G.R. No.
141853       February 7, 2001
TERESITA V. IDOLOR, petitioner,  nagkakasundo sa pamamagitan nito na ayusin ang aming
vs.
HON. COURT OF APPEALS, SPS. GUMERSINDO DE
GUZMAN and ILUMINADA DE GUZMAN and HON.
PRUDENCIO A. CASTILLO, JR., Presiding Judge, Regional
Trial Court, National Capital Judicial Region, Branch 220,
Quezon City, respondents.
GONZAGA-REYES, J.:
This is a petition for review on certiorari filed by petitioner Teresita
Idolor which seeks to set aside the decision1 of the respondent
Court of Appeals which reversed the Order2 of the Regional Trial
Court of Quezon City3 granting Idolor's prayer for the issuance of
a writ of preliminary injunction and the resolution denying
petitioner's motion for reconsideration.4
On March 21, 1994, to secure a loan of P520,000.00, petitioner
Teresita Idolor executed in favor of private respondent
Gumersindo De Guzman a Deed of Real Estate Mortgage with
right of extra-judicial foreclosure upon failure to redeem the
mortgage on or before September 20, 1994. The object of said
mortgage is a 200-square meter property with improvements
located at 66 Ilocos Sur Street, Barangay Ramon Magsaysay,
Quezon City covered by TCT No. 25659.
On September 21, 1996, private respondent Iluminada de
Guzman, wife of Gumersindo de Guzman, filed a complaint
against petitioner Idolor before the Office of the Barangay Captain
of Barangay Ramon Magsaysay, Quezon City, which resulted in a
"Kasunduang Pag-aayos" which agreement is quoted in full5:
"Kami, ang (mga) may sumbong at (mga)
ipinagsusumbong sa usaping binabanggit sa itaas, ay
alitan gaya ng sumusunod:
Na ako si Teresita V. Idolor of legal age ay nakahiram ng
halagang P520,000.00 noong September 20, 1994.
Na ang nasabing halaga ay may nakasanlang titulo ng
lupa (TCT No. 25659) under Registry receipt 3420 dated
July 15, 1996.
Na ako si Teresita V. Idolor ay humihingi ng 90 days
palugit (grace period) to settle the said amount.
Failure to settle the above account on or before
December 21, 1996, I agree to execute a deed of sale
with the agreement to repurchase without interest within
one year.
Total amount of P1,233,288.23 inclusive of interest
earned.
At nangangako kami na tutupad na tunay at matapat sa
mga katakdaan ng pag-aayos na inilahad sa itaas."
Petitioner failed to comply with her undertaking; thus private
respondent Gumersindo filed a motion for execution before the
Office of the Barangay captain who subsequently issued a
certification to file action.
On March 21, 1997, respondent Gumersindo De Guzman filed an
extra judicial foreclosure of the real estate mortgage pursuant to
the parties agreement set forth in the real estate mortgage dated
March 21, 1994.
On May 23, 1997, the mortgaged property was sold in a public
auction to respondent Gumersindo, as the highest bidder and
consequently, the Sheriff's Certificate of Sale was registered with
the Registry of Deeds of Quezon City on June 23, 1997.
On June 25, 1998, petitioner filed with the Regional Trial Court of
Quezon City, Branch 220, a complaint for annulment of Sheriff's
Certificate of Sale with prayer for the issuance of a temporary
restraining order (TRO) and a writ of preliminary injunction
against private respondents, Deputy Sheriffs Marino Cachero and
Rodolfo Lescano and the Registry of Deeds of Quezon City
alleging among others alleged irregularity and lack of notice in the
extra-judicial foreclosure proceedings subject of the real estate
mortgage. In the meantime, a temporary restraining order was
issued by the trial court. 
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On July 28, 1998, the trial court issued a writ of preliminary
injunction enjoining private respondents, the Deputy Sheriffs and
the Registry of Deeds of Quezon City from causing the issuance
of a final deed of sale and consolidation of ownership of the
subject property in favor of the De Guzman spouses. The trial
court denied the motion for reconsideration filed by the de
Guzman spouses.
Spouses de Guzman filed with the respondent Court of Appeals a
petition for certiorari seeking annulment of the trial court's order
dated July 28, 1998 which granted the issuance of a preliminary
injunction.
On September 28, 1999, the respondent court granted the
petition and annulled the assailed writ of preliminary injunction.
Teresita Idolor filed her motion for reconsideration which was
denied in a resolution dated February 4, 2000.
Hence this petition for review on certiorari filed by petitioner
Teresita V. Idolor. The issues raised by petitioner are: whether or
not the respondent Court of Appeals erred in ruling (1) that
petitioner has no more proprietary right to the issuance of the writ
of injunction, (2) that the "Kasunduang Pag-aayos" did not ipso
facto result innovation of the real estate mortgage, (3) that the
"Kasunduang Pag-aayos" is merely a promissory note of
petitioner to private respondent spouses; and (4) that the
questioned writ of preliminary injunction was issued with grave
abuse of discretion.
The core issue in this petition is whether or not the respondent
Court erred in finding that the trial court committed grave abuse of
discretion in enjoining the private and public respondents from
causing the issuance of a final deed of sale and consolidation of
ownership of the subject parcel of land in favor of private
respondents.
Petitioner claims that her proprietary right over the subject parcel
of land was not yet lost since her right to redeem the subject land
for a period of one year had neither lapsed nor run as the sheriff's
certificate of sale was null and void; that petitioner and the
general public have not been validly notified of the auction sale
conducted by respondent sheriffs; that the newspaper utilized in
the publication of the notice of sale was not a newspaper of
general circulation.
We do not agree.
Injunction is a preservative remedy aimed at protecting
substantive rights and interests.6 Before an injunction can be
issued, it is essential that the following requisites be present: 1)
there must be aright in esse or the existence of a right to be
protected; 2) the act against which the injunction is to be directed
is a violation of such right.7 Hence the existence of a right
violated, is a prerequisite to the granting of an injunction.
Injunction is not designed to protect contingent or future rights.
Failure to establish either the existence of a clear and positive
right which should be judicially protected through the writ of
injunction or that the defendant has committed or has attempted
to commit any act which has endangered or tends to endanger
the existence of said right, is a sufficient ground for denying the
injunction.8 The controlling reason for the existence of the judicial
power to issue the writ 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.9 It is to be resorted to only when there is a
pressing necessity to avoid injurious consequences which cannot
be remedied under any standard of compensation.10
In the instant case, we agree with the respondent Court that
petitioner has no more proprietary right to speak of over the
foreclosed property to entitle her to the issuance of a writ of
injunction. It appears that the mortgaged property was sold in a
public auction to private respondent Gumersindo on May 23,
1997 and the sheriff's certificate of sale was registered with the
Registry of Deeds of Quezon City on June 23, 1997. Petitioner
had one year from the registration of the sheriff's sale to redeem
the property but she failed to exercise her right on or before June
23, 1998, thus spouses de Guzman are now entitled to a
conveyance and possession of the foreclosed property. When
petitioner filed her complaint for annulment of sheriff's sale
against private respondents with prayer for the issuance of a writ
of preliminary injunction on June 25, 1998, she failed to show
sufficient interest or title in the property sought to be protected as
her right of redemption had already expired on June 23, 1998, i.e.
two (2) days before the filing of the complaint. It is always a
ground for denying injunction that the party seeking it has
insufficient title or interest to sustain it, and no claim to the
ultimate relief sought - in other words, that she shows no
equity.11 The possibility of irreparable damage without proof of
actual existing right is not aground for an injunction.12
Petitioner's allegation regarding the invalidity of the sheriff's sale
dwells on the merits of the case; We cannot rule on the same
considering that the matter should be resolved during the trial on
the merits.
Petitioner next contends that the execution of the "Kasunduang
Pag-aayos" dated September 21, 1996 between her and spouses
de Guzman before the Office of the Lupon Tagapamayapa
showed the express and unequivocal intention of the parties to
novate or modify the real estate mortgage; that a comparison of
the real estate mortgage dated March 21, 1994 and the
"Kasunduang Pag-aayos" dated September 21, 1996 revealed
the irreconciliable incompatibility between them, i.e., that under
the first agreement, the amount due was five hundred twenty
thousand (P520,000) pesos only payable by petitioner within six
(6) months, after which it shall earn interest at the legal rate per
annum and non-payment of which within the stipulated period,
private respondents have the right to extra-judicially foreclose the
real estate mortgage while under the second agreement, the
amount due was one million two hundred thirty three thousand
two hundred eighty eight and 23/100 (P1,233,288.23) inclusive of
interest, payable within 90 days and in. case of non payment of
the same on or before December 21, 1996, petitioner should
execute a deed of sale with right to repurchase within one year
without interest; that the second agreement "Kasunduang Pag-
aayos" was a valid new contract as it was duly executed by the
parties and it changed the principal conditions of petitioner's
original obligations. Petitioner insists that the "Kasunduang Pag-
aayos" was not a mere promissory note contrary to respondent
court's conclusion since it was entered by the parties before the
Lupon Tagapamayapa which has the effect of a final judgment.13
We are not persuaded.
Novation is the extinguishment of an obligation by the substitution
or change of the obligation by a subsequent one which terminates
it, either by changing its objects or principal conditions, or by
substituting a new debtor in place of the old one, or by
subrogating a third person to the rights of the creditor.14 Under the
law, novation is never presumed. The parties to a contract must
expressly agree that they are abrogating their old contract in favor
of a new one.15 Accordingly, it was held that no novation of a
contract had occurred when the new agreement entered into
between the parties was intended to give life to the old one.16
A review of the "Kasunduang Pag-aayos" which is quoted earlier
does not support petitioner's contention that it novated the real
estate mortgage since the will to novate did not appear by
express agreement of the parties nor the old and the new
contracts were incompatible in air points. In fact, petitioner
expressly recognized in the Kasunduan the existence and the
validity of the old obligation where she acknowledged her long
overdue account since September 20, 1994 which was secured
by a real estate mortgage and asked for a ninety (90) days grace
period to settle her obligation on or before December 21, 1996
and that upon failure to do so, she will execute a deed of sale
with a right to repurchase without interest within one year in favor
of private respondents. Where the parties to the new obligation
expressly recognize the continuing existence and validity of the
old one, where, in other words, the parties expressly negated the
lapsing of the old obligation, there can be no novation.17 We find
no cogent reason to disagree with the respondent court's
pronouncement as follows:
"In the present case. there exists no such express
abrogation of the original undertaking. The agreement
adverted to (Annex 2 of Comment, p.75 Rollo) executed
by the parties on September 21, 1996 merely gave life to
the March 21, 1994 mortgage contract which was then
more than two years overdue. Respondent acknowledged
therein her total indebtedness in the sum of
P1,233,288.23 including the interests due on the unpaid
mortgage loan which amount she promised to liquidate
within ninety (90) days or until December 21, 1996, failing
which she also agreed to execute in favor of the
.mortgagee a deed of sale of the mortgaged property for
the same amount w1thout interest. Evidently, it was
executed to facilitate easy compliance by respondent
mortgagor with her mortgage obligation. It (the September
21, 1996 agreement) is not incompatible and can stand
together with the mortgage contract of March 21, 1994.
A compromise agreement clarifying the total sum owned
by a buyer with the view that he would find it easier to
comply with his obligations under the Contract to Sell
does not novate said Contract to Sell (Rillo v. Court
of Appeals, 274 SCRA 461 [1997]).
Respondent correctly argues that the compromise
agreement has the force and effect of a final judgment.
That precisely is the reason why petitioner resorted to the
foreclosure of the mortgage on March 27, 1997, after her
failure to comply with her obligation which expired on
December 21, 1996.
Reliance by private respondent upon Section 417 of the
New Local Government Code of 1991, which requires the
lapse of six (6) months before the amicable settlement
may be, enforced, is misplaced. The instant case deals
 with extra judicial foreclosure governed by ACT No. 3135 A.M. No. MTJ-00-1250. February 28, 2001
as amended."
RIMEO S. GUSTILO, complainant, vs. HON.
Notably, the provision in the "Kasunduang Pag-aayos" regarding
the execution of a deed of sale with right to repurchase within one RICARDO S. REAL, SR., Presiding Judge, 2nd
year would have the same effect as the extra-judicial foreclosure Municipal Circuit Trial Court of Victorias-
of the real estate mortgage wherein petitioner was given one year Manapla, Negros Occidental,respondent.
from the registration of the sheriff's sale in the Registry of
property to redeem the property, i.e., failure to exercise the right RESOLUTION
of redemption would entitle the purchaser to possession of the
property. It is not proper to consider an obligation novated by.
unimportant modifications which do not alter its essence.18 It QUISUMBING, J.:
bears stress that the period to pay the total amount of petitioner's
indebtedness inclusive of interest amounted to P1,233,288.23 In a verified complaint 1 dated June 15, 1997,
expired on December 21, 1996 and petitioner failed to execute a Rimeo S. Gustilo charged respondent Judge
deed of sale with right to repurchase on the said date up to the
time private respondents filed their petition for extra-judicial
Ricardo S. Real, Sr., of the Municipal Circuit Trial
foreclosure of real estate mortgage. The failure of petitioner to Court of Victorias-Manapla, Negros Occidental
comply with her undertaking in the "kasunduan" to settle her with gross misconduct, gross incompetence, gross
obligation effectively delayed private respondents' right to extra- ignorance of the law, and violation of the Anti-
judicially foreclose the real estate mortgage which right accrued Graft and Corrupt Practices Act relative to Civil
as far back as 1994. Thus, petitioner has not shown that she is
entitled to the equitable relief of injunction. 
Case No. 703-M entitled Weddy C. Libo-on v.
Rimeo S. Gustilo, et al. for recounting of ballots of
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WHEREFORE, the petition is DENIED. The decision of the Precinct Nos. 27 and 27-A, Barangay Punta Mesa,
respondent Court of Appeals dated September 28, 1999 is Manapla, Negros Occidental.
hereby AFFIRMED.
Complainant avers that he was a candidate
SO ORDERED. for punong barangay of Barangay Punta Mesa,
Manapla, Negros Occidental in the May 12, 1997
elections. His lone opponent was Weddy C. Libo-
SECOND DIVISION on, then the incumbent punong barangay and the
representative of the Association of Barangay
Captains (ABC) to the Sangguniang Bayan of
Manapla and the Sangguniang Panlalawigan of
Negros Occidental. Both complainant and Libo-on
garnered eight hundred nineteen (819) votes
during the elections, resulting in a tie. The
breaking of the tie by the Board of Canvassers
was in complainants favor and he was proclaimed
duly electedpunong barangay of Punta Mesa,
Manapla. 2cräläwvirtualibräry
On May 20, 1997, his opponent filed an election
protest case, docketed as Civil Case No. 703-M,
before the MCTC of Victorias-Manapla, Negros
Occidental. Libo-on sought the recounting of
ballots in two precincts, preliminary prohibitory
injunction, and damages.
On May 21, 1997, respondent ordered the
issuance of summons to the parties and set the
hearing on June 6, 1997. 3cräläwvirtualibräry
On May 27, 1997, however, Libo-on filed a motion
to advance the hearing to May 29 and 30, 1997.
The next day, respondent granted Libo-ons
motion. The hearing was advanced to May 29 and
30, 1997 cancelling the hearing for June 6,
1997. 4 Complainant avers that he was not
furnished a copy of this Order dated May 28,
1997.
On May 29, 1997, respondent judge issued a
temporary restraining order (TRO) and annulled
the proclamation of complainant as the duly
elected punong barangay of Punta Mesa,
Manapla. 5 Complainant declares that no copy of
this Order dated May 29, 1997 was served on
him. That same day, however, he was able to
secure copies of the orders of respondent dated
May 28 and May 29, 1997 from the COMELEC
Registrar of Manapla, Negros Occidental and the
Department of Interior and Local Government
(DILG). Moreover, it was only in the afternoon of
May 29, 1997 that complainant received a copy of
Libo-ons petition in Civil Case No. 703-M and
respondents Order dated May 21, 1997.
On May 30, 1997, complainant took his oath of
office as punong barangay. 6 That same day, he
also filed a petition for certiorari before the
Regional Trial Court of Silay City, Negros
Occidental, Branch 69 docketed as Special Civil
Action No. 1936-69.
On June 5, 1997, the RTC lifted the TRO issued by
respondent and declared as null and void the
order nullifying complainants proclamation as duly
elected punong barangay. 7cräläwvirtualibräry
Believing that respondent could not decide Civil
Case No. 703-M impartially, complainant moved
for his inhibition.
On June 11, 1997, respondent denied
complainants motion for inhibition and after
hearing Libo-ons motion for permanent injunction,
issued a second TRO to maintain the
status quobetween the contending
parties. 8cräläwvirtualibräry
Complainant argues that by issuing the second
TRO, respondent reversed the order of the RTC of
Silay City dated June 5, 1997. He also claims that
by preventing him from assuming office, he was
excluded by the DILG from participating in the
election of the Liga ng Mga Barangay on June 14,
1997.
In his Comment, respondent denied the
allegations. He claimed that when Libo-on filed his
motion to advance the hearing of the prayer for
injunction on May 27, 1997 in Civil Case No. 703-
M, complainant was served a copy by registered
mail as shown by the registry receipts attached to
said motion. Considering the urgency of the
matter and since there was substantial
compliance with due process, he issued the Order
of May 28, 1997 which cancelled the hearing set
for June 6, 1997 and advanced it to May 29 and
30, 1997.
Respondent claims that on May 29, 1997, Libo-on
and his counsel appeared but complainant did
not, despite due notice. The hearing then
proceeded, with Libo-on presenting his evidence.
As a result, he issued the TRO prayed for and
annulled complainants proclamation. Respondent
admits that the Order of May 29, 1997,
particularly the annulment of complainants
proclamation, was outside the jurisdiction of his
court. But since the COMELEC ignored Libo-ons
petition for correction of erroneous tabulation and
Libo-on had no other remedy under the law, he
was constrained to annul complainants
proclamation, which from the very beginning was
illegal. He justified his action by our rulings in
Bince, Jr. v. COMELEC, 312 Phil. 316 (1995)
and Tatlonghari v. COMELEC, 199 SCRA 849
(1991), which held that a faulty tabulation cannot
be the basis of a valid proclamation.
Respondent also faults the RTC of Silay City for
issuing the Order dated June 5, 1997, which lifted
the TRO he issued and declared void his
nullification of complainants proclamation.
Respondent contends that complainant should
first have exhausted all remedies in his court
before resorting to the special civil action
for certiorari with the RTC. The latter court, in
turn, should have dismissed the action
for certiorari for failure to exhaust judicial
remedies.
With respect to his Order of June 11, 1997,
respondent explains that it was never meant to
reverse the Order of the RTC of Silay City dated
June 5, 1997. He points out that both parties in
Civil Case No. 703-M were present during the
hearing after due notice. After receiving their
evidence, he found that unless a TRO was issued,
Libo-on would suffer a grave injustice and
irreparable injury. He submits that absent fraud,
dishonesty, or corruption, his acts, even if
erroneous, are not the subject of disciplinary
action.
In its evaluation and recommendation report
dated November 29, 1999, the Office of the Court
Administrator (OCA) found that respondents
errors were not honest mistakes in the
performance of his duties. Rather, his actions
showed a bias in favor of Libo-on and evinced a
pattern to prevent the complainant from
assuming office as the duly electedpunong
barangay despite his having been proclaimed as
such by the Board of Canvassers. The OCA
recommends that respondent be fined P20,000.00
and warned that a repetition of similar acts in the
future will be dealt with more severely.
Supreme Court Administrative Circular No. 20-95
provides:
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 (Emphasis supplied).
xxx
4. With the exception of the provisions which
necessarily involve multiple-sala stations,
these rules shall apply to single-sala stations
especially with regard to immediate notice to
all parties of all applications for TRO.
The foregoing clearly show that whenever an
application for a TRO is filed, the court may act on
the application only after all parties have been
notified and heard in a summary hearing. In other
words, a summary hearing may not be dispensed
with. 9 In the instant case, respondent admits that
he issued the injunctive writ sought on May 29,
1997 after receiving the applicants evidence ex
parte. His failure to abide by Administrative
Circular No. 20-95 in issuing the first TRO is grave
abuse of authority, misconduct, and conduct
prejudicial to the proper administration of justice.
Worse, he compounded the infraction by annulling
complainants proclamation as the duly
elected punong barangay of Punta Mesa, Manapla
and prohibiting him from assuming office.
Respondent admits that his court was not vested
with the power or jurisdiction to annul the
proclamation, but seeks to justify his action on
the ground that the proclamation was void ab
initio. In so doing, respondent wantonly usurped a
power exclusively vested by law in the
COMELEC. 10 A judge is expected to know the
jurisdictional boundaries of courts and quasi-
judicial bodies like the COMELEC as mapped out
by the Constitution and statutes and to act only
within said limits. A judge who wantonly arrogates
unto himself the authority and power vested in
other agencies not only acts in oppressive
disregard of the basic requirements of due
process, but also creates chaos and contributes to
confusion in the administration of justice.
Respondent, in transgressing the jurisdictional
demarcation lines between his court and the
COMELEC, clearly failed to realize the position
that his court occupies in the interrelation and
operation of the countrys justice system. He
displayed a marked ignorance of basic laws and
principles. Rule 3.01 of the Code of Judicial
Conduct provides that a judge shall be faithful to
the law and maintain professional competence. By
annulling complainants proclamation as the duly
elected punong barangay, despite being aware of
the fact that his court had no power to do so, not
only is respondent guilty of grave abuse of
authority, he also manifests unfaithfulness to a
basic legal rule as well as injudicious conduct.
Moreover, in willfully nullifying complainants
proclamation despite his courts want of authority,
respondent knowingly issued an unjust order.
Note that the RTC of Silay City corrected
respondents errors by declaring null and void his
Order dated May 29, 1997. Nonetheless, he
compounded his previous errors of judgment by
proceeding to hear Libo-ons motion for
permanent injunction and issuing a second TRO
on June 11, 1997 on the ground that extreme
urgency and grave injustice and irreparable injury
will arise if no injunctive remedy were granted.
Respondent insists that his act did not reverse the
Order of the RTC in Special Civil Action No. 1936-
69, since the second TRO he issued satisfied the
notice and hearing requirements of Circular No.
20-95.
Before an injunctive writ can be issued, it is
essential that the following requisites be present:
(1) there must be a right in esse or the existence
of a right to be protected; and (2) the act against
which injunction to be directed is a violation of
such right. 11 The onus probandi is on movant to
show that there exists a right to be protected,
which is directly threatened by the act 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. 12 In this case, complainant had
been duly proclaimed as the winning candidate
for punong barangay. He had taken his oath of
office. Unless his election was annulled, he was
entitled to all the rights of said office. We do not
see how the complainants exercise of such rights
would cause an irreparable injury or violate the
right of the losing candidate so as to justify the
issuance of a temporary restraining order to
maintain the status quo. We see no reason to
disagree with the finding of the OCA that the
evident purpose of the second TRO was to
prevent complainant from participating in the
election of the Liga ng mga Barangay. Respondent
must be held liable for violating Rule 3.02 of the
Code of Judicial Conduct which provides that, In
every case, a judge shall endeavor diligently to
ascertain the facts and the applicable law
unswayed by partisan interests, public opinion, or
fear of criticism.
In a similar case, a judge was fined P5,000.00 for
failure to observe the requirements of
Administrative Circular No. 20-95 when he issued
a TRO enjoining a duly proclaimed barangay
captain from participating in the elections of
officers of the ABC of Taft, Eastern
Samar. 13 Note, however, that in the instant case,
the respondents infractions are not limited to the
mere issuance of a restraining order without
conducting the summary conference required by
Administrative Circular No. 20-95. He also
annulled the proclamation of the complainant
knowing very well that he had no such authority.
When his first restraining order was set aside and
nullification of complainants proclamation was
declared null and void by the RTC of Silay City, a
superior court, he again issued a TRO, which
showed his partiality to complainants political
rival. Respondent is thus guilty of violating Rules
3.01 and 3.02 of the Code of Judicial Conduct; MICHAEL J. LAGROSAS,
knowingly rendering an unjust order; gross
ignorance of the law or procedure; as well as bias Petitioner,
and partiality. All of the foregoing are serious
charges under Rule 140, Section 3 of the Rules of - versus -
Court. We agree with the sanction recommended
by the OCA, finding it to be in accord with Rule BRISTOL-MYERS SQUIBB (PHIL.), INC./MEAD JOHNSON
140, Section 10 (A) of the Rules of Court. PHIL., RICHARD SMYTH as General Manager and FERDIE
SARFATI, as Medical Sales Director,
WHEREFORE , this COURT finds respondent
Respondents.
judge GUILTY of violating Rules 3.01 and 3.02 of
the Code of Judicial Conduct, knowingly rendering
x- - - - - - - - - - - - - - - - - - - - - - - - - -x
an unjust order, gross ignorance of the law and
BRISTOL-MYERS SQUIBB (PHIL.),
procedure, and bias and partiality. Accordingly, a
fine of Twenty Thousand Pesos (P20,000.00) is INC./MEAD JOHNSON PHIL.,
hereby imposed upon respondent with a STERN
WARNING that a repetition of the same or similar Petitioner,
acts will be dealt with more severely. - versus -
COURT OF APPEALS and MICHAEL J. LAGROSAS,
SO ORDERED.
Respondents.
Republic of the Philippines x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
SUPREME COURT - - - - - - - -x
Manila
DECISION
SECOND DIVISION
QUISUMBING, J.:
 Before this Court are two consolidated petitions. The first
petition, docketed as G.R. No. 168637, filed by Michael J.
Lagrosas, assails the Decision1 dated January 28, 2005 and the
Resolution2 dated June 23, 2005 of the Court of Appeals in
CA-G.R. SP No. 83885. The second petition, docketed as G.R.
No. 170684, filed by Bristol-Myers Squibb (Phil.), Inc./Mead
Johnson Phil., assails the Resolutions3dated August 12, 2005
and October 28, 2005 of the Court of Appeals in CA-G.R. SP
No. 83885.
The facts are undisputed.
Michael J. Lagrosas was employed by Bristol-Myers Squibb
(Phil.), Inc./Mead Johnson Phil. from January 6, 1997 until
March 23, 2000 as Territory Manager in its Medical Sales
Force Division.4
On February 4, 2000, Ma. Dulcinea S. Lim, also a Territory
Manager and Lagrosas’ former girlfriend, attended a district
meeting of territory managers at McDonald’s Alabang Town
Center. After the meeting, she dined out with her friends. She
left her car at McDonald’s and rode with Cesar R. Menquito,
Jr. When they returned to McDonald’s, Lim saw Lagrosas’ car
parked beside her car. Lim told Menquito not to stop his car
but Lagrosas followed them and slammed Menquito’s car
thrice. Menquito and Lim alighted from the car. Lagrosas
approached them and hit Menquito with a metal steering wheel
lock. When Lim tried to intervene, Lagrosas accidentally hit
her head.
Upon learning of the incident, Bristol-Myers required Lagrosas
to explain in writing why he should not be dismissed for
assaulting a co-employee outside of business hours. While the
offense is not covered by the Code of Discipline for Territory
Managers, the Code states that "other infractions not provided
for herein shall be penalized in the most appropriate manner at
the discretion of management."5 In his memo, Lagrosas
admitted that he accidentally hit Lim when she tried to
intervene. He explained that he did not intend to hit her as
shown by the fact that he never left the hospital until he was
assured that she was all right.6
In the disciplinary hearing that followed, it was established
that Lagrosas and Lim had physical confrontations prior to the
incident. But Lagrosas denied saying that he might not be able
to control himself and hurt Lim and her boyfriend if he sees
them together.
On March 23, 2000, Bristol-Myers dismissed Lagrosas
effective immediately.7 Lagrosas then filed a complaint8 for
illegal dismissal, non-payment of vacation and sick leave
benefits, 13th month pay, attorney’s fees, damages and fair
market value of his Team Share Stock Option Grant.
On February 28, 2002, Labor Arbiter Renaldo O. Hernandez
rendered a Decision9 in NLRC NCR Case No. 00-03-02821-
99, declaring the dismissal illegal. He noted that while
Lagrosas committed a misconduct, it was not connected with
his work. The incident occurred outside of company premises
and office hours. He also observed that the misconduct was not
 directed against a co-employee who just happened to be
All other claims of complainant are dismissed for lack of
accidentally hit in the process. Nevertheless, Labor Arbiter
merit.
Hernandez imposed a penalty of three months suspension or
forfeiture of pay to remind Lagrosas not to be carried away by
SO ORDERED.10
the mindless dictates of his passion. Thus, the Arbiter ruled:
On appeal, the National Labor Relations Commission (NLRC)
WHEREFORE, premises considered, judgment is hereby
set aside the Decision of Labor Arbiter Hernandez in its
[rendered] finding that respondent company illegally dismissed
Decision11dated September 24, 2002. It held that Lagrosas was
complainant thus, ORDERING it:
validly dismissed for serious misconduct in hitting his co-
employee and another person with a metal steering wheel lock.
1) [t]o reinstate him to his former position without loss of
The gravity and seriousness of his misconduct is clear from the
seniority rights, privileges and benefits and to pay him full
fact that he deliberately waited for Lim and Menquito to return
backwages reckoned from [the] date of his illegal dismissal on
to McDonald’s. The NLRC also ruled that the misconduct was
23 March 2000 including the monetary value of his
committed in connection with his duty as Territory Manager
vacation/sick leave of 16 days per year reckoned from July 1,
since it occurred immediately after the district meeting of
2000 until actually reinstated, less three (3) months salary as
territory managers.
penalty for his infraction;
Lagrosas moved for reconsideration. On May 7, 2003, the
2) to pay him the monetary equivalent of his accrued and
NLRC issued a Resolution12 reversing its earlier ruling. It
unused combined sick/vacation leaves as of June 30, 2000 of
ratiocinated that the incident was not work-related since it
16 days x 3 years and 4 months – 10 days x P545.45 =
occurred only after the district meeting of territory managers.
P23,636.16 and the present fair market value of his Team
It emphasized that for a serious misconduct to merit dismissal,
Share stock option grant for eight hundred (800) BMS
it must be connected with the employee’s work. The
common shares of stock listed in the New York Stock
dispositive portion of the Resolution states:
Exchange which vested in complainant as of 01 July 1997,
provisionally computed as 90% (800 shares x US$40.00 per
WHEREFORE, premises considered, We find this time no
share x P43.20/US$ = P1,244,160.00).
reason to alter the Labor Arbiter’s Decision of February 28,
2002 and hereby affirm the same in toto. We vacate our
3) to pay him Attorney’s fee of 10% on the entire computable
previous Decision of September 24, 2002.
amount.
 SO ORDERED.13
Bristol-Myers filed a motion for reconsideration which the
NLRC denied in an Order dated February 4, 2004 in NLRC
NCR Case No. 00-03-02821-99 (NLRC NCR CA No. 031646-
02).14 Later, Labor Arbiter Hernandez issued a writ of
execution.15 Notices of garnishment were then served upon the
Philippine British Assurance Co., Inc. for the supersedeas bond
posted by Bristol-Myers and the Bank of the Philippine Islands
for the balance of the judgment award.16
Bristol-Myers moved to quash the writ of execution
contending that it timely filed a petition for certiorari with the
Court of Appeals. The appellate court gave due course to
Bristol-Myers’ petition and issued a temporary restraining
order (TRO)17 enjoining the enforcement of the writ of
execution and notices of garnishment. Upon the expiration of
the TRO, the appellate court issued a writ of preliminary
injunction dated September 17, 2004.18
Bristol-Myers then moved to discharge and release the TRO
cash bond. It argued that since it has posted an injunction cash
bond, the TRO cash bond should be legally discharged and
released.
On January 28, 2005, the appellate court rendered the
following Decision:
WHEREFORE, the petition is GRANTED. The Resolution of
May 7, 2003 and the Order of February 4, 2004 in NLRC NCR
Case No. [00-03-02821-99] (NLRC NCR CA No. [031646-
02]), are REVERSED and SET ASIDE. The public respondent
NLRC’s Decision dated September 24, 2002 which reversed
the Labor Arbiter’s decision and in effect sustained the legality
of the private respondent’s termination and the dismissal of his
claim for the fair market value of the [Team Share] stock
option grant is REINSTATED and AFFIRMED, with
MODIFICATION that the petitioner shall pay the private
respondent the monetary equivalent of his accrued and unused
combined sick/vacation leave plus ten (10%) percent thereof,
as attorney’s fees. The injunction bond and the TRO bond
previously posted by the petitioner areDISCHARGED.
SO ORDERED.19
The appellate court considered the misconduct as having been
committed in connection with Lagrosas’ duty as Territory
Manager since it occurred immediately after the district
meeting of territory managers. It also held that the gravity and
seriousness of the misconduct cannot be denied. Lagrosas
employed such a degree of violence that caused damage not
only to Menquito’s car but also physical injuries to Lim and
Menquito.
Lagrosas filed a motion for reconsideration which the appellate
court denied.
In the meantime, Bristol-Myers moved to release the TRO cash
bond and injunction cash bond in view of the Decision dated
January 28, 2005. On August 12, 2005, the appellate court
 denied the motion as premature since the decision is not yet
final and executory due to Lagrosas’ appeal to this Court.20
Bristol-Myers filed a motion for reconsideration. On October
28, 2005, the appellate court resolved:
WHEREFORE, the petitioner’s Motion [f]or Reconsideration
dated September 6, 2005 is PARTIALLY GRANTED and the
Resolution of August 12, 2005 is RECONSIDERED and SET
ASIDE. The temporary restraining order cash bond in the
amount of SIX HUNDRED THOUSAND PESOS
(P600,000.00) which was posted by the petitioners on July 19,
2004 is ordered DISCHARGED and RELEASED to the
petitioners.
SO ORDERED.21
The appellate court held that upon the expiration of the TRO,
the cash bond intended for it also expired. Thus, the discharge
and release of the cash bond for the expired TRO is proper. But
the appellate court disallowed the discharge of the injunction
cash bond since the writ of preliminary injunction was issued
pendente lite. Since there is a pending appeal with the Supreme
Court, the Decision dated January 28, 2005 is not yet final and
executory.
Hence, the instant petitions.
In G.R. No. 168637, Lagrosas assigns the following errors:
I.
…the Honorable Court of Appeals in declaring that the
termination of employment of the petitioner-appellant was
legal had decided a question of substance in a way not in
accord with the labor laws and jurisprudence and departed
from the accepted and usual course of judicial proceedings, as
to call for the exercise of this Honorable Court’s power of
review and/or supervision.
II.
…the Honorable Court of Appeals in imposing the penalty of
dismissal, being a penalty too harsh in this case, decided a
question of substance in a way not in accord with the labor
laws and jurisprudence and departed from the accepted and
usual course of judicial proceedings, as to call for the exercise
of this Honorable Court’s power of review and/or
supervision.22
In G.R. No. 170684, Bristol-Myers raises the following issue:
[Whether or not the Honorable] Court of Appeals committed
grave abuse of discretion amounting to lack or excess of
jurisdiction in disallowing the release and discharge of
petitioner’s injunction bond.23
Simply put, the basic issues in the instant petitions are: (1) Did
the Court of Appeals err in finding the dismissal of Lagrosas
legal? and (2) Did the Court of Appeals err in disallowing the
 discharge and release of the injunction cash bond?
On the first issue, serious misconduct as a valid cause for the
dismissal of an employee is defined simply as improper or
wrong conduct. It is a transgression of some established and
definite rule of action, a forbidden act, a dereliction of duty,
willful in character, and implies wrongful intent and not mere
error of judgment. To be serious within the meaning and
intendment of the law, the misconduct must be of such grave
and aggravated character and not merely trivial or unimportant.
However serious such misconduct, it must, nevertheless, be in
connection with the employee’s work to constitute just cause
for his separation. The act complained of must be related to the
performance of the employee’s duties such as would show him
to be unfit to continue working for the employer.24
Thus, for misconduct or improper behavior to be a just cause
for dismissal, it (a) must be serious; (b) must relate to the
performance of the employee’s duties; and (c) must show that
the employee has become unfit to continue working for the
employer.25
Tested against the foregoing standards, it is clear that Lagrosas
was not guilty of serious misconduct. It may be that the injury
sustained by Lim was serious since it rendered her unconscious
and caused her to suffer cerebral contusion that necessitated
hospitalization for several days. But we fail to see how such
misconduct could be characterized as work-related and
reflective of Lagrosas’ unfitness to continue working for
Bristol-Myers.
Although we have recognized that fighting within company
premises may constitute serious misconduct, we have also held
that not every fight within company premises in which an
employee is involved would automatically warrant dismissal
from service.26 More so, in this case where the incident
occurred outside of company premises and office hours and
not intentionally directed against a co-employee, as hereafter
explained.
First, the incident occurred outside of company premises and
after office hours since the district meeting of territory
managers which Lim attended at McDonald’s had long been
finished. McDonald’s may be considered an extension of
Bristol-Myers’ office and any business conducted therein as
within office hours, but the moment the district meeting was
concluded, that ceased too. When Lim dined with her friends,
it was no longer part of the district meeting and considered
official time. Thus, when Lagrosas assaulted Lim and
Menquito upon their return, it was no longer within company
premises and during office hours. Second, Bristol-Myers itself
admitted that Lagrosas intended to hit Menquito only. In the
Memorandum27 dated March 23, 2000, it was stated that "You
got out from your car holding an umbrella steering wheel lock
and proceeded to hit Mr. Menquito. Dulce tried to intervene,
but you accidentally hit her on the head, knocking her
unconscious."28Indeed, the misconduct was not directed against
a co-employee who unfortunately got hit in the process. Third,
Lagrosas was not performing official work at the time of the
incident. He was not even a participant in the district meeting.
Hence, we fail to see how his action could have reflected his
unfitness to continue working for Bristol-Myers.
In light of Bristol-Myers’ failure to adduce substantial
evidence to prove that Lagrosas was guilty of serious
misconduct, it cannot use this ground to justify his dismissal.
Thus, the dismissal of Lagrosas’ employment was without
factual and legal basis.
On the second issue, it is settled that the purpose of a
preliminary injunction is to prevent threatened or continuous
irremediable injury to some of the parties before their claims
can be thoroughly studied and adjudicated. Its sole aim is to
preserve the status quo until the merits of the case can be heard
fully.29
A preliminary injunction may be granted only when, among
other things, the applicant, not explicitly exempted, 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 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.30
The injunction bond is intended as a security for damages in
case it is finally decided that the injunction ought not to have
been granted. Its principal purpose is to protect the enjoined
party against loss or damage by reason of the injunction, and
the bond is usually conditioned accordingly.31
In this case, the Court of Appeals issued the writ of
preliminary injunction to enjoin the implementation of the writ
of execution and notices of garnishment "pending final
resolution of this case or unless the [w]rit is sooner lifted by
the Court."32
By its Decision dated January 28, 2005, the appellate court
disposed of the case by granting Bristol-Myers’ petition and
reinstating the Decision dated September 24, 2002 of the
NLRC which dismissed the complaint for dismissal. It also
ordered the discharge of the TRO cash bond and injunction
cash bond. Thus, both conditions of the writ of preliminary
injunction were satisfied.
Notably, the appellate court ruled that Lagrosas had no right to
the monetary awards granted by the labor arbiter and the
NLRC, and that the implementation of the writ of execution
and notices of garnishment was properly enjoined. This in
effect amounted to a finding that Lagrosas did not sustain any
damage by reason of the injunction. To reiterate, the injunction
bond is intended to protect Lagrosas against loss or damage by
reason of the injunction only. Contrary to Lagrosas’ claim, it is
not a security for the judgment award by the labor arbiter.33
Considering the foregoing, we hold that the appellate court
erred in disallowing the discharge and release of the injunction

