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XXIX. Provisional Remedies
a.Attachment (Rule 57)
a.1Security Pacific v. Amelia Tria-Infante,
G.R. No. 1444740, August 31, 2005.Counterbonds are mere replacements of theproperty formerly attached, and just as the
latter may be levied upon after finaljudgment in the case in order to realize the
amount adjudged, so is the liability of thecountersureties ascertainable after the
judgment has become final.Over theyears, in a number of cases, we have made
certain pronouncements about counter-bonds. In Tijam v. Sibonghanoy, as
reiterated in Vanguard Assurance Corp. v.Court of Appeals, we held: . . . [A]fter the
judgment for the plaintiff has becomeexecutory and the execution is returned
unsatisfied, as in this case, the liability ofthe bond automatically attaches and, in
failure of the surety to satisfy the judgmentagainst the defendant despite demand
therefore, writ of execution may issueagainst the surety to enforce the obligation
of the bond. InLuzon Steel Coporation v.
Sia, et al.: . . . [C]ounterbonds posted toobtain the lifting of a writ of attachment isdue to these bonds being security for the
payment of any judgment that the attachingparty may obtain; they are thus mere
replacements of the property formerlyattached, and just as the latter may be levied
upon after final judgment in the case inorder to realize the amount adjudged, so is
the liability of the countersuretiesascertainable after the judgment has become
final. . . . InImperial Insurance, Inc. v. DeLos Angeles, we ruled: . . . Section 17, Rule
57 of the Rules of Court cannot be construedthat an execution against the debtor be first
returned unsatisfied even if the bond were asolidary one, for a procedural may not
amend the substantive law expressed in theCivil Code, and further would nullify the
express stipulation of the parties that thesuretys obligation should be solidary with
that of the defendant. In PhilippineBritishAssurance Co., Inc. v. Intermediate
Appellate Court, we further held that the
counterbond is intended to secure thepayment of any judgment that the attachingcreditor may recover in the action.
A mere posting of a counterbond does not
automatically discharge the writ ofattachmentit is only after the hearing and
after the judge has ordered the discharge ofattachment that the same is properly
discharged; Judgment must be construed asa whole so as to bring all of its parts into
harmony as far as this can be done by fairand reasonable interpretation and so as to
give effect to every word and part.We arenot unmindful of our ruling in the case
of Belisle Investment and Finance Co., Inc.v. State Investment House, Inc., where we
held: . . . [T]he Court of Appeals correctlyruled that the mere posting of a counter-
bond does not automatically discharge thewrit of attachment. It is only after hearing
and after the judge has ordered the discharge
of the attachment if a cash deposit is madeor a counterbond is executed to the attachingcreditor is filed, that the writ of attachment
is properly discharged under Section 12,Rule 57 of the Rules of Court. The ruling
in Belisle, at first glance, would suggest anerror in the assailed ruling of the Court of
Appeals because there was no specificresolution discharging the attachment and
approving the counter-bond. As above-explained, however, consideration of our
decision in G.R. No. 106214 in its entiretywill readily show that this Court has
virtually discharged the attachment after allthe parties therein have been heard on the
matter. * * * Verily, a judgment must beread in its entirety, and it must be construed
as a whole so as to bring all of its parts intoharmony as far as this can be done by fair
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and reasonable interpretation and so as togive effect to every word and part, if
possible, and to effectuate the intention andpurpose of the Court, consistent with the
provisions of the organic law.
a.2Torres v. Satsatin, G.R. No. 166759,
November 25, 2009
Definition of a Writ of PreliminaryAttachment.A writ of preliminary
attachment is defined as a provisionalremedy issued upon order of the court where
an action is pending to be levied upon theproperty or properties of the defendant
therein, the same to be held thereafter by thesheriff as security for the satisfaction of
whatever judgment that might be secured inthe said action by the attaching creditor
against the defendant.
Surety Bond; In accepting a surety bond, itis necessary that all the requisites for its
approval are met otherwise the bond shouldbe rejected.In the case at bar, the CA
correctly found that there was grave abuse of
discretion amounting to lack of or in excessof jurisdiction on the part of the trial court inapproving the bond posted by petitioners
despite the fact that not all the requisites forits approval were complied with. In
accepting a surety bond, it is necessary thatall the requisites for its approval are met;
otherwise, the bond should be rejected.
In provisional remedies, particularly that ofpreliminary attachment, the distinction
between the issuance and theimplementation of the writ of attachment is
of utmost importance to the validity of thewrit.In provisional remedies, particularly
that of preliminary attachment, thedistinction between the issuance and the
implementation of the writ of attachment isof utmost importance to the validity of the
writ. The distinction is indispensablynecessary to determine when jurisdiction
over the person of the defendant should beacquired in order to validly implement the
writ of attachment upon his person.
Three stages involved in the grant of theprovisional remedy of attachment; For the
initial two stages, it is not necessary thatjurisdiction over the person of the defendant
be first obtained.In Cuartero v. Court ofAppeals, 212 SCRA 260 (1992), this Court
held that the grant of the provisional remedyof attachment involves three stages: first, the
court issues the order granting theapplication; second, the writ of attachment
issues pursuant to the order granting thewrit; and third, the writ is implemented. For
the initial two stages, it is not necessary thatjurisdiction over the person of the defendant
be first obtained. However, once theimplementation of the writ commences, the
court must have acquired jurisdiction overthe defendant, for without such jurisdiction,
the court has no power and authority to actin any manner against the defendant. Any
order issuing from the Court will not bind
the defendant.
The preliminary writ of attachment must be
served after or simultaneous with theservice of summons on the defendant
whether by personal service, substitutedservice or by publication as warranted by
the circumstances of the case; Subsequentservice of summons does not confer a
retroactive acquisition of jurisdiction overher person because the law does not allow
for retroactivity of a belated service.Assuming arguendo that the writ of
attachment was validly issued, although thetrial court later acquired jurisdiction over the
respondents by service of the summons uponthem, such belated service of summons on
respondents cannot be deemed to have curedthe fatal defect in the enforcement of the
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writ. The trial court cannot enforce such acoercive process on respondents without
first obtaining jurisdiction over their person.The preliminary writ of attachment must be
served after or simultaneous with the service
of summons on the defendant whether bypersonal service, substituted service or bypublication as warranted by the
circumstances of the case. The subsequentservice of summons does not confer a
retroactive acquisition of jurisdiction overher person because the law does not allow
for retroactivity of a belated service.
a.3Insular Savings v. Court of Appeals, G.R.No.123638, June 15, 2006
There can be no serious objection to theproposition that the attached propertyand
logically the counter-bond necessary todischarge the lien on such propertyshould
as much as possible correspond in value to,or approximately match the attaching
creditors principal claim.As may benoted, the amount of the counter-attachment
bond is, under the terms of the aforequotedSection 12, to be measured against the value
of the attached property, as determined by
the judge to secure the payment of anyjudgment that the attaching creditor mayrecover in the action. Albeit not explicitly
stated in the same section and withoutnecessarily diminishing the sound discretion
of the issuing judge on matters of bondapproval, there can be no serious objection,
in turn, to the proposition that the attachedpropertyand logically the counter-bond
necessary to discharge the lien on suchpropertyshould as much as possible
correspond in value to, or approximatelymatch the attaching creditors principal
claim. Else, excessive attachment, whichought to be avoided at all times, shall ensue.
