THIRD DIVISION

[G.R. No. 141853. February 7, 2001]

TERESITA V. IDOLOR, petitioner, vs. HON. COURT OF APPEALS, SPS.

GUMERSINDO DE GUZMAN and ILUMINADA DE GUZMAN and HON.
PRUDENCIO CASTILLO, JR., Presiding Judge, Regional Trial Court,
National Capital Judicial Region, Branch 220, Quezon City, respondents.

DECISION
GONZAGA-REYES, J.:

This is a petition for review on certiorari filed by petitioner Teresita Idolor

which seeks to set aside the decision[1] of the respondent Court of Appeals which
reversed the Order[2]of the Regional Trial Court of Quezon City[3]granting Idolors
prayer for the issuance of a writ of preliminary injunction and the resolution
denying petitioners motion for reconsideration.[4]
On March 21, 1994, to secure a loan of P520,000.00, petitioner Teresita
Idolor executed in favor of private respondent Gumersindo De Guzman a Deed of
Real Estate Mortgage with right of extra-judicial foreclosure upon failure to
redeem the mortgage on or before September 20, 1994. The object of said
mortgage is a 200-square meter property with improvements located at 66
Ilocos Sur Street, Barangay Ramon Magsaysay, Quezon City covered by TCT No.
25659.
On September 21, 1996, private respondent Iluminada de Guzman, wife of
Gumersindo de Guzman, filed a complaint against petitioner Idolor before the
Office of the Barangay Captain of Barangay Ramon Magsaysay, Quezon City,
which resulted in a Kasunduang Pag-aayos which agreement is quoted in full[5]:

Kami, ang (mga) may sumbong at (mga) ipinagsusumbong sa usaping

binabanggit sa itaas, ay nagkakasundo sa pamamagitan nito na ayusin ang
aming alitan gaya ng sumusunod:

Na ako si Teresita V. Idolor of legal age ay nakahiram ng halagang P520,000.00

noong September 20, 1994.

Na ang nasabing halaga ay may nakasanlang titulo ng lupa (TCT No. 25659)
under Registry receipt 3420 dated July 15, 1996.

1
Na ako si Teresita V. Idolor ay humihingi ng 90 days palugit (grace period) to
settle the said amount.

Failure to settle the above account on or before December 21, 1996, I agree to
execute a deed of sale with the agreement to repurchase without interest within
one year.

Total amount of P1,233,288.23 inclusive of interest earned.

At nangangako kami na tutupad na tunay at matapat sa mga katakdaan ng pag-

aayos na inilahad sa itaas.

Petitioner failed to comply with her undertaking; thus private respondent

Gumersindo filed a motion for execution before the Office of the Barangay
captain who subsequently issued a certification to file action.
On March 21, 1997, respondent Gumersindo De Guzman filed an extra
judicial foreclosure of the real estate mortgage pursuant to the parties
agreement set forth in the real estate mortgage dated March 21, 1994.
On May 23, 1997, the mortgaged property was sold in a public auction to
respondent Gumersindo, as the highest bidder and consequently, the Sheriffs
Certificate of Sale was registered with the Registry of Deeds of Quezon City on
June 23, 1997.
On June 25, 1998, petitioner filed with the Regional Trial Court of Quezon
City, Branch 220, a complaint for annulment of Sheriffs Certificate of Sale with
prayer for the issuance of a temporary restraining order (TRO) and a writ of
preliminary injunction against private respondents, Deputy Sheriffs Marino
Cachero and Rodolfo Lescano and the Registry of Deeds of Quezon City alleging
among others alleged irregularity and lack of notice in the extra-judicial
foreclosure proceedings subject of the real estate mortgage. In the meantime, a
temporary restraining order was issued by the trial court.
On July 28, 1998, the trial court issued a writ of preliminary injunction
enjoining private respondents, the Deputy Sheriffs and the Registry of Deeds of
Quezon City from causing the issuance of a final deed of sale and consolidation of
ownership of the subject property in favor of the De Guzman spouses. The trial
court denied the motion for reconsideration filed by the de Guzman spouses.
Spouses de Guzman filed with the respondent Court of Appeals a petition for
certiorari seeking annulment of the trial courts order dated July 28, 1998 which
granted the issuance of a preliminary injunction.
On September 28, 1999, the respondent court granted the petition and
annulled the assailed writ of preliminary injunction. Teresita Idolor filed her

2
motion for reconsideration which was denied in a resolution dated February 4,
2000.
Hence this petition for review on certiorari filed by petitioner Teresita V.
Idolor. The issues raised by petitioner are: whether or not the respondent Court
of Appeals erred in ruling (I) that petitioner has no more proprietary right to the
issuance of the writ of injunction, (2) that the Kasunduang Pag-aayos did
not ipso facto result in novation of the real estate mortgage, (3) that the
Kasunduang Pag-aayos is merely a promissory note of petitioner to private
respondent spouses; and (4) that the questioned writ of preliminary injunction
was issued with grave abuse of discretion.
The core issue in this petition is whether or not the respondent Court erred in
finding that the trial court committed grave abuse of discretion in enjoining the
private and public respondents from causing the issuance of a final deed of sale
and consolidation of ownership of the subject parcel of land in favor of private
respondents.
Petitioner claims that her proprietary right over the subject parcel of land was
not yet lost since her right to redeem the subject land for a period of one year
had neither lapsed nor run as the sheriffs certificate of sale was null and void;
that petitioner and the general public have not been validly notified of the
auction sale conducted by respondent sheriffs; that the newspaper utilized in the
publication of the notice of sale was not a newspaper of general circulation.
We do not agree.
Injunction is a preservative remedy aimed at protecting substantive rights
and interests.[6] Before an injunction can be issued, it is essential that the
following requisites be present: 1) there must be a right in esse or the existence
of a right to be protected; 2) the act against which the injunction is to be
directed is a violation of such right.[7] Hence the existence of a right violated, is a
prerequisite to the granting of an injunction. Injunction is not designed to protect
contingent or future rights. Failure to establish either the existence of a clear and
positive right which should be judicially protected through the writ of injunction
or that the defendant has committed or has attempted to commit any act which
has endangered or tends to endanger the existence of said right, is a sufficient
ground for denying the injunction.[8] The controlling reason for the existence of
the judicial power to issue the writ is that the court may thereby prevent a
threatened or continuous irremediable injury to some of the parties before their
claims can be thoroughly investigated and advisedly adjudicated.[9] It is to be
resorted to only when there is a pressing necessity to avoid injurious
consequences which cannot be remedied under any standard of
[10]
compensation.
In the instant case, we agree with the respondent Court that petitioner has
no more proprietary right to speak of over the foreclosed property to entitle her

3
to the issuance of a writ of injunction. It appears that the mortgaged property
was sold in a public auction to private respondent Gumersindo on May 23, 1997
and the sheriffs certificate of sale was registered with the Registry of Deeds of
Quezon City on June 23, 1997. Petitioner had one year from the registration of
the sheriffs sale to redeem the property but she failed to exercise her right on or
before June 23, 1998, thus spouses de Guzman are now entitled to a conveyance
and possession of the foreclosed property. When petitioner filed her complaint for
annulment of sheriffs sale against private respondents with prayer for the
issuance of a writ of preliminary injunction on June 25, 1998, she failed to show
sufficient interest or title in the property sought to be protected as her right of
redemption had already expired on June 23, 1998, i.e. two (2) days before the
filing of the complaint. It is always a ground for denying injunction that the party
seeking it has insufficient title or interest to sustain it, and no claim to the
ultimate relief sought - in other words, that she shows no equity.[11] The
possibility of irreparable damage without proof of actual existing right is not a
ground for an injunction.[12]
Petitioners allegation regarding the invalidity of the sheriffs sale dwells on the
merits of the case; We cannot rule on the same considering that the matter
should be resolved during the trial on the merits.
Petitioner next contends that the execution of the Kasunduang Pag-aayos
dated September 21, 1996 between her and spouses de Guzman before the
Office of the Lupon Tagapamayapa showed the express and unequivocal
intention of the parties to novate or modify the real estate mortgage; that a
comparison of the real estate mortgage dated March 21, 1994 and the
Kasunduang Pag-aayos dated September 21, 1996 revealed the irreconciliable
incompatibility between them, i.e., that under the first agreement, the amount
due was five hundred twenty thousand (P520,000) pesos only payable by
petitioner within six (6) months, after which it shall earn interest at the legal rate
per annum and non-payment of which within the stipulated period, private
respondents have the right to extra-judicially foreclose the real estate mortgage
while under the second agreement, the amount due was one million two hundred
thirty three thousand two hundred eighty eight and 23/100 (P1,233,288.23)
inclusive of interest, payable within 90 days and in case of non payment of the
same on or before December 21, 1996, petitioner should execute a deed of sale
with right to repurchase within one year without interest; that the second
agreement Kasunduang Pag-aayos was a valid new contract as it was duly
executed by the parties and it changed the principal conditions of petitioners
original obligations. Petitioner insists that the Kasunduang Pag-aayos was not a
mere promissory note contrary to respondent courts conclusion since it was
entered by the parties before the Lupon Tagapamayapa which has the effect of a
final judgment.[13]
We are not persuaded.

4
 Novation is the extinguishment of an obligation by the substitution or change
of the obligation by a subsequent one which terminates it, either by changing its
objects or principal conditions, or by substituting a new debtor in place of the old
one, or by subrogating a third person to the rights of the creditor. [14] Under the
law, novation is never presumed. The parties to a contract must expressly agree
that they are abrogating their old contract in favor of a new one.[15] Accordingly,
it was held that no novation of a contract had occurred when the new agreement
entered into between the parties was intended to give life to the old one.[16]
A review of the Kasunduang Pag-aayos which is quoted earlier does not
support petitioners contention that it novated the real estate mortgage since the
will to novate did not appear by express agreement of the parties nor the old and
the new contracts were incompatible in all points. In fact, petitioner expressly
recognized in the Kasunduan the existence and the validity of the old obligation
where she acknowledged her long overdue account since September 20, 1994
which was secured by a real estate mortgage and asked for a ninety (90) days
grace period to settle her obligation on or before December 21, 1996 and that
upon failure to do so, she will execute a deed of sale with a right to repurchase
without interest within one year in favor of private respondents. Where the
parties to the new obligation expressly recognize the continuing existence and
validity of the old one, where, in other words, the parties expressly negated the
lapsing of the old obligation, there can be no novation.[17] We find no cogent
reason to disagree with the respondent courts pronouncement as follows:

In the present case, there exists no such express abrogation of the original
undertaking. The agreement adverted to (Annex 2 of Comment, p.75 Rollo)
executed by the parties on September 21, 1996 merely gave life to the March
21, 1994 mortgage contract which was then more than two years
overdue.Respondent acknowledged therein her total indebtedness in the sum of
P1,233,288.23 including the interests due on the unpaid mortgage loan which
amount she promised to liquidate within ninety (90) days or until December 21,
1996, failing which she also agreed to execute in favor of the mortgagee a deed
of sale of the mortgaged property for the same amount without
interest. Evidently, it was executed to facilitate easy compliance by respondent
mortgagor with her mortgage obligation. It (the September 21, 1996 agreement)
is not incompatible and can stand together with the mortgage contract of March
21, 1994.

A compromise agreement clarifying the total sum owned by a buyer with the
view that he would find it easier to comply with his obligations under the
Contract to Sell does not novate said Contract to Sell (Rillo v. Court of
Appeals, 274 SCRA 461 [1997]).

Respondent correctly argues that the compromise agreement has the force and
effect of a final judgment. That precisely is the reason why petitioner resorted to
5
the foreclosure of the mortgage on March 27, 1997, after her failure to comply
with her obligation which expired on December 21, 1996.

Reliance by private respondent upon Section 417 of the New Local Government
Code of 1991, which requires the lapse of six (6) months before the amicable
settlement may be enforced, is misplaced. The instant case deals with extra
judicial foreclosure governed by ACT No. 3135 as amended.