cash bond.
WHEREFORE, the two consolidated petitions are GRANTED.
In G.R. No. 168637, filed by Michael J. Lagrosas, the Decision
dated January 28, 2005, and the Resolution dated June 23,
2005 of the Court of Appeals in CA-G.R. SP No. 83885 are
REVERSED. The Resolution dated May 7, 2003, and the
Order dated February 4, 2004 of the NLRC in NLRC NCR
Case No. 00-03-02821-99 (NLRC NCR CA No. 031646-02)
are REINSTATED and hereby AFFIRMED.
In G.R. No. 170684, filed by Bristol-Myers Squibb (Phil.),
Inc./Mead Johnson Phil., the Resolutions dated August 12,
2005 and October 28, 2005 of the Court of Appeals in CA-
G.R. SP No. 83885 are REVERSED. The injunction cash bond
in the amount of SIX HUNDRED THOUSAND PESOS
(P600,000) which was posted by Bristol-Myers Squibb (Phil.),
Inc./Mead Johnson Phil. on September 17, 2004 is hereby
ordered DISCHARGED and RELEASED to it.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 179665               April 3, 2013
SOLID BUILDERS, INC. and MEDINA FOODS
INDUSTRIES, INC., Petitioners,  requested the restructuring of its loans, a reduction of
vs.
CHINA BANKING CORPORATION, Respondent.
DECISION
LEONARDO-DE CASTRO, J.:
This petition for review on certiorari1 assails the
Decision2 dated April 16, 2007 and the Resolution3 dated
September 18, 2007 of the Court of Appeals in CA-G.R.
SP No. 81968.
During the period from September 4, 1992 to March 27,
1996, China Banking Corporation (CBC) granted several
loans to Solid Builders, Inc. (SBI), which amounted to
₱139,999,234.34, exclusive of interests and other
charges. To secure the loans, Medina Foods Industries,
Inc. (MFII) executed in CBC’s favor several surety
agreements and contracts of real estate mortgage over
parcels of land in the Loyola Grand Villas in Quezon City
and New Cubao Central in Cainta, Rizal.4
Subsequently, SBI proposed to CBC a scheme through
which SBI would sell the mortgaged properties and share
the proceeds with CBC on a 50-50 basis until such time
that the whole obligation would be fully paid. SBI also
proposed that there be partial releases of the certificates
of title of the mortgaged properties without the burden of
updating interests on all loans.5
In a letter dated March 20, 2000 addressed to CBC, SBI
interests and penalties and the implementation of a
dacion en pago of the New Cubao Central property.6
The letter reads:
March 20, 2000
CHINA BANKING CORPORATION
Dasmarinas cor. Juan Luna Sts.
Binondo, Manila
Attn: Mr. George Yap
Account Officer
Dear Mr. Yap,
This is to refer to our meeting held at your office last
March 10, 2000.
In this regard, please allow us to call your attention on
the following important matters we have discussed:
1. With respect to the penalties, we are
requesting for a reduction in the rates as we
find it onerous considering the big amount
of our loan (₱218,540,648.00). The interest
together with the penalties that you are
imposing is similar to the ones being
charged by private lending institutions, i.e.,
4.5%/month total.
2. As I had discussed with you regarding
Dacion en Pago, which you categorically
stated that it could be a possibility, we are
considering putting our New Cubao Central
(NCC) on Dacion and restructuring our loan
with regards to our Loyola Grand Villas.
Considering that you had stated that our restructuring
had not been finalized, we find it timely to raise these
urgent matters and possibly agree on a realistic and
workable scheme that we can incorporate on our final
agreement.
Thank you and we strongly hope for your prompt
consideration on our request.
Very truly yours,
V. BENITO R. SOLIVEN (Sgd.)
President7
In response, CBC sent SBI a letter dated April 17, 2000
stating that the loans had been completely restructured
effective March 1, 1999 in the amount of
₱218,540,646.00. On the aspect of interests and
charges, CBC suggested the updating of the obligation to
avoid paying interests and charges.8 The relevant portion
of the letter dated April 17, 2000 reads:
First of all, to clarify, the loan’s restructuring has been
finalized and completed on 3/01/99 with the booking of
the Restructured loan of ₱218,540,646. Only two
Amendments of Real Estate Mortgages remain to be
registered to date. Certain documents that we requested
from your company since last year, that could facilitate
this amendment have not yet been forwarded to us until
now. Nevertheless, this does not change the fact that the
restructuring of the loan has been done with and
finalized.
This in turn is with regards to statement[s] no. 1 & 2 of
your letter, referring to the interest rates and penalties.
As per our records, the rates are actually the prevailing
bank interest rates. In addition, penalty charges are
imposed in the event of non-payment. To avoid
experiencing having to pay more due to the penalty
charges, updating of obligations is necessary. Thus, we
advise updating of your obligations to avoid penalty
charges. However, should you be able to update both
interest and penalty through a "one-time" payment, we
shall present your request to Senior Management for
possible reduction in penalty charges.
Concerning statement no. 3 containing your request for
the possible Dacion en Pago of your NCC properties, as
was discussed already in the meeting, it is a concern that
has to be discussed with Senior Management and
approved by the Executive Committee before we can
commit to you on the matter. We suggest that your
company, Solid Builders, exhaust all possibilities to sell
the NCC properties yourselves because, being a real
estate company, Solid has better ways and means of
selling the properties.9
This was followed by another communication from CBC
to SBI reiterating, among others, that the loan has been
restructured effective March 1, 1999 upon issuance by
SBI of promissory notes in favor of CBC. The relevant
portion of that letter dated May 19, 2000 reads:
Again, in response to your query with regards the issue
of the loans restructuring, to reiterate, the loan
restructuring has been finalized and completed on
3/01/99 with the booking of the Restructured loan of
₱231,716,646. The Restructured Loan was effective ever
since the new Promissory Note was signed on the said
date.
The interest rates for the loans are actually rates booked
since the new Promissory Notes were
effective.1âwphi1 Any move of changing it or "re-pricing"
the interest is only possible every 90 days from the
booking date, which represents the interest amortization
payment dates. No change or "re-pricing" in interest rates
is possible since interest payment/obligations have not
yet been paid.
With regards to the possible Dacion en Pago of your
NCC properties, as was discussed already in the
meeting, it is a concern that has to be discussed with
Senior Management and approved by the Executive
Committee before we can commit to you on the matter.
We suggest that your company, Solid Builders, exhaust
all possibilities to sell the NCC properties yourselves
because, being a real estate company, Solid has better PN-MK-
ways and means of selling the properties.10 03/01/200 --------------
TS- 6,870,000.00
4 -
342955
Subsequently, in a letter dated September 18, 2000,
CBC demanded SBI to settle its outstanding account PN-MK-
within ten days from receipt thereof. The letter dated 03/01/200 07/26/199
TS- 5,533,646.00
September 18, 2000 reads: 4 9
342962

September 18, 2000 PN-MK-

03/01/200 --------------
TS- 21,950,000.00
4 -
SOLID BUILDERS, INC. 342979
V.V. Soliven Bldg., I
PN-MK-
EDSA, San Juan, Metro Manila 03/01/200 08/09/199
TS- 3,505,000.00
4 9
342986
1âwphi1
PN PN-MK-
03/01/200 --------------
NUMBE DUE TS- 19,455,000.00
4 -
R O/S BALANCE DATE INTEREST 342993

PN-MK- PN-MK-
03/01/200 04/13/199 03/01/200 --------------
TS- PHP 89,700,000.00 TS- 4,168,000.00
4 9 4 -
342924 343002

PN-MK- PN-MK-
03/01/200 08/05/199 03/01/200 --------------
TS- 19,350,000.00 TS- 12,121,000.00
4 9 4 -
342931 343026

PN-MK- PH₱218,540,646.00
03/01/200 -------------- ===============
TS- 35,888,000.00
4 - =
342948
Greetings!
We refer again to the balances of the abovementioned
Promissory Notes amounting to PH₱218,540,646.00
excluding interest, penalties and other charges signed by
you jointly and severally in our favor, which remains
unpaid up to this date despite repeated demands for
payment.
In view of the strict regulations of Bangko Sentral ng
Pilipinas on past due accounts, we regret that we cannot
hold these accounts further in abeyance. Accordingly, we
are reiterating our request that arrangements to have
these accounts settled within ten (10) days from receipt
hereof, otherwise, we shall be constrained to refer the
matter to our lawyers for collection.
We enclose a Statement of Account as of September 30,
2000 for your reference and guidance.
Very truly yours,
MERCEDES E. GERMAN (Sgd.)
Manager
Loans & Discounts Department – H.O.11
On October 5, 2000, claiming that the interests, penalties
and charges imposed by CBC were iniquitous and
unconscionable and to enjoin CBC from initiating
foreclosure proceedings, SBI and MFII filed a Complaint
"To Compel Execution of Contract and for Performance
and Damages, With Prayer for Writ of Preliminary
Injunction and Ex-Parte Temporary Restraining Order" in
the Regional Trial Court (RTC) of Pasig City. The case
was docketed as Civil Case No. 68105 and assigned to
Branch 264.12
In support of their application for the issuance of writ of
preliminary injunction, SBI and MFII alleged:
IV. APPLICATION FOR PRELIMINARY INJUNCTION
WITH EX- PARTE TEMPORARY RESTRAINING
ORDER
A. GROUNDS FOR PRELIMINARY INJUNCTION
1. That SBI and MFII are entitled to the reliefs
demanded, among which is enjoining/restraining
the commission of the acts complained of, the
continuance of which will work injustice to the
plaintiffs; that such acts are in violation of the
rights of plaintiffs and, if not enjoined/restrained,
will render the judgment sought herein ineffectual.
2. That under the circumstances, it is necessary to
require, through preliminary injunction, CBC to
refrain from immediately enforcing its letters dated
April 17, 2000 and May 19, 2000 and September
18, 2000 during the pendency of this complaint,
and
 3. That SBI and MFII submit that they are exempt
from filing of a bond considering that the letters
dated April 17, 2000, May 19, 2000 and
September 18, 2000 are a patent nullity, and in the
event they are not, they are willing to post such
bond this Honorable Court may determine and
under the conditions required by Section 4, Rule
58.13
In its Answer and Opposition to the issuance of the writ of
preliminary injunction, CBC alleged that to implement the
agreed restructuring of the loan, SBI executed ten
promissory notes stipulating that the interest rate shall be
at 18.5% per annum. For its part, MFII executed third
party real estate mortgage over its properties in favor of
CBC to secure the payment of SBI’s restructured loan.
As SBI was delinquent in the payment of the principal as
well as the interest thereon, CBC demanded settlement
of SBI’s account.14
After hearing the parties, the trial court issued an Order
dated December 14, 2000 granting the application of SBI
and MFII for the issuance of a writ of preliminary
injunction. The trial court held that SBI and MFII were
able to sufficiently comply with the requisites for the
issuance of an injunctive writ:
It is well-settled that to be entitled to an injunctive writ, a
party must show that: (1) the invasion of right sought to
be protected is material and substantial; (2) the right of
complainant is clear and unmistakable; and, (3) there is
an urgent and paramount necessity for the writ to prevent
serious damage.
The Court opines that the above-mentioned requisites
have been sufficiently shown by plaintiffs in this case,
accordingly, a writ of preliminary injunction is in order.
The three subject letters, particularly the letter dated
September 18, 2000, indicate that the promissory notes
executed by Benito Soliven as President of plaintiff SBI
amounted to ₱218,540,646.00, excluding interest,
penalties and other charges remained unpaid, and
demand that the account be settled within ten days, else
defendant bank shall refer the latter to its lawyers for
collection.
The message in the letter is clear: If the account is not
settled within the grace period, defendant bank will resort
to foreclosure of mortgage on the subject properties.
The actual or imminent damage to plaintiffs is likewise
clear. Considering the number of parcels of land and
area involved, if these are foreclosed by defendant bank,
plaintiffs’ properties and source of income will be
effectively diminished, possibly to the point of closure.
The only issue remaining is whether or not plaintiffs have
the right to ask for an injunctive writ in order to prevent
defendant bank from taking over their properties.
Plaintiffs argued that the interest and penalties charged
them in the subject letters and attached statements of
account increased during a seven-month period to an
amount they described as "onerous", "usurious" ad
"greedy".
They likewise asserted that there were on-going talks
between officers of the corporations involved to treat or
restructure the contracts to a dacion en pago, as there
was a proposed plan of action by representatives of
plaintiffs during the meetings.
Defendant, on the other hand, sought to explain the
increase in the interest as contained in the promissory
notes which were voluntarily and willingly signed by
Soliven, therefore, binding on plaintiffs and that the
proposed plan of action is merely an oral contract still in
the negotiation stage and not binding.
The condition on the interest payments as contained in
the promissory notes are as follows:
"Interest for the first quarter shall be @ 18.5% P.A.
Thereafter, it shall be payable quarterly in arrears based
on three months average rate."
In its Memorandum, defendant bank tried to show that
the questioned increase in the interests was merely in
compliance with the above condition. To this Court, the
explanation is insufficient. A more detailed rationalization
is required to convince the court of the fairness of the
increase in interests and penalties.
However, the coming explanation may probably be heard
only during trial on the merits, and by then this pending
incident or the entire case, may already be moot and
academic if the injunctive writ is not issued.15
The dispositive portion of the trial court’s Order dated
December 14, 2000 reads:
WHEREFORE, premises considered, the application for
issuance of writ of preliminary injunction is GRANTED.
Defendant CHINA BANKING CORPORATION, its
representatives, agents and all persons working in its
behalf are hereby enjoined from enforcing the contents of
its letters to plaintiffs dated April 17, 2000, May 19, 2000
and September 18, 2000, particularly the bank’s legal
department or other counsel commencing collection
proceedings against plaintiffs in the amount stated in the
letters and statements of account.
The Writ of Preliminary Injunction shall be issued upon
plaintiffs’ posting of a bond executed to defendant in the
amount of Two Million Pesos (₱2,000,000.00) to the
effect [that] the plaintiffs will pay defendant all damages
which the latter may sustain by reason of the injunction if
it be ultimately decided that the injunction is
unwarranted.16
CBC sought reconsideration but the trial court denied it in
an Order17 dated December 10, 2001.
Subsequently, CBC filed a "Motion to Dissolve Injunction
Order" but this was denied in an Order18 dated November
10, 2003. The trial court ruled that the motion was in the
nature of a mere belated second motion for
reconsideration of the Order dated December 14, 2000. It
also declared that CBC failed to substantiate its prayer
for the dissolution of the injunctive writ.
Aggrieved, CBC filed a Petition for Certiorari docketed as
CA-G.R. SP No. 81968 in the Court of Appeals where it
claimed that the Orders dated December 14, 2000
(granting the application of petitioners SBI and MFII for
the issuance of writ of preliminary injunction), December
10, 2001 (denying reconsideration of the order dated
December 14, 2000), and November 10, 2003 (denying
the CBC’s motion to dissolve injunction order) were all
issued with grave abuse of discretion amounting to lack
of jurisdiction.19
In a Decision dated April 16, 2007, the Court of Appeals
found that, on its face, the trial court’s Order dated
December 14, 2000 granting the application of SBI and
MFII for the issuance of a writ of preliminary injunction
had no basis as there were no findings of fact or law
which would indicate the existence of any of the
requisites for the grant of an injunctive writ. It appeared to
the Court of Appeals that, in ordering the issuance of a
writ of injunction, the trial court simply relied on the
imposition by CBC of the interest rates to the loans
obtained by SBI and MFII. According to the Court of
Appeals, however, the records do not reveal a clear and
unmistakable right on the part of SBI and MFII that would
entitle them to the protection of a writ of preliminary
injunction. Thus, the Court of Appeals granted the
petition of CBC, set aside the Orders dated December
14, 2000, December 10, 2001, and November 10, 2003
and dissolved the injunctive writ issued by the RTC of
Pasig City.20
SBI and MFII filed a motion for reconsideration but it was
denied by the Court of Appeals in a Resolution dated
September 18, 2007.
Hence, this petition.
SBI and MFII assert that the Decision dated April 16,
2007 of the Court of Appeals is legally infirm as its
conclusions are contrary to the judicial admissions of
CBC. They allege that, in its Answer, CBC admitted
paragraphs 25 and 26 of the Complaint regarding the
interests and charges amounting to ₱35,093,980.14 and
₱80,614,525.15, respectively, which constituted more
than 50% of the total obligation of ₱334,249,151.29 as of
February 15, 2000. For SBI and MFII, CBC’s admission
of paragraphs 25 and 26 of the Complaint is an
admission that the interest rate imposed by CBC is
usurious, exorbitant and confiscatory. Thus, when the
Court of Appeals granted the petition of CBC and ordered
the lifting of the writ of preliminary injunction it effectively
disposed of the main case, Civil Case No. 68105, without
trial on the merits and rendered moot and academic as it
enabled CBC to foreclose on the mortgages despite the
usurious, exorbitant and confiscatory interest rates.21
SBI and MFII also claim that the Court of Appeals either
overlooked or disregarded undisputed and admitted facts
which, if properly considered, would have called for the
maintenance and preservation of the preliminary
injunction issued by the trial court. They argue that the
Court of Appeals did not even consider Article 1229 of
the Civil Code which provides:
Art. 1229. The judge shall equitably reduce the penalty
when the principal obligation has been partly or
irregularly complied with by the debtor. Even if there has
been no performance, the penalty may also be reduced
by the courts if it is iniquitous or unconscionable.
For SBI and MFII, the failure of the Court of Appeals to
take into account Article 1229 of the Civil Code and its
act of lifting the preliminary injunction "would definitely
pave the way for CBC’s unbridled imposition of illegal
rates of interest and immediate foreclosure" of the
properties of SBI and MFII "without the benefit of a full
blown trial."22
For its part, CBC assails the petition contending that it is
not allowed under Rule 45 of the Rules of Court because
it simply raises issues of fact and not issues of law. CBC
further asserts that the Decision of the Court of Appeals
is an exercise of sound judicial discretion as it is in
accord with the law and the applicable provisions of this
Court.23
The petition fails.
This Court has recently reiterated the general principles
in issuing a writ of preliminary injunction in Palm Tree
Estates, Inc. v. Philippine National Bank24:
A preliminary injunction is an order granted at any stage
of an action prior to judgment of final order, requiring a
party, court, agency, or person to refrain from a particular
act or acts. It is a preservative remedy to ensure the
protection of a party’s substantive rights or interests
pending the final judgment in the principal action. A plea
for an injunctive writ lies upon the existence of a claimed
emergency or extraordinary situation which should be
avoided for otherwise, the outcome of a litigation would
be useless as far as the party applying for the writ is
concerned.
At times referred to as the "Strong Arm of Equity," we
have consistently ruled that there is no power the
exercise of which is more delicate and which calls for
greater circumspection than the issuance of an
injunction. It should only be extended in cases of great
injury where courts of law cannot afford an adequate or
commensurate remedy in damages; "in cases of extreme
urgency; where the right is very clear; where
considerations of relative inconvenience bear strongly in
complainant’s favor; where there is a willful and unlawful
invasion of plaintiff’s right against his protest and
remonstrance, the injury being a continuing one, and
where the effect of the mandatory injunction is rather to
reestablish and maintain a preexisting continuing relation
between the parties, recently and arbitrarily interrupted
by the defendant, than to establish a new relation."
A writ of preliminary injunction is an extraordinary event
which must be granted only in the face of actual and
existing substantial rights. The duty of the court taking
cognizance of a prayer for a writ of preliminary injunction
is to determine whether the requisites necessary for the
grant of an injunction are present in the case before
it.25 In this connection, a writ of preliminary injunction is
issued to preserve the status quo ante, upon the
applicant’s showing of two important requisite conditions,
namely: (1) the right to be protected exists prima facie,
and (2) the acts sought to be enjoined are violative of that
right. It must be proven that the violation sought to be
prevented would cause an irreparable injury.26
Here, SBI and MFII basically claim a right to have their
mortgaged properties shielded from foreclosure by CBC
on the ground that the interest rate and penalty charges
imposed by CBC on the loans availed of by SBI are
iniquitous and unconscionable. In particular, SBI and
MFII assert:
There is therefore an urgent necessity for the issuance of
a writ of preliminary injunction or at least a status quo
[order], otherwise, respondent bank will definitely
foreclose petitioners’ properties without awaiting the trial
of the main case on the merits, with said usurious and
confiscatory rates of interest as basis.27
and
There is therefore no legal justification for the Honorable
Court of Appeals to lift/dissolve the injunction issued by
the trial court, otherwise, respondent bank – on the basis
of this illegal imposition of interest – can already
foreclose the properties of petitioners and render the
whole case (sans trial on the merits) moot and
academic.28
On this matter, the Order dated December 14, 2000 of
the trial court enumerates as the first argument raised by
SBI and MFII in support of their application for the
issuance of a writ of preliminary injunction:
1. Their rights basically are for the protection of their
properties put up as collateral for the loans extended by
defendant bank to them.29
As debtor-mortgagors, however, SBI and MFII do not
have a right to prevent the creditor-mortgagee CBC from
foreclosing on the mortgaged properties simply on the
basis of alleged "usurious, exorbitant and confiscatory
rate of interest."30 First, assuming that the interest rate
agreed upon by the parties is usurious, the nullity of the
stipulation of usurious interest does not affect the
lender’s right to recover the principal loan, nor affect the
other terms thereof.31 Thus, in a usurious loan with
mortgage, the right to foreclose the mortgage subsists,
and this right can be exercised by the creditor upon
failure by the debtor to pay the debt due.32
Second, even the Order dated December 14, 2000 of the
trial court, which granted the application for the issuance
of a writ of preliminary injunction, recognizes that the
parties still have to be heard on the alleged lack of
"fairness of the increase in interests and penalties" during
the trial on the merits.33 Thus, the basis of the right
claimed by SBI and MFII remains to be controversial or
disputable as there is still a need to determine whether or
not, upon consideration of the various circumstances
surrounding the agreement of the parties, the interest
rates and penalty charges are unconscionable.
Therefore, such claimed right cannot be considered
clear, actual and subsisting. In the absence of a clear
legal right, the issuance of the injunctive writ constitutes
grave abuse of discretion.34
The Order dated December 10, 2001 also shows the
reasoning of the trial court which betrays that its grant of
the application of SBI and MFII for the issuance of a writ
of preliminary injunction was not based on a clear legal
right. Said the trial court:
It was likewise shown that plaintiffs SBI and MFII had the
clear right and urgency to ask for injunction because of
the issue of validity of the increase in the amount of the
loan obligation.35 (Emphasis supplied.)
At most, the above finding of the trial court that the
validity of the increase in the amount of the loan
obligation is in issue simply amounted to a finding that
the rights of SBI and MFII vis-à-vis that of CBC are
disputed and debatable. In such a case where the
complainant-movant’s right is doubtful or disputed, the
issuance of an injunctive writ is not proper.36
Even assuming that SBI and MFII are correct in claiming
their supposed right, it nonetheless disintegrates in the
face of the ten promissory notes in the total amount of
₱218,540,648.00, exclusive of interest and penalties,
issued by SBI in favor of CBC on March 1, 1999 which
until now remain unpaid despite the maturity of the said
notes on March 1, 2004 and CBC’s repeated demands
for payment.37 Foreclosure is but a necessary
consequence of nonpayment of mortgage
indebtedness.38 As this Court held in Equitable PCI Bank,
Inc. v. OJ-Mark Trading, Inc.39:
Where the parties stipulated in their credit agreements,
mortgage contracts and promissory notes that the
mortgagee is authorized to foreclose the mortgaged
properties in case of default by the mortgagors, the
mortgagee has a clear right to foreclosure in case of
default, making the issuance of a Writ of Preliminary
Injunction improper. x x x. (Citation omitted.)
In addition, the default of SBI and MFII to pay the
mortgage indebtedness disqualifies them from availing of
the equitable relief that is the injunctive writ. In particular,
SBI and MFII have stated in their Complaint that they
have made various requests to CBC for restructuring of
the loan.40 The trial court’s Order dated December 14,
2000 also found that SBI wrote several letters to CBC
"requesting, among others, for a reduction of interests
and penalties and restructuring of the loan."41 A debtor’s
various and constant requests for deferment of payment
and restructuring of loan, without actually paying the
amount due, are clear indications that said debtor was
unable to settle his obligation.42 SBI’s default or failure to
settle its obligation is a breach of contractual obligation
which tainted its hands and disqualified it from availing of
the equitable remedy of preliminary injunction.
As SBI is not entitled to the issuance of a writ of
preliminary injunction, so is MFII. The accessory follows
the principal. The accessory obligation of MFII as
accommodation mortgagor and surety is tied to SBI’s
principal obligation to CBC and arises only in the event of
SBI’s default.
Thus, MFII’s interest in the issuance of the writ of
preliminary injunction is necessarily prejudiced by SBI’s
wrongful conduct and breach of contract.
Even Article 1229 of the Civil Code, which SBI and MFII
invoke, works against them. Under that provision, the
equitable reduction of the penalty stipulated by the
parties in their contract will be based on a finding by the
court that such penalty is iniquitous or unconscionable.
Here, the trial court has not yet made a ruling as to
whether the penalty agreed upon by CBC with SBI and
MFII is unconscionable. Such finding will be made by the
trial court only after it has heard both parties and weighed
their respective evidence in light of all relevant
circumstances. Hence, for SBI and MFII to claim any
right or benefit under that provision at this point is
premature.
As no clear right that warrants the extraordinary
protection of an injunctive writ has been shown by SBI
and MFII to exist in their favor, the first requirement for
the grant of a preliminary injunction has not been
satisfied. In the absence of any requisite, and where facts
are shown to be wanting in bringing the matter within the
conditions for its issuance, the ancillary writ of injunction
must be struck down for having been rendered in grave
abuse of discretion.43 Thus, the Court of Appeals did not
err when it granted the petition for certiorari of CBC and
ordered the dissolution of the writ of preliminary
injunction issued by the trial court.
Neither has there been a showing of irreparable injury.
An injury is considered irreparable if it is of such constant
and frequent recurrence that no fair or reasonable
redress can be had therefor in a court of law, or where
there is no standard by which their amount can be
measured with reasonable accuracy, that is, it is not
susceptible of mathematical computation. The provisional
remedy of preliminary injunction may only be resorted to
when there is a pressing necessity to avoid injurious
consequences which cannot be remedied under any
standard of compensation.44
In the first place, any injury that SBI and MFII may suffer
in case of foreclosure of the mortgaged properties will be
purely monetary and compensable by an appropriate
judgment in a proper case against CBC. Moreover,
where there is a valid cause to foreclose on the
mortgages, it cannot be correctly claimed that the
irreparable damage sought to be prevented by the
application for preliminary injunction is the loss of the
mortgaged properties to auction sale.45 The alleged
entitlement of SBI and MFII to the "protection of their
properties put up as collateral for the loans" they
procured from CBC is not the kind of irreparable injury
contemplated by law. Foreclosure of mortgaged property
is not an irreparable damage that will merit for the debtor-
mortgagor the extraordinary provisional remedy of
preliminary injunction. As this Court stated in Philippine
National Bank v. Castalloy Technology Corporation46:
All is not lost for defaulting mortgagors whose properties
were foreclosed by creditors-mortgagees. The
respondents will not be deprived outrightly of their
property, given the right of redemption granted to them
under the law. Moreover, in extrajudicial foreclosures,
mortgagors have the right to receive any surplus in the
selling price. Thus, if the mortgagee is retaining more of
the proceeds of the sale than he is entitled to, this fact
alone will not affect the validity of the sale but will give
the mortgagor a cause of action to recover such surplus.
(Citation omitted.)
The En Banc Resolution in A.M. No. 99-10-05-0, Re:
Procedure in Extrajudicial or Judicial Foreclosure of Real
Estate Mortgages, further stacks the odds against SBI
and MFII. Issued on February 20, 2007, or some two
months before the Court of Appeals promulgated its
decision in this case, the resolution embodies the
additional guidelines intended to aid courts in foreclosure
proceedings, specifically limiting the instances, and citing
the conditions, when a writ against foreclosure of a
mortgage may be issued, to wit:
(1) No temporary restraining order or writ of
preliminary injunction against the extrajudicial
foreclosure of real estate mortgage shall be issued
on the allegation that the loan secured by the
mortgage has been paid or is not delinquent
unless the application is verified and supported by
evidence of payment.
(2) No temporary restraining order or writ of
preliminary injunction against the extrajudicial
foreclosure of real estate mortgage shall be issued
on the allegation that the interest on the loan is
unconscionable, unless the debtor pays the
mortgagee at least twelve percent per annum
interest on the principal obligation as stated in the
 application for foreclosure sale, which shall be
updated monthly while the case is pending.
(3) Where a writ of preliminary injunction has been
issued against a foreclosure of mortgage, the
disposition of the case shall be speedily resolved.
To this end, the court concerned shall submit to
the Supreme Court, through the Office of the Court
Administrator, quarterly reports on the progress of
the cases involving ten million pesos and above.
(4) All requirements and restrictions prescribed for
the issuance of a temporary restraining order/writ
of preliminary injunction, such as the posting of a
bond, which shall be equal to the amount of the
outstanding debt, and the time limitation for its
effectivity, shall apply as well to a status quo
order.47
The guidelines speak of strict exceptions and
conditions.48 To reverse the decision of the Court of
Appeals and reinstate the writ of preliminary injunction
issued by the trial court will be to allow SBI and MFII to
circumvent the guidelines and conditions provided by the
En Banc Resolution in A.M. No. 99-10-05-0 dated
February 20, 2007 and prevent CBC from foreclosing on
the mortgaged properties based simply on the allegation
that the interest on the loan is unconscionable. This
Court will not permit such a situation. What cannot be
done directly cannot be done indirectly.49
All told, the relevant circumstances in this case show that
there was failure to satisfy the requisites for the issuance
of a writ of preliminary injunction. The injunctive writ
issued by the trial court should therefore be lifted and
dissolved. That was how the Court of Appeals decided.
That is how it should be.
WHEREFORE, the petition is hereby DENIED.
SO ORDERED.
G.R. No. 172909               March 5, 2014
SPOUSES SILVESTRE O. PLAZA AND ELENA Y.
PLAZA, Petitioners, 
vs.
GUILLERMO LUSTIVA, ELEODORA VDA. DE
MARTINEZ AND VICKY SAYSON
GOLOSENO, Respondents.
DECISION
BRION, J.:
Through a petition for review on certiorari,1 filed under
Rule 45 of the Rules of Court, the petitioners, spouses
Silvestre O. Plaza and Elena Y. Plaza, seek the reversal
of the decision2 dated October 24, 2005 and the
Resolution3 dated April 6, 2006 of the Court of Appeals
(CA) in CA-G.R. SP No. 59859.
THE FACTS
On August 28, 1997, the CA4 ruled that among the Plaza
siblings, namely: Aureliano, Emiliana, Vidal, Marciano,
and Barbara, Barbara was the owner of the subject
agricultural land. The decision became final and
executory and Barbara's successors, respondents
Guillermo Lustiva, Eleodora Vda. de Martinez and Vicky
Sayson Goloseno, have continued occupying the
property.
On September 14, 1999, Vidal’s son and daughter-in-law,
the petitioners, filed a Complaint for Injunction, Damages,
Attorney’s Fees with Prayer for the Issuance of the Writ
of Preliminary Injunction and/or Temporary Restraining
Order against the respondents and the City Government
of Butuan. They prayed that the respondents be enjoined
from unlawfully and illegally threatening to take
possession of the subject property. According to the
petitioners, they acquired the land from Virginia Tuazon
in 1997; Tuazon was the sole bidder and winner in a tax
delinquency sale conducted by the City of Butuan on
December 27, 1996.
In their answer, the respondents pointed out that they
were never delinquent in paying the land taxes and were
in fact not aware that their property had been offered for
public auction. Moreover, Tuazon, being a government
employee, was disqualified to bid in the public auction, as
stated in Section 89 of the Local Government Code of
1991.5 As Tuazon’s participation in the sale was void, she
could have not transferred ownership to the petitioners.
Equally important, the petitioners merely falsified the
property tax declaration by inserting the name of the
petitioners’ father, making him appear as a co-owner of
the auctioned land. Armed with the falsified tax
declaration, the petitioners, as heirs of their father,
fraudulently redeemed the land from Tuazon.
Nonetheless, there was nothing to redeem as the land
was not sold. For these irregularities, the petitioners had
no right to the Writ of Preliminary Injunction and/or
Temporary Restraining Order prayed for against them.
THE RTC’S RULING
In its December 14, 1999 order,6 the Regional Trial Court
(RTC) of Butuan City, Branch 5, reconsidered its earlier
order,7 denied the prayer for a Writ of Preliminary
Injunction, and ordered that the possession and
occupation of the land be returned to the respondents.
The RTC found that the auction sale was tainted with
irregularity as the bidder was a government employee
disqualified in accordance with Section 89 of the Local
Government Code of 1991. The petitioners are not
buyers in good faith either. On the contrary, they were in
bad faith for having falsified the tax declaration they
redeemed the property with.
THE CA’S RULING
Through a petition for review on certiorari under Rule 65,
the petitioners challenged the RTC’s order before the CA.
While the petition for review on certiorari was pending
before the CA, the petitioners filed an action for specific
performance8 against the City Government of Butuan.
According to the petitioners, they acquired possession
and ownership over the auctioned property when they
redeemed it from Tuazon. The City Government of
Butuan must therefore issue them a certificate of sale.9
In its October 24, 2005 decision,10 the CA affirmed the
RTC’s ruling, found the petitioners guilty of forum
shopping, dismissed the case, and referred the case to
the Court and to the Integrated Bar of the Philippines for
investigation and institution of the appropriate
administrative action.11 The CA, after legal analysis,
similarly concluded that for being disqualified to bid under
Section 89 of the Local Government Code of 1991,
Tuazon never obtained ownership over the property;
much less transmit any proprietary rights to the
petitioners. Clearly, the petitioners failed to establish any
clear and unmistakable right enforceable by the injunctive
relief.
On April 6, 2006, the CA rejected the petitioners’ motion
for reconsideration.
THE PARTIES’ ARGUMENTS
The petitioners filed the present petition for review on
certiorari with this Court to challenge the CA rulings. The
petitioners maintain that they did not falsify the tax
declaration in acquiring the auctioned property.
Moreover, assuming that Tuazon, the sole bidder, was
indeed disqualified from participating in the public
auction, Section 18112of the Local Government Code of
1991 finds application. Applying the law, it is as if there
was no bidder, for which the City Government of Butuan
was to be considered the purchaser of the land in
auction. Therefore, when the petitioners bought the land,
they bought it directly from the purchaser - City
Government of Butuan - and not from Tuazon, as
redeemers.
Also, the respondents may not question the validity of the
public auction for failing to deposit with the court the
amount required by Section 26713 of the Local
Government Code of 1991.
Finally, the petitioners argue that they did not commit
forum shopping, as the reliefs prayed for in the present
case and in the specific performance case are not the
same. In the present case, they merely impleaded the
City Government of Butuan as a nominal party to pay for
the value of the land only if possession of the land was
awarded to the respondents. On the other hand, the
complaint for specific performance prayed that the City
Government of Butuan execute the necessary certificate
of sale and other relevant documents pertaining to the
auction.
The respondents, for their part, reiterate the lower courts’
findings that there could have been no legal redemption
in favor of the petitioners as the highest bidder was
disqualified from bidding. Moreover, the CA correctly
applied the law in finding the petitioners guilty of forum
shopping. Most importantly, the grant of preliminary
injunction lies in the sound discretion of the court and the
petitioners failed to show proof that they are entitled to it.
Meanwhile, on August 8, 2013, the RTC dismissed the
main action and ordered the petitioners to pay the
respondents attorney’s fees and litigation expenses.14
THE COURT’S RULING
We resolve to deny the petition for lack of merit.
The petitioners may not
raise factual issues
The petitioners maintain that they did not falsify the tax
declaration they reimbursed the property with. According
to them, the document already existed in 1987, way
before they acquired the land in 1997. Contrary likewise
to the lower courts’ finding, they did not purchase the
land from Tuazon as redemptioners; they directly bought
the property from the City Government of Butuan.
These factual contests are not appropriate for a petition
for review on certiorari under Rule 45. The Court is not a
trier of facts.15 The Court will not revisit, re-examine, and
re-evaluate the evidence and the factual conclusions
arrived at by the lower courts.16 In the absence of
compelling reasons, the Court will not disturb the rule that
factual findings of the lower tribunals are final and binding
on this Court.17
Sections 181 and 267 of the Local Government Code of
1991 are inapplicable; these provisions do not apply to
the present case
The petitioners may not invoke Section 18118 of the Local
Government Code of 1991 to validate their alleged title.
The law authorizes the local government unit to purchase
the auctioned property only in instances where "there is
no bidder" or "the highest bid is xxx insufficient." A
disqualified bidder is not among the authorized grounds.
The local government also never undertook steps to
purchase the property under Section 181 of the Local
Government Code of 1991, presumably because it knew
the invoked provision does not apply.
Neither can the Court agree with the petitioners’ stance
that the respondents’ defense — the petitioners’
defective title — must fail for want of deposit to the court
the amount required by Section 267 of the Local
Government Code. The provision states:
Section 267. Action Assailing Validity of Tax Sale. - No
court shall entertain any action assailing the validity or
any sale at public auction of real property or rights therein
under this Title until the taxpayer shall have deposited
with the court the amount for which the real property was
sold, together with interest of two percent (2%) per month
from the date of sale to the time of the institution of the
action. The amount so deposited shall be paid to the
purchaser at the auction sale if the deed is declared
invalid but it shall be returned to the depositor if the
action fails.
Neither shall any court declare a sale at public auction
invalid by reason or irregularities or informalities in the
proceedings unless the substantive rights of the
delinquent owner of the real property or the person
having legal interest therein have been impaired.
[underscores ours; italics supplied]
A simple reading of the title readily reveals that the
provision relates to actions for annulment of tax sales.
The section likewise makes use of terms "entertain" and
"institution" to mean that the deposit requirement applies
only to initiatory actions assailing the validity of tax sales.
The intent of the provision to limit the deposit requirement
to actions for annulment of tax sales led to the Court’s
ruling in National Housing Authority v. Iloilo City, et
al.19 that the deposit requirement is jurisdictional — a
condition necessary for the court to entertain the action:
As is apparent from a reading of the foregoing provision,
a deposit equivalent to the amount of the sale at public
auction plus two percent (2%) interest per month from the
date of the sale to the time the court action is instituted is
a condition — a "prerequisite," to borrow the term used
by the acknowledged father of the Local Government
Code — which must be satisfied before the court can
entertain any action assailing the validity of the public
auction sale. The law, in plain and unequivocal language,
prevents the court from entertaining a suit unless a
deposit is made. xxx. Otherwise stated, the deposit is a
jurisdictional requirement the nonpayment of which
warrants the failure of the action.
xxxx
Clearly, the deposit precondition is an ingenious legal
device to guarantee the satisfaction of the tax
delinquency, with the local government unit keeping the
payment on the bid price no matter the final outcome of
the suit to nullify the tax sale.20
The Court would later reiterate the jurisdictional nature of
the deposit in Wong v. City of Iloilo,21 and pronounce:
In this regard, National Housing Authority v. Iloilo City
holds that the deposit required under Section 267 of the
Local Government Code is a jurisdictional requirement,
the nonpayment of which warrants the dismissal of the
action. Because petitioners in this case did not make
such deposit, the RTC never acquired jurisdiction over
the complaints.22
These rulings clearly render inapplicable the petitioners’
insistence that the respondents should have made a
deposit to the court. The suit filed by the petitioners was
an action for injunction and damages; the issue of nullity
of the auction was raised by the respondents themselves
merely as a defense and in no way converted the action
to an action for annulment of a tax sale.
The petitioners failed to show clear
and unmistakable rights to be protected
by the writ; the present action has been
rendered moot and academic by the
dismissal of the main action
As the lower courts correctly found, Tuazon had no
ownership to confer to the petitioners despite the latter’s
reimbursement of Tuazon’s purchase expenses.
Because they were never owners of the property, the
petitioners failed to establish entitlement to the writ of
preliminary injunction. "[T]o be entitled to an injunctive
writ, the right to be protected and the violation against
that right must be shown. A writ of preliminary injunction
may be issued only upon clear showing of an actual
existing right to be protected during the pendency of the
principal action. When the complainant’s right or title is
doubtful or disputed, he does not have a clear legal right
and, therefore, the issuance of injunctive relief is not
proper."23
Likewise, upon the dismissal of the main case by the
RTC on August 8, 2013, the question of issuance of the
writ of preliminary injunction has become moot and
academic. In Arevalo v. Planters Development
Bank,24 the Court ruled that a case becomes moot and
academic when there is no more issue between the
parties or object that can be served in deciding the merits
of the case. Upon the dismissal of the main action, the
question of the non-issuance of a writ of preliminary
injunction automatically died with it. A writ of preliminary
injunction is a provisional remedy; it is auxiliary, an
adjunct of, and subject to the determination of the main
action. It is deemed lifted upon the dismissal of the main
case, any appeal therefrom notwithstanding.25
The petitioners are guilty
of forum shopping
We agree with the CA that the petitioners committed
forum shopping when they filed the specific performance
case despite the pendency of the present case before the
CA. In the recent case of Heirs of Marcelo Sotto, etc., et
al. v. Matilde S. Palicte,26 the Court laid down the three
ways forum shopping may be committed: 1) through litis
pendentia — filing multiple cases based on the same
cause of action and with the same prayer, the previous
case not having been resolved yet; 2) through res
judicata — filing multiple cases based on the same cause
of action and the same prayer, the previous case having
been finally resolved; and 3) splitting of causes of action
— filing multiple cases based on the same cause of
action but with different prayers — the ground to dismiss
being either litis pendentia or res judicata. "The requisites
of litis pendentia are: (a) the identity of parties, or at least
such as representing the same interests in both actions;
(b) the identity of rights asserted and relief prayed for, the
relief being founded on the same facts; and (c) the
identity of the two cases such that judgment in one,
regardless of which party is successful, would amount to
res judicata in the other."27
Noticeable among these three types of forum shopping is
the identity of the cause of action in the different cases
filed. Cause of action is "the act or omission by which a
party violates the right of another."28
The cause of action in the present case (and the main
case) is the petitioners’ claim of ownership of the land
when they bought it, either from the City Government of
Butuan or from Tuazon. This ownership is the petitioners’
basis in enjoining the respondents from dispossessing
them of the property. On the other hand, the specific
performance case prayed that the City Government of
Butuan be ordered to issue the petitioners the certificate
of sale grounded on the petitioners’ ownership of the land
when they had bought it, either from the City Government
of Butuan or from Tuazon. While it may appear that the
main relief prayed for in the present injunction case is
different from what was prayed for in the specific
performance case, the cause of action which serves as
the basis for the reliefs remains the same — the
petitioners’ alleged ownership of the property after its
purchase in a public auction.
Thus, the petitioners' subsequent filing of the specific
performance action is forum shopping of the third kind-
splitting causes of action or filing multiple cases based on
the same cause of action, but with different prayers. As
the Court has held in the past, "there is still forum
shopping even if the reliefs prayed for in the two cases
are different, so long as both cases raise substantially the
same issues."29
Similarly, the CA correctly found that the petitioners and
their counsel were guilty of forum shopping based on litis
pendentia. Not only were the parties in both cases the
same insofar as the City Government of Butuan is
concerned, there was also identity of rights asserted and
identity of facts alleged. The cause of action in the
specific performance case had already been ruled upon
in the present case, although it was still pending appeal
before the CA. Likewise, the prayer sought in the specific
performance case-for the City Government ofButuan to
execute a deed of sale in favor of the petitioners - had
been indirectly ruled upon in the present case when the
R TC declared that no certificate of sale could be issued
because there had been no valid sale.
WHEREFORE, premises considered, the Court DENIES
the petition for review on certiorari.1âwphi1 The decision
dated October 24, 2005 and the resolution dated April 6,
2006 of the Court of Appeals in CA-G.R. SP No. 59859
are hereby AFFIRMED.
SO ORDERED.
G.R. Nos. 217126-27, November 10, 2015
 CONCHITA CARPIO MORALES, IN HER
CAPACITY AS THE
OMBUDSMAN,Petitioner, v. COURT OF
APPEALS (SIXTH DIVISION) AND JEJOMAR
ERWIN S. BINAY, JR., Respondents.
DECISION
PERLAS-BERNABE, J.:
"All government is a trust, every branch of
government is a trust, and immemorially
acknowledged so to
be[.]"1ChanRoblesVirtualawlibrary
The Case
Before the Court is a petition for certiorari and
prohibition2 filed on March 25, 2015 by petitioner
Conchita Carpio Morales, in her capacity as the
Ombudsman (Ombudsman), through the Office of
the Solicitor General (OSG), assailing: (a) the
Resolution3 dated March 16, 2015 of public
respondent the Court of Appeals (CA) in CA-G.R.
SP No. 139453, which granted private
respondent Jejomar Erwin S. Binay, Jr.'s (Binay,
Jr.) prayer for the issuance of a temporary
restraining order (TRO) against the
implementation of the Joint Order 4 dated March
10, 20,15 of the Ombudsman in OMB-C-A-15-
0058 to 0063 (preventive suspension order)
preventively suspending him and several other
public officers and employees of the City
Government of Makati, for six (6) months without
pay; and (b) the Resolution5 dated March 20,
2015 of the CA, ordering the Ombudsman to
comment on Binay, Jr.'s petition for
contempt6 in CA-G.R. SP No. 139504.
Pursuant to the Resolution7 dated April 6, 2015,
the CA issued a writ of preliminary
injunction8 (WPI) in CA-G.R. SP No. 139453 which
further enjoined the implementation of the
preventive suspension order, prompting the
Ombudsman to file a supplemental petition 9 on
April 13, 2015.
 The Facts
On July 22, 2014, a complaint/affidavit 10 was filed
by Atty. Renato L. Bondal and Nicolas "Ching"
Enciso VI before the Office of the Ombudsman
against Binay, Jr. and other public officers and
employees of the City Government of Makati
(Binay, Jr., et al), accusing them of Plunder11 and
violation of Republic Act No. (RA)
3019,12 otherwise known as "The Anti-Graft and
Corrupt Practices Act," in connection with the five
(5) phases of the procurement and construction of
the Makati City Hall Parking Building (Makati
Parking Building).13
On September 9, 2014, the Ombudsman
constituted a Special Panel of Investigators14 to
conduct a fact-finding investigation, submit an
investigation report, and file the necessary
complaint, if warranted (1st Special
Panel).15Pursuant to the Ombudsman's directive,
on March 5, 2015, the 1st Special Panel filed a
complaint16 (OMB Complaint) against Binay,
Jr., et al, charging them with six (6)
administrative cases17 for Grave Misconduct,
Serious Dishonesty, and Conduct Prejudicial to
the Best Interest of the Service, and six (6)
criminal cases18 for violation of Section 3 (e) of RA
3019, Malversation of Public Funds, and
Falsification of Public Documents (OMB Cases).19
As to Binay, Jr., the OMB Complaint alleged that
he was involved in anomalous activities attending
the following procurement and construction
phases of the Makati Parking Building project,
committed during his previous and present terms
as City Mayor of Makati:
Binay, Jr.'s First Term (2010 to 2013) 20
(a) On September 21, 2010, Binay, Jr. issued
the Notice of Award21for Phase III of the Makati
Parking Building project to Hilmarc's Construction
Corporation (Hilmarc's), and consequently,
executed the corresponding
contract22 on September 28, 2010,23 without the
required publication and the lack of architectural
design,24 and approved the release of funds (c) On September 6, 2012, Binay, Jr. issued the
therefor in the following amounts as follows: (1) Notice of Award40 for Phase V of the Makati
P130,518,394.80 on December 15, 2010;25 (2) Parking Building project to Hilmarc's, and
P134,470,659.64 on January 19, 2011;26 (3) consequently, executed the corresponding
27 27
P92,775,202.  onFebruary 25, 2011;  (4) contract41 on September 13, 2012,42 without the
P57,148,625.51 on March 28, 2011;28(5) required publication and the lack of architectural
P40,908,750.61 on May 3, 2011;29 and (6) design,43 and approved the release of the funds
P106,672,761.90 on July 7, 2011;30 therefor in the amounts of P32,398,220.0544 and
P30,582,629.3045 on December 20, 2012;  and 
(b) On August 11, 2011, Binay, Jr. issued the
Binay, Jr.'s Second Term (2013 to 2016)46
Notice of Award31 for Phase IV of the Makati
Parking Building project to Hilmarc's, and
(d) On July 3, 2013 and July 4, 2013, Binay, Jr.
consequently, executed the corresponding
approved the release of funds for the remaining
contract32 on August 18, 2011,33 without the
balance of the September 13, 2012 contract with
required publication and the lack of architectural
Hilmarc's for Phase V of the Makati Parking
design,34 and approved the release of funds
Building project in the amount of
therefor in the following amounts as follows: (1)
P27,443,629.97;47 and
P182,325,538.97 on October 4, 2O11;35 (2)
P173,132,606.91 on October 28,2011;36 (3)
(e) On July 24, 2013, Binay, Jr. approved the
P80,408,735.20 on December 12, 2011;37 (4)
release of funds for the remaining balance of the
P62,878,291.81 on February 10, 2012;38and (5)
contract48 with MANA Architecture & Interior
P59,639,167.90 on October 1, 2012;39
Design Co. (MANA) for the design and
architectural services covering the Makati Parking
49
Building project in the amount of P429,011.48.
On March 6, 2015, the Ombudsman created
another Special Panel of Investigators to conduct
a preliminary investigation and administrative
adjudication on the OMB Cases (2nd Special
50
Panel).  Thereafter, on March 9, 2015, the
nd 51
2  Special Panel issued separate orders  for each
of the OMB Cases, requiring Binay, Jr., et al. to
52
file their respective counter-affidavits.
Before Binay, Jr., et al.'s filing of their counter-
affidavits, the Ombudsman, upon the
recommendation of the 2nd Special Panel, issued
on March 10, 2015, the subject preventive
suspension order, placing Binay, Jr., et al. under
preventive suspension for not more than six (6)
months without pay, during the pendency of the
53
OMB Cases.  The Ombudsman ruled that the
requisites for the preventive suspension of a
public officer are present,54 finding that: (a) the
evidence of Binay, Jr., et al.'s guilt was strong
given that (1) the losing bidders and members of
the Bids and Awards Committee of Makati City
had attested to the irregularities attending the
Makati Parking Building project; (2) the
documents on record negated the publication of
bids; and (3) the disbursement vouchers, checks,
and official receipts showed the release of funds;
and (b) (1) Binay, Jr., et al. were administratively
charged with Grave Misconduct, Serious
Dishonesty, and Conduct Prejudicial to the Best
Interest of the Service; (2) said charges, if proven
to be true, warrant removal from public service
under the Revised Rules on Administrative Cases
in the Civil Service (RRACCS), and (3) Binay,
Jr., et al.'s respective positions give them access
to public records and allow them to influence
possible witnesses; hence, their continued stay in
office may prejudice the investigation relative to
the OMB Cases filed against
them.55 Consequently, the Ombudsman directed
the Department of Interior and Local Government
(DILG), through Secretary Manuel A. Roxas II
(Secretary Roxas), to immediately implement the
preventive suspension order against Binay, Jr., et
al., upon receipt of the same.56
On March 11, 2015, a copy of the preventive
suspension order was sent to the Office of the
City Mayor, and received by Maricon Ausan, a
57
member of Binay, Jr.'s staff.
The Proceedings Before the CA
58
On even date,  Binay, Jr. filed a petition
for certiorari59 before the CA, docketed as CA-
G.R. SP No. 139453, seeking the nullification of
the preventive suspension order, and praying for
the issuance of a TRO and/or WPI to enjoin its
implementation.60Primarily, Binay, Jr. argued
that he could not be held administratively
liable for any anomalous activity attending any of
the five (5) phases of the Makati Parking Building
project since: (a) Phases I and II were
undertaken before he was elected Mayor of Makati
in 2010; and (b) Phases III to V transpired during
his first term and that his re-election as City
Mayor of Makati for a second term effectively
condoned his administrative liability
therefor, if any, thus rendering the
administrative cases against him moot and
academic.61In any event, Binay, Jr. claimed
that the Ombudsman's preventive
suspension order failed to show that the
evidence of guilt presented against him is
strong, maintaining that he did not participate in
any of the purported irregularities.62 In support of
his prayer for injunctive relief, Binay, Jr. argued
that he has a clear and unmistakable right to hold
public office, having won by landslide vote in the
2010 and 2013 elections, and that, in view of the
condonation doctrine, as well as the lack of
evidence to sustain the charges against him, his
suspension from office would undeservedly
deprive the electorate of the services of the
person they have conscientiously chosen and
voted into office.63

