preliminary injunction not granted without notice; exception. - No preliminary injunction shall be
grantedwithout hearing and prior notice to the person or party sought to be enjoined. If it shall appear from
the facts shown by the 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 to which the application for preliminary
injunction was made, may issue a temporary restraining order to be effective only for a period of twenty
(20) days from service on the party or person sought to be enjoined, except as herein provided. Within the
said twenty-day period, the court must order said party of person to show cause, at a specified 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.
However, and subject to the provisions of the preceding sections, 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 seventy-two (72) hours from issuance but he shall immediately comply with provisions of the next
preceding section as to service of summons and the documents to be served therewith. Thereafter, within
the aforesaid seventy-two (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 twenty (20) days, including the original seventy-two (72) hours
provided therein. (Emphasis and italics ours)
Aside from the lack of verification of the motion, no affidavits of the applicant and his witnesses were
appended thereto. Furthermore, the assailed Order did not specify the duration of the temporary
restraining order.
Respondent argues that considering that the complaint in Civil Case No. 1110 was verified and prayed
for the issuance of a preliminary and prohibitory injunction, the verification of the motion for issuance of
temporary restraining order may be dispensed with. We do not agree.
The Rules as above-quoted explicitly mandate that the application for injunction should be verified.
While 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.14
We see nothing wrong in respondent's act of securing the assistance of the police in implementing his
Order. Administrative Circular No. 12-85, paragraph 7 allows a judge to designate or deputize any
person to serve court processes and writs in remote areas in the absence of the regular sheriff thereat.
Furthermore, 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.
Considering the seriousness of the respondent judge's offenses, stiffer penalties should be imposed to
inculcate in him the value of being proficient in both substantive and procedural laws.
In Caas v. Castigador,15 we held:
Observance of the law which he is bound to know and sworn to uphold is required of every
judge. When the law is sufficiently basic, a judge owes it to his office to simply apply it;
anything less than that would be constitutive of gross ignorance of the law. In short, when
the law is so elementary, not to be aware of it constitutes gross ignorance of the law.
In 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.16 Hence, the imposition of a fine in the amount of
P20,000.00 is a more appropriate penalty.
WHEREFORE, based on the foregoing, respondent Judge Francisco H. Lopez, Jr. of the Municipal
Circuit Trial Court of Lupon, Davao Oriental, is found GUILTY of gross ignorance of the law and gross
inefficiency. He is ordered to pay a FINE in the amount of Twenty Thousand Pesos (P20,000.00) and is
STERNLY WARNED that a repetition of the same or similar acts shall be dealt with more severely. SO
ORDERED.
Lago vs. Abul (supra.)
A.M. No. RTJ-05-1901 November 30, 2006
FORTUNE LIFE INSURANCE, COMPANY, INC., represented by AMBROCIA G.
CANCIO, Complainant, vs. JUDGE JIMMY H. F. LUCZON, JR., Presiding Judge, Regional Trial
Court, Tuguegarao, Branch 1,Respondent.
For resolution is the administrative complaint filed by Fortune Life Insurance Company, Inc.
("complainant"), through its Senior Vice-President Ambrocia G. Cancio, against Jimmy H. F. Luczon,
Jr. ("respondent Judge"), Presiding Judge of the Regional Trial Court of Tuguegarao ("RTC-
Tuguegarao"), Branch 1. The charges are grave abuse of authority, gross ignorance of the law,
knowingly rendering an unjust order, and bias and partiality under Section 3, Rule 140 of the Revised
Rules of Court.
Complainant had sought the foreclosure of a real estate mortgage executed in its favor by Maria
Victoria Realty and Development Corporation ("MVRDC"). On 8 October 2003, however, MVRDC filed
a petition for annulment of real estate mortgage and accounting with prayer for the issuance of a
preliminary injunction and temporary restraining order ("petition") against complainant. The case was
filed before the RTC-Tuguegarao and docketed as Civil Case No. 6246. On the same day, RTC-
Tuguegarao Executive Judge Vilma T. Pauig ("Judge Pauig") issued a temporary restraining order
(TRO) enjoining complainant and the deputy sheriff from holding a foreclosure sale of MVRDCs real
properties on 10 October 2003. The TRO was to be effective for 72 hours. The clerk of court sent a
notice for the special raffle of the case on 13 October 2003.
On 13 October 2003, MVRDC filed a motion for the extension of the TRO ("motion for extension"), with
notice of hearing for 16 October 2003. On the latter date, after the raffle of the case to his sala,
respondent Judge issued an Order1 extending the TRO for another 17 days.
On 28 October 2003, respondent Judge issued the writ of preliminary injunction prayed for by MVRDC.
Respondent Judge had not yet conducted any hearing on the case. The injunction order reads:
Considering the fact that the temporary restraining order will expire on October 30, 2003 a date
appearing from the allegations of the motion[,] that irreparable injuries may result should the sheriff
pursue the foreclosure of the mortgage[,] the Court hereby grants the injunction subject however to a
bond which will answer for the damages which the defendants may suffer as a result of the injunction
and the bond is fixed at P300,000.00
This injunction will take effect upon filing of the bond and shall continue until further orders from this
Court.
The Sheriff and any of his deputies are hereby enjoined from enforcing the foreclosure of the mortgage
during the pendency of this injunction.
x x x x2
Complainant assailed the extension of the TRO and the issuance of the writ of preliminary injunction
"based purely on the unilateral allegations of MVRDC." Complainant argued that respondent Judge
should not have issued the TRO or writ without a summary hearing, especially considering that
MVRDCs petition lacked an affidavit of merit. Complainant asserted that it clearly had the right to
foreclose the mortgage. MVRDC defaulted in the payment of its loan, as shown by copies of
dishonored MVRDC checks totaling P3,165,810.3 Complainant pointed out that under the law, MVRDC
would have the right to redeem any of its foreclosed properties. Thus, according to complainant, there
was no extreme urgency, grave injustice or irreparable injury which would justify the injunction in
MVRDCs favor.
In its 1st Indorsement dated 2 March 2004, the Office of the Court Administrator (OCA) required
respondent Judge to file his comment and to show cause why he should not be sanctioned.
In his defense, respondent Judge claimed that he did not know personally the counsels of either party
to the case or any of their incorporators. Respondent Judge maintained that he dealt with the parties
on a professional level and he always acted fairly.
Respondent Judge claimed that complainant received a copy of the motion for extension, as shown by
a registry receipt posted on 13 October 2003. He granted the motion for extension in view of the
urgency of the case and to avoid irreparable injuries to MVRDC. Respondent Judge further claimed
that complainant received a copy of the Motion to Set Hearing for the Issuance of Preliminary
Injunction, as shown by a registry receipt posted on 17 October 2003. At any rate, respondent Judge
stressed, he already issued an order dissolving the writ of preliminary injunction on 18 March 2004
after complainant filed a motion to dissolve the writ and MVRDC had filed its comment to the motion.
In its evaluation of the allegations of both complainant and respondent Judge, the OCA stated:
The instant complaint is partly meritorious. Complainant stresses pertinent points to account for
respondents alleged culpability. A probe into each reveals that many of the issues raised are judicial in
nature. Save for one, the enumerated points warrant no culpability on the part of respondent Judge.
Complainant assails the supposed lack of an Affidavit of Merit. Viewed in the context of the actual
petition for preliminary injunction, this contention cannot be countenanced. The absence of an Affidavit
of Merit is not final where the petition itself, which is under oath, recites the circumstances or facts
which constitute the grounds of the petition.
Complainant also takes issue with the fact that it was not furnished a copy of the bond. Apparently, this
contention is premised on Section 7 of Rule 58, 1997 Rules of Civil Procedure, which in effect allows
the adverse party to "except to the sufficiency of the bond, or of the surety or sureties thereon." 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 raffle notification
were actually received by the complainant on 10 October 2003. In Caluya v. Ramos, the failure of the
defendants to furnish the adverse parties with copies of the bonds prior to their approval is not
sufficient to invalidate the orders dissolving the preliminary injunction where the attorneys for the latter
were notified of the filing of the first bond; where they ultimately received copies of the bonds; and
where they do not contend that said bonds are insufficient or that the sureties are not solvent.
Except for the allegation of lack of summary hearing, complainants charges against respondent Judge
should be dismissed for being judicial in nature. Essentially the same allegations were raised in the
Motion to Dissolve Writ of Preliminary Injunction. The complainant assails the wisdom of the assailed
Orders of respondent. However, it must be noted that the complainant has adequate remedy under the
Rules of Court to challenge said Orders. In fact, it filed a [m]otion to [d]issolve the [w]rit of [p]reliminary
[i]njunction which was eventually granted on 18 March 2004.
We submit, however, that the absence of summary hearing cannot be excused. The conduct of a
summary hearing is mandated under Section 5, Rule 58, 1997 Rules of Procedure x x x x.
The 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. In this case, respondent [Judge] twice
ignored this elementary requisite. First, he extended the TRO. Then, after its expiration, he converted
the same into a preliminary injunction. Both Orders were issued without conducting a summary
hearing. The rules on preliminary injunction plainly provide that it cannot be granted without notice to
the defendant.
When 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. Judges are duty-bound to be faithful to the law and the rules
and to maintain professional competence at all times. Their role in the administration of justice requires
a continuous study of the law, rules and jurisprudence, lest public confidence in the judiciary be eroded
by incompetence and irresponsible conduct.
x x x [I]t bears stressing that a writ of injunction is an extraordinary, peremptory remedy that should be
dispensed with circumspection, and both sides should first be heard whenever possible. In fact, judges
are enjoined to observe utmost caution, prudence and judiciousness in the issuance of [a] TRO and in
the grant of preliminary injunction. InVillanueva v. Court of Appeals, it was found that the issuance of
the assailed TRO was tainted with grave abuse of discretion for having been issued without prior notice
and hearing.
Under A.M. No. 01-8-10-SC, "Gross Ignorance of the Law or Procedure" is classified as [a] serious
offense for which the imposable sanction ranges from a fine to dismissal. However, we find
[respondent Judges] acts not ingrained with malice or bad faith. x x x x
Recommendation: Respectfully submitted for the consideration of the Honorable Court are the
recommendations that:
1. The instant complaint be re-docketed as a regular administrative case;
2. Respondent [Judge] be meted a fine in the amount of five thousand pesos for gross
ignorance of the law; and
3. The rest of the charges against respondent [Judge] be DISMISSED for being judicial in
nature.4
The evaluation and recommendation of the OCA are well-taken, except for the penalty.
The Rules of Court and Administrative Circular No. 20-955 require the holding of a hearing where both
parties can introduce evidence and present their side before the court may issue a TRO or an
injunctive writ. Section 5 of Rule 58 provides:
SEC. 5. Preliminary injunction not granted without notice; exception. No preliminary injunction
shall be granted without hearing and prior notice to the party or person sought to be enjoined. 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 to which the
application for preliminary injunction was made, may issue ex parte a temporary restraining order to be
effective only for a period of twenty (20) days from service on the party or person sought to be
enjoined, except as herein provided. Within the said twenty-day period, the court must order said
party or person to show cause, at a specified 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.
However, and subject to the provisions of the preceding sections, 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 seventy-two (72) hours from issuance but he shall immediately comply with the
provisions of the next preceding section as to service of summons and the documents to be served
therewith. Thereafter, within the aforesaid seventy-two (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 twenty
(20) days, including the original seventy-two hours provided herein. (Emphasis supplied)
Upon the application for a writ of preliminary injunction, where the matter is of extreme urgency and
grave injustice and irreparable injury will arise, the Executive Judge may issue ex parte a TRO effective
for 72 hours from issuance. Before the expiry of the 72 hours, the presiding judge to whom the case is
raffled shall conduct a summary hearing to determine whether the TRO can be extended until the
pending application for injunction can be heard.1wphi1
Evidently, the hearing of the motion for extension set on 16 October 2003 did not take place. All the
same, respondent Judge 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. Further compounding his error, respondent Judge failed to conduct a hearing on the
injunction within the 20-day life of the TRO, as prescribed by the Rules of Court. Yet he issued the
assailed injunction order against complainant. The injunction order did not even explain why no
hearings had taken place prior to its issuance.
Injunction is an extraordinary remedy to be resorted to when there is a pressing necessity to avoid
injurious consequences that cannot be remedied under any standard compensation.6 A court may
issue an injunction only if it is fully convinced of its extreme necessity and after it has complied with the
procedural requirements set by law.
In the absence of fraud, dishonesty or corruption, the acts of a judge in his judicial capacity are not
subject to disciplinary action.7 However, 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.8
Respondent Judges failure to abide by Section 5, Rule 58 and Administrative Circular No. 20-95
constitutes gross ignorance of the law for which he must be disciplined accordingly. 9 Under Rule 140 of
the Rules of Court, as amended by A.M. No. 01-8-10-SC, gross ignorance of the law is classified as a
serious charge and penalized with dismissal, suspension, or a fine ranging from above P20,000
to P40,000.
WHEREFORE, we find respondent Judge Jimmy H. F. Luczon, Jr. of the Regional Trial Court of
Tuguegarao, Branch 1, liable for GROSS IGNORANCE OF THE
LAW and FINE him P21,000. We STERNLY WARN him that a repetition of the same or similar act in
the future shall merit a more severe sanction. SO ORDERED.
Gomos vs. Adiong (supra)
A.M. No. RTJ-99-1506 August 9, 2001
JOSEFINA MERONTOS Vda. De SAYSON, complainant, vs. Judge OSCAR E. ZERNA, respondent.
