THIRD DIVISION

October 11, 2017

G.R. No. 207938

EVY CONSTRUCTION AND DEVELOPMENT CORPORATION, Petitioner

vs.
VALIANT ROLL FORMING SALES CORPORATION, Respondent

DECISION

LEONEN, J.:

In every application for provisional injunctive relief, the applicant must establish the actual and
existing right sought to be protected. The applicant must also establish the urgency of a writ's
issuance to prevent grave and irreparable injury. Failure to do so will warrant the court's denial of
the application. Moreover, the application for the issuance of a writ of preliminary injunction may
be denied in the same summary hearing as the application for the issuance of the temporary
restraining order if the applicant fails to establish requisites for the entitlement of the writ.

This is a Petition for Review on Certiorari  assailing the October 22, 2012 Decision  and June 25,
1 2

2013 Resolution  of the Court of Appeals in CA-G.R. SP No. 112737. The assailed judgments
3

found that the Regional Trial Court did not gravely abuse its discretion when it denied Evy
Construction and Development Corporation's (Evy Construction) application for the issuance of a
temporary restraining order. This application sought to restrain the Register of Deeds from
compelling Evy Construction to surrender its owner's copy of Transfer Certificate of Title (TCT)
No. 168590 and from further annotating encumbrances relative to a civil case between its
predecessor-in-interest and a third party.

On September 4, 2007, Evy Construction purchased a parcel of land covered by TCT No.
134890 in Lipa, Batangas from Linda N. Ang (Ang) and Senen T. Uyan (Uyan).  They executed a
1âwphi1

Deed of Absolute Sale, which was notarized on September 11, 2007. At the time of the sale, no
lien or encumbrance was annotated on the title, except for a notice of adverse claim filed by
Ang.4

On September 18, 2007, the Register of Deeds annotated a Notice of Levy on Attachment on
TCT No. 134890.  This annotation was by virtue of the Writ of Preliminary Attachment issued by
5

Branch 46, Regional Trial Court, San Fernando, Parnpanga in Civil Case No. 13442
entitled Valiant Roll Forming Sales Corporation v. Angeli Lumber and Hardware, Inc., and Linda
Ngo Ang.  Two (2) other encumbrances were also annotated on the title.
6 7

Evy Construction registered the Deed of Absolute Sale with the Register of Deeds on November
20, 2007. TCT No. 168590 was issued in its name; however, it contained the annotation of the
prior Notice of Levy on Attachment, as well as a Notice of Attachment/Levy upon Realty dated
October 2, 2007 and a Notice of Levy on Preliminary Attachment dated November 8, 2007. 8

Subsequently, the Regional Trial Court rendered a Decision in Civil Case No. 13442 in favor of
Valiant Roll Forming Sales Corporation (Valiant). A Writ of Execution and a Notice of Levy were
issued against the property covered by TCT No. 134890. 9

Evy Construction filed a Notice of Third-Party Claim in Civil Case No. 13442, informing the court
that it had already filed with the sheriff an Affidavit of Title/Ownership on May 20, 2008, in
accordance with Rule 57 of the Rules of Court.  Valiant posted an Indemnity Bond of
10

₱745,700.00 to answer for any damages that Evy Construction may suffer should execution of
the Regional Trial Court Decision proceed. 11

By virtue of the July 18, 2008 Writ of Execution issued in Civil Case No. 13442, the Sheriff issued
a Notice of Sale on Execution of Real Property of Ang's properties, including the property
covered by TCT No. 134890.  A Certificate of Sale was eventually issued to Valiant as the
12

winning bidder of the property covered by TCT No. 134890. 13

On October 29, 2009, Evy Construction filed with the Regional Trial Court of Lipa City, Batangas
its Complaint for Quieting of Title/Removal of Cloud, Annulment of Execution Sale and Certificate
of Sale, and Damages, with application for temporary restraining order and/or preliminary
injunction.
14

It prayed for the issuance of a temporary restraining order and/or writ of preliminary injunction to
enjoin the Register of Deeds from compelling it to surrender its copy of TCT No. 168590 and
from annotating any further transactions relating to Civil Case No. 13442. 15

In the hearing for its application for the issuance of a temporary restraining order, Evy
Construction claimed that it would suffer great and irreparable injury if the Register of Deeds
were restrained from compelling it to surrender the owner's duplicate copy ofTCT No. 168590. It
claimed that potential investors interested in developing the property "[would] back out of their
investment plans if there [was a] cloud of doubt hovering over the title on the property." 16

On November 9, 2009, the Regional Trial Court issued an Order denying the application for the
issuance of a temporary restraining order for having no legal basis. Evy Construction's Motion for
Reconsideration was likewise denied in an Order dated December 11, 2009.  Hence, it filed a
17

Petition for Certiorari  with the Court of Appeals.

18

On October 22, 2012, the Court of Appeals rendered its Decision.  It held that Evy Construction
19

failed to sufficiently establish its right to the issuance of a temporary restraining order.

According to the Court of Appeals, Evy Construction failed to sufficiently establish that it would
suffer grave and irreparable injury if additional recording and annotation of further transactions,
orders, or processes relating to the sale of the property to Valiant were made on the title. It
observed that the grounds raised already touched on the merits of its Complaint, resolution of
which would amount to prejudgment of the case. 20

The Court of Appeals likewise pointed out that Evy Construction could still sue for damages if the
trial court eventually finds that the sale of the property to Valiant was invalid. It also reminded Evy
Construction that it had the remedy of proceeding against the indemnity bond posted by Valiant
for any damages it might suffer as a result of the sale. 21

Evy Construction filed a Motion for Reconsideration, which was denied by the Court of Appeals in
its Resolution  dated June 25, 2013. Hence, this Petition  was filed.
22 23
Petitioner argues that it was denied due process when its application for preliminary injunction
was denied in the same summary proceeding as the denial of its application for a temporary
restraining order.  Petitioner likewise submits that it was entitled to the injunctive writ applied for
24

since "real estate development is an industry built on trust and public perception.''  It explains
25

that the doubt cast by the auction sale and its annotation to the title caused investors to withdraw
their investments from petitioner's housing development project, despite the expenses it already
incurred. 26

Petitioner avers that the issuance of an injunctive writ is necessary to prevent further damage
since its "business reputation and goodwill as a real estate developer, once tarnished and
sullied, cannot be restored."  It insists that respondent's indemnity bond in the amount of
27

₱745,700.00 was not only inadequate compared to petitioner's investment in the property; it was
immaterial since it would be insufficient to restore buyer and investor confidence in the project or
in petitioner's competence and reputation as a property developer. 28

On the other hand, respondent counters that the application for preliminary injunction was never
actually set for hearing or resolved by the trial court; thus, it was misleading for petitioner to
argue that it was denied due process by the trial court.  It maintains that the Court of Appeals did
29

not err in finding that petitioner failed to establish the requisites for the issuance of a temporary
restraining order and that petitioner still had adequate remedies in the indemnity
bond.  Respondent likewise reiterates the Court of Appeals' finding that petitioner already
30

touches on the merits of its Complaint before the trial court, which effectively prejudges the
case.31

This Court is asked to resolve the following issues:

First, whether or not petitioner Evy Construction and Development Corporation was denied due
process when its application for a writ of preliminary injunction was denied in the same
proceeding as its application for a temporary restraining order; and

Second, whether or not the trial court committed grave abuse of discretion in denying petitioner
Evy Construction and Development Corporation's application for injunctive relief.

Injunction is defined as "a judicial writ, process or proceeding whereby a party is ordered to do or
refrain from doing a certain act."  It may be filed as a main action before the trial court  or as a
32 33

provisional remedy in the main action.  Bacolod City Water District v. Hon. Labayen  expounded:
34 35

The main action for injunction is distinct from the provisional or ancillary remedy of preliminary
injunction which cannot exist except only as part or an incident of an independent action or
proceeding. As a matter of course, in an action for injunction, the auxiliary remedy of preliminary
injunction, whether prohibitory or mandatory, may issue. Under the law, the main action for
injunction seeks a judgment embodying a final injunction which is distinct from, and should not be
confused with, the provisional remedy of preliminary injunction, the sole object of which is to
preserve the status quo until the merits can be heard. A preliminary injunction is granted at any
stage of an action or proceeding prior to the judgment or final order. It persists until it is dissolved
or until the termination of the action without the court issuing a final injunction.
36

Petitioner claims that it was denied due process when "no valid hearing for the application for
preliminary injunction was ever set" by the trial court and it "was NOT even allowed to present its
summary arguments and its witness in support of its application for a [temporary restraining
order]." 37

A temporary restraining order may be issued ex parte "to preserve the status quo until the
hearing of the application for preliminary injunction [,] which cannot be issued ex
parte."  Otherwise stated, a trial court may issue a temporary restraining order even without a
38

prior hearing for a limited period of 72 hours "if the matter is of extreme urgency and the
applicant will suffer grave injustice and in-eparable injury."  In this instance, a summary hearing,
39

separate from the application of the preliminary injunction, is required only to determine if a 72-
hour temporary restraining order should be extended. 40

A trial court may also issue ex parte a temporary restraining order for 20 days H[i]f it shall appear
from facts shown by affidavits or by the verified application that great or irreparable injury would
result to the applicant before the matter can be heard on notice."  The trial court has 20 days
41

from its issuance to resolve the application for preliminary injunction. If no action is taken on the
application for preliminary injunction during this period, the temporary restraining order is
deemed to have expired.  Notably, the Rules do not require that a hearing on the application for
42

preliminary injunction be conducted during this period.

While Rule 58, Section 4(d)  requires that the trial court conduct a summary hearing in every
43

application for temporary restraining order regardless of a grant or denial, Rule 58, Section 5
requires a hearing only if an application for preliminary injunction is granted. Thus, Section 5
states that "[n]o preliminary injunction shall be granted without hearing and prior notice to the
party or person sought to be enjoined." Inversely stated, an application for preliminary injunction
may be denied even without the conduct of a hearing separate from that of the summary hearing
of an application for the issuance of a temporary restraining order.

In this case, the November 9, 2009 hearing was denominated as a "hearing on the application for
temporary restraining order and preliminary injunction."  Petitioner's counsel was allowed to
44

present its arguments  and its witness  but conceded that the issues before the trial court were
45 46

legal in nature.  Thus, the trial court resolved that there was no need to present the witness,
47

which petitioner's counsel accepted without objection:

COURT

[T]he only issue now is purely legal, so there is no need to present your witness.

ATTY. LIMBO

Yes[,] Your Honor.

COURT

We are submitting the Motion for Issuance of Temporary Restraining Order for resolution.