On March 16, 2015, at around 8:24 a.m.,
Secretary Roxas caused the implementation of the
preventive suspension order through the DILG
National Capital Region - Regional Director,
Renato L. Brion, CESO III (Director Brion), who
posted a copy thereof on the wall of the Makati
City Hall after failing to personally serve the same
on Binay, Jr. as the points of entry to the Makati
City Hall were closed. At around 9:47 a.m.,
Assistant City Prosecutor of Makati Billy C.
Evangelista administered the oath of office on
Makati City Vice Mayor Romulo V. Peña, Jr. (Peña,
Jr.) who thereupon assumed office as Acting
Mayor.64
At noon of the same day, the CA issued a
Resolution65 (dated March 16, 2015), granting
Binay, Jr.'s prayer for a TRO,66 notwithstanding
Pena, Jr.'s assumption of duties as Acting Mayor
earlier that day.67 Citing the case of Governor
68
Garcia, Jr. v. CA,  the CA found that it was more
prudent on its part to issue a TRO in view of the
extreme urgency of the matter and seriousness of
the issues raised, considering that if it were
established that the acts subject of the
administrative cases against Binay, Jr. were all
committed during his prior term, then, applying
the condonation doctrine, Binay, Jr.'s re-election
meant that he can no longer be administratively
charged.69 The CA then directed the Ombudsman
to comment on Binay, Jr.'s petition
for certiorari .70
On March 17, 2015, the Ombudsman
manifested71 that the TRO did not state what act
was being restrained and that since the
preventive suspension order had already been
served and implemented, there was no longer any
act to restrain.72
On the same day, Binay, Jr. filed a petition for
contempt,73  docketed as CA-G.R. SP No.
139504, accusing Secretary Roxas, Director
Brion, the officials of the Philippine National
Police, and Pena, Jr. of deliberately refusing to
obey the CA, thereby allegedly impeding,
obstructing, or degrading the administration of
justice.74 The Ombudsman and Department of
Justice Secretary Leila M. De Lima were
subsequently impleaded as additional respondents
upon Binay, Jr.'s filing of the amended and
supplemental petition for contempt75 (petition for
76
contempt) on March 19, 2015.  Among others,
Binay, Jr. accused the Ombudsman and other
respondents therein for willfully and maliciously
ignoring the TRO issued by the CA against the
77
preventive suspension order.
78
In a Resolution dated March 20, 2015, the CA
ordered the consolidation of CA-G.R. SP No.
139453 and CA-G.R. SP No. 139504,
and, without necessarily giving due course to
Binay, Jr.'s petition for contempt, directed the
Ombudsman to file her comment thereto. 79 The
cases were set for hearing of oral arguments on
80
March 30 and 31, 2015.
The Proceedings Before the Court
Prior to the hearing of the oral arguments before
the CA, or on March 25, 2015, the Ombudsman
filed the present petition before this Court,
assailing the CA's March 16, 2015 Resolution,
which granted Binay, Jr.'s prayer for TRO in CA-
G.R. SP No. 139453, and the March 20, 2015
Resolution directing her to file a comment on
Binay, Jr.'s petition for contempt in CA-G.R. SP
No. 139504.81 The Ombudsman claims that: (a)
the CA had no jurisdiction to grant Binay, Jr.'s
prayer for a TRO, citing Section 14 of RA
6770,82 or "The Ombudsman Act of 1989," which
states that no injunctive writ could be issued to
delay the Ombudsman's investigation unless there
is prima facie evidence that the subject matter
thereof is outside the latter's jurisdiction;83 and
(b) the CA's directive for the Ombudsman to
comment on Binay, Jr.'s petition for contempt is
illegal and improper, considering that the
Ombudsman is an impeachable officer, and
therefore, cannot be subjected to contempt
proceedings.84
85
In his comment  filed on April 6, 2015, Binay, Jr.
argues that Section 1, Article VIII of the 1987
Constitution specifically grants the CA judicial
power to review acts of any branch or
instrumentality of government, including the
Office of the Ombudsman, in case of grave abuse
of discretion amounting to lack or excess of
jurisdiction, which he asserts was committed in
this case when said office issued the preventive
86
suspension order against him.  Binay, Jr. posits
that it was incumbent upon the Ombudsman to1
have been apprised of the condonation doctrine
as this would have weighed heavily in determining
whether there was strong evidence to warrant the
issuance of the preventive suspension order. 87 In
this relation, Binay, Jr. maintains that the CA
correctly enjoined the implementation of the
preventive suspension order given his clear and
unmistakable right to public office, and that it is
clear that he could not be held administratively
liable for any of the charges against him since his
subsequent re-election in 2013 operated as a
condonation of any administrative offenses he
may have committed during his previous
term.88 As regards the CA's order for the
Ombudsman to comment on his petition for
contempt, Binay, Jr. submits that while the
Ombudsman is indeed an impeachable officer
and, hence, cannot be removed from office except
by way of impeachment, an action for contempt
imposes the penalty of fine and imprisonment,
without necessarily resulting in removal from
office. Thus, the fact that the Ombudsman is an
impeachable officer should not deprive the CA of
its inherent power to punish contempt.89
Meanwhile, the CA issued a Resolution90 dated
April 6, 2015, after the oral arguments before it
were held,91 granting Binay, Jr.'s prayer for a WPI,
which further enjoined the implementation of the
preventive suspension order. In so ruling, the CA
found that Binay, Jr. has an ostensible right to the
final relief prayed for, namely, the nullification of
the preventive suspension order, in view of the
condonation doctrine, citing Aguinaldo v.
92
Santos.  Particularly, it found that the
Ombudsman can hardly impose preventive
suspension against Binay, Jr. given that his re-
election in 2013 as City Mayor of Makati condoned
any administrative liability arising from anomalous
activities relative to the Makati Parking Building
93
project from 2007 to 2013.  In this regard, the
CA added that, although there were acts which
were apparently committed by Binay, Jr. beyond
his first term — namely, the alleged payments on
94
July 3, July 4, and July 24, 2013,  corresponding
to the services of Hillmarc's and MANA - still,
Binay, Jr. cannot be held administratively liable
therefor based on the cases of Salalima v.
Guingona, Jr.,95 and Mayor Garcia v.
96
Mojica  wherein the condonation doctrine was
still applied by the Court although the payments
were made after the official's re-election,
reasoning that the payments were merely
effected pursuant to contracts executed before
97
said re-election.  To this, the CA added that there
was no concrete evidence of Binay, Jr.'s
participation for the alleged payments made on
July 3, 4, and 24, 2013.98
In view of the CA's supervening issuance of a WPI
pursuant to its April 6, 2015 Resolution, the
Ombudsman filed a supplemental petition99 before
this Court, arguing that the condonation doctrine
is irrelevant to the determination of whether the
evidence of guilt is strong for purposes of issuing
preventive suspension orders. The Ombudsman
also maintained that a reliance on the
condonation doctrine is a matter of defense,
which should have been raised by Binay, Jr.
before it during the administrative proceedings,
and that, at any rate, there is no condonation
because Binay, Jr. committed acts subject of the
OMB Complaint after his re-election in 2013. 100
On April 14 and 21, 2015,101 the Court conducted
hearings for the oral arguments of the parties.
Thereafter, they were required to file their
respective memoranda.102 In compliance thereto,
the Ombudsman filed her Memorandum103 on May
20, 2015, while Binay, Jr. submitted his
Memorandum the following day.104
Pursuant to a Resolution105 dated June 16, 2015,
the Court directed the parties to comment on
each other's memoranda, and the OSG to
comment on the Ombudsman's Memorandum, all
within ten (10) days from receipt of the notice.
On July 15, 2015, both parties filed their
respective comments to each other's
memoranda.106 Meanwhile, on July 16, 2015, the
OSG filed its Manifestation In Lieu of
Comment,107 simply stating that it was mutually
agreed upon that the Office of the Ombudsman
would file its Memorandum, consistent with its
108
desire to state its "institutional position."  
Memorandum and Comment to Binay, Jr.'s
Memorandum, the Ombudsman pleaded, among
others, that this Court abandon the condonation
doctrine.109 In view of the foregoing, the case was
deemed submitted for resolution.chanrobleslaw
The Issues Before the Court
Based on the parties' respective pleadings, and as
raised during the oral arguments conducted
before this Court, the main issues to be
resolved in seriatimare as follows:
I. Whether or not the present petition, and not
motions for reconsideration of the assailed
CA issuances in CA-G.R. SP No. 139453 and
CA-G.R. SP No. 139504, is the
Ombudsman's plain, speedy, and adequate
remedy;cralawlawlibrary
II. Whether or not the CA has subject matter
jurisdiction over the main petition
In her for certiorari in CA-G.R. SP No.
139453;cralawlawlibrary
III. Whether or not the CA has subject matter
jurisdiction to issue a TRO and/or WPI
enjoining the implementation of a
 preventive suspension order issued by the
Ombudsman;cralawlawlibrary
IV. Whether or not the CA gravely abused its
discretion in issuing the TRO and eventually,
the WPI in CA-G.R. SP No. 139453 enjoining
the implementation of the preventive
suspension order against Binay, Jr. based
on the condonation doctrine; and
V. Whether or not the CA's directive for the
Ombudsman to ' comment on Binay, Jr.'s
petition for contempt in CA- G.R. SP No.
139504 is improper and illegal.
The Ruling of the Court
The petition is partly meritorious.chanrobleslaw
I.
A common requirement to both a petition
for certiorari and a petition for prohibition taken
under Rule 65 of the 1997 Rules of Civil Procedure
is that the petitioner has no other plain, speedy,
and adequate remedy in the ordinary course of
law. Sections 1 and 2 thereof provide:
Section 1. Petition for certiorari. - When any
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 amounting to lack or excess of
jurisdiction, and there is no appeal,nor any
plain, speedy, and adequate remedy in the
ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper
court, alleging the facts with certainty and praying
that judgment be rendered annulling or modifying
the proceedings of such tribunal, board or officer,
and granting such incidental reliefs as law and
justice may require.
xxxx
Section 2. Petition for prohibition. - When the
proceedings of any tribunal, corporation, board,
officer or person, whether exercising judicial,
quasi-judicial or ministerial functions, are without
or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, or any other
plain, speedy, and adequate remedy in the
ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper
court, alleging the facts r with certainty and
praying that judgment be rendered commanding
the respondent to desist from further proceedings
in the action or matter specified therein, or
otherwise granting such incidental reliefs as law
and justice may require.
x x x x (Emphases supplied)
Hence, as a general rule, a motion for
reconsideration must first be filed with the lower
court prior to resorting to the extraordinary
remedy of certiorari or prohibition since a motion
for reconsideration may still be considered as a
plain, speedy, and adequate remedy in the
ordinary course of law. The rationale for the pre-
requisite is to grant an opportunity for the lower
court or agency to correct any actual or perceived
error attributed to it by the re-examination of the
legal and factual circumstances of the case.110
Jurisprudence states that "[i]t is [the]
inadequacy, [and] not the mere absence of all
other legal remedies and the danger of failure of
justice without the writ, that must usually
determine the propriety of certiorari [or
prohibition]. A remedy is plain, speedy[,] and
adequate if it will promptly relieve the petitioner
from the injurious effects of the judgment, order,
or resolution of the lower court or agency, x x
x."111
In this light, certain exceptions were crafted to
the general rule requiring a prior motion for
reconsideration before the filing of a petition
for certiorari, which exceptions also apply to a
petition for prohibition.112 These are: (a) where
the order is a patent nullity, as where the court a
quo has no jurisdiction; (b) where the questions
raised in the certiorari proceedings have been
duly raised and passed upon by the lower court,
or are the same as those raised and passed upon
in the lower court; (c) where there is an urgent
necessity for the resolution of the question and
any further delay would prejudice the interests of
the Government or of the petitioner or the subject
matter of the action is perishable; (d) where,
under the circumstances, a motion for
reconsideration would be useless; (e) where
petitioner was deprived of due process and there
is extreme urgency for relief; (f) where, in a
criminal case, relief from an order of arrest is
urgent and the granting of such relief by the trial
court is improbable; (g) where the proceedings in
the lower court are a nullity for lack of due
process; (h) where the proceedings were ex
parte or in which the petitioner had no
opportunity to object; and (i) where the issue
raised is one purely of law or where public
113
interest is involved.
In this case, it is ineluctably clear that the above-
highlighted exceptions attend since, for the first
time, the question on the authority of the CA -
and of this Court, for that matter - to enjoin the
implementation of a preventive suspension order
issued by the Office of the Ombudsman is put to
the fore. This case tests the constitutional and
statutory limits of the fundamental powers of key
government institutions - namely, the Office of
the Ombudsman, the Legislature, and the
Judiciary - and hence, involves an issue of
transcendental public importance that demands
no less than a careful but expeditious resolution.
Also raised is the equally important issue on the
propriety of the continuous application of the
condonation doctrine as invoked by a public
officer who desires exculpation from
administrative liability. As such, the
Ombudsman's direct resort to certiorari and
prohibition before this Court, notwithstanding her
failure to move for the prior reconsideration of the
assailed issuances in CA-G.R. SP No. 139453 and
CA-G.R. SP No. 139504 before the CA, is
justified.chanrobleslaw
II.
Albeit raised for the first time by the Ombudsman
in her Memorandum,114 it is nonetheless proper to
resolve the issue on the CA's lack of subject
matter jurisdiction over the main petition
for certiorari in CA-G.R. SP No. 139453, in view of
the well-established rule that a court's jurisdiction
over the subject matter may be raised at any
stage of the proceedings. The rationale is that
subject matter jurisdiction is conferred by law,
and the lack of it affects the very authority of the
court to take cognizance of and to render
115
judgment on the action.  Hence, it should be
preliminarily determined if the CA indeed had
subject matter jurisdiction over the main CA-G.R.
SP No. 139453 petition, as the same determines
the validity of all subsequent proceedings relative
thereto. It is noteworthy to point out that Binay,
Jr. was given the opportunity by this Court to be
heard on this issue,116 as he, in fact, duly
submitted his opposition through his comment to
the Ombudsman's Memorandum.117 That being
said, the Court perceives no reasonable objection
against ruling on this issue.
The Ombudsman's argument against the CA's lack
of subject matter jurisdiction over the main
petition, and her corollary prayer for its dismissal,
is based on her interpretation of Section 14, RA
6770, or the Ombudsman Act,118 which reads in
full:
Section 14. Restrictions. - No writ of injunction
shall be issued by any court to delay an
investigation being conducted by the Ombudsman
under this Act, unless there is a prima
facie evidence that the subject matter of the
investigation is outside the jurisdiction of the
Office of the Ombudsman.
No court shall hear any appeal or application for
remedy against the decision or findings of the
Ombudsman, except the Supreme Court, on pure
question of law.
The subject provision may be dissected into two
(2) parts.
The first paragraph of Section 14, RA 6770 is
a prohibition against any court (except the
119
Supreme Court ) from issuing a writ of
injunction to delay an investigation being
conducted by the Office of the Ombudsman.
Generally speaking, "[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."120Considering the textual qualifier "to
delay," which connotes a suspension of an action
while the main case remains pending, the "writ of
injunction" mentioned in this paragraph could only
refer to injunctions of the provisional kind,
consistent with the nature of a provisional
injunctive relief.
The exception to the no injunction policy is when
there is prima facie evidence that the subject
matter of the investigation is outside the office's
jurisdiction. The Office of the Ombudsman has
disciplinary authority over all elective and
appointive officials of the government and its
subdivisions, instrumentalities, and agencies, with
the exception only of impeachable officers,
Members of Congress, and the
Judiciary.121 Nonetheless, the Ombudsman retains
the power to investigate any serious misconduct
in office allegedly committed by officials
removable by impeachment, for the purpose of
filing a verified complaint for impeachment, if
warranted.122 Note that the Ombudsman has
concurrent jurisdiction over certain administrative
cases which are within the jurisdiction of the
regular courts or administrative agencies, but has
primary jurisdiction to investigate any act or
omission of a public officer or employee who is
under the jurisdiction of the Sandiganbayan.123
On the other hand, the second paragraph of
Section 14, RA 6770 provides that no appeal or
application for remedy may be heard against the
decision or findings of the Ombudsman, with the
exception of the Supreme Court on pure questions
of law. This paragraph, which the Ombudsman
particularly relies on in arguing that the CA had
no jurisdiction over the main CA-G.R. SP No.
139453 petition, as it is supposedly this Court
which has the sole jurisdiction to conduct a
judicial review of its decisions or findings, is
vague for two (2) reasons: (1) it is unclear what
the phrase "application for remedy" or the word
"findings" refers to; and (2) it does not specify
what procedural remedy is solely allowable to this
Court, save that the same be taken only against a
pure question of law. The task then, is to apply
the relevant principles of statutory construction to
resolve the ambiguity.
"The underlying principle of all construction is that
the intent of the legislature should be sought in
the words employed to express it, and that when
found[,] it should be made to govern, x x x. If the
words of the law seem to be of doubtful import, it
may then perhaps become necessary to look
beyond them in order to ascertain what was in the
legislative mind at the time the law was enacted;
what the circumstances were, under which the
action was taken; what evil, if any, was meant to
be redressed; x x x [a]nd where the law has
contemporaneously been put into operation, and
in doing so a construction has necessarily been
put upon it, this construction, especially if
followed for some considerable period, is entitled
to great respect, as being very probably a true
expression of the legislative purpose, and is not
lightly to be overruled, although it is not
conclusive."124
As an aid to construction, courts may avail
themselves of the actual proceedings of the
legislative body in interpreting a statute of
doubtful meaning. In case of doubt as to what a
provision of a statute means, the meaning put to
the provision during the legislative deliberations
may be adopted,125 albeit not controlling in the difficult to reverse the decision under
126
interpretation of the law. review?