A temporary restraining order (TRO) may be issued ex parte by an executive judge in matters of
extreme emergency, in order to prevent grave injustice and irreparable injury. Because such issuance
of a TRO shall be effective only for seventy-two hours therefrom, as provided under Administrative
Circular No. 20-95, the ex parteissuance of a 20-day TRO is unauthorized and may make the judge
administratively liable.1wphi1.nt
Before us is an administrative case arising from a verified Letter-Complaint1dated February 25, 1997,
filed by Josefina Merontos vda. de Sayson against Judge Oscar E. Zerna of the Regional Trial Court of
Lanao del Norte, Branch 7. In a letter2 dated March 3, 1997, Public Attorney II Vermin M. Quimco of
the Public Attorney's Office, Iligan City, endorsed the Complaint to then Court Administrator Alfredo L.
Benipayo. Attorney Quimco requested an investigation of the charged leveled against respondent;
namely, gross ignorance of the law, gross misconduct and grave abuse of authority.
The Facts
The facts of this case are as follows.
On June 7, 1996, respondent issued a Temporary Restraining Order3 in Civil Case No. 07-373 in favor
of the plaintiff, Napoleon Lee Sr.; and against the defendants Francisco Lumayag, Jose Bravo and
Ricardo Sayson as well as their agents, heirs and representatives. The Order directed defendants to
refrain from entering the parcel of land covered by OCT No. P-11750, registered under the plaintiff's
name in the Registry of Deeds of Lanao del Norte. The disputed lot, which is situated in Barangay
Gumagamot, Lala, Lanao del Norte, has an area of 10,741 sq.m. It is bounded southeast, southwest,
and northwest by the Gumagamot River, and northeast by the property claimed by herein complainant.
On June 9, 1996, the TRO was served upon complainant by Deputy Sheriff Conrado Hingco Jr., who
thereafter entered her two-hectare fishpond and harvested prawn and fish products from it.
In her verified Letter-Complaint, complainant sought injunction and damages from respondent, whom
she charged with bad faith in the issuance of the TRO without notice and hearing. She claims that the
TRO 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 Supreme Court Circular No. 20-95 prohibiting judges from issuing Temporary Restraining Orders
(TROs) without the observance of the mandatory requirement of notice and summary hearing of the
parties concerned." In her words:
"That on or about the second week of June 1996, while he was actually acting and
performing his functions and duties as [p]residing [j]udge of RTC Branch 07, Tubod, Lanao
del Norte, with apparent and manifest bias in favor of the plaintiff in Civil Case No. 07-373,
in the person of Napoleon Lee Sr., and with patent violation and disregard of the
constitutional right of due process of the undersigned who is not even a party to the case,
said Judge Oscar Zerna, wilfully, wrongfully, and if not with gross ignorance of the
constitution and pertinent law, and clear disregard and disobedience to Supreme Court
Circular No: 20-95 prohibiting judges from issuing Temporary Restraining Orders (TROs)
without the observance of the mandatory requirement of notice and summary hearing of the
parties concerned, did actual[ly] issue and promulgate a temporary restraining order. A
certified copy of said restraining order which would speak for itself is hereto attached as
Annex A of this verified complaint.
"That is the very same temporary restraining order utilized by Sheriff Conrado Hingco Jr. the
[p]rovincial [s]heriff of Judge Oscar Zerna, in entering x x x the land that I possessed and
tilted to my name, right after the issuance of said TRO, and capitalizing on my
ignorance/innocence about legal process, he deceived me and my family to believe that
such order authorize[d] him to harvest the prawn and fishpond products we introduced in my
said fishpond. x x x.
"That as the restraining order speaks for itself, neither [complainant] nor any of the
defendants were afforded by Judge Zerna x x x due process which includes the opportunity
to be notified and heard in a summary hearing as required by the cited Supreme Court
circular before issuance of the same."4
In his Comment dated July 15, 1997, respondent denied that the TRO was issued with ignorance of the
law and abuse of authority. He contended:
 "On June 7, 1996, a complaint was filed by plaintiff Napoleon T. Lee, Sr. versus Francisco
Lumayag, Jose Bravo alias 'Joe' and Ricardo Sayson for Injunction and Damages. The
plaintiff alleged that he [was] an owner of a certain parcel of land at Barangay Gumagamot
with an area of 10,741 sq.m., which is bounded on the S.E., S. W., and N. W., along lines 1-
2-3-4-5-6-7-8-9 by Gumagamot River and on the N.E., along lines 9-10-11-12-13-14-1[, a]
property claimed by Josefina Sayson. Plaintiff further alleged that he ha[d] title of
ownership over the land as evidenced by OCT No. (KATIBAYAN NG ORIGINAL NA
TITULO) No. P-11, 750, Kaloob na Patente Blg. 123509-195-216, as registered in the
Registry of Deeds of Lanao del Norte x x x.
"Upon receipt of the complaint and finding [that] the subject matter of this case was the
harvest of the prawn over the lot in question, the Court issued a Temporary Restraining
Order 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 20 days from harvesting the
same. The defendants complained of the issuance of Temporary Restraining Order even
charging the [c]ourt of ignorance of the law by citing Administrative Circular No. 20-95-that
the[c]ourt did not conduct summary hearing with notice within 24 hours[;] however the[c]ourt
did not also [lose] sight of the fact that in his opinion the matter was of extreme urgency
considering the perishable nature of the prawn and its ready buyer. This is also provided for
in par. 3 of said Circ. No. 20-95 in that if the matter is of extreme urgency and that grave
injustice and irreparable injury will arise, the [e]xecutive [j]udge shall issue a Temporary
Restraining Order effective only for 20 days from its issuance.
Recommendation of the Court Administrator
After evaluating the pleadings and the records filed by the parties, the court administrator found that
respondent was remiss in the performance of his duties. He granted the TRO effective, not for seventy-
two hours as prescribed by law in cases of extreme urgency, but for the maximum of 20 days; and he
did so without conducting beforehand a summary hearing, as required under Administrative Circular
No. 20-95.
He recommends that respondent judge be fined P5,000 and "sternly warned that a repetition of the
same or similar offense will be dealt with more severely."6
The Court's Ruling
We agree with the court administrator. Administrative Circular No. 20-95 requires that an application for
a TRO shall be acted upon, only after all parties are heard in a summary hearing. It clearly provides:
"SUBJECT: RE: SPECIAL RULES FOR TEMPORARY RESTRAINING ORDERS AND
PRELIMINARY INJUNCTIONS.
"1. Where an application for temporary restraining order (TRO) or writ of preliminary
injunction is included in a complaint or any initiatory pleading filed with the trial court, such
complaint or initiatory pleading shall be raffled only after notice to the adverse party and in
the presence of such party or counsel.
"2. The application for a TRO shall be acted upon only after all parties are heard in a
summary hearing conducted within twenty-four (24) hours after the records are transmitted
to the branch selected by raffle. The records shall be transmitted immediately after raffle.
"3. If the matter is of extreme urgency, such that unless a TRO is issued, grave injustice and
irreparable injury will arise, the Executive Judge shall issue the TRO effective only for
seventy-two (72) hours from issuance but shall immediately summon the parties for
conference and immediately raffle the case in their presence. Thereafter, before the expiry
of the seventy-two (72) hours, the Presiding Judge to whom the case is assigned shall
conduct a summary hearing to determine whether the TRO can be extended for another
period until a hearing [o]n the pending application for preliminary injunction can be
conducted. In no case shall the total period x x x exceed twenty (20) days, including the
original seventy-two (72) hours, for the TRO issued by the Executive Judge.
xxx xxx xxx
The Circular aims to restrict the ex parte issuance of a TRO only to cases of extreme urgency, in order
to avoid grave injustice and irreparable injury.7 Such TRO shall be issued only by the executive judge
and shall take effect only for seventy-two (72) hours from its issuance. Furthermore, within the said
period, a summary hearing shall be conducted to determine whether the Order can be extended for
another period until a hearing on the pending application for preliminary injunction can be conducted.
Untenable is respondent judge's contention that the Circular allows an executive judge, in case of
extreme urgency, to issue an ex parte TRO effective for twenty days. Judges 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.8
In Golangco v. Villanueva,9 the Court held that the judge's disregard of the Supreme Court's
pronouncement on TROs was not just ignorance of the prevailing rule, but also misconduct and grave
abuse of authority. To be punishable, however, ignorance of the law must be motivated by bad faith,
fraud, dishonesty or corruption.10 We find bad faith and dishonesty on the part of respondent judge. He
avers in his Comment that there was extreme urgency in the ex parte TRO because the prawns, which
were subject to spoilage, were perishable; and the buyer was already waiting for the harvest. But
Napoleon Lee's Complaint did not contain such allegations. Nowhere was there any mention of the
immediate need of harvesting prawns or any produce from the disputed property. Obviously,
respondent is now clutching at straws. He had no justifiable reason at all in immediately issuing the 20-
day TRO.
Besides, the TRO was clearly rushed. Just a day after the plaintiff's Complaint was filed on the
afternoon of June 7, 1996 the TRO was issued and served on herein complainant, without any effort to
notify the defendants or to schedule a summary hearing.1wphi1.nt
WHEREFORE, Judge Oscar E. Zerna is hereby found LIABLE for gross ignorance of the law,
misconduct and grave abuse of discretion and FINED P5,000 with a WARNING that a repetition of the
same or a similar offense will be dealt with more severely. SO ORDERED.
In re vs. Abesamis (supra)
G.R. No. 167745 June 26, 2007
MIGUEL M. LLAMZON, petitioner, vs. ALMA FLORENCE LOGRONIO, NESTOR HUN NADAL and
NICANOR OLIVAR constituting the PHILIPPINE ECONOMIC ZONE AUTHORITY CENTRAL
BOARD OF INQUIRY, INVESTIGATION AND DISCIPLINE (PEZA-CBIID), PEZA Special
Prosecutor NORMA CAJULIS and PEZA Director General LILIA DE LIMA, respondents.
Petitioner Miguel M. Llamzon is an Enterprise Service Officer III at the Industrial Relations Unit, Bataan
Economic Zone. He was formally charged with dishonesty, grave misconduct and conduct prejudicial to
the best interest of service6 for having billed Edison (Bataan) Cogeneration Corporation overtime fees
for unloading of fuel for the dates 28 February 2000 and 20 March 2000, despite knowledge that the
Philippine Economic Zone Authority (PEZA) had discontinued billing registered locator/enterprises for
overtime fees since 17 December 1999. Petitioner filed his answer denying the charges against him
and requested a formal investigation and the transfer of the venue of the case to the Civil Service
Commission Regional Office in San Fernando, Pampanga. This request was however denied, and the
investigation was conducted by the PEZA Central Board of Inquiry, Investigation and Discipline (PEZA-
CBIID).
While investigation was on-going, petitioner requested the PEZA-CBIID to allow the PNP Crime
Laboratory to examine the written contents of the billings for overtime fees. The request was denied by
PEZA-CBIID considering that the National Bureau of Investigation had already issued a finding that the
signatures appearing in the billings are those of the petitioner.
Feeling aggrieved, petitioner filed a complaint on 17 September 2002 for damages against
respondents, with a prayer for the issuance of a temporary restraining order (TRO) 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. On
the same date, Judge Benjamin Vianzon, presiding judge of RTC, Branch 4, Balanga, Bataan, issued a
TRO for twenty (20) days "for the maintenance and preservation of the status quo," and scheduled the
hearing for preliminary injunction.7
Respondents moved to lift the TRO on the ground of non-holding of a summary hearing and failure of
petitioner to show extreme urgency for the issuance of said TRO. Respondents motion was denied by
Judge Vianzon.8
Respondents filed before the Office of the Court Administrator a complaint for incompetence, gross
ignorance of the law, grave abuse of authority, misconduct, and conduct prejudicial to the proper
administration of justice against Judge Vianzon. They also filed a motion for his inhibition in Civil Case
No. 565-ML which Judge Vianzon granted in his Order dated 21 October 2002.9
Respondents moved for the dismissal of Civil Case No. 565-ML but petitioner opposed the motion. In
the interim, petitioner filed a motion to maintain the status quo, which Judge Vianzon granted through
an Order dated 2 December 2002 (status quo order).10 Petitioner, on the other hand, filed a motion for
reconsideration of the order of inhibition dated 21 October 2002,11 and a motion to cite petitioner in
contempt for resuming the administrative investigation upon the expiration of the TRO.
Confused with the orders of Judge Vianzon, respondents filed a manifestation seeking clarification
whether the judge had recalled his earlier order of inhibition. In his Order dated 15 November
2002,12 Judge Vianzon clarified that he had indeed recalled his order of inhibition and would proceed to
try the case, considering that Branch
4 is a single-sala court and the matter of inhibition would have to be referred to the Supreme Court,
and it would take months before a new judge is designated.