A writ of attachment cannot be issued for
moral and exemplary damages, and otherunliquidated or contingent claims.Turning
to the case at bar, the records show that theprincipal claim of respondent, as plaintiff a
quo, is in the amount of P25,200,000.00,representing the three (3) unfunded checks
drawn against, and presented for clearing to,
respondent bank. Jurisprudence teaches thata writ of attachment cannot be issued formoral and exemplary damages, and other
unliquidated or contingent claim.
If a portion of a claim is already secured,there is no justifiable reason why such
portion should still be subject of counter-bondsimple common sense, if not
consideration of fair play, dictates that apart of a possible judgment that has
veritably been preemptively satisfied orsecured need not be covered by the counter-
bond.As things stood, therefore,respondents principal claim against
petitioner immediately prior to the filing ofthe motion to discharge attachment has
effectively been pruned down toP12,600,000.00. The trial court was fully
aware of this reality. Accordingly, it shouldhave allowed a total discharge of the
attachment on a counter-bond based on the
reduced claim of respondent. If a portion ofthe claim is already secured, we see nojustifiable reason why such portion should
still be subject of counter-bond. It may bethat a counter-bond is intended to secure the
payment of any judgment that the attachingparty may recover in the main action.
Simple common sense, if not considerationof fair play, however, dictates that a part of a
possible judgment that has veritably beenpreemptively satisfied or secured need not
be covered by the counter-bond.
Unlike the former Section 12 of Rule 57 ofthe Rules of Court where the value of the
property attached shall be the definingmeasure in the computation of the
discharging counterattachment bond, thepresent less stringent Section 12 of Rule 57
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provides that the court shall order thedischarge of attachment if the movant
makes a cash deposit, or files a counter-bond . . . in an amount equal to that fixed by
the court in the order of attachment,
exclusive of costs.It bears to stress, as afinal consideration, that the certiorariproceedings before the appellate court and
the denial of the motion to dischargeattachment subject of such proceedings,
transpired under the old rules onpreliminary attachment which has since
been revised. And unlike the former Section12 of Rule 57 of the Rules of Court where
the value of the property attached shall bethe defining measure in the computation of
the discharging counterattachment bond, thepresent less stringent Section 12 of Rule 57
provides that the court shall order thedischarge of attachment if the movant
makes a cash deposit, or files a counter-bond . . . in an amount equal to that fixed by
the court in the order of attachment,exclusive of costs. Not being in the nature
of a penal statute, the Rules of Court cannotbe given retroactive effect.
a.4Yu v. Ngo Yet Te, G.R. No. 155868,February 6, 2007
Attachments; In Malayan Insurance
Company, Inc. v. Salas (90 SCRA 252[1979]), we held that if the surety was not
given notice when the claim for damagesagainst the principal in the
replevin bond was heard, then as a matter ofprocedural due process the surety is entitled
to be heard when the judgment for damagesagainst the principal is sought to be
enforced against the suretys replevinbond.Even if it were true that Visayan
Surety was left in the proceedings a quo,such omission is not fatal to the cause of
Spouses Yu. InMalayan InsuranceCompany, Inc. v. Salas, 90 SCRA 252
(1979), we held that x x x if the surety wasnot given notice when the claim for damages
against the principal in the replevin bondwas heard, then as a matter of procedural
due process the surety is entitled to be heard
when the judgment for damages against theprincipal is sought to be enforcedagainstthe suretys replevin bond. This remedy is
applicable for the procedures governingclaims for damages on an attachment bond
and on a replevin bond are the same.
The wrongfulness of the attachment does notwarrant automatic award of damages to the
attachment defendant; the latter must firstdischarge the burden of proving the nature
and extent of the loss or injury by reason ofthe wrongful attachment.That is a rather
limited understanding ofJavellana. Thecounterclaim disputed therein was not for
moral damages and therefore, there was noneed to prove malice. As early as inLazatin
v. Twao, 2 SCRA 842 (1961), we laiddown the rule that where there is wrongful
attachment, the attachment defendant mayrecover actual damages even without proof
that the attachment plaintiff acted in bad
faith in obtaining the attachment. However,if it is alleged and established that theattachment was not merely wrongful but
also malicious, the attachment defendantmay recover moral damages and exemplary
damages as well. Either way, thewrongfulness of the attachment does not
warrant the automatic award of damages tothe attachment defendant; the latter must
first discharge the burden of proving thenature and extent of the loss or injury
incurred by reason of the wrongfulattachment.
To merit an award of actual damages
arising from a wrongful attachment, theattachment defendant must prove, with the
best evidence obtainable, the fact of loss orinjury suffered and the amount thereof.To
I thought if procedural you CAN?
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merit an award of actual damages arisingfrom a wrongful attachment, the attachment
defendant must prove, with the bestevidence obtainable, the fact of loss or
injury suffered and the amount thereof. Such
loss or injury must be of the kind which isnot only capable of proof but must actuallybe proved with a reasonable degree of
certainty. As to its amount, the same must bemeasurable based on specific facts, and not
on guesswork or speculation. In particular, ifthe claim for actual damages covers
unrealized profits, the amount of unrealizedprofits must be established and supported by
independent evidence of the mean income ofthe business undertaking interrupted by the
illegal seizure.
Attachments; Damages; As to moral andexemplary damages, to merit an award
thereof, it must be shown that the wrongfulattachment was obtained by the attachment
plaintiff with malice or bad faith, such as byappending a false affidavit to his
application.As to moral and exemplarydamages, to merit an award thereof, it must
be shown that the wrongful attachment was
obtained by the attachment plaintiff withmalice or bad faith, such as by appending afalse affidavit to his application.
As a rule, attorneys fees cannot be granted,
the exception however is when a partyincurred expenses to lift a wrongfully issued
writ of attachment.Attorneys fees cannotbe awarded when moral and exemplary
damages are not granted, the exceptionhowever is when a party incurred expenses
to lift a wrongfully issued writ ofattachment. Without a doubt, Spouses Yu
waged a protracted legal battle to fight offthe illegal attachment of their properties and
pursue their claims for damages. It is onlyjust and equitable that they be awarded
reasonable attorneys fees in the amount ofP30,000.00.
b.Preliminary Injunction (Rule 58)
b.1Universal Motors v. Rojas, A.M. RTJ 03-
1814, May 26, 2005
It is improper for a judge to order a hearingon the issuance of a temporary restrainingorder where it was not prayed for in the
complainta temporary restraining ordermay be issued only if it appears from the
facts shown by affidavits or by the verifiedapplication that great or irreparable injury
would result to the applicant before the writof preliminary injunction could be heard.
Respondent judge ordered a hearing on theissuance of a temporary restraining order
although it was not prayed for in thecomplaint. We are not impressed with
respondent judges argument that thecaption and the body of the complaint
showed an intent to include a prayer for atemporary restraining order. Nowhere in the
allegations in the complaint was it shownthat great or irreparable injury would result
to the plaintiff, NSSC, pending hearing onthe preliminary injunction. Under Section 5,
Rule 58 of the 1997 Rules of Civil
Procedure, a temporary restraining ordermay be issued only if it appears from thefacts shown by affidavits or by the
verified application that great or
irreparable injury would result to the
applicant before the writ of preliminary
injunction could be heard.In addition,
Section 4(a) of Rule 58 of the Rules ofCourt is clear with regard to the procedure to
be followed in the issuance of writs ofpreliminary injunction, i.e., a preliminary
injunction or temporary restraining ordermay be granted only when the application in
the action or proceeding is verified,and shows facts entitling the applicant to
the relief demanded.We note that the reliefsought by NSSC in the original complaint
consisted mainly of its reinstatement asdealer of Nissan vehicles and spare parts in
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Northern Mindanao, and the termination ofthe dealership agreement between UMC and
NICAD. NSSC did not allege facts tosupport an urgent need to issue a temporary
restraining order to prevent any great or
irreparable injury that it might suffer whilethe preliminary injunction is being heard. Inone case, the Court penalized a judge who
awarded reliefs to plaintiffs without anyshowing that such reliefs were applied for.