A. The Senate deliberations cited by the Senator Angara. It has two practical effect
Ombudsman do not pertain to the second  ways, Mr. President. First is that the findings
paragraph of Section 14, RA 6770. of facts of the Ombudsman would be almost
conclusive if supported by substantial
The Ombudsman submits that the legislative evidence. Second, we would not
intent behind Section 14, RA 6770, particularly on unnecessarily clog the docket of the
the matter of judicial review of her office's Supreme Court. So, it in effect will be a  very
decisions or findings, is supposedly clear from the strict appeal procedure.
127
following Senate deliberations:
xxxx
Senator [Edgardo J.] Angara, x x x. On page
15, Mr. President, line 14, after the phrase
Senator [Teofisto T.] Guingona, [Jr.]. Does
"petition for" delete the word "review" and in lieu
this mean that, for example, if there are
thereof, insert the word CERTIORARI. So that,
exhaustive remedies available to a respondent,
review or appeal from the decision of the
the respondent himself has the right to exhaust
Ombudsman would only be taken not on a
the administrative remedies available to him?
petition for review, but on certiorari.

Senator Angara. Yes, Mr. President, that is

The President [Jovito R. Salonga]. What is
correct.
the practical effect of that? Will it be more
Senator Guingona. And he himself may cut the
proceeding short byappealing to the Supreme
Court only on  certiorari  ?
Senator Angara. On question of law, yes.
Senator Guingona. And no other remedy is
available to him?
Senator Angara. Going to the Supreme
Court, Mr. President?
Senator Guingona. Yes. What I mean to say is,
at what stage, for example, if he is a presidential
appointee who is the respondent, if there is f
no certiorari available, is the respondent given
the right to exhaust his administrative remedies
first before the Ombudsman can take the
appropriate action?
Senator Angara. Yes, Mr. President, because we
do not intend to change the administrative law
principle that before one can go to court, he must
exhaust all administrative remedies xxx available
to him before he goes and seeks judicial review.
xxxx
Senator [Neptali A.] Gonzales. What is the
purpose of the Committee in changing the
method of appeal from one of a petition for
review to a petition for  certiorari  ?
Senator Angara. To make it consistent, Mr.
President, with the provision here in the bill
to the effect that the  finding of facts of the
Ombudsman is conclusive if supported by
substantial evidence.
Senator Gonzales. A statement has been made
by the Honorable Presiding Officer to which I
concur, that in an appeal by  certiorari  , the
appeal is more difficult. Because
in  certiorari  it is a matter of discretion on
the part of the court, whether to give due
course to the petition or dismiss it
outright. Is that not correct, Mr. President?
Senator Angara. That is absolutely correct,
Mr. President
Senator Gonzales. And in a petition
for  certiorari  , the issue islimited  to whether
or not the Ombudsman here has acted
without jurisdiction and has committed a
grave abuse of discretion amounting to lack
of jurisdiction. Is that not the consequence, Mr.
President.
Senator Angara. That is correct, Mr.
President.
Senator Gonzales. And it is, therefore, in this
sense that the intention of the Committee is
to make it harder to have a judicial review,
but should be limited only to cases that I have
enumerated.
Senator Angara. Yes, Mr. President.
Senator Gonzales. I think, Mr. President, our
Supreme Court has made a distinction between a
petition for review and a petition forcertiorari ;
because before, under the 1935 Constitution
appeal from any order, ruling or decision of the
COMELEC shall be by means of review. But under
the Constitution it is now by certiorari and the
Supreme Court said that by this change, the court
exercising judicial review will not inquire into the
facts, into the evidence, because we will not go
deeply by way of review into the evidence on
record but its authority will be limited to a
determination of whether the administrative
agency acted without, or in excess of, jurisdiction,
or committed a grave abuse of discretion. So, I
assume that that is the purpose of this
amendment, Mr. President.
Senator Angara. The distinguished Gentleman
has stated it so well.
Senator Gonzales. I just want to put that in the
Record. Senator Angara. It is very well stated, Mr.
President.
xxxx
The President.  It is evident that there must
be some final authority to render decisions.
Should it be the Ombudsman or should it be
the Supreme Court?
Senator Angara. As I understand it, under our
scheme of government, Mr. President, it is and
has to be the Supreme Court to make the
final determination.
The President. Then if that is so, we have to
modify Section 17.
Senator Angara. That is why, Mr. President,
some of our Colleagues have made a reservation
to introduce an appropriate change during the
period of Individual Amendments.
xxxx
The President. All right. Is there any objection
to the amendment inserting the
word CERTIORARI instead of "review"? [Silence]
Hearing none, the same is approved.128
Upon an assiduous scrutiny of these deliberations,
the Court is, however, unconvinced that the
provision debated on was Section 14, RA 6770, as
the Ombudsman invokes. Note that the exchange
begins with the suggestion of Senator Angara to
delete the word "review" that comes after the
phrase "petition for review" and, in its stead,
insert the word "certiorari" so that the "review or
appeal from the decision of the Ombudsman
would not only be taken on a petition for review,
but on certiorari" The ensuing exchange between
Senators Gonzales and Angara then dwells on the
purpose of changing the method of review from
one of a petition for review to a petition
for certiorari - that is, to make "the appeal x x x
more difficult." Ultimately, the amendment to the
change in wording, from "petition for review" to
"petition for certiorari" was approved.
Noticeably, these references to a "petition for
review" and the proposed "petition for certiorari"
are nowhere to be found in the text of Section 14,
RA 6770. In fact, it was earlier mentioned that
this provision, particularly its second paragraph,
does not indicate what specific procedural remedy
one should take in assailing a decision or finding
of the Ombudsman; it only reveals that the
remedy be taken to this Court based on pure
questions of law. More so, it was even
commented upon during the oral arguments of
this case129 that there was no debate or
clarification made on the current formulation of
the second paragraph of Section 14, RA 6770 per
the available excerpts of the Senate deliberations.
In any case, at least for the above-cited
deliberations, the Court finds no adequate support
to sustain the Ombudsman's entreaty that the CA
had no subject matter jurisdiction over the main
CA-G.R. SP No. 139453 petition.
On the contrary, it actually makes greater sense
to posit that these deliberations refer to another
Ombudsman Act provision, namely Section 27, RA
6770. This is because the latter textually reflects
the approval of Senator Angara's suggested
amendment, i.e., that the Ombudsman's decision
or finding may be assailed in a petition
for certiorari to this Court (fourth paragraph), and
further, his comment on the conclusive nature of
the factual findings of the Ombudsman, if
supported by substantial evidence (third
paragraph):
Section 27. Effectivity and Finality of Decisions.
— (1) All provisionary orders of the Office of the
Ombudsman are immediately effective and
executory.
A motion for reconsideration of any order,
directive or decision of the Office of the
Ombudsman must be filed within five (5) days
after receipt of written notice and shall be
entertained only on any of the following
grounds:chanRoblesvirtualLawlibrary
(1) New evidence has been discovered which
materially affects the order, directive or
decision;cralawlawlibrary
(2) Errors of law or irregularities have been
committed prejudicial to the interest of the
movant. The motion for reconsideration shall be
resolved within three (3) days from
filing: Provided, That only one motion for
reconsideration shall be
entertained.ChanRoblesVirtualawlibrary
Findings of fact by the Office of the Ombudsman
when supported by substantial evidence are
conclusive. Any order, directive or decision
imposing the penalty of public censure or
reprimand, suspension of not more than one (1)
month's salary shall be final and unappealable.
In all administrative disciplinary cases,
orders, directives, or decisions of the Office
of the Ombudsman may be appealed to the
Supreme Court by filing a petition
for certiorari within ten (10) days from
receipt of the written notice of the order,
directive or decision or denial of the motion
for reconsiderationin accordance with Rule
45 of the Rules of Court.
The above rules may be amended or modified by
the Office of the ' Ombudsman as the interest of
justice may require. (Emphasis and underscoring
supplied)
At first blush, it appears that Section 27, RA 6770
is equally ambiguous in stating that a "petition
for certiorari" should be taken in accordance with
Rule 45 of the Rules of Court, as it is well-known
that under the present 1997 Rules of Civil
Procedure, petitions for certiorari are governed by
Rule 65 of the said Rules. However, it should be
discerned that the Ombudsman Act was passed
way back in 1989130 and, hence, before the
advent of the 1997 Rules of Civil Procedure. 131 At
that time, the governing 1964 Rules of
Court,132 consistent with Section 27, RA 6770,
referred to the appeal taken thereunder as a The Senate deliberations' lack of discussion on the
petition for certiorari , thus possibly explaining second paragraph of Section 14, RA 6770
the remedy's textual denomination, at least in the notwithstanding, the other principles of statutory
provision's final approved version: construction can apply to ascertain the meaning
of the provision.
RULE 45
Appeal from Court of Appeals to Supreme Court
To recount, the second paragraph of Section 14,
RA 6770 states that "[n]o court shall hear any
SECTION 1. Filing of Petition with Supreme Court.
appeal or application for remedy against the
- A party may appeal by certiorari , from a
decision or findings of the Ombudsman,
judgment of the Court of Appeals, by filing with
except the Supreme Court, on pure question
the Supreme Court a petition for  certiorari  ,
of law."    ;cralawlawlibrary
within fifteen (15) days from notice of judgment
or of the denial of his motion for reconsideration
As a general rule, the second paragraph of
filed in due time, and paying at the same time, to
Section 14, RA 6770 bans the whole range of
the clerk of said court the corresponding
remedies against issuances of the
docketing fee. The petition shall not be acted
Ombudsman, by prohibiting: (a) an appeal
upon without proof of service of a copy thereof to
against any decision or finding of the
the Court of Appeals. (Emphasis supplied)
Ombudsman, and(b) "any application of remedy"
(subject to the exception below) against the
B. Construing the second paragraph of
same. To clarify, the phrase "application for
Section 14, RA 6770.
remedy," being a generally worded provision, and
being separated from the term "appeal" by the Rules of Court or the 1997 Rules of Civil
133
disjunctive "or", refers to any remedy (whether Procedure:
taken mainly or provisionally), except an appeal,
Rule 45, 1964 Rules of Court
following the maxim generalia verba sunt
generaliter intelligenda: general words are to be
RULE 45 
understood in a general sense.134 By the same
Appeal from Court of Appeals to Supreme Court
principle, the word "findings," which is also
separated from the word "decision" by the
xxxx
disjunctive "or", would therefore refer to any
finding made by the Ombudsman (whether final
Section 2. Contents of Petition. — The petition
or provisional), except a decision.
shall contain a concise statement of the matters
involved, the assignment of errors made in the
The subject provision, however, crafts
court below, and the reasons relied on for the
an exception to the foregoing general rule. While
allowance of the petition, and it should be
the specific procedural vehicle is not explicit from
accompanied with a true copy of the judgment
its text, it is fairly deducible that the second
sought to be reviewed, together with twelve (12)
paragraph of Section 14, RA 6770 excepts, as the
copies of the record on appeal, if any, and of the
only allowable remedy against "the decision or
petitioner's brief as filed in the Court of Appeals. A
findings of the Ombudsman," a Rule 45 appeal,
verified statement of the date when notice of
for the reason that it is the only remedy
judgment and denial of the motion for
taken to the Supreme Court on "pure
reconsideration, if any, were received shall
questions of law," whether under the 1964
accompany the petition.

Only questions of law may be raised in the
petition and must be distinctly set forth. If no
record on appeal has been filed in the Court of
Appeals, the clerk of the Supreme Court, upon
admission of the petition, shall demand from the
Court of Appeals the elevation of the whole record
of the case. (Emphasis and underscoring
supplied)
Rule 45, 1997 Rules of Civil Procedure
RULE 45  petition for certiorari under Rule 65 of the 1964
Appeal by Certiorari to the Supreme Court
Section 1. Filing of petition with Supreme Court. -
A party desiring to appeal by certiorari from a
judgment, final order or resolution of the Court of
Appeals, the Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Court or other courts,
whenever authorized by law, may file with the
Supreme Court a verified petition for review
on certiorari.The petition may include an
application for a writ of preliminary injunction or
other provisional remedies and shall raise only
questions of law, which must be distinctly
set forth. The petitioner may seek the same
provisional remedies by verified motion filed in
the same action or proceeding at any time during
its pendency. (Emphasis and underscoring
supplied)
That the remedy excepted in the second
paragraph of Section 14, RA 6770 could be a
Rules of Court or the 1997 Rules of Procedure is a
suggestion that defies traditional norms of
procedure. It is basic procedural law that a Rule
65 petition is based on errors of jurisdiction, and
not errors of judgment to which the classifications
of (a) questions of fact, (b) questions of law, or
(c) questions of mixed fact and law, relate to. In
fact, there is no procedural rule, whether in the
old or new Rules, which grounds a Rule 65
petition on pure questions of law. Indeed, it is
also a statutory construction principle that the
lawmaking body cannot be said to have intended
the establishment of conflicting and hostile
systems on the same subject. Such a result would
render legislation a useless and idle ceremony,
and subject the laws to uncertainty and
135
unintelligibility.  There should then be no
confusion that the second paragraph of Section
14, RA 6770 refers to a Rule 45 appeal to this
Court, and no other. In sum, the appropriate
construction of this Ombudsman Act provision is
that all remedies against issuances of the Office of
the Ombudsman are prohibited, except the
above-stated Rule 45 remedy to the Court on
pure questions of law.
C. Validity of the second paragraph of
Section 14, RA 6770.
Of course, the second paragraph of Section 14,
RA 6770's extremely limited restriction on
remedies is inappropriate since a Rule 45 appeal
-which is within the sphere of the rules of
procedure promulgated by this Court - can only
be taken against final decisions or orders of lower
courts,136 and not against "findings" of quasi-
judicial agencies. As will be later elaborated upon,
Congress cannot interfere with matters of
procedure; hence, it cannot alter the scope of a
Rule 45 appeal so as to apply to interlocutory
"findings" issued by the Ombudsman. More
significantly, by confining the remedy to a
Rule 45 appeal, the provision takes away the
remedy of certiorari, grounded on errors of
jurisdiction, in denigration of the judicial power
constitutionally vested in courts. In this light, the
second paragraph of Section 14, RA 6770 also
increased this Court's appellate jurisdiction,
without a showing, however, that it gave its
consent to the same. The provision is, in fact,
very similar to the fourth paragraph of Section 27,
RA 6770 (as above-cited), which was invalidated
in the case of Fabian v. Desiertoni137 (Fabian).138
In Fabian, the Court struck down the fourth
paragraph of Section 27, RA 6770 as
unconstitutional since it had the effect of
increasing the appellate jurisdiction of the Court
without its advice and concurrence in violation of
Section 30, Article VI of the 1987
Constitution.139 Moreover, this provision was
found to be inconsistent with Section 1, Rule 45 of
the present 1997 Rules of Procedure which, as
above-intimated, applies only to a review of
"judgments or final orders of the Court of
Appeals, the Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Court, or other courts
authorized by law;" and not of quasi-judicial
agencies, such as the Office of the
Ombudsman, the remedy now being a Rule 43
appeal to the Court of Appeals. In Ruivivar v.
140
Office of the Ombudsman,  the Court's
ratiocinations and ruling in Fabian were
recounted:
The case of Fabian v. Desierto arose from the
doubt created in the application of Section 27 of
R.A. No. 6770 (The Ombudsman's Act) and
Section 7, Rule III of A.O. No. 7 (Rules of
Procedure of the Office of the Ombudsman) on
the availability of appeal before the Supreme
Court to assail a decision or order of the
Ombudsman in administrative cases. In Fabian,
we invalidated Section 27 of R.A. No. 6770
(and Section 7, Rule III of A.O. No. 7 and the
other rules implementing the Act) insofar as
it provided for appeal bycertiorari under
Rule 45 from the decisions or orders of the
Ombudsman in administrative cases. We
held that Section 27 of R.A. No. 6770 had the
effect, not only of increasing the appellate
jurisdiction of this Court without its advice
and concurrence in violation of Section 30,
Article VI of the Constitution; it was also
inconsistent with Section 1, Rule 45 of the
Rules of Court which provides that a petition
for review oncertiorari shall apply only to a
review of "judgments or final orders of the
Court of Appeals, the Sandiganbayan, the
Court of Tax Appeals, the Regional Trial
Court, or other courts authorized by law." We
pointedly said:chanRoblesvirtualLawlibrary
As a consequence of our ratiocination that Section
27 of Republic Act No. 6770 should be struck
down as unconstitutional, and in line with the
regulatory philosophy adopted in appeals from
quasi-judicial agencies in the 1997 Revised Rules
of Civil Procedure, appeals from decisions of the
Office of the Ombudsman in administrative
disciplinary cases should be taken to the CA under
141
the provisions of Rule 43.  (Emphasis supplied)
Since the second paragraph of Section 14, RA
6770 limits the remedy against "decision or
findings" of the Ombudsman to a Rule 45 appeal
and thus - similar to the fourth paragraph of
142
Section 27, RA 6770  - attempts to effectively
increase the Supreme Court's appellate
jurisdiction without its advice and
concurrence,143it is therefore concluded that the
former provision is also unconstitutional and
perforce, invalid. Contrary to the Ombudsman's
posturing,144Fabian should squarely apply since
the above-stated Ombudsman Act provisions
are in part materia in that they "cover the same
specific or particular subject matter,"145that is, the
manner of judicial review over issuances of the
Ombudsman.
Note that since the second paragraph of Section
14, RA 6770 is clearly determinative of the
existence of the CA's subject matter jurisdiction
over the main CA-G.R. SP No. 139453 petition,
including all subsequent proceedings relative
thereto, as the Ombudsman herself has
developed, the Court deems it proper to resolve
this issue ex mero motu (on its own motion146).
This procedure, as was similarly adopted
in Fabian, finds its bearings in settled case law:
The conventional rule, however, is that a
challenge on constitutional grounds must be
raised by a party to the case, neither of whom did
so in this case, but that is not an inflexible rule,
as we shall explain.
Since the constitution is intended for the
observance of the judiciary and other
departments of the government and the judges
are sworn to support its provisions, the courts are
not at liberty to overlook or disregard its
commands or countenance evasions thereof.
When it is clear , that a statute transgresses the
authority vested in a legislative body, it is the
duty of the courts to declare that the constitution,
and not the statute, governs in a case before
them for judgment.
Thus, while courts will not ordinarily pass upon
constitutional questions which are not raised in
the pleadings, the rule has been recognized to
admit of certain exceptions. It does not preclude a
court from inquiring into its own jurisdiction or
compel it to enter a judgment that it lacks
jurisdiction to enter. If a statute on which a
court's jurisdiction in a proceeding depends is
unconstitutional, the court has no jurisdiction in
the proceeding, and since it may determine
whether or not it has jurisdiction, it necessarily
follows that it may inquire into the
constitutionality of the statute.
Constitutional questions, not raised in the
regular and orderly procedure in the trial are
ordinarily rejected unless the jurisdiction of
the court below or that of the appellate court
is involved in which case it may be raised at
any time or on the court's own motion. The
Court ex mero motu may take cognizance of lack
of jurisdiction at any point in the case where that
fact is developed. The court has a clearly
recognized right to determine its own jurisdiction
in any proceeding.147 (Emphasis supplied)
D. Consequence of invalidity.
In this case, the Rule 65 petition for certiorari in
CA-G.R. SP No. 139453 was filed by Binay, Jr.
before the CA in order to nullify the preventive
suspension order issued by the Ombudsman, an
interlocutory order,148 hence, unappealable.149
In several cases decided after Fabian, the Court
has ruled that Rule 65 petitions
for certiorari against unappelable issuances150 of
the Ombudsman should be filed before the CA,
and not directly before this Court:
In Office of the Ombudsman v.
151
Capulong  (March 12, 2014), wherein a
preventive suspension order issued by the Office
of the Ombudsman was - similar to this case -
assailed through a Rule 65 petition
for certiorari filed by the public officer before the
CA, the Court held that "[t]here being a finding of
grave abuse of discretion on the part of the
Ombudsman, it was certainly imperative for the
CA to grant incidental reliefs, as sanctioned by
Section 1 of Rule 65."152
In Dagan v. Office of the
153
Ombudsman  (November 19, 2013), involving a
Rule 65 petition for certiorari assailing a final and
unappealable order of the Office of the
Ombudsman in an administrative case, the Court
remarked that "petitioner employed the correct
mode of review in this case, i.e., a special civil
action forcertiorari before the Court of
Appeals."154 In this relation, it stated that while "a
special civil action for Certiorari is within the
concurrent original jurisdiction of the Supreme
Court and the Court of Appeals, such petition
should be initially filed with the Court of Appeals
in observance of the doctrine of hierarchy of
courts." Further, the Court upheld Barata v.
Abalos, Jr.155 (June 6, 2001), wherein it was ruled
that the remedy against final and unappealable
orders of the Office of the Ombudsman in an
administrative case was a Rule 65 petition to the
CA. The same verdict was reached
in Ruivivar156 (September 16, 2008).
Thus, with the unconstitutionality of the second
paragraph of Section 14, RA 6770, the Court,
consistent with existing jurisprudence, concludes
that the CA has subject matter jurisdiction over
the main CA-G.R. SP No. 139453 petition. That
being said, the Court now examines the
objections of the Ombudsman, this time against
the CA's authority to issue the assailed TRO and
WPI against the implementation of the preventive
suspension order, incidental to that main case.
III.
From the inception of these proceedings, the
Ombudsman has been adamant that the CA has
no jurisdiction to issue any provisional injunctive
writ against her office to enjoin its preventive
suspension orders. As basis, she invokes the first
paragraph of Section 14, RA 6770 in
conjunction with her office's independence under
the 1987 Constitution. She advances the idea that
"[i]n order to further ensure [her office's]
independence, [RA 6770] likewise insulated it
from judicial intervention,"157 particularly, "from
injunctive reliefs traditionally obtainable from the
courts,"158 claiming that said writs may work "just
as effectively as direct harassment or political
pressure would."159
A. The concept of Ombudsman
independence.
Section 5, Article XI of the 1987 Constitution
guarantees the independence of the Office of the
Ombudsman:
Section 5. There is hereby created
the independent Office of the Ombudsman,
composed of the Ombudsman to be known as
Tanodbayan, one overall Deputy and at least one
Deputy each for Luzon, Visayas[,] and Mindanao.
A separate Deputy for the military establishment
may likewise be appointed. (Emphasis supplied)
In Gonzales III v. Office of the
President160 (Gonzales III), the Court traced the
historical underpinnings of the Office of the
Ombudsman:
Prior to the 1973 Constitution, past presidents
established several Ombudsman-like agencies to
serve as the people's medium for airing
grievances and for direct redress against abuses
and misconduct in the government. Ultimately,
however, these agencies failed to fully realize
their objective for lack of the political
independence necessary for the effective
performance of their function as government
critic.
It was under the 1973 Constitution that the Office
of the Ombudsman became a constitutionally-
mandated office to give it political independence
and adequate powers to enforce its mandate.
Pursuant to the ( 1973 Constitution, President
Ferdinand Marcos enacted Presidential Decree
(PD) No. 1487, as amended by PD No. 1607 and
PD No. 1630, creating the Office of the
Ombudsman to be known as Tanodbayan. It was
tasked principally to investigate, on complaint
ormotu proprio, any administrative act of any
administrative agency, including any government-
owned or controlled corporation. When the Office
of the Tanodbayan was reorganized in 1979, the
powers previously vested in the Special
Prosecutor were transferred to the Tanodbayan
himself. He was given the exclusive authority to
conduct preliminary investigation of all cases
cognizable by the Sandiganbayan, file the
corresponding information, and control the
prosecution of these cases.
With the advent of the 1987 Constitution, a new
Office of the Ombudsman was created by
constitutional fiat. Unlike in the 1973
Constitution, its independence was expressly
and constitutionally guaranteed. Its objectives
are to enforce the state policy in Section 27,
Article II and the standard of accountability in
public service under Section 1, Article XI of the
1987 Constitution. These provisions
read:chanRoblesvirtualLawlibrary
Section 27. The State shall maintain honesty and
integrity in the public service and take positive
and effective measures against graft and
corruption.
Section 1. Public office is a public trust. Public
officers and employees must, at all times, be
accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and Section 21. Official Subject to Disciplinary
efficiency; act with patriotism and justice, and Authority; Exceptions. - The Office of the
161
lead modest lives.  (Emphasis supplied) Ombudsman shall have disciplinary authority over
all elective and appointive officials of the
More significantly, Gonzales III explained the Government and its subdivisions,
broad scope of the office's mandate, and in instrumentalities, and agencies, including
correlation, the impetus behind its independence: Members of the Cabinet, local government,
government-owned or controlled corporations and
Under Section 12, Article XI of the 1987
their subsidiaries, except over officials who may
Constitution, the Office of the Ombudsman is
be removed only by impeachment or over
envisioned to be the "protector of the people"
Members of Congress, and the
against the inept, abusive, and corrupt in the
Judiciary.ChanRoblesVirtualawlibrary
Government, to function essentially as a
As the Ombudsman is expected to be an "activist
complaints and action bureau. This constitutional
watchman," the < Court has upheld its actions,
vision of a Philippine Ombudsman practically
although not squarely falling under the broad
intends to make the Ombudsman an authority to
powers granted [to] it by the Constitution and by
directly check and guard against the ills, abuses
RA No. 6770, if these actions are reasonably in
and excesses , of the bureaucracy. Pursuant to
line with its official function and consistent with
Section 13 (8), Article XI of the 1987
the law and the Constitution.
Constitution, Congress enacted RA No. 6770 to
enable it to further realize the vision of the
The Ombudsman's broad investigative and
Constitution. Section 21 of RA No. 6770
disciplinary powers include all acts of
provides:chanRoblesvirtualLawlibrary
malfeasance, misfeasance, and nonfeasance of all
public officials, including Members of the Cabinet
and key Executive officers, during their tenure. To
support these broad powers, the Constitution
saw it fit to insulate the Office of the
Ombudsman from the pressures and
influence of officialdom and partisan politics
and from fear of external reprisal by making
it an "independent" office, x x x.
xxxx
Given the scope of its disciplinary authority, the
Office of the Ombudsman is a very powerful
government constitutional agency that is
considered "a notch above other grievance-
handling investigative bodies." It has powers,
both constitutional and statutory, that are
commensurate , with its daunting task of
enforcing accountability of public
officers.162 (Emphasis and underscoring supplied)
Gonzales III is the first case which grappled with
the meaning of the Ombudsman's independence
vis-a-vis the independence of the other
constitutional bodies. Pertinently, the Court
observed:
(1) "[T]he independence enjoyed by the Office of
the Ombudsman and by the Constitutional
Commissions shares certain characteristics - they
do not owe their existence to any act of
Congress, but are created by the
Constitution itself; additionally, they all enjoy
fiscal autonomy. In general terms, the framers
of the Constitution intended that these
'independent' bodies be insulated from
political pressure to the extent that the absence
of 'independence' would result in the impairment
of their core functions"163;cralawlawlibrary
(2) "[T]he Judiciary, the Constitutional
Commissions, and the Ombudsman must have the
independence and flexibility needed in the
discharge of their constitutional duties. The
imposition of restrictions and constraints on the
manner the independent constitutional
offices allocate and utilize the funds
appropriated for their operations is
anathema to fiscal autonomyand violative not
only [of] the express mandate of the Constitution,
but especially as regards the Supreme Court, of
the independence and separation of powers upon
which the entire fabric of our constitutional
system is based";164 and
pressure."165
At bottom, the decisive ruling in Gonzales III,
however, was that the independence of the Office
of the Ombudsman, as well as that of the
foregoing independent bodies, meant freedom
from control or supervision of the Executive
Department:

[T]he independent constitutional commissions

(3) "[T]he constitutional deliberations explain the
have been consistently intended by the framers to
Constitutional Commissions' need for
be independent from executive control or
independence. In the deliberations of the 1973
supervision or any form of political
Constitution, the delegates amended the 1935
influence. At least insofar as these bodies are
Constitution by providing for a constitutionally-
concerned, jurisprudence is not scarce on how the
created Civil Service Commission, instead of one
"independence" granted to these bodies prevents
created by law, on the premise that the
presidential interference.
effectivity of this body is dependent on its
freedom from the tentacles of politics. In a
In Brillantes, Jr. v. Yorac (G.R. No. 93867,
similar manner, the deliberations of the 1987
December 18, 1990, 192 SCRA 358), we
Constitution on the Commission on Audit
emphasized that the Constitutional Commissions,
highlighted the developments in the past
which have been characterized under the
Constitutions geared towards insulating the
Constitution as "independent," are not under the
Commission on Audit from political
control of the President, even if they discharge
functions that are executive in nature. The Court
declared as unconstitutional the President's act of
temporarily appointing the respondent in that
case as Acting Chairman of the [Commission on
Elections] "however well-meaning" it might have
been.
In Bautista v. Senator Salonga (254 Phil. 156,
179 [1989]), the Court categorically stated that
the tenure of the commissioners of the
independent Commission on Human Rights could
not be placed under the discretionary power
of the President.
xxxx
The kind of independence enjoyed by the Office of
the Ombudsman certainly cannot be inferior - but
is similar in degree and kind - to the
independence similarly guaranteed by the
Constitution to the Constitutional Commissions
since all these offices fill the political interstices of
a republican democracy that are crucial to its
existence and proper functioning.166 (Emphases
and underscoring supplied)
Thus, in Gonzales III, the Court declared Section
8 (2), RA 6770, which provides that "[a] Deputy
or the Special Prosecutor, may be removed from
office by the President for any of the grounds
provided for the removal of the Ombudsman, and
after due process," partially unconstitutional
insofar as it subjected the Deputy Ombudsman to
the disciplinary authority of the President for
violating the principle of independence.
Meanwhile, the validity of Section 8 (2), RA 6770
was maintained insofar as the Office of the
Special Prosecutor was concerned since said office
was not considered to be constitutionally within
the Office of the Ombudsman and is, hence, not
entitled to the independence the latter enjoys
under the Constitution.167
As may be deduced from the various discourses
in Gonzales III, the concept of Ombudsman's
independence covers three (3) things:
First: creation by the Constitution, which
means that the office cannot be abolished, nor its
constitutionally specified functions and privileges,
be removed, altered, or modified by law, unless
the Constitution itself allows, or an amendment
thereto is made;cralawlawlibrary
Second: fiscal autonomy, which means that the
office "may not be obstructed from [its] freedom
to use or dispose of [its] funds for purposes
168
germane to [its] functions; hence, its budget
cannot be strategically decreased by officials of
the political branches of government so as to
impair said functions; and
Third: insulation from executive supervision
and control, which means that those within the
ranks of the office can only be disciplined by an
internal authority.
Evidently, all three aspects of independence
intend to protect the Office of the Ombudsman
from political harassment and pressure, so as
to free it from the "insidious tentacles of
politics."169
That being the case, the concept of Ombudsman
independence cannot be invoked as basis to
insulate the Ombudsman from judicial power
constitutionally vested unto the courts. Courts are
apolitical bodies, which are ordained to act as
impartial tribunals and apply even justice to all.
Hence, the Ombudsman's notion that it can be
exempt from an incident of judicial power - that
is, a provisional writ of injunction against a
preventive suspension order - clearly strays from
the concept's rationale of insulating the office
from political harassment or pressure.
B. The first paragraph of Section 14, RA
6770 in light of the powers of Congress and
the
Court under the 1987 Constitution.
The Ombudsman's erroneous abstraction of her
office's independence notwithstanding, it remains
that the first paragraph of Section 14, RA 6770
textually prohibits courts from extending
provisional injunctive relief to delay any
investigation conducted by her office. Despite the
usage of the general phrase "[n]o writ of
injunction shall be issued by any court," the
Ombudsman herself concedes that the prohibition
170
does not cover the Supreme Court.  As support,
she cites the following Senate deliberations:
Senator [Ernesto M.] Maceda. Mr. President, I
do not know if an amendment is necessary. I
would just like to inquire for the record
whether below the Supreme Court, it is
understood that there is no injunction policy
against the Ombudsman by lower courts. Or,
is it necessary to have a special paragraph
for that?
Senator Angara. Well, there is no provision
here, Mr. President, that will prevent an injunction
against the Ombudsman being issued.
Senator Maceda. In which case, I think that
the intention, this being one of the highest
constitutional bodies, is to subject this only
to  certiorari  to the Supreme Court. I think
an injunction from the Supreme Court is, of
course, in order but no lower courts should
be allowed to interfere.  We had a very bad
experience with even, let us say, the Forestry
Code where no injunction is supposed to be
issued against the Department of Natural
Resources.  Injunctions are issued right and
left by RTC judges all over the country.
The President. Why do we not make an
express provision to that effect?
Senator Angara. We would welcome that,
Mr. President.
The President. No [writs of injunction] from
the trial courts other than the Supreme
Court.
Senator Maceda. I so move, Mr. President, for
that amendment.
The President. Is there any objection? [Silence]
171
Hearing none, the same is approved.
Further, she acknowledges that by virtue of
Sections 1 and 5 (1), Article VIII of the 1987
Constitution, acts of the Ombudsman, including
interlocutory orders, are subject to the Supreme
Court's power of judicial review As a corollary, the
Supreme Court may issue ancillary mjunctive
writs or provisional remedies in the exercise of its
power of judicial review over matters pertaining
to ongoing investigations by the Office of the
Ombudsman. Respecting the CA, however, the
172
Ombudsman begs to differ.
With these submissions, it is therefore apt to
examine the validity of the first paragraph of
Section 14, RA 6770 insofar as it prohibits all
courts, except this Court, from issuing provisional
writs of injunction to enjoin an Ombudsman
investigation. That the constitutionality of this
provision is the lis mota of this case has not been
seriously disputed. In fact, the issue anent its
constitutionality was properly raised and
presented during the course of these
proceedings.173More importantly, its resolution is
clearly necessary to the complete disposition of
this case.174
In the enduring words of Justice Laurel in Angara
v. The Electoral Commission(Angara),175 the
"Constitution has blocked out with deft strokes
and in bold lines, allotment of power to the
executive, the legislative[,] and the judicial
departments of the government."176 The
constitutional demarcation of the three
fundamental powers of government is more
commonly known as the principle of separation of
powers. In the landmark case of Belgica v.
Ochoa, Jr. (Belgica),177the Court held that "there
is a violation of the separation of powers principle
when one branch of government unduly
encroaches on the domain of another."178 In
particular, "there is a violation of the principle
when there is impermissible (a) interference with
and/or (b) assumption of another department's
179
functions."
Under Section 1, Article VIII of the 1987
Constitution, judicial power is allocated to the
Supreme Court and all such lower courts:
Section 1. The judicial power shall be vested in
one Supreme Court and in such lower courts as
may be established by law.
Judicial power includes the duty of the courts of
justice to settle actual controversies involving
rights which are legally demandable and
enforceable, and to determine whether or not
there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the
Government.
This Court is the only court established by the
Constitution, while all other lower courts may
be established by laws passed by Congress. 
Thus, through the passage of Batas Pambansa
Bilang (BP) 129,180 known as "The Judiciary
Reorganization Act of 1980," the Court of
Appeals,181 the Regional Trial Courts,182 and the
Metropolitan Trial Courts, Municipal Trial Courts,
and Municipal Circuit Trial Courts183 were
established. Later, through the passage of RA
1125,184 and Presidential Decree No. (PD)
1486,185 the Court of Tax Appeals, and the
Sandiganbayan were respectively established.
In addition to the authority to establish lower
courts, Section 2, Article VIII of the 1987
Constitution empowers Congress to define,
prescribe, and apportion the
jurisdiction of all courts, except that it may
not deprive the Supreme Court of its
jurisdiction over cases enumerated in
Section 5186 of the same Article:
Section 2. The Congress shall have the power to
define, prescribe, ' and apportion the jurisdiction
of the various courts but may not deprive the
Supreme Court of its jurisdiction over cases
enumerated in Section 5 hereof.
x x x xChanRoblesVirtualawlibrary
Jurisdiction, as hereinabove used, more
accurately pertains to jurisdiction over the subject
matter of an action. In The Diocese ofBacolod v.
Commission on Elections,187 subject matter
jurisdiction was defined as "the authority 'to
hear and determine cases of the general
class to which the proceedings in question
belong and is conferred by the sovereign
authority which organizes the court and
defines its powers.'"
Among others, Congress defined, prescribed, and
apportioned the subject matter jurisdiction of this
Court (subject to the aforementioned
constitutional limitations), the Court of Appeals,
and the trial courts, through the passage of BP
129, as amended. 
In this case, the basis for the CA's subject
matter jurisdiction over Binay, Jr.'s main
petition for certiorari in CA-G.R. SP No. 139453
is Section 9(1), Chapter I of BP 129, as amended:
Section 9. Jurisdiction. - The Court of Appeals
shall exercise:
1. Original jurisdiction to issue writs
of mandamus, prohibition,certiorari, habeas
corpus, and quo warranto, and auxiliary
writs or processes, whether or not in aid of
its appellate jurisdiction[.]
Note that the CA's certiorari jurisdiction, as
above-stated, is not only original but
also concurrent with the Regional Trial Courts
(under Section 21 (1), Chapter II of BP 129), and
the Supreme Court (under Section 5, Article VIII
of the 1987 Philippine Constitution). In view of
the concurrence of these courts' jurisdiction over
petitions for certiorari, the doctrine of hierarchy
of courts should be followed. In People v.
Cuaresma,188 the doctrine was explained as
follows:
When a court has subject matter
jurisdiction over a particular case, as conferred
unto it by law, said court may then exercise its
jurisdiction acquired over that case, which is
called judicial power.