Meanwhile, respondents motion to dismiss Civil Case No. 565-ML was denied by Judge Vianzon in his
Order dated 11 December 2002.13
Respondents brought the matter to the Court of Appeals, imputing grave abuse of discretion on the
part of Judge Vianzon in: (i) his conduct of the proceedings before him; (ii) vacating his earlier order of
inhibition; (iii) issuing the status quo order dated 28 November 2002; and (iv) issuing the 11 December
2002 Order denying their motion to dismiss.
The Court of Appeals found the petition partly meritorious. It ruled that Judge Vianzon failed to observe
Section 5, Rule 58 of the Rules of Civil Procedure concerning applications for preliminary injunction
and TRO. According to the appellate court, Judge Vianzon granted a TRO for 20 days instead of only
72 hours, and he did not conduct a summary hearing within 72 hours to determine whether the TRO
should be extended.14 The status quo order was issued also in violation of the aforementioned Rule,
specifically the portion which provides that the TRO shall not exceed 20 days and is deemed vacated if
the application for preliminary injunction is not resolved within the 20-day period and that no court has
the authority to extend or renew the TRO on the same ground for which it was issued. 15
In addition, the Court of Appeals considered moot the issue of grave abuse of discretion on the part of
Judge Vianzon in recalling his order of inhibition. It found that the judge had already inhibited himself
from hearing Civil Case No. 565-ML via an Order dated 24 February 2003.16
The appellate court also found that respondents were unable to show that the issuance of the 11
December 2002 Order denying their motion to dismiss was tainted with grave abuse of discretion. They
likewise failed to file a motion for reconsideration of the said order of denial, and were unable to show
that the filing thereof was unnecessary.
In the end, the Court of Appeals annulled and set aside the 2 December 2002 status quo order, but
dismissed the petition with respect to the order dated 11 December 2002 denying the motion to
dismiss.17
Petitioner sought partial reconsideration of the decision, arguing for the propriety of the 20-day TRO
and the status quo order of Judge Vianzon, and pointing out alleged defects in respondents petition.
The Court of Appeals denied the motion for lack of merit.18
Petitioner now proposes that the Court of Appeals erred when it: (i) ruled that the TRO and status quo
order were wrongfully issued; and (ii) did not dismiss respondents petition despite several defects
which should have merited the outright dismissal thereof.
According to petitioner, the TRO and status quo order were made in compliance with Sec. 5, Rule 58 of
the 1997 Rules of Civil Procedure. In particular, he claims that a 20-day TRO can be issued without
prior notice or hearing if it is shown that great or irreparable injury would result to the applicant. On the
other hand, he justifies the status quoorder by saying that it was issued on a ground different from that
for which the earlier TRO was made.19 He adverts to several infirmities in respondents petition which
the Court of Appeals disregarded when it gave due course to the petition.
As for the alleged defects in respondents petition before the Court of Appeals, petitioner claims that
respondents (i) failed to attach the certified true copies of the assailed Orders; (ii) omitted the
discussion on the denial of the motion to dismiss; (iii) failed to state the date of receipt of the third
assailed Order; (iv) questioned the issuance of the 20-day TRO embodied in the 17 September 2002
Order when it was not even among those included in the Orders assailed in their petition; (v) failed to
file a motion for reconsideration of all the assailed orders; (vi) filed a defective certificate against forum
shopping; (vii) failed to include an affidavit of service; and (viii) are politically motivated when they filed
the charges against petitioner.20
For their part, respondents, through the Office of the Solicitor General, argue that an ex-parte TRO is
issued only inextremis, and has a lifetime of only 72 hours. In the instant case, the trial court issued the
TRO ex-parte for a full term of 20 days, and despite there being no clear showing that the applicant
had a clear legal right that should be protected by the writ being sought. Furthermore, respondents see
the status quo order issued by Judge Vianzon as very much akin to a writ of injunction, forbidding
respondents from prosecuting the case against petitioner.21
Anent Judge Vianzons 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. There 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.22
The petition must be denied.
At the onset, it must be emphasized that the propriety of the 20-day TRO is a non-issue. It was never
raised as an issue in the petition before the Court of Appeals, nor squarely ruled upon by the appellate
court. Instead, it was discussed in conjunction with the propriety of Judge Vianzons issuance of
the status quo order dated 2 December 2002. But in any case, the Court will delve into the mechanics
of issuing TROs, if only to provide the proper perspective to the discussion of the related issue.
Sec. 5, Rule 58 of the Rules of Court23 proscribes the grant of preliminary injunction without hearing
and prior notice to the party or person sought to be enjoined. However, the rule authorizes the court to
which an application for preliminary injunction is made to issue a TRO if it should appear from the facts
shown by affidavits or by the verified petition that "great or irreparable injury would result to the
applicant before the matter can be heard on notice,"24 but only for a limited 72-hour period.
The second paragraph of Sec. 5, Rule 58 was actually lifted from paragraph 3 of Administrative
Circular No. 20-95,25 which aims to restrict the ex parte issuance of a TRO only to cases of extreme
urgency in order to avoid grave injustice and irreparable injury. Such TRO shall be issued only by the
executive judge or single-sala station judge and shall take effect only for 72 hours from its issuance.
Furthermore, within the said period, a summary hearing shall be conducted to determine whether the
Order can be extended for another period until a hearing on the pending application for preliminary
injunction can be conducted.26
The rule thus holds that before a TRO may be issued, all parties must be heard in a summary hearing
first, after the records are transmitted to the branch selected by raffle. The only instance when a TRO
may be issued ex parte is when the matter is of such extreme urgency that grave injustice and
irreparable injury will arise unless it is issued immediately. Under such circumstance, the Executive
Judge shall issue the TRO effective for 72 hours only. The Executive Judge shall then summon the
parties to a conference during which the case should be raffled in their presence. Before the lapse of
the 72 hours, the Presiding Judge to whom the case was raffled shall then conduct a summary hearing
to determine whether the TRO can be extended for another period until the application for preliminary
injunction can be heard, which period shall in no case exceed 20 days including the original 72 hours.27
It thus becomes apparent that Judge Vianzon erred in issuing a TRO effective, not for 72 hours as
prescribed by law in cases of extreme urgency, but for the maximum of 20 days; and he did so
without conducting beforehand a summary hearing, and without showing that it falls under the
exceptional circumstances enumerated by the Administrative Circular No. 20-95 where a TRO may be
issued by the Executive Judge before assignment by raffle to a judge without first conducting a
summary hearing.
Now on to the real issues of this case.
The status quo order dated 2 December 2002 reads:
Considering the "[M]otion to Maintain Status Quo" filed by plaintiff, through counsel Atty. Francisco
Flaminiano, Jr., and finding 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 still pending hearing and no subsequent
order has been issued after the issuance of the courts order dated September 17, 2002, let the
existing status quo be maintained restraining and enjoining defendants from continuing with the
hearing of Administrative Case No. 2002-01 until further orders from this court.
SO ORDERED. (Emphasis supplied)
The above Order was improperly issued by Judge Vianzon. It was, for all intents and purposes, a mere
continuation of the 20-day TRO erroneously issued. Indeed, this Court has ruled that a status quo
ante order has "the nature of a temporary restraining order."28 A TRO
shall be effective only for a period of 20 days from notice to the party or person sought to be enjoined.
During the 20-day period, the judge must conduct a hearing to consider the propriety of issuing a
preliminary injunction. If no action is taken by the judge on the application for preliminary injunction
within the said 20 days, the TRO would automatically expire on the 20th day by the sheer force of law,
no judicial declaration to that effect being necessary. In the instant case, no such preliminary injunction
was issued; in fact, as stated in the Order, "the hearing on the propriety on the issuance of the writ of
preliminary injunction is still pending," hence, the TRO earlier issued, assuming arguendo that it was
indeed validly issued, automatically expired under the aforesaid provision of the Rules of Court.
The 2 December 2002 Order which directed that the "existing status quo be maintained restraining and
enjoining defendants from continuing with the hearing" was, for all intents and purposes an indefinite
extension of the first TRO, or "a renewed or second temporary restraining order proscribed by the rule
and extant jurisprudence."29
The status quo order is in fact, worse than a second TRO since unlike an ordinary TRO which has a
lifetime of only 20 days, Judge Vianzon directed the maintenance of the status quo for an indefinite
period, or "until further order from this court." It was not a writ of preliminary injunction, because as
previously mentioned, the hearing on the application for the writ is still pending. Besides, in the event of
an injunctive writ, an injunction bond is required, unless exempted by the Court.30
Another important factor which militates against the correctness of the issuance of the status quo order
is the fact that Judge Vianzon no longer had authority to do so because he had already inhibited
himself from hearing the case as early as 21 October 2002, or more than a month before he issued the
2 December 2002 status quo order. It appears that Judge Vianzon did not even forward his order of
inhibition to this Court, nor waited for the Court's resolution, but instead immediately recalled his order
of inhibition and proceeded to try the case.
Now, to the alleged infirmities of respondents petition before the Court of Appeals which petitioner
claims should have merited its outright dismissal. Most of the alleged defects are connected with Judge
Vianzons 15 November 2002 Order which recalled his earlier order of inhibition. Petitioner submits that
respondents did not attach a certified true copy of the said Order, neither did it indicate the date of
receipt of the same, nor filed a motion for its reconsideration. The other remaining issues are: (i) the
alleged failure to file a motion for reconsideration of, and failure to discuss, the 11 December 2002
Order of denial of respondents motion to dismiss; (ii) the failure to state in the certificate on non-forum
shopping that they filed administrative complaints against Judge Vianzon; and (iii) the failure to attach
the affidavit of service to the petition.
As explained by the Court of Appeals, the order of recall of Judge Vianzons inhibition is already moot
and academic, since he had already issued an Order dated 24 February 200331 inhibiting himself once
again from the proceedings. Besides, a new judge has already been assigned to hear the
case.32 Thus, the fact that only a photocopy of the 15 November 2002 Order was attached to the
petition cannot justify the dismissal of the entire petition, especially since respondents attached the
certified true copies of the other assailed Orders (2 December 2002 status quo order and 11 December
2002 denial of the motion to dismiss) to the petition. For the same reason, respondents failure to state
the date of receipt of the 15 November 2002 Order will not justify the dismissal of the petition.
Even the purported absence of a discussion on the order denying respondents motion to dismiss
cannot be a ground of the petitions outright dismissal, since the other issues raised therein were
sufficiently discussed. As pointed out by the Court of Appeals, it is because of this failure to show that
the denial of motion was tainted with grave abuse of discretion, and that respondents failed to file a
motion for reconsideration of the denial, that the petition was dismissed for lack of merit insofar as it
assailed the validity of the 11 December 2002 Order.
While the general rule is that before certiorari may be availed of, petitioner must have filed a motion for
reconsideration of the act or order complained of, the Court has dispensed with this requirement in
several instances. Thus, a previous motion for reconsideration before the filing 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.33 In the instant case, respondents stated that they did not file a
motion for reconsideration of the status quo order because it would be a useless exercise considering
Judge Vianzons predilection for issuing orders without stating or specifying his basis therefor. In any
case, the Court of Appeals found the status quo order to be a nullity, since it was made in violation of
the Rules of Court.
Petitioner maintains that respondents submitted a defective certificate against forum shopping when
they failed to declare the administrative complaints they filed against Judge Vianzon. The Court finds
that the omission of the administrative cases against Judge Vianzon is not fatal to respondents
petition. Ultimately, what is truly important to consider in determining whether forum shopping exists or
not is the vexation caused the courts and party-litigant by a party who asks different courts to rule on
the same or related causes and/or to grant the same or substantially the same reliefs, in the
process creating the possibility of conflicting decisions being rendered by the different fora upon the
same issue.34The administrative cases against Judge Vianzon pending before the Office of the Court
Administrator will not affect the outcome of the civil case a quo.
Finally, on the alleged failure to attach an affidavit of service, the Court defers to the finding of the
Court of Appeals that an affidavit of service was "attached to the petition stating that copies thereof
were sent to respondents by registered mail on January 14, 2003, as evidenced by registry receipts
nos. 494 and 495."35
WHEREFORE, the instant petition is DENIED for lack of merit and the challenged Decision of the
Court of Appeals of 10 June 2004 and Resolution of 7 April 2005 in CA-G.R. SP No. 74874 are hereby
AFFIRMED.Costs against petitioners. SO ORDERED.
G.R. No. 166547 September 12, 2007
UMBRA M. TOMAWIS, petitioner, vs. ATTY. NORA M. TABAO-CAUDANG, respondent.
On September 1, 1987, then Office of Muslim Affairs (OMA) Executive Director Jiamil I.M. Dianalan
(Dianalan) appointed6 Atty. Nora M. Tabao-Caudang (Caudang) as Regional Director of Region XII-B,
pursuant to Section 8 of Executive Order (E.O.) No. 122-A, as amended by E.O. No. 295. At that time,
the OMA staff and Regional Directors were not yet classified as Career Executive Service (CES)
positions. Hence, the Civil Service Commission (CSC) approved Caudang's appointment as
permanent.
On February 18, 1991, the directorship positions in the OMA, including those of Regional Directors,
were classified as CES positions thereby requiring CES eligibility for permanent appointments. Said
reclassification was embodied in CSC Resolution No. 94-2925 and CSC Memorandum Circular No. 21,
both dated May 13, 1994.
On February 4, 1993, Caudang received a notice7 that she had been replaced by Mr. Umbra Tomawis
(Tomawis), the latter having been appointed by then President Fidel V. Ramos. Aggrieved, Caudang
requested a ruling from the CSC on her status (of appointment) as Regional Director. Before the CSC
could resolve the matter, on April 29, 1993, Caudang filed a petition for quo warranto against Tomawis
before this Court, but the same was dismissed for lack of certification of non-forum shopping and
verified statement of material dates, as required by Revised Circular No. 1-88 and Circular No. 28-91.8
On January 4, 1994, the CSC promulgated Resolution No. 94-00149 declaring Caudang's appointment
as permanent. She was declared as the lawful incumbent, giving her the right to recover the position
through a petition for quo warranto before the appropriate court.