ATTY. LIMBO

Yes, Your Honor.

COURT

Alright, submitted. 48

Petitioner cannot insist on a separate hearing for the application for preliminary injunction,
considering that it accepted that its application would be submitted for decision without the
presentation of its witness. The trial court did not find any need to conduct a further hearing on
the application for preliminary injunction since petitioner was unable to substantiate its
entitlement to a temporary restraining order. In any case, even if a separate hearing was granted,
petitioner would have presented the same arguments and evidence in the November 9, 2009
hearing. Thus, there can be no denial of due process if the party alleging it has already been
granted an opportunity to be heard.

II.A

Under Rule 58 of the Rules of Court, a preliminary injunction "is an order granted at any stage of
an action or proceeding prior to the judgment or final order, requiring a party or a court, agency
or a person to refrain from a particular act or acts" or an order "requir[ing] the performance of a
particular act or acts."  It is an ancillary relief granted by the court where the main action or
49

proceeding is pending. 50

In order to be granted the writ, it must be established:

(a) That the applicant is entitled to the relief demanded, and the whole or part of such relief
consists in restraining the commission or continuance of the act or acts complained of, or in
requiring perforn1ance of an act or acts, either for a limited period or perpetually;

(b) That the commission, continuance or non-performance of the act or acts complained of during
the litigation would probably work injustice to the applicant; or

(c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is
procuring or suffering to be done, some act or acts probably in violation of the rights of the
applicant respecting the subject of the action or proceeding, and tending to render the judgment
ineffectual. 51

The issuance of a writ of preliminary injunction is considered an "extraordinary event," being a

''strong arm of equity or a transcendent remedy."  Thus, the power to issue the writ "should be
52

exercised sparingly, with utmost care, and with great caution and deliberation." 53

An injunctive writ is granted only to applicants with "actual and existing substantial rights"  or
54

rights in esse. Further, the applicant must show "that the invasion of the right is material and
substantial and that there is an urgent and paramount necessity for the writ to prevent serious
damage."  Thus, the writ will not issue to applicants whose rights are merely contingent or to
55

compel or restrain acts that do not give rise to a cause of action. 56

In this case, petitioner alleges that as the registered owner of the property covered by TCT No.
168590, "[i]t has the undeniable right to the full use and possession [of it]."
57

At the time of the sale between petitioner Evy Construction, Uyan, and Ang, TCT No. 134890 in
Uyan's and Ang's names did not contain any liens or encumbrances, except for a notice of
adverse claim by Ang dated January 21, 1999. However, petitioner admitted that while the Deed
of Absolute Sale was executed on September 4, 2007, the property was only registered
in its name on November 20, 2007.  The encumbrances in respondent's favor were annotated on
58

September 18, 2007, October 2, 2007, and November 8, 2007,  or when the property was still
59

registered under Uyan's and Ang's names.

Under the Torrens system of registration, a person who deals with the registered owner of the
property is not bound to look beyond the title for any liens or encumbrances that have not been
annotated.  TCT No. 134890 did not contain a notice of lis pendens that could have warned
60

petitioner that the property was under litigation.

The sale between petitioner Evy Construction? Uyan, and Ang was not annotated on TCT No.
134890 at the time of its sale.  A sale of property that is not registered under the Torrens system
1âwphi1

is binding only between the buyer and the seller and does not affect innocent third persons.  The 61

Regional Trial Court could not have been faulted for ordering the annotation of the notice of levy
on attachment on TCT No. 134890 considering that when the September 18, 2007 Order was
issued1 the property was still in Uyan's and Ang's names.

Thus, in determining whether or not petitioner is entitled to injunctive relief, the courts would have
to pass upon the inevitable issue of which between petitioner and respondent has the better right
over the property, the very issue to be resolved in the main case.

The facts of this case mirror that of Spouses Chua v. Hon. Gutierrez,  where this Court was
62

confronted with the issue of whether or not a registered lien of attachment is superior to that of
an unregistered deed of sale. In Spouses Chua, the property was already registered in the
Spouses Chua's names when the property was levied. Thus, they argued that, not being the
judgment debtors, the property should not have been subjected to an execution sale.

This Court found the argument unmeritorious and held:

[A] levy on attachment, duly registered, has preference over a prior unregistered sale and, even if
the prior unregistered sale is subsequently registered before the sale on execution but after the
levy is made, the validity of the execution sale should be upheld because it retroacts to the date
of levy.
63

The prior levy on attachment carries over to the new certificate of title, effectively placing the
buyers in the position of their vendor under litigation.

However, Spouses Chua stated an exception in that "[k]nowledge of an unregistered sale is

equivalent to registration."  If a party presents evidentiary proof that the judgment creditor had
64

knowledge of a valid sale between the judgment debtor and an innocent third party, that
knowledge would have the effect of registration on the judgment creditor.

As in Spouses Chua, respondent's attachment liens dated September 18, 2007, October 2,

2007, and November 8, 2007, if valid, may have been superior to whatever right petitioner may
have acquired by virtue of the Deed of Absolute Sale, which was only registered on November
20, 2009. However, the validity of the liens and the validity of the Deed of Absolute Sale are
factual matters that have yet to be resolved by the trial court. The trial court must also determine
whether or not respondent had prior knowledge of the sale.

Thus, no injunctive writ could be issued pending a final determination of petitioner's actual and
existing right over the property.  The grant of an injunctive writ could operate as a prejudgment of
1âwphi1

the main case.

II.B

Even assuming that there is already a final determination of petitioner's right over the property,
petitioner still failed to prove the urgent and paramount necessity to enjoin the Register of Deeds
from making further annotations on TCT No. 168590.

Petitioner prays for the issuance of an injunctive writ to prevent grave and irreparable damage to
its reputation as a real estate developer.  Indeed, injunctive relief could be granted to prevent
65

grave and irreparable damage to a business entity's goodwill and business reputation. 66

Injury is considered irreparable if "there is no standard by which [its] amount can be measured
with reasonable accuracy."  The injury must be such that its pecuniary value cannot be
67

estimated, and thus, cannot fairly compensate for the loss.  For this reason, the loss of goodwill
68

and business reputation, being unquantifiable, would be considered as grave and irreparable
damage.
In Yu v. Court of Appeals,  this Court granted an exclusive distributor's prayer for an injunctive
69

writ to prevent a competitor from selling the same product on the ground that the continued sale
would "[render] illusory . . . the very purpose for which the exclusive distributorship was
conceptualized, at the expense of the sole authorized distributor." 70

In Semirara Coal Corporation v. HGL Development Corporation,  this Court upheld the issuance
71

of a writ of mandatory injunction to prevent Semirara Coal Corporation's (Semirara) continued

intrusion on HGL Development Corporation's (HGL) property. It also found that Semirara
damaged HGL's business standing when it prevented HGL from operating its cattle-grazing
business on its property, which ''[was] perceived as an inability by HGL to comply with the
demands of its customers and sow[ed] doubts in HGL's capacity to continue doing business." 72

In Philippine National Bank v. RJ Ventures Realty & Development Corporation,   this Court 73

affirmed the issuance of a writ of preliminary injunction to enjoin the extrajudicial foreclosure of
Rajah Broadcasting Network's radio equipment pending the resolution of the main case
questioning the mortgage. This Court found that the foreclosure would stop the operations of
Rajah Broadcasting Network's radio stations. The loss of its listenership and the damage to its
image and reputation would not be quantifiable, and thus, would be irreparable.

However, in applications for provisional injunctive writs the applicant must also prove
the urgency of the application.  The possibility of a grave and irreparable injury must be
1âwphi1

established, at least tentatively, to justify the restraint of the act complained of.  It is "[a]s the
74

term itself suggests ... temporary, subject to the final disposition of the principal action."  Its sole
75

objective is "to preserve the status quo until the merits can be heard." 76

Petitioner alleges that the execution sale and the prior annotations on its title caused "crucial
investors and buyers"  to withdraw, "notwithstanding the considerable costs and expenses [it]
77

already incurred." This is the grave and irreparable damage it sought to be protected from.
78

However, the feared "damage" was caused by the execution sale and the annotations already
made on the title. It even admits that the annotations were "impairing the progress of [its] housing
development."  In other words, petitioner failed to establish the urgent and paramount necessity
79

of preventing further annotations on the title.

Thus, what petitioner actually seeks is the removal of the annotations on its title, which is
precisely what it asked for in its Complaint for Quieting of Title/Removal of Cloud, Annulment of
Execution Sale and Certificate of Sale, and Damages before the trial court. Injunctive relief would
have no practical effect considering that the purported damage it seeks to be protected from has
already been done. Therefore, its proper remedy is not the issuance of an injunctive writ but to
thresh out the merits of its Complaint before the trial court.

In Cortez-Estrada v. Heirs of Samut,  this Court held:

80

[T]he grant or denial of a writ of preliminary injunction in a pending case rests in the sound
discretion of the court taking cognizance of the case since the assessment and evaluation of
evidence towards that end involve findings of facts left to the said court for its conclusive
determination. 81

The court's discretion is not interfered with unless there is a showing that the grant or denial was
tainted with grave abuse of discretion. 82

The trial court, in the exercise of its discretion, denied petitioner's application for the issuance of
a temporary restraining order and writ of preliminary injunction on the ground that petitioner
would still have sufficient relief in its prayer for damages in its Complaint.  In the event that the
83

annotations on petitioner's title are found by the trial court to be invalid, petitioner would have
adequate relief in the removal of the annotations and in the award of damages. Therefore, the
trial court acted within the bounds of its discretion.
WHEREFORE, the Petition is DENIED,

SO ORDERED.

MARVIC M.V.F. LEONEN

Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

LUCAS P. BERSAMIN SAMUEL R. MARTIRES

Associate Justice Associate Justice

ALEXANDER G. GESMUNDO
Associate Justice

THIRD DIVISION

October 4, 2017

G.R. No. 214073

BICOL MEDICAL CENTER, represented by Dr. Efren SJ. Nerva, and the DEPARTMENT OF
HEALTH, represented by HEALTH SECRETARY ENRIQUE T. ONA, Petitioners
vs.
NOE B. BOTOR, CELJUN F. YAP, ISMAEL A. ALBAO, AUGUSTO S. QUILON, EDGAR F.
ESPLANA II, and JOSEFINA F. ESPLANA, Respondents

DECISION

LEONEN, J.:

Prima facie evidence is evidence that is not rebutted or contradicted, making it good and
sufficient on its face to establish a fact constituting a party's claim or defense.
1

This resolves the Petition for Review  filed by Bicol Medical Center and the Department of Health,
2

assailing the February 28, 2014 Decision  and August 26, 2014 Resolution  of the Court of
3 4

Appeals in CA-G.R. SP No. 129806.