[T]his concurrence of jurisdiction is not x x x

Judicial power, as vested in the Supreme Court
to be taken as according to parties seeking any of
and all other courts established by law, has been
the writs an absolute, unrestrained freedom of
defined as the "totality of powers a court
choice of the court to which application therefor
exercises when it assumes jurisdiction and
will be directed. There is after all a hierarchy of
hears and decides a case."190 Under Section 1,
courts. That hierarchy is determinative of the
Article VIII of the 1987 Constitution, it includes
venue of appeals, and should also serve as a
"the duty of the courts of justiceto settle actual
general determinant of the appropriate forum for
controversies involving rights which are
petitions for the extraordinary writs. A becoming
legally demandable and enforceable, and to
regard for that judicial hierarchy most certainly
determine whether or not there has been a
indicates that petitions for the issuance of
grave abuse of discretion amounting to lack
extraordinary writs against first level ("inferior")
or excess of jurisdiction on the part of any
courts should be filed with the Regional Trial
branch or instrumentality of the
Court, and those against the latter, with the Court
Government."
of Appeals.189

In Oposa v. Factoran, Jr.191 the Court explained

the expanded scope of judicial power under the
1987 Constitution: Judicial power is never exercised in a vacuum. A
court's exercise of the jurisdiction it has
The first part of the authority represents the
acquired over a particular case conforms to
traditional concept of judicial power, involving the
the limits and parameters of the rules of
settlement of conflicting rights as conferred by
procedure duly promulgated by this Court. In
law. The second part of the authority represents a
other words, procedure is the framework within
broadening of f judicial power to enable the courts
which judicial power is exercised. In Manila
of justice to review what was before forbidden
Railroad Co. v. Attorney-General,193 the Court
territory, to wit, the discretion of the political
elucidated that "[t]he power or authority of the
departments of the government.
court over the subject matter existed and was
fixed before procedure in a given cause
As worded, the new provision vests in the
began. Procedure does not alter or change
judiciary, and particularly the Supreme Court, the
that power or authority; it simply directs the
power to rule upon even the wisdom of the
manner in which it shall be fully and justly
decisions of the executive and the legislature and
exercised.  To be sure, in certain cases, if that
to declare their acts invalid for lack or excess of
power is not exercised in conformity with the
jurisdiction because they are tainted with grave
provisions of the procedural law, purely, the court
abuse of discretion. The catch, of course, is the
attempting to exercise it loses the power to
meaning of "grave abuse of discretion," which is a
exercise it legally. This does not mean that it
very elastic phrase that can expand or contract
loses jurisdiction of the subject matter."194
192
according to the disposition of the judiciary.

While the power to define, prescribe, and

apportion the jurisdiction of the various courts is,
by constitutional design, vested unto
Congress, the power to promulgate rules
concerning the protection and enforcement
of constitutional rights, pleading, practice,
and procedure in all courtsbelongs
exclusively to this Court. Section 5 (5), Article
VIII of the 1987 Constitution reads:
Section 5. The Supreme Court shall have the
following powers: 
xxxx
(5) Promulgate rules concerning the
protection and enforcement of constitutional
rights, pleading, practice, and procedure in
all courts, the admission to the practice of law,
the Integrated Bar, and legal assistance to the
underprivileged. Such rules shall provide a
simplified and inexpensive procedure for the
speedy disposition of cases, shall be uniform for
all courts of the same grade, and shall not
diminish, increase, or modify substantive rights.
Rules of procedure of special courts and quasi-
judicial bodies shall remain effective unless
disapproved by the Supreme Court. (Emphases
and underscoring supplied)
In Echegaray v. Secretary of
Justice195 (Echegaray), the Court traced the
evolution of its rule-making authority, which,
under the 1935196 and 1973 Constitutions,197 had
been priorly subjected to a power-sharing scheme
with Congress.198 As it now stands, the 1987
Constitution textually altered the old
provisions by deleting the concurrent power
of Congress to amend the rules, thus
solidifying in one body the Court's rule-
making powers, in line with the Framers' vision
of institutionalizing a "[s]tronger and more
independent judiciary."199
The records of the deliberations of the
Constitutional Commission would show200that the
Framers debated on whether or not the Court's
rule-making powers should be shared with
Congress. There was an initial suggestion to insert
the sentence "The National Assembly may repeal,
alter, or supplement the said rules with the advice
and concurrence of the Supreme Court", right
after the phrase "Promulgate rules concerning the
protection and enforcement of constitutional
rights, pleading, practice, and procedure in all
courts, the admission to the practice of law, the
integrated bar, and legal assistance to the
underprivileged^" in the enumeration of powers
of the Supreme Court. Later, Commissioner
Felicitas S. Aquino proposed to delete the former
sentence and, instead, after the word
"[underprivileged," place a comma (,) to be
followed by "the phrase with the concurrence of
the National Assembly." Eventually, a compromise
formulation was reached wherein (a) the
Committee members agreed to Commissioner
Aquino's proposal to delete the phrase "the
National Assembly may repeal, alter, or
supplement the said rules with the advice and
concurrence of the Supreme Court" and (b) in
turn, Commissioner Aquino agreed to
withdraw his proposal to add "the phrase with
the concurrence of the National Assembly." The
changes were approved, thereby leading to
the present lack of textual reference to any
form of Congressional participation in
Section 5 (5), Article VIII,supra. The
prevailing consideration was that "both
bodies, the Supreme Court and the
Legislature, have their inherent powers."201
Thus, as it now stands, Congress has no authority
to repeal, alter, or supplement rules concerning
pleading, practice, and procedure. As pronounced
in Echegaray:
The rule making power of this Court was
expanded. This Court for the first time was given
the power to promulgate rules concerning the
protection and enforcement of constitutional
rights. The Court was also r granted for the first
time the power to disapprove rules of procedure
of special courts and quasi-judicial bodies. But
most importantly, the 1987 Constitution took
away the power of Congress to repeal, alter,
or supplement rules concerning pleading,
practice and procedure. In fine, the power to
promulgate rules of pleading, practice and
procedure is no longer shared by this Court
with Congress, more so with the
Executive.202 (Emphasis and underscoring
supplied)
Under its rule-making authority, the Court has
periodically passed various rules of procedure,
among others, the current 1997 Rules of Civil
Procedure. Identifying the appropriate
procedural remedies needed for the
reasonable exercise of every court's judicial
power, the provisional remedies of
temporary restraining orders and writs of
preliminary injunction were thus provided.
A temporary restraining order and a writ of
preliminary injunction both constitute temporary
measures availed of during the pendency of the
action. They are, by nature, ancillary because
they are mere incidents in and are dependent
upon the result of the main action. It is well-
settled that the sole object of a temporary
restraining order or a writ of preliminary
injunction, whether prohibitory or
mandatory, is to preserve the status
quo203 until the merits of the case can be heard.
They are usually granted when it is made to
appear that there is a substantial controversy
between the parties and one of them is
committing an act or threatening the immediate
commission of an act that will cause irreparable
injury or destroy the status quo of the
controversy before a full hearing can be had on
the merits of the case. In other words, they are
preservative remedies for the protection of
substantive rights or interests, and, hence, not a
cause of action in itself, but merely adjunct to a
main suit.204 In a sense, they are regulatory
processes meant to prevent a case from being
mooted by the interim acts of the parties.
Rule 58 of the 1997 Rules of Civil Procedure
generally governs the provisional remedies of a
TRO and a WPI. A preliminary injunction is
defined under Section 1,205 Rule 58, while Section
3206 of the same Rule enumerates the grounds for
its issuance. Meanwhile, under Section
207
5  thereof, a TRO may be issued as a precursor
to the issuance of a writ of preliminary injunction
under certain procedural parameters.
The power of a court to issue these provisional
injunctive reliefs coincides with itsinherent
power to issue all auxiliary writs, processes,
and other means necessary to carry its
acquired jurisdiction into effect under
Section 6, Rule 135 of the Rules of
Court which reads:
Section 6. Means to carry jurisdiction into effect. -
When by law jurisdiction is conferred on a court or
judicial officer, all auxiliary writs, f processes and
other means necessary to carry it into effect may
be employed by such court or officer; and if the
procedure to be followed in the exercise of such
jurisdiction is not specifically pointed out by
law208 or by these rules, any suitable process or
mode of proceeding may be adopted which
appears comfortable to the spirit of the said law
or rules.ChanRoblesVirtualawlibrary
In City of Manila v. Grecia-Cuerdo,209 which is a
case involving "[t]he supervisory power or
jurisdiction of the [Court of Tax Appeals] to issue
a writ of certiorariin aid of its appellate
jurisdiction"210 over "decisions, orders or
resolutions of the RTCs in local tax cases
originally decided or resolved by them in the
exercise of their original or appellate
jurisdiction,"211 the Court ruled that said power
"should coexist with, and be a complement to, its
appellate jurisdiction to review, by appeal, the
final orders and decisions of the RTC, in order to
have complete supervision over the acts of the
latter:"212
A grant of appellate jurisdiction implies that there
is included in it thepower necessary to
exercise it effectively, to make all orders
that ; will preserve the subject of the action,
and to give effect to the final
determination of the appeal. It carries with it
the power to protect that jurisdiction and to make
the decisions of the court thereunder effective.
The court, in aid of its appellate jurisdiction, has
authority to control all auxiliary and incidental
matters necessary to the efficient and proper
exercise of that jurisdiction. For this purpose, it
may, when necessary, prohibit or restrain the
performance of any act which might interfere with
the proper exercise of its rightful jurisdiction in
213
cases pending before it.  (Emphasis supplied)
In this light, the Court expounded on the inherent
powers of a court endowed with subject matter
jurisdiction:
[A] court which is endowed with a particular
jurisdiction should have powers which are
necessary to enable it to act effectively within
such jurisdiction. These should be regarded as
powers which are inherent in its jurisdiction
and the court must possess them in order to
enforce its rules of practice and to suppress
any abuses of its process and to t defeat any
attempted thwarting of such process.
x x x x cralawlawlibrary
Indeed, courts possess certain inherent
powers which may be said to be implied from a
general grant of jurisdiction, in addition to those
expressly conferred on them. These inherent
powers are such powers as are necessary for
the ordinary and efficient exercise of
jurisdiction; or are essential to the
existence, dignity and functions of the
courts, as well as to the due administration
of justice; or are directly appropriate,
convenient and suitable to the execution of
their granted powers; and include the power
to maintain the court's jurisdiction and
render it effective in behalf of the the judiciary to accomplish its
214
litigants.  (Emphases and underscoring constitutionally mandated functions."216
supplied)
In Smothers v. Lewis217 (Smothers), a case
Broadly speaking, the inherent powers of the involving the constitutionality of a statute which
courts resonates the long-entrenched prohibited courts from enjoining the enforcement
constitutional principle, articulated way back in of a revocation order of an alcohol beverage
the 1936 case ofAngara, that "where a general license pending appeal,218 the Supreme Court of
power is conferred or duty enjoined, every Kentucky held:
particular power necessary for the exercise of the
[T]he Court is x x x vested with certain
one or the performance of the other is also
"inherent" powers to do that which is
conferred."215
reasonably necessary for the administration
of justice within the scope of their
In the United States, the "inherent powers
jurisdiction. x x x [W]e said while considering
doctrine refers to the principle, by which the
the rule making power and the judicial power to
courts deal with diverse matters over which they
be one and the same that ". . . the grant of
are thought to have intrinsic authority like
judicial power [rule making power] to the
procedural [rule-making] and general judicial
courts by the constitution carries with it, as
housekeeping. To justify the invocation or
a necessary incident, the right to make that
exercise of inherent powers, a court must show
power effective in the administration of
that the powers are reasonably necessary to
justice." (Emphases supplied)
achieve the specific purpose for which the
exercise is sought. Inherent powers enable
Significantly, Smothers characterized a court's The control over this inherent judicial power,
issuance of provisional injunctive relief as an in this particular instance the injunction, is
exercise of the court's inherent power, and to this exclusively within the constitutional realm of
end, stated that any attempt on the part of the courts. As such, it is not within the
Congress to interfere with the same was purview of the legislature to grant or deny
constitutionally impermissible: the power nor is it within the purview of the
legislature to shape or fashion
It is a result of this foregoing line of thinking that
circumstances under which this inherently
we now adopt the language framework of 28
judicial power may be or may not be granted
Am.Jur.2d, Injunctions, Section 15, and once and
or denied.
for all make clear that a court, once having
obtained jurisdiction of a cause of action, has, as
This Court has historically recognized
an incidental to its constitutional grant of power,
constitutional limitations upon the power of the
inherent power to do all things reasonably
legislature to interfere with or to inhibit the
necessary to the administration of justice in the
performance of constitutionally granted and
case before it. In the exercise of this power, a
inherently provided judicial functions, x x x
court, when necessary in order to protect or
preserve the subject matter of the litigation,
xxxx
to protect its jurisdiction and to make its
judgment effective, may grant or issue a
We reiterate our previously adopted language, ". .
temporary injunction in aid of or ancillary to
. a court, once having obtained jurisdiction of a
the principal action.
cause of action, has, as incidental to its general
jurisdiction, inherent power to do all things
reasonably necessary f to the administration of
justice in the case before it. . ."This includes the
inherent power to issue injunctions.
(Emphases supplied)
Smothers also pointed out that the legislature's
authority to provide a right to appeal in the
statute does not necessarily mean that it could
control the appellate judicial proceeding:
However, the fact that the legislature statutorily
provided for this appeal does not give it the right
to encroach upon the constitutionally granted
powers of the judiciary. Once the
administrative action has ended and the
right to appeal arises the legislature is void
of any right to control a subsequent
appellate judicial proceeding. The judicial
rules have come into play and have
preempted the field.219 (Emphasis supplied)
With these considerations in mind, the Court rules
that when Congress passed the first paragraph of
Section 14, RA 6770 and, in so doing, took away
from the courts their power to issue a TRO and/or
WPI to enjoin an investigation conducted by the
Ombudsman, it encroached upon this Court's
constitutional rule-making authority. Clearly,
these issuances, which are, by nature, provisional
reliefs and auxiliary writs created under the
provisions of the Rules of Court, are matters of
procedure which belong exclusively within the
province of this Court. Rule 58 of the Rules of
Court did not create, define, and regulate a right
but merely prescribed the means of implementing
an existing right220 since it only provided for
temporary reliefs to preserve the applicant's right
in esse which is threatened to be violated during
the course of a pending litigation. In the case
of Fabian,211it was stated that:
If the rule takes away a vested right, it is not
procedural. If the rule creates a right such as the
right to appeal, it may be classified as a
substantive matter; but if it operates as a means
of implementing an existing right then the rule
deals merely with
procedure.ChanRoblesVirtualawlibrary
Notably, there have been similar attempts on the
part of Congress, in the exercise of its legislative
power, to amend the Rules of Court, as in the
cases of:(a) In Re: Exemption of The National
Power Corporation from Payment of Filing/ Docket
222
Fees;  (b) Re: Petition for Recognition of the
Exemption of the Government Service Insurance
223
System (GSIS) from Payment of Legal Fees;
(c) Baguio Market Vendors Multi-Purpose
Cooperative (BAMARVEMPCO) v. Cabato-
224
Cortes  While these cases involved legislative
enactments exempting government owned and
controlled corporations and cooperatives from
paying filing fees, thus, effectively modifying Rule
141 of the Rules of Court (Rule on Legal Fees), it
was, nonetheless, ruled that the prerogative to
amend, repeal or even establish new rules of
225
procedure  solely belongs to the Court, to
the exclusion of the legislative and executive
branches of government. On this score, the
Court described its authority to promulgate rules
on pleading, practice, and procedure as exclusive
and "[o]ne of the safeguards of [its]
institutional independence."226
That Congress has been vested with the authority
to define, prescribe, and apportion the jurisdiction
of the various courts under Section 2, Article
VIII supra,as well as to create statutory courts
under Section 1, Article VIII supra, does not
and result in an abnegation of the Court's own power
to promulgate rules of pleading, practice, and
procedure under Section 5 (5), Article VIII supra.
Albeit operatively interrelated, these powers are
nonetheless institutionally separate and distinct,
each to be preserved under its own sphere of
authority. When Congress creates a court and
delimits its jurisdiction, the procedure for
which its jurisdiction is exercised is fixed by
the Court through the rules it promulgates.
The first paragraph of Section 14, RA 6770
is not a jurisdiction-vesting provision, as the
Ombudsman misconceives,227 because it does not
define, prescribe, and apportion the subject
matter jurisdiction of courts to act
oncertiorari cases; the certiorari jurisdiction of
courts, particularly the CA, stands under the
relevant sections of BP 129 which were not shown
to have been repealed. Instead, through this
provision, Congress interfered with a
provisional remedy that was created by this
Court under its duly promulgated rules of
procedure, which utility is both integral and
inherent to every court's exercise of judicial
power. Without the Court's consent to the
proscription, as may be manifested by an
adoption of the same as part of the rules of
procedure through an administrative circular
issued therefor, there thus, stands to be a
violation of the separation of powers
principle.
In addition, it should be pointed out that the
breach of Congress in prohibiting provisional
injunctions, such as in the first paragraph of
Section 14, RA 6770, does not only undermine
the constitutional allocation of powers; it also
practically dilutes a court's ability to carry
out its functions. This is so since a particular
case can easily be mooted by supervening
events if no provisional injunctive relief is
extended while the court is hearing the
same. Accordingly, the court's acquired
jurisdiction, through which it exercises its judicial
power, is rendered nugatory. Indeed, the force of
judicial power, especially under the present
Constitution, cannot be enervated due to a court's
inability to regulate what occurs during a
proceeding's course. As earlier intimated, when
jurisdiction over the subject matter is accorded by
law and has been acquired by a court, its exercise
thereof should be undipped. To give true meaning
to the judicial power contemplated by the Framers
of our Constitution, the Court's duly promulgated
rules of procedure should therefore remain
unabridged, this, even by statute. Truth be told,
the policy against provisional injunctive writs in
whatever variant should only subsist under rules
of procedure duly promulgated by the Court given
its sole prerogative over the same.
The following exchange between Associate Justice
Marvic Mario Victor F. Leonen (Justice Leonen)
and the Acting Solicitor General Florin T. Hilbay
(Acting Solicitor General Hilbay) mirrors the
foregoing observations:
JUSTICE LEONEN:
Okay. Now, would you know what rule covers
injunction in the Rules of Court?
x x x.
xxxx
JUSTICE LEONEN:
Okay, Now, we go to the Constitution. Section 5,
subparagraph 5 of Article VIII of the Constitution,
if you have a copy of the Constitution, can you
please read that provision? Section 5, Article VIII
the Judiciary subparagraph 5, would you kindly
read that provision?

ACTING SOLICTOR GENERAL HILBAY.

ACTING SOLICITOR GENERAL HILBAY:
"Promulgate rules concerning the protection and
Rule 58, Your Honor.
enforcement of constitutional rights, pleading,
practice and procedure in all courts..."
JUSTICE LEONEN:
58, that is under the general rubric if Justice
JUSTICE LEONEN:
Bersamin will correct me if I will be mistaken
Okay, we can stop with that, promulgate rules
under the rubric of what is called provisional
concerning pleading, practice and procedure in all
remedies, our resident expert because Justice
courts. This is the power, the competence, the
Peralta is not here so Justice Bersamin for a
jurisdiction of what constitutional organ?
while. So provisional remedy you have injunction,
ACTING SOLICITOR GENERAL HILBAY:
The Supreme Court, Your Honor.
JUSTICE LEONEN:
The Supreme Court. This is different from Article
VIII Sections 1 and 2 which we've already been
discussed with you by my other colleagues, is that
not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
JUSTICE LEONEN:
Okay, so in Section 2, [apportion] jurisdiction that
is the power of Congress, is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
JUSTICE LEONEN:
On the other hand, the power to promulgate rules
is with the Court, is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
JUSTICE LEONEN:
A TRO and a writ of preliminary injunction, would
it be a separate case or is it part of litigation in an
ordinary case?
ACTING SOLICITOR GENERAL HILBAY:
It is an ancillary remedy, Your Honor.
JUSTICE LEONEN: 
In fact, it originated as an equitable remedy, is
that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
JUSTICE LEONEN:
In order to preserve the power of a court so
that at the end of litigation, it will not be
rendered moot and academic, is that not
correct?

ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
JUSTICE LEONEN:
In that view, isn't Section 14, first paragraph,
unconstitutional?
ACTING SOLICITOR GENERAL HILBAY:
No, Your Honor.
xxxx
JUSTICE LEONEN.
Can Congress say that a Court cannot prescribe
Motions to Dismiss under Rule 16?
ACTING SOLICITOR GENERAL HILBAY:
Your Honor, Congress cannot impair the power of
the Court to create remedies, x x x.
JUSTICE LEONEN.
What about bill [of] particulars, can Congress say,
no Court shall have the power to issue the
supplemental pleading called the bill of t
particular [s]? It cannot, because that's part of
procedure...
ACTING SOLICITOR GENERAL HILBAY:
That is true.
JUSTICE LEONEN
...or for that matter, no Court shall act on a
Motion to Quash, is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct.
JUSTICE LEONEN:
So what's different with the writ of injunction?
ACTING SOLICITOR GENERAL HILBAY:
Writ of injunction, Your Honor, requires the
existence of jurisdiction on the part of a court that
was created by Congress. In the absence of
jurisdiction... (interrupted)

JUSTICE LEONEN:
No, writ of injunction does not attach to a court.
In other words, when they create a special
agrarian court it has all procedures with it but it
does not attach particularly to that particular
court, is that not correct?
ACTING SOLICTOR GENERAL HILBAY:
When Congress, Your Honor, creates a special
court...
JUSTICE LEONEN:
Again, Counsel, what statute provides for a TRO,
created the concept of a TRO? It was a Rule. A
rule of procedure and the Rules of Court, is that
not correct?
ACTING SOLICITOR GENERAL HILBAY:
Yes, Your Honor.
JUSTICE LEONEN:
And a TRO and a writ of preliminary injunction
does not exist unless it is [an] ancillary to a
particular injunction in a court, is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
xxxx228 (Emphasis supplied)
In Biraogo v. The Philippine Truth Commission of
2010,229 the Court instructed that "[i]t is through
the Constitution that the fundamental powers of
government are established, limited and defined,
and by which these powers are distributed among
the several departments. The Constitution is the
basic and paramount law to which all other laws
must conform and to which all persons, including
the highest officials of the land, must defer." It
would then follow that laws that do not conform
to the Constitution shall be stricken down for
being unconstitutional.230
However, despite the ostensible breach of the
separation of powers principle, the Court is not
oblivious to the policy considerations behind the conferred to it under Section 9 (1), Chapter I of
first paragraph of Section 14, RA 6770, as well as BP 129, as amended, and which it had already
other statutory provisions of similar import. Thus, acquired over the main CA-G.R. SP No. 139453
pending deliberation on whether or not to adopt case.
the same, the Court, under its sole prerogative
IV.
and authority over all matters of procedure,
deems it proper to declare as ineffective the
The foregoing notwithstanding, the issue of
prohibition against courts other than the Supreme
whether or not the CA gravely abused its
Court from issuing provisional injunctive writs to
jurisdiction in issuing the TRO and WPI in CA-G.R.
enjoin investigations conducted by the Office of
SP No. 139453 against the preventive suspension
the Ombudsman, until it is adopted as part of the
order is a persisting objection to the validity of
rules of procedure through an administrative
said injunctive writs. For its proper analysis, the
circular duly issued therefor.
Court first provides the context of the assailed
injunctive writs.
Hence, with Congress interfering with matters of
procedure (through passing the first paragraph of
A. Subject matter of the CA's iniunctive writs
Section 14, RA 6770) without the Court's consent
is the preventive suspension order.
thereto, it remains that the CA had the authority
to issue the questioned injunctive writs enjoining
By nature, a preventive suspension order is
the implementation of the preventive suspension
not a penalty but only a preventive measure.
order against Binay, Jr. At the risk of belaboring
In Quimbo v. Acting Ombudsman Gervacio,231 the
the point, these issuances were merely ancillary
Court explained the distinction, stating that its
to the exercise of the CA's certiorari jurisdiction
purpose is to prevent the official to be such investigation, the charge is established and
suspended from using his position and the the person investigated is found guilty of acts
powers and prerogatives of his office to warranting his suspension or removal, then he is
influence potential witnesses or tamper with suspended, removed or dismissed. This is the
records which may be vital in the penalty.
prosecution of the case against him:
That preventive suspension is not a penalty is in
Jurisprudential law establishes a clear-cut
fact explicitly provided by Section 24 of Rule XIV
distinction betweensuspension as preventive
of the Omnibus Rules Implementing Book V of the
measure and suspension as penalty. The
Administrative Code of 1987 (Executive Order No.
distinction, by considering the purpose aspect of
292) and other Pertinent Civil Service Laws.
the suspensions, is readily cognizable as they
Section. 24. Preventive suspension is not a
have different ends sought to be achieved.
punishment or penalty for misconduct in office but
is considered to be a preventive measure.
Preventive suspension is merely a
(Emphasis supplied)ChanRoblesVirtualawlibrary
preventive measure, a preliminary step in an
Not being a penalty, the period within which one
administrative investigation. The purpose of
is under preventive suspension is not considered
the suspension order is to prevent the
part of the actual penalty of suspension. So
accused from using his position and the
Section 25 of the same Rule XIV
powers and prerogatives of his office to
provides:chanRoblesvirtualLawlibrary
influence potential witnesses or tamper with
Section 25. The period within which a public
records which may be vital in the
officer or employee charged is placed under
prosecution of the case against him. If after
preventive suspension shall not be considered
part of the actual penalty of
suspension imposed upon the employee found
232
guilty. (Emphases
supplied)ChanRoblesVirtualawlibrary
The requisites for issuing a preventive suspension
order are explicitly stated in Section 24, RA 6770:
Section 24. Preventive Suspension. - The
Ombudsman or his Deputy may preventively
suspend any officer or employee under his
authority pending an investigation, if in his
judgment the evidence of guilt is
strong, and (a) the charge against such
officer or employee involves dishonesty,
oppression or grave misconduct or neglect in
the performance of duty; (b) the charges
would warrant removal from the
service; or (c) the respondent's continued
stay in office may prejudice the case filed
against him.
The preventive suspension shall continue until the
case is terminated by the Office of the
Ombudsman but not more than six (6) months,
without pay, except when the delay in the
disposition of the case by the Office of the
Ombudsman is due to the fault, negligence or
petition of the respondent, in which case the
period of such delay shall not be counted in
computing the period of suspension herein
provided. (Emphasis and underscoring supplied)
In other words, the law sets forth two (2)
conditions that must be satisfied to justify the
issuance of an order of preventive suspension
pending an investigation, namely:
(1) The evidence of guilt is strong; and
(2) Either of the following circumstances co-exist
with the first
requirement:chanRoblesvirtualLawlibrary
(a) The charge involves dishonesty, oppression or
grave misconduct or neglect in the performance
of duty;cralawlawlibrary