On the basis of the above resolution, on February 4, 1994, Caudang filed a petition for quo
warranto docketed as CA-G.R. SP No. 33246. On June 30, 1994, the CA granted Caudang's petition
reinstating her to the position and ordering Tomawis to vacate and relinquish the same.10 However, on
motion for reconsideration filed by the Solicitor General, the CA reversed itself in an Amended
Decision11 dated October 17, 1994, ruling that the petition should not have been entertained in the first
place for being violative of the procedural rules on non-forum shopping, given the identical petition
Caudang earlier filed with this Court. On appeal before this Court via a petition for review oncertiorari,
we denied the petition for failure to show that a reversible error had been committed by the appellate
court. The said denial had become final and executory and the same was subsequently entered in the
Book of Entries of Judgments.12
Left with no other recourse, Caudang went to the CSC and moved for the issuance of a writ of
execution of CSC Resolution No. 94-0014. In Resolution No. 96623113 dated September 23, 1996, the
CSC denied Caudang's motion. The CSC noted that Caudang's petition for quo warranto was
dismissed by the CA, thus, the motion for execution must necessarily fail. The CSC likewise held that
the services of Caudang were terminated by the Chief Executive prior to the filing of the petition for quo
warranto, thus, preventing the Commission from an inquiry into the said separation from service
effected by the President as the issue is reviewable only by the High Court.14 The CSC later denied
Caudang's motion for reconsideration.
On July 3, 1998, then OMA Executive Director Acmad Tomawis removed Tomawis from the contested
position and appointed Engr. Dardagan Maruhom in his stead. Tomawis did not challenge his removal
and, instead, claimed terminal pay equivalent to his earned leave credits. He was re-appointed to the
same position on July 31, 2000 by then OMA Executive Director Ismael Naga, Jr. but his appointment
was characterized as temporary, because he did not possess the appropriate CES eligibility.
On December 18, 2001, then OMA Executive Director Habib Mujahab A. Hashim (Hashim) issued a
Memorandum15 to Tomawis clarifying that his appointment was merely temporary and that a new
appointment may be issued either in his favor or to another qualified individual. He was directed to start
clearing himself of money, property and all other office accountabilities. On March 8, 2002, Hashim
issued Office Order No. 0079, series of 200216 reinstating Caudang to the contested position.
Consequently, Tomawis was directed to vacate and formally relinquish the position and turn over the
office, along with its funds and properties, to Caudang.
Caudang then requested the CSC to issue an order affirming the continuity of her service from the time
she was separated from service on February 8, 1993 until her reinstatement in 2002. On July 29, 2002,
the CSC denied Caudang's request in Resolution No. 021000.17 The CSC held that Caudang's request
had no legal basis because CSC Resolution No. 94-0014 (which was ostensibly the basis of Hashim's
Office Order) was, in effect, reversed by the Court of Appeals in its October 17, 1994 Amended
Decision.18
Aggrieved by Hashim's order requiring him to vacate his position, Tomawis instituted an action for
injunction and prohibition19 against Caudang and Hashim before the RTC. The case was docketed as
Special Civil Action No. 820-02.
Tomawis likewise filed a verified complaint against Hashim for alleged violation of the "Anti-Graft Law"
for issuing Office Order No. 0079. The Presidential Anti-Graft Commission conducted a fact-finding
inquiry and, acting on its recommendation, the Office of the President (OP) dismissed the complaint on
the ground that the reinstatement of Caudang was just and lawful pursuant to CSC Resolution No. 94-
0014.20
Meanwhile, on September 15, 2003, the RTC rendered a Decision in favor of Tomawis, the dispositive
portion of which reads:
WHEREFORE, foregoing premises considered, the instant petition for Injunction and
Prohibition is hereby granted for being highly meritorious. Respondent OMA Executive
Director Hon. HABIB MUJAHAB A. HASHIM or any person acting in his behalf is hereby
directed to cease, desist and refrain from enforcing office Order No. 0079, Series of 2002
dated March 8, 2002. Respondent Atty. Nora T. Caudang is likewise ordered to cease,
desist and refrain from further assuming the powers and functions of OMA Regional
Director, Region XII-B, Marawi City.
SO ORDERED.21
A copy of the decision was served on Caudang on September 24, 2003. The following day, Caudang
filed a motion for reconsideration22 which was denied23 on December 15, 2003. However, it appears
from the records that Caudang never received a copy of the December 15 Order.24
On December 18, 2003, Caudang filed a Manifestation25 praying for the immediate dismissal of the
case, attaching thereto a copy of the Decision of the Office of the President in OP Case No. 2-J-523
and a Certification issued by the OMA Director for Administrative Services that Caudang is the
incumbent Regional Director of Region XII.26However, this Manifestation (which was really a motion for
the dismissal of the pending case) was not set for hearing. Thereafter, the RTC issued an
Order27 dated January 7, 2004 setting aside its September 15 and December 15, decision and
resolution, respectively, on the ground that the legal authority of Caudang as Regional Director was
administratively upheld by the OMA and the OP.
On January 16, 2004, Tomawis filed an Urgent Ex-Parte Motion for Execution of the September 15
decision and December 15 order of the RTC averring that they had become final and executory for
failure of Caudang to appeal the same within the reglementary period. Caudang, however, opposed
the motion claiming that she had not been served a copy of the order denying her motion for
reconsideration.
On April 23, 2004, the court granted28 the motion and the corresponding writ of execution29 was
accordingly issued. On May 7, 2004, Caudang moved30 to quash the writ which the court denied in an
Order31 dated May 19, 2004.
Pursuant to the above writ of execution, then Undersecretary/OMA Executive Director Datu Zamzamin
L. Ampatuan issued Office Order No. 04-27032 dated June 3, 2004 re-installing Tomawis to the
contested position until the issuance of a new appointment either in his favor or to other qualified
applicant.
On June 9, 2004, Caudang elevated the matter to the CA via a special civil action for certiorari and
prohibition assailing the validity of the writ of execution issued by the RTC on the ground that the
decision sought to be executed did not attain finality. Caudang claimed that it was the January
733 Order of the RTC that had, instead, become final and executory.
On September 8, 2004, the CA rendered the assailed Decision in favor of Caudang, the pertinent
portion of which reads:
WHEREFORE, premises considered, the petition is GRANTED. The Decision of the
Regional Trial Court, Branch 8, Marawi City in Spl. Cvl. Action No. 820-02 dated 15
September 2003, the Order dated 23 April 2004 and the Writ of Execution dated 23 April
2004 are hereby ANNULLED and SET ASIDE. Office Order No. 04-270, Series of 2004,
issued by OMA Executive Director Zamzamin Ampatuan directing the re-installation of
respondent Umbra Tomawis as OMA Regional Director, Region XII-B, Marawi City is hereby
declared NULL and VOID. Director Ampatuan is further directed to recognize petitioner
ATTY. NORA TABAO-CAUDANG as the legitimate holder/occupant of the office. Land Bank
of the Philippines, Marawi Branch, through its bank officials, is directed to desist from
honoring checks and withdrawals signed/issued by respondent Tomawis. Respondent
Umbra Tomawis is hereby ordered to cease and desist from performing the functions of
OMA Regional Director, Region XII-B, Marawi City and to surrender said office to petitioner
Caudang. No pronouncement as to costs.
SO ORDERED.34
The appellate court held that in both procedural and substantive aspects of the case, the RTC
committed grave abuse of discretion: first, the September 15 Decision of the RTC never attained
finality because Caudang 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 "return to sender"; second, the January 7 Order of the RTC is
null and void for failure to comply with the procedural requirement of a valid hearing; and third, the
petition for injunction commenced by Tomawis is a disguised petition for quo warranto which should
never have been entertained because Tomawis had no legal standing to file the same since he held
the contested position merely in a temporary capacity.
Tomawis' motion for reconsideration was denied in a Resolution35 dated December 20, 2004.
Tomawis, now the petitioner, filed the instant petition, and in his Memorandum,36 he raises the
following issues:
(1).
DID NOT THE COURT OF APPEALS COMMIT GRAVE ABUSE OF DISCRETION AND
ACTED WITHOUT OR IN EXCESS OF ITS JURISDICTION WHEN IT ANNULLED AND
SET ASIDE THE DECISION OF JUDGE ADIONG DATED SEPTEMBER 15, 2003.
(2).
DID NOT THE COURT OF APPEALS ERR IN RULING THAT THE PETITIONER HAD NO
LEGAL RIG[H]T TO FILE SPL. CIVIL ACTION NO. 802-02.
(3).
DID NOT THE RESPONDENT COMMIT MULTIPLE FORUM SHOPPING.37
In his memorandum, Tomawis claims that the CA erred in reviewing the merits of the RTC decision, as
it was never raised as an issue before the appellate court. He claims that the only issue elevated to the
appellate court was whether or not the decision sought to be executed attained finality in order to
warrant the issuance of a writ of execution.38 Tomawis 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.39 He further avers that the CA should not have relied on the decision of the OP in OP Case
No. 2-J-523 because it was in the nature of a forgotten evidence since the respondent failed to present
the same in her evidence-in-chief.40 Lastly, the petitioner argues that respondent is guilty of multiple
forum shopping in litigating her claim before the CSC, the CA and this Court.41
The petition is without merit.
The first and second issues, being interrelated, shall be discussed together.
It must be understood that there are two RTC decisions involved in the present case, the second
(January 7) entirely incompatible with the first (September 15). From the factual circumstances
surrounding this case, and as correctly held by the CA, the January 7 Order is null and void because of
an incurable procedural defect,42 i.e., it was never set for hearing. Thus, the only decision material to
our consideration is the September 15 Decision. Did the aforesaid decision attain finality to justify the
issuance of a writ of execution? We answer in the negative.
Section 9, Rule 13 of the Rules of Court provides:
Service of judgments, final orders or resolutions. Judgments, final orders or resolutions
shall be served either personally or by registered mail. x x x.
Section 10 of the same Rule provides:
Completeness of service. Personal service is complete upon actual delivery. Service by
ordinary mail is complete upon the expiration of ten (10) days after mailing, unless the court
otherwise provides. Service by registered mail is complete upon actual receipt by the
addressee, or after five (5) days from the date he received the first notice of the postmaster,
whichever date is earlier.
The rule on service by registered mail contemplates two situations: (1) actual service, the
completeness of which is determined upon receipt by the addressee of the registered mail; and (2)
constructive service, which is deemed complete upon expiration of five (5) days from the date the
addressee received the first notice from the postmaster.43
Thus, there is constructive service by registered mail only if there is conclusive proof that a first notice
was duly sent by the postmaster to the addressee and that such first notice had been delivered to and
received by the addressee. The best evidence to prove that notice was sent would be a certification
from the postmaster to the effect that not only was notice issued or sent but also on how, when and to
whom the delivery was made. The mailman may also testify that the notice was actually delivered.44
In the instant case, there was no sufficient proof that the respondent actually received a copy of the
December 15 resolution. Neither was there proof that a first 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 finality. Consequently, there can be no valid
basis for the issuance of the writ of execution.
Before a writ of execution may issue, there must necessarily be a final judgment or order that disposes
of the action or proceeding. The writ of execution is the means by which a party can enforce a final
judgment or order of the court. Absent a final judgment or order, there is nothing to enforce or execute;
thus, there can be no valid writ of execution.45
Aside from nullifying the questioned writ of execution, the CA also delved into the intrinsic validity of the
September 15 decision of the RTC, and Tomawis challenges the procedural propriety of such review
by the appellate court.
It is true that in her petition before the CA, Caudang merely sought the nullification of the writ of
execution for having been issued with grave abuse of discretion. She did not raise as an issue the
propriety of the RTC's decision granting the writ of injunction. But the procedural lapse, if any, is of no
great moment.
Be it remembered that in the performance of their duties, courts should not be shackled by stringent
rules which would result in manifest injustice. Rules of procedure are mere tools designed to facilitate
the attainment of justice. Their strict and rigid application, if they result in technicalities that tend to
frustrate rather than promote substantial justice, must be avoided. Substantive rights must not be
prejudiced by a rigid and technical application of the rules. Indeed, when a case is impressed with
public interest, we should relax the application of the rules.
The controversy between Tomawis and Caudang started in 1993. Several cases had been brought
before both judicial and administrative tribunals, and no final resolution had been reached. In the
meantime, the legitimacy of the public officer who should occupy the position of OMA Regional
Director, Region XII-B, remains in question. Public service is compromised.
The RTC judge, who should have been resolute, proved to be indecisive. First, he ordered Hashim and
Caudang to cease and desist from enforcing Office Order No. 0079 and from occupying the position of
Regional Director, respectively; then, in his clarificatory order, he declared that his decision did not
include the reinstatement of Tomawis to the position. This vacillating attitude only served to create a
hiatus in public service, totally repugnant to the basic rule that title to public office should not be
subjected to continued uncertainty. In addition, as observed by the CA, the RTC judge remained
deafeningly silent on the alleged January 7 Order, neither confirming nor denying issuance of the
same.
Moreover, 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. To overlook such a manifest mistake would
have been inconsistent with substantial justice, and would have allowed a party to unjustly benefit from
a mistake or inadvertence of the trial court. Thus, the Rules reserve to the appellate court the right,
resting in public duty, to take cognizance of palpable error on the face of the record and proceedings,
especially such as clearly demonstrate that the suitor has no cause of action. The 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. The
underlying purpose of this reservation in the rule is to prevent the miscarriage of justice resulting from
oversight.