While Section 4(b) of Rule 58 gives the
presiding judge the discretion to require abond before granting a temporary
restraining order, the Rules did not intend togive the judge the license to exercise such
discretion arbitrarily to the prejudice of thedefendant; Unless it appears that the
enjoined party will not suffer any damage,the presiding judge must require the
applicant to post a bond, otherwise thecourts could become instruments of
oppression and harassment.While Section4(b) of Rule 58 gives the presiding judge the
discretion to require a bond before grantinga temporary restraining order, the Rules did
not intend to give the judge the license to
exercise such discretion arbitrarily to theprejudice of the defendant. Certainly, eachmember of the Bench is not a depository of
arbitrary power, but a judge under thesanction of law. The bond under Rule 58 is
intended to pay all the damages which theparty or person against whom the temporary
restraining order or injunction is issued maysustain by reason thereof should the court
finally decide that the applicant was notentitled thereto. Hence, it follows that unless
it appears that the enjoined party will notsuffer any damage, the presiding judge must
require the applicant to post a bond,otherwise the courts could become
instruments of oppression and harassment.
While prior to the effectivity of the 1997Rules of Civil Procedure, no bond was
required for the availment of a temporaryrestraining order, the present Rules now
regulate the issuance of TROs, not only byrequiring a hearing, but also by imposing a
bond on the applicant to prevent the abuse
of this relief by litigants.It is worthy tonote that prior to the effectivity of the 1997Rules of Civil Procedure, no bond was
required for the availment of a temporaryrestraining order. However, the present
Rules now regulate the issuance oftemporary restraining orders, not only by
requiring a hearing, but also by imposing abond on the applicant to prevent the abuse of
this relief by litigants. As explained byRemedial Law expert Justice Florenz D.
Regalado: Under this amended section, atemporary restraining order has been
elevated to the same level as a preliminaryinjunction in the procedure, grounds and
requirements for its obtention. Specificallyon the matter of the requisite bond, the
present requirement therefor not only for apreliminary injunction but also for a
restraining order, unless exempted therefromby the court, puts to rest a controversial
policy which was either wittingly or
unwittingly abused. Heretofore, no bondwas required for the issuance of a temporaryrestraining order, except in labor cases
brought to the Supreme Court on certiorarifrom a decision of the National Labor
Relations Commission where a monetaryaward was granted, in which case the policy
of the Supreme Court was to require a bondequivalent to the monetary award or benefits
granted as a condition for the issuance of atemporary restraining order. The exemption
from bond in other cases, plus the fact thatno hearing was required, made a temporary
restraining order a much sought relief forpetitioners.
b.2Greenstar v. Adiong, A.M. RTJ 041826,February 6, 2008
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Here, Judge Adiong was held as
administratively liable for issuing a Writ ofInjunction without following the proper
rules of procedure.
No matter how urgent a case may be, thisfact cannot justify the procedural shortcuts
employed by respondentjudge, i.e.dispensing with the proper service
of summons,23
and the violation of Section 5of Rule 58 of the Rules of Court. It is
glaringly obvious from the servicereturn24of the sheriff that the proper service
as provided for in the rules was notfollowed. No copy of the summons was
handed to any of the defendants who werenatural persons. Neither was a copy left
at any of their residences or offices. Whatthe sheriff did was to leave a copy of the
summons at the residenceof Datu HassanMangondaya, a total stranger to the case.
The sheriff also left a copy of the summonsfor defendant LBP with the manager of the
LBP Marawi City Branch, although thelatter is not one of those enumerated in
Section 1125of Rule 14 of the Rules of
Court upon whom service may be madewhen the defendant is a corporation. In theface of contrary evidence clearly showing
that there was defective service of summons,Judge Adiong could not be justified in
assuming that the sheriff regularlyperformed his duties.
Worth stressing, Section 5, Rule 58 of theRules of Court states that:
SEC. 5.Preliminary injunction not
granted without notice; exception.
No preliminary injunction shall begranted 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
partea temporary restraining order to
be effective only for a period of
twenty (20) days from service on the
party or person sought to beenjoined, 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 partea
temporary restraining order effective
for only seventy-two (72) hours from
issuance but he shall immediately
comply with the provisions of thenext 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 temporaryrestraining order exceed twenty (20)
days, including the original seventy-
two hours provided herein.
In the event that the application for
preliminary injunction is denied or
not resolved within the said period,
the temporary restraining order is
deemed automatically vacated. The
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effectivity of a temporary restraining
order is not extendible without need
of any judicial declaration to that
effect and no court shall have
authority to extend or renew the same
on the same ground for which it was
issued.
x x x xJudge Adiong disregarded these provisions
of the Rules. He could not plausibly claimthat he issued a 72-hour TRO under the
second paragraph of the rule quoted abovebecause, first, he was not the executive
judge. Second, his order did not state thatthe TRO was effective for 72 hours only. On
the contrary, the defendants were ordered to
desist from releasing the subject funds untilfurther orders from this Court. Third, therewas no showing that the order was being
issued because of extreme urgency to justifythe issuance of a 72-hour TRO. Judge
Adiong only stated in his order that he was[a]cting on the prayer for the issuance of a
Writ of Preliminary Injunction, withoutfinding that the plaintiff was entitled
thereto.26
Judge Adiongs violations of theRules in issuing the TRO are patent and
inexcusable.
Syllabus:
Failure to abide by Administrative CircularNo. 20-95 constitutes the offense of graveabuse of authority, misconduct and conduct
prejudicial to the proper administration ofjustice.Judge Adiongs violations of the
Rules in issuing the TRO are patent andinexcusable. This Court already ruled that
failure to abide by Administrative CircularNo. 20-95 constitutes the offense of grave
abuse of authority, misconduct and conductprejudicial to the proper administration of
justice. Indeed, a judge is presumed to knowthis Circular. Judge Adiongs failure to
comply with the clear provisions on issuingTROs constitutes gross ignorance and gross
inefficiency.
Court employees should maintain a hands-
off attitude where dealings with party-litigants are concerned to maintain theintegrity of the courts and to free court
employees from suspicion of anymisconducta court employee is expected
to do no more than what duty demands andno less than what privilege permits.Going
back to Sybil, he should bear in mind thatemployees of the judiciary must be mindful
and should tread carefully when assistingother persons. Court employees should
maintain a hands-off attitude where dealingswith party-litigants are concerned to
maintain the integrity of the courts and tofree court employees from suspicion of any
misconduct. InMacalua v. Tiu, Jr., 275SCRA 320 (1997) this Court held: . . . [A
court employee] is expected to do no morethan what duty demands and no less than
what privilege permits. Though he may beof great help to specific individuals, but
when that help frustrates and betrays the
publics trust in the system it cannot andshould not remain unchecked.Theinterests of the individual must give way to
the accommodation of the publicPrivatumincommodum publico bono pensatur.