Camarines Sur Provincial Hospital (Provincial Hospital) was established in 1933 as a 25-bed
provincial hospital located along Mabini Street, now Peñafrancia Avenue, Naga City. The
Camarines Sur Provincial Government eventually subsidized the operations of a private hospital
located at Concepcion Pequefia, Naga City and transferred the Provincial Hospital there. 5

Road Lot No. 3, which stretched from Panganiban Road to J. Miranda Avenue, is a service road
which leads to the Provincial Hospital. 6

The Provincial Hospital was eventually converted to the Bicol

Regional Training and Teaching Hospital (Training and Teaching Hospital). 7

Sometime in 1982, the Camarines Sur Provincial Government donated about five (5) hectares of
land to the Ministry of Health, now the Department of Health,  as evidenced by Transfer
8

Certificate of Title (TCT) No. 13693.  The Training and Teaching Hospital and Road Lot No. 3
9

were included in this donation. 10

The Training and Teaching Hospital became the Bicol Medical Center (BMC) in
1995.  Sometime in 2009, BMC constructed a steel gate along J. Miranda Avenue to control the
11

flow of vehicle and pedestrian traffic entering the hospital premises. 12

On March 21, 2012, Dr. Efren SJ. Nerva (Dr. Nerva), BMC Chief I, issued Hospital Memorandum
No. 0310,  which ordered the rerouting of traffic inside the BMC Compound. Salient portions of
13

this Memorandum read:

To: All Officials and Employees This Center

Subject: Traffic Re-routing inside the BMC Compound In line with the Traffic Re-routing of the
Center, the exit gate at the MCC Quarters shall be closed and the OPD Exit Gate shall be used
for the exit of pedestrians and motor vehicles effective April l, 2012.

For information and dissemination purposes. 14

This rerouting scheme closed the steel gate for vehicles and pedestrians along J. Miranda
Avenue, relocating it from the eastern side of the hospital to the western side effective April 1,
2012.  The relocation of this gate was implemented for security reasons and to make way for
15

"[m]assive development within the Complex." 16

The gate closure drew a lot of criticism from the community, and on May 19, 2012, Atty. Noe
Botor (Atty. Botor) wrote to Naga City Mayor John Bongat (Mayor Bongat), asking for the
reopening or dismantling of the gate for being a public nuisance. 17

The Sangguniang Panlungsod of Naga City passed a resolution authorizing Mayor Bongat to
dismantle the gate.  However, instead of dismantling it, Mayor Bongat filed a Verified Petition
18

with Prayer for a Writ of Preliminary Injunction against BMC. The case was docketed as Civil
Case No. 2012-0073 and raffled to Branch 24, Regional Trial Court, Naga City. 19

Atty. Botor, Celjun F. Yap, Ismael A. Albao, Augusto S. Quilon, Edgar F. Esplana II, and Josefina
F. Esplana (Intervenors) were allowed to intervene and submit their complaint-in-intervention. 20

A few months later, ground-breaking ceremonies for the construction of the Cancer Center
Building  were conducted, with construction intended to begin in January 2013. When fully
21

completed, the Cancer Center Building would take over "about three-fourths (3/4) of the width of
Road Lot No. 3." 22
On December 21, 2012, the Regional Trial Court denied Naga City's application for injunctive
relief, ruling that Naga City failed to prove a clear and unmistakable right to the writ prayed for. 23

On February 22, 2013, the Regional Trial Court denied the motion for reconsideration filed by the
Intervenors.24

Only the Intervenors filed a petition for certiorari before the Court of Appeals. 25

On February 28, 2014, the Court of Appeals granted the petition and emphasized that only
a prima facie showing of an applicant's right to the writ is required in an application for writ of
injunctive relief.
26

The Court of Appeals opined that the Intervenors were able to prove the public character of Road
Lot No. 3, considering that "the general public had been using [it] since time immemorial," with
even Dr. Nerva admitting that he passed through it when he was young. The Court of Appeals
also gave due weight to the 1970s Revised Assessor's Tax Mapping Control Roll and its
Identification Map, which support the Intervenors' assertion of the public nature of Road Lot No.
3.27

The Court of Appeals concluded that Naga City and the Intervenors were able to present prima
facie evidence of their right to the writ. However, the Court of Appeals pointed out that whether or
not the Revised Assessor's Tax Mapping Control Roll should prevail over BMC's title over the
property is a factual matter that should be threshed out in the trial court.  The dispositive portion
28

of the Court of Appeals Decision read:

WHEREFORE, premises considered, the instant petition is hereby GRANTED. The court a
quo is hereby DIRECTED to issue a writ of mandatory preliminary injunction in the case a quo.

SO ORDERED.  (Emphasis in the original)

29

On August 26, 2014, the Court of Appeals  denied the motions for reconsideration filed by BMC
30

and the Department of Health. However, the Court of Appeals emphasized that the injunction
was not directed against the construction of the Cancer Center Building but against the relocation
of the service road and gate closure. 31

On September 29, 2014, petitioners BMC and the Department of Health filed this Petition for
Review on Certiorari  before this Court. Petitioners claim that although Road Lot No. 3 has been
32

open to vehicles and pedestrians as BMC's service road, it was never intended for use by the
general public and was not owned by Naga City, as evidenced by the certification issued by the
Office of the City Engineer of Naga City. 33

Petitioners assert that they have set up a gate on Road Lot No. 3, which is closed' at night, on
weekends, and during holidays for security reasons and.for the welfare of patients and hospital
staff. 34

Petitioners maintain that Dr. Nerva's closure of the road and relocation of the gate was in
preparation for the construction of the Cancer Center Building.  Thus, the preliminary mandatory
35

injunction issued by the Court of Appeals had the effect of halting construction of a government
project, a violation of Presidential Decree No. 1818  and this Court's Administrative Circular No.
36

11-2000, which reiterated the prohibition on the issuance of injunctions in cases involving
government infrastructure projects. 37

Petitioners claim that the ₱5l,999,475.26 contract for the Cancer Center Building has been
awarded to OCM Steel Corporation, the winning contractor, and the Notice to Proceed dated
February 3, 2014 has been issued, signalling the mobilization stage of the construction of the
Cancer Center Building. 38

Petitioners emphasize that the Court of Appeals erred in holding that the injunction over the
relocation of the service road and closure of the gate did not violate Presidential Decree No.
1818 because the Cancer Center Building, a government project, will be constructed right where
the gate stands. 39

Petitioners point out that the Cancer Center Building will be constructed along Road Lot No. 3;
hence, there is a need to close this road due to the excavation and construction, which will make
it dangerous for pedestrians and vehicles alike to pass through. 40

Petitioners likewise underscore that the intervenors, now respondents, failed to support their
claim that Road Lot No. 3 was a public road  or that they had a clear right to the injunctive relief
41

prayed for.  Furthermore, respondents also allegedly "failed to prove that the invasion of the [ir]
42

right sought to be protected [was] material and substantial" and that there was an urgent
necessity for the issuance of the writ to prevent serious damage. 43

Finally, petitioners applied for a temporary restraining order and/or writ of preliminary injunction
to prevent the reopening of the gate since doing so would affect the construction of the Cancer
Center Building. 44

On October 8, 2014, this Court issued two (2) Resolutions. The first Resolution  granted 45

petitioners' motion for extension to file their petition. The second Resolution  issued a temporary
46

restraining order enjoining the implementation of the Court of Appeals February 28, 2014
Decision and August 26, 2014 Resolution, which directed the Regional Trial Court to issue a writ
of mandatory preliminary injunction on the closure of Road Lot No. 3. The second Resolution
also required respondents to comment on the petition. 47

On January 13, 2015, respondents filed their Comment on the Petition,  where they disputed
48

petitioners' claim that Road Lot No. 3 was always a component or service road of BMC.
Respondents contend that Road Lot No. 3 existed as a public road long before any hospital was
constructed on it and assert that it remains to be a public road to this day. 49

Respondents also dispute petitioners' claim that the road closure was for the construction of the
Cancer Center Building since Dr. Nerva's memorandum was for no other purpose than to reroute
traffic within the hospital complex. 50

Respondents likewise point out that when they filed their intervention before the Regional Trial
Court and their petition before the Court of Appeals, there were still no plans to construct the
Cancer Center Building. Furthermore, BMC allegedly failed to support its claim that there were
indeed plans to build the Cancer Center Building.  Nonetheless, respondents explain that they
51

are not against its construction but are merely asking that it not be illegally built on a public road. 52

Finally, respondents ask that this Court lift its issued temporary restraining order against the
assailed Court of Appeals Decision and Resolution. 53

In its Resolution  dated February 25, 2015, this Court noted respondents' comment and denied
54

their prayer to lift the temporary restraining order. It likewise directed petitioners to file their reply
to the comment.

In their Reply,  petitioners reiterate their stand that Road Lot No. 3 is a private
55

property.  Petitioners also rebut respondents' assertion that they only belatedly brought up the
56

construction of the Cancer Center Building because this project was nonexistent.  Petitioners 57

attached photos  to prove that the construction of the Cancer Center Building was in progress.
58 59
The single issue to be resolved by this Court is whether or not the Court of Appeals erred in
directing the Regional Trial Court to issue a writ of preliminary injunction on the closure of Road
Lot No. 3.

The Petition is meritorious.

Department of Public Works and Highways v. City Advertising Ventures Corp.  defined a writ of
60

preliminary injunction as follows:

[A] writ of preliminary injunction is an ancillary and interlocutory order issued as a result of an
impartial determination of the context of both parties. It entails a procedure for the judge to
assess whether the reliefs prayed for by the complainant will be rendered moot simply as a result
of the parties' having to go through the full requirements of a case being fully heard on its merits.
Although a trial court judge is given a latitude of discretion, he or she cannot grant a writ of
injunction if there is no clear legal right materially and substantially breached from a prima
facie evaluation of the evidence of the complainant. Even if this is present, the trial court must
satisfy itself that the injury to be suffered is irreparable.
61

A writ of preliminary injunction is issued to:

[P]reserve 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 injustice. 62

Rule 58, Section 3 of the Rules of Court provides the instances when a writ of preliminary
injunction may be issued:

Section 3. Grounds for issuance of preliminary injunction. - A preliminary injunction may be

granted when it is established:

(a) That the applicant is entitled to the relief demanded, and the whole or part of
such relief consists in restraining the commission or continuance of the act or
acts complained of: or in requiring the perfonnance of an act or acts, either for a
limited period or perpetually;

(b) That the commission, continuance or non-performance of the act or acts

complained of during the litigation would probably work injustice to the applicant;
or

(c) That a party, court, agency or a person is doing, threatening, or is attempting

to do, or is procuring or suffering to be done, some act or acts probably in
violation of the rights of the applicant respecting the subject of the action or
proceeding, and tending to render the judgment ineffectual.