On the merit of the RTC decision, we agree with the CA that Tomawis had no clear legal right to
institute his petition for injunction. Indeed, the Tomawis suit before the RTC was a thinly disguised
petition for quo warranto, and not having any legal title to the position of Regional Director (his
temporary appointment having been terminated), he did not possess proper personality to file the
action.46
Even if the initiatory pleading filed by Tomawis before the RTC is truly a special civil action for
injunction and prohibition, our conclusion remains he still had no clear legal right to institute the
same.
Injunction is a judicial writ, process or proceeding whereby a party is ordered to do or refrain from doing
a certain act. It may be the main action or merely a provisional remedy for and as an incident in the
main action.47 As a rule, to justify the injunctive relief prayed for, the movant must show: (1) the
existence of a right in esse or the existence of a right to be protected; and (2) that the act against which
injunction is to be directed is a violation of such right.48A "clear legal right" means one clearly founded
on or granted by law or is enforceable as a matter of law.49 Theonus probandi is on movant to show
that there exists a right to be protected, which is directly threatened by the acts sought to be enjoined.
Further, 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.50
The facts clearly show that Tomawis was appointed Regional Director. However, because he did not
possess the requisite CES eligibility, pursuant to established rules and jurisprudence, his appointment
was characterized merely as temporary. His appointment papers dated July 31, 2000, specifically
provided that his appointment was merely temporary. As such, he had no security of tenure.51 Upon
the issuance of Office Order No. 0079 appointing Caudang to the position, Tomawis' right to the
position ceased to exist. Thus, he should have vacated and relinquished the position and turned over
the duties, funds and properties of the office to Caudang.
Accordingly, his petition for injunction should have been denied outright by the court. In the absence of
a clear legal right, the issuance of the injunctive writ constitutes grave abuse of discretion. 52
Lastly, we cannot sustain petitioner's claim that respondent is guilty of multiple forum shopping. There
is forum shopping where the elements of litis pendentia are present or where a final judgment in one
case will amount to res judicata in the other.53 True, respondent had previously instituted quo
warranto proceedings involving the same contested position, and her petitions had been dismissed
with finality by this Court. We, however, find that the issue in the instant case is based on a different set
of facts.
This case was initiated by no less than the petitioner himself through a petition for injunction before the
RTC in order to enjoin the enforcement of Office Order No. 0079 which recognized the new
appointment of the respondent thereby terminating his (petitioner's) temporary appointment. The
previous quo warranto actions instituted by the respondent were based on her appointment on
September 1, 1987. On the other hand, the present action is based on her appointment on March 8,
2002. Although the issues in all of the cases brought to this Court involve the rightful occupant of the
contested position, the fact remains that the "appointments" are distinct from one another.
In view of all the foregoing, we hereby affirm the nullity of the writ of injunction issued by the RTC for
failure of the petitioner to show clear legal right to enjoin the enforcement of the office order. We
likewise affirm the findings of the appellate court that the September 15 Decision of the RTC never
attained finality. Consequently, the corresponding writ of execution is null and void. Office Order No.
04-270 (installing petitioner to the contested position) issued pursuant to the writ of execution is,
likewise, annulled.
WHEREFORE, the petition is hereby DENIED. The September 8, 2004 Decision of the Court of
Appeals and its December 20, 2004 Resolution are AFFIRMED. SO ORDERED.
G.R. No. 157315 December 1, 2010
CITY GOVERNMENT OF BUTUAN and CITY MAYOR LEONIDES THERESA B. PLAZA, the latter
in her personal capacity and as representative of her co-defendant, Petitioners, vs.
CONSOLIDATED BROADCASTING SYSTEM (CBS), INC., doing business under the name and
style "DXBR" Bombo Radyo Butuan, represented by its Manager, Norberto P. Pagaspas, and
HON. ROSARITO F. DABALOS, PRESIDING JUDGE, RTC, BRANCH 2, OF AGUSAN DEL NORTE
AND BUTUAN CITY,Respondents.
Petitioners City Government of Butuan and City Mayor Leonides Theresa B. Plaza (petitioners) appeal
the adverse decision dated October 28, 2002 (dismissing their 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),1 and the resolution dated January 29, 2003 (denying their
motion for reconsideration), both promulgated by the Court of Appeals (CA) in C.A.-G.R. SP No. 69729
entitled City Government of Butuan and City Mayor Leonides Theresa B. Plaza, the latter in her
personal capacity and as representative of her co-defendant v. Consolidated Broadcasting System
(CBS), Inc., doing business under the name and style "DXBR" Bombo Radyo Butuan, represented by
its Manager, Norberto P. Pagaspas, and the Hon. Rosarito F. Dabalos, Presiding Judge, RTC, Branch
2, of Agusan del Norte and Butuan City.
Antecedents2
In February, 2002, City Mayor Plaza (Mayor Plaza) wrote to the Sangguniang Panlungsod of Butuan
City to solicit its support for her decision to deny the application for mayors permit of respondent
Bombo Radyo/Consolidated Broadcasting System (CBS), and to eventually close down CBSs radio
station. She justified her decision by claiming that CBSs operating its broadcasting business within the
Arujiville Subdivision, a residential area, had violated the Citys zoning ordinance. Her letter pertinently
reads:
In 1994, Bombo Radyo/Consolidated Broadcasting System manifested their intention to operate on
their current site at Arujiville Subdivision which is a residential area. They were informed that they
cannot situate their business in the area as it violates our zoning ordinance. However, they have
pleaded and was agreeable to operate in the area by virtue of a Temporary Use Permit (TUP) xxx.
The TUP allowed them to operate in the area but only for a very limited period. As a matter of fact, the
TUP was good only for one year, which can be renewed every year for a maximum of five (5) years or
until 1999. Thus, 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 a proper area.
Bombo Radyo renewed its TUP only in 1995 and 1996. They have failed to renew their TUP up to
today.
This office has received numerous complaints against Bombo Radyo for violation of private rights,
inciting people to go rise against the government, malicious imputations, insinuations against people
not of their liking, false or fabricated news, etc. The list is so long to enumerate. Copies of the petitions,
manifestos from various groups is hereto attached for your perusal.
Thus, for violation of the city zoning ordinance, the expiration of their TUP, which was never renewed
since 1997, failure to secure ECC 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 City, I have decided to deny their application for a mayor's permit and thereafter to close the radio
station.
In view of the foregoing premises, I am forwarding this matter to the Sangguniang Panlungsod to solicit
your resolution of support on the matter.
This is not a decision calculated to deprived (sic) Radio Bombo of its freedom of speech or expression.
This is just a simply matter of whether or not Radyo Bombo has complied with existing laws and
ordinances.
Thereupon, the Sangguninang Panlungsod adopted Resolution-057-2002 "to strongly support the
decision of the City Mayor to deny the application of Consolidated Broadcasting System Development
Corporation (Bombo Radyo-Butuan) for a Mayors Permit and thereafter close the radio station." 3
On February 18, 2002, the Citys licensing officer served on CBSs station manager a final/last notice of
violation and demand to cease and desist illegal operation, with a warning that he would recommend
the closure of its business in case of non-compliance.
On February 19, 2002, CBS and its manager, Norberto Pagaspas, filed a complaint for prohibition,
mandamus, and damages against the petitioners in the Regional Trial Court in Butuan City
(RTC),4 with prayer for a temporary restraining order (TRO) and writ of preliminary injunction to restrain
the petitioners from closing its station, or from disturbing and preventing its business operations. The
case, docketed as Civil Case No. 5193, was raffled to Branch 2, presided by Judge Rosarito P.
Dabalos.
On February 20, 2002, Judge Dabalos voluntarily inhibited and directed the return of Civil Case No.
5193 to the Office of the Clerk of Court for re-raffle.5 He cited the circumstances that might affect his
objectivity and impartiality in resolving the controversy as his justification, to wit:
xxx
a) That the undersigned was the object of its (plaintiff's) attacks and criticism which are
judgmental and not inquisitorial in the comments over the air;
b) That the undersigned was shouted at disrespectfully by one of plaintiff's reporters/news
gatherers in the vicinity of the Hall of Justice;
c) That plaintiff's commentaries are making pronouncements on legal matters, substantive
and procedural, based on its perception and not on laws;
d) That in its commentaries in attacking public officials as well as private individuals, words
which are disrespectful and indecent are used.
and the net effect and result of its commentaries over the air causes confusion on the minds of the
public, including the young that the court and government offices and public officials will lose their
credibility and respect which are due them.
The 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.
Let therefore this case be returned immediately to the office [of the] Clerk of Court VI for re-raffling.
SO ORDERED.
On the same day, Judge Victor Tomaneng, Presiding Judge of Branch 33, issued an order also
inhibiting himself from handling Civil Case No. 5193, and in his capacity as Vice Executive Judge (in
lieu of Executive Judge Cipriano B. Alvizo, Jr., then on sick leave) directed the assignment of Civil
Case No. 5193 to Branch 5 without raffle,6 viz:
xxx Considering that the Executive Judge Hon. Cipriano B. Alvizo, the Presiding Judge of RTC-Branch
4 and Acting-Designate Presiding Judge of RTC-Branch 3, but who is now in Cebu City for medical
treatment, it would be impractical to include his courts in the re-raffling of cases for the reason that the
case is for prohibition, mandamus, injunction, etc., that needs immediate action. The herein Vice-
Executive Judge who is the Presiding Judge of RTC-Branch 33, could not also act on this case on the
ground of 'delicadeza' considering that defendant Hon. Mayor Leonides Theresa B. Plaza is his
'kumadre' plus the fact that before becoming judge he was the legal counsel of the LDP party here in
Butuan City, in the election of 1992 and 1995, which is the political party of the Plazas. RTC-Branch 1,
being the exclusive Family Court cannot also be included in any raffle.
In view of the foregoing, and on the ground of expediency, the Clerk of Court is ordered to send this
case to RTC-Branch 5, without raffle anymore, it being the only practical available court in this
jurisdiction as of this moment.
Civil Case No. 5193 was forwarded to Branch 5, presided by Judge Augustus L. Calo, who recused
because his wife had been recently appointed by Mayor Plaza to the Citys Legal Office. Judge Calo
ordered the immediate return of the case to the Clerk of Court for forwarding to Vice Executive Judge
Tomaneng.
Without any other judge to handle the case, Judge Tomaneng formally returned Civil Case No. 5193 to
Judge Dabalos, stating in his letter that Judge Dabalos reason for inhibition did not amount to a
plausible ground to inhibit. Judge Tomaneng instructed Judge Dabalos to hear the case unless the
Supreme Court approved the inhibition.7
On February 21, 2002, Judge Tomaneng issued a TRO,8 to wit:
The Court 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 without necessarily implying that plaintiff is
entitled to the prayers for injunction. The Court hereby resolves in the meantime to grant a temporary
restraining order.
WHEREFORE, defendants City Gov't of Butuan and City Mayor Leonides Theresa B. Plaza, their
attorneys, agents, employees, police authorities and/or any person acting upon the Mayors order and
instruction under her authority are hereby enjoined to cease, desist and to refrain from closing or
padlocking RADYO BOMBO 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 Court cannot issue a seventy-two (72) hour Temporary Restraining Order because of the
incoming delay on Monday, February 25, 2002, a temporary restraining order is hereby issued effective
for twenty (20) days from issuance (Sec. 5, Rule 58, 1997 Revised Rules on Civil Procedure).
Meanwhile, let this case be set for summary hearing on March 11, 2002 at 8:30 in the morning to
resolve the pending application for injunction and for the defendants to show cause why the same shall
not be granted.
IT IS SO ORDERED.
On February 25, 2002, the petitioners filed an urgent motion to lift or dissolve temporary restraining
order in Branch 2 (sala of Judge Dabalos).
On February 26, 2002, Judge Dabalos referred his order of inhibition in Civil Case No. 5193 to the
Court Administrator for consideration, with a request for the designation of another Judge not stationed
in Butuan City and Agusan del Norte to handle the case.9
Consequently, CBS requested the Court to designate another judge to hear its application for the
issuance of a writ of preliminary injunction, the hearing of which Judge Tomaneng had set on March
11, 2002.10
In the meanwhile, or on March 8, 2002, the petitioners filed their answer to the complaint, alleging
affirmative and special defenses and praying for the dismissal of the complaint, the lifting of the TRO,
the denial of the prayer for preliminary injunction, and the granting of their counterclaims for moral and
exemplary damages, attorneys fees, and litigation expenses.