Notably, the provision in the Kasunduang Pag-aayos regarding the execution

of a deed of sale with right to repurchase within one year would have the same
effect as the extra-judicial foreclosure of the real estate mortgage wherein
petitioner was given one year from the registration of the sheriffs sale in the
Registry of property to redeem the property, i.e., failure to exercise the right of
redemption would entitle the purchaser to possession of the property. It is not
proper to consider an obligation novated by unimportant modifications which do
not alter its essence.[18] It bears stress that the period to pay the total amount of
petitioners indebtedness inclusive of interest amounted to P1,233,288.23 expired
on December 21, 1996 and petitioner failed to execute a deed of sale with right
to repurchase on the said date up to the time private respondents filed their
petition for extra-judicial foreclosure of real estate mortgage. The failure of
petitioner to comply with her undertaking in the kasunduan to settle her
obligation effectively delayed private respondents right to extra-judicially
foreclose the real estate mortgage which right accrued as far back as
1994. Thus, petitioner has not shown that she is entitled to the equitable relief of
injunction.
WHEREFORE, the petition is DENIED. The decision of the respondent Court
of Appeals dated September 28, 1999 is hereby AFFIRMED.
SO ORDERED.

6
 SECOND DIVISION

[A.M. No. MTJ-00-1250. February 28, 2001]

RIMEO S. GUSTILO, complainant, vs. HON. RICARDO S. REAL, SR., Presiding

Judge, 2nd Municipal Circuit Trial Court of Victorias- Manapla, Negros
Occidental, respondent.

RESOLUTION
QUISUMBING, J.:

In a verified complaint[1] dated June 15, 1997, Rimeo S. Gustilo charged

respondent Judge Ricardo S. Real, Sr., of the Municipal Circuit Trial Court of
Victorias-Manapla, Negros Occidental with gross misconduct, gross
incompetence, gross ignorance of the law, and violation of the Anti-Graft and
Corrupt Practices Act relative to Civil Case No. 703-M entitled Weddy C. Libo-on
v. Rimeo S. Gustilo, et al. for recounting of ballots of Precinct Nos. 27 and 27-A,
Barangay Punta Mesa, Manapla, Negros Occidental.
Complainant avers that he was a candidate for punong barangay of Barangay
Punta Mesa, Manapla, Negros Occidental in the May 12, 1997 elections. His lone
opponent was Weddy C. Libo-on, then the incumbent punong barangay and the
representative of the Association of Barangay Captains (ABC) to the Sangguniang
Bayan of Manapla and the Sangguniang Panlalawigan of Negros Occidental. Both
complainant and Libo-on garnered eight hundred nineteen (819) votes during the
elections, resulting in a tie. The breaking of the tie by the Board of Canvassers
was in complainants favor and he was proclaimed duly elected punong
barangay of Punta Mesa, Manapla.[2]
On May 20, 1997, his opponent filed an election protest case, docketed as
Civil Case No. 703-M, before the MCTC of Victorias-Manapla, Negros Occidental.
Libo-on sought the recounting of ballots in two precincts, preliminary prohibitory
injunction, and damages.
On May 21, 1997, respondent ordered the issuance of summons to the
parties and set the hearing on June 6, 1997.[3]
On May 27, 1997, however, Libo-on filed a motion to advance the hearing to
May 29 and 30, 1997.

7
 The next day, respondent granted Libo-ons motion. The hearing was
advanced to May 29 and 30, 1997 cancelling the hearing for June 6,
1997.[4]Complainant avers that he was not furnished a copy of this Order dated
May 28, 1997.
On May 29, 1997, respondent judge issued a temporary restraining order
(TRO) and annulled the proclamation of complainant as the duly elected punong
barangay of Punta Mesa, Manapla.[5] Complainant declares that no copy of this
Order dated May 29, 1997 was served on him. That same day, however, he was
able to secure copies of the orders of respondent dated May 28 and May 29,
1997 from the COMELEC Registrar of Manapla, Negros Occidental and the
Department of Interior and Local Government (DILG). Moreover, it was only in
the afternoon of May 29, 1997 that complainant received a copy of Libo-ons
petition in Civil Case No. 703-M and respondents Order dated May 21, 1997.
On May 30, 1997, complainant took his oath of office as punong
barangay.[6] That same day, he also filed a petition for certiorari before the
Regional Trial Court of Silay City, Negros Occidental, Branch 69 docketed as
Special Civil Action No. 1936-69.
On June 5, 1997, the RTC lifted the TRO issued by respondent and declared
as null and void the order nullifying complainants proclamation as duly
elected punong barangay.[7]
Believing that respondent could not decide Civil Case No. 703-M impartially,
complainant moved for his inhibition.
On June 11, 1997, respondent denied complainants motion for inhibition and
after hearing Libo-ons motion for permanent injunction, issued a second TRO to
maintain the status quo between the contending parties.[8]
Complainant argues that by issuing the second TRO, respondent reversed the
order of the RTC of Silay City dated June 5, 1997. He also claims that by
preventing him from assuming office, he was excluded by the DILG from
participating in the election of the Liga ng Mga Barangay on June 14, 1997.
In his Comment, respondent denied the allegations. He claimed that when
Libo-on filed his motion to advance the hearing of the prayer for injunction on
May 27, 1997 in Civil Case No. 703-M, complainant was served a copy by
registered mail as shown by the registry receipts attached to said motion.
Considering the urgency of the matter and since there was substantial
compliance with due process, he issued the Order of May 28, 1997 which
cancelled the hearing set for June 6, 1997 and advanced it to May 29 and 30,
1997.
Respondent claims that on May 29, 1997, Libo-on and his counsel appeared
but complainant did not, despite due notice. The hearing then proceeded, with
Libo-on presenting his evidence. As a result, he issued the TRO prayed for and

8
annulled complainants proclamation. Respondent admits that the Order of May
29, 1997, particularly the annulment of complainants proclamation, was outside
the jurisdiction of his court. But since the COMELEC ignored Libo-ons petition for
correction of erroneous tabulation and Libo-on had no other remedy under the
law, he was constrained to annul complainants proclamation, which from the
very beginning was illegal. He justified his action by our rulings in Bince, Jr. v.
COMELEC, 312 Phil. 316 (1995) and Tatlonghari v. COMELEC, 199 SCRA 849
(1991), which held that a faulty tabulation cannot be the basis of a valid
proclamation.
Respondent also faults the RTC of Silay City for issuing the Order dated June
5, 1997, which lifted the TRO he issued and declared void his nullification of
complainants proclamation. Respondent contends that complainant should first
have exhausted all remedies in his court before resorting to the special civil
action for certiorari with the RTC. The latter court, in turn, should have dismissed
the action for certiorari for failure to exhaust judicial remedies.
With respect to his Order of June 11, 1997, respondent explains that it was
never meant to reverse the Order of the RTC of Silay City dated June 5, 1997. He
points out that both parties in Civil Case No. 703-M were present during the
hearing after due notice. After receiving their evidence, he found that unless a
TRO was issued, Libo-on would suffer a grave injustice and irreparable injury. He
submits that absent fraud, dishonesty, or corruption, his acts, even if erroneous,
are not the subject of disciplinary action.
In its evaluation and recommendation report dated November 29, 1999, the
Office of the Court Administrator (OCA) found that respondents errors were not
honest mistakes in the performance of his duties. Rather, his actions showed a
bias in favor of Libo-on and evinced a pattern to prevent the complainant from
assuming office as the duly elected punong barangay despite his having been
proclaimed as such by the Board of Canvassers. The OCA recommends that
respondent be fined P20,000.00 and warned that a repetition of similar acts in
the future will be dealt with more severely.
Supreme Court Administrative Circular No. 20-95 provides:

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

xxx

4. With the exception of the provisions which necessarily involve multiple-sala

stations, these rules shall apply to single-sala stations especially with regard to
immediate notice to all parties of all applications for TRO.

9
 The foregoing clearly show that whenever an application for a TRO is filed,
the court may act on the application only after all parties have been notified and
heard in a summary hearing. In other words, a summary hearing may not be
dispensed with.[9] In the instant case, respondent admits that he issued the
injunctive writ sought on May 29, 1997 after receiving the applicants evidence ex
parte. His failure to abide by Administrative Circular No. 20-95 in issuing the first
TRO is grave abuse of authority, misconduct, and conduct prejudicial to the
proper administration of justice.
Worse, he compounded the infraction by annulling complainants proclamation
as the duly elected punong barangay of Punta Mesa, Manapla and prohibiting him
from assuming office. Respondent admits that his court was not vested with the
power or jurisdiction to annul the proclamation, but seeks to justify his action on
the ground that the proclamation was void ab initio. In so doing, respondent
wantonly usurped a power exclusively vested by law in the COMELEC.[10] A judge
is expected to know the jurisdictional boundaries of courts and quasi-judicial
bodies like the COMELEC as mapped out by the Constitution and statutes and to
act only within said limits. A judge who wantonly arrogates unto himself the
authority and power vested in other agencies not only acts in oppressive
disregard of the basic requirements of due process, but also creates chaos and
contributes to confusion in the administration of justice. Respondent, in
transgressing the jurisdictional demarcation lines between his court and the
COMELEC, clearly failed to realize the position that his court occupies in the
interrelation and operation of the countrys justice system. He displayed a
marked ignorance of basic laws and principles. Rule 3.01 of the Code of Judicial
Conduct provides that a judge shall be faithful to the law and maintain
professional competence. By annulling complainants proclamation as the duly
elected punong barangay, despite being aware of the fact that his court had no
power to do so, not only is respondent guilty of grave abuse of authority, he also
manifests unfaithfulness to a basic legal rule as well as injudicious conduct.
Moreover, in willfully nullifying complainants proclamation despite his courts
want of authority, respondent knowingly issued an unjust order.
Note that the RTC of Silay City corrected respondents errors by declaring null
and void his Order dated May 29, 1997. Nonetheless, he compounded his
previous errors of judgment by proceeding to hear Libo-ons motion for
permanent injunction and issuing a second TRO on June 11, 1997 on the ground
that extreme urgency and grave injustice and irreparable injury will arise if no
injunctive remedy were granted. Respondent insists that his act did not reverse
the Order of the RTC in Special Civil Action No. 1936-69, since the second TRO
he issued satisfied the notice and hearing requirements of Circular No. 20-95.
Before an injunctive writ can be issued, it is essential that the following
requisites be present: (1) there must be a right in esse or the existence of a
right to be protected; and (2) the act against which injunction to be directed is a

10
violation of such right.[11] The onus probandi is on movant to show that there
exists a right to be protected, which is directly threatened by the act sought to
be enjoined. Further, there must be a showing that the invasion of the right is
material and substantial and that there is an urgent and paramount necessity for
the writ to prevent a serious damage.[12] In this case, complainant had been duly
proclaimed as the winning candidate for punong barangay. He had taken his oath
of office. Unless his election was annulled, he was entitled to all the rights of said
office. We do not see how the complainants exercise of such rights would cause
an irreparable injury or violate the right of the losing candidate so as to justify
the issuance of a temporary restraining order to maintain the status quo. We see
no reason to disagree with the finding of the OCA that the evident purpose of the
second TRO was to prevent complainant from participating in the election of
the Liga ng mga Barangay. Respondent must be held liable for violating Rule
3.02 of the Code of Judicial Conduct which provides that, In every case, a judge
shall endeavor diligently to ascertain the facts and the applicable law unswayed
by partisan interests, public opinion, or fear of criticism.
In a similar case, a judge was fined P5,000.00 for failure to observe the
requirements of Administrative Circular No. 20-95 when he issued a TRO
enjoining a duly proclaimed barangay captain from participating in the elections
of officers of the ABC of Taft, Eastern Samar.[13] Note, however, that in the
instant case, the respondents infractions are not limited to the mere issuance of
a restraining order without conducting the summary conference required by
Administrative Circular No. 20-95. He also annulled the proclamation of the
complainant knowing very well that he had no such authority. When his first
restraining order was set aside and nullification of complainants proclamation
was declared null and void by the RTC of Silay City, a superior court, he again
issued a TRO, which showed his partiality to complainants political rival.
Respondent is thus guilty of violating Rules 3.01 and 3.02 of the Code of Judicial
Conduct; knowingly rendering an unjust order; gross ignorance of the law or
procedure; as well as bias and partiality. All of the foregoing are serious charges
under Rule 140, Section 3 of the Rules of Court. We agree with the sanction
recommended by the OCA, finding it to be in accord with Rule 140, Section 10
(A) of the Rules of Court.
WHEREFORE, this COURT finds respondent judge GUILTY of violating Rules
3.01 and 3.02 of the Code of Judicial Conduct, knowingly rendering an unjust
order, gross ignorance of the law and procedure, and bias and partiality.
Accordingly, a fine of Twenty Thousand Pesos (P20,000.00) is hereby imposed
upon respondent with a STERN WARNING that a repetition of the same or similar
acts will be dealt with more severely.
SO ORDERED.