(Emphasis supplied.) By not abiding by therules on raffle, Sybil opened himself to the
suspicion that he is biased and that he actedto favor the plaintiff. His highly improper
conduct subjected the courts integrity todistrust. For this, the Court finds respondent
Sybil guilty of simple misconduct.
b.3Aldover v. Court of Appeals, 2013
Writ of Preliminary Injunction; A Writ of
Preliminary Injunction is issued at any stageof an action prior to judgment or final order
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to prevent threatened or continuousirremediable injury to some of the parties
before their claims can be thoroughlystudied or adjudicated.!From our review
of the case, nothing indicates that the CA
acted without or in excess of jurisdiction orwith grave abuse of discretion in orderingthe issuance of the Writ of Preliminary
Injunction. Measured againstjurisprudentially established parameters, its
disposition to grant the writ was not withoutbasis and, hence, could not have been
arrived at capriciously, whimsically,arbitrarily or despotically. Respondents
amply justified the grant of the provisionalrelief they prayed for. A Writ of Preliminary
Injunction is issued at any stage of an actionprior to judgment or final order to prevent
threatened or continuous irremediable injuryto some of the parties before their claims can
be thoroughly studied or adjudicated. Tojustify its issuance, the applicants must
prove the following requisites: (1) that theyhave a clear and unmistakable right to be
protected, that is a right in esse; (2) there is amaterial and substantial invasion of such
right; (3) there is an urgent need for the writ
to prevent irreparable injury to theapplicants; and, (4) there is no otherordinary, speedy, and adequate remedy to
prevent the infliction of irreparable injury.
b.4Bacolod City Water v. Labayen, G.R.No. 157994, December 10, 2004
The main action for injunction is distinct
from the provisional or ancillary remedy ofpreliminary injunction which cannot exist
except only as part of an incident of anindependent action or proceeding.
Injunction is a judicial writ, process orproceeding whereby a party is ordered to do
or refrain from doing a certain act. It may bethe main action or merely a provisional
remedy for and as an incident in the mainaction. The main action for injunction is
distinct from the provisional or ancillaryremedy of preliminary injunction which
cannot exist except only as part or anincident of an independent action or
proceeding. As a matter of course, in an
action for injunction, the auxiliary remedyof preliminary injunction, whetherprohibitory or mandatory, may issue. Under
the law, the main action for injunction seeksa judgment embodying a final injunction
which is distinct from, and should not beconfused with, the provisional remedy of
preliminary injunction, the sole object ofwhich is to preserve thestatus quountil the
merits can be heard. A preliminaryinjunction is granted at any stage of an
action or proceeding prior to the judgmentor final order. It persists until it is dissolved
or until the termination of the action withoutthe court issuing a final injunction.
Temporary Restraining Order; A restraining
order is issued to preserve the status quountil the hearing of the application for
preliminary injunction which cannot beissued ex parte.A restraining order is
issued to preserve thestatus quo until the
hearing of the application for preliminaryinjunctionwhich cannot be issued ex parte.Under Rule 58 of the Rules of Court, a judge
may issue a temporary restraining order witha limited life of twenty (20) days from date
of issue. If before the expiration of thetwenty (20)-day period the application for
preliminary injunction is denied, thetemporary restraining order would be
deemed automatically vacated. If no actionis taken by the judge on the application for
preliminary injunction within the saidtwenty (20) days, the temporary restraining
order would automatically expireon the20th day by the sheer force of law, no
judicial declaration to that effect beingnecessary.
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Non-Extendibility; The twenty (20)-dayperiod provided by the Rules of Court
should be deemed incorporated in the Orderwhere there is an omission to do so.The
rule against the non-extendibility of the
twenty (20)-day limited period of effectivityof a temporary restraining order is absoluteif issued by a regional trial court. The failure
of respondent court to fix a period for theordered restraint did not lend the temporary
restraining order a breath of semi-permanence which can only be characteristic
of a preliminary injunction. The twenty(20)-day period provided by the Rules of
Court should be deemed incorporated in theOrder where there is an omission to do so. It
is because of this rule on non-extendibilitythat respondent City was prompted to move
that hearings be set for its application of apreliminary injunction. Respondent City
cannot take advantage of this omission byrespondent trial court.
b.5Calawag v. University of the Philippines-
Visayas, 2013Writ of Preliminary Injunction; To beentitled to a writ of preliminary injunction,
the petitioners must establish the followingrequisites: (a) the invasion of the right
sought to be protected is material andsubstantial; (b) the right of the complainant
is clear and unmistakable; and (c) there isan urgent and permanent necessity for the
writ to prevent serious damage.To beentitled to a writ of preliminary injunction,
x x x the petitioners must establish thefollowing requisites: (a) the invasion of the
right sought to be protected is material andsubstantial; (b) the right of the complainant
is clear and unmistakable; and (c) there is anurgent and permanent necessity for the writ
to prevent serious damage. Since apreliminary mandatory injunction
commands the performance of an act, it doesnot preserve thestatus quoand is thus more
cautiously regarded than a mere prohibitiveinjunction. Accordingly, the issuance of a
writ of preliminary mandatory injunction
[presents a fourth requirement: it] is justifiedonly in a clear case, free from doubt ordispute. When the complainants right is
thus doubtful or disputed, he does not have aclear legal right and, therefore, the issuance
of injunctive relief is improper.
Under the University of the Philippines (UP)Systems faculty manual, the dean has
complete discretion in approving ordisapproving the composition of a thesis
committee.By necessary implication, thedeans power to approve includes the power
to disapprove the composition of a thesiscommittee. Thus, under the UP Systems
faculty manual, the dean has completediscretion in approving or disapproving the
composition of a thesis committee.Harmonizing this provision with the
Graduate Program Manual of UP Visayas,and the Guidelines for the Master of Science
in Fisheries Program, we agree with the
CAs interpretation that the thesiscommittees composition needs the approvalof the dean after the students have complied
with the requisites provided in Article 51 ofthe Graduate Program Manual and Section
IX of the Guidelines for the Master ofScience in Fisheries Program.
The academic freedom accorded to
institutions of higher learning gives them theright to decide for themselves their aims and
objectives and how best to attain them.Verily, the academic freedom accorded to
institutions of higher learning gives them theright to decide for themselves their aims and
objectives and how best to attain them. Theyare given the exclusive discretion to
determine who can and cannot study inthem, as well as to whom they can confer
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the honor and distinction of being theirgraduates. This necessarily includes the
prerogative to establish requirements forgraduation, such as the completion of a
thesis, and the manner by which this shall be
accomplished by their students. The courtsmay not interfere with their exercise ofdiscretion unless there is a clear showing
that they have arbitrarily and capriciouslyexercised their judgment.