Jurisprudence has likewise established that the following requisites must be proven first before a
writ of preliminary injunction, whether mandatory or prohibitory, may be issued:

(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. 63

In satisfying these requisites, the applicant for the writ need not substantiate his or her claim with
complete and conclusive evidence since only prima facie evidence  or a sampling is required "to
64

give the court an idea of the justification for the preliminary injunction pending the decision of the
case on the merits." 65

Tan v. Hosana  defines prima facie evidence as evidence that is "good and sufficient on its face.
66

Such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group
or chain of facts constituting the· party's claim or defense and which if not rebutted or
contradicted, will remain sufficient."67

Spouses Nisce v. Equitable PCI Bank  then discussed the requisites and the proof required for
68

the issuance of a writ of preliminary injunction:

The plaintiff praying for a writ of preliminary injunction must further establish that he or she has a
present and unmistakable right to be protected; that the facts against which injunction is directed
violate such right; and there is a special and paramount necessity for the writ to prevent serious
damages. In the absence of proof of a legal right and the injury sustained by the plaintiff, an
order for the issuance of a writ of preliminary injunction will be nullified. Thus, where the plaintiff's
right is doubtful or disputed, a preliminary injunction is not proper. The possibility of irreparable
damage without proof of an actual existing right is not a ground for a preliminary injunction.

However, to establish the essential requisites for a preliminary injunction, the evidence to be
submitted by the plaintiff need not be conclusive and complete. The plaintiffs arc only required to
show that they have an ostensible right to the final relief prayed for in their complaint. A writ of
preliminary i11iunction 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. 69

(Emphasis supplied, citations omitted)

To prove its clear legal right over the remedy being sought, Naga City presented before the trial
court the 1970s Revised Assessor's Tax Mapping Control Roll and its Identification Map which
both identified Road Lot No. 3 as being in the name of the Province of Camarines
Sur.  Witnesses' testimonies were also presented to corroborate Naga City's claims of the public
70

nature of Road Lot No. 3. 71

Respondents claimed that as members of the general public, they had every right to use Road
Lot No. 3, a public road. 72

On the other hand, BMC presented TCT No. 13693,  which covered a total land area of
73

53,890m2 within Barrio Concepcion, Naga City with the Ministry of Health, now Department of
Health, as the registered owner. It is not disputed that Road Lot No. 3 is part of the property
covered by TCT No. 13693.

BMC likewise presented a certification  from the City Engineer of Naga City which read:
74

This is to certify that the road from Panganiban Drive up to the entrance and exit gate of Bicol
Medical Center is not included in the list of Inventory of City Road[s] of Naga City.

Given this 14th day of December 2012 for record and reference purposes. 75
A careful reading of the records convinces this Court that respondents failed to establish prima
facie proof of their clear legal right to utilize Road Lot No, 3. Whatever right they sought to
establish by proving the public nature of Road Lot No. 3 was rebutted by the Department of
Health's certificate of title and the City Engineer's categorical statement that "the road from
Panganiban Drive up to the entrance and exit gate of [BJ\1C] was not included in the list" of city
roads under Naga City's control. 76

Instead of merely relying on a tax map and claims of customary use, Naga City or respondents
should have presented a clear legal right to support their claim over Road Lot No. 3.

Executive Secretary v. Forerunner Multi Resources, Inc.   explained that a clear legal right which
77

would entitle the applicant to an injunctive writ "contemplates a right 'clearly founded in or
granted by law.' Any hint of doubt or dispute on the asserted legal right precludes the grant of
preliminary injunctive relief."
78

Absent a particular law or statute establishing Naga City's ownership or control over Road Lot
No. 3, the Department of Health's title over the BMC compound must prevail over the
unsubstantiated claims of Naga City and respondents. Department of Health's ownership over
Road Lot No. 3, with the concomitant right to use and enjoy this property, must be respected.

Respondents likewise cannot rely on the supposed customary use of Road Lot No. 3 by the
public to support their claimed right of unfettered access to the road because customary use is
not one (1) of the sources of legal obligation;  hence, it does not ripen into a right.
79

II

This Court finds that the Court of Appeals erred in limiting prima facie evidence merely to the
evidence presented by Naga City and respondents and in disregarding altogether petitioners'
evidence,  which had the effect of squarely rebutting Naga City and respondents' assertions. The
80

Court of Appeals failed to appreciate the nature of the ancillary remedy of a writ of preliminary
injunction as against the ex parte nature of a temporary restraining order.

During the hearing for the application for writ of preliminary injunction, the trial court correctly
weighed the evidence presented by both parties before dismissing Naga City's application:

On 21 December 2012, the court a quo handed down the first assailed Order denying the
application for injunctive relief. According to said court, Naga City failed to comply with the
jurisprudential requirements for the issuance of said injunction, to wit: 1) the right of the
complainant is clear and unmistakable; 2) the invasion of the right is material and substantial;
and 3) urgent and permanent necessity for the writ to prevent serious damage.

Anent the first requirement, the court a quo noted that even on the assumption that the 1970's
Revised Assessor's Tax Mapping Control Roll and its Identification Map were both authentic
documents, the same would not overcome BMC s ownership of the property as evidenced by its
title. BAMC’s title covers all property within its bounds, which naturally included Road Lot No. 3.

The court a quo thereafter proceeded to conclude that since Naga City failed to clearly establish
its right over the said road, then logically, it would not also be able to show compliance with the
second requisite, which necessitates a material and substantial invasion of such right.

On the third requirement, the court a quo took into consideration the testimonies of two of the
herein petitioners, Eliza M. Quilon (hereinafter Quilon) and Josefina F. Esplana (hereinafter
Esplana), who both have businesses in the area and who said that their respective enterprises
started suffering from losses after the closure of Road Lot No. 3. However, according to the
court a quo, the losses of Quilon and Esplana hardly qualify as irreparable injury required by
jurisprudence in granting the writ of preliminary injunction. This is so, as the court declared,
because the alleged business losses that had been purportedly caused by the closure of Road
Lot No. 3 were easily subject to mathematical computation.  (Emphasis supplied)
81

Writs of preliminary injunction are granted only upon prior notice to the party sought to be
enjoined and upon their due hearing.  Rule 58, Section 5 of the Rules of Court provides:
1âwphi1

Section 5. Preliminary injunction not granted without notice; exception. - No preliminary injunction
shall be granted without hearing and prior notice to the party or person sought to be enjoined. If it
shall appear from facts shown by affidavits or by the verified application that great or irreparable
injury would result to the applicant before the matter can be heard on notice, the court to which
the application for preliminary injunction was made, may issue ex parte a temporary restraining
order to be effective only for a period of twenty (20) days from service on the party or person
sought to be enjoined, except as herein provided. Within the said twenty-day period, the court
must order said party or person to show cause, at a specified time and place, why the injunction
should not be granted, determine within the same period whether or not the preliminary injunction
shall be granted, and accordingly issue the corresponding order.

However, and subject to the provisions of the preceding sections, if the matter is of extreme
urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of
a multiple-sala court or the presiding judge of a single sala court may issue ex parte a temporary
restraining order effective for only seventy-two (72) hours from issuance but he shall immediately
comply with the provisions of the next preceding section as to service of summons and the
documents to be served therewith. Thereafter, within the aforesaid seventy-two (72) hours, the
judge before whom the case is pending shall conduct a summary hearing to detem1ine whether
the temporary restraining order shall be extended until the application for preliminary injunction
can be heard. In no case shall the total period of effectivity of the temporary restraining order
extended twenty (20) days, including the original seventy-two hours (72) hours provided herein.

In the event that the application for preliminary injunction is denied or not resolved within the said
period, the temporary restraining order is deemed, automatically vacated. The effectivity of a
temporary restraining order is not extendible without need of any judicial declaration to that effect
and no court shall have authority to extend or renew the same on the same ground for which it
was issued.

However, if issued by the Court of Appeals or a member thereof, the temporary restraining order
shall be effective for sixty (60) days from service on the party or person sought to be enjoined. A
restraining order issued by the Supreme Court or a member thereof shall be effective until further
orders.

Thus, Rule 58 requires "a full and comprehensive hearing for the determination of the propriety
of the issuance of a writ of preliminary injunction,"  giving the applicant an opportunity to prove
82

that great or irreparable injury will result if no writ is issued and allowing the opposing party to
comment on the application.

On the other hand, a temporary restraining order that is heard only with the evidence presented
by its applicant is ex parte, but it is issued to preserve the status quo until the hearing for
preliminary injunction can be conducted, Miriam College Foundation, Inc v. Court of
Appeals  explained the difference between preliminary injunction and a restraining order as
83

follows:

Preliminary injunction is an order granted at any stage of an action or proceeding prior to the
judgment or final order, requiring a party or a court, agency or a person to perform to refrain from
performing a particular act or acts. As an extraordinary remedy, injunction is calculated to
preserve or maintain the status quo of things and is generally availed of to prevent actual or
threatened acts, until the merits of the case can be heard. A preliminary injunction persists until it
is dissolved or until the termination of the action without the court issuing a final injunction.

The basic purpose of restraining order, on the other hand, is to preserve the status quo until the
hearing of the application for preliminary injw1ction. ; Under the former A§5, Rule 58 of the Rules
of Court, as amended by A§S, Batas Pambansa Blg. 224, a judge (or justice) may issue a
temporary restraining order with a limited life of twenty days from date of issue. If before the
expiration of the 20-day period the application for preliminary injunction is denied, the temporary
order would thereby be deemed automatically vacated. If no action is taken by the judge on the
application for preliminary injunction within the said 20 days, the temporary restraining order
would automatically expire on the 20th day by the sheer force of law, no judicial declaration to
that effect being necessary. In the instant case, no such preliminary injunction was issued;
hence, the TRO earlier issued automatically expired under the aforesaid provision of the Rules of
Court.  (Citations omitted)
84

It is true that some issues are better threshed out before the trial court, such as if the donation to
the Department of Health by the Camarines Sur Provincial Government contained an
encumbrance for the public to continue using Road Lot No. 3, or the validity of this
donation.  The Court of Appeals, however, erred when it completely disregarded the evidence
85

presented by petitioners, reasoning out that the question of whether or not Naga City's evidence
should prevail over BMC's title over the property was supposedly a factual matter that should be
threshed out in the trial court.
86

By focusing solely on Naga City and respondents' evidence to determine if there was prima
facie evidence to issue the writ of preliminary injunction while the case was being heard in the
lower court, the Court of Appeals misappreciated the nature of a writ of preliminary injunction. To
reiterate, a preliminary injunction is an ancillary remedy issued after due hearing where both
parties are given the opportunity to present their respective evidence. Thus, both their evidence
should be considered.