11
 SECOND DIVISION

MICHAEL J. LAGROSAS, G.R. No. 168637

Petitioner,

- versus - Present:

QUISUMBING, J., Chairperson,

BRISTOL-MYERS SQUIBB (PHIL.), CARPIO MORALES,
INC./MEAD JOHNSON PHIL.,
TINGA,
RICHARD SMYTH as General Manager VELASCO, JR., and
and FERDIE SARFATI, as Medical BRION, JJ.
Sales Director,
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - -
-x

BRISTOL-MYERS SQUIBB (PHIL.), G.R. No. 170684

INC./MEAD JOHNSON PHIL.,
Petitioner,

- versus -

COURT OF APPEALS and MICHAEL Promulgated: J.

LAGROSAS,
Respondents. September 12, 2008
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- -x

DECISION

QUISUMBING, J.:

Before this Court are two consolidated petitions. The first petition,
docketed as G.R. No. 168637, filed by Michael J. Lagrosas, assails the
Decision[1] dated January 28, 2005 and the Resolution[2] dated June 23, 2005 of
the Court of Appeals in CA-G.R. SP No. 83885. The second petition, docketed
as G.R. No. 170684, filed by Bristol-Myers Squibb (Phil.), Inc./Mead Johnson

12
Phil., assails the Resolutions[3] dated August 12, 2005 and October 28, 2005 of
the Court of Appeals in CA-G.R. SP No. 83885.

The facts are undisputed.

Michael J. Lagrosas was employed by Bristol-Myers Squibb (Phil.),

Inc./Mead Johnson Phil. from January 6, 1997 until March 23, 2000 as Territory
Manager in its Medical Sales Force Division.[4]

On February 4, 2000, Ma. Dulcinea S. Lim, also a Territory Manager and

Lagrosas former girlfriend, attended a district meeting of territory managers at
McDonalds Alabang Town Center. After the meeting, she dined out with her
friends. She left her car at McDonalds and rode with Cesar R. Menquito, Jr. When
they returned to McDonalds, Lim saw Lagrosas car parked beside her car. Lim
told Menquito not to stop his car but Lagrosas followed them and slammed
Menquitos car thrice. Menquito and Lim alighted from the car. Lagrosas
approached them and hit Menquito with a metal steering wheel lock. When Lim
tried to intervene, Lagrosas accidentally hit her head.

Upon learning of the incident, Bristol-Myers required Lagrosas to explain in

writing why he should not be dismissed for assaulting a co-employee outside of
business hours. While the offense is not covered by the Code of Discipline for
Territory Managers, the Code states that other infractions not provided for herein
shall be penalized in the most appropriate manner at the discretion of
management.[5] In his memo, Lagrosas admitted that he accidentally hit Lim
when she tried to intervene. He explained that he did not intend to hit her as
shown by the fact that he never left the hospital until he was assured that she
was all right.[6]

In the disciplinary hearing that followed, it was established that Lagrosas

and Lim had physical confrontations prior to the incident. But Lagrosas denied
saying that he might not be able to control himself and hurt Lim and her
boyfriend if he sees them together.

13
 On March 23, 2000, Bristol-Myers dismissed Lagrosas effective
[7] [8]
immediately. Lagrosas then filed a complaint for illegal dismissal, non-
payment of vacation and sick leave benefits, 13th month pay, attorneys fees,
damages and fair market value of his Team Share Stock Option Grant.

On February 28, 2002, Labor Arbiter Renaldo O. Hernandez rendered a

Decision[9] in NLRC NCR Case No. 00-03-02821-99,declaring the dismissal
illegal. He noted that while Lagrosas committed a misconduct, it was not
connected with his work. The incident occurred outside of company premises and
office hours. He also observed that the misconduct was not directed against a co-
employee who just happened to be accidentally hit in the process. Nevertheless,
Labor Arbiter Hernandez imposed a penalty of three months suspension or
forfeiture of pay to remind Lagrosas not to be carried away by the mindless
dictates of his passion. Thus, the Arbiter ruled:

WHEREFORE, premises considered, judgment is hereby [rendered]

finding that respondent company illegally dismissed complainant
thus, ORDERING it:

1) [t]o reinstate him to his former position without loss of seniority

rights, privileges and benefits and to pay him full backwages reckoned
from [the] date of his illegal dismissal on 23 March 2000 including the
monetary value of his vacation/sick leave of 16 days per year reckoned
from July 1, 2000 until actually reinstated, less three (3) months salary as
penalty for his infraction;

2) to pay him the monetary equivalent of his accrued and unused

combined sick/vacation leaves as of June 30, 2000 of 16 days x 3 years
and 4 months 10 days x P545.45 = P23,636.16 and the present fair
market value of his Team Share stock option grant for eight hundred (800)
BMS common shares of stock listed in the New York Stock Exchange which
vested in complainant as of 01 July 1997, provisionally computed as 90%
(800 shares x US$40.00 per share x P43.20/US$ = P1,244,160.00).

3) to pay him Attorneys fee of 10% on the entire computable

amount.

All other claims of complainant are dismissed for lack of merit.

SO ORDERED.[10]

14
 On appeal, the National Labor Relations Commission (NLRC) set aside the
Decision of Labor Arbiter Hernandez in its Decision[11] dated September 24,
2002. It held that Lagrosas was validly dismissed for serious misconduct in
hitting his co-employee and another person with a metal steering wheel lock. The
gravity and seriousness of his misconduct is clear from the fact that he
deliberately waited for Lim and Menquito to return to McDonalds. The NLRC also
ruled that the misconduct was committed in connection with his duty as Territory
Manager since it occurred immediately after the district meeting of territory
managers.

Lagrosas moved for reconsideration. On May 7, 2003, the NLRC issued a

Resolution[12] reversing its earlier ruling. It ratiocinated that the incident was not
work-related since it occurred only after the district meeting of territory
managers. It emphasized that for a serious misconduct to merit dismissal, it
must be connected with the employees work. The dispositive portion of the
Resolution states:

WHEREFORE, premises considered, We find this time no reason to

alter the Labor Arbiters Decision of February 28, 2002 and hereby affirm
the same in toto. We vacate our previous Decision of September 24, 2002.

SO ORDERED.[13]

Bristol-Myers filed a motion for reconsideration which the NLRC denied in

an Order dated February 4, 2004 in NLRC NCR Case No. 00-03-02821-99 (NLRC
NCR CA No. 031646-02).[14] Later, Labor Arbiter Hernandez issued a writ of
execution.[15]Notices of garnishment were then served upon the Philippine British
Assurance Co., Inc. for the supersedeas bond posted by Bristol-Myers and the
Bank of the Philippine Islands for the balance of the judgment award.[16]

Bristol-Myers moved to quash the writ of execution contending that it

timely filed a petition for certiorari with the Court of Appeals. The appellate court
gave due course to Bristol-Myers petition and issued a temporary restraining
order (TRO)[17]enjoining the enforcement of the writ of execution and notices of
garnishment. Upon the expiration of the TRO, the appellate court issued a writ of
preliminary injunction dated September 17, 2004.[18]
15
 Bristol-Myers then moved to discharge and release the TRO cash bond. It
argued that since it has posted an injunction cash bond, the TRO cash bond
should be legally discharged and released.

On January 28, 2005, the appellate court rendered the following Decision:

WHEREFORE, the petition is GRANTED. The Resolution of May 7,

2003 and the Order of February 4, 2004 in NLRC NCR Case No. [00-03-
02821-99] (NLRC NCR CA No. [031646-02]), are REVERSED and SET
ASIDE. The public respondent NLRCs Decision dated September 24, 2002
which reversed the Labor Arbiters decision and in effect sustained the
legality of the private respondents termination and the dismissal of his
claim for the fair market value of the [Team Share] stock option grant
is REINSTATEDand AFFIRMED, with MODIFICATION that the petitioner
shall pay the private respondent the monetary equivalent of his accrued
and unused combined sick/vacation leave plus ten (10%) percent thereof,
as attorneys fees. The injunction bond and the TRO bond previously posted
by the petitioner are DISCHARGED.

SO ORDERED.[19]

The appellate court considered the misconduct as having been committed

in connection with Lagrosas duty as Territory Manager since it occurred
immediately after the district meeting of territory managers. It also held that the
gravity and seriousness of the misconduct cannot be denied. Lagrosas employed
such a degree of violence that caused damage not only to Menquitos car but also
physical injuries to Lim and Menquito.

Lagrosas filed a motion for reconsideration which the appellate court

denied.

In the meantime, Bristol-Myers moved to release the TRO cash bond and
injunction cash bond in view of the Decision dated January 28, 2005. On August
12, 2005, the appellate court denied the motion as premature since the decision
is not yet final and executory due to Lagrosas appeal to this Court.[20]

Bristol-Myers filed a motion for reconsideration. On October 28, 2005, the

appellate court resolved:
16
 WHEREFORE, the petitioners Motion [f]or
Reconsideration dated September 6, 2005 is PARTIALLY GRANTED and
the Resolution of August 12, 2005 is RECONSIDERED and SET
ASIDE. The temporary restraining order cash bond in the amount of SIX
HUNDRED THOUSAND PESOS (P600,000.00) which was posted by the
petitioners on July 19, 2004 is ordered DISCHARGED and RELEASED to
the petitioners.

SO ORDERED.[21]

The appellate court held that upon the expiration of the TRO, the cash
bond intended for it also expired. Thus, the discharge and release of the cash
bond for the expired TRO is proper. But the appellate court disallowed the
discharge of the injunction cash bond since the writ of preliminary injunction was
issued pendente lite. Since there is a pending appeal with the Supreme Court,
the Decision dated January 28, 2005 is not yet final and executory.

Hence, the instant petitions.

In G.R. No. 168637, Lagrosas assigns the following errors:

I.
THE HONORABLE COURT OF APPEALS IN DECLARING THAT THE
TERMINATION OF EMPLOYMENT OF THE PETITIONER-APPELLANT WAS
LEGAL HAD DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN
ACCORD WITH THE LABOR LAWS AND JURISPRUDENCE AND DEPARTED
FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS,
AS TO CALL FOR THE EXERCISE OF THIS HONORABLE COURTS POWER OF
REVIEW AND/OR SUPERVISION.

II.
THE HONORABLE COURT OF APPEALS IN IMPOSING THE PENALTY OF
DISMISSAL, BEING A PENALTY TOO HARSH IN THIS CASE, DECIDED A
QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH THE LABOR
LAWS AND JURISPRUDENCE AND DEPARTED FROM THE ACCEPTED AND
USUAL COURSE OF JUDICIAL PROCEEDINGS, AS TO CALL FOR THE
EXERCISE OF THIS HONORABLE COURTS POWER OF REVIEW AND/OR
SUPERVISION.[22]

In G.R. No. 170684, Bristol-Myers raises the following issue:

17
[WHETHER OR NOT THE HONORABLE] COURT OF APPEALS COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN DISALLOWING THE RELEASE AND DISCHARGE OF
PETITIONERS INJUNCTION BOND.[23]

Simply put, the basic issues in the instant petitions are: (1) Did the Court
of Appeals err in finding the dismissal of Lagrosas legal? and (2) Did the Court of
Appeals err in disallowing the discharge and release of the injunction cash bond?