During the hearing on March 11, 2002 of CBSs application for the issuance of a writ of preliminary
injunction, at which the petitioners and their counsel did not appear, CBSs counsel manifested that he
was desisting from his earlier request with the Court for the designation of another judge to hear Civil
Case No. 5193. Judge Dabalos noted the manifestation but reset the hearing of the application for
preliminary injunction on March 12, 2002, to give the petitioners an opportunity to show cause why the
writ prayed for should not issue. For the purpose of the resetting, Judge Dabalos caused a notice of
hearing to be served on the petitioners.11
Upon receipt of the notice of hearing, the petitioners moved to quash the notice and prayed that the
TRO be lifted, insisting that Judge Dabalos had already lost his authority to act on Civil Case No. 5193
by virtue of his inhibition.12
Nonetheless, Civil Case No. 5193 was called on March 12, 2002. The parties and their respective
counsel appeared. At the close of the proceedings on that date, Judge Dabalos granted CBSs prayer
for a writ of preliminary injunction,13 to wit:
WHEREFORE, in view of the foregoing as the defendants did not introduce any evidence in spite of the
order of the Court 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 firmly
refused to do so on flimsy grounds, the Court resolves to issue a writ of preliminary injunction as the
complaint under oath alleges that plaintiff is a grantee of a franchise from the Congress of the
Philippines and the act threatened to be committed by the defendants curtail the constitutional right of
freedom of speech of the plaintiff which the Court finds that it should be looked into, the defendants'
refusal to controvert such allegations by evidence deprived the Court [of] the chance to be guided by
such evidence to act accordingly that it left the court no alternative but to grant the writ prayed for, the
City Government of Butuan and City Mayor Leonides Theresa B. Plaza, their attorneys, agents,
employees, police authorities and/or any person acting upon the Mayor's order or instructions or under
her authority are hereby enjoined to cease and desist and to refrain from closing or padlocking RADYO
BOMBO 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 plaintiff's putting up a bond in the amount of P200,000.00 duly approved by
this court which injunction bond shall be executed 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 will finally adjudge that plaintiff is not entitled thereto.
This order is without prejudice to the findings of the court after a formal hearing or a full blown trial.
Furnish copies of this order to the Hon. Supreme Court and the Hon. Court Administrator.
SO ORDERED.14
Following CBSs posting of P200,000.00 as the required injunction bond, Branch 2 issued the writ of
preliminary injunction on March 15, 2002,15 commanding and directing the provincial sheriff to:
xxx forthwith enjoin the City Government of Butuan and the Hon. City Mayor Leonides Theresa B.
Plaza, their attorneys, agents, employees, police authorities and/or any person acting upon the mayor's
order or instruction or under her authority to cease and desist and to refrain from closing or padlocking
RADIO BOMBO or from preventing disturbing or molesting its business operations, including the use
and operation of its building, structures, broadcasting facilities and the ingress and egress of its
employees therein. Copies of the writ of preliminary injunction, bond and other pertinent documents
thereto be served on the defendants and thereafter make a return of your service of this writ within the
period required by law and the Rules of Court.
Thus, the petitioners commenced in the CA a special civil action for certiorari and prohibition (with
prayer for TRO or writ of preliminary injunction).
The CA dismissed the petition for certiorari and prohibition upon a finding that Judge Dabalos had
committed no grave abuse of discretion in acting upon CBSs application for preliminary injunction,
given the peculiar circumstances surrounding the raffling and assignment of Civil Case No. 5193, and
the urgent need to resolve the application for preliminary injunction due to the expiration of Judge
Tomanengs TRO by March 13, 2002. The CA held that the writ of preliminary injunction had properly
issued, because the petitioners had threatened to defeat CBSs existing franchise to operate its radio
station in Butuan City by not issuing the permit for its broadcast business.
Issues
Hence, this appeal via petition for review on certiorari, with the petitioners contending that:16
I. THE COURT OF APPEALS ERRED IN NOT FINDING THAT RESPONDENT JUDGE
ROSARITO F. DABALOS ACTED WITH GRAVE ABUSE OF DISCRETION WHEN, ON
MARCH 12, 2002, WITHOUT SUFFICIENT NOTICE TO PETITIONERS, HE AGAIN TOOK
COGNIZANCE OF AND RE-ASSUMED JURISDICTION OVER CIVIL CASE NO. 5193
AFTER HE HAD ALREADY EFFECTIVELY INHIBITED HIMSELF FROM HEARING THE
SAME IN TWO EARLIER ORDERS HE HAD ISSUED DATED FEBRUARY 20 AND
FEBRUARY 26, 2002 RESPECTIVELY.
II. ASSUMING THAT RESPONDENT JUDGE ROSARITO DABALOS COULD VALIDLY
RE-ASSUME JURISDICTION OVER CIVIL CASE NO. 5193 AFTER HE HAD EARLIER
ISSUED TWO ORDERS VOLUNTARILY INHIBITING HIMSELF FROM HEARING SAID
CASE, THE COURT OF APPEALS ERRED IN NOT FINDING THAT RESPONDENT
COURT ACTED WITH GRAVE ABUSE OF DISCRETION IN ISSUING A WRIT OF
PRELIMINARY INJUNCTION WITHOUT REQUIRING PRIVATE RESPONDENT TO
PRESENT EVIDENCE TO SHOW WHETHER SAID PRIVATE RESPONDENT HAS A
CLEAR RIGHT THERETO.
Ruling
The appeal lacks merit. We find that the CA did not commit any error in upholding the questioned
orders of the RTC.
I Executive Judge that his self-doubt about his ability to dispense justice in Civil Case No. 5193
Judge Dabalos lawfully re-assumed jurisdiction over Civil Case No. 5193
In its decision, the CA ruled that Judge Dabalos did not gravely abuse his discretion in re-assuming
jurisdiction over Civil Case No. 5193 in the light of the obtaining circumstances cogently set forth in its
assailed decision, to wit:17
Seemingly, 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 Office of the Clerk of Court for re-raffle to another
judge, Vice-Executive Judge Victor A. Tomaneng, noting that there is no other judge to handle the
case, directed the return thereof to the public respondent in view of the extreme urgency of the
preliminary relief therein prayed for. Under the circumstances then obtaining, the respondent judge
could do no less but to act thereon. So it is that he proceeded with the scheduled hearing on the
application for preliminary injunction on March 11, 2002 and thereafter reset it for continuation the
following day to afford the petitioners an opportunity to oppose the application and show cause why the
writ prayed for should not issue. The urgency of the action demanded of the respondent judge is further
accentuated by the fact that the TRO issued by Judge Tomaneng was then about to expire on March
13, 2002, not to mention the circumstance that Executive Judge Cipriano B. Alvizo, Jr., who happened
to be around, advised the respondent judge to resolve the issues to the best of his discretion. xxx
The petitioners disagree, and insist that Judge Dabalos lost the authority to act upon CBSs application
for preliminary injunction by virtue of his prior self-inhibition from hearing Civil Case No. 5193.
We cannot sustain the petitioners insistence.
Section 1, Rule 137 of the Rules of Court, which contains the rule on inhibition and disqualification of
judges, states:
Section 1. Disqualification of judges. No judge or judicial officer shall sit in any case in which he, or his wife or child, is
pecuniarily interested as heir, legatee, creditor or otherwise, or in which he is related to either party within the sixth
degree of consanguinity or affinity, or to counsel within the fourth degree, computed according to the rules of civil law,
or in which he has been executor, 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 exercise of his sound discretion, disqualify himself from sitting in a case, for just
and valid reasons other than those mentioned above.
The self-inhibition of Judge Dabalos was one taken in accordance with the second paragraph of
Section 1. Our resolution herein turns, therefore, on the proper interpretation and application of the
second paragraph.
The second paragraph of Section 1 (unlike the first paragraph) does not expressly enumerate the
specific grounds for inhibition. This 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. The vesting of discretion necessarily proceeds from the reality that
there may be many and different grounds for a judge to recuse from a case, and such grounds cannot
all be catalogued in the Rules of Court. Thus did the Court cogently point out in Gutang v. Court of
Appeals:18
xxx The 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. It makes clear to the
occupants of the Bench that outside of pecuniary interest, relationship or previous participation in the
matter that calls for adjudication, there might be other causes that could conceivably erode the trait of
objectivity, thus calling for inhibition. That is to betray a sense of realism, for the factors that lead to
preference or predilections are many and varied.lawphi1
In his case, Judge Dabalos clearly discerned after the return of Civil Case No. 5193 to him by the Vice
generated by the airing of criticisms against him and other public officials by CBSs commentators and
reporters would not ultimately affect his objectivity and judgment. Such re-assessment of the ground for
his self-inhibition, absent a showing of any malice or other improper motive on his part, could not be
assailed as the product of an unsound exercise of his discretion. That, it seems to us, even the
petitioners conceded, their objection being based only on whether he could still re-assume jurisdiction
of Civil Case No. 5193.
We hold that although a trial judge who voluntarily inhibits loses jurisdiction to hear a case,19 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. The discretion to reconsider acknowledges that the trial
judge is in the better position to determine the issue of inhibition, and a reviewing tribunal will not
disturb the exercise of that discretion except upon a clear and strong finding of arbitrariness or
whimsicality.20 Thus, Judge Dabalos re-assumption of jurisdiction was legally tenable, having come
from his seizing the opportunity to re-assess the circumstances impelling his self-inhibition upon being
faced with the urgent need to hear and resolve CBSs application for preliminary injunction. Such action
was commendable on his part, given that the series of self-inhibitions by the other RTC Judges had left
no competent judge in the station to hear and resolve the application. It can even be rightly said that a
refusal by Judge Dabalos to re-assess and reconsider might have negated his sacred and sworn duty
as a judge to dispense justice.
In this connection, the urgency for the RTC to hear and resolve the application for preliminary
injunction factually existed. In fact, CBS had communicated it to the Court in its letter dated March 5,
2002,21 to wit:
If not for the temporary restraining order issued on February 21, 2002 by the Honorable Judge VICTOR
A. TOMANENG, Vice-Executive Judge and Presiding Judge of Branch 33 of said court xxx violent
confrontations would have continued between supporters of plaintiff RADIO BOMBO BUTUAN, on the
one hand, and the loyalists of City Mayor LEONIDES THERESA PLAZA (including some city
employees) led by the Mayor herself and her husband, former Mayor DEMOCRITO PLAZA II, on the
other hand.
xxx
As set forth in the temporary restraining order, the hearing on the application for a writ of preliminary
injunction is set on Monday, March 11, 2002 because the twenty-day lifetime of the temporary
restraining order would expire on March 13, 2002. A repeat of the violent scenario of February 21 may
occur unless the application is heard as scheduled by a Regional Trial Court Judge who had not
inhibited himself. xxx
Verily, Judge Dabalos decision to hear the application for preliminary injunction pending the Courts
resolution of the query on whether or not another Judge sitting outside the City of Butuan should take
cognizance of Civil Case No. 5193 did not constitute or equate to arbitrariness or whimsicality. He had
reasonable grounds to do so in the context of the tight circumstances that had developed in Civil Case
No. 5193 following his self-inhibition. Surely, his decision to reconsider did not proceed from passion or
whim, but from his faithful adherence to his solemn oath to do justice to every man. He thereby neither
violated any law or canon of judicial conduct, nor abused his juridical authority.
II.
Petitioners to adduce evidence after granting of TRO
The petitioners submit that Judge Dabalos improperly resolved CBSs application for preliminary
injunction by not first requiring the applicant to adduce evidence in support of the application.
We 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 final order requiring a party or a court, an agency, or a person to refrain from a particular a
particular act or acts.22 It may also require the performance of a particular act or acts, in which case it
is known as a preliminary mandatory injunction.23 Thus, a prohibitory injunction is one that commands
a party to refrain from doing a particular act, while a mandatory injunction commands the performance
of some positive act to correct a wrong in the past.24
As with all equitable remedies, injunction must be issued only at the instance of a party who possesses
sufficient interest in or title to the right or the property sought to be protected. 25 It is proper only when
the applicant appears to be entitled to the relief demanded in the complaint,26 which must aver the
existence of the right and the violation of the right,27 or whose averments must in the minimum
constitute a prima facie showing of a right to the final relief sought.28 Accordingly, 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.29 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.30
While it is true that CBS 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 CBS was a
grantee of a franchise from the Legislature, and that the acts complained against (i.e., refusal of the
Mayors permit and resulting closure of the radio station) were imminent and, unless enjoined, would
curtail or set at naught CBSs rights under the franchise. In this regard, worthy of mention is that even
the Vice Executive Judge, acknowledging that CBS had stood to suffer grave
injustice and irreparable injury should its radio station suffer closure, had issued ex parte the TRO.
It was error on the part of the petitioners to insist that the evidence of CBS should have first been
required before Judge Dabalos issued the writ of preliminary injunction. Rule 58 of the Rules of Court
clearly lays the burden on the shoulders of the petitioners, as the parties against whom the TRO was
issued, to show cause why the application for the writ of preliminary injunction should not issue,31 thus:
Section 5. Preliminary injunction not granted without notice; exception. No preliminary injunction shall be granted
without hearing and prior notice to the party or person sought to be enjoined. 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 to which the application for preliminary injunction was made, may issue ex parte a
temporary restraining order to be effective only for a period of twenty (20) days from service on the party or person
sought to be enjoined, except as herein provided. Within the said twenty-day period, the court must order said party or
person to show cause, at a specified 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.
xxx
In fine, Judge Dabalos properly directed the petitioners to first present evidence why the application for
the writ of preliminary injunction should not be granted. By their refusal to comply with the directive to
show cause by presenting their evidence to that effect, the petitioners could blame no one but
themselves.
WHEREFORE, we deny the petition for review on certiorari, and affirm the decision dated October 28,
2002 promulgated by the Court of Appeals in C.A.-G.R. SP No. 69729. Costs of suit to be paid by the
petitioners. SO ORDERED.
G.R. No. 156358 August 17, 2011
ANGELINA PAHILA-GARRIDO, Petitioner, vs. ELIZA M. TORTOGO, LEONILA FLORES, ANANIAS
SEDONIO, ADELINO MONET, ANGIE MONET, JUANITO GARCIA, ELEONOR GARCIA, BENITA
MOYA, JULIO ALTARES, LEA ALTARES, CLARITA SABIDO, JULIE ANN VILLAMOR,JUANITA
TUALA, VICTOR FLORES III, JOHNNY MOYA, HAZEL AVANCEA, SONIA EVANGELIO, and
GENNY MONTAO, Respondents.
Nothing is more settled in law than that once a judgment attains finality it thereby becomes immutable
and unalterable.1 The enforcement of such judgment should not be hampered or evaded, for the
immediate enforcement of the parties rights, confirmed by final judgment, is a major component of the
ideal administration of justice. This is the reason why we abhor any delay in the full execution of final
and executory decisions.2 Thus, a remedy intended to frustrate, suspend, or enjoin the enforcement of
a final judgment must be granted with caution and upon a strict observance of the requirements under
existing laws and jurisprudence. Any such remedy allowed in violation of established rules and
guidelines connotes but a capricious exercise of discretion that must be struck down in order that the
prevailing party is not deprived of the fruits of victory.
Via her pleading denominated as a petition for review on certiorari, the petitioner has come directly to
the Court from the Regional Trial Court (RTC), Branch 48, in Bacolod City for the nullification of the
order dated November 12, 2002 (granting the respondents application for a writ of preliminary
prohibitory injunction [enjoining the execution of the final and executory decision rendered in an
ejectment suit by the Municipal Trial Court in Cities [MTCC], Branch 6, in Bacolod City]) issued in SCA
Case No. 01-115223 for being in violation of law and jurisprudence.
The petitioner also prays that the Court should enjoin the RTC from taking further proceedings in SCA
Case No. 01-11522, except to dismiss it.
Antecedents
On June 23, 1997, Domingo Pahila commenced in the MTCC in Bacolod City an action for ejectment
with prayer for preliminary and restraining order to evict several defendants, including the respondents
herein, from his properties, docketed as Civil Case No. 23671 and raffled to Branch 6 of the MTCC. He
amended the complaint to implead the spouses of some of the defendants. However, he died during
the pendency of the action, and his surviving spouse, herein petitioner Angelina Pahila-Garrido, was
substituted for him on September 24, 1998.
The defendants in Civil Case No. 23671 were divided into two discrete groups. The first group,
represented by Atty. Romeo Subaldo, included those defendants occupying Lot 641-B-1, covered by
Transfer Certificate of Title (TCT) T-167924; Lot 641-B-2, covered by TCT No. T-167925; and Lot No.
641-B-3, covered by TCT No. T-167926, all owned by the plaintiff. The defendants in this group relied
on the common defense of being agricultural tenants on the land. The second group, on the other
hand, was represented by Atty. Ranela de la Fuente of the Public Attorneys Office (PAO) and counted
the defendants occupying Lot No. F-V-3-3749-D, covered by TCT No. T-55630, also owned by the
plaintiff. The second groups common defense was that the plaintiffs title was not valid because their
respective portions were situated on foreshore land along the Guimaras Strait, and thus their
respective areas were subject to their own acquisition from the State as the actual occupants.
After the parties submitted their respective position papers, the MTCC rendered a decision dated
March 17, 1999 in favor of the petitioner,4 to wit:
WHEREFORE, JUDGMENT IS RENDERED IN FAVOR OF THE PLAINTIFF AND AGAINST THE
DEFENDANTS except the defendant Damiana Daguno, as follows:
1. Ordering the affected defendants or any person or persons in acting in their behalf, assignees or
successors-in-interests including members of their family to vacate portions of Lot No. 641-B-1 covered
by TCT No. 16742, Lot No.641-B-2 covered by TCT No. T-167926 and Lot Plan-F-V-337490-D
covered by TCT No. T-55630 which they occupy and turn over the possession of the said property to
the plaintiff, and to pay the cost of the suit.
The prayer for preliminary injunction/restraining order is denied for lack of basis.
All the defendants appealed. On September 22, 1999, the RTC in Bacolod City affirmed the decision of
the MTCC.5
Only the second group, which includes respondents herein, appealed the RTCs decision to the Court
of Appeals (CA), insisting that the land was foreshore land and that the petitioners title (TCT No.
55630) was not valid. Considering that the first group did not appeal, the RTCs decision became final
and executory as to them.
On December 6, 1999, the CA dismissed the second groups appeal, and later denied their motion for
reconsideration on April 17, 2000.6
The respondents herein appealed the dismissal to the Court via a petition for certiorari (G.R. No.
143458), but the Court rejected their recourse on July 19, 2000, and issued an entry of judgment on
October 20, 2000.7
In the meantime, on February 16, 2000, the MTCC amended its decision to correct typographical errors
in the description of the properties involved.8 None of the parties objected to or challenged the
corrections.
On April 5, 2000, the MTCC issued the writ of execution upon the petitioners motion.9 The writ of
execution was duly served on August 24, 2000 upon all the defendants, including the respondents, as
the sheriffs return of service indicated.10
On April 20, 2001, the respondents filed a motion to quash against the April 5, 2000 writ of execution
and its aliases, and a motion to stay the execution of the March 17, 1999 decision and the February 16,
2000 amended decision.11They anchored their motions on the supposedly supervening finding that the
lot covered by the writ of execution was foreshore land belonging to the State. To support their
contention, they presented the following administrative issuances from the Department of Environment
and Natural Resources (DENR), namely:
(a) Memorandum dated August 30, 2000 issued by the Community Environment and
National Resources Office (CENRO) of the DENR recommending the cancellation of Free
Patent F.P. No. 309502 from which was derived Original Certificate of Title (OCT) No. P-1,
and petitioners TCT No. T-55630; and
(b) Memorandum dated November 13, 2000 of the DENR Regional Executive Director for
Region VI in Iloilo City.
They argued that such supervening event directly affected the execution of the March 17, 1999
decision and its amendment, whose continued execution affecting foreshore land would be unjust to
the occupants or possessors of the property, including themselves.12
On May 4, 2001, the MTCC denied the respondents motion to quash, observing that the cancellation
of the petitioners TCT No. T-55630 was an event that might or might not happen, and was not the
supervening event that could stay the execution.13 A month later, on June 8, 2001, the MTCC denied
the respondents motion for reconsideration,14 viz:
As of this point in time the movant has not shown that she has a better right to possess the land she is
presently occupying as a squatter, than the plaintiff who is in possession of a clean Torrens Title. It is
not true that the execution of the decision of this court would be unjust to her. To put it bluntly, it would
be more unjust to the plaintiff who was deprived of possession of his land for a very long time, because
of the movants insistence in occupying said land even after the decision ejecting her from the plaintiffs
land had become final and executory.
In fine, the movant has not shown additional evidences or arguments which would warrant the reversal
of the order dated May 4, 2001.
WHEREFORE, the motion for reconsideration dated June 1, 2001 is denied.
SO ORDERED.
The story would have ended then but for the fact that on October 1, 2001, or more than a year after the
writ of execution was served upon the defendants in Civil Case No. 23671, the respondents, led by
respondent Elisa M. Tortogo, and now assisted by Atty. Leon Moya, filed a petition for certiorari and
prohibition (with prayer for the issuance of a writ of preliminary injunction and restraining order) in the
RTC in Negros Occidental, docketed as SCA Case No. 01-11522,15 praying:
WHEREFORE, premises considered, it is most respectfully prayed of this HONORABLE COURT that
the assailed ORDERS dated 4 May 2001 and 8 July 2001 be REVERSED, ANNULLED and SET
ASIDE.
PETITIONERS are further praying that after due notice and hearing, a temporary restraining order and
a writ of preliminary prohibitory injunction be issued to enjoin the execution/implementation of the
Decision dated 17 March 1999 and the 16 February 2000 Amended Decision.
Such other and further reliefs just and equitable under the premises.
On October 11, 2001, Judge Gorgonio J. Ybaez, to whose branch SCA Case No. 01-11522 was
raffled, granted the respondents prayer for a temporary restraining order (TRO) in the following
terms,16 to wit:
xxxx
WHEREAS, the matter of issuance or not of a TRO was summarily heard on October 5, 2001 in the
presence of the parties and counsels who were both heard in support/amplification of their respective
stand(s);
WHEREAS, it appears that the issuance of a TRO prayed for would be in order at this stage in this
case because there appears an imminent danger of demolition of the structures of herein petitioners at
the premises in question, pending the trial and final determination of the merits in this case in this
case (sic) wherein the private respondent Pahila does not appear to have prior possession of the
premises in question, and, wherein although it appears that the title of the premises in question is in the
name of respondent Pahila, there also is a showing that the same title may have been illegally issued;
WHEREAS, the very imminent danger of demolition may result to irreparable damage to herein
petitioners, thus, the impending demolition appears to be a compelling reason for the issuance of a
TRO at this stage in this case.
NOW THEREFORE, YOU, the herein respondents, YOUR AGENTS, REPRESENTATIVES, or ANY
PERSON acting for and in your behalf, are hereby ENJOINED to CEASE and DESIST from further
implementing the 5 April 2000 Writ of Execution and/or any of its Aliases or any demolition order, if one
might have already been issued, in civil case No. 23671, MTCC, Branch 6, Bacolod City, until further
orders from this Court.
On October 25, 2002, the petitioner sought a clarificatory order,17 moving that the TRO be vacated due
to its being effective for only twenty days and because such effectivity could neither be extended nor
be made indefinite. She complained that her hands had already been tied for a year from executing the
decision 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 the possession of the property.
On October 30, 2002, the respondents moved for the early resolution of the case and for the issuance
of the writ of prohibitory injunction.18
On November 12, 2002, the RTC issued the assailed writ of preliminary prohibitory injunction,19 as
follows:
NOW, THEREFORE, YOU, the herein respondents, YOUR AGENTS, REPRESENTATIVES, or any
person acting for and in behalf, are hereby ENJOINED to CEASE and DESIST from further
implementing the April 25, 2000 Writ of Execution and/or any of its aliases, or any demolition order, if
one might have been issued already, in Civil Case No. 23671 before MTCC, Branch 6, Bacolod City,
pending the hearing and final determination of the merits in this instant case, or until further orders from
this Court.
xxxx
SO ORDERED.
The petitioner then directly came to the Court through her so-called "petition for review on certiorari,"
seeking to annul and set aside the writ of preliminary prohibitory injunction issued by the RTC pursuant
to its order dated November 12, 2002. She contended that: (a) the RTC issued the writ of preliminary
prohibitory injunction in a way not in accord with law or the applicable jurisprudence, because the
injunction was directed at the execution of a final and executory judgment of a court of law; (b) the
respondents (as the petitioners in SCA Case No. 01-11522) had no existing right to be protected by
injunction, because their right and cause of action were premised on the future and contingent event
that the petitioners TCT No. T-55630 would be cancelled through a separate proceeding for the
purpose; and (c) the writ of preliminary prohibitory injunction to enjoin the execution was issued long
after the March 17, 1999 judgment of the MTCC had become final and executory.
Issues
The petition presents the following issues, to wit:
a. Whether the present petition is a proper remedy to assail the November 12, 2002 order of
the RTC; and
b. Whether the RTC lawfully issued the TRO and the writ of preliminary prohibitory
injunction to enjoin the execution of the already final and executory March 17, 1999 decision
of the MTCC.
Ruling
We give due course to the petition as a petition for certiorari.
The RTC was guilty of manifestly grave abuse of discretion amounting to lack or excess of jurisdiction
in taking cognizance of SCA Case No. 01-11522 and in issuing the TRO and the writ of preliminary
prohibitory injunction to restrain the execution of the final and executory decision of the MTCC.
I
November 12, 2002 order of the RTC is an
interlocutory order that was not subject of appeal
With the petition being self-styled as a petition for review on certiorari, a mode of appeal, we have first
to determine whether the assailed order of November 12, 2002 was an interlocutory or a final order.
The distinction is relevant in deciding whether the order is the proper subject of an appeal, or of a
special civil action for certiorari.
The distinction between a final order and an interlocutory order is well known. The first disposes of the
subject matter in its entirety or terminates a particular proceeding or action, leaving nothing more to be
done except to enforce by execution what the court has determined, but the latter does not completely
dispose of the case but leaves something else to be decided upon.20 An interlocutory order deals with
preliminary matters and the trial on the merits is yet to be held and the judgment rendered.21 The test
to ascertain whether or not an order or a judgment is interlocutory or final is: does the order or
judgment leave something to be done in the trial court with respect to the merits of the case? If it does,
the order or judgment is interlocutory; otherwise, it is final.
The order dated November 12, 2002, which granted the application for the writ of preliminary
injunction, was an interlocutory, not a final, order, and should not be the subject of an appeal. The
reason for disallowing an appeal from an interlocutory order is to avoid multiplicity of appeals in a
single action, which necessarily suspends the hearing and decision on the merits of the action during
the pendency of the appeals. Permitting multiple appeals will necessarily delay the trial on the merits of
the case for a considerable length of time, and will compel the adverse party to incur unnecessary
expenses, for one of the parties may interpose as many appeals as there are incidental questions
raised by him and as there are interlocutory orders rendered or issued by the lower court.22 An
interlocutory order may be the subject of an appeal, but only after a judgment has been rendered, with
the ground for appealing the order being included in the appeal of the judgment itself.
The remedy against an interlocutory order not subject of an appeal is an appropriate special civil action
under Rule 65,23 provided that the interlocutory order is rendered without or in excess of jurisdiction or
with grave abuse of discretion. Then is certiorari under Rule 65 allowed to be resorted to.24
II
The petition, by alleging acts constituting manifestly grave abuse of discretion, was a petition for
certiorari
Without disregarding the rule that an interlocutory order cannot be the subject of appeal, the Court is
constrained to treat the present recourse as a special civil action for certiorari under Rule 65.
Certiorari is a writ issued by a superior court to an inferior court of record, or other tribunal or officer,
exercising a judicial function, requiring the certification and return to the former of some proceeding
then pending, or the record and proceedings in some cause already terminated, in cases where the
procedure is not according to the course of the common law.25 The remedy is brought against a lower
court, board, or officer rendering a judgment or order and seeks the annulment or modification of the
proceedings of such tribunal, board or officer, and the granting of such incidental reliefs as law and
justice may require.26 It is available when the following indispensable elements concur, to wit:
1. That it is directed against a tribunal, board or officer exercising judicial or quasi-judicial
functions;
2. That such tribunal, board or officer has acted without or in excess of jurisdiction or with
grave abuse of discretion; and
3. That there is no appeal nor any plain, speedy and adequate remedy in the ordinary
course of law.27
Certiorari being an extraordinary remedy, the party who seeks to avail of the same must strictly
observe the rules laid down by law.28 The extraordinary writ of certiorari may be availed of only upon a
showing, in the minimum, that the respondent tribunal or officer exercising judicial or quasi-judicial
functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion.29
For a petition for certiorari and prohibition to prosper and be given due course, it must be shown that:
(a) the respondent judge or tribunal issued the order without or in excess of jurisdiction or with grave
abuse of discretion; or (b) the assailed interlocutory order is patently erroneous, and the remedy of
appeal cannot afford adequate and expeditious relief.30 Yet, the allegation that the tribunal, board or
officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his
jurisdiction or with grave abuse of discretion will not alone suffice. Equally imperative is that the petition
must satisfactorily specify the acts committed or omitted by the tribunal, board or officer that constitute
grave abuse of discretion.
Grave abuse of discretion means such capricious or whimsical exercise of judgment which is
equivalent to lack of jurisdiction.31 To justify the issuance of the writ of certiorari, the abuse of discretion
must be grave, as when the power is exercised in an arbitrary or despotic manner by reason of passion
or personal hostility, and the abuse must be so patent and gross as to amount to an evasion of a
positive duty or to a virtual refusal to perform the duty enjoined, or to act at all, in contemplation of law,
as to be equivalent to having acted without jurisdiction.32
A reading of the petition shows that the petitioner has satisfied the requirements to justify giving due
course to her petition as a petition under Rule 65. She has identified therein some acts as constituting
the RTC Judges manifestly grave abuse of discretion amounting to lack or excess of jurisdiction,
namely: (a) despite the final and executory nature of the judgment sought to be enjoined, the RTC still
issued the TRO and, later on, the assailed writ of preliminary prohibitory injunction to enjoin the
implementation of the writ of execution; (b) the RTC issued the writ of preliminary prohibitory injunction
to protect the respondents alleged right in the subject properties, but the right did not appear to be in
esse; and (c) the issuance of the TRO and the writ of preliminary prohibitory injunction was in violation
of the requirements imposed by Rule 58 of the Rules of Court and pertinent jurisprudence.
Did the petitioners failure to first make a motion for reconsideration in the RTC preclude treating her
petition as a petition for certiorari?
The answer is in the negative. That the petitioner did not file a motion for reconsideration in the RTC
before coming to this Court did not preclude treating her petition as one for certiorari. The requirement
under Section 1 of Rule 65 that there must be no appeal, or any plain or adequate remedy in the
ordinary course of law admits exceptions. In Francisco Motors Corporation v. Court of Appeals, 33 the
Court has recognized exceptions to the requirement, such as: (a) when it is necessary to prevent
irreparable damages and injury to a party; (b) where the trial judge capriciously and whimsically
exercised his judgment; (c) where there may be danger of a failure of justice; (d) where an appeal
would be slow, inadequate, and insufficient; (e) where the issue raised is one purely of law; (f) where
public interest is involved; and (g) in case of urgency. The allegations of the petition definitely placed
the petitioners recourse under most, if not all, of the exceptions.
Was the petition timely filed?
It was. The petitioner received a copy of the order dated November 12, 2002 on November 15, 2002.
Pursuant to Section 4 of Rule 65,34 she had until January 14, 2003, or 60 days from November 15,
2002, within which to file a petition for certiorari. She filed the petition on January 2, 2003, 35 well within
the period for her to do so.
We also observe that the rule that a petition should have been brought under Rule 65 instead of under
Rule 45 of the Rules of Court (or vice versa) is not inflexible or rigid.36 The inflexibility or rigidity of
application of the rules of procedure is eschewed in order to serve the higher ends of justice. Thus,
substance is given primacy over form, for it is paramount that the rules of procedure are not applied in
a very rigid technical sense, but used only to help secure, not override, substantial justice. If a technical
and rigid enforcement of the rules is made, their aim is defeated.37 Verily, the strict application of
procedural technicalities should not hinder the speedy disposition of the case on the merits.38 To
institute a guideline, therefore, the Rules of Court expressly mandates that the rules of procedure "shall
be liberally construed in order to promote their objective of securing a just, speedy and inexpensive
disposition of every action and proceeding."39
III
March 17, 1999 Decision of the MTCC, being already final and executory, could not be assailed; nor
could its execution be restrained
The respondents elevated to the Court the CA decision dated December 6, 1999 and resolution dated
April 17, 2000 via a petition for certiorari (G.R. No. 143458 entitled Damiana Daguno, et al. v. Court of
Appeals, et al.) The Court dismissed the petition on July 19, 2000, and the dismissal became final and
executory on October 20, 2000 because the respondents did not timely file a motion for
reconsideration. Consequently, the MTCC rightly issued the writ of execution on April 5, 2000. Based
on the sheriffs return of service, the writ of execution was duly served upon all the defendants.
Under the circumstances, the principle of immutability of a final judgment must now be absolutely and
unconditionally applied against the respondents. They could not anymore be permitted to interminably
forestall the execution of the judgment through their interposition of new petitions or pleadings. 40 Even
as their right to initiate an action in court ought to be fully respected, their commencing SCA Case No.
01-11522 in the hope of securing a favorable ruling despite their case having been already fully and
finally adjudicated should not be tolerated. Their move should not frustrate the enforcement of the
judgment, the fruit and the end of the suit itself. Their right as the losing parties to appeal within the
prescribed period could not defeat the correlative right of the winning party to enjoy at last the finality of
the resolution of her case through execution and satisfaction of the judgment, which would be the life of
the law.41 To frustrate the winning partys right through dilatory schemes is to frustrate all the efforts,
time and expenditure of the courts, which thereby increases the costs of litigation. The interest of
justice undeniably demanded that we should immediately write finis to the litigation, for all courts are by
oath bound to guard against any scheme calculated to bring about the frustration of the winning partys
right, and to stop any attempt to prolong controversies already resolved with finality.42
It is true that notwithstanding the principle of immutability of final judgments, equity still accords some
recourse to a party adversely affected by a final and executory judgment, specifically, the remedy of a
petition to annul the judgment based on the ground of extrinsic fraud and lack of jurisdiction, or the
remedy of a petition for relief from a final order or judgment under Rule 38 of the Rules of Court.43 He
may also have a competent court stay the execution or prevent the enforcement of a final judgment
when facts and circumstances that render execution inequitable or unjust meanwhile transpire; 44 or
when a change in the situation of the parties can warrant an injunctive relief.45
Neither of such remaining equitable remedies is available anymore to the respondents, however, for
the time for such remedies is now past. Indeed, it is now high time for the respondents to bow to the
judgment, and to accept their fate under it.
IV
Issuance of TRO and writ of preliminary prohibitory injunction is patently without basis and violated the
requirements of the
Rules of Court and jurisprudence
At this juncture, we find and declare that the RTC Judges issuance of the assailed order dated
November 12, 2002 granting the respondents application for the writ of preliminary prohibitory
injunction constituted manifestly grave abuse of discretion.
A.
Respondents had no existing right violated
by the implementation of the writ of execution
Generally, injunction, being a preservative remedy for the protection of substantive rights or interests,
is not a cause of action in itself but merely a provisional remedy, an adjunct to a main suit. It is resorted
to only when there is a pressing necessity to avoid injurious consequences that cannot be redressed
under any standard of compensation. The controlling reason for the existence of the judicial power to
issue the writ of injunction is that the court may thereby prevent a threatened or continuous
irremediable injury to some of the parties before their claims can be thoroughly investigated and
advisedly adjudicated. The application for the writ rests upon an alleged existence of an emergency or
of a special reason for such an order to issue before the case can be regularly heard, and the essential
conditions for granting such temporary injunctive relief are that the complaint alleges facts that appear
to be sufficient to constitute a cause of action for injunction and that on the entire showing from both
sides, it appears, in view of all the circumstances, that the injunction is reasonably necessary to protect
the legal rights of plaintiff pending the litigation.46
A writ of preliminary injunction is an extraordinary event and is the strong arm of equity or a
transcendent remedy. It is granted only to protect actual and existing substantial rights.
Without actual and existing rights on the part of the applicant, and in the absence of facts bringing the
matter within the conditions for its issuance, the ancillary writ must be struck down for being issued in
grave abuse of discretion. Thus, injunction will not issue to protect a right not in esse, which is merely
contingent, and which may never arise, or to restrain an act which does not give rise to a cause of
action.47
Here, the respondents did not establish the existence of an actual right to be protected by injunction.
They did not, to begin with, hold any enforceable claim in the property subject of the MTCC decision
and of the writ of execution. The Memoranda and investigative report, whereby the DENR appeared to
classify the property as foreshore land, conferred upon the respondents no interest or right in the land.
Under all circumstances, the classification was not a supervening event that entitled them to the
protection of the injunctive relief. Their claim to any right as of then was merely contingent, and was
something that might not even arise in the future. Simply stated, they could not lay proper claim to the
land before the State has taken a positive act of first properly classifying the land as foreshore land and
the courts have first conclusively determined and adjudged the ownership in their favor in a suit
brought for the purpose. Without the States positive act of classification and the courts adjudication,
all that the respondents had was an inchoate expectation that might not at all materialize, especially if
we consider that the petitioner was already the registered owner of the same property, as evidenced by
her existing and valid transfer certificate of title covering the land (a fact that they themselves admitted
and acknowledged),48 for which she enjoyed the indefeasibility of a Torrens title.49
Presumably well aware that the respondents held absolutely no valid and existing right in the land, the
RTC Judge had plainly no factual and legal bases for enjoining the enforcement of the writ of execution
through the TRO and the writ of preliminary injunction. He obviously acted arbitrarily and whimsically,
because injunction protected only an existing right or actual interest in property. Thus, he was guilty of
committing manifestly grave abuse of discretion, and compounded his guilt by stopping the
enforcement of a final and executory decision of the MTCC.
B.
TRO and writ of preliminary prohibitory injunction
were wrongfully issued for an indefinite period
We further note that the RTC Judge expressly made the TRO effective until further orders from him. He
thereby contravened explicit rules of procedure. He knowingly did so, considering that he thereby
disregarded the nature and purpose of the TRO as a temporary and limited remedy, instead of a
permanent and unrestricted relief. He disregarded Section 5, Rule 58 of the Rules of Court, which
expressly stated that the life span of a TRO was only 20 days from service of the TRO on the party or
person sought to be enjoined. Considering that the limited life span of a TRO was a long-standing and
basic rule of procedure, he consciously arrogated unto himself a power that he did not have. Ignoring a
rule as elementary as the 20-day life span of a TRO amounted to gross ignorance of law and
procedure. His violation is seemingly made worse by the fact that he thereby usurped the authority of
the Court as the only court with the power to issue a TRO effective until further orders.50
Due to its lifetime of only 20 days from service on the party or person to be enjoined, the TRO that the
RTC Judge issued automatically expired on the twentieth day without need of any judicial declaration
to that effect.1avvphi1 Yet, by making the TRO effective until further orders, he made the effectivity of
the TRO indefinite. He thus took for granted the caution that injunction, as the strong arm of
equity,51 should not be routinely or lightly granted. Again, restraint was required of him, for the power to
issue injunctions should be exercised sparingly, with utmost care, and with great caution and
deliberation. The power is to be exercised only where the reason and necessity therefor are clearly
established, and only in cases reasonably free from doubt.52 For, it has been said that there is no
power the exercise of which is more delicate, requires greater caution and deliberation, or is more
dangerous in a doubtful case, than the issuing of an injunction.53
WHEREFORE, we GRANT the petition for certiorari.
We NULLIFY and SET ASIDE the writ of preliminary prohibitory injunction issued on November 12,
2002 for being devoid of legal and factual bases; and DIRECT the Regional Trial Court, Branch 48, in
Bacolod City to dismiss SCA Case No. 01-11522.
Presiding Judge Gorgonio J. Ybaez of the Regional Trial Court, Branch 48, in Bacolod City is
ORDERED TO SHOW CAUSE in writing within ten days from notice why he should not be
administratively sanctioned for gross ignorance of the law and procedure for his manifest disregard of
the prohibition under the Rules of Court against unwarranted restraining orders and writs of injunction,
and for issuing a temporary restraining order effective until furthers of the court.
Costs of suit to be paid by the respondents. SO ORDERED.