Right to Education; Section 5(e), Article XIV
of the Constitution provides that [e]verycitizen has a right to select a profession or
course of study, subject to fair, reasonable,and equitable admission and academic
requirements.The right to educationinvoked by Calawag cannot be made the
basis for issuing a writ of preliminarymandatory injunction. InDepartment of
Education, Culture and Sports v. San Diego,180 SCRA 533 (1989), we held that the
right to education is not absolute. Section5(e), Article XIV of the Constitution
provides that [e]very citizen has a right toselect a profession or course of study,
subject to fair, reasonable, and equitable
admission and academic requirements. Thethesis requirement and the compliance withthe procedures leading to it, are part of the
reasonable academic requirements a persondesiring to complete a course of study would
have to comply with.
c.Receivership (Rule 59)
c.1Citibank v. Court of Appeals, G.R. No.61508, March 17, 1999
However, the Court of Appeals was right in
finding a defect in such assumption ofreceivership in that the requirement of
taking an oath has not been complied with.Section 5, Rule 59, states:
SEC. 5. Oath and bond of receiver.
Before entering upon his duties, the receivermust be sworn to perform them faithfully,
and must file a bond, executed to such
person and in such sum as the court or judgemay direct, to the effect that he willfaithfully discharge the duties of receiver in
the action and obey the orders of the courttherein.
Consequently, the trial court erred in
allowing the petitioner to assumereceivership over the machine shop of
private respondent without requiring theappointed receiver to take an oath.
In light of the foregoing, the answer to the
fifth assignment of error is in the negative.For erroneously issuing the aliaswrit of
seizure without inquiring into thesufficiency of the replevin bond and for
allowing petitioner to assume receivershipwithout the requisite oath, the Court of
Appeals aptly held that the trial court actedwith grave abuse of discretion in dealing
with the situation.
SYLLABUS
There is substantial compliance with therule requiring that an affidavit of merit
support the complaint for replevin if thecomplaint itself contains a statement of
every fact required to be stated in theaffidavit of merit and the complaint is
verified like an affidavit.Petitioner iscorrect insofar as it contends that substantial
compliance with the affidavit requirementmay be permissible. There is substantial
compliance with the rule requiring that anaffidavit of merit support the complaint for
replevin if the complaint itself contains astatement of every fact required to be stated
in the affidavit of merit and the complaint isverified like an affidavit. On the matter of
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replevin, Justice Vicente FranciscosComment on the Rules of Court, states:
Although the better practice is to keep theaffidavit and pleading separate, if plaintiffs
pleading contains a statement of every fact
which the statute requires to be shown in theaffidavit, and the pleading is verified byaffidavit covering every statement therein,
this will be sufficient without a separateaffidavit; but in no event can the pleading
supply the absence of the affidavit unless allthat the affidavit is required to contain is
embodied in the pleading, and the pleadingis verified in the form required in the case of
a separate affidavit.
In the case of an attachment which likewiserequires an affidavit of merit, the Court held
that the absence of an affidavit of merit isnot fatal where the petition itself, which is
under oath, recites the circumstances orfacts constitutive of the grounds for the
petition.In the case of an attachmentwhich likewise requires an affidavit of
merit, the Court held that the absence of anaffidavit of merit is not fatal where the
petition itself, which is under oath, recites
the circumstances or facts constitutive of thegrounds for the petition.
Facts that must be set forth in the affidavitof merit.The facts that must be set forth in
the affidavit of merit are (1) that plaintiffowns the property particularly describing the
same, or that he is entitled to its possession;(2) wrongful detention by defendant of said
property; (3) that the property is not takenby virtue of a tax assessment or fine
pursuant to law or seized under execution orattachment or, if it is so seized, that it is
exempt from such seizure; and (4) the actualvalue of the property.
Pertinent rules require that the affidavit of
merit should state the actual value of theproperty subject of a replevin suit and not
just its probable value.Then too,petitioner stated the value of subject
properties at a probable value ofP200,000.00, more or less. Pertinent rules
require that the affidavit of merit should
state the actualvalue of the property subjectof a replevin suit and not justitsprobablevalue. Actual value (or actual
market value) means the price which anarticle would command in the ordinary
course of business, that is to say, whenoffered for sale by one willing to sell, but
not under compulsion to sell, and purchasedby another who is willing to buy, but under
no obligation to purchase it.
Since the valuation made by the petitionerhas been disputed by the respondent, the
lower court should have determined first theactual value of the properties.As there
was a disagreement on the valuation of theproperties in the first place, proper
determination of the value of the bond to beposted by the plaintiff cannot be sufficiently
arrived at. Though the rules specificallyrequire that the needed bond be double the
value of the properties, since plaintiff
merely denominated a probable value ofP200,000.00 and failed to aver theproperties actual value, which is claimed to
be much greater than that declared byplaintiff, the amount of P400,000.00 would
indeed be insufficient as found by the Courtof Appeals. The Rules of Court requires the
plaintiff to give a bond, executed to thedefendant in double the value of the
property as stated in the affidavit x x x.Hence, the bond should be double the actual
value of the properties involved. In this case,what was posted was merely an amount
which was double the probable value asdeclared by the plaintiff and, therefore,
inadequate should there be a finding that theactual value is actually far greater than
P200,000.00. Since the valuation made bythe petitioner has been disputed by the
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respondent, the lower court should havedetermined first the actual value of the
properties. It was thus an error for the saidcourt to approve the bond, which was based
merely on the probable value of the
properties.
A replevin bond is intended to indemnify the
defendant against any loss that he maysuffer by reason of its being compelled to
surrender the possession of the disputedproperty pending trial of the action.It
should be noted that a replevin bond isintended to indemnify the defendant against
any loss that he may suffer by reason of itsbeing compelled to surrender the possession
of the disputed property pending trial of theaction. The same may also be answerable for
damages if any when judgment is renderedin favor of the defendant or the party against
whom a writ of replevin was issued and suchjudgment includes the return of the property
to him. Thus, the requirement that the bondbe double the actual value of the properties
litigated upon. Such is the case because thebond will answer for the actual loss to the
plaintiff, which corresponds to the value of
the properties sought to be recovered and fordamages, if any.
The remedies provided under Section 5,Rule 60, are alternative remedies.The
Court held in a prior case that the remediesprovided under Section 5, Rule 60, are
alternative remedies. x x x If a defendant ina replevin action wishes to have the property
taken by the sheriff restored to him, heshould, within five days from such taking,
(1) post a counter-bond in double the valueof said property, and (2) serve plaintiff with
a copy thereof, both requirementsas wellas compliance therewith within the five-day
period mentionedbeing mandatory. Thiscourse of action is available to the defendant
for as long as he does not object to thesufficiency of the plaintiffs bond.
The defendant may object to the sufficiency
of the plaintiffs bond, or of the surety orsureties thereon but if he does so, he
cannot require the return of the property
by posting a counterbond pursuant toSections 5 and 6.The defendant mayobject to the sufficiency of the plaintiffs
bond, or of the surety or sureties thereon;but if he does so, he cannot require the
return of the property by posting a counter-bond pursuant to Sections 5 and 6.
The property seized under a writ of replevin
is not to be delivered immediately to theplaintiff.Under the Revised Rules of
Court, the property seized under a writ ofreplevin is not to be delivered immediately
to the plaintiff. This is because a possessorhas every right to be respected in its
possession and may not be deprived of itwithout due process.
c.2Republic v. Saludares, G.R. No.
111174, March 9, 2000
At issue is the jurisdiction of the trial court
over properties owned by Lianga BayLogging Company, Inc. (LBLC), butallegedly sequestered by the Presidential
Commission on Good Government (PCGG).