As it is, absent a finding of grave abuse of discretion, there was no reason for the Court of
Appeals to reverse the trial court's denial of respondents' application for the issuance of a writ of
preliminary injunction. Respondents were unable to present prima facie evidence of their clear
and unmistakable right to use Road Lot No. 3.

WHEREFORE, this Court resolves to GRANT the Petition. The assailed February 28, 2014
Decision and August 26, 2014 Resolution of the Court of Appeals in CA-G.R. SP No. 129806 are
REVERSED and SET ASIDE.

The temporary restraining order issued by this Court in its October 8, 2014 Resolution is made
PERMANENT.

SO ORDERED.

MARVIC M.V.F. LEONEN

Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

LUCAS P. BERSAMIN SAMUEL R. MARTIRES

Associate Justice Associate Justice
 ALEXANDER G. GESMUNDO
Associate Justice

G.R. No. 229106, February 20, 2019

body

SECOND DIVISION

G.R. No. 229106, February 20, 2019

TIONG BI, INC. [OWNER OF BACOLOD OUR LADY OF MERCY

SPECIALTY HOSPITAL], PETITIONER, VS. PHILIPPINE HEALTH
INSURANCE CORPORATION, RESPONDENT.

DECISION

REYES, J. JR., J.:

Before us is a petition for review on certiorari[1] under Rule
45 of the Rules of Court, assailing the Resolutions dated
August 10, 2016[2] and January 12, 2017[3] of the Court of
Appeals (CA) in CA-G.R. SP No. 144704, denying Tiong Bi,
Inc.’s (petitioner) Extremely Urgent Motion for Immediate
Issuance of Temporary Restraining Order.
The instant petition is rooted from charges of “Padding of
Claims” and “Misrepresentation by Furnishing False and
Incorrect Information” against petitioner before respondent
Philippine Health Insurance Corporation (PhilHealth). These
charges, in turn, stemmed from similar charges against two
PhilHealth-accredited eye surgeons, who used petitioner’s
facilities and the services of its staff to attend to the needs
of said physicians.[4]
Briefly, the charges of fraudulent benefit claims include
padding of prescriptions and recommending of medicines
and supplies such as oxygen and intravenous fluids not
needed by the patients nor actually provided by the hospital
or the doctors.[5]
In a Decision dated August 1, 2008, PhilHealth’s Arbitration
Department dismissed the charges against the two doctors
for lack of merit. This Decision was affirmed by the
PhilHealth Board.[6]
On the other hand, in PhilHealth Board Resolution No.
2040, S. 2016 dated February 24, 2016, PhilHealth affirmed
with modification the July 30, 2010 Decision of Arbiter
Darwin G. De Leon, finding petitioner guilty, for the second
time, of a fraudulent offense. In accordance with the
Revised Internal Rules of the PhilHealth Board on Appealed
Administrative Cases, the reduced penalty of six months
and one day suspension of accreditation and a fine of
P10,000.00 for each count of Padding of Claims for a total
of PI 70,000.00 were imposed upon petitioner. It was further
ordered that the restitution for any payment made by
PhilHealth for the claim/s subject of the case be made by
petitioner or be charged and deducted from the proceeds of
any pending or future claims of petitioner with PhilHealth.
Lastly, petitioner was sternly warned that a repetition of the
same or similar offense shall be dealt with more severely.[7]
Aggrieved, petitioner appealed the said PhilHealth
Resolution before the CA through a petition
for certiorari under Rule 43 of the Rules of Court. Petitioner
likewise filed therein an Extremely Urgent Motion for
Immediate Issuance of Temporary Restraining Order
(TRO). Petitioner basically argues that the PhilHealth
Resolution was erroneous for allegedly being based on a
wrong case, which was said to be heard by a different
arbiter. Also, petitioner insists that the charges against the
two doctors were dismissed for lack of merit, the charges
against it which were grounded upon the same set of facts
should likewise be dismissed.[8]
As for the motion for issuance of TRO, petitioner cited the
general concepts of public interest, public health, and safety
to support its claim of irreparable injury and urgency.
Specifically, petitioner averred that it is one of the biggest
health providers in Negros and the threatened closure of its
hospital by virtue of the subject PhilHealth Resolution would
impede the health measures it can provide to contain
certain epidemic in the country. According to petitioner, the
flawed PhilHealth Resolution put in grave peril the safety,
life and health of the patients confined in its hospital.[9]
In its August 10, 2016 Resolution,[10] the CA denied
petitioner’s motion for issuance of TRO, finding no actual
existing right to be protected on the part of the petitioner nor
the possibility of irreparable injury.
In its January 12, 2017 Resolution,[11] the CA likewise
denied petitioner’s motion for reconsideration of the August
10, 2016 Resolution.
Notably, the main case remains to be pending with the CA
for resolution.
Petitioner now comes before this Court through the instant
petition for review on certiorari under Rule 45 of the Rules
of Court on the pretext that it is grounded on pure questions
of law. Specifically, petitioner contends that the CA erred in
refusing to issue an injunctive writ, endangering, thus,
public safety and exposing the public to the hazard and risk
of a health crisis. Reiterating its argument in its pending
appeals before the CA, petitioner argues that the
threatened closure of its hospital would put the safety, life,
and health of its confined patients to grave peril. Further,
petitioner avers that closing a major health service provider
such as petitioner’s hospital, in a region with few hospitals,
would create a crisis.
Petitioner also assails in the instant petition the subject
PhilHealth Resolution, pointing out that it was based on a
wrong case; that it has no factual and legal bases; and that
it was based merely on surmises, guesswork, and
assumptions, among others.
We resolve.
At the outset, it should be pointed out that the petitioner
resorted to an improper remedy before this Court. Section
1(c), Rule 41 of the same Rules expressly provides that no
appeal may be taken from an interlocutory order. An
interlocutory order, as opposed to a final judgment or order,
is one that does not dispose of the case completely but
leaves something to be decided upon. Petitioner resorted to
a petition for review on certiorari under Rule 45 of the Rules
of Court to question the denial of its motion for issuance of
an injunctive relief. An order granting or denying an
application for a TRO or a preliminary injunction is
interlocutory in nature and, thus, unappealable. The proper
remedy is to file a petition for certiorari and/or prohibition
under Rule 65 of the same Rules.[12]
Furthermore, a close reading of the arguments raised by
the petitioner would readily show that they are factual in
nature. While petitioner is ascribing grave abuse of
discretion on the part of the CA in denying its motion for
TRO, it basically seeks to enjoin the implementation of the
PhilHealth Resolution questioned before the CA for
allegedly being unfounded and erroneous. Undoubtedly,
such endeavor would require an examination of evidence.
Petitioner is questioning before this Court the exact same
PhilHealth Resolution being questioned before the CA at
present and on the same grounds raised therein. It is basic
that a petition for review under Rule 45 of the Rules of
Court may raise only questions of law. This Court is not a
trier of facts and we are not duty-bound to re-examine
evidence especially when the court a quo had not yet even
ruled on the merits of the main case.[13] To rule otherwise
would effectively preempt the proceedings before the CA.
The present petition may, thus, be dismissed outright for
being an improper remedy.[14]
At any rate, even if we treat this case as a petition under
Rule 65, it shall still fail for lack of merit.
The grant or denial of a TRO or an injunctive writ rests on
the sound discretion of the court taking cognizance of the
case, since the assessment and evaluation of evidence
towards that end involves findings of facts left to the said
court for its conclusive determination. Verily, the exercise of
judicial discretion by a court in injunctive matters must not
be interfered with, unless there is grave abuse of discretion.
[15]

The only issue, therefore, that confronts us is limited to the

matter of whether the CA’s denial of petitioner’s motion for
issuance of TRO was tainted with grave abuse of
discretion.
In the issuance or denial of an injunctive writ, grave abuse
of discretion implies a capricious and whimsical exercise of
judgment equivalent to lack of jurisdiction; or the exercise of
power in an arbitrary or despotic manner by reason of
passion, prejudice or personal aversion amounting to an
evasion of positive duty or to a virtual refusal to perform the
duty enjoined or to act at all in contemplation of law.[16]
In this case, the Court finds no grave abuse of discretion on
the part of the CA in denying the issuance of a TRO.
To be entitled to the injunctive writ, petitioner must show
that (1) there exists a clear and unmistakable right to be
protected; (2) this right is directly threatened by an act
sought to be enjoined; (3) the invasion of the right is
material and substantial; and (4) there is an urgent and
paramount necessity for the writ to prevent serious and
irreparable damage.[17]
As correctly ruled by the CA, essential for the grant of the
injunctive relief is the existence of an urgent necessity to
prevent serious damage. A TRO is issued only if the matter
is of such extreme urgency that grave injustice and
irreparable injury will arise unless it is issued immediately.
Parenthetically, the burden is on the petitioner to show in
the application that there is meritorious ground for the
issuance of the TRO in its favor.[18] In this case, we are one
with the CA in finding that the petitioner failed to discharge
such burden.
To support its claim of urgency and irreparable injury,
petitioner sweepingly concluded that-the penalty imposed
by the subject PhilHealth Resolution would prejudice not
only its current patients but also the public in general as
they will be deprived of one of the few health providers in
the region if the penalty will be implemented.
This argument deserves scant consideration.
As stated, petitioner is not the only health service provider
in the region. Hence, the suspension of its PhilHealth
accreditation and the imposition of fine against it will not, in
any way, hamper the delivery of health care services to the
public, contrary to what the petitioner would want to impress
to this Court. More importantly, it should be stressed that
the subject PhilHealth Resolution merely imposes a fine
and the suspension of the hospital’s PhilHealth
accreditation not the closure of the hospital. Hence, neither
will petitioner’s health care services be forestalled by the
implementation of the penalty sought to be restrained. If at
all, it is merely the members’ benefits which may
temporarily be hampered when the penalty is implemented.
Such damage, if any, is easily quantifiable and, as such,
cannot be considered as “grave and irreparable injury” as
contemplated under the law. The Court in Heirs of Melencio
Yu v. Court of Appeals,[19] citing Social Security Commission
v. Bayona[20] explained the concept of irreparable damage
or injury as follows:
Damages are irreparable within the meaning of the rule
relative to the issuance of injunction where there is no
standard by which their amount can be measured with
reasonable accuracy. “An irreparable injury which a court of
equity will enjoin includes that degree of wrong of a
repeated and continuing kind which produce hurt,
inconvenience, or damage that can be estimated only by
conjecture, and not by any accurate standard of
measurement.” x x x
Here, the only possible injury which may be perceived is
easily subject to mathematical computation.
In sum, this Court finds no reversible error, much less,
grave abuse of discretion, on the part of the CA in denying
the motion for the issuance of the TRO. What is more, the
prevailing rule is that the courts should avoid resorting to
interlocutory injunctive reliefs that would in effect preempt
the resolution of the main case.
WHEREFORE, premises considered, the instant petition
is DENIED. The Resolutions dated August 10, 2016 and
January 12, 2017 of the Court of Appeals in CA-G.R. SP
No. 144704 are AFFIRMED. The Court of Appeals
is DIRECTED to resolve CA-G.R. SP No. 144704 with
dispatch.
SO ORDERED.
 