On the first issue, serious misconduct as a valid cause for the dismissal of
an employee is defined simply as improper or wrong conduct. It is a
transgression of some established and definite rule of action, a forbidden act, a
dereliction of duty, willful in character, and implies wrongful intent and not mere
error of judgment. To be serious within the meaning and intendment of the law,
the misconduct must be of such grave and aggravated character and not merely
trivial or unimportant. However serious such misconduct, it must, nevertheless,
be in connection with the employees work to constitute just cause for his
separation. The act complained of must be related to the performance of the
employees duties such as would show him to be unfit to continue working for the
employer.[24]

Thus, for misconduct or improper behavior to be a just cause for dismissal,

it (a) must be serious; (b) must relate to the performance of the employees
duties; and (c) must show that the employee has become unfit to continue
working for the employer.[25]

Tested against the foregoing standards, it is clear that Lagrosas was not
guilty of serious misconduct. It may be that the injury sustained by Lim was
serious since it rendered her unconscious and caused her to suffer cerebral
contusion that necessitated hospitalization for several days. But we fail to see
how such misconduct could be characterized as work-related and reflective of
Lagrosas unfitness to continue working for Bristol-Myers.

Although we have recognized that fighting within company premises may

constitute serious misconduct, we have also held that not every fight within

18
company premises in which an employee is involved would automatically warrant
dismissal from service.[26] More so, in this case where the incident occurred
outside of company premises and office hours and not intentionally directed
against a co-employee, as hereafter explained.

First, the incident occurred outside of company premises and after office
hours since the district meeting of territory managers which Lim attended at
McDonalds had long been finished. McDonalds may be considered an extension of
Bristol-Myers office and any business conducted therein as within office hours,
but the moment the district meeting was concluded, that ceased too. When Lim
dined with her friends, it was no longer part of the district meeting and
considered official time. Thus, when Lagrosas assaulted Lim and Menquito upon
their return, it was no longer within company premises and during office
hours. Second, Bristol-Myers itself admitted that Lagrosas intended to hit
Menquito only. In the Memorandum[27] dated March 23, 2000, it was stated that
You got out from your car holding an umbrella steering wheel lock and proceeded
to hit Mr. Menquito. Dulce tried to intervene, but you accidentally hit her on the
head, knocking her unconscious.[28] Indeed, the misconduct was not directed
against a co-employee who unfortunately got hit in the process. Third, Lagrosas
was not performing official work at the time of the incident.He was not even a
participant in the district meeting. Hence, we fail to see how his action could
have reflected his unfitness to continue working for Bristol-Myers.

In light of Bristol-Myers failure to adduce substantial evidence to prove that

Lagrosas was guilty of serious misconduct, it cannot use this ground to justify his
dismissal. Thus, the dismissal of Lagrosas employment was without factual and
legal basis.

On the second issue, it is settled that the purpose of a preliminary

injunction is to prevent threatened or continuous irremediable injury to some of
the parties before their claims can be thoroughly studied and adjudicated. Its
sole aim is to preserve the status quo until the merits of the case can be heard
fully.[29]

19
 A preliminary injunction may be granted only when, among other things,
the applicant, not explicitly exempted, files with the court where the action or
proceeding is pending, a bond executed to the party or person enjoined, in an
amount to be fixed by the court, to the effect that the applicant will pay such
party or person all damages which he may sustain by reason of the injunction or
temporary restraining order if the court should finally decide that the applicant
was not entitled thereto. Upon approval of the requisite bond, a writ of
preliminary injunction shall be issued.[30]

The injunction bond is intended as a security for damages in case it is

finally decided that the injunction ought not to have been granted. Its principal
purpose is to protect the enjoined party against loss or damage by reason of the
injunction, and the bond is usually conditioned accordingly.[31]

In this case, the Court of Appeals issued the writ of preliminary injunction
to enjoin the implementation of the writ of execution and notices of garnishment
pending final resolution of this case or unless the [w]rit is sooner lifted by the
Court.[32]

By its Decision dated January 28, 2005, the appellate court disposed of the
case by granting Bristol-Myers petition and reinstating the Decision
dated September 24, 2002 of the NLRC which dismissed the complaint for
dismissal. It also ordered the discharge of the TRO cash bond and injunction cash
bond. Thus, both conditions of the writ of preliminary injunction were satisfied.

Notably, the appellate court ruled that Lagrosas had no right to the
monetary awards granted by the labor arbiter and the NLRC, and that the
implementation of the writ of execution and notices of garnishment was properly
enjoined. This in effect amounted to a finding that Lagrosas did not sustain any
damage by reason of the injunction. To reiterate, the injunction bond is intended
to protect Lagrosas against loss or damage by reason of the injunction
only. Contrary to Lagrosas claim, it is not a security for the judgment award by
the labor arbiter.[33]

20
 Considering the foregoing, we hold that the appellate court erred in
disallowing the discharge and release of the injunction cash bond.

WHEREFORE, the two consolidated petitions are GRANTED. In G.R. No.

168637, filed by Michael J. Lagrosas, the Decision dated January 28, 2005, and
the Resolution dated June 23, 2005 of the Court of Appeals in CA-G.R. SP No.
83885 are REVERSED. The Resolution dated May 7, 2003, and the Order
dated February 4, 2004 of the NLRC in NLRC NCR Case No. 00-03-02821-99
(NLRC NCR CA No. 031646-02) are REINSTATED and hereby AFFIRMED.

In G.R. No. 170684, filed by Bristol-Myers Squibb (Phil.), Inc./Mead

Johnson Phil., the Resolutions dated August 12, 2005and October 28, 2005 of
the Court of Appeals in CA-G.R. SP No. 83885 are REVERSED. The injunction
cash bond in the amount of SIX HUNDRED THOUSAND PESOS (P600,000) which
was posted by Bristol-Myers Squibb (Phil.), Inc./Mead Johnson Phil.
on September 17, 2004 is hereby ordered DISCHARGED and RELEASED to it.

No pronouncement as to costs.

SO ORDERED.

21
 SECOND DIVISION

NELSON JENOSA and his son NIO

G.R. No. 172138
CARLO JENOSA, SOCORRO
CANTO and her son PATRICK Present:
CANTO, CYNTHIA APALISOK and
her daughter CYNDY CARPIO, J., Chairperson,
APALISOK, EDUARDO VARGASand NACHURA,
his son CLINT EDUARD VARGAS,PERALTA,
and NELIA DURO and her ABAD, and
son NONELL GREGORY DURO, MENDOZA, JJ.
Petitioners,

- versus -

REV. FR. JOSE RENE C.

DELARIARTE, O.S.A., in his
capacity as the incumbent Principal
of the High School Department of the
University of San Agustin, and
theUNIVERSITY OF SAN
AGUSTIN, herein represented by Promulgated:
its
incumbent President REV. FR.
MANUEL G. VERGARA, O.S.A., September 8, 2010
Respondents.

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

DECISION

CARPIO, J.:

The Case

This is a petition for review[1] of the 16 June 2005 Decision[2] and 22 March
2006[3] Resolution of the Court of Appeals in CA-G.R. SP No. 78894. In its 16
22
June 2005 Decision, the Court of Appeals granted the petition of respondents
University of San Augustin (University), represented by its incumbent President
Rev. Fr. Manuel G. Vergara, O.S.A. (University President), and Rev. Fr. Jose
Rene C. Delariarte, O.S.A. (Principal), in his capacity as the incumbent Principal
of the High School Department of the University (respondents) and ordered the
dismissal of Civil Case Nos. 03-27460 and 03-27646 for lack of jurisdiction over
the subject matter. In its 22 March 2006 Resolution, the Court of Appeals denied
the motion for reconsideration of petitioners Nelson Jenosa and his son Nio Carlo
Jenosa, Socorro Canto and her son Patrick Canto, Cynthia Apalisok and her
daughter Cyndy Apalisok, Eduardo Vargas and his son Clint Eduard Vargas, and
Nelia Duro and her son Nonell Gregory Duro (petitioners).

The Facts

On 22 November 2002, some students of the University, among them petitioners

Nio Carlo Jenosa, Patrick Canto, Cyndy Apalisok, Clint Eduard Vargas, and Nonell
Gregory Duro (petitioner students), were caught engaging in hazing outside the
school premises.The hazing incident was entered into the blotter of the Iloilo City
Police.[4]

Thereafter, dialogues and consultations were conducted among the school

authorities, the apprehended students and their parents.During the 28 November
2002 meeting, the parties agreed that, instead of the possibility of being charged
and found guilty of hazing, the students who participated in the hazing incident
as initiators, including petitioner students, would just transfer to another school,
while those who participated as neophytes would be suspended for one
month. The parents of the apprehended students, including petitioners, affixed
their signatures to the minutes of the meeting to signify their conformity.[5] In

23
view of the agreement, the University did not anymore convene the Committee
on Student Discipline (COSD) to investigate the hazing incident.

On 5 December 2002, the parents of petitioner students (petitioner parents) sent

a letter to the University President urging him not to implement the 28
November 2002 agreement.[6] According to petitioner parents, the Principal,
without convening the COSD, decided to order the immediate transfer of
petitioner students.

On 10 December 2002, petitioner parents also wrote a letter to Mrs. Ida B.

Endonila, School Division Superintendent, Department of Education (DepEd),
Iloilo City, seeking her intervention and prayed that petitioner students be
allowed to take the home study program instead of transferring to another
school.[7] The DepEd asked the University to comment on the letter.[8] The
University replied and attached the minutes of the 28 November 2002 meeting.[9]

On 3 January 2003, petitioners filed a complaint for injunction and damages

with the Regional Trial Court, Branch 29, Iloilo City (trial court) docketed as Civil
Case No. 03-27460.[10] Petitioners assailed the Principals decision to order the
immediate transfer of petitioner students as a violation of their right to due
process because the COSD was not convened.

On 5 February 2003, the trial court issued a writ of preliminary injunction and
directed respondents to admit petitioner students during the pendency of the
case.[11] The 5 February 2003 Order reads:

WHEREFORE, let [a] Writ of Preliminary Mandatory Injunction issue. The

defendants are hereby directed to allow the plaintiffs minor children to
attend their classes during the pendency of this case, without prejudice to
any disciplinary proceeding to which any or all of them may be liable.

24
SO ORDERED.[12]

Respondents filed a motion for reconsideration and asked for the dissolution of
the writ. The trial court denied respondents motion.Respondents complied but
with reservations.

On 25 March 2003, respondents filed a motion to dismiss. Respondents alleged

that the trial court had no jurisdiction over the subject matter of the case and
that petitioners were guilty of forum shopping. On 19 May 2003, the trial court
denied respondents motion. Respondents filed a motion for reconsideration.

On 21 April 2003, petitioners wrote the DepEd and asked that it direct the
University to release the report cards and other credentials of petitioner
students.[13] On 8 May 2003, the DepEd sent a letter to the University advising it
to release petitioner students report cards and other credentials if there was no
valid reason to withhold the same.[14] On 14 May 2003, the DepEd sent another
letter to the University to follow-up petitioners request.[15] On 20 May 2003, the
University replied that it could not release petitioner students report cards due to
their pending disciplinary case with the COSD.[16]

On 28 May 2003, petitioners filed another complaint for mandatory injunction

praying for the release of petitioner students report cards and other credentials
docketed as Civil Case No. 03-27646.[17]

The trial court consolidated the two cases.[18]

On 17 June 2003, the trial court issued a writ of preliminary injunction and
directed the University to release petitioner students report cards and other

25
credentials.[19] Respondents filed a motion for reconsideration. Respondents
alleged that they could not comply with the writ because of the on-going
disciplinary case against petitioner students.

On 26 June 2003, the COSD met with petitioners for a preliminary conference on
the hazing incident. On 7 July 2003, the University, through the COSD, issued its
report finding petitioner students guilty of hazing. The COSD also recommended
the exclusion of petitioner students from its rolls effective 28 November 2002.

On 14 July 2003, the trial court issued an Order denying both motions for
reconsideration.[20]

On 1 September 2003, respondents filed a special civil action for certiorari with
the Court of Appeals. Respondents insisted that the trial court had no jurisdiction
over the subject matter of Civil Case Nos. 03-27460 and 03-27646. Respondents
also alleged that petitioners were guilty of forum shopping.

The Ruling of the Court of Appeals

In its 16 June 2005 Decision, the Court of Appeals granted respondents petition
and ordered the trial court to dismiss Civil CaseNos. 03-27460 and 03-27646 for
lack of jurisdiction over the subject matter because of petitioners failure to
exhaust administrative remedies or for being premature. According to the Court
of Appeals, petitioners should have waited for the action of the DepEd or of the
University President before resorting to judicial action. The Court of Appeals
held:

26
 From the foregoing, it is clear that the court a quo committed grave
[abuse] of discretion amounting to LACK OF JURISDICTION in
INTERFERING, pre-maturely, with the exclusive and inherent authority of
educational institutions to discipline.