InBASECO vs. PCGG, 150 SCRA 181, 182(1987), sequestration is defined as the
process, which may be employed as aconservatory writ whenever the right of the
property is involved, to preserve, pendinglitigation, specific property subject to
conflicting claims of ownership or liens andprivileges. The Court also noted the
relationship between attachment andreceivership, on one hand, and sequestration,
freeze order and provisional takeover on theother. The latter are ancillary remedies in
prosecuting the ill-gotten wealthof theprevious Marcos regime. The Court
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observed that sequestration, freezing andprovisional takeover are akin to the
provisional remedy of preliminaryattachment or receivership.
In our view, the disputed properties ofLBLC were already underCustodio legisbyvirtue of a valid writ of sequestration issued
by the PCGG on April 2, 1986, whenrespondent Judge Saludares issued the
assailed writ of attachment in favor ofprivate respondent Hung Ming Kuk. At that
time the writ of sequestration issued byPCGG against LBLC was subsisting. Said
writ of the PCGG could not be interferedwith by the RTC of Lianga, because the
PCGG is a coordinate and co-equal body.The PCGG had acquired by operation of law
the right of redemption over the propertyuntil after the final determination of the case
or until its dissolution.
Syllabus:
When a writ of attachment has been leviedon real property or any interest therein
belonging to the judgment debtor, the levy
creates a lien which nothing can destroy butits dissolution, a rule likewise applicable toa writ of sequestration.By an order of
attachment, a sheriff seizes property of adefendant in a civil suit so that it may stand
as security for the satisfaction of anyjudgment that may be obtained, and not
disposed of, or dissipated, or lostintentionally, or otherwise, pending the
action. When a writ of attachment has beenlevied on real property or any interest
therein belonging to the judgment debtor,the levy creates a lien which nothing can
destroy but its dissolution. This well-settledrule is likewise applicable to a writ of
sequestration.
The law does not provide the length of timeduring which an attachment lien shall
continue after the rendition of judgment, andit must therefore continue until the debt is
paid, or sale is had under execution issuedin the judgment, or until the judgment is
satisfied, or the statement discharged or
vacated in some manner provided by law.Attachment is in the nature of a proceedingin rem. It is against a particular property of a
debtor. The attaching creditor therebyacquires a specific lien upon the attached
property which ripens into a judgmentagainst the res when the order of sale is
made. Such a proceeding is in effect afinding that the property attached is an
indebted thing and results in its virtualcondemnation to pay for the owners debt.
The law does not provide the length of timeduring which an attachment lien shall
continue after the rendition of the judgment,and it must therefore continue until the debt
is paid, or sale is had under execution issuedin the judgment, or until the judgment is
satisfied, or the statement discharged orvacated in some manner provided by law.
A writ of sequestration issued by PCGG
could not be interfered with by the Regional
Trial Court because the PCGG is acoordinate and co-equal body.In ourview, the disputed properties of LBLC were
already under custodia legis by virtue of avalid writ of sequestration issued by the
PCGG on April 2, 1986, when respondentJudge Saludares issued the assailed writ of
attachment in favor of private respondentHung Ming Kuk. At that time the writ of
sequestration issued by PCGG againstLBLC was subsisting. Said writ of the
PCGG could not be interfered with by theRTC of Lianga, because the PCGG is a
coordinate and co-equal body. The PCGGhad acquired by operation of law the right of
redemption over the property until after thefinal determination of the case or until its
dissolution.
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c.3 Tantano v. Espina-Caboverde, 2013
Receivership is a harsh remedy to begranted with utmost circumspection and
only in extreme situations.!We have
repeatedly held that receivership is a harshremedy to be granted with utmostcircumspection and only in extreme
situations. The doctrinal pronouncementin Velasco & Co. v. Gochico & Co is
instructive: The power to appoint a receiveris a delicate one and should be exercised
with extreme caution and only undercircumstances requiring summary relief or
where the court is satisfied that there isimminent danger of loss, lest the injury
thereby caused be far greater than the injurysought to be averted. The court should
consider the consequences to all of theparties and the power should not be
exercised when it is likely to produceirreparable injustice or injury to private
rights or the facts demonstrate that theappointment will injure the interests of
others whose rights are entitled to as muchconsideration from the court as those of the
complainant.
Being a drastic and harsh remedy,
receivership must be granted only whenthere is a clear showing of necessity for it in
order to save the plaintiff from grave andimmediate loss or damage.!Sec. 1(d), Rule
59 of the Rules of Court is couched ingeneral terms and broad in scope,
encompassing instances not covered by theother grounds enumerated under the said
section. However, in granting applicationsfor receivership on the basis of this section,
courts must remain mindful of the basicprinciple that receivership may be granted
only when the circumstances so demand,either because the property sought to be
placed in the hands of a receiver is in dangerof being lost or because they run the risk of
being impaired, and that being a drastic andharsh remedy, receivership must be granted
only when there is a clear showing ofnecessity for it in order to save the plaintiff
from grave and immediate loss or damage.
Before appointing a receiver, courts shouldconsider: (1) whether or not the injury
resulting from such appointment wouldprobably be greater than the injury ensuing
if the status quo is left undisturbed; and (2)whether or not the appointment will imperil
the interest of others whose rights deserveas much a consideration from the court as
those of the person requesting forreceivership.!Before appointing a receiver,
courts should consider: (1) whether or notthe injury resulting from such appointment
would probably be greater than the injuryensuing if the status quo is left undisturbed;
and (2) whether or not the appointment willimperil the interest of others whose rights
deserve as much a consideration from thecourt as those of the person requesting for
receivership. Moreover, this Court hasconsistently ruled that where the effect of
the appointment of a receiver is to take real
estate out of the possession of the defendantbefore the final adjudication of the rights ofthe parties, the appointment should be made
only in extreme cases.
A receiver should not be appointed todeprive a party who is in possession of the
property in litigation, just as a writ ofpreliminary injunction should not be issued
to transfer property in litigation from thepossession of one party to another where the
legal title is in dispute and the party havingpossession asserts ownership in himself,
except in a very clear case of evidentusurpation.!This Court has held that a
receiver should not be appointed to deprivea party who is in possession of the property
in litigation, just as a writ of preliminaryinjunction should not be issued to transfer
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property in litigation from the possession ofone party to another where the legal title is
in dispute and the party having possessionasserts ownership in himself, except in a
very clear case of evident usurpation.
Furthermore, this Court has declared that theappointment of a receiver is not proper whenthe rights of the parties, one of whom is in
possession of the property, depend on thedetermination of their respective claims to
the title of such property unless suchproperty is in danger of being materially
injured or lost, as by the prospectiveforeclosure of a mortgage on it or its
portions are being occupied by third personsclaiming adverse title.
Section 2 of Rule 59, Rules of Court is very
clear in that before issuing the orderappointing a receiver the court shall require
the applicant to file a bond executed to theparty against whom the application is
presented.!Sec. 2 of Rule 59 is very clearin that before issuing the order appointing a
receiver the court shallrequire the applicantto file a bond executed to the party against
whom the application is presented. The use
of the word shall denotes its mandatorynature; thus, the consent of the other party,or as in this case, the consent of petitioners,
is of no moment. Hence, the filing of anapplicants bond is required at all times. On
the other hand, the requirement of areceivers bond rests upon the discretion of
the court. Sec. 2 of Rule 59 clearly statesthat the court may, in its discretion, at any
time after the appointment, require anadditional bond as further security for such
damages.
d.Replevin (Rule 60)
d.1Twin Ace Holding v. Rufina andCompany, G.R. No. 160191, June 8, 2006.