(b) The charge would warrant removal from the
service; or
(c) The respondent's continued stay in office may
prejudice the case filed against
233
him. ChanRoblesVirtualawlibrary
B. The basis of the CA's injunctive writs is
the condonation doctrine.
Examining the CA's Resolutions in CA-G.R. SP No.
139453 would, however, show that the
Ombudsman's non-compliance with the requisites
provided in Section 24, RA 6770 was not the basis
for the issuance of the assailed injunctive writs.
The CA's March 16, 2015 Resolution which
directed the issuance of the assailed TRO was
based on the case of Governor Garcia, Jr. v.
CA234 (Governor Garcia, Jr.), wherein the Court
emphasized that "if it were established in the CA
that the acts subject of the administrative
complaint were indeed committed during
petitioner [Garcia's] prior term, then, following
settled jurisprudence, he can no longer be
administratively charged."235 Thus, the Court,
contemplating the application of the condonation
doctrine, among others, cautioned, in the said
case, that "it would have been more prudent for
[the appellate court] to have, at the very least, on
account of the extreme urgency of the matter and
the seriousness of the issues raised in
the certiorari petition, issued a TRO x x
x"236during the pendency of the proceedings.
Similarly, the CA's April 6, 2015 Resolution which
directed the issuance of the assailed WPI was
based on the condonation doctrine, citing the case
ofAguinaldo v. Santos237 The CA held that Binay,
Jr. has an ostensible right to the final relief
prayed for, i.e., the nullification of the preventive
suspension order, finding that the Ombudsman
can hardly impose preventive suspension against
Binay, Jr. given that his re-election in 2013 as
City Mayor of Makati condoned any administrative
liability arising from anomalous activities relative
to the Makati Parking Building project from 2007
238
to 2013.  Moreover, the CA observed that
although there were acts which were apparently
committed by Binay, Jr. beyond his first
term , i.e., the alleged payments on July 3, 4, and
239
24, 2013, corresponding to the services of
Hillmarc's and MANA - still, Binay, Jr. cannot be
held administratively liable therefor based on the
cases of Salalima v. Guingona,
Jr.,240 and Mayor Garcia v. Mojica,241 wherein
the condonation dobtrine was applied by the
Court although the payments were made after the
official's election, reasoning that the payments
were merely effected pursuant to contracts
242
executed before said re-election.
The Ombudsman contends that it was
inappropriate for the CA to have considered the
condonation doctrine since it was a matter of
defense which should have been raised and
passed upon by her office during the
administrative disciplinary
proceedings.243 However, the Court agrees with
the CA that it was not precluded from considering
the same given that it was material to the
propriety of according provisional injunctive relief
in conformity with the ruling in Governor Garcia,
Jr., which was the subsisting jurisprudence at that
time. Thus, since condonation was duly raised by
Binay, Jr. in his petition in CA-G.R. SP No.
139453,244 the CA did not err in passing upon the
same. Note that although Binay, Jr. secondarily
argued that the evidence of guilt against him was
not strong in his petition in CA-G.R. SP No.
139453,245 it appears that the CA found that the
application of the condonation doctrine was
already sufficient to enjoin the implementation of
the preventive suspension order. Again, there is
nothing aberrant with this since, as remarked in
the same case of Governor Garcia, Jr., if it was
established that the acts subject of the
administrative complaint were indeed committed
during Binay, Jr.'s prior term, then, following the
condonation doctrine, he can no longer be
administratively charged. In other words, with
condonation having been invoked by Binay, Jr. as
an exculpatory affirmative defense at the onset,
the CA deemed it unnecessary to determine if the
evidence of guilt against him was strong, at least
for the purpose of issuing the subject injunctive
writs.
With the preliminary objection resolved and the
basis of the assailed writs herein laid down, the
Court now proceeds to determine if the CA
gravely abused its discretion in applying the
condonation doctrine.
C. The origin of the condonation doctrine.
Generally speaking, condonation has been defined
as "[a] victim's express or implied forgiveness of
an offense, [especially] by treating the
246
offender as if there had been no offense."
The condonation doctrine - which connotes this
same sense of complete extinguishment of
liability as will be herein elaborated upon - is not
based on statutory law. It is a jurisprudential
creation that originated from the 1959
caseof Pascual v. Hon. Provincial Board
ofNueva Ecija,247 (Pascual),  which was therefore
decided under the 1935 Constitution.
In Pascual, therein petitioner, Arturo Pascual, was
elected Mayor of San Jose, Nueva Ecija, sometime
in November 1951, and was later re-elected to
the same position in 1955. During his second
term, or on October 6, 1956, the Acting
Provincial Governor filed administrative
charges before the Provincial Board of Nueva
Ecija against him for grave abuse of authority and
usurpation of judicial functions for acting on a
criminal complaint in Criminal Case No. 3556 on
December 18 and 20, 1954. In defense, Arturo
Pascual argued that he cannot be made liable for
the acts charged against him since they were
committed during his previous term of office, and
therefore, invalid grounds for disciplining him
during his second term. The Provincial Board, as
well as the Court of First Instance of Nueva Ecija,
later decided against Arturo Pascual, and when
the case reached this Court on appeal, it
recognized that the controversy posed a novel
issue - that is, whether or not an elective official
may be disciplined for a wrongful act committed
by him during his immediately preceding term of
office.
As there was no legal precedent on the issue
at that time, the Court, inPascual, resorted to
American authorities and "found that cases on
the matter are conflicting due in part, probably, to
differences in statutes and constitutional
provisions, and also, in part, to a divergence of
views with respect to the question of whether the
subsequent election or appointment condones the
prior misconduct."248Without going into the
variables of these conflicting views and
cases, it proceeded to state that:
The weight of authorities x x x seems to
incline toward the rule denying the right to
remove one from office because of
misconduct during a prior term, to which we
fully subscribe.249(Emphasis and underscoring
supplied)
The conclusion is at once problematic since this
Court has now uncovered that there is really no
established weight of authority in the United
States (US) favoring the doctrine of condonation,
which, in the words of Pascual, theorizes that an
official's re-election denies the right to remove
him from office due to a misconduct during a prior
term. In fact, as pointed out during the oral
arguments of this case, at least seventeen (17)
states in the US have abandoned the condonation
doctrine.250 The Ombudsman aptly cites several
rulings of various US State courts, as well as
literature published on the matter, to demonstrate
the fact that the doctrine is not uniformly applied
across all state jurisdictions. Indeed, the
treatment is nuanced:
(1) For one, it has been widely recognized that
the propriety of removing a public officer from his
current term or office for misconduct which he
allegedly committed in a prior term of office is
governed by the language of the statute or
constitutional provision applicable to the facts of a
particular case (see In Re Removal of Member of
251
Council Coppola).  As an example, a Texas
statute, on the one hand, expressly allows
removal only for an act committed during a
present term: "no officer shall be prosecuted or
removed from office for any act he may have
committed prior to his election to office"
252
(see State ex rel. Rowlings v. Loomis).  On the
other hand, the Supreme Court of Oklahoma
allows removal from office for "acts of
commission, omission, or neglect committed,
done or omitted during a previous or preceding
term of office" (see State v. Bailey)253 Meanwhile,
in some states where the removal statute is silent
or unclear, the case's resolution was contingent
upon the interpretation of the phrase "in office."
On one end, the Supreme Court of Ohio strictly
construed a removal statute containing the phrase
"misfeasance of malfeasance in office" and
thereby declared that, in the absence of clear
legislative language making, the word "office"
must be limited to the single term during which
the offense charged against the public officer
occurred (see State ex rel. Stokes v. Probate
Court of Cuyahoga County)254 Similarly, the
Common Pleas Court of Allegheny County,
Pennsylvania decided that the phrase "in office" in
its state constitution was a time limitation with
regard to the grounds of removal, so that an
officer could not be removed for misbehaviour
which occurred; prior to the taking of the office
(seeCommonwealth v. Rudman)255 The opposite
was construed in the Supreme Court of Louisiana
which took the view that an officer's inability to
hold an office resulted from the commission of
certain offenses, and at once rendered him unfit
to continue in office, adding the fact that the
officer had been re-elected did not condone or
purge the offense (see State ex rel. Billon v.
Bourgeois).256 Also, in the Supreme Court of New
York, Apellate Division, Fourth Department, the
court construed the words "in office" to refer not
to a particular term of office but to an entire
tenure; it stated that the whole purpose of the
legislature in enacting the statute in question
could easily be lost sight of, and the intent of the
law-making body be thwarted, if an unworthy
official could not be removed during one term for
misconduct for a previous one (Newman v.
Strobel).257
(2) For another, condonation depended on
whether or not the public officer was a successor
in the same office for which he has been
administratively charged. The "own-successor
theory," which is recognized in numerous States
as an exception to condonation doctrine, is
premised on the idea that each term of a re-
elected incumbent is not taken as separate and
distinct, but rather, regarded as one continuous
term of office. Thus, infractions committed in a
previous term are grounds for removal because a
re-elected incumbent has no prior term to speak
of258 (see Attorney-General v. Tufts;259State v.
260
Welsh; Hawkins v. Common Council of Grand
Rapids;261Territory v. Sanches;262 and Tibbs v.
City of Atlanta).263
(3) Furthermore, some State courts took into
consideration the continuing nature of an offense
in cases where the condonation doctrine was
invoked. In State ex rel. Douglas v.
Megaarden,264 the public officer charged with
malversation of public funds was denied the
defense of condonation by the Supreme Court of
Minnesota, observing that "the large sums of
money illegally collected during the previous
years are still retained by him." In State ex rel.
Beck v. Harvey265 the Supreme Court of Kansas
ruled that "there is no necessity" of applying the
condonation doctrine since "the misconduct
continued in the present term of office[;] [thus]
there was a duty upon defendant to restore this
money on demand of the county commissioners."
Moreover, in State ex rel. Londerholm v.
Schroeder,266 the Supreme Court of Kansas held
that "insofar as nondelivery and excessive prices
are concerned, x x x there remains a continuing
duty on the part of the defendant to make
restitution to the country x x x, this duty extends
into the present term, and neglect to discharge it
constitutes misconduct."
Overall, the foregoing data clearly contravenes
the preliminary conclusion inPascual that there is
a "weight of authority" in the US on the
condonation doctrine. In fact, without any cogent
exegesis to show that Pascual had accounted for
the numerous factors relevant to the debate on
condonation, an outright adoption of the doctrine
in this jurisdiction would not have been proper.
At any rate, these US cases are only of persuasive
value in the process of this Court's decision-
making. "[They] are not relied upon as
precedents, but as guides of
267
interpretation."  Therefore, the ultimate analysis
is on whether or not the condonation doctrine, as
espoused in Pascual, and carried over in
numerous cases after, can be held up against
prevailing legal norms. Note that the doctrine
ofstare decisis does not preclude this Court from
revisiting existing doctrine. As adjudged in the
case of Belgica, the stare decisis rule should not
operate when there are powerful countervailing
considerations against its application.268 In other
words, stare decisis becomes an intractable rule
only when circumstances exist to preclude
reversal of standing precedent.269 As the
Ombudsman correctly points out, jurisprudence,
after all, is not a rigid, atemporal abstraction; it is
an organic creature that develops and devolves
along with the society within which it thrives.270 In
the words of a recent US Supreme Court Decision,
"[w]hat we can decide, we can undecide."271
In this case, the Court agrees with the
Ombudsman that since the time Pascualwas
decided, the legal landscape has radically shifted.
Again, Pascual was a 1959 case decided under
the 1935 Constitution, which dated provisions do
not reflect the experience of the Filipino People
under the 1973 and 1987 Constitutions.
Therefore, the plain difference in setting,
including, of course, the sheer impact of the
condonation doctrine on public accountability,
calls for Pascual's judicious re-examination.
D. Testing the Condonation Doctrine.
Pascual's ratio decidendi may be dissected into
three (3) parts:
First, the penalty of removal may not be
extended beyond the term in which the public
officer was elected for each term is separate and
distinct:
Offenses committed, or acts done, during
previous term are generally held not to
furnish cause for removal and this is especially
true where the constitution provides that the
penalty in proceedings for removal shallnot
extend beyond the removal from office, and
disqualification from holding office for the
term for which the officer was elected or
appointed. (67 C.J.S. p. 248, citing Rice vs.
State, 161 S.W. 2d. 401; Montgomery vs. Nowell,
40 S.W. 2d. 418; People ex rel.Bagshaw vs.
Thompson, 130 P. 2d. 237; Board of Com'rs of
Kingfisher County vs. Shutter, 281 P. 222; State
vs. Blake, 280 P. 388; In re Fudula, 147 A.
67; State vs. Ward, 43 S.W. 2d. 217).
The underlying theory is that each term is
separate from other terms x x x.272
Second, an elective official's re-election serves as
a condonation of previous misconduct, thereby
cutting the right to remove him therefor; and
[T]hat the reelection to office operates as a
condonation of the officer's previous misconduct
to the extent of cutting off the right to remove
him therefor. (43 Am. Jur. p. 45, citing Atty. Gen.
vs. Hasty,184 Ala. 121, 63 So. 559, 50 L.R.A.
(NS) 553.273 (emphasis supplied)
Third, courts may not deprive the electorate, who
are assumed to have known the life and character
of candidates, of their right to elect officers:
As held in Conant vs. Grogan (1887) 6 N.Y.S.R.
322, cited in 17 A.I.R. 281, 63 So. 559, 50 LRA
(NS) 553 —
The Court should never remove a public officer for
acts done prior to his present term of office. To do
otherwise would be to deprive the people of their
right to elect their officers. When the people
have elected a man to office, it must be
assumed that they did this with knowledge
of his life and character, and that they
disregarded or forgave his faults or
misconduct, if he had been guilty of any. It is
not for the court, by reason of such faults or
misconduct to practically overrule the will of the
people.274 (Emphases supplied)
The notable cases on condonation following
Pascual are as follows:
(1) Lizares v. Hechanova275 (May 17, 1966) -
wherein the Court first applied the condonation
doctrine, thereby quoting the above-stated
passages from Pascual in verbatim.
(2) Insco v. Sanchez, et al.276 (December 18,
1967) - wherein the Court clarified that the
condonation doctrine does not apply to a
criminal case. It was explained that a criminal
case is different from an administrative case in
that the former involves the People of the
Philippines as a community, and is a public wrong
to the State at large; whereas, in the latter, only
the populace of the constituency he serves is
affected. In addition, the Court noted that it is
only the President who may pardon a criminal
offense.
(3) Aguinaldo v. Santos277 (Aguinaldo; August
21, 1992) - a case decided under the 1987
Constitution wherein the condonation doctrine
was applied in favor of then Cagayan Governor
Rodolfo E. Aguinaldo although his re-election
merely supervened the pendency of, the
proceedings.
(4) Salalima v. Guinsona, Jr.278 (Salalima; May
22, 1996) -wherein the Courtreinforced the
condonation doctrine by stating that the
same is justified by "sound public policy."
According to the Court, condonation prevented
the elective official from being "hounded" by
administrative cases filed by his "political
enemies" during a new term, for which he has to
defend himself "to the detriment of public
service." Also, the Court mentioned that the
administrative liability condoned by re-election
covered the execution of the contract and the
279
incidents related therewith.
(5) Mayor Garcia v. Mojica280 (Mayor Garcia;
September 10, 1999) - wherein the benefit of the
doctrine was extended to then Cebu City Mayor
Alvin B. Garcia who was administratively charged
for his involvement in an anomalous contract for
the supply of asphalt for Cebu City, executed only
four (4) days before the upcoming elections. The
Court ruled that notwithstanding the timing of the
contract's execution, the electorate is presumed
to have known the petitioner's background and
character, including his past misconduct; hence,
his subsequent re-election was deemed a
condonation of his prior transgressions. More
importantly, the Court held that the determinative
time element in applying the condonation doctrine
should be the time when the contract was
perfected; this meant that as long as the
contract was entered into during a prior
term, acts which were done to implement
the same, even if done during a succeeding
term, do not negate the application of the
condonation doctrine in favor of the elective
official.
(6) Salumbides, Jr. v. Office of the
Ombudsman281 (Salumbides, Jr.; April 23, 2010)
- wherein the Court explained the doctrinal
innovations in the Salalimaand Mayor
Garcia rulings, to wit:
Salalima v. Guingona, Jr. and Mayor Garcia v.
Hon. Mojica reinforced the doctrine. The
condonation rule was applied even if the
administrative complaint was not filed
before the reelection of the public official,
and even if the alleged misconduct occurred
four days before the elections,
respectively. Salalima did not distinguish as to
the date of filing of the administrative complaint,
as long as the alleged misconduct was committed
during the prior term, the precise timing or period
of which Garcia did not further distinguish, as long
as the wrongdoing that gave rise to the public
official's culpability was committed prior to the
282
date of reelection.  (Emphasis
supplied)ChanRoblesVirtualawlibrary
The Court, citing Civil Service Commission v.
283
Sojor,  also clarified that the condonation
doctrine would not apply to appointive
officials since, as to them, there is no sovereign
will to disenfranchise.
(7) And finally, the above discussed case
of Governor Garcia, Jr. -wherein the Court
remarked that it would have been prudent for the
appellate court therein to have issued a
temporary restraining order against the
implementation of a preventive suspension order
issued by the Ombudsman in view of the
condonation doctrine.
A thorough review of the cases post-1987,
among others, Aguinaldo, Salalima, Mayor Garcia,
and Governor Garcia, Jr. - all cited by the CA to
justify its March 16, 2015 and April 6, 2015
Resolutions directing the issuance of the assailed
injunctive writs - would show that the basis for
condonation under the prevailing constitutional
and statutory framework was never accounted
for. What remains apparent from the text of these
cases is that the basis for condonation, as
jurisprudential doctrine, was - and still remains -
the above-cited postulates ofPascual, which was
lifted from rulings of US courts where condonation
was amply supported by their own state laws.
With respect to its applicability to administrative
cases, the core premise of condonation - that is,
an elective official's re-election cuts qff the right
to remove him for an administrative offense
committed during a prior term - was adopted
hook, line, and sinker in our jurisprudence largely
because the legality of that doctrine was never
tested against existing legal norms. As in the US,
the propriety of condonation is - as it should be
-dependent on the legal foundation of the
adjudicating jurisdiction. Hence, the Court
undertakes an examination of our current laws in
order to determine if there is legal basis for the
continued application of the doctrine of
condonation.
The foundation of our entire legal system is the
Constitution. It is the supreme law of the
284
land;  thus, the unbending rule is that every
statute should be read in light of the
285
Constitution.  Likewise, the Constitution is a
framework of a workable government; hence, its
interpretation must take into account the
complexities, realities, and politics attendant to
the operation of the political branches of
286
government.
As earlier intimated, Pascual was a decision
promulgated in 1959. Therefore, it was decided
within the context of the 1935 Constitution which
was silent with respect to public accountability, or
of the nature of public office being a public trust.
The provision in the 1935 Constitution that comes
closest in dealing with public office is Section 2,
Article II which states that "[t]he defense of the
State is a prime duty of government, and in the
fulfillment of this duty all citizens may be required
by law to render personal military or civil
service."287 Perhaps owing to the 1935
Constitution's silence on public accountability, and
considering the dearth of jurisprudential rulings
on the matter, as well as the variance in the
policy considerations, there was no glaring
objection confronting the PascualCourt in adopting
the condonation doctrine that originated from
select US cases existing at that time.
With the advent of the 1973 Constitution, the
approach in dealing with public officers underwent
a significant change. The new charter introduced
an entire article on accountability of public
officers, found in Article XIII. Section 1 thereof
positively recognized, acknowledged, and
declared that "[p]ublic office is a public trust."
Accordingly, "[p]ublic officers and employees
shall serve with the highest degree of
responsibility, integrity, loyalty and
efficiency, and shall remain accountable to
the people."
After the turbulent decades of Martial Law rule,
the Filipino People have framed and adopted the
1987 Constitution, which sets forth in the
Declaration of Principles and State Policies in
Article II that "[t]he State shall maintain
honesty and integrity in the public service
and take positive and effective measures
against graft and corruption."288 Learning how
unbridled power could corrupt public servants
under the regime of a dictator, the Framers put
primacy on the integrity of the public service by
declaring it as a constitutional principle and a
State policy. More significantly, the 1987
Constitution strengthened and solidified what has
been first proclaimed in the 1973 Constitution by
commanding public officers to be accountable to
the people at all times:
Section 1. Public office is a public trust. Public
officers and employeesmust at all times be
accountable to the people, serve them
withutmost responsibility, integrity, loyalty,
and efficiency and act with patriotism and
justice, and lead modest
lives.ChanRoblesVirtualawlibrary
In Belgica, it was explained that:
[t]he aphorism forged under Section 1, Article XI
of the 1987 Constitution, which states that "public
office is a public trust," is an overarching
reminder that every instrumentality of
government should exercise their official functions
only in accordance with the principles of the
Constitution which embodies the parameters of
the people's trust. The notion of a public trust
289
connotes accountability x x x.  (Emphasis
supplied)ChanRoblesVirtualawlibrary
The same mandate is found in the Revised
Administrative Code under the section of the Civil
290
Service Commission,  and also, in the Code of
Conduct and Ethical Standards for Public Officials
291
and Employees.
For local elective officials like Binay, Jr.,
the grounds to discipline, suspend or remove
an elective local official from office are stated
in Section 60 of Republic Act No.
292
7160,  otherwise known as the "Local
Government Code of 1991" (LGC), which was
approved on October 10 1991, and took effect on
January 1, 1992:
Section 60. Grounds for Disciplinary Action. - An
elective local official may be disciplined,
suspended, or removed from office on any of the r
following grounds:chanRoblesvirtualLawlibrary
(a) Disloyalty to the Republic of the
Philippines;cralawlawlibrary
(b) Culpable violation of the
Constitution;cralawlawlibrary
(c) Dishonesty, oppression, misconduct in office,
gross negligence, or dereliction of
duty;cralawlawlibrary
(d) Commission of any offense involving moral
turpitude or an offense punishable by at least
prision mayor;cralawlawlibrary
(e) Abuse of authority;cralawlawlibrary
(f) Unauthorized absence for fifteen (15)
consecutive working days, except in the case of
members of thesangguniang panlalawigan,
sangguniang panlunsod, sanggunian bayan,
and sangguniang barangay;cralawlawlibrary
(g) Application for, or acquisition of, foreign
citizenship or residence or the status of an
immigrant of another country; and
(h) Such other grounds as may be provided in this
Code and other laws.
An elective local official may be removed from
office on the grounds enumerated above by order
of the proper court.
Related to this provision is Section 40 (b) of the
LGC which states that those removed from
office as a result of an administrative
case shall bedisqualified from running for any
elective local position:
Section 40. Disqualifications. - The following
persons are disqualified from running for any
elective local position:
xxxx
(b) Those removed from office as a result of
an administrative case;
x x x x (Emphasis
supplied)ChanRoblesVirtualawlibrary
In the same sense, Section 52 (a) of the RRACCS
provides that the penalty of dismissal from
service carries the accessory penalty of
perpetual disqualification from holding
public office:
Section 52. - Administrative Disabilities Inherent
in Certain Penalties. -
a. The penalty of dismissal shall carry with it
cancellation of eligibility, forfeiture of
retirement benefits, perpetual
disqualification from holding public office,
and bar from taking the civil service
examinations.
In contrast, Section 66 (b) of the LGC states that
the penalty of suspensionshall not exceed the
unexpired term of the elective local official nor
constitute a bar to his candidacy for as long as he
meets the qualifications required for the office.
Note, however, that the provision only pertains to
the duration of the penalty and its effect on the
official's candidacy. Nothing therein states that
the administrative liability therefor is
extinguished by the fact of re-election:
Section 66. Form and Notice of Decision. - x x x. 
xxxx
(b) The penalty of suspension shall not exceed the
unexpired term of the respondent or a period of
six (6) months for every administrative offense,
nor shall said penalty be a bar to the candidacy of
the respondent so suspended as long as he meets
the qualifications required for the office.
Reading the 1987 Constitution together with the
above-cited legal provisions now leads this Court
to the conclusion that the doctrine of condonation
is actually bereft of legal bases.
To begin with, the concept of public office is a
public trust and the corollary requirement of
accountability to the people at all times, as
mandated under the 1987 Constitution, is plainly
inconsistent with the idea that an elective local
official's administrative liability for a misconduct
committed during a prior term can be wiped off
by the fact that he was elected to a second term
of office, or even another elective post. Election
is not a mode of condoning an administrative
offense, and there is simply no constitutional or
statutory basis in our jurisdiction to support the
notion that an official elected for a different term
is fully absolved of any administrative liability
arising from an offense done during a prior term.
In this jurisdiction, liability arising from
administrative offenses may be condoned bv
the President in light of Section 19, Article VII of
the 1987 Constitution which was interpreted
in Llamas v. Orbos293 to apply to administrative
offenses:
The Constitution does not distinguish between
which cases executive clemency may be exercised
by the President, with the sole exclusion of
impeachment cases. By the same token, if
executive clemency may be exercised only in
criminal cases, it would indeed be unnecessary to
provide for the exclusion of impeachment cases
from the coverage of Article VII, Section 19 of the
Constitution. Following petitioner's proposed
interpretation, cases of impeachment are
automatically excluded inasmuch as the same do
not necessarily involve criminal offenses.
In the same vein, We do not clearly see any valid
and convincing , reason why the President cannot
grant executive clemency in administrative cases.
It is Our considered view that if the President can
grant reprieves, commutations and pardons, and
remit fines and forfeitures in criminal cases, with
much more reason can she grant executive
clemency in administrative cases, which are
clearly less serious than criminal offenses.
Also, it cannot be inferred from Section 60 of the
LGC that the grounds for discipline enumerated
therein cannot anymore be invoked against an
elective local official to hold him administratively
liable once he is re-elected to office. In fact,
Section 40 (b) of the LGC precludes condonation
since in the first place, an elective local official
who is meted with the penalty of removal could
not be re-elected to an elective local position due
to a direct disqualification from running for such
post. In similar regard, Section 52 (a) of the
RRACCS imposes a penalty of perpetual
disqualification from holding public office as an
accessory to the penalty of dismissal from service.
To compare, some of the cases adopted
in Pascual were decided by US State jurisdictions
wherein the doctrine of condonation of
administrative liability was supported by either a
constitutional or statutory provision stating, in
effect, that an officer cannot be removed by a
misconduct committed during a previous
term,294 or that the disqualification to hold the
office does not extend beyond the term in
which the official's delinquency
occurred.295 In one case,296 the absence of a
provision against the re-election of an officer
removed - unlike Section 40 (b) of the LGC-was
the justification behind condonation. In another
297
case,  it was deemed that condonation through
re-election was a policy under their
constitution - which adoption in this jurisdiction
runs counter to our present Constitution's
requirements on public accountability. There was
even one case where the doctrine of condonation
was not adjudicated upon but only invoked by a
298
party as a ground;  while in another case, which
was not reported in full in the official series, the
crux of the disposition was that the evidence of a
prior irregularity in no way pertained to the
charge at issue and therefore, was deemed to be
299
incompetent.  Hence, owing to either their
variance or inapplicability, none of these cases
can be used as basis for the continued adoption of
the condonation doctrine under our existing
laws.
At best, Section 66 (b) of the LGC prohibits the
enforcement of the penalty of
suspension beyond the unexpired portion of the
elective local official's prior term, and likewise
allows said official to still run for re-election This
treatment is similar to People ex rel Bagshaw v.
Thompson300 and Montgomery v. Novell301both
cited in Pascual, wherein it was ruled that an
officer cannot be suspendedfor a misconduct
committed during a prior term. However, as
previously stated, nothing in Section 66 (b) states
that the elective local official's administrative
liability is extinguished by the fact of re-election.
Thus, at all events, no legal provision actually
supports the theory that the liability is condoned.
Relatedly it should be clarified that there is no
truth in Pascual's postulation that the courts
would be depriving the electorate of their right to
elect their officers if condonation were not to be
sanctioned. In political law, election pertains to
the process by which a particular constituency
chooses an individual to hold a public office. In
this jurisdiction, there is, again, no legal basis to
conclude that election automatically implies
condonation. Neither is there any legal basis to
say that every democratic and republican state
has an inherent regime of condonation. If
condonation of an elective official's administrative
liability would perhaps, be allowed in this
jurisdiction, then the same should have been
provided by law under our governing legal
mechanisms. May it be at the time of Pascual or
at present, by no means has it been shown that
such a law, whether in a constitutional or
statutory provision, exists. Therefore, inferring
from this manifest absence, it cannot be said that
the electorate's will has been abdicated.
Equally infirm is Pascual's proposition that the
electorate, when re-electing a local official, are
assumed to have done so with knowledge of his
life and character, and that they disregarded or
forgave his faults or misconduct, if he had been
guilty of any. Suffice it to state that no such
presumption exists in any statute or
procedural rule.302 Besides, it is contrary to
human experience that the electorate would have
full knowledge of a public official's misdeeds. The
Ombudsman correctly points out the reality that
most corrupt acts by public officers are shrouded
in secrecy, and concealed from the
public. Misconduct committed by an elective
official is easily covered up, and is almost
always unknown to the electorate when they
cast their votes.303 At a conceptual level,
condonation presupposes that the condoner has
actual knowledge of what is to be
condoned. Thus, there could be no
condonation of an act that is unknown. As
observed in Walsh v. City Council of
Trenton304decided by the New Jersey Supreme
Court:
Many of the cases holding that re-election of a
public official prevents his removal for acts done
in a preceding term of office are reasoned out on
the theory of condonation. We cannot subscribe to
that theory because condonation, implying as it
does forgiveness, connotes knowledge and in the
absence of knowledge there can be no
condonation. One cannot forgive something of Court devolves the sole authority to interpret
which one has no knowledge. what the Constitution means, and all persons are
bound to follow its interpretation. As explained
That being said, this Court simply finds no legal in De Castro v. Judicial Bar Council.306
authority to sustain the condonation doctrine in
Judicial decisions assume the same authority as a
this jurisdiction. As can be seen from this
statute itself and, until authoritatively abandoned,
discourse, it was a doctrine adopted from one
necessarily become, to the extent that they are
class of US rulings way back in 1959 and thus,
applicable, the criteria that must control the
out of touch from - and now rendered obsolete by
actuations, not only of those called upon to abide
- the current legal regime. In consequence, it is
by them, but also of those duty-bound to enforce
high time for this Court to abandon the
obedience to them.307
condonation doctrine that originated from
Pascual, and affirmed in the cases following the
Hence, while the future may ultimately uncover a
same, such as Aguinaldo, Salalima, Mayor
doctrine's error, it should be, asa general rule,
Garcia, and Governor Garcia, Jr. which were all
recognized as "good law" prior to its
relied upon by the CA.
abandonment. Consequently, the people's reliance
thereupon should be respected. The landmark
It should, however, be clarified that this Court's
case on this matter is People v. Jabinal,308 wherein
abandonment of the condonation doctrine should
it was ruled:
be prospective in application for the reason that
judicial decisions applying or interpreting the laws [W]hen a doctrine of this Court is overruled and a
or the Constitution, until reversed, shall form part different view is adopted, the new doctrine should
of the legal system of the Philippines.305 Unto this
be applied prospectively, and should not apply to
parties who had relied on the old doctrine and Indeed, the lessons of history teach us that
acted on the faith thereof. institutions can greatly benefit from hindsight and
rectify its ensuing course. Thus, while it is truly
Later, in Spouses Benzonan v. CA,309 it was perplexing to think that a doctrine which is barren
further elaborated: of legal anchorage was able to endure in our
jurisprudence for a considerable length of time,
[Pursuant to Article 8 of the Civil Code "judicial
this Court, under a new membership, takes up the
decisions applying or interpreting the laws or the
cudgels and now abandons the condonation
Constitution shall form a part of the legal system
doctrine.
of the Philippines." But while our decisions form
part of the law of the land, they are also subject
E. Consequence of ruling.
to Article 4 of the Civil Code which provides that
"laws shall have no retroactive effect unless the
As for this section of the Decision, the issue to be
contrary is provided." This is expressed in the
resolved is whether or not the CA committed
familiar legal maxim lex prospicit, non respicit,
grave abuse of discretion amounting to lack
the law looks forward not backward. The rationale
or excess of jurisdiction in issuing the
against retroactivity is easy to perceive. The
assailed injunctive writs.
retroactive application of a law usually divests
rights that have already become vested or impairs
It is well-settled that an act of a court or tribunal
the obligations of contract and hence, is
can only be considered as with grave abuse of
unconstitutional.310ChanRoblesVirtualawlibrary
discretion when such act is done in a
capricious or whimsical exercise of judgment
as is equivalent to lack of jurisdiction. The
abuse of discretion must be so patent and gross
as to amount to an evasion of a positive duty or
to a virtual refusal to perform a duty enjoined by
law, or to act at all in contemplation of law, as
where the power is exercised in an arbitrary and
despotic manner by reason of passion and
hostility.311 It has also been held that"grave
abuse of discretion arises when a lower
court or tribunal patently violates the
Constitution, the law or existing
312
jurisprudence."
As earlier established, records disclose that the
CA's resolutions directing the issuance of the
assailed injunctive writs were all hinged on cases
enunciating the condonation doctrine. To recount,
the March 16, 2015 Resolution directing the
issuance of the subject TRO was based on the
case of Governor Garcia, Jr., while the April 6,
2015 Resolution directing the issuance of the
subject WPI was based on the cases of Aguinaldo,
Salalima, Mayor Garcia, and again, Governor
Garcia, Jr. Thus, by merely following settled
precedents on the condonation doctrine, which at
that time, unwittingly remained "good law," it
cannot be concluded that the CA committed a
grave abuse of discretion based on its legal
attribution above. Accordingly, the WPI against
the Ombudsman's preventive suspension order
was correctly issued.
With this, the ensuing course of action should
have been for the CA to resolve the main petition
for certiorari in CA-G.R. SP No. 139453 on the
merits. However, considering that the
Ombudsman, on October 9, 2015, had already
found Binay, Jr. administratively liable and
imposed upon him the penalty of dismissal, which
carries the accessory penalty of perpetual
disqualification from holding public office, for the
present administrative charges against him, the
said CA petition appears to have been
mooted.313 As initially intimated, the preventive
suspension order is only an ancillary issuance
that, at its core, serves the purpose of assisting
the Office of the Ombudsman in its investigation.
It therefore has no more purpose - and perforce,
dissolves - upon the termination of the office's
process of investigation in the instant
administrative case.
F. Exceptions to the mootness principle.
This notwithstanding, this Court deems it apt to
clarify that the mootness of the issue regarding
the validity of the preventive suspension order
subject of this case does not preclude any of its
foregoing determinations, particularly, its
abandonment of the condonation doctrine. As
explained in Belgica, '"the moot and academic
principle' is not a magical formula that can
automatically dissuade the Court in resolving a
case. The Court will decide cases, otherwise moot,
if: first, there is a grave violation of the
Constitution; second, the exceptional character
of the situation and the paramount public interest
is involved; third, when the constitutional issue
raised requires formulation of controlling
principles to guide the bench, the bar, and the
public; and fourth, the case is capable of
repetition yet evading review."314 All of these
scenarios obtain in this case:
First, it would be a violation of the Court's own
duty to uphold and defend the Constitution if it
were not to abandon the condonation doctrine
now that its infirmities have become apparent. As
extensively discussed, the continued application
of the condonation doctrine is simply
impermissible under the auspices of the present
Constitution which explicitly mandates that public
office is a public trust and that public officials shall
be accountable to the people at all times.
Second, the condonation doctrine is a peculiar
jurisprudential creation that has persisted as a
defense of elective officials to escape
administrative liability. It is the first time that the
legal intricacies of this doctrine have been
brought to light; thus, this is a situation of
exceptional character which this Court must
ultimately resolve. Further, since the doctrine has
served as a perennial obstacle against exacting
public accountability from the multitude of
elective local officials throughout the years, it is
indubitable that paramount public interest is
involved.
Third, the issue on the validity of the condonation
doctrine clearly requires the formulation of
controlling principles to guide the bench, the bar,
and the public. The issue does not only involve an
in-depth exegesis of administrative law principles,
but also puts to the forefront of legal discourse
the potency of the accountability provisions of the
1987 Constitution. The Court owes it to the
bench, the bar, and the public to explain how this
controversial doctrine came about, and now, its
reasons for abandoning the same in view of its
relevance on the parameters of public office.
And fourth, the defense of condonation has been
consistently invoked by elective local officials
against the administrative charges filed against
them. To provide a sample size, the Ombudsman
has informed the Court that "for the period of July
2013 to December 2014 alone, 85 cases from the
Luzon Office and 24 cases from the Central Office
were dismissed on the ground of condonation.
Thus, in just one and a half years, over a hundred
cases of alleged misconduct - involving infractions
such as dishonesty, oppression, gross neglect of
duty and grave misconduct - were placed beyond
the reach of the Ombudsman's investigatory and
prosecutorial powers."315 Evidently, this fortifies
the finding that the case is capable of repetition
and must therefore, not evade review.
In any event, the abandonment of a doctrine is
wholly within the prerogative of the Court. As
mentioned, it is its own jurisprudential creation
and may therefore, pursuant to its mandate to
uphold and defend the Constitution, revoke it
notwithstanding supervening events that render
the subject of discussion moot.chanrobleslaw
V.