In directing herein petitioners [respondents in this case] to re-admit herein

private respondents [petitioners in this case] and eventually, to release the
report cards and other school credentials, prior to the action of the
President of USA and of the recommendation of the COSD, the court a quo
is guilty of improper judicial intrusion by encroaching into the exclusive
prerogative of educational institutions.[21]

Petitioners filed a motion for reconsideration.[22] In its 22 March 2006 Resolution,

the Court of Appeals denied petitioners motion for lack of merit.

The Issues

Petitioners raise the following issues:

1. Was the Court of Appeals correct in holding that Branch 29 of the Regional
Trial Court of Iloilo City in Civil Case Nos. 03-27460 and 03-27646 did not
acquire jurisdiction over the subject matter of this case for failure of petitioners
to exhaust administrative remedies?
2. Was the recommendation/report/order of the Committee on Student Discipline
dated 7 July 2003 valid, and did it justify the order of exclusion of petitioner
students retroactive to 28 November 2002?[23]
The Ruling of the Court

The petition has no merit.

Discipline in education is specifically mandated by the 1987 Constitution which

provides that all educational institutions shall teach the rights and duties of
citizenship, strengthen ethical and spiritual values, develop moral character and
27
personal discipline.[24]Schools and school administrators have the authority to
maintain school discipline[25] and the right to impose appropriate and reasonable
disciplinary measures.[26] On the other hand, students have the duty and the
responsibility to promote and maintain the peace and tranquility of the school by
observing the rules of discipline.[27]

In this case, we rule that the Principal had the authority to order the immediate
transfer of petitioner students because of the 28 November 2002
agreement.[28] Petitioner parents affixed their signatures to the minutes of the 28
November 2002 meeting and signified their conformity to transfer their children
to another school. Petitioners Socorro Canto and Nelia Duro even wrote a letter
to inform the University that they would transfer their children to another school
and requested for the pertinent papers needed for the transfer.[29] In turn, the
University did not anymore convene the COSD. The University agreed that it
would no longer conduct disciplinary proceedings and instead issue the transfer
credentials of petitioner students. Then petitioners reneged on their agreement
without any justifiable reason. Since petitioners present complaint is one for
injunction, and injunction is the strong arm of equity, petitioners must come to
court with clean hands. In University of the Philippines v. Hon. Catungal, Jr.,[30] a
case involving student misconduct, this Court ruled:

Since injunction is the strong arm of equity, he who must apply for it must
come with equity or with clean hands. This is so because among the
maxims of equity are (1) he who seeks equity must do equity, and (2) he
who comes into equity must come with clean hands. The latter is a
frequently stated maxim which is also expressed in the principle that he
who has done inequity shall not have equity. It signifies that a litigant may
be denied relief by a court of equity on the ground that his conduct has
been inequitable, unfair and dishonest, or fraudulent, or deceitful as to the
controversy in issue.[31]

28
Here, petitioners, having reneged on their agreement without any justifiable
reason, come to court with unclean hands. This Court may deny a litigant relief if
his conduct has been inequitable, unfair and dishonest as to the controversy in
issue.

Since petitioners have come to court with inequitable and unfair conduct, we
deny them relief. We uphold the validity of the 28 November 2002 agreement
and rule that the Principal had the authority to order the immediate transfer of
petitioner students based on the 28 November 2002 agreement.

WHEREFORE, we DENY the petition. We AFFIRM the 16 June 2005 Decision

and the 22 March 2006 Resolution of the Court of Appeals.

SO ORDERED.

29
 FIRST DIVISION

G.R. No. 179665 April 3, 2013

SOLID BUILDERS, INC. and MEDINA FOODS INDUSTRIES,

INC., Petitioners,
vs.
CHINA BANKING CORPORATION, Respondent.

DECISION

LEONARDO-DE CASTRO, J.:

This petition for review on certiorari1 assails the Decision2 dated April 16, 2007
and the Resolution3 dated September 18, 2007 of the Court of Appeals in CA-
G.R. SP No. 81968.

During the period from September 4, 1992 to March 27, 1996, China Banking
Corporation (CBC) granted several loans to Solid Builders, Inc. (SBI), which
amounted to ₱139,999,234.34, exclusive of interests and other charges. To
secure the loans, Medina Foods Industries, Inc. (MFII) executed in CBC’s favor
several surety agreements and contracts of real estate mortgage over parcels of
land in the Loyola Grand Villas in Quezon City and New Cubao Central in Cainta,
Rizal.4

Subsequently, SBI proposed to CBC a scheme through which SBI would sell the
mortgaged properties and share the proceeds with CBC on a 50-50 basis until
such time that the whole obligation would be fully paid. SBI also proposed that
there be partial releases of the certificates of title of the mortgaged properties
without the burden of updating interests on all loans.5

In a letter dated March 20, 2000 addressed to CBC, SBI requested the
restructuring of its loans, a reduction of interests and penalties and the
implementation of a dacion en pago of the New Cubao Central property.6

The letter reads:

March 20, 2000

CHINA BANKING CORPORATION

Dasmarinas cor. Juan Luna Sts.
Binondo, Manila

30
Attn: Mr. George Yap
Account Officer

Dear Mr. Yap,

This is to refer to our meeting held at your office last March 10, 2000.

In this regard, please allow us to call your attention on the following important
matters we have discussed:

1. With respect to the penalties, we are requesting for a reduction in the rates as
we find it onerous considering the big amount of our loan (₱218,540,648.00).
The interest together with the penalties that you are imposing is similar to the
ones being charged by private lending institutions, i.e., 4.5%/month total.

2. As I had discussed with you regarding Dacion en Pago, which you categorically
stated that it could be a possibility, we are considering putting our New Cubao
Central (NCC) on Dacion and restructuring our loan with regards to our Loyola
Grand Villas.

Considering that you had stated that our restructuring had not been finalized, we
find it timely to raise these urgent matters and possibly agree on a realistic and
workable scheme that we can incorporate on our final agreement.

Thank you and we strongly hope for your prompt consideration on our request.

Very truly yours,

V. BENITO R. SOLIVEN (Sgd.)

President7

In response, CBC sent SBI a letter dated April 17, 2000 stating that the loans
had been completely restructured effective March 1, 1999 in the amount of
₱218,540,646.00. On the aspect of interests and charges, CBC suggested the
updating of the obligation to avoid paying interests and charges.8 The relevant
portion of the letter dated April 17, 2000 reads:

First of all, to clarify, the loan’s restructuring has been finalized and completed
on 3/01/99 with the booking of the Restructured loan of ₱218,540,646. Only two
Amendments of Real Estate Mortgages remain to be registered to date. Certain
documents that we requested from your company since last year, that could
facilitate this amendment have not yet been forwarded to us until now.
Nevertheless, this does not change the fact that the restructuring of the loan has
been done with and finalized.

31
This in turn is with regards to statement[s] no. 1 & 2 of your letter, referring to
the interest rates and penalties. As per our records, the rates are actually the
prevailing bank interest rates. In addition, penalty charges are imposed in the
event of non-payment. To avoid experiencing having to pay more due to the
penalty charges, updating of obligations is necessary. Thus, we advise updating
of your obligations to avoid penalty charges. However, should you be able to
update both interest and penalty through a "one-time" payment, we shall
present your request to Senior Management for possible reduction in penalty
charges.

Concerning statement no. 3 containing your request for the possible Dacion en
Pago of your NCC properties, as was discussed already in the meeting, it is a
concern that has to be discussed with Senior Management and approved by the
Executive Committee before we can commit to you on the matter. We suggest
that your company, Solid Builders, exhaust all possibilities to sell the NCC
properties yourselves because, being a real estate company, Solid has better
ways and means of selling the properties.9

This was followed by another communication from CBC to SBI reiterating, among
others, that the loan has been restructured effective March 1, 1999 upon
issuance by SBI of promissory notes in favor of CBC. The relevant portion of that
letter dated May 19, 2000 reads:

Again, in response to your query with regards the issue of the loans
restructuring, to reiterate, the loan restructuring has been finalized and
completed on 3/01/99 with the booking of the Restructured loan of
₱231,716,646. The Restructured Loan was effective ever since the new
Promissory Note was signed on the said date.

The interest rates for the loans are actually rates booked since the new
Promissory Notes were effective.1âwphi1 Any move of changing it or "re-pricing"
the interest is only possible every 90 days from the booking date, which
represents the interest amortization payment dates. No change or "re-pricing" in
interest rates is possible since interest payment/obligations have not yet been
paid.

With regards to the possible Dacion en Pago of your NCC properties, as was
discussed already in the meeting, it is a concern that has to be discussed with
Senior Management and approved by the Executive Committee before we can
commit to you on the matter. We suggest that your company, Solid Builders,
exhaust all possibilities to sell the NCC properties yourselves because, being a
real estate company, Solid has better ways and means of selling the properties.10

32
Subsequently, in a letter dated September 18, 2000, CBC demanded SBI to
settle its outstanding account within ten days from receipt thereof. The letter
dated September 18, 2000 reads:

September 18, 2000

SOLID BUILDERS, INC.

V.V. Soliven Bldg., I
EDSA, San Juan, Metro Manila

1âwphi1

PN NUMBER O/S BALANCE DUE DATEINTEREST

PN-MK-TS-342924 PHP 89,700,000.00
03/01/2004
04/13/1999
PN-MK-TS-342931 19,350,000.00
03/01/2004
08/05/1999
PN-MK-TS-342948 35,888,000.00
03/01/2004
---------------
PN-MK-TS-342955 6,870,000.00
03/01/2004
---------------
PN-MK-TS-342962 5,533,646.00
03/01/2004
07/26/1999
PN-MK-TS-342979 21,950,000.00
03/01/2004
---------------
PN-MK-TS-342986 3,505,000.00
03/01/2004
08/09/1999
PN-MK-TS-342993 19,455,000.00
03/01/2004
---------------
PN-MK-TS-343002 4,168,000.00
03/01/2004
---------------
PN-MK-TS-343026 12,121,000.00
03/01/2004
---------------
PH₱218,540,646.00
================

Greetings!

We refer again to the balances of the abovementioned Promissory Notes

amounting to PH₱218,540,646.00 excluding interest, penalties and other charges
signed by you jointly and severally in our favor, which remains unpaid up to this
date despite repeated demands for payment.

In view of the strict regulations of Bangko Sentral ng Pilipinas on past due

accounts, we regret that we cannot hold these accounts further in abeyance.
Accordingly, we are reiterating our request that arrangements to have these

33
accounts settled within ten (10) days from receipt hereof, otherwise, we shall be
constrained to refer the matter to our lawyers for collection.

We enclose a Statement of Account as of September 30, 2000 for your reference

and guidance.

Very truly yours,

MERCEDES E. GERMAN (Sgd.)

Manager

Loans & Discounts Department – H.O.11

On October 5, 2000, claiming that the interests, penalties and charges imposed
by CBC were iniquitous and unconscionable and to enjoin CBC from initiating
foreclosure proceedings, SBI and MFII filed a Complaint "To Compel Execution of
Contract and for Performance and Damages, With Prayer for Writ of Preliminary
Injunction and Ex-Parte Temporary Restraining Order" in the Regional Trial Court
(RTC) of Pasig City. The case was docketed as Civil Case No. 68105 and assigned
to Branch 264.12

In support of their application for the issuance of writ of preliminary injunction,

SBI and MFII alleged:

IV. APPLICATION FOR PRELIMINARY INJUNCTION WITH EX- PARTE TEMPORARY

RESTRAINING ORDER

A. GROUNDS FOR PRELIMINARY INJUNCTION

1. That SBI and MFII are entitled to the reliefs demanded, among which is
enjoining/restraining the commission of the acts complained of, the continuance
of which will work injustice to the plaintiffs; that such acts are in violation of the
rights of plaintiffs and, if not enjoined/restrained, will render the judgment
sought herein ineffectual.