Issues:
I.
THE HONORABLE COURT OFAPPEALS ERRED IN HOLDING THAT
RESPONDENT RUFINA IS NOT
COVERED WITHIN THE EXEMPTIONPROVIDED BY SECTION 6 OF R.A. 623,AS AMENDED BY R.A. 5700.
II.THE HONORABLE COURT OF
APPEALS ERRED IN AWARDINGNOMINAL DAMAGES AGAINST
PETITIONER TWIN ACE CONSIDERINGTHAT IT WAS THE ONE WHOSE
RIGHTS HAVE BEEN VIOLATED ORINVADED BY RESPONDENT RUFINA.
III.THE HONORABLE COURT OF
APPEALS ERRED IN NOT FINDINGTHAT PETITIONER AS OWNER OF THE
SUBJECT BOTTLES IS ENTITLED TOCOMPENSATION FOR ITS
UNAUTHORIZED USE BYRESPONDENT RUFINA.9
WHEREFORE, premises considered, the
instant petition is DENIED for lack of merit
and the decision dated 27 September 2002and resolution dated 29 September 2003, inCA-G.R. CV No. 52852, both of the Court
of Appeals are Affirmed.
Section 6 of Republic Act No. 623 applies to
all manufacturers of sisi, bagoong, patis,and similar native products without
distinction or qualification as to whetherthey are small, medium or large scale.
Attempts to amend the protection affordedby Section 6 of Republic Act No. 623, by
giving protection only to small scalemanufacturers or those with a capitalization
of five hundred thousand pesos or less(P500,000.00), through then House Bill No.
20585, and subsequently through House BillNo. 30400, proved unsuccessful as the
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amendment proposed in both Bills wasnever passed. In view of these
considerations, we find and so hold that theexemption contained in Section 6 of Rep.
Act No. 623 applies to all manufacturers
ofsisi, bagoong, patisand similar nativeproducts without distinction or qualificationas to whether they are small, medium or
large scale.
Wrongful detention by the defendant of theproperties sought in an action for replevin
must be satisfactorily established.Rule 60,Section 2(a), of the Revised Rules of Court
mandates that a party praying for therecovery of possession of personal property
must show by his own affidavit or that ofsome other person who personally knows
the facts that he is the owner of the propertyclaimed, particularly describing it, or is
entitled to the possession thereof. It must beborne in mind that replevin is a possessory
action the gist of which focuses on the rightof possession that, in turn, is dependent on a
legal basis that, not infrequently, looks tothe ownership of the object sought to be
replevined. Wrongful detention by the
defendant of the properties sought in anaction for replevin must be satisfactorilyestablished. If only a mechanistic averment
thereof is offered, the writ should not beissued. In this case, Twin Ace has not shown
that it is entitled to the possession of thebottles in question and consequently there is
thus no basis for the demand by it of duecompensation.
d.2Superlines Transportation v. PNCC, G.R.
No. 169596, March 28, 2007
In a complaint for replevin, the claimantmust convincingly show that he is either the
owner or clearly entitled to the possession ofthe object sought to be recovered, and that
the defendant, who is in actual or legalpossession thereof, wrongfully detains the
same; The term replevin is popularlyunderstood as the return to or recovery by
a person of goods or chattels claimed to bewrongfully taken or detained upon the
persons giving security to try the matter in
court and return the goods if defeated in theaction.On to the substantiveissues.Tillson v. Court of Appeals, 197
SCRA 587 (1991), discusses the termreplevin as follows: The term replevin is
popularly understood as the return to orrecovery by a person of goods or chattels
claimed to be wrongfully taken ordetainedupon the persons giving security
to try the matter in court and return thegoods if defeated in the action; the writ by
or the common-law action in which goodsand chattels are replevied, i.e., taken or
gotten back by a writ for replevin; and toreplevy, means to recover possession by an
action of replevin; to take possession ofgoods or chattels under a replevin order.
Bouviers Law Dictionary defines replevinas a form of action which lies to regain the
possession of personal chattels which havebeen taken from the plaintiff unlawfully x x
x, (or as) the writ by virtue of which the
sheriff proceeds at once to take possessionof the property therein described andtransfer it to the plaintiff upon his giving
pledges which are satisfactory to the sheriffto prove his title, or return the chattels taken
if he fail so to do; the same authority statesthat the term, to replevy means to
redeliver goods which have been distrainedto the original possessor of them, on his
giving pledges in an action of replevin. Theterm therefore may refer either to the action
itself, for the recovery of personalty, or theprovisional remedy traditionally associated
with it, by which possession of the propertymay be obtain[ed] by the plaintiff and
retained during the pendency of the action.(Emphasis and italics supplied; citations
omitted) In a complaint for replevin, theclaimant must convincingly show that he is
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either the owner or clearly entitled to thepossession of the object sought to be
recovered, and that the defendant, who is inactual or legal possession thereof,
wrongfully detains the same.
The rule that property held as evidence in acriminal case cannot be replevied applies
only where the property is lawfully held, thatis, seized in accordance with the rule
against warrantless searches and seizuresor its accepted exceptions; A thing is in
custodia legis when it is shown that it hasbeen and is subjected to the official custody
of a judicial executive officer in pursuanceof his execution of a legal writ. Only when
property is lawfully taken by virtue of legalprocess is it considered in the custody of the
law, and not otherwise.That a year afterthe incident the driver of the bus was
criminally charged for reckless imprudenceresulting to damage to property in which the
bus could possibly be held as evidence doesnot affect the outcome of this case. As
explained inBagalihog v. Fernandez, 198SCRA 614 (1991): It is true that property
held as evidence in a criminal case cannot be
replevied. But the rule applies only wherethe property is lawfully held, that is, seizedin accordance with the rule against
warrantless searches and seizures or itsaccepted exceptions. Property subject of
litigation is not by that fact alone in custodialegis. As the Court said in Tamisin v.
Odejar, 108 Phil. 560 (1960), A thing is incustodia legis when it is shown that it has
been and is subjected to the official custodyof a judicial executive officer in pursuance
of his execution of a legal writ. Only whenproperty is lawfully taken by virtue of legal
process is it considered in the custody of thelaw, and not otherwise. (Emphasis and
underscoring supplied; italics in the original;citations omitted) Petitioners prayer for
recovery of possession of the bus is, in lightof the foregoing discussion, thus in order.
d.3Dagudag v. Paderanga, A.M.-RTJ No.