With all matters pertaining to CA-G.R. SP No.
139453 passed upon, the Court now rules on the
final issue on whether or not the CA's
Resolution316 dated March 20, 2015 directing the
Ombudsman to comment on Binay, Jr.'s petition
for contempt in CA-G.R. SP No. 139504 is
improper and illegal.
The sole premise of the Ombudsman's contention
is that, as an impeachable officer, she cannot be
the subject of a charge for indirect
contempt317 because this action is criminal in
nature and the penalty therefor would result in
318
her effective removal from office.  However, a
reading of the aforesaid March 20, 2015
Resolution does not show that she has already
been subjected to contempt proceedings. This
issuance, in? fact, makes it clear that
notwithstanding the directive for the Ombudsman
to comment, the CA has not necessarily given
due course to Binay, Jr.'s contempt petition:
Without necessarily giving due course to the
Petition for Contempt respondents [Hon.
Conchita Carpio Morales, in her capacity as the
Ombudsman, and the Department of Interior and
Local Government] are hereby DIRECTED to file
Comment on the Petition/Amended and
Supplemental Petition for Contempt (CA-G.R. SP
No. 139504) within an inextendible period of
three (3) days from receipt hereof. (Emphasis
and underscoring
supplied)ChanRoblesVirtualawlibrary
Thus, even if the Ombudsman accedes to the CA's
directive by filing a comment, wherein she may
properly raise her objections to the contempt
proceedings by virtue of her being an
impeachable officer, the CA, in the exercise of its
sound judicial discretion, may still opt not to give
due course to Binay, Jr.'s contempt petition and
accordingly, dismiss the same. Sjmply put, absent
any indication that the contempt petition has been
given due course by the CA, it would then be
premature for this Court to rule on the issue. The
submission of the Ombudsman on this score is
perforce denied.
WHEREFORE, the petition is PARTLY
GRANTED. Under the premises of this Decision,
the Court resolves as follows:
(a) the second paragraph of Section 14 of
Republic Act No. 6770 is
declaredUNCONSTITUTIONAL, while the policy
against the issuance of provisional injunctive writs
by courts other than the Supreme Court to enjoin
an investigation conducted by the Office of the
Ombudsman under the first paragraph of the said
provision is DECLARED ineffective until the Court
adopts the same as part of the rules of procedure
through an administrative circular duly issued
therefor;cralawlawlibrary
(b) The condonation doctrine is ABANDONED,
but the abandonment isPROSPECTIVE in
effect;cralawlawlibrary
(c) The Court of Appeals (CA) is DIRECTED to act
on respondent Jejomar Erwin S. Binay, Jr.'s
(Binay, Jr.) petition for certiorari in CA-G.R. SP
No. 139453 in light of the Office of the
Ombudsman's supervening issuance of its Joint
Decision dated October 9, 2015 finding Binay, Jr.
administratively liable in the six (6) administrative
complamts, docketed as OMB-C-A-15-0058, OMB-
C-A-15-0059, OMB-C-A-15-0060, OMB-C-A-15-
0061, OMB-C-A-15-0062, and OMB-C-A-15-0063;
and
(d) After the filing of petitioner Ombudsman
Conchita Carpio Morales's comment, the CA
is DIRECTED to resolve Binay, Jr.'s petition for
contempt in CA-G.R. SP No. 139504 with utmost
dispatch.
SO ORDERED.
SECOND DIVISION
 G.R. No. 193809, March 23, 2015
SATURNINO NOVECIO, GAVINO NOVECIO,
ANASTACIO GOLEZ, ABUNDIO SOMBILON,
BERTING RODRIGUEZ, MELITON
CATALAN, Petitioners, v. HON. RODRIGO F.
LIM, JR., AS CHAIRMAN, HON. LEONCIA R.
DIMAGIBA ASPONENTE AND AS MEMBER
AND HON. ANGELITA A. GACUTAN AS
MEMBER, FORMER TWENTY-THIRD
DIVISION, COURT OF APPEALS, MINDANAO
STATION, HON. JUDGE BENJAMIN ESTRADA,
IN HIS CAPACITY AS PRESIDING JUDGE OF
BRANCH 9, RTC, MALAYBALAY, BUKIDNON,
MARIA CARMEN J. TUAZON, REP. BY HER
ATTORNEY-IN-FACT, LOPE
DUROTAN, Respondents. 
VERGELIO ROSALES, LUIS TEQUILIO,
GREGORIO PANANGIN, JOSEPH RODRIQUEZ,
EDDIE RODRIGUEZ, Petitioners, v. HON.
RODRIGO F. LIM, JR., AS CHAIRMAN, HON.
LEONCIA R. DIMAGIBA AS PONENTE AND AS
MEMBER DESIGNATED AS ACTING
CHAIRPERSON, PER SPECIAL ORDER NO.
1955 DATED MARCH 23, 2015. DESIGNATED
AS ACTING MEMBER VICE ASSOCIATE
JUSTICE ANTONIO T. CARPIO, PER SPECIAL
ORDER NO. 1956 DATED MARCH 23, 2015.
AND HON. ANGELITA A. GACUTAN AS
MEMBER, FORMER TWENTY-THIRD
DIVISION, COURT OF APPEALS, MINDANAO
STATION, HON. JUDGE BENJAMIN ESTRADA,
IN HIS CAPACITY AS PRESIDING JUDGE OF
BRANCH 9, RTC, MALAYBALAY, BUKIDNON,
MANUEL V. NIETO, REP. BY HIS ATTORNEY-
IN-FACT, LOPE DUROTAN, Respondent.
DECISION
BRION, J.:
We resolve the petition for certiorari1 filed under
Rule 65 of the Rules of Court with prayer for the
issuance of a temporary restraining order and/or
writ of preliminary injunction. The petition assails
the resolutions2 dated January 28, 2010 and July
16, 2010 of the Court of Appeals (CA) in CA-
G.R.SP No. 02863.
The assailed resolutions denied the petitioners'
prayer for the issuance of a preliminary injunction
pending resolution of the Petition for Review filed
in the CA. The subject of the Petition for Review
was the consolidated decision of the Regional Trial
Court (RTC), Branch 9, Malaybalay, Bukidnon,
which reversed the decision of the Municipal Trial
Court (MTC) of Quezon, Bukidnon. The MTC
dismissed the forcible entry cases filed by the
respondents against the petitioners.
On October 18, 2010, this Court issued a
Temporary Restraining Order (TRO)enjoining the
3
RTC from executing its consolidated decision.
The Factual Antecedents
Respondents Maria Carmen J. Tuazon and Manuel
V. Nieto, represented by their attorney-in-fact,
Lope Durotan (the respondents), filed
complaints4 for forcible entry with damages
against petitioners Saturnino Novecio, Gavino
Novecio, Anastacio Golez, et al. (the petitioners).5
The respondents alleged that on February 15,
2004, the petitioners, by force, intimidation,
threat, strategy and stealth, unlawfully squatted
and took possession of several portions of land
with an area of eight (8) hectares, described as
Project No. 9, Block 1, LC Map No. 777. The
petitioners allegedly planted crops, erected
makeshift shelters, and continue to plant and /or
improve the shelters as of the filing of the
complaints for forcible entry, all without the
consent and/or against the will of the
respondents.
The petitioners, on the other hand, contended
that they have already been in possession of the
land for more than two years when the complaints
were filed. They maintained that they have
planted the land with corn, durian, coconut,
mango, jackfruit, rambutan, etc. for their
livelihood. They also alleged that they were
harassed by some men armed with shotguns and
pistols on February 12, 2004.6
The petitioners further maintained that Manuel V.
Nieto, father of Maria Carmen J. Tuazon, had
previous landholding in the area but the same
was covered by the Comprehensive Agrarian
Reform Program (CARP) and so it was subdivided
in favor of the tenants.7
The MTC's Ruling
8
The MTC ruled in favor the petitioners.
The MTC found that the respondents anchored
their alleged prior possession on the fact that they
have applied title for the land as shown by a
9
certification authorizing land survey.  Other than
this, the respondents had no evidence of their
actual and physical possession of the land. The
MTC also found that they were not even residents
of the place and never personally appeared in
court during trial.
The petitioners, on the other hand, claimed their
prior possession on the fact that their livelihood
as fisher folks and farmers require them to live by
the riverbank where the land is located. The
petitioners also asserted that they have been
occupying the land for more than two (2) years
when the complaints were filed. The MTC held
that the certification issued by
the barangay captain that the petitioners are
residents of the place is a very strong evidence of
their prior physical possession.10
The MTC concluded: "[a]s between a resident and
a non-resident the likelihood is that the resident
has the prior physical possession because of his
accessibility to the area."11
The dispositive portion of the MTC decision reads:
WHEREFORE, by preponderance of evidence
showing defendants' prior physical possession of
the land and the filing of the complaint beyond
the one-year period[,] judgment is rendered in
favor of the defendants DISMISSING the
12
cases.
The respondents appealed the MTC decision to the
RTC.
The RTC's Ruling
The RTC reversed the MTC decision.13
The RTC held that the MTC ignored some pieces
of evidence, warranting the reversal of the
decision.
The RTC ruled that the MTC should have given
credence to the certification issued by the
Department of Environment and Natural
Resources - Community Environment and Natural
Resources Office (DENR-CENRO) showing that the
land in litigation is the subject of an application
for title and claim by the respondents. The RTC
also took judicial notice of the request for
authority to conduct a survey over the subject
property, which provides that "the parcel of land
herein treated was an unsurveyed land and
Manuel V. Nieto was the identified occupant and
tiller of the land."14
In view of these, the RTC ruled that the
respondents were the actual occupants of the
property in litigation long before the petitioners
had taken possession of the same property. The
RTC ordered the petitioners' ejectment.
The dispositive portion of the RTC decision reads:
WHEREFORE, premises considered and finding
the appeal to be with merit, the assailed
Consolidated Decision dated November 7, 2005 of
the Municipal Trial Court of Quezon, Bukidnon is
hereby reversed and set aside, finding in favor of
plaintiff-appellants, ordering the ejectment of all
defendants-appellees and "John Does" in both
cases and for them to turn over peaceful
possession/occupancy of the landholding in
litigation. No pronouncement as to costs. 15
The Proceedings before the CA
The petitioners filed on April 30, 2009 a Petition
for Review16 with the CA - Mindanao Station,
assailing the judgment of the RTC.
As the respondents sought the execution of the
RTC judgment, the petitioners filed on May 14,
2010 an Extremely Urgent Application for Writ of
Preliminary Injunction and Immediate Issuance of
Temporary Restraining Order.17
On July 13, 2009, the CA issued a TRO effective
for sixty (60) days. Meanwhile, the CA directed
the parties to submit their memoranda and
position papers.
On January 28, 2010, the CA issued the first
assailed resolution denying the petitioners'
application for preliminary injunction.18 The CA,
without necessarily resolving the petition on the
merits, held that the petitioners were not entitled
to the relief demanded under Rule 58 of the Rules
of Court. The petitioners' Motion for
Reconsideration was denied on July 16, 2010.
The Petition
The petitioners impute grave abuse of discretion
on the CA in denying their prayer for injunction
pending resolution of the Petition for Review.
The petitioners argue that the CA denied their
prayer for preliminary injunction despite the
pressing need for it to prevent grave and
irreparable injury to them. They emphasize that
the records clearly show that they were the prior
possessors of the subject lot. In fact, the lot has
been their home and source of livelihood for
several years prior to the institution of the forcible
entry cases. grave abuse of discretion, amounting to lack or
excess of jurisdiction, when it denied the
19
The respondents filed their comment  on petitioners' prayer for preliminary injunction.
December 3, 2010. They argue that grave abuse
The Court's Ruling
of discretion means such capricious and whimsical
exercise of judgment equivalent to lack of
We find the petition meritorious.
jurisdiction. Mere abuse of discretion, according to
the respondents, is not enough. The respondents
We note at the outset that the petition merely
maintain that the petitioners are not entitled to
assails the interlocutory orders of the CA. Thus,
the injunctive relief since they have not
the remedy of certiorari under Rule 65 is
established a clear legal right for its issuance.
appropriate as the assailed resolutions are not
appealable and there is no plain, speedy or
This Court, acting on the petitioners' prayer,
adequate remedy in the ordinary course of law.21
issued a TRO on October 18, 2010, enjoining
the RTC from executing its decision. The TRO
Our decision in this case is without prejudice to
remains effective until this day.
the Petition for Review pending in the CA. Our
judgment is limited to the resolutions of the C A
Finally, it appears that the CA has yet to issue a
denying the prayer for the issuance of a
decision on the Petition for Review.20
preliminary injunction.
The Issue
Subject to this clarification, we find that the CA
The sole issue is whether or not the CA acted with committed grave abuse of discretion when it
denied the injunctive relief prayed for by the
petitioners.
There is grave abuse of discretion when an act is
(1) done contrary to the Constitution, the law or
jurisprudence or (2) executed whimsically,
capriciously or arbitrarily, out of malice, ill will or
personal bias.22
We quote the assailed CA resolutions. The
January 28, 2010 Resolution states:
Without necessarily resolving the instant petition
on the merits, We find [the] petitioners not
entitled to the relief demanded under Rule 58 of
the Revised Rules of Procedure. Thus, [the]
petitioners' application for the issuance of [a] Writ
of Preliminary Injunction is herebyDENIED.
The July 16, 2010 Resolution reads:
Upon careful evaluation of [the] petitioners'
Motion, We find no cogent and compelling reasons
to warrant reversal of Our Resolution. The
arguments raised by [the] petitioners were mere
reiteration and already considered and passed
upon by this Court in denying [the] petitioners'
application for issuance of the Writ of Preliminary
Injunction.
A review of the records, however, shows that the
CA ignored relevant facts that would have
justified the issuance of a preliminary injunction.
Contrary to established jurisprudence, the CA also
denied the prayer for preliminary injunction
without giving the factual and legal bases for such
denial.
Section 3, Rule 58 of the Rules of Court provides
that a preliminary injunction may be granted
when the following have been established:
i. That the applicant is entitled to the relief
demanded, and the whole or part of such
relief consist 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;
ii. 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
iii. 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.
A preliminary injunction is proper when the
plaintiff appears to be clearly entitled to the relief
sought and has substantial interest in the right
sought to be defended. As this Court has
previously ruled, "while the existence of the right
need not be conclusively established, it must be
clear."23
A writ of preliminary injunction is generally based
solely on initial or incomplete evidence. Such
evidence need only be a sampling intended
merely to give the court an evidence of
justification for a preliminary injunction pending
the decision on the merits of the case, and is not
conclusive of the principal action which has yet to
be decided.24
In a prayer for preliminary injunction, the
plaintiff is not required to submit conclusive
and complete evidence. He is only required
to show that he has an ostensible right to
the final relief prayed for in his complaint. 25
In this case, the petitioners have adequately
shown their entitlement to a preliminary
injunction. First, the relief demanded consists in
restraining the execution of the RTC decision
ordering their ejectment from the disputed land.
Second, their ejectment from the land from which
they derive their source of livelihood would work
injustice to the petitioners. Finally, the execution
of the RTC decision is probably in violation of the
rights of the petitioners, tending to render the
MTC judgment dismissing the forcible entry cases
ineffectual.
Moreover, the court in granting or dismissing an
application for a writ of preliminary injunction
based on the pleadings of the parties and their
respective evidence must state in its order the
findings and conclusions based on the evidence
and the law. This is to enable the appellate court
to determine whether the trial court committed
grave abuse of its discretion amounting to excess
or lack of jurisdiction in resolving, one way or the
other, the plea for injunctive relief.26
Thus, we do not understand why the CA denied
the prayer for preliminary injunction without citing
any legal or factual basis for the denial. The CA
resolution provides: "[We] find [the] petitioners
not entitled to the relief demanded under Rule 58
of the Revised Rules of Civil Procedure."
Neither does the resolution denying the
petitioners' Motion for Reconsideration contain
any factual and legal bases for the denial. It only
provides that "[u]pon careful evaluation of the
petitioners' Motion, We find no cogent and
compelling reasons to warrant reversal of Our
Resolution."
We therefore have no idea why and how the CA
came to the conclusion that the petitioners are
not entitled to the injunctive relief. Hence, we are
forced to go beyond the function of
a certiorari under Rule 65 and examine the factual
findings of the MTC and the RTC.
The MTC found that the petitioners have been in
actual and physical possession of the land for
more than two (2) years prior to the institution of
the complaints for forcible entry.27 The MTC also
found that the respondents were not even sure
how the petitioners entered the land. In their
complaints, they alleged that petitioners entered
the land by means of "force, intimidation, threat,
stealth and strategy," a shotgun allegation which
shows that respondents' lack knowledge of how
the petitioners entered the disputed property.
The RTC, on the other hand, relied on a mere
request for authority to conduct a land survey,
allegedly showing that respondent Manuel V.
Nieto was the occupant and tiller of the land.

We quote the MTC decision with approval, viz: However, this document does not prove prior
possession of the subject land. It only points to
xxx Force, intimidation[,] and threat usually
the fact that there was an application for a land
connote actual knowledge of dispossession. One
title in the name of one of the respondents, which
cannot force, intimidate or threaten another who
application was not even shown to have been
is not around. In stealth and strategy[,] the
granted. This document merely authorized the
actual entry is usually done without the
survey of the land; the declaration regarding
knowledge of the plaintiff. If they are not sure
possession was just incidental to the application
how [the] defendants entered the land[,] the
for land survey.
likelihood is that they also do not know when
[the] defendants] entered the land. The court is
Between the clear findings of the MTC, which
apt to believe that [the] defendants have been in
conducted the trial of the forcible entry cases, and
possession of the land for more than 2 years. And
the RTC acting as an appellate court, which relied
under Rule 70[,] the action of forcible entry must
on documentary evidence but without sufficiently
be filed within one year from dispossession. The
explaining how such evidence would prove prior
filing of these cases was beyond the one-year
possession, we are inclined to give weight to the
period.28
MTC's ruling.
 preliminary injunction would have only been
This Court has held: provisional and would not be conclusively
determinative of the principal action. The issuance
xxx The Court generally recognizes the profundity
of the writ would have served its purpose, i.e., to
of conclusions and findings of facts reached by the
preserve the status quo or to prevent future
trial court and hence sustains them on appeal
wrongs in order to preserve and protect the
except for strong and cogent reasons inasmuch as
interests of the petitioners during the pendency of
the trial court is in a better position to examine
the action.30
real evidence and observe the demeanor of
witnesses in a case. No clear specific contrary
WHEREFORE, in view of the foregoing,
evidence was cited by the respondent appellate
we GRANT the writ of certiorari and
court to justify the reversal of the lower court's
accordingly SET ASIDE the resolutions of the
findings. Thus, in this case, between the factual
Court of Appeals dated January 28, 2010 and July
findings of the trial court and the appellate court,
16, 2010 for grave abuse of discretion.
those of the trial court must prevail over that of
the latter.29
SO ORDERED.

Under this factual backdrop, we conclude that the
CA committed grave abuse of discretion when it
denied the prayer for preliminary injunction
without explanation and justification.
We ought to remember that the grant of
G.R. No. 205875, June 30, 2015
LIBERTY BROADCASTING NETWORK, INC.,
NOW KNOWN AS WI-TRIBE TELECOMS,
INC., Petitioner, v. ATLOCOM WIRELESS
SYSTEM, INC.,Respondent.
 [G.R. No. 208916]
NATIONAL TELECOMMUNICATIONS
COMMISSION, Petitioner, v. ATLOCOM
WIRELESS SYSTEM, INC., Respondent.
DECISION
VILLARAMA, JR., J.:
The consolidated petitions before us assail the
Decision1 dated June 29, 2012 and
Resolution2 dated February 18, 2013 of the Court
of Appeals (CA) in CA-G.R. SP No. 119868. The
CA reversed and set aside the Orders3 dated
December 9, 2010 and March 21, 2011 of the
Regional Trial Court (RTC) of Quezon City, Branch
95 denying the application for a writ of prohibitory
or mandatory injunction in Civil Case No. Q-09-
65566.
Antecedent Facts
Atlocom Wireless System, Inc. (Atlocom) is a
grantee of a legislative franchise under Republic
Act (R.A.) No. 8605.4 On October 8, 2003, the
National Telecommunications Commission (NTC)
issued an Order5 in NTC Case No. 98-158 relative
to the application of Atlocom for a Certificate of
Public Convenience (CPC), as
follows:chanRoblesvirtualLawlibrary
WHEREFORE, it appearing that applicant is
financially and technically capable of undertaking
the proposed project and that the operation
thereof will promote the interest of the people in
Metro Manila, in a proper and suitable manner,
the Commission hereby grants to herein applicant
ATLOCOM WIRELESS SYSTEM, INC. a Provisional
Authority (PA) to install, operate and maintain a
Multi-Point Multi-Channel Distribution System
[MMDS] in METRO MANILA, subject to the
assignment of frequency by the Frequency
Management Division of this Commission and to
the following -
 CONDITIONS following bands for broadband wireless access for
fixed, nomadic and mobile networks:
6
xxxx
As stated in the above order, the PA shall be valid  450 - 470 Mhz 
for a period of eighteen (18) months, or until April  1900-1910 MHz 
8, 2005. In a letter7 dated April 5, 2004, Atlocom  1980-1990 MHz 
thru its counsel requested for "an extension of  2400-2483 MHz 
time of the allocation of the above-enumerated  2500-2700 MHz 
frequencies and for the period for the construction  3400-3600 MHz 
and installation of the radio stations in the  5150-5350 MHz 
condition no. 2 of the Order." Earlier, Atlocom  5470-5850 MHz 
filed an Application for Permit to Import8 the  10150-10650 MHz
necessary equipment. Atlocom followed up its
On December 23, 2008, NTC denied Atlocom's
application for extension of PA through a
motion for extension of PA, citing the re-allocation
letter9 dated June 2, 2005 addressed to Deputy
of MMDS frequencies for Broadband Wireless
Commissioner Jorge V. Sarmiento. Subsequently,
Access in accordance with MC 06-08-2005 and
Atlocom filed a Motion for Extension of Provisional
the unavailability of other alternative
Authority10 in NTC Case No. 98-158 on March 3,
frequencies.12chanrobleslaw
2005.

On September 8, 2009, Atlocom filed in the RTC a

On August 23, 2005, NTC issued Memorandum
11
Petition13 to enjoin the implementation of MC 06-
Circular No. (MC) 06-08-2005 re-allocating the
08-2005 and reinstate the frequencies of Atlocom.
It was further prayed that after hearing the court
render judgment declaring the said issuance as
null and void because NTC unlawfully deprived
Atlocom of the right to its assigned frequencies
without notice and hearing. The case was
docketed as Civil Case No. Q-09-65566.
Liberty Broadcasting Network, Inc. (LBNI), also a
grantee of a legislative franchise (R.A. No. 1553,
as amended by R.A. No. 4154) for radio and
television broadcasting, as well as radio stations
for international and domestic communications of
all types and services, and holder of a Certificate
of Public Convenience and Necessity (CPCN) to
operate a radio communications network, was
allowed to intervene in the case, joining the
defendant NTC in opposing Atlocom's claims.
Pursuant to MC 06-08-2005, frequency bands
2535-2545 MHz and 2565-2595 MHz were re-
allocated and assigned to LBNI, which covered the
2572-2596 MHz being claimed by Atlocom as
allegedly assigned to it.
Per Certification14 dated October 22, 2003 issued
by Alvin N. Blanco, Chief, Broadcast Services
Division of NTC, the following frequencies were
"identified" for Atlocom's MMDS (Metro Manila)
system:chanRoblesvirtualLawlibrary
C3 2572 - 2578 Mhz
D3 2578 - 2584 Mhz
C4 2584 - 2590 Mhz
D4 2590 - 2596 Mhz
On December 9, 2010, the RTC, after due
hearing, issued an Order denying Atlocom's
application for a writ of preliminary prohibitory or
mandatory injunction. Atlocom filed a motion for
reconsideration but it was likewise denied by the
RTC under Order dated March 21, 2011.
In a petition for certiorari filed before the CA,
Atlocom questioned the validity of the aforesaid
orders of the RTC.
In its Resolution15 dated August 12, 2011, the CA
denied Atlocom's prayer for the issuance of a writ
of preliminary prohibitory injunction and its
alternative prayer for a provisional mandatory
injunction.
However, in its Decision dated June 29, 2012, the
CA ruled in favor of Atlocom and reversed the
RTC's denial of application for preliminary
injunction. The fallo of the decision
reads:chanRoblesvirtualLawlibrary
WHEREFORE, premises considered, the petition
is GRANTED. The assailed Orders dated
December 9, 2010 and March 21, 2011 of the
Regional Trial Court (RTC) of Quezon City, Branch
95 are herebyREVERSED and SET ASIDE. The
plea for the issuance of a Preliminary Prohibitory
Injunction is GRANTED. Let therefore a writ of
preliminary prohibitory injunction issue enjoining
Respondent NTC from implementing
Memorandum Circular No. 06-08-2005, insofar as
the frequencies ranging from 2572-2596 Mhz are
concerned and for its Co-Respondent LBNI from
using the said frequencies during the pendency of
Civil Case No. Q-09-65566 pending before Branch
95 of the Regional Trial Court of Quezon City upon
the posting of a bond in the amount of Php
200,000.00 to answer for all damages which they
may sustain by reason of the injunction if the RTC
should finally decide that petitioner is not entitled
thereto. The alternative plea for a writ of
Preliminary Mandatory Injunction is DENIED.
SO ORDERED.16
LBNI filed a Motion for Reconsideration with Ad
Cautelam Offer to File Counter-Bond and
Addendum to Motion for Reconsideration with Ad
Cautelam Offer to File Counter-Bond. NTC also
filed a Motion for Reconsideration and
Supplemental Motion for Reconsideration. The CA
denied these motions.
LBNI filed its petition (G.R. No. 205875) in this
Court on April 22, 2013. Acting on LBNI's motion
for the issuance of a temporary restraining order
(TRO) and/or writ of preliminary injunction, we
issued a TRO enjoining the implementation of the
writ of preliminary injunction issued by the CA,
conditioned upon LBNI's posting of a cash bond in
the sum of P300,000.00.
On April 18, 2013, NTC filed its separate petition
(G.R. No. 208916) for review from the same CA
Decision and Resolution. We ordered the
consolidation of the two cases as they arose from
the same factual setting, involve the same parties
and raise identical issues.
Issues
The main issues to be resolved are: (1) whether
Atlocom complied with the requisites for issuance
of a writ of preliminary injunction; and (2)
whether LBNI's motion to file counter-bond was
correctly denied by the CA.
Specifically, LBNI asserts that the CA erred: (1) in
finding that the NTC did not observe due process
when it issued MC 06-08-2005 and basing such
conclusion on a mistaken notion that the grant of
PA is tantamount to a frequency assignment; (2)
in failing to recognize that Atlocom has not
sufficiently established its claim that it had been
assigned the 2572-2596 frequency bands by the
NTC; (3) in granting the provisional injunctive writ
that in effect pre-judged the civil case pending in
the RTC; and (4) in denying LBNI's motion to file
counter-bond on the basis of a technical
conclusion it is not qualified to make in the first
place.
NTC faults the CA in finding that Atlocom's right
to due process was violated because it was not
notified of the hearing prior to the issuance of MC
06-08-2005, and concluding that Atlocom has a
clear and unmistakable property right over the
2572-2596 frequency range.
Our Ruling
The petitions are meritorious.

A preliminary injunction is defined as "[a]n order
granted at any stage of an action prior to the
judgment or final order, requiring a party or a
court, agency or a person to refrain from a
particular actor acts."17 It may be a prohibitory
injunction, which requires a party to refrain from
doing a particular act, or a mandatory injunction,
which commands a party to perform a positive act
18
to correct a wrong in the past.  It is a provisional
remedy that a party may resort to in order to
preserve and protect certain rights and interests
19
during the pendency of an action. chanrobleslaw
Section 3, Rule 58 of the Rules of Court
provides:chanRoblesvirtualLawlibrary
SEC. 3. Grounds for issuance of preliminary
injunction. - A preliminary injunction may be
granted when it is
established:ChanRoblesVirtualawlibrary
(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
nonperformance 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.chanroblesvirtuallawlibrary
The following requisites must be proved before a
writ of preliminary injunction will issue: (1) The
applicant must have a clear and unmistakable
right to be protected, that is, a right in esse; (2)
There is a material and substantial invasion of
such right; (3) There is an urgent need for the
writ to prevent irreparable injury to the applicant;
and (4) No other ordinary, speedy, and adequate
remedy exists to prevent the infliction of
irreparable injury.20chanrobleslaw
The grant or denial of a writ of preliminary
injunction is discretionary upon the trial court
because the assessment and evaluation of
evidence towards that end involve findings of fact
left to the said court for its conclusive
determination. For this reason, the grant or denial
of a writ of preliminary injunction shall not be
disturbed unless it was issued with grave abuse of
discretion amounting to lack or in excess of
21
jurisdiction. chanrobleslaw
In denying Atlocom's application for a writ of
preliminary injunction, the RTC held that Atlocom
failed to demonstrate a clear and unmistakable
legal right thereto, as evidence showed Atlocom
has no more right to be protected considering
that its PA had already expired and its application
for extension was subsequently denied by the
NTC. As to the claim of violation of right to due
process, the RTC found that prior to the issuance
of MC 06-08-2005, NTC published a notice of
public hearing in The Manila Times, a newspaper
of general circulation, and at the said hearing the
participants were given opportunity to be heard
through oral arguments and submission of
position papers. Atlocom's alternative plea for a
writ of mandatory injunction was likewise denied.
According to the RTC, ordering the NTC to
reinstate Atlocom's frequencies would create an
impression that the court had pre-judged the
main case by nullifying MC 06-08-2005 as prayed
for by Atlocom in its petition.
However, the CA rendered a contrary ruling. The
CA underscored the fact that NTC failed to act
upon Atlocom's motion for extension for more
than three years, and concluded that because of
NTC's inordinate delay or refusal to renew the PA
granted to Atlocom, the latter was deprived of its
right to use the frequencies "granted to it by" the
PA. The CA thus held:chanRoblesvirtualLawlibrary
In deciding whether to grant an injunction, a
court must consider established principles of
equity and all the circumstances of the test for
issuing an injunction is whether the facts show a
necessity for the intervention of equity in order to
protect rights cognizable in equity. Here, there
are factual and legal justification for issuance of
the writ of injunction. To reiterate to the point of
being pedantic, petitioner's right to its frequencies
is covered by a provisional authority. The
provisional authority was withdrawn by MC No.
06-08-2005 without the Respondent NTC acting
on petitioner's plea for previous extensions. The
propriety for the issuance of MC No. 06-08-2005
is placed in issue on the ground of fairness.
Petitioner as the rightful grantee thereof has the
right, in the meantime, to enjoin its
implementation.
We are not unaware of Our Resolution
promulgated on August 12, 2011 denying
petitioner's plea for the ancillary remedy of both
prohibitory and/or mandatory injunction. Indeed,
as of said date, the denial of petitioner's prayer is
appropriate. We have now the complete facts of
the case and, as the legal consequence of Our
declaration that the RTC committed grave abuse
of discretion in issuing the assailed orders, We
consider it proper to enjoin the Respondent NTC
from implementing Memorandum Circular No. 06-
08-2005, but insofar as the frequencies ranging
from 2572-2596 Mhz are involved and for its Co-
Respondent LBNI from using the aforestated
frequencies. This is not to preempt the RTC of
whatever judgment it may thereafter issue with
respect to the merits of the case before it but is
issued in order to maintain the status quo in view
of petitioner's claim of a breach of due process
and a continuing violation of its right over the
aforestated frequencies.22
The CA explained that since it is only through a
frequency that Atlocom can provide adequate
broadcast service to the public, the withdrawal of
frequency assignment without observance of due
process defeats its legislative grant and reduces
Atlocom to a mere repository of transmitters and
equipment devoid of any purpose or value. It
cited the following provisions of R.A. No.
8605:chanRoblesvirtualLawlibrary
SEC. 3. Prior Approval of the National
Telecommunications Commission. - The grantee
shall secure from the National
Telecommunications Commission, hereinafter
referred to as the Commission, the appropriate
permits and licenses for the construction and
operation of its stations, transmitters or facilities
and shall not use any frequency in the radio and
television spectrum without having been
authorized by the Commission. The Commission,
however, shall not unreasonably withhold or delay
the grant of any such authority.
xxxx
SEC. 6. Right of Government. x x x
The radio spectrum is a finite resource that is a
part of the national patrimony and the use
thereof is a privilege conferred upon the grantee
by the State and may be withdrawn anytime,
after due process. (Italics supplied)
On the withdrawal of the frequencies previously
identified for Atlocom, the CA insisted that NTC
did not observe due
process, viz.:chanRoblesvirtualLawlibrary
x x x While it is true that there was a publication
of a Notice of Public Hearing on June 21, 2005
before the issuance of Memorandum Circular No.
06-08-2005 on August 23, 2005, the fact is, the
publication or notice was a general one and was
not meant to dispose of petitioner's previous
requests for an extension of its provisional
authority and/or application for permit to
purchase equipment. The order which dealt with
these requests was the Order dated December
23, 2008, which was issued almost four (4) years
after the filing of the first request on April 5, 2004
and almost three (3) years from the issuance of
Memorandum Circular No. 06-08-2005. Withal
and subject to whatever proof it may submit to
the RTC regarding the delay, the Respondent NTC
should have first acted on petitioner's requests for
extension before setting for public hearing the re-
allocation of the frequencies.23
We do not concur with the CA in holding that
NTC's inaction or delay on Atlocom's application
for extension of PA had violated the latter's right
to due process because it resulted in depriving
Atlocom of the use of frequencies which were re-
allocated through the issuance of MC 06-08-2005.
Such declaration rather conveys an inaccurate
picture of the regulatory process for public
broadcasting and telecommunications services.
Under existing laws and regulations, it is clear
that a frequency assignment is not automatically
included in the PA granted by the NTC to an
applicant for a CPC. Thus, the Order dated
October 8, 2003 expressly provided that the PA
granted to Atlocom, valid for 18 months, is
subject to several conditions, foremost of which is
the assignment of frequency by the Frequency
Management Division (FMD).
While Atlocom presented a Certification24 dated
October 22, 2003 issued by Alvin N. Blanco, Chief
of NTC's Broadcast Division, stating that certain
frequencies were "identified" for Atlocom's MMDS
(Metro Manila) covering 2572-2596 frequency
bands, there is no document evidencing that
these frequencies were actually assigned to
Atlocom by the FMD. There is likewise nothing in
the records to suggest that NTC "unreasonably"
withheld or delayed authority to use such
frequencies identified for Atlocom.
Atlocom blamed NTC's three-year delay in
resolving the motion for extension of PA for its
inability to use the frequencies identified for its
MMDS, as these were eventually re-allocated in
2005 under MC 06-08-2005. But as Atlocom was
fully aware, Section 6 of R.A. No. 8605 provides
that the Government may at anytime withdraw
the frequency after due process. Records showed
that a notice was duly published and a public
hearing was actually conducted on July 12, 2005
by NTC on the proposed Memo Circular:
Frequency Band Allocations for Broadcast Wireless
Access. Said event was attended by
representatives of the different broadcasting and
telecommunication companies, including
25
Atlocom.  The position papers and feedback
submitted by various companies in connection
with the proposed memorandum circular on
wireless broadband access were all presented as
26
evidence in the RTC.  We have held that the
essence of due process is simply an opportunity
to be heard, or as applied to administrative
proceedings, an opportunity to explain one's
side.27 The requirements of due process were thus
satisfied by the NTC in the re-allocation of
frequency.
Contrary to the CA's pronouncement, the re-
allocation of frequency cannot be conditioned on
resolution of any pending request for extension of
PA previously granted. Even entities with
unexpired PA cannot claim a vested right on a
specific frequency assignment. This proceeds from
the nature of its franchise which is not solely for
commercial purposes but one imbued with public
interest. As earlier quoted, Atlocom's franchise
(R.A. No. 8605) declared the use of radio
spectrum as a mere privilege conferred upon the
grantee by the State that may be withdrawn
anytime provided that due process is observed. It
further emphasized that the radio spectrum is a
finite resource and its use and distribution should
be aligned with existing laws and policies.
R.A. No. 7925 likewise recognizes the vital role of
telecommunications to national development and
security and provides that the radio frequency
shall be managed and directed to serve the public
interest. Being a limited resource, the law
mandates a periodic review of frequency
allocation.
SEC. 4. Declaration of National Policy. -
Telecommunications is essential to the economic
development, integrity and security of the
Philippines, and as such shall be developed and
administered as to safeguard, enrich and
strengthen the economic, cultural, social and
political fabric of the Philippines. The growth and
development of telecommunications services shall
be pursued in accordance with the following
policies:ChanRoblesVirtualawlibrary
xxxx
c) The radio frequency spectrum is a scarce public
resource that shall be administered in the public
interest and in accordance with international
agreements and conventions to which the
Philippines is a party and granted to the best
qualified. The government shall allocate the
spectrum to service providers who will use it
efficiently and effectively to meet public demand
for telecommunications service and may avail of
new and cost effective technologies in the use of
methods for its utilization;
xxxx
SEC. 15. Radio Frequency Spectrum. - The radio
frequency spectrum allocation and assignment
shall be subject to periodic review. The use
thereof shall be subject to reasonable spectrum
user fees. Where demand for specific frequencies
exceed availability, the Commission shall hold
open tenders for the same and ensure wider
access to this limited
resource.chanroblesvirtuallawlibrary
As a grantee of PA, Atlocom can only invoke the
condition in MC 06-08-2005 that "[t]he transfer of
previously authorized persons or entities
operating radio stations within the above listed
radio frequency bands shall be governed by Rule
603 of MC 3-3-96."28 Said rule
states:chanRoblesvirtualLawlibrary
603. TRANSFER OF  AFFECTED AUTHORIZED
RADIO FREQUENCY USER
a. The commission shall allocate available radio
frequencies for assignment to those affected by
the reallocation as a result of the review of the
radio spectrum pursuant to Rule 601.
b. The cost of the transfer to new radio
frequencies of affected authorized users shall be
borne by the new assignees to the radio
frequency channel/band where the radio
frequencies of the previously authorized users fall
within.
c. When the transfer to a new set of radio
frequencies would require additional radio links,
the cost of these links shall also be taken into
consideration.
d. The manner and the cost of the transfer shall
be negotiated in good faith between the affected
authorized users and the assignees within 90 days
from receipt of notice of relocation.
e. The Commission shall extend all the necessary
assistance to all affected authorized users and
shall mandate settlement if the parties fail to
come to an agreement within 90 days from
receipt of notice of relocation or when warranted
under the circumstances.
f. Other means/mode of transmission comparable
in quality to the existing facility shall be taken
into consideration in the negotiation for the
transfer.
g. Transfer of radio frequency assignment shall
only take effect upon activation of service by
relocated party using its newly assigned or
relocated frequency as agreed or
mandated.chanroblesvirtuallawlibrary
Considering that Atlocom has not even launched
its MMDS network nor constructed radio stations,
it is doubtful whether Atlocom can exercise the
foregoing rights of an affected frequency user.
Neither can Atlocom attribute its non-operational
state to the delayed action on its motion for
extension of PA. Among the conditions of its PA is
the commencement of the construction and
installation of its station within six months from
issuance of the order granting it the provisional
authority and its complete three months
thereafter. Perusal of the motion for extension
reveals that Atlocom at the time was still in the
process of identifying and finalizing arrangements
with its potential investors for the establishment
of a nationwide MMDS network coverage.
Based on its evaluation, the NTC found that: (1)
Atlocom filed an application for Permit to Purchase
MMDS transmitter on February 9, 2005, but no
permit of any kind was issued to it; (2) In the
clarificatory hearing held on September 4, 2006,
concerns were raised regarding reports of foreign
equity on Atlocom's capital structure and status of
band allocated for MMDS within the 2.5-2.7 Ghz
band; and (3) On June 21, 2008, Atlocom is
requesting for an allocation of a Digital Terrestrial
TV frequency (Ch 14-20 & Ch 21-51) in
replacement for their MMDS frequency, but the
NTC thru FMD denied such request because the
proposed frequency band for DTT service is not
yet approved/allocated. With the re-allocation of
MMDS frequency bands for the Broadband
Wireless Access under MC 06-8-2005, and the
aforesaid findings, the NTC en banc decided not to
grant the extension sought by Atlocom.
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.29 An injunction is
not a remedy to protect or enforce contingent,
abstract, or future rights; it will not issue to
protect a right not in esse, and which may never
arise, or to restrain an act which does not give
rise to a cause of action.30chanrobleslaw
From the evidence on record, no clear, actual and
existing right to the subject frequencies or to the
extension of PA had been shown by Atlocom.
Accordingly, no grave abuse of discretion was
committed by the RTC in denying Atlocom's
application for a writ of preliminary injunction to
restrain the implementation of MC 06-08-2005
insofar as the use of the reallocated frequencies
claimed by Atlocom. The CA thus seriously erred
in reversing the RTC and holding that Atlocom
was entitled to injunctive relief due to alleged
violation of its right by the NTC.