2. That under the circumstances, it is necessary to require, through preliminary

injunction, CBC to refrain from immediately enforcing its letters dated April 17,
2000 and May 19, 2000 and September 18, 2000 during the pendency of this
complaint, and

3. That SBI and MFII submit that they are exempt from filing of a bond
considering that the letters dated April 17, 2000, May 19, 2000 and September
18, 2000 are a patent nullity, and in the event they are not, they are willing to

34
post such bond this Honorable Court may determine and under the conditions
required by Section 4, Rule 58.13

In its Answer and Opposition to the issuance of the writ of preliminary injunction,
CBC alleged that to implement the agreed restructuring of the loan, SBI executed
ten promissory notes stipulating that the interest rate shall be at 18.5% per
annum. For its part, MFII executed third party real estate mortgage over its
properties in favor of CBC to secure the payment of SBI’s restructured loan. As
SBI was delinquent in the payment of the principal as well as the interest
thereon, CBC demanded settlement of SBI’s account.14

After hearing the parties, the trial court issued an Order dated December 14,
2000 granting the application of SBI and MFII for the issuance of a writ of
preliminary injunction. The trial court held that SBI and MFII were able to
sufficiently comply with the requisites for the issuance of an injunctive writ:

It is well-settled that to be entitled to an injunctive writ, a party must show that:

(1) the invasion of right sought to be protected is material and substantial; (2)
the right of complainant is clear and unmistakable; and, (3) there is an urgent
and paramount necessity for the writ to prevent serious damage.

The Court opines that the above-mentioned requisites have been sufficiently
shown by plaintiffs in this case, accordingly, a writ of preliminary injunction is in
order.

The three subject letters, particularly the letter dated September 18, 2000,
indicate that the promissory notes executed by Benito Soliven as President of
plaintiff SBI amounted to ₱218,540,646.00, excluding interest, penalties and
other charges remained unpaid, and demand that the account be settled within
ten days, else defendant bank shall refer the latter to its lawyers for collection.

The message in the letter is clear: If the account is not settled within the grace
period, defendant bank will resort to foreclosure of mortgage on the subject
properties.

The actual or imminent damage to plaintiffs is likewise clear. Considering the

number of parcels of land and area involved, if these are foreclosed by defendant
bank, plaintiffs’ properties and source of income will be effectively diminished,
possibly to the point of closure.

The only issue remaining is whether or not plaintiffs have the right to ask for an
injunctive writ in order to prevent defendant bank from taking over their
properties.

35
Plaintiffs argued that the interest and penalties charged them in the subject
letters and attached statements of account increased during a seven-month
period to an amount they described as "onerous", "usurious" ad "greedy".

They likewise asserted that there were on-going talks between officers of the
corporations involved to treat or restructure the contracts to a dacion en pago,
as there was a proposed plan of action by representatives of plaintiffs during the
meetings.

Defendant, on the other hand, sought to explain the increase in the interest as
contained in the promissory notes which were voluntarily and willingly signed by
Soliven, therefore, binding on plaintiffs and that the proposed plan of action is
merely an oral contract still in the negotiation stage and not binding.

The condition on the interest payments as contained in the promissory notes are
as follows:

"Interest for the first quarter shall be @ 18.5% P.A. Thereafter, it shall be
payable quarterly in arrears based on three months average rate."

In its Memorandum, defendant bank tried to show that the questioned increase
in the interests was merely in compliance with the above condition. To this Court,
the explanation is insufficient. A more detailed rationalization is required to
convince the court of the fairness of the increase in interests and penalties.

However, the coming explanation may probably be heard only during trial on the
merits, and by then this pending incident or the entire case, may already be
moot and academic if the injunctive writ is not issued.15

The dispositive portion of the trial court’s Order dated December 14, 2000 reads:

WHEREFORE, premises considered, the application for issuance of writ of

preliminary injunction is GRANTED.

Defendant CHINA BANKING CORPORATION, its representatives, agents and all

persons working in its behalf are hereby enjoined from enforcing the contents of
its letters to plaintiffs dated April 17, 2000, May 19, 2000 and September 18,
2000, particularly the bank’s legal department or other counsel commencing
collection proceedings against plaintiffs in the amount stated in the letters and
statements of account.

The Writ of Preliminary Injunction shall be issued upon plaintiffs’ posting of a

bond executed to defendant in the amount of Two Million Pesos (₱2,000,000.00)
to the effect [that] the plaintiffs will pay defendant all damages which the latter

36
may sustain by reason of the injunction if it be ultimately decided that the
injunction is unwarranted.16

CBC sought reconsideration but the trial court denied it in an Order17 dated
December 10, 2001.

Subsequently, CBC filed a "Motion to Dissolve Injunction Order" but this was
denied in an Order18 dated November 10, 2003. The trial court ruled that the
motion was in the nature of a mere belated second motion for reconsideration of
the Order dated December 14, 2000. It also declared that CBC failed to
substantiate its prayer for the dissolution of the injunctive writ.

Aggrieved, CBC filed a Petition for Certiorari docketed as CA-G.R. SP No. 81968
in the Court of Appeals where it claimed that the Orders dated December 14,
2000 (granting the application of petitioners SBI and MFII for the issuance of writ
of preliminary injunction), December 10, 2001 (denying reconsideration of the
order dated December 14, 2000), and November 10, 2003 (denying the CBC’s
motion to dissolve injunction order) were all issued with grave abuse of
discretion amounting to lack of jurisdiction.19

In a Decision dated April 16, 2007, the Court of Appeals found that, on its face,
the trial court’s Order dated December 14, 2000 granting the application of SBI
and MFII for the issuance of a writ of preliminary injunction had no basis as there
were no findings of fact or law which would indicate the existence of any of the
requisites for the grant of an injunctive writ. It appeared to the Court of Appeals
that, in ordering the issuance of a writ of injunction, the trial court simply relied
on the imposition by CBC of the interest rates to the loans obtained by SBI and
MFII. According to the Court of Appeals, however, the records do not reveal a
clear and unmistakable right on the part of SBI and MFII that would entitle them
to the protection of a writ of preliminary injunction. Thus, the Court of Appeals
granted the petition of CBC, set aside the Orders dated December 14, 2000,
December 10, 2001, and November 10, 2003 and dissolved the injunctive writ
issued by the RTC of Pasig City.20

SBI and MFII filed a motion for reconsideration but it was denied by the Court of
Appeals in a Resolution dated September 18, 2007.

Hence, this petition.

SBI and MFII assert that the Decision dated April 16, 2007 of the Court of
Appeals is legally infirm as its conclusions are contrary to the judicial admissions
of CBC. They allege that, in its Answer, CBC admitted paragraphs 25 and 26 of
the Complaint regarding the interests and charges amounting to ₱35,093,980.14
and ₱80,614,525.15, respectively, which constituted more than 50% of the total

37
obligation of ₱334,249,151.29 as of February 15, 2000. For SBI and MFII, CBC’s
admission of paragraphs 25 and 26 of the Complaint is an admission that the
interest rate imposed by CBC is usurious, exorbitant and confiscatory. Thus,
when the Court of Appeals granted the petition of CBC and ordered the lifting of
the writ of preliminary injunction it effectively disposed of the main case, Civil
Case No. 68105, without trial on the merits and rendered moot and academic as
it enabled CBC to foreclose on the mortgages despite the usurious, exorbitant
and confiscatory interest rates.21

SBI and MFII also claim that the Court of Appeals either overlooked or
disregarded undisputed and admitted facts which, if properly considered, would
have called for the maintenance and preservation of the preliminary injunction
issued by the trial court. They argue that the Court of Appeals did not even
consider Article 1229 of the Civil Code which provides:

Art. 1229. The judge shall equitably reduce the penalty when the principal
obligation has been partly or irregularly complied with by the debtor. Even if
there has been no performance, the penalty may also be reduced by the courts if
it is iniquitous or unconscionable.

For SBI and MFII, the failure of the Court of Appeals to take into account Article
1229 of the Civil Code and its act of lifting the preliminary injunction "would
definitely pave the way for CBC’s unbridled imposition of illegal rates of interest
and immediate foreclosure" of the properties of SBI and MFII "without the benefit
of a full blown trial."22

For its part, CBC assails the petition contending that it is not allowed under Rule
45 of the Rules of Court because it simply raises issues of fact and not issues of
law. CBC further asserts that the Decision of the Court of Appeals is an exercise
of sound judicial discretion as it is in accord with the law and the applicable
provisions of this Court.23

The petition fails.

This Court has recently reiterated the general principles in issuing a writ of
preliminary injunction in Palm Tree Estates, Inc. v. Philippine National Bank24:

A preliminary injunction is an order granted at any stage of an action prior to

judgment of final order, requiring a party, court, agency, or person to refrain
from a particular act or acts. It is a preservative remedy to ensure the protection
of a party’s substantive rights or interests pending the final judgment in the
principal action. A plea for an injunctive writ lies upon the existence of a claimed
emergency or extraordinary situation which should be avoided for otherwise, the

38
outcome of a litigation would be useless as far as the party applying for the writ
is concerned.

At times referred to as the "Strong Arm of Equity," we have consistently ruled

that there is no power the exercise of which is more delicate and which calls for
greater circumspection than the issuance of an injunction. It should only be
extended in cases of great injury where courts of law cannot afford an adequate
or commensurate remedy in damages; "in cases of extreme urgency; where the
right is very clear; where considerations of relative inconvenience bear strongly
in complainant’s favor; where there is a willful and unlawful invasion of plaintiff’s
right against his protest and remonstrance, the injury being a continuing one,
and where the effect of the mandatory injunction is rather to reestablish and
maintain a preexisting continuing relation between the parties, recently and
arbitrarily interrupted by the defendant, than to establish a new relation."

A writ of preliminary injunction is an extraordinary event which must be granted

only in the face of actual and existing substantial rights. The duty of the court
taking cognizance of a prayer for a writ of preliminary injunction is to determine
whether the requisites necessary for the grant of an injunction are present in the
case before it.25 In this connection, a writ of preliminary injunction is issued to
preserve the status quo ante, upon the applicant’s showing of two important
requisite conditions, namely: (1) the right to be protected exists prima facie, and
(2) the acts sought to be enjoined are violative of that right. It must be proven
that the violation sought to be prevented would cause an irreparable injury.26

Here, SBI and MFII basically claim a right to have their mortgaged properties
shielded from foreclosure by CBC on the ground that the interest rate and
penalty charges imposed by CBC on the loans availed of by SBI are iniquitous
and unconscionable. In particular, SBI and MFII assert:

There is therefore an urgent necessity for the issuance of a writ of preliminary

injunction or at least a status quo [order], otherwise, respondent bank will
definitely foreclose petitioners’ properties without awaiting the trial of the main
case on the merits, with said usurious and confiscatory rates of interest as
basis.27

and

There is therefore no legal justification for the Honorable Court of Appeals to

lift/dissolve the injunction issued by the trial court, otherwise, respondent bank –
on the basis of this illegal imposition of interest – can already foreclose the
properties of petitioners and render the whole case (sans trial on the merits)
moot and academic.28

39
On this matter, the Order dated December 14, 2000 of the trial court
enumerates as the first argument raised by SBI and MFII in support of their
application for the issuance of a writ of preliminary injunction:

1. Their rights basically are for the protection of their properties put up as
collateral for the loans extended by defendant bank to them.29

As debtor-mortgagors, however, SBI and MFII do not have a right to prevent the
creditor-mortgagee CBC from foreclosing on the mortgaged properties simply on
the basis of alleged "usurious, exorbitant and confiscatory rate of
interest."30 First, assuming that the interest rate agreed upon by the parties is
usurious, the nullity of the stipulation of usurious interest does not affect the
lender’s right to recover the principal loan, nor affect the other terms
thereof.31 Thus, in a usurious loan with mortgage, the right to foreclose the
mortgage subsists, and this right can be exercised by the creditor upon failure by
the debtor to pay the debt due.32

Second, even the Order dated December 14, 2000 of the trial court, which
granted the application for the issuance of a writ of preliminary injunction,
recognizes that the parties still have to be heard on the alleged lack of "fairness
of the increase in interests and penalties" during the trial on the merits.33 Thus,
the basis of the right claimed by SBI and MFII remains to be controversial or
disputable as there is still a need to determine whether or not, upon
consideration of the various circumstances surrounding the agreement of the
parties, the interest rates and penalty charges are unconscionable. Therefore,
such claimed right cannot be considered clear, actual and subsisting. In the
absence of a clear legal right, the issuance of the injunctive writ constitutes
grave abuse of discretion.34

The Order dated December 10, 2001 also shows the reasoning of the trial court
which betrays that its grant of the application of SBI and MFII for the issuance of
a writ of preliminary injunction was not based on a clear legal right. Said the trial
court:

It was likewise shown that plaintiffs SBI and MFII had the clear right and urgency
to ask for injunction because of the issue of validity of the increase in the amount
of the loan obligation.35 (Emphasis supplied.)