THIRD DIVISION
 
JOSE T. BARBIETO,   G.R. No. 184645
 
                       Petitioner,  
 
  Present:
-  versus  -  
QUISUMBING,* J.,
 
CARPIO,
THE HONORABLE COURT OF        Chairperson,
CHICO-NAZARIO,
APPEALS; MARY RAWNSLE V.
LOPEZ, GRAFT INVESTIGATION AND PERALTA, and
PROSECUTION OFFICER II; EULOGIO
ABAD,** JJ
S. CECILIO, DIRECTOR; EMILIO A.
GONZALES III, DEPUTY  
OMBUDSMAN FOR THE MILITARY
 
AND OTHER LAW ENFORCEMENT
OFFICES; OMBUDSMAN  
MERCEDITAS GUTIERREZ; and
 
LIEUTENANT GENERAL ALEXANDER
B. YANO, COMMANDING GENERAL,  
PHILIPPINE ARMY,
 
                       Respondents.
Promulgated:

 
  

October 30, 2009

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - -  - - - - - - - - - - - - - - - - - - - - - -x

DECISION
 

CHICO-NAZARIO, J.:

This Petition for Certiorari under Rule 65 of the Revised Rules of Court

assails the Resolutions dated 6 August 2008[1] and 22 September 2008[2] of the
Court of Appeals in CA-G.R. SP. No. 102874, denying the prayer of petitioner
Major General Jose T. Barbieto (Maj. Gen. Barbieto) for a temporary
restraining order (TRO) and/or writ of preliminary injunction to enjoin his
arrest and confinement, and/or lift the preventive suspension order issued by
the Office of the Deputy Ombudsman for the Military and other Law
Enforcement Offices (ODO-MOLEO) and the warrant of arrest and confinement
issued by Lieutenant General Alexander B. Yano (Lt. Gen. Yano), Commanding
General (CG) of the Philippine Army (PA).
 
Facts of the Case
 
Maj. Gen. Barbieto is the Division Commander of the 4th Infantry
Division, PA, Camp Edilberto Evangelista, Cagayan de Oro City. 
 
 Several Complaint-Affidavits were filed before the ODO-MOLEO by
various personnel of the 4th Infantry Division, PA, against Maj. Gen. Barbieto
and his alleged bagman Staff Sergeant Roseller A. Echipare (S/Sgt. Echipare),
charging the latter two with grave misconduct and violation of Republic Act No.
6713.  Maj. Gen. Barbieto and S/Sgt. Echipare, for allegedly committed the
following: (a) extortion of amounts ranging from P25,000.00 to P30,000.00
from applicants in order to guarantee their enlistment in the Philippine Army;
(b) extortion of money from soldiers seeking reinstatement, in exchange for
Maj. Gen. Barbieto’s approval of their reinstatement, despite previous
disapproval of said soldiers’ requests for reinstatement by the 4th Infantry
Division Reinstatement Board; and (c) anomalies in the clearing of payroll of
the Balik Baril program fund of the Armed Forces of the Philippines (AFP).  The
administrative case against Maj. Gen. Barbieto and S/Sgt. Echipare was
docketed as OMB-P-A-08-0201-B, and the criminal case was docketed as OMB-
P-C-08-0204-B.[3]
 
On 29 February 2008, ODO-MOLEO ordered[4] the preventive suspension
of Maj. Gen. Barbieto and S/Sgt. Echipare for six months during the pendency
of OMB-P-A-08-0201-B, the administrative case, thus: 
 
WHEREFORE in accordance with Section 24 of Republic Act 6770 and Section
9 Rule III of Administrative Order No. 7 respondents MAJOR GENERAL JOSE T.
BARBIETO and SSGT ROSELLER A. ECHEPARE are hereby PREVENTIVELY SUSPENDED
during the pendency of this case until its termination, but not to exceed the total
period of six (6) months, without pay. In case of delay in the disposition of the case
due to the fault, negligence or any cause attributable to the respondents, the period
of such delay shall not be counted in computing the period of the preventive
suspension.

In accordance with Section 27, paragraph (1) of Republic Act 6770, this
Order is immediately executory. Notwithstanding any motion, appeal or petition
that may be filed by the respondents seeking relief from this Order, unless otherwise
ordered by this office or by any court of competent jurisdiction, the implementation
of this Order shall not be interrupted within the period prescribed.

The Chief of Staff GENERAL HERMOGENES ESPERON of the Armed Forces of

the Philippines is hereby directed to implement this Order immediately upon receipt
 hereof, and to notify this Office within five (5) days from said receipt of the status of
said implementation.

Maj. Gen. Barbieto filed a Motion for Reconsideration [5] of the foregoing
Order.
 
Simultaneous with the proceedings before the ODO-MOLEO, the Army
Investigator General (AIG) was also conducting an investigation on the same
charges against Maj. Gen. Barbieto and S/Sgt. Echipare.  The AIG
recommended, and Lt. Gen. Yano, as CG-PA, approved, the indictment of Maj.
Gen. Barbieto for violations of Articles 55 (Officer Making Unlawful
Enlistment), 96 (Conduct Unbecoming of an Officer and a Gentleman), and 97
(Conduct Prejudicial to Good Order and Military Discipline); and of S/Sgt.
Echipare for violations of Articles 96 and 97, all of the Articles of War.[6] 
 
On 20 February 2008, Maj. Gen. Barbieto’s 10-day leave of absence took
effect to pave the way for an impartial investigation.  On even date, S/Sgt.
Echipare was arrested and confined at the Intelligence and Security Group
Compound, Fort Bonifacio, Taguig City.[7]
 
Lt. Gen. Yano subsequently issued on 13 March 2008 an Order for
the “Arrest and Confinement of Major General Barbieto AFP and SSG Echipare
PA,” directing the Commander of the Headquarters and Headquarters Support
Group (HHSG), PA, “to arrest and take responsibility of Major General Barbieto
and SSG Echipare PA x x x and to restrict them to quarters pending
investigation with the end view of a General Court Martial Trial.”[8]  Pursuant to
this Order of Arrest, Maj. Gen. Barbieto was arrested and confined to cluster
officer housing, while S/Sgt. Echipare was transferred to and detained at the
Custodial Management Unit (CMU), HHSG, PA, on 18 March 2008.[9]
 
On 10 April 2008, the Office of the Army Judge Advocate (OAJA),
concurring in the findings of the Pre-Trial Investigation Panel, recommended
the immediate trial of Maj. Gen. Barbieto and S/Sgt. Echipare before the
General Court Martial and the endorsement of the case to the AFP General
Headquarters for the conduct of General Court Martial Proceedings.[10]
 
Without waiting for the resolution by the ODO-MOLEO of his Motion for
Reconsideration of the preventive suspension order issued against him in
OMB-P-A-08-0201-B, Maj. Gen. Barbieto filed before the Court of Appeals a
Petition for Certiorari with Prayer for the Issuance of a Temporary Restraining
Order (TRO) and/or Writ of Preliminary Injunction,[11] docketed as CA-G.R. SP.
No. 102874.  Maj. Gen. Barbieto specifically prayed for: (1) the issuance of a
TRO enjoining respondents Mary Rawnsle V. Lopez (Lopez), Graft Investigation
and Prosecution Officer II; Eulogio S. Cecilio, Director; Emilio A. Gonzalez,
Deputy Ombudsman for MOLEO; and Orlando C. Casimiro, Acting Ombudsman,
to lift and hold in abeyance the preventive suspension order; and ordering
Alexander B. Yano, Lieutenant General, Commanding General of the Philippine
Army to nullify the warrant of arrest and confinement of petitioner; (2) the
setting of a hearing on the preliminary injunction; and (3) after hearing on the
preliminary injunction, the issuance of an order granting the injunction and
making the injunction permanent, and such other and further relief as the
appellate court may deem just and equitable in the premises.[12]
 
On 4 April 2008, the Court of Appeals directed respondents to submit,
within 10 days, their comment stating the reasons or justifications why the
TRO and/or writ of preliminary injunction Maj. Gen. Barbieto prayed for should
not be issued.[13]
 
          After the parties submitted all the required pleadings, the Court of
Appeals issued a Resolution on 6 August 2008, denying Maj. Gen. Barbieto’s
prayer for a TRO and/or writ of preliminary injunction.  The appellate court
held:
 
After due consideration of the factual circumstances of the instant case, we
find no compelling reason to issue an injunctive writ and/or temporary restraining
order.

 
 The surrounding facts underpinning [Maj. Gen. Barbieto]’s plea for the
issuance of an injunctive relief are intimately related to and inextricably intertwined
with the issues raised in the instant Petition for Certiorari.

Moreover, [Maj. Gen. Barbieto] failed to demonstrate extreme urgency, as

well as great or irreparable injury that he may suffer while the instant Petition is
pending adjudication. x x x.

xxxx

Here, [Maj. Gen. Barbieto] failed to at least show a clear and unmistakable
right entitling him to the issuance of a writ of preliminary injunction and/or
temporary restraining order.[14]  (Emphasis supplied.)