A writ of preliminary injunction being an
extraordinary event, one deemed as a strong arm
of equity or a transcendent remedy, it must be
granted only in the face of actual and existing
substantial rights. In the absence of the same,
and where facts are shown to be wanting in
bringing the matter within the conditions for its
issuance, the ancillary writ must be struck down
for having been rendered in grave abuse of
discretion.31chanrobleslaw
Pursuant to Section 6,32 Rule 58 of the 1997 Rules
of Civil Procedure, a preliminary injunction 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 on condition that he will pay all
damages which the applicant may suffer by the
denial or the dissolution of the injunction or
restraining order. Two conditions must concur:
first, the court, in the exercise of its discretion,
finds that the continuance of the injunction would
cause great damage to the defendant, while the
plaintiff can be fully compensated for such
damages as he may suffer; second, the defendant
files a counterbond.33chanrobleslaw
In denying LBNI's offer to file counterbond, the
CA relied on the Affidavit34executed by Rene
Rosales, Atlocom's technical consultant, to refute
the earlier Affidavit35 submitted by LBNI, which
was executed by its Director for Network
Engineering, Edwin C. Mabitazan. Mabitazan
stated that the injunction issued by the CA will
result in reducing LBNI's usable bandwidth from
40 Mhz to only 15 Mhz, which is inadequate to
serve LBNI's thousands of subscribers.
Mabitazan's opinion should have been given more
weight in view of his intimate knowledge of LBNI's
operations and technical requirements. Moreover,
it should be stressed that LBNI's business
projections were based on its existing technical
capability which stands to be greatly diminished
once the frequency bands re-assigned to it will be
reduced as a result of the CA's injunction order.
The possibility of irreparable damage is indeed
present, not only in terms of financial losses -the
total investment by LBNI has already reached
billions of pesos - but on the reputation of LBNI as
a new player in the telecommunications industry
for reliability and dependability of its services. In
contrast, whatever damage Atlocom stands to
suffer should the injunction be dissolved, can be
fully compensated considering that it has not
constructed stations nor launched any network
service. No single document was submitted by
Atlocom to show it had actually complied with the
conditions of its PA and invested in the
establishment of MMDS network, which never
materialized.
In gross abuse of discretion, the CA brushed aside
evidence presented by LBNI in support of its offer
to file counter-bond, stating that these were
submitted only after the appellate court had
rendered its decision granting Atlocom's prayer
for preliminary injunction. The CA failed to
consider the fact that it was Atlocom which misled
the courts and the NTC in claiming that the
subject frequencies had been assigned to it. The
matter was raised by NTC and LBNI only in their
motions for reconsideration because it was only at
that time when their inquiry from FMD disclosed
that said office had not actually granted
a frequency assignment to Atlocom. Thus, NTC in
its Supplemental Motion for Reconsideration,
submitted a Certification36 dated August 2, 2012
issued by the FMD Chief, Pricilla F. Demition,
together with attached documents, setting forth
the same facts relative to Atlocom's non-
operational state. Atlocom countered that said
evidence was just an afterthought because the
absence of frequency assignment was not
mentioned by Engr. Demition when she testified
before the RTC on January 14, 2009 during the
hearing on the application for writ of preliminary
injunction. Atlocom, however, never disputed the
findings of the FMD.
The pertinent portions of the FMD Certification are
herein reproduced:chanRoblesvirtualLawlibrary
2. In a memo addressed to the Chief,
Broadcast Services Division dated January
10, 2006 (copy attached as Annex "B");
signed by then Deputy Commissioner Jorge
V. Sarmiento, an inquiry was made to the
Broadcast Services Division (BSD) regarding
the status of usage of the frequency
assignments granted to broadcast
companies for MMDS use and to provide
information thru the FMD of the latest
related information to include among others
permits/licenses issued to their favor; such
information was needed in view of the re-
allocation of the band in use for BWA (MC
No. 06-08-2005);
3. In a memo dated January 12, 2006 (copy
attached as Annex "C") in compliance to the
January 10, 2006 Memo, BSD's report
shows under the column Latest
Permits/License issued, that the latest
permit or license issued for ATLOCOM was
only its PA dated 10.08.03;
4. In a memo addressed to the Records
Verification Committee dated 06 September
2006 (copy attached as Annex "D") signed
by then Commissioner Ronald Olivar Solis,
citing a memo dated 21 September 2005
from then DOTC Secretary Leonardo R.
Mendoza and Office Order No. 71-08-2006,
the Records Verification Committee was
directed to verify the status of several radio
frequency bands therein listed, and to
submit its report to include, among others,
SUF payments, latest permits, and licenses
issued and photocopies of the same;
5. The Records Verification Committee
reported in a memo dated 08 September
2006 (copy attached as Annex "E"),
that with respect to Atlocom Wireless
System, Inc., no record on file was
found as to station location, frequency,
license/permit no., radio station
license or permit to purchase and
possess;
6. In a memo addressed to the Acting Chief
BSD dated 07 January 2008 by then FMD
Acting Chief Engr. Joselito C. Leynes (copy
attached as Annex "F") [w]ith reference to
the 03 January 2008 indorsement letter
from BSD (copy attached as Annex "G)
regarding the request of Atlocom Wireless
System, Inc. for an allocation of a Digital
Television (DTT) frequency (copy attached
as Annex "H"), the BSD was informed of the
following for
guidance:chanRoblesvirtualLawlibrary
"that the proposed frequency band from
Channel 14-20 and Channel 21-51 is not yet
been finally allocated/approved for the
purpose of DTT operation. Further, in the
event that said frequency band re-allocation
is approved, only broadcasting company
with existing TV station/s and/or authority
to operate is entitled for
application/issuance of a DTT frequency
channel."
7. A Memo addressed to the Chief, Frequency
Management Division dated 27 July 2012
(copy attached as Annex "I") Chief, BSD in
connection with the "certification" issued to
Atlocom Wireless System, Inc. clarifies the
following:chanRoblesvirtualLawlibrary
"that the frequencies stated in the
subject certification were simply
identified as candidate frequencies for
the MMDS service under NTC Case No.
98-158, subject to final frequency
 assignment by the Frequency Frequency Management
Management Division (FMD) of this Division:chanRoblesvirtualLawlibrary
Commission." and
"Henceforth, except for frequencies that
"Furthermore inasmuch as frequency have been pre-allocated and/or
assignments covering the band 2500-2700 decentralized, all requests applications
Mhz are issued by the Frequency requiring clearance and/or new radio
Management Division (FMD), the frequency assignment shall be cleared with
undersigned is of the view that the the Office of the Commissioner thru the
determination of the assignment of the Frequency Management Division."
subject frequencies to Atlocom Wireless, or
9. No records/documents were however
to any other entity, can best be certified by
found at the Frequency Management
the Frequency Management Division (FMD)"
Division showing frequency assignment
8. As per NTC Office Order No. 59-07-2003 clearance for the use of ATLOCOM's
dated July 30, 2003 (copy attached as MMDS system. (Emphasis supplied)
Annex "J), all requests, applications
In light of all the foregoing established facts, we
requiring clearance and/or new radio
hold that the CA gravely abused its discretion
frequency assignments, except for
when it issued a writ of preliminary injunction
frequencies that have been pre-allocated
against the implementation of MC 06-08-2005 in
and/or decentralized, shall be cleared with
the absence of a clear legal right on the part of
the Office of the Commissioner thru the
Atlocom, and subsequently denying LBNFs offer to
file counter-bond despite compliance with the
requisites provided in Section 6 of Rule 58.
However, with our ruling that the writ of
preliminary injunction was improperly issued,
hence, null and void, the matter of allowing LBNI
to post a counter-bond has been rendered moot.
A final note. In its Memorandum,37 Atlocom
argues that LBNI is part of mass media and its
franchise violates Article XVI, Section 11 (1) of
the Constitution38because it is not wholly-owned
39
by Filipino citizens. chanrobleslaw
Unless properly raised and the very lis mota of
the case, we do not pass upon constitutional
issues. The resolution of the constitutional issues
must be absolutely necessary for the
40
determination of the case.  In the spirit of
deference to the acts of other constitutional
departments and organs, issues before this Court
should address only the narrowest issues
necessary to determine whether the reliefs prayed
for can be granted. As in this case, reliefs can be
determined on procedural issues.
The main issue presented in this case is the
validity of Atlocom's application for a writ of
preliminary injunction against the NTC. This issue
can be resolved without passing upon the
constitutionality of LBNI's franchise. The
resolution of the issue on LBNI's eligibility thus
has no bearing on whether Atlocom has the right
to be granted a frequency allocation for
Broadband Wireless Access by the NTC. The
constitutional issue raised by the respondent may
be raised and resolved in proper cases when
necessary in the future.
WHEREFORE, the petitions are GRANTED. The
Decision dated June 29, 2012 and Resolution
dated February 18, 2013 of the Court of Appeals
in CA-G.R. SP No. 119868
are REVERSED and SET ASIDE.
Consequently, the writ of preliminary injunction
issued in said case, if any, is hereby
declared NULL and VOID.
The Orders dated December 9, 2010 and March
21, 2011 of the Regional Trial Court of Quezon
City, Branch 95 in Q-09-65566 are
hereby REINSTATED andUPHELD.
The Temporary Restraining Order issued by this
Court on April 30, 2013 is hereby
made PERMANENT.
No pronouncement as to costs.
SO ORDERED.cralawlawlibrary
GR. No. 197472
REPUBLIC OF THE PHILIPPINES, represented by
Commander Raymond Alpuerto of the Naval Base
Camillo Osias, Port San Vicente, Sta. Ana,
Cagayan, Petitioner,  developed for agricultural purposes in order to support
vs.
REV. CLAUDIO R. CORTEZ, SR., Respondent.
DECISION
DEL CASTILLO, J.:
An inalienable public land cannot be appropriated and
thus may not be the proper object of possession. Hence,
injunction cannot be issued in order to protect ones
alleged right of possession over the same.
This Petition for Review on Certiorari1 assails the June
29, 2011 Decision2 of the Court of Appeals (CA) in CA-
GR. CV No. 89968, which dismissed the appeal therewith
and affirmed the July 3, 2007 Decision3 of the Regional
Trial Court (RTC) of Aparri, Cagayan, Branch 8 in Spl.
Civil Action Case No. II-2403.
Factual Antecedents
Respondent Rev. Claudio R. Cortez, Sr. (Rev. Cortez), a
missionary by vocation engaged in humanitarian and
charitable activities, established an orphanage and
school in Punta Verde, Palaui Island, San Vicente, Sta.
Ana, Cagayan. He claimed that since 1962, he has been
in peaceful possession of about 50 hectares of land
located in the western portion of Palaui Island in Sitio
Siwangag, Sta. Ana, Cagayan which he, with the help of
Aetas and other people under his care, cleared and
his charitable, humanitarian and missionary works.4
On May 22, 1967, President Ferdinand E. Marcos issued
Proclamation No. 201 reserving for military purposes a
parcel of the public domain situated in Palaui Island.
Pursuant thereto, 2,000 hectares of the southern half
portion of the Palaui Island were withdrawn from sale or
settlement and reserved for the use of the Philippine
Navy, subject, however, to private rights if there be any.
More than two decades later or on August 16, 1994,
President Fidel V. Ramos issued Proclamation No. 447
declaring Palaui Island and the surrounding waters
situated in the Municipality of Sta. Ana, Cagayan as
marine reserve. Again subject to any private rights, the
entire Palaui Island consisting of an aggregate area of
7,415.48 hectares was accordingly reserved as a marine
protected area.
On June 13, 2000, Rev. Cortez filed a Petition for
Injunction with Prayer for the Issuance of a Writ of
Preliminary Mandatory Injunction5 against Rogelio C.
Biñas (Biñas) in his capacity as Commanding Officer of
the Philippine Naval Command in Port San Vicente, Sta.
Ana, Cagayan.1âwphi1 According to him, some
members of the Philippine Navy, upon orders of Biñas,
disturbed his peaceful and lawful possession of the said
50-hectare portion of Palaui Island when on March 15,
2000, they commanded him and his men, through the
use of force and intimidation, to vacate the area. When
he sought assistance from the Office of the Philippine
Naval Command, he was met with sarcastic remarks and
threatened with drastic military action if they do not
vacate. Thus, Rev. Cortez and his men were constrained
to leave the area. In view of these, Rev. Cortez filed the
said Petition with the RTC seeking preliminary mandatory
injunction ordering Biñas to restore to him possession
and to not disturb the same, and further, for the said
preliminary writ, if issued, to be made permanent.
Proceedings before the Regional Trial Court
After the conduct of hearing on the application for
preliminary mandatory injunction6 and the parties’
submission of their respective memoranda,7 the RTC
issued an Order8 dated February 21, 2002 granting the
application for a writ of preliminary mandatory injunction.
However, the same pertained to five hectares (subject
area) only, not to the whole 50 hectares claimed to have
been occupied by Rev. Cortez, viz.:
It should be noted that the claim of [Rev. Cortez] covers
an area of 50 hectares more or less located at the
western portion of Palaui Island which is within the Naval
reservation. [Rev. Cortez] presented what he called as a
survey map (Exh. "H") indicating the location of the area
claimed by the Church of the Living God and/or Rev.
Claudio Cortez with an approximate area of 50 hectares
identified as Exh. "H-4". However, the Survey Map
allegedly prepared by [a] DENR personnel is only a
sketch map[,] not a survey map as claimed by [Rev.
Cortez]. Likewise, the exact boundaries of the area [are]
not specifically indicated. The sketch only shows some
lines without indicating the exact boundaries of the 50
hectares claimed by [Rev. Cortez]. As such, the
identification of the area and its exact boundaries have
not been clearly defined and delineated in the sketch
map. Therefore, the area of 50 hectares that [Rev.
Cortez] claimed to have peacefully and lawfully
possessed for the last 38 years cannot reasonably be
determined or accurately identified.
For this reason, there is merit to the contention of [Biñas]
that [Rev. Cortez]’ claim to the 50 hectares of land
identified as Exh. ["]H-4" is unclear and ambiguous. It is a
settled jurisprudence that mandatory injunction is the
strong arm of equity that never ought to be extended
unless to cases of great injury, where courts of law
cannot afford an adequate and commensurate remedy in
damages. The right must be clear, the injury impending
or threatened, so as to be averted only by the protecting
preventive process of injunction. The reason for this
doctrine is that before the issue of ownership is
determined in the light of the evidence presented, justice
and equity demand that the [status quo be maintained]
so that no advantage may be given to one to the
prejudice of the other. And so it was ruled that unless
there is a clear pronouncement regarding ownership and
possession of the land, or unless the land is covered by
the torrens title pointing to one of the parties as the
undisputed owner, a writ of preliminary injunction should
not issue to take the property out of possession of one
party to place it in the hands of another x x x.
Admittedly, the documentary exhibits of [Rev. Cortez]
tended only to show that [he] has a pending application
of patent with the DENR. Even so, [Rev. Cortez] failed to
present in evidence the application for patent allegedly
filed by [him] showing that he applied for patent on the
entire 50 hectares of land which he possessed or
occupied for a long period of time. Under the
circumstances, therefore, the title of petitioner to the 50
hectares of land in Palaui Island remains unclear and
doubtful, and [is] seriously disputed by the government.
More significantly, at the time that Proc. No. 201 was
issued on May 22, 1967, [Rev. Cortez] has not perfected
his right over the 50 hectares of land nor acquired any
vested right thereto considering that he only occupied the
land as alleged by him in 1962 or barely five (5) years
before the issuance of the Presidential Proclamation.
Proclamation No. 201 had the effect of removing Palaui
Island from the alienable or disposable portion of the
public domain and therefore the island, as of the date of
[the] issuance [of the proclamation], has ceased to be
disposable public land.
However, the court is not unmindful that [Rev. Cortez]
has lawfully possessed and occupied at least five (5)
hectares of land situated at the western portion of the
Palaui Island identified as Exh "H-4". During the hearing,
Cmdr.
Rogelio Biñas admitted that when he was assigned as
Commanding Officer in December 1999, he went to
Palaui Island and [saw only] two (2) baluga families tilling
the land consisting of five (5) hectares. Therefore, it
cannot be seriously disputed that [Rev. Cortez] and his
baluga tribesmen cleared five (5) hectares of land for
planting and cultivation since 1962 on the western portion
identified as Exhibit "H-4". The Philippine Navy also
admitted that they have no objection to settlers of the
land prior to the Presidential Proclamation and [Rev.
Cortez] had been identified as one of the early settlers of
the area before the Presidential Proclamation. The DENR
also acknowledged that [Rev. Cortez] has filed an
application for patent on the western area and that he
must be allowed to pursue his claim.
Although the court is not persuaded by the argument of
[Rev. Cortez] that he has already acquired vested rights
over the area claimed by him, the court must recognize
that [Rev. Cortez] may have acquired some propriety
rights over the area considering the directive of the
DENR to allow [Rev. Cortez] to pursue his application for
patent. However, the court wants to make clear that the
application for patent by [Rev. Cortez] should be limited
to an area not to exceed five (5) hectares situated at the
western portion of x x x Palaui Island identified in the
sketch map as Exh. "H-4." This area appears to be the
portion where [Rev. Cortez] has clearly established his
right or title by reason of his long possession and
occupation of the land.9
In his Answer,10 Biñas countered that: (1) Rev. Cortez
has not proven that he has been in exclusive, open,
continuous and adverse possession of the disputed land
in the concept of an owner; (2) Rev. Cortez has not
shown the exact boundaries and identification of the
entire lot claimed by him; (3) Rev. Cortez has not
substantiated his claim of exemption from Proclamation
No. 201; (4) under Proclamation No. 447, the entire
Palaui Island, which includes the land allegedly
possessed and occupied by Rev. Cortez, was reserved
as a marine protected area; and, (4) injunction is not a
mode to wrest possession of a property from one person
by another.
Pre-trial and trial thereafter ensued.
On July 3, 2007, the RTC rendered its Decision11
making the injunction final and permanent. In so ruling,
the said court made reference to the Indigenous Peoples’
[Right] Act (IPRA) as follows:
The Indigenous [Peoples’ Right] Act should be given
effect in this case. The affected community belongs to
the group of indigenous people which are protected by
the State of their rights to continue in their possession of
the lands they have been tilling since time immemorial.
No subsequent passage of law or presidential decrees
can alienate them from the land they are tilling.12
Ultimately, the RTC held, thus:
WHEREFORE, finding the petition to be meritorious, the
same is hereby GRANTED.
xxxx
SO DECIDED.13
Representing Biñas, the Office of the Solicitor General
(OSG) filed a Notice of Appeal14 which was given due
course by the RTC in an Order15 dated August 6, 2007.
Ruling of the Court of Appeals
In its brief,16 the OSG pointed out that Rev. Cortez
admitted during trial that he filed the Petition for injunction
on behalf of the indigenous cultural communities in
Palaui Island and not in his capacity as pastor or
missionary of the Church of the Living God. He also
claimed that he has no interest over the land. Based on
these admissions, the OSG argued that the Petition
should have been dismissed outright on the grounds that
it did not include the name of the indigenous cultural
communities that Rev. Cortez is supposedly representing
and that the latter is not the real party-in-interest. In any
case, the OSG averred that Rev. Cortez failed to show
that he is entitled to the issuance of the writ of injunction.
Moreover, the OSG questioned the RTC’s reference to
the IPRA and argued that it is not applicable to the
present case since Rev. Cortez neither alleged in his
Petition that he is claiming rights under the said act nor
was there any showing that he is a member of the
Indigenous Cultural Communities and/or the Indigenous
Peoples as defined under the IPRA.
In its Decision17 dated June 29, 2011, the CA upheld the
RTC’s issuance of a final injunction based on the
following ratiocination:
The requisites necesary for the issuance of a writ of
preliminary injunction are: (1) the existence of a clear and
unmistakable right that must be protected; and (2) an
urgent and paramount necessity for the writ to prevent
serious damage. Here, [Rev. Cortez] has shown the
existence of a clear and unmistakable right that must be
protected and an urgent and paramount necessity for the
writ to prevent serious damage. Records reveal that
[Rev. Cortez] has been in peaceful possession and
occupation of the western portion of Palaui Island, Sitio
Siwangag, San Vicente, Sta. Ana[,] Cagayan since 1962
or prior to the issuance of Proclamation Nos. 201 and
447 in 1967 and 1994, respectively. There he built an
orphanage and a school for the benefit of the members of
the Dumagat Tribe, in furtherance of his missionary and
charitable works. There exists a clear and unmistakable
right in favor [of Rev. Cortez] since he has been in open,
continuous and notorious possession of a portion of
Palaui island. To deny the issuance of a writ of injunction
would cause grave and irreparable injury to [Rev. Cortez]
since he will be displaced from the said area which he
has occupied since 1962. It must be emphasized that
Proclamation Nos. 201 and 447 stated that the same are
subject to private rights, if there be [any]. Though Palaui
Island has been declared to be part of the naval
reservation and the whole [i]sland as a marine protected
area, both recognized the existence of private rights prior
to the issuance of the same.
From the foregoing, we rule that the trial court did not err
when it made permanent the writ of preliminary
mandatory injunction. Section 9, Rule 58 of the Rules of
Court provides that 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 or confirming the preliminary mandatory
injunction.18
Anent the issue of Rev. Cortez not being a real party-in-
interest, the CA noted that this was not raised before the
RTC and therefore cannot be considered by it. Finally,
with respect to the RTC’s mention of the IPRA, the CA
found the same to be a mere obiter dictum.
The dispositive portion of the CA Decision reads:
WHEREFORE, premise[s] considered, the instant Appeal
is hereby DENIED. The assailed 3 July 2007 Decision of
the Regional Trial Court of Aparri, Cagayan, Branch 8 in
Civil Case No. II-2403 is AFFIRMED.
SO ORDERED.19
Hence, this Petition brought by the OSG on behalf of the
Republic of the Philippines (the Republic).
The Issue
The ultimate issue to be resolved in this case is whether
Rev. Cortez is entitled to a final writ of mandatory
injunction.
The Parties’ Arguments
The bone of contention as the OSG sees it is the
injunctive writ since Rev. Cortez failed to prove his clear
and positive right over the 5-hectare portion of Palaui
Island covered by the same. This is considering that by
his own admission, Rev. Cortez started to occupy the
said area only in 1962. Hence, when the property was
declared as a military reserve in 1967, he had been in
possession of the 5-hectare area only for five years or
short of the 30-year possession requirement for a bona
fide claim of ownership under the law. The OSG thus
argues that the phrase "subject to private rights" as
contained in Proclamation No. 201 and Proclamation No.
447 cannot apply to him since it only pertains to those
who have already complied with the requirements for
perfection of title over the land prior to the issuance of the
said proclamations.
Rev. Cortez, for his part, asserts that the arguments of
the OSG pertaining to ownership are all immaterial as his
Petition for injunction does not involve the
right to possess based on ownership but on the
right of possession which is a right independent from
ownership. Rev. Cortez avers that since he has been in
peaceful and continuous possession of the subject
portion of Palaui Island, he has the right of possession
over the same which is protected by law. He asserts that
based on this right, the writ of injunction was correctly
issued by the RTC in his favor and aptly affirmed by the
CA. On the technical side, Rev. Cortez avers that the
Republic has no legal personality to assail the CA
Decision through the present Petition since it was not a
party in the appeal before the CA.
The Court’s Ruling
We grant the Petition.
For starters, the Court shall distinguish a preliminary
injunction from a final injunction.
"Injunction is a judicial writ, process or proceeding
whereby a party is directed either to do a particular act, in
which case it is called a mandatory injunction, [as in this
case,] or to refrain from doing a particular act, in which
case it is called a prohibitory injunction."20 "It may be the
main action or merely a provisional remedy for and as an
incident in the main action."21
"The main action for injunction is distinct from the
provisional or ancillary remedy of preliminary
injunction."22 A preliminary injunction does not determine
the merits of a case or decide controverted facts.23 Since
it is a mere preventive remedy, it only seeks to prevent
threatened wrong, further injury and irreparable harm or
injustice until the rights of the parties are settled.24 "It is
usually granted when it is made to appear that there is a
substantial controversy between the parties and one of
them is committing an act or threatening the immediate
commission of an act that will cause irreparable injury or
destroy the status quo of the controversy before a full
hearing can be had on the merits of the case."25 A
preliminary injunction is granted at any stage of an action
or proceeding prior to judgment or final order.26 For its
issuance, the applicant is required to show, at least
tentatively, that he has a right which is not vitiated by any
substantial challenge or contradiction.27 Simply stated,
the applicant needs only to show that he has the
ostensible right to the final relief prayed for in his
complaint.28 On the other hand, the main action for
injunction seeks a judgment that embodies a final
injunction.29 A final injunction is one which perpetually
restrains the party or person enjoined from the
commission or continuance of an act, or in case of
mandatory injunctive writ, one which confirms the
preliminary mandatory injuction.30 It is issued when the
court, after trial on the merits, is convinced that the
applicant is entitled to have the act or acts complained of
permanently enjoined.31 Otherwise stated, it is only after
the court has come up with a definite pronouncement
respecting an applicant’s right and of the act violative of
such right, based on its appreciation of the evidence
presented, that a final injunction is issued. To be a basis
for a final and permanant injunction, the right and the act
violative thereof must be established by the applicant
with absolute certainty.32
What was before the trial court at the time of the
issuance of its July 3, 2007 Decision is whether a final
injunction should issue. While the RTC seemed to realize
this as it in fact made the injunction permanent, the
Court, however, finds the same to be wanting in basis.
Indeed, the RTC endeavored to provide a narrow
distinction between a preliminary injunction and a final
injunction. Despite this, the RTC apparently confused
itself. For one, what it cited in its Decision were
jurisprudence relating to preliminary injunction and/or
mandatory injunction as an ancillary writ and not as a
final injunction. At that point, the duty of the RTC was to
determine, based on the evidence presented during trial,
if Rev. Cortez has conclusivelyestablished his claimed
right (as opposed to preliminary injunction where an
applicant only needs to at leasttentatively show that he
has a right) over the subject area. This is considering that
the existence of such right plays an important part in
determining whether the preliminary writ of mandatory
injunction should be confirmed.
Surprisingly, however, the said Decision is bereft of the
trial court’s factual findings on the matter as well as of its
analysis of the same vis-a-vis applicable jurisprudence.
As it is, the said Decision merely contains a restatement
of the parties’ respective allegations in the Complaint and
the Answer, followed by a narration of the ensuing
proceedings, an enumeration of the evidence submitted
by Rev. Cortez, a recitation of jurisprudence relating to
preliminary injunction and/or specifically, to mandatory
injunction as an ancillary writ, a short reference to the
IPRA which the Court finds to be irrelevant and finally, a
conclusion that a final and permanent injunction should
issue. No discussion whatsoever was made with respect
to whether Rev. Cortez was able to establish with
absolute certainty hisclaimed right over the subject area.
Section 14, Article VIII of the Constitution, as well as
Section 1 of Rule 36 and Section 1, Rule 120 of the
Rules on Civil Procedure, similarly state that a decision,
judgment or final order determining the merits of the case
shall state, clearly and distinctly, the facts and the law on
which it is based. Pertinently, the Court issued on
January 28, 1988 Administrative Circular No. 1, which
requires judges to make complete findings of facts in
their decision, and scrutinize closely the legal aspects of
the case in the light of the evidence presented, and avoid
the tendency to generalize and to form conclusion
without detailing the facts from which such conclusions
are deduced.33
Clearly, the Decision of the RTC in this case failed to
comply with the aforestated guidelines.
In cases such as this, the Court would normally remand
the case to the court a quo for compliance with the form
and substance of a Decision as required by the
Constitution. In order, however, to avoid further delay, the
Court deems it proper to resolve the case based on the
merits.34
"Two requisites must concur for injunction to issue: (1)
there must be a right to be protected and (2) the acts
against which the injunction is to be directed are violative
of said right."35 Thus, it is necessary that the Court initially
determine whether the right asserted by Rev. Cortez
indeed exists. As earlier stressed, it is necessary that
such right must have been established by him with
absolute certainty.
Rev. Cortez argues that he is entitled to the injunctive
writ based on the right of possession (jus possesionis) by
reason of his peaceful and continuous possession of the
subject area since 1962. He avers that as this right is
protected by law, he cannot be peremptorily
dispossessed therefrom, or if already dispossessed, is
entitled to be restored in possession. Hence, the
mandatory injunctive writ was correctly issued in his
favor.
Jus possessionis or possession in the concept of an
owner36 is one of the two concepts of possession
provided under Article 52537 of the Civil Code. Also
referred to as adverse possession,38 this kind of
possesion is one which can ripen into ownership by
prescription.39 As correctly asserted by Rev. Cortez, a
possessor in the concept of an owner has in his favor the
legal presumption that he possesses with a just title and
he cannot be obliged to show or prove it.40 In the same
manner, the law endows every possessor with the right to
be respected in his possession.41
It must be emphasized, however, that only things and
rights which are susceptible of being appropriated may
be the object of possession.42 The following cannot be
appropriated and hence, cannot be possessed: property
of the public dominion, common things (res
communes) such as sunlight and air, and things
specifically prohibited by law.43
Here, the Court notes that while Rev. Cortez relies
heavily on his asserted right of possession, he,
nevertheless, failed to show that the subject area over
which he has a claim is not part of the public domain and
therefore can be the proper object of possession.
Pursuant to the Regalian Doctrine, all lands of the public
domain belong to the State.44 Hence, "[a]ll lands not
appearing to be clearly under private ownership are
presumed to belong to the State. Also, public lands
remain part of the inalienable land of the public domain
unless the State is shown to have reclassified or
alienated them to private persons."45 To prove that a land
is alienable, the existence of a positive act of the
government, such as presidential proclamation or an
executive order; an administrative action; investigation
reports of Bureau of Lands investigators; and a legislative
act or a statute declaring the land as alienable and
disposable must be established.46
In this case, there is no such proof showing that the
subject portion of Palaui Island has been declared
alienable and disposable when Rev. Cortez started to
occupy the same. Hence, it must be considered as still
inalienable public domain. Being such, it cannot be
appropriated and therefore not a proper subject of
possession under Article 530 of the Civil Code. Viewed in
this light, Rev. Cortez’ claimed right of possession has no
leg to stand on. His possession of the subject area, even
if the same be in the concept of an owner or no matter
how long, cannot produce any legal effect in his favor
since the property cannot be lawfully possessed in the
first place.
The same goes true even if Proclamation No. 201 and
Proclamation No. 447 were made subject to private
rights. The Court stated in Republic v. Bacas,47 viz.:
Regarding the subject lots, there was a reservation
respecting ‘private rights.’ In Republic v. Estonilo, where
the Court earlier declared that Lot No. 4319 was part of
the Camp Evangelista Military Reservation and,
therefore, not registrable, it noted the proviso in
Presidential Proclamation No. 265 requiring the
reservation to be subject to private rights as meaning that
persons claiming rights over the reserved land were not
precluded from proving their claims. Stated differently,
the said proviso did not preclude the LRC from
determining whether x x x the respondents indeed had
registrable rights over the property.
As there has been no showing that the subject
parcels of land had been segregated from the military
reservation, the respondents had to prove that the
subject properties were alienable or disposable land
of the public domain prior to its withdrawal from sale
and settlement and reservation for military purposes
under Presidential Proclamation No. 265. The
question is primordial importance because it is
determinative if the land can in fact be subject to
acquisitive prescription and, thus, registrable under the
Torrens system. Without first determining the nature
and character of the land, all other requirements
such as length and nature of possession and
occupation over such land do not come into play.
The required length of possession does not operate
when the land is part of the public domain.
In this case, however, the respondents miserably failed to
prove that, before the proclamation, the subject lands
were already private lands. They merely relied on such
‘recognition’ of possible private rights. In their application,
they alleged that at the time of their application, they had
been in open, continuous, exclusive and notorious
possession of the subject parcels of land for at least thirty
(30) years and became its owners by prescription. There
was, however, no allegation or showing that the
government had earlier declared it open for sale or
settlement, or that it was already pronounced as
inalienable and disposable.48
In view of the foregoing, the Court finds that Rev. Cortez
failed to conclusively establish his claimed right over the
subject portion of Palaui Island as would entitle him to the
issuance of a final injunction.
Anent the technical issue raised by Rev. Cortez, i. e, that
the Republic has no personality to bring this Petition
since it was not a party before the CA, the Court deems it
prudent to set aside this procedural barrier. After all, "a
party's standing before [the] Court is a [mere] procedural
technicality which may, in the exercise of [its] discretion,
be set aside in view of the importance of the issue
raised."49

We note that Rev. Cortez alleged that he sought the

injunction so that he could continue his humanitarian
works. However, considering that inalienable public land
was involved, this Court is constrained to rule in
accordance with the aforementioned.

WHEREFORE, the Petition is GRANTED. The June 29,

2011 Decision of the Court of Appeals in CA-GR. CV No.
89968 denying the appeal and affirming the July 3, 2007
Decision of the Regional Trial Court of Aparri, Cagayan-
Branch 08 in Spl. Civil Action Case No. II-2403,
is REVERSED and SET ASIDE. Accordingly, the final
injunction issued in this case is ordered DISSOLVED and
the Petition for Injunction in Spl. Civil Action Case No. II-
2403,DISMISSED.

SO ORDERED.