06-2017, June 19, 2008Dismissal of the replevin suit for lack of
cause of action in view of the private
respondents failure to exhaustadministrative remedies should have beenthe proper course of action by the lower
court instead of assuming jurisdiction overthe case and consequently issuing the writ
[of replevin].In the instant case, Edma didnot resort to, or avail of, anyadministrative
remedy. He went straight to court and filed acomplaint for replevin and damages. Section
8 of Presidential Decree No. 705, asamended, states that (1) all actions and
decisions of the Bureau of ForestDevelopment Director are subject to review
by the DENR Secretary; (2) the decisions ofthe DENR Secretary are appealable to the
President; and (3) courts cannot review thedecisions of the DENR Secretary except
through a special civil actionfor certiorarior prohibition. InDy, 304
SCRA 331 (1999), the Court held that allactions seeking to recover forest products in
the custody of the DENR shall be directed to
that agencynot the courts. InPaat vs.Court of Appeals, 266 SCRA 167 (1997),the Court held that: Dismissal of the
replevin suit for lack of cause of action inview of the private respondents failure to
exhaust administrative remedies should havebeen the proper course of action by the
lower court instead of assuming jurisdictionover the case and consequently issuing the
writ [of replevin]. Exhaustion of theremedies in the administrative forum, being
a condition precedent prior to ones recourseto the courts and more importantly, being an
element of private respondents right ofaction, is too significant to be waylaid by the
lower court. x x x x Moreover, the suit forreplevin is never intended as a procedural
tool to question the orders of confiscationand forfeiture issued by the DENR in
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pursuance to the authority given under P.D.705, as amended. Section 8 of the said law is
explicit that actions taken by the Director ofthe Bureau of Forest Development
concerning the enforcement of the
provisions of the said law are subject toreview by the Secretary of DENR and thatcourts may not review the decisions of the
Secretary except through a special civilaction for certiorari or prohibition.
In Calub v. Court of Appeals, 331 SCRA 55
(2000), the Court held that propertieslawfully seized by the Department of
Environment and Natural Resources(DENR) cannot be the subject of replevin.
The forest products are already incustodialegisand thus cannot be the subject of
replevin. There was a violation of theRevised Forestry Code and the DENR
seized the forest products in accordance withlaw. In Calub v. Court of Appeals, 331
SCRA 55 (2000), the Court held thatproperties lawfully seized by the DENR
cannot be the subject of replevin: Sincethere was a violation of the Revised Forestry
Code and the seizure was in accordance with
law, in our view the [properties seized] werevalidly deemed in custodia legis. [They]could not be subject to an action for
replevin. For it is property lawfully taken byvirtue of legal process and considered in the
custody of the law, and not otherwise.
Judge Paderangas acts of takingcognizance of the replevin suit and of
issuing the writ of replevin constitute grossignorance of the law.Judge Paderangas
acts of taking cognizance of the replevin suitand of issuing the writ of replevin constitute
gross ignorance of the law. In Tabao, 364SCRA 322 (2001), the Court held that:
Under the doctrine of primary jurisdiction,courts cannot take cognizance of cases
pending before administrative of specialcompetence. x x x [T]he plaintiff in the
replevin suit who [sought] to recover theshipment from the DENR had not exhausted
the administrative remedies available to him.The prudent thing for respondent judge to
have done was to dismiss the replevin suit
outright.
e.Support Pendete Lite (Rule 61) coverage
midterms
e.1Mangonon v. Court of Appeals, G.R. No.125041, June 30, 2006
Because of the provisional nature of an
application for support pendente lite, acourt does not need to delve fully into the
merits of the case before it can settle anapplication for this relief.As a preliminary
matter, we deem it necessary to brieflydiscuss the essence of supportpendente lite.
The pertinent portion of the Rules of Courton the matter provides: Rule 61, SUPPORT
PENDENTE LITE: SECTION1.Application.At the commencement of
the proper action or proceeding, or at anytime prior to the judgment or final order, a
verified application for supportpendente
litemay be filed by any party stating thegrounds for the claim and the financialconditions of both parties, and accompanied
by affidavits, depositions or other authenticdocuments in support thereof. x x x x. SEC.
4. Order.The court shall determineprovisionally the pertinent facts, and shall
render such orders as justice and equity mayrequire, having due regard to the probable
outcome of the case and such othercircumstances as may aid in the proper
resolution of the question involved. If theapplication is granted, the court shall fix the
amount of money to be provisionally paid orsuch other forms of support as should be
provided, taking into account the necessitiesof the applicant and the resources or means
of the adverse party, and the terms ofpayment or mode for providing the support.
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If the application is denied, the principalcase shall be tried and decided as early as
possible. Under this provision, a court maytemporarily grant supportpendente liteprior
to the rendition of judgment or final order.
Because of its provisional nature, a courtdoes not need to delve fully into the meritsof the case before it can settle an application
for this relief. All that a court is tasked to dois determine the kind and amount of
evidence which may suffice to enable it tojustly resolve the application. It is enough
that the facts be established by affidavits orother documentary evidence appearing in the
record.
The obligation to give support restsprincipally on those more closely related to
the recipient.Having addressed the issueof the propriety of the trial courts grant of
supportpendente litein favor of Rica andRina, the next question is who should be
made liable for said award. The pertinentprovision of the Family Code on this subject
states: ART. 199. Whenever two or morepersons are obliged to give support, the
liability shall devolve upon the following
persons in the order herein provided: (1) Thespouse; (2) The descendants in the nearestdegree; (3) The ascendants in the nearest
degree; and (4) The brothers and sisters. Aneminent author on the subject explains that
the obligation to give support restsprincipally on those more closely related to
the recipient. However, the more remoterelatives may be held to shoulder the
responsibility should the claimant prove thatthose who are called upon to provide
support do not have the means to do so.
In this case, the Court believes that thegrandfather could not avail himself of the
second option provided under Article 204 ofthe Family Codereceiving and
maintaining in the family dwelling theperson who has a right to receive support
in view of the filing of the instant case, andthe allegations hurled at one another by the
parties, and particularly difficult for therecipients must be the fact that those who
they had considered and claimed as family
denied having any familial relationship withthem.In this case, this Court believes thatrespondent Francisco could not avail himself
of the second option. From the records, wegleaned that prior to the commencement of
this action, the relationship betweenrespondent Francisco, on one hand, and
petitioner and her twin daughters, on theother, was indeed quite pleasant. The
correspondences exchanged among themexpressed profound feelings of
thoughtfulness and concern for oneanothers well-being. The photographs
presented by petitioner as part of herexhibits presented a seemingly typical
family celebrating kinship. All of these,however, are now things of the past. With
the filing of this case, and the allegationshurled at one another by the parties, the
relationships among the parties had certainlybeen affected. Particularly difficult for Rica
and Rina must be the fact that those who
they had considered and claimed as familydenied having any familial relationship withthem. Given all these, we could not see Rica
and Rina moving back here in thePhilippines in the company of those who
have disowned them.
Considering that the recipients may havealready been done with their education by
the time of the promulgation of the decision,the Court deems it proper to award support
pendente lite in arrears to be computed fromthe time they entered college until they had
finished their respective studies.As to theamount of supportpendente lite, we take our
bearings from the provision of the lawmandating the amount of support to be
proportionate to the resources or means ofthe giver and to the necessities of the
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recipient. Guided by this principle, we holdrespondent Francisco liable for half of the
amount of school expenses incurred by Ricaand Rina as supportpendente lite. As
established by petitioner, respondent
Francisco has the financial resources to paythis amount given his various businessendeavors. Considering, however, that the
twin sisters may have already been donewith their education by the time of the
promulgation of this decision, we deem itproper to award supportpendente litein
arrears to be computed from the time theyentered college until they had finished their
respective studies.
Support Pendente Lite; In case it would beresolved that the recipients are not entitled
to support pendente lite, they shall returnthe amounts already paid with legal interest
from the dates of actual payment.Theissue of the applicability of Article 15 of the
Civil Code on petitioner and her twindaughters raised by respondent Francisco is
best left for the resolution of the trial court.After all, in case it would be resolved that
Rica and Rina are not entitled to
supportpendente lite, the court shall thenorder the return of the amounts already paidwith legal interest from the dates of actual
payment.