The dispositive portion of the Resolution reads:

 
WHEREFORE, [Maj. Gen. Barbieto]’s prayer for the issuance of a temporary
restraining order and/or writ of preliminary injunction is hereby DENIED.[15]

Maj. Gen. Barbieto moved for reconsideration of the aforementioned

Resolution, but the Court of Appeals, in its Resolution[16] dated 22 September
2008, refused to do so.  The appellate court stressed that before there could
be a question of whether to grant or deny the prayer for a writ of preliminary
injunction, Maj. Gen. Barbieto, at the onset, should have established in his
pleadings the existence of the grounds enumerated in Section 3, Rule 58 of the
Revised Rules of Court.  It stood by its pronouncement in the earlier Resolution
that Maj. Gen. Barbieto failed to demonstrate urgency, as well as great or
irreparable injury that he may suffer while his Petition in CA-G.R. SP No.
102874 is pending adjudication; hence, the necessity of a hearing did not even
arise.  The Court of Appeals further reasoned that it could properly deny Maj.
Gen. Barbieto’s prayer for preliminary injunctive relief since, being an ancillary
remedy, the grant of the same, which would result in a premature resolution
of the case, or will grant the principal objectives of the parties, before the
merits could be passed, is proscribed.
 
The Court of Appeals decreed in its 22 September 2008 Resolution:
 
In fine, [Maj. Gen. Barbieto]’s Motion for Reconsideration proffers no
substantial issue which may warrant reversal of the assailed Resolution.

WHEREFORE, the instant Motion for Reconsideration is hereby DENIED for

lack of merit.[17]

Hence, Maj. Gen. Barbieto filed the instant Petition before this Court,
raising the following issues:
 
I.                   THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN DENYING
PETITIONER’S PRAYER FOR INJUNCTIVE RELIEF WITHOUT HEARING IN
VIOLATION OF HIS RIGHT TO PROCEDURAL DUE PROCESS OF LAW.

II.                THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF

DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN RULING
THAT PETITIONER FAILED TO DEMONSTRATE EXTREME URGENCY AS WELL
AS GREAT OR IRREPARABLE INJURY THAT HE MAY SUFFER THAT SHOULD
MERIT THE GRANT OF INJUNCTIVE RELIEF.

III.             THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF

DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN RULING
THAT PETITIONER MAY BE FURTHER DEPRIVED OF THE PRIMORDIAL RIGHT
TO LIBERTY GUARANTEED IN THE CONSTITUTION BY A MERE PROCEDURAL
CONSIDERATION THAT THE INJUNCTIVE RELIEF IS INEXTRICABLY
INTERTWINED WITH THE ISSUES RAISED IN THE PETITION.

 
 

During the pendency of the present Petition, an Order,[18] prepared by

respondent Lopez on 27 March 2008, but approved by Ombudsman
Merceditas N. Gutierrez only on 7 November 2008, denied Maj. Gen.
Barbieto’s Motion for Reconsideration of the preventive suspension order
previously issued against Maj. Gen. Barbieto and S/Sgt. Echipare in OMB-P-A-
08-0201-B.  The Order cited the power of the Office of the Ombudsman to
preventively suspend any public officer under Republic Act No. 6770, otherwise
known as the Ombudsman Act of 1989, provided that the essential requisites
under Section 24 thereof are present.  The Order pointed out that this power
of the Office of the Ombudsman had long been respected by the Supreme
Court.
 
Maj. Gen. Barbieto’s claim that he was denied his constitutional right to
due process was rejected in this latest Ombudsman Order, because:
 
The above-concept [of due process] is not a fixed or static one, as clearly
acknowledged.  What is due process of the law depends on circumstances, it varies
with the subject matter and necessities of the situation (Bernas, Joaquin.  The
Constitution of the Republic of the Philippines, p. 114).

Considering however, that this is an administrative case, the Supreme Court

has recognized that there are two (2) types of preventive suspension.  Preventive
suspension as a preventive measure and suspension as penalty. x x x.

xxxx

In the instant case, it is clear that the suspension issued is a mere

preliminary step and not a penalty.  Thus, the strict adherence to the rudiments of
notice and hearing need not be applied due to the immediate nature of the action.
[19]

 
 The same Ombudsman Order rebuffed Maj. Gen. Barbieto’s contention
that there was forum shopping, given the existence of two similar
administrative cases against him: one, OMB-P-A-08-0201-B before the Office of
the Ombudsman; and two, before the military tribunal.  OMB-P-A-08-0201-B
determines Maj. Gen. Barbieto’s fitness as a public officer; whereas the
pending administrative case before the Provost Marshall General, PA,
determines his fitness and efficiency as a military officer.
 
Therefore, the ultimate ruling in said Ombudsman Order is as follows:
 
WHEREFORE, premises considered, the Motion for Reconsideration dated 12
March 2008, is hereby DENIED for lack of merit. The Order dated 29 February
2008 is hereby AFFIRMED.[20]

Arguments of the Parties

 
Maj. Gen. Barbieto avers in the Petition[21] at bar that the Court of
Appeals committed grave abuse of discretion amounting to lack or excess of
jurisdiction in denying his prayer for preliminary injunctive relief without
hearing, in violation of his right to procedural due process of law; in finding
that he failed to demonstrate extreme urgency, as well as great or irreparable
injury that he may suffer from respondents’ acts, which would have merited
the grant of a TRO and/or writ of preliminary injunction; and in ruling that the
preliminary injunctive relief prayed for is inextricably intertwined with the
issues raised in his Petition in CA-G.R. SP No. 102874.
 
Maj. Gen. Barbieto insists that his right to procedural due process was
violated by the Court of Appeals when said court denied his prayer for a TRO
and/or writ of preliminary injunction without a hearing.  Maj. Gen. Barbieto
invoked Supreme Court Administrative Circular No. 20-95, which provides that
“an application for TRO shall be acted upon only after all parties are heard in a
summary hearing x x x.”[22] 
 
 Maj. Gen. Barbieto further argues that all elements to warrant the grant
of a writ of preliminary injunction are present in this case.  His preventive
suspension, merely a step in the administrative investigation against him, had
already expired on 28 August 2008, and yet, he remains to be under arrest and
confinement.  Maj. Gen. Barbieto stresses that the urgent need for the
issuance of a TRO and/or writ of preliminary injunction by the Court of Appeals
is evident from the fact that he is being continuously deprived of his right to
liberty.
 
The Office of the Ombudsman counters that Maj. Gen. Barbieto’s
reliance on Administrative Circular No. 20-95 is misplaced, for the same applies
to trial courts only.  Referring to Section 4, Rule VI of the 2002 Internal Rules of
the Court of Appeals, the Office of the Ombudsman posits that procedural due
process has been satisfied by the appellate court when the latter issued a
resolution requiring the party, whose act was sought to be enjoined, to file a
comment on the application for a TRO.  The denial by the Court of Appeals of
Maj. Gen. Barbieto’s prayer for preliminary injunctive relief was grounded on
both legal and logical considerations.  The grant of the ancillary remedy of TRO
and/or writ of preliminary injunction would have resulted in a premature
resolution of the main case of certiorari in CA-G.R. SP No. 102874 before the
merits of the latter could be passed upon.
 
The Office of the Ombudsman contends, likewise, that the expiration of
Maj. Gen. Barbieto’s six-month preventive suspension on 28 August
2008 renders the issue on the propriety of such suspension moot and
academic. There is nothing more that an injunctive relief could seek to
enjoin.  Maj. Gen. Barbieto’s continued confinement is no longer due to the
preventive suspension order of the Ombudsman, but pursuant to Lt. Gen.
Yano’s Order of Arrest. 
 
Lastly, the Office of the Ombudsman maintains that none of the
requisites for the issuance of a TRO and/or writ of preliminary injunction exists
in the instant case.  Maj. Gen. Barbieto’s proper recourse is to just await the
resolution of his Petition for Certiorari in CA-G.R. SP No. 102874 still pending
before the Court of Appeals, which involved the issue of the legality of his
continued confinement.
 
          Lt. Gen. Yano substantially joins in and/or adopts the arguments of the
Office of the Ombudsman.  He additionally asserts that there is no reason to
enjoin the enforcement of the Order of Arrest against Maj. Gen. Barbieto,
citing his authority as CG-PA to issue the same, pursuant to the Articles of War.
 
The Ruling of the Court

At the onset, the Court must clarify that Maj. Gen. Barbieto is actually
seeking a TRO and/or a writ of preliminary injunction to enjoin the
implementation of two distinct orders, issued by two different persons, in two
separate proceedings: (1) the preventive suspension order issued by the ODO-
MOLEO in OMB-P-A-08-0201-B; and (2) the Order of Arrest issued by Lt. Gen.
Yano as CG-PA in view of the impending General Court Martial Trial. 
 
The preventive suspension order issued by the ODO-MOLEO merely
suspended Maj. Gen. Barbieto from his office for six months, pending the
administrative proceedings against the latter.[23]  There is nothing in said
preventive suspension order of the ODO-MOLEO that directed Maj. Gen.
Barbieto’s arrest.  His arrest and continued confinement is solely by virtue of
Lt. Gen. Yano’s Order.  
 
The Court takes note of the undisputed fact that Maj. Gen. Barbieto’s
six-month suspension, imposed by the ODO-MOLEO in an Order dated 28
February 2008 in OMB-P-A-08-0201-B, already expired on 28 August
2008.  Such an event necessarily renders this Petition moot and academic,
insofar as the latter pertains to the said preventive suspension order issued by
the ODO-MOLEO against Maj. Gen. Barbieto.  Any ruling by this Court, whether
affirming or reversing the denial by the appellate court of Maj. Gen. Barbieto’s
prayer for issuance of a TRO and/or writ of preliminary injunction to enjoin the
implementation of said preventive suspension order, will no longer serve any
practical purpose, because the act sought to be enjoined has long been
consummated.[24]
  
Time and again, courts have refrained from even expressing an opinion
in a case where the issues have become moot and academic, there being no
more justiciable controversy to speak of, so that a determination thereof
would be of no practical use or value.[25]  Where the issue has become moot
and academic, there is no actual substantial relief to which Maj. Gen. Barbieto
would be entitled and which would be negated by the dismissal of his Petition
as regards the preventive suspension order of the ODO-MOLEO.[26]
 
Similarly, the Court finds the present Petition, insofar as it concerns Lt.
Gen. Yano’s Order of Arrest against Maj. Gen. Barbieto, dismissible for lack of
merit. 
 
Sine dubio, the grant or denial of a writ of preliminary injunction in a
pending case rests on the sound discretion of the court taking cognizance of
the case, since the assessment and evaluation of evidence towards that end
involves findings of facts left to the said court for its conclusive determination. 
Hence, the exercise of judicial discretion by a court in injunctive matters must
not be interfered with, except when there is grave abuse of discretion.[27] 
 
Grave abuse of discretion means such capricious and whimsical exercise
of judgment as is equivalent to lack of jurisdiction.  Mere abuse of discretion is
not enough.  It must be grave abuse of discretion, as when the power is
exercised in an arbitrary or despotic manner by reason of passion or personal
hostility, and must be so patent and so gross as to amount to an evasion of a
positive duty or to a virtual refusal to perform the duty enjoined or to act at all
in contemplation of law.[28]  The Court of Appeals did not gravely abuse its
discretion in refusing to issue a TRO and/or writ of preliminary injunction to
enjoin the enforcement of Lt. Gen. Yano’s Order of Arrest against Maj. Gen.
Barbieto.  
 
Maj. Gen. Barbieto cannot rely on Supreme Court Administrative Circular
No. 20-95, providing special rules for temporary restraining orders and
preliminary injunctions, to support his claim that he was denied due process
when the Court of Appeals denied his prayer for the issuance of a TRO and/or
writ of preliminary injunction without first conducting a summary hearing.
 
The whole text of said Administrative Circular is reproduced below:
 
1. Where an application for temporary restraining order (TRO) or writ of
preliminary injunction is included in a complaint or any initiatory pleading filed
with the trial court, such compliant or initiatory pleading shall be raffled only after
notice to the adverse party and in the presence of such party or counsel.

2. The application for a TRO shall be acted upon only after all parties are
heard in a summary hearing conducted within twenty-four (24) hours after the
records are transmitted to the branch selected by raffle. The records shall be
transmitted immediately after raffle.

3. If the matter is of extreme urgency, such that unless a TRO is issued, grave
injustice and irreparable injury will arise, the Executive Judge shall issue the TRO
effective only for seventy-two (72) hours from issuance but shall immediately
summon the parties for conference and immediately raffle the case in their
presence. Thereafter, before the expiry of the seventy-two (72) hours, the Presiding
Judge to whom the case is assigned shall conduct a summary hearing to determine
whether the TRO can be extended for another period until a hearing in the pending
application for preliminary injunction can be conducted. In no case shall the total
period of the TRO exceed twenty (20) days, including the original seventy-two (72)
hours, for the TRO issued by the Executive Judge.

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.

For immediate compliance. (Emphases ours.)

Maj. Gen. Barbieto overlooked that Supreme Court Administrative

Circular No. 20-95 pertains to applications for TROs and/or writs of preliminary
injunctions filed before trial courts, whether multi-sala or single-sala. 
 
The Court of Appeals has its own Internal Rules. 
  
Section 2, Rule IV of the 2002 Internal Rules of the Court of Appeals
provides the following procedure in the case of a petition involving an urgent
matter, such as an application for a TRO:
 
Sec. 2.  Action by the Presiding Justice. – When a petition involves an urgent
matter, such as an application for writ of habeas corpus or temporary restraining
order, and there is no way of convening the Raffle Committee or calling any of its
members, the Presiding Justice may conduct the raffle or act on the petition, subject
to raffle on the next working day in accordance with Rule III hereof. (Emphasis ours.)

Noticeably, under the aforementioned circumstances, the Presiding

Justice of the Court of Appeals may even, by himself, act on an urgent
application for a TRO.  There is no mention at all of the requirement that the
Presiding Justice must hold a summary hearing prior to granting or denying
such an application.
 
As for a preliminary injunction, Section 4, Rule VI of the 2002 Internal
Rules of the Court of Appeals lays down the following procedure:
 
Sec. 4.  Hearing on Preliminary Injunction. — The requirement of a
hearing on an application for preliminary injunction is satisfied with the
issuance by the Court of a resolution served upon the party sought to be
enjoined requiring him to comment on said application within a period of
not more than ten (10) days from notice.  Said party may attach to his
comment documents which may show why the application for preliminary
injunction should be denied.  The Court may require the party seeking the
injunctive relief to file his reply to the comment within five (5) days from
receipt of the latter.
 
If the party sought to be enjoined fails to file his comment as provided
for in the preceding paragraph, the Court may resolve the application on the
basis of the petition and its annexes.
 

The preceding paragraphs, notwithstanding, the Court may, in its sound

discretion, set the application for a preliminary injunction for hearing during which
 the parties may present their respective positions or submit evidence in support
thereof. (Emphases ours.)

Based on the foregoing rule, the Court of Appeals clearly satisfied the
requirement of a hearing when, in its Resolution dated 4 April 2008 in CA-G.R.
SP No. 102874, it directed respondents to submit their comment on Maj. Gen.
Barbieto’s prayer for the issuance of a TRO and/or writ of preliminary
injunction within ten days from notice.[29]  While it is true that the right to due
process safeguards the opportunity to be heard and to submit any evidence
one may have in support of his claim or defense, the Court has time and again
held that where the opportunity to be heard, either through verbal arguments
or pleadings, is accorded, and the party can “present its side” or defend its
“interest in due course,” there is no denial of due process.  What the law
proscribes is the lack of opportunity to be heard.[30]
 
The last paragraph of Section 4, Rule VI of the 2002 Internal Rules of the
Court of Appeals also proves false Maj. Gen. Barbieto’s contention that the
actual conduct of a hearing on an application for preliminary injunction is
mandatory.  Said rule explicitly states that the setting of a hearing on such an
application is left to the sound discretion of the appellate court.  Hence, it is
not enough for Maj. Gen. Barbieto to show that no hearing on his application
for TRO and/or preliminary injunction was conducted by the Court of Appeals,
but he must also be able to convince this Court that the appellate court gravely
abused its discretion in choosing not to conduct such a hearing.  Maj. Gen.
Barbieto likewise failed in this regard.      
 
The Court, in Philippine Ports Authority v. Cipres Stevedoring & Arrastre,
[31]
Inc.,  provided the following elucidation on the general principles in issuing a
writ of preliminary injunction:
 
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.”

For the writ to issue, two requisites must be present, namely, the existence
of the right to be protected, and that the facts against which the injunction is to be
directed are violative of said right.  x x x.

A writ of preliminary injunction may be granted only upon showing by

the applicant of a clear and unmistakable right that is a right in esse.  Maj. Gen.
Barbieto claims that his right in esse that is being violated herein is his right to
liberty.
 
Indeed, Section I, Article III of the 1987 Constitution, guarantees that no
person may be deprived of life, liberty, or property without due process of
law.  Also, the Republic of the Philippines, as a signatory to the Universal
Declaration of Human Rights (UDHR), recognizes that everyone has the right to
liberty and security of one’s person.  No one shall be subjected to arbitrary
arrest or detention.  No one shall be deprived of his liberty except on such
grounds and in accordance with such procedure as are established by law.[32]
 
Nevertheless, the right to liberty is not absolute.  It bears to point out
that while both the 1987 Constitution and the UDHR affirm the right of every
person to liberty, they do concede that there are instances when a person
must be deprived thereof for as long as due process of law has been
observed. 
 
Thus, Maj. Gen. Barbieto cannot just invoke herein his fundamental right
to liberty; upon him also falls the burden of proving that he is being deprived
of such right without due process. 
 
To recall, Lt. Gen. Yano ordered Maj. Gen. Barbieto’s arrest after the
conduct of an investigation by and the recommendation of the AIG that Maj.
Gen. Barbieto be charged before a court martial with violations of Articles 55
(Officer Making Unlawful Enlistment), 96 (Conduct Unbecoming of an Officer
and Gentleman), and 97 (Conduct Prejudicial to Good Order and Military
Discipline) of the Articles of War.  Since Maj. Gen. Barbieto is being charged
with serious offenses, Lt. Gen. Yano issued the Order of Arrest for the former
under Article 70 of the Articles of War:
 
Art. 70. Arrest or Confinement. – Any person subject to military law charged
with crime or with a serious offense under these articles shall be placed in
confinement or in arrest, as circumstances require; but when charged with a minor
offense only, such person shall not ordinarily be placed in confinement. Any person
placed in arrest under the provisions of this Article, shall thereby be restricted to his
barracks, quarters or tent, unless such limits shall be enlarged by proper authority.
Any officer or cadet who breaks his arrest or who escapes from confinement,
whether before or after trial or sentence and before he is set at liberty by proper
authority, shall be dismissed from the service or suffer such other punishment as a
court-martial may direct, and any other person subject to military law who escapes
from confinement or who breaks his arrest, whether before or after trial or sentence
and before he is set at liberty by proper authority, shall be punished as a court
martial may direct. (Emphases ours.)

Now, is Lt. Gen. Yano’s issuance of the Order of Arrest under the
aforedescribed circumstances violative of Maj. Gen. Barbieto’s right to liberty
and due process?  The Court accords to Lt. Gen. Yano the presumption of good
faith and regularity in the issuance of said Order of Arrest, having done the
same in the course of the performance of his official duties.  Other than this,
the Court cannot make any more pronouncements on the matter.  Suffice it to
say that the need for a more extensive determination of said question, by
itself, already negates Maj. Gen. Barbieto’s insistence of a clear and well-
established right that warrants the protection of a TRO and/or writ of
preliminary injunction.  Where the complainant’s (or in this case, petitioner’s)
right is doubtful or disputed, injunction is not proper.[33]
 
The Court must limit itself in the Petition at bar to the issue on the non-
issuance by the Court of Appeals of a TRO and/or writ of preliminary injunction
to prevent the enforcement of Maj. Gen. Barbieto’s arrest.  It must be careful
not to preempt the resolution by the Court of Appeals of Maj. Gen. Barbieto’s
Petition for Certiorari in CA-G.R. SP No. 102874, wherein the propriety of his
arrest and continued confinement is one of the central issues.   
 
The prevailing rule is that the courts should avoid issuing a writ of
preliminary injunction that would in effect dispose of the main case without
trial. Otherwise, there would be a prejudgment of the main case and a reversal
of the rule on the burden of proof, since such issuance would assume the
proposition that Maj. Gen. Barbieto is inceptively bound to prove.[34] 
 
WHEREFORE, the instant Petition is DISMISSED.  The Resolutions
dated 6 August 2008 and 22 September 2008 of the Court of Appeals in CA-
G.R. SP No. 102874 are AFFIRMED.  The Court of Appeals is DIRECTED to
resolve petitioner Maj. Gen. Jose T. Barbieto’s Petition for Certiorari in CA-G.R.
SP No. 102874 with dispatch.  Costs against petitioner.
 
SO ORDERED.
 

  MINITA V. CHICO-NAZARIO
Associate Justice
 

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice

         ANTONIO T. CARPIO DIOSDADO M. PERALTA

Associate Justice Associate Justice
Chairperson

   
   
 
   

ROBERTO A. ABAD
Associate Justice