At most, the above finding of the trial court that the validity of the increase in
the amount of the loan obligation is in issue simply amounted to a finding that
the rights of SBI and MFII vis-à-vis that of CBC are disputed and debatable. In
such a case where the complainant-movant’s right is doubtful or disputed, the
issuance of an injunctive writ is not proper.36

40
Even assuming that SBI and MFII are correct in claiming their supposed right, it
nonetheless disintegrates in the face of the ten promissory notes in the total
amount of ₱218,540,648.00, exclusive of interest and penalties, issued by SBI in
favor of CBC on March 1, 1999 which until now remain unpaid despite the
maturity of the said notes on March 1, 2004 and CBC’s repeated demands for
payment.37 Foreclosure is but a necessary consequence of nonpayment of
mortgage indebtedness.38 As this Court held in Equitable PCI Bank, Inc. v. OJ-
Mark Trading, Inc.39:

Where the parties stipulated in their credit agreements, mortgage contracts and
promissory notes that the mortgagee is authorized to foreclose the mortgaged
properties in case of default by the mortgagors, the mortgagee has a clear right
to foreclosure in case of default, making the issuance of a Writ of Preliminary
Injunction improper. x x x. (Citation omitted.)

In addition, the default of SBI and MFII to pay the mortgage indebtedness
disqualifies them from availing of the equitable relief that is the injunctive writ.
In particular, SBI and MFII have stated in their Complaint that they have made
various requests to CBC for restructuring of the loan.40 The trial court’s Order
dated December 14, 2000 also found that SBI wrote several letters to CBC
"requesting, among others, for a reduction of interests and penalties and
restructuring of the loan."41 A debtor’s various and constant requests for
deferment of payment and restructuring of loan, without actually paying the
amount due, are clear indications that said debtor was unable to settle his
obligation.42 SBI’s default or failure to settle its obligation is a breach of
contractual obligation which tainted its hands and disqualified it from availing of
the equitable remedy of preliminary injunction.

As SBI is not entitled to the issuance of a writ of preliminary injunction, so is

MFII. The accessory follows the principal. The accessory obligation of MFII as
accommodation mortgagor and surety is tied to SBI’s principal obligation to CBC
and arises only in the event of SBI’s default.

Thus, MFII’s interest in the issuance of the writ of preliminary injunction is

necessarily prejudiced by SBI’s wrongful conduct and breach of contract.

Even Article 1229 of the Civil Code, which SBI and MFII invoke, works against
them. Under that provision, the equitable reduction of the penalty stipulated by
the parties in their contract will be based on a finding by the court that such
penalty is iniquitous or unconscionable. Here, the trial court has not yet made a
ruling as to whether the penalty agreed upon by CBC with SBI and MFII is
unconscionable. Such finding will be made by the trial court only after it has
heard both parties and weighed their respective evidence in light of all relevant

41
circumstances. Hence, for SBI and MFII to claim any right or benefit under that
provision at this point is premature.

As no clear right that warrants the extraordinary protection of an injunctive writ

has been shown by SBI and MFII to exist in their favor, the first requirement for
the grant of a preliminary injunction has not been satisfied. In the absence of
any requisite, and where facts are shown to be wanting in bringing the matter
within the conditions for its issuance, the ancillary writ of injunction must be
struck down for having been rendered in grave abuse of discretion.43 Thus, the
Court of Appeals did not err when it granted the petition for certiorari of CBC and
ordered the dissolution of the writ of preliminary injunction issued by the trial
court.

Neither has there been a showing of irreparable injury. An injury is considered

irreparable if it is of such constant and frequent recurrence that no fair or
reasonable redress can be had therefor in a court of law, or where there is no
standard by which their amount can be measured with reasonable accuracy, that
is, it is not susceptible of mathematical computation. The provisional remedy of
preliminary injunction may only be resorted to when there is a pressing necessity
to avoid injurious consequences which cannot be remedied under any standard of
compensation.44

In the first place, any injury that SBI and MFII may suffer in case of foreclosure
of the mortgaged properties will be purely monetary and compensable by an
appropriate judgment in a proper case against CBC. Moreover, where there is a
valid cause to foreclose on the mortgages, it cannot be correctly claimed that the
irreparable damage sought to be prevented by the application for preliminary
injunction is the loss of the mortgaged properties to auction sale.45 The alleged
entitlement of SBI and MFII to the "protection of their properties put up as
collateral for the loans" they procured from CBC is not the kind of irreparable
injury contemplated by law. Foreclosure of mortgaged property is not an
irreparable damage that will merit for the debtor-mortgagor the extraordinary
provisional remedy of preliminary injunction. As this Court stated in Philippine
National Bank v. Castalloy Technology Corporation46:

All is not lost for defaulting mortgagors whose properties were foreclosed by
creditors-mortgagees. The respondents will not be deprived outrightly of their
property, given the right of redemption granted to them under the law.
Moreover, in extrajudicial foreclosures, mortgagors have the right to receive any
surplus in the selling price. Thus, if the mortgagee is retaining more of the
proceeds of the sale than he is entitled to, this fact alone will not affect the
validity of the sale but will give the mortgagor a cause of action to recover such
surplus. (Citation omitted.)

42
The En Banc Resolution in A.M. No. 99-10-05-0, Re: Procedure in Extrajudicial or Judicial
Foreclosure of Real Estate Mortgages, further stacks the odds against SBI and MFII.
Issued on February 20, 2007, or some two months before the Court of Appeals
promulgated its decision in this case, the resolution embodies the additional guidelines
intended to aid courts in foreclosure proceedings, specifically limiting the instances, and
citing the conditions, when a writ against foreclosure of a mortgage may be issued, to
wit:

(1) No temporary restraining order or writ of preliminary injunction against the

extrajudicial foreclosure of real estate mortgage shall be issued on the allegation that
the loan secured by the mortgage has been paid or is not delinquent unless the
application is verified and supported by evidence of payment.

(2) No temporary restraining order or writ of preliminary injunction against the

extrajudicial foreclosure of real estate mortgage shall be issued on the allegation that
the interest on the loan is unconscionable, unless the debtor pays the mortgagee at
least twelve percent per annum interest on the principal obligation as stated in the
application for foreclosure sale, which shall be updated monthly while the case is
pending.

(3) Where a writ of preliminary injunction has been issued against a foreclosure of
mortgage, the disposition of the case shall be speedily resolved. To this end, the court
concerned shall submit to the Supreme Court, through the Office of the Court
Administrator, quarterly reports on the progress of the cases involving ten million pesos
and above.

(4) All requirements and restrictions prescribed for the issuance of a temporary
restraining order/writ of preliminary injunction, such as the posting of a bond, which
shall be equal to the amount of the outstanding debt, and the time limitation for its
effectivity, shall apply as well to a status quo order.47

The guidelines speak of strict exceptions and conditions.48 To reverse the decision of the
Court of Appeals and reinstate the writ of preliminary injunction issued by the trial court
will be to allow SBI and MFII to circumvent the guidelines and conditions provided by the
En Banc Resolution in A.M. No. 99-10-05-0 dated February 20, 2007 and prevent CBC
from foreclosing on the mortgaged properties based simply on the allegation that the
interest on the loan is unconscionable. This Court will not permit such a situation. What
cannot be done directly cannot be done indirectly.49

All told, the relevant circumstances in this case show that there was failure to satisfy the
requisites for the issuance of a writ of preliminary injunction. The injunctive writ issued
by the trial court should therefore be lifted and dissolved. That was how the Court of
Appeals decided. That is how it should be.

WHEREFORE, the petition is hereby DENIED.

SO ORDERED.

43
 SECOND DIVISION

G.R. No. 172909 March 5, 2014

SPOUSES SILVESTRE O. PLAZA AND ELENA Y. PLAZA, Petitioners,

vs.
GUILLERMO LUSTIVA, ELEODORA VDA. DE MARTINEZ AND VICKY
SAYSON GOLOSENO, Respondents.

DECISION

BRION, J.:

Through a petition for review on certiorari,1 filed under Rule 45 of the Rules of
Court, the petitioners, spouses Silvestre O. Plaza and Elena Y. Plaza, seek the
reversal of the decision2 dated October 24, 2005 and the Resolution3 dated April
6, 2006 of the Court of Appeals (CA) in CA-G.R. SP No. 59859.

THE FACTS

On August 28, 1997, the CA4 ruled that among the Plaza siblings, namely:
Aureliano, Emiliana, Vidal, Marciano, and Barbara, Barbara was the owner of the
subject agricultural land. The decision became final and executory and Barbara's
successors, respondents Guillermo Lustiva, Eleodora Vda. de Martinez and Vicky
Sayson Goloseno, have continued occupying the property.

On September 14, 1999, Vidal’s son and daughter-in-law, the petitioners, filed a
Complaint for Injunction, Damages, Attorney’s Fees with Prayer for the Issuance
of the Writ of Preliminary Injunction and/or Temporary Restraining Order against
the respondents and the City Government of Butuan. They prayed that the
respondents be enjoined from unlawfully and illegally threatening to take
possession of the subject property. According to the petitioners, they acquired
the land from Virginia Tuazon in 1997; Tuazon was the sole bidder and winner in
a tax delinquency sale conducted by the City of Butuan on December 27, 1996.

In their answer, the respondents pointed out that they were never delinquent in
paying the land taxes and were in fact not aware that their property had been
offered for public auction. Moreover, Tuazon, being a government employee, was
disqualified to bid in the public auction, as stated in Section 89 of the Local
Government Code of 1991.5 As Tuazon’s participation in the sale was void, she
could have not transferred ownership to the petitioners. Equally important, the
petitioners merely falsified the property tax declaration by inserting the name of

44
the petitioners’ father, making him appear as a co-owner of the auctioned land.
Armed with the falsified tax declaration, the petitioners, as heirs of their father,
fraudulently redeemed the land from Tuazon. Nonetheless, there was nothing to
redeem as the land was not sold. For these irregularities, the petitioners had no
right to the Writ of Preliminary Injunction and/or Temporary Restraining Order
prayed for against them.

THE RTC’S RULING

In its December 14, 1999 order,6 the Regional Trial Court (RTC) of Butuan City,
Branch 5, reconsidered its earlier order,7 denied the prayer for a Writ of
Preliminary Injunction, and ordered that the possession and occupation of the
land be returned to the respondents. The RTC found that the auction sale was
tainted with irregularity as the bidder was a government employee disqualified in
accordance with Section 89 of the Local Government Code of 1991. The
petitioners are not buyers in good faith either. On the contrary, they were in bad
faith for having falsified the tax declaration they redeemed the property with.

THE CA’S RULING

Through a petition for review on certiorari under Rule 65, the petitioners
challenged the RTC’s order before the CA.

While the petition for review on certiorari was pending before the CA, the
petitioners filed an action for specific performance8 against the City Government
of Butuan. According to the petitioners, they acquired possession and ownership
over the auctioned property when they redeemed it from Tuazon. The City
Government of Butuan must therefore issue them a certificate of sale.9

In its October 24, 2005 decision,10 the CA affirmed the RTC’s ruling, found the
petitioners guilty of forum shopping, dismissed the case, and referred the case to
the Court and to the Integrated Bar of the Philippines for investigation and
institution of the appropriate administrative action.11 The CA, after legal analysis,
similarly concluded that for being disqualified to bid under Section 89 of the Local
Government Code of 1991, Tuazon never obtained ownership over the property;
much less transmit any proprietary rights to the petitioners. Clearly, the
petitioners failed to establish any clear and unmistakable right enforceable by the
injunctive relief.

On April 6, 2006, the CA rejected the petitioners’ motion for reconsideration.

THE PARTIES’ ARGUMENTS

45
The petitioners filed the present petition for review on certiorari with this Court
to challenge the CA rulings. The petitioners maintain that they did not falsify the
tax declaration in acquiring the auctioned property. Moreover, assuming that
Tuazon, the sole bidder, was indeed disqualified from participating in the public
auction, Section 18112of the Local Government Code of 1991 finds application.
Applying the law, it is as if there was no bidder, for which the City Government of
Butuan was to be considered the purchaser of the land in auction. Therefore,
when the petitioners bought the land, they bought it directly from the purchaser
- City Government of Butuan - and not from Tuazon, as redeemers.

Also, the respondents may not question the validity of the public auction for
failing to deposit with the court the amount required by Section 26713 of the
Local Government Code of 1991.

Finally, the petitioners argue that they did not commit forum shopping, as the
reliefs prayed for in the present case and in the specific performance case are
not the same. In the present case, they merely impleaded the City Government
of Butuan as a nominal party to pay for the value of the land only if possession of
the land was awarded to the respondents. On the other hand, the complaint for
specific performance prayed that the City Government of Butuan execute the
necessary certificate of sale and other relevant documents pertaining to the
auction.

The respondents, for their part, reiterate the lower courts’ findings that there
could have been no legal redemption in favor of the petitioners as the highest
bidder was disqualified from bidding. Moreover, the CA correctly applied the law
in finding the petitioners guilty of forum shopping. Most importantly, the grant of
preliminary injunction lies in the sound discretion of the court and the petitioners
failed to show proof that they are entitled to it.

Meanwhile, on August 8, 2013, the RTC dismissed the main action and ordered
the petitioners to pay the respondents attorney’s fees and litigation expenses.14

THE COURT’S RULING

We resolve to deny the petition for lack of merit.

The petitioners may not

raise factual issues

The petitioners maintain that they did not falsify the tax declaration they
reimbursed the property with. According to them, the document already existed
in 1987, way before they acquired the land in 1997. Contrary likewise to the
lower courts’ finding, they did not purchase the land from Tuazon as

46
redemptioners; they directly bought the property from the City Government of
Butuan.

These factual contests are not appropriate for a petition for review on certiorari
under Rule 45. The Court is not a trier of facts.15 The Court will not revisit, re-
examine, and re-evaluate the evidence and the factual conclusions arrived at by
the lower courts.16 In the absence of compelling reasons, the Court will not
disturb the rule that factual findings of the lower tribunals are final and binding
on this Court.17

Sections 181 and 267 of the Local Government Code of 1991 are inapplicable;
these provisions do not apply to the present case

The petitioners may not invoke Section 18118 of the Local Government Code of
1991 to validate their alleged title. The law authorizes the local government unit
to purchase the auctioned property only in instances where "there is no bidder"
or "the highest bid is xxx insufficient." A disqualified bidder is not among the
authorized grounds. The local government also never undertook steps to
purchase the property under Section 181 of the Local Government Code of 1991,
presumably because it knew the invoked provision does not apply.

Neither can the Court agree with the petitioners’ stance that the respondents’
defense — the petitioners’ defective title — must fail for want of deposit to the
court the amount required by Section 267 of the Local Government Code. The
provision states:

Section 267. Action Assailing Validity of Tax Sale. - No court shall entertain any
action assailing the validity or any sale at public auction of real property or rights
therein under this Title until the taxpayer shall have deposited with the court the
amount for which the real property was sold, together with interest of two
percent (2%) per month from the date of sale to the time of the institution of the
action. The amount so deposited shall be paid to the purchaser at the auction
sale if the deed is declared invalid but it shall be returned to the depositor if the
action fails.

Neither shall any court declare a sale at public auction invalid by reason or
irregularities or informalities in the proceedings unless the substantive rights of
the delinquent owner of the real property or the person having legal interest
therein have been impaired. [underscores ours; italics supplied]

A simple reading of the title readily reveals that the provision relates to actions
for annulment of tax sales. The section likewise makes use of terms "entertain"
and "institution" to mean that the deposit requirement applies only to initiatory
actions assailing the validity of tax sales. The intent of the provision to limit the

47
deposit requirement to actions for annulment of tax sales led to the Court’s
ruling in National Housing Authority v. Iloilo City, et al.19 that the deposit
requirement is jurisdictional — a condition necessary for the court to entertain
the action:

As is apparent from a reading of the foregoing provision, a deposit equivalent to

the amount of the sale at public auction plus two percent (2%) interest per
month from the date of the sale to the time the court action is instituted is a
condition — a "prerequisite," to borrow the term used by the acknowledged
father of the Local Government Code — which must be satisfied before the court
can entertain any action assailing the validity of the public auction sale. The law,
in plain and unequivocal language, prevents the court from entertaining a suit
unless a deposit is made. xxx. Otherwise stated, the deposit is a jurisdictional
requirement the nonpayment of which warrants the failure of the action.

xxxx

Clearly, the deposit precondition is an ingenious legal device to guarantee the

satisfaction of the tax delinquency, with the local government unit keeping the
payment on the bid price no matter the final outcome of the suit to nullify the tax
sale.20

The Court would later reiterate the jurisdictional nature of the deposit in Wong v.
City of Iloilo,21 and pronounce:

In this regard, National Housing Authority v. Iloilo City holds that the deposit
required under Section 267 of the Local Government Code is a jurisdictional
requirement, the nonpayment of which warrants the dismissal of the action.
Because petitioners in this case did not make such deposit, the RTC never
acquired jurisdiction over the complaints.22

These rulings clearly render inapplicable the petitioners’ insistence that the
respondents should have made a deposit to the court. The suit filed by the
petitioners was an action for injunction and damages; the issue of nullity of the
auction was raised by the respondents themselves merely as a defense and in no
way converted the action to an action for annulment of a tax sale.

The petitioners failed to show clear

and unmistakable rights to be protected
by the writ; the present action has been
rendered moot and academic by the
dismissal of the main action

48
As the lower courts correctly found, Tuazon had no ownership to confer to the
petitioners despite the latter’s reimbursement of Tuazon’s purchase expenses.
Because they were never owners of the property, the petitioners failed to
establish entitlement to the writ of preliminary injunction. "[T]o be entitled to an
injunctive writ, the right to be protected and the violation against that right must
be shown. A writ of preliminary injunction may be issued only upon clear showing
of an actual existing right to be protected during the pendency of the principal
action. When the complainant’s right or title is doubtful or disputed, he does not
have a clear legal right and, therefore, the issuance of injunctive relief is not
proper."23

Likewise, upon the dismissal of the main case by the RTC on August 8, 2013, the
question of issuance of the writ of preliminary injunction has become moot and
academic. In Arevalo v. Planters Development Bank,24 the Court ruled that a
case becomes moot and academic when there is no more issue between the
parties or object that can be served in deciding the merits of the case. Upon the
dismissal of the main action, the question of the non-issuance of a writ of
preliminary injunction automatically died with it. A writ of preliminary injunction
is a provisional remedy; it is auxiliary, an adjunct of, and subject to the
determination of the main action. It is deemed lifted upon the dismissal of the
main case, any appeal therefrom notwithstanding.25

The petitioners are guilty

of forum shopping

We agree with the CA that the petitioners committed forum shopping when they
filed the specific performance case despite the pendency of the present case
before the CA. In the recent case of Heirs of Marcelo Sotto, etc., et al. v. Matilde
S. Palicte,26 the Court laid down the three ways forum shopping may be
committed: 1) through litis pendentia — filing multiple cases based on the same
cause of action and with the same prayer, the previous case not having been
resolved yet; 2) through res judicata — filing multiple cases based on the same
cause of action and the same prayer, the previous case having been finally
resolved; and 3) splitting of causes of action — filing multiple cases based on the
same cause of action but with different prayers — the ground to dismiss being
either litis pendentia or res judicata. "The requisites of litis pendentia are: (a) the
identity of parties, or at least such as representing the same interests in both
actions; (b) the identity of rights asserted and relief prayed for, the relief being
founded on the same facts; and (c) the identity of the two cases such that
judgment in one, regardless of which party is successful, would amount to res
judicata in the other."27

49
Noticeable among these three types of forum shopping is the identity of the
cause of action in the different cases filed. Cause of action is "the act or omission
by which a party violates the right of another."28

The cause of action in the present case (and the main case) is the petitioners’
claim of ownership of the land when they bought it, either from the City
Government of Butuan or from Tuazon. This ownership is the petitioners’ basis in
enjoining the respondents from dispossessing them of the property. On the other
hand, the specific performance case prayed that the City Government of Butuan
be ordered to issue the petitioners the certificate of sale grounded on the
petitioners’ ownership of the land when they had bought it, either from the City
Government of Butuan or from Tuazon. While it may appear that the main relief
prayed for in the present injunction case is different from what was prayed for in
the specific performance case, the cause of action which serves as the basis for
the reliefs remains the same — the petitioners’ alleged ownership of the property
after its purchase in a public auction.

Thus, the petitioners' subsequent filing of the specific performance action is

forum shopping of the third kind-splitting causes of action or filing multiple cases
based on the same cause of action, but with different prayers. As the Court has
held in the past, "there is still forum shopping even if the reliefs prayed for in the
two cases are different, so long as both cases raise substantially the same
issues."29

Similarly, the CA correctly found that the petitioners and their counsel were
guilty of forum shopping based on litis pendentia. Not only were the parties in
both cases the same insofar as the City Government of Butuan is concerned,
there was also identity of rights asserted and identity of facts alleged. The cause
of action in the specific performance case had already been ruled upon in the
present case, although it was still pending appeal before the CA. Likewise, the
prayer sought in the specific performance case-for the City Government ofButuan
to execute a deed of sale in favor of the petitioners - had been indirectly ruled
upon in the present case when the R TC declared that no certificate of sale could
be issued because there had been no valid sale.

WHEREFORE, premises considered, the Court DENIES the petition for review on
certiorari.1âwphi1 The decision dated October 24, 2005 and the resolution dated
April 6, 2006 of the Court of Appeals in CA-G.R. SP No. 59859 are hereby
AFFIRMED.

SO ORDERED.

50
G.R. No. 176702 November 13, 2013

OFFICE OF THE OMBUDSMAN, Petitioner,

vs.
MARCELINO A. DECHAVEZ, Respondent.

DECISION

BRION, J.:

The petitioner, Office of the Ombudsman (Ombudsman), seeks in this Rule 45

petition for review on certiorari1 the reversal of the Court of Appeals (CA s)
decision2 and resolution3 reversing the Ombudsman’s rulings4 that dismissed
respondent Marcelino A. Dechavez (Dechavez) from the service for dishonesty.

THE FACTS

The attendant facts are not complicated and, in fact, involve the oft-repeated
scenario in the public service workplace -a complaint by subordinate employees
against their superior officer for misconduct in office. In a twist of fortune (or
misfortune), an accident triggered the whole train of events that led to the
present case.

Dechavez was the president of the Negros State College of Agriculture (NSCA)
from 2001 until his retirement on April 9, 2006. On May 5, 2002, a Sunday,
Dechavez and his wife, Amelia M. Dechavez (Mrs. Dechavez), used the college
service Suzuki Vitara to go to Pontevedra, Negros Occidental. Dechavez drove
the vehicle himself. On their way back to the NSCA, they figured in a vehicular
accident in Himamaylan City, resulting in minor injuries to the occupants and
damage to the vehicle.

To support his claim for insurance, Dechavez executed an affidavit5 before the
Government Service Insurance System (GSIS). The GSIS subsequently granted
Dechavez's claims amounting to ₱308,000.00, while the NSCA shouldered
₱71,000.00 as its share in the vehicle's depreciation expense. The GSIS released
₱6,000.00 for Mrs. Dechavez's third-party liability claim for bodily injuries.

On November 11 2002, twenty (20) faculty and staff members of the NSCA
(complainants) asked the Commission on Audit (COA) to conduct an audit

51
investigation of NSCA’s expenditures in the May 5, 2002 vehicular accident. The
COA dismissed the complaint for lack of merit.

The complainants then sought recourse with the Ombudsman, Visayas, through a
verified complaint7 charging Dechavez with Dishonesty under Section 46(b)(l),
Chapter 6, Tile I of the Administrative Code of 1987.8

THE OMBUDSMAN S RