Thursday, May 16, 2013

Preliminary Injunction/TRO in Tabular Presentation; 72-Hour TRO; 20-Day TRO

Exec. Judge of Multi Sala / Presiding Judge of Single Sala
Regular Court Judge
where case is pending/or raffled to
SCENARIO 1
Sec. 5, Rule 58. 72-hour ex-parte TRO/w/out notice to adverse party on grounds of urgency; and grave injustice & irreparable injury/damage.
Note: Pleader must do more than simply allege facts. Convince the court with facts.
1. If convinced, issues 72-hour TRO, and immediately complies with Sec. 4 (c), Rule 58: Service upon adverse party of 72-hour TRO must be preceded or contemporaneously accompanied by:
1) Summons;
2) Complaint/Initiatory Pleading and applicant’s affidavit and bond; and
3) Notice of Raffle.
When Summons exempted (4 instances):
1) personal service cannot be effected;
2) substituted service cannot be effected;
3) person/respondent/defendant is not found in, or resides in the of the Philippines, but is temporarily out of country; or
4) person/respondent/defendant does not reside in the Philippines.
For Writ of Preliminary Attachment, Summons is exempted, when:
1) personal service cannot be effected;
2) substituted service cannot be effected;
3) person/respondent/defendant is not found in, or resides in the of the Philippines, but is temporarily out of country; or
4) person/respondent/defendant does not reside in the Philippines.
5) in Quasi In Rem/In Rem actions.
2. Conduct Raffle after notice to, and in the presence of the adverse party.
Notes: File complaint w/prayer for PI. Although order may issue ex parte it only takes effect upon receipt by defendant.
Upon issuance, have sheriff serve ASAP. Time the filing so that TRO is heard within 72 hours, otherwise it expires unheard.
Ideally–and/or latest in the week to do–file for TRO on a Tuesday in order to have it raffled by the ensuing Thursday, and heard by Friday.
 
Within 72 hours from issuance by Executive Judge, decides after SUMMARY hearing whether to grant 17-day TRO to complete the 20-day TRO.
Failure to issue order renders the 72-hour TRO functus officio with no further orders necessary.
If 20-day TRO is granted, court must hear (complete hearing), & with prior notice, within such period whether or not to grant PI.
 
SCENARIO 2
No 72-hour TRO application
Defendant is served with only Complaint, Summons, & Notice of Raffle.
By raffle, case is assigned to regular court.
An Executive or Presiding Judge cannot issue a 20-day TRO.
 
Issues 20-day TRO upon prior notice and summary hearing (w/in 24 hrs. from sheriff’s return of service or records received by raffled branch) as a general rule.
 
Must decide w/in same period, after ordering party to be enjoined to show cause why TRO shall not be granted, WoN to grant. Otherwise TRO is automatically vacated.
 
Effectivity is not extendible w/out need of any judicial declaration; no court has authority to extend or renew on the same ground for which it was issued. 
 
By jurisprudence though, period may be extended, but only by agreement of both parties.
SCENARIO 3
Brought about by amendment of sec 5 rule 58 in Dec 2007
Grounds: great and irreparable injury.
Same as Scenario 2:
Defendant is served with only Complaint, Summons, & Notice of Raffle.
By raffle, case is assigned to regular court.
 
May issue 20-day TRO w/out Notice & Hearing if convinced from facts on affidavit or verified application that grounds of great and irreparable injury existed.
Must decide w/in same period whether or not to grant PI.
If the court grants a PI & the same is subject of petition for certiorari with next level court, the court must resolve case w/in 6 months. Otherwise, judge is liable for administrative sanction.
 
The trial court, the Court of .Appeals, the Sandiganbayan or the Court of Tax Appeals that issued a writ of preliminary injunction against a lower court, board, officer, or quasi-judicial agency shall decide the main case or petition within six (6) months from the issuance of the writ.
 
Preliminary Injunction CANNOT issue WITHOUT Notice and Summary Hearing.
Applied for at any time as long as the case is pending w/ MTC/RTC/CA/SC.
If issued by Court of Appeals, it may be granted by any member for a 60-day period. No renewal/extension. After the lapse, it expires.
If issued by the Supreme Court, it may be granted by any member without any period. It shall remain effective until otherwise lifted.
Sandiganbayan may issue PI.
NOTE: With the Court’s implementation, pursuant to its rule-making power, of eCourt System, Notice of Raffle, is obviated, or at least is omitted, owing to system limitation (system automatically raffles a case to a trial court upon filing).
Possible justification: Since raffle no longer involves human intervention, the evil sought to be prevented (rigging) is avoided, though this remains unanswered unaddressed by the court for its novelty, and for absence of any controversy brought before it.
General Provisions:
Section 3. Grounds for issuance of preliminary injunction. — A preliminary injunction may be granted when it is established:
(a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts either for a limited period or perpetually;
(b) That the commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or
(c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual. (3a)
Section 6. Grounds for objection to, or for motion of dissolution of, injunction or restraining order. — The application for injunction or restraining order may be denied, upon a showing of its insufficiency. The injunction or restraining order may also be denied, or, if granted, may be dissolved, on other grounds upon affidavits of the party or person enjoined, which may be opposed by the applicant also by affidavits. It may further be denied, or if granted, may be dissolved, if it appears after hearing that although the applicant is entitled to the injunction or restraining order, the issuance or continuance thereof, as the case may be, would cause irreparable damage to the party or person enjoined while the applicant can be fully compensated for such damages as he may suffer, and the former files a bond in an amount fixed by the court conditioned that he will pay all damages which the applicant may suffer by the denial or the dissolution of the injunction or restraining order. If it appears that the extent of the preliminary injunction or restraining order granted is too great, it may be modified. (6a)
Section 7. Service of copies of bonds; effect of disapproval of same. — The party filing a bond in accordance with the provisions of this Rule shall forthwith serve a copy of such bond on the other party, who may except to the sufficiency of the bond, or of the surety or sureties thereon. If the applicant's bond is found to be insufficient in amount, or if the surety or sureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith the injunction shall be dissolved. If the bond of the adverse party is found to be insufficient in amount, or the surety or sureties thereon fail to justify a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the injunction shall be granted or restored, as the case may be. (8a)
Section 8. Judgment to include damages against party and sureties. — At the trial, the amount of damages to be awarded to either party, upon the bond of the adverse party, shall be claimed, ascertained, and awarded under the same procedure prescribed in section 20 of Rule 57. (9a)
Section 9. When final injunction granted. — If after the trial of the action it appears that the applicant is entitled to have the act or acts complained of permanently enjoined the court shall grant a final injunction perpetually restraining the party or person enjoined from the commission or continuance of the act or acts of confirming the preliminary mandatory injunction. (10a)
 
PI: It is the "strong arm of equity, an extraordinary peremptory remedy that must be used with extreme caution, affecting as it does the respective rights of the parties.
Source: Spouses Lago vs. Judge Godofredo B. Abul, Jr., A.M. No. RTJ-10-2255 (Formerly OCA IPI No. 10-3335-RTJ). To read the entire text of the case, click here.
In part, from the recorded lecture of Atty. Tranquil Salvador III

No comments:

Post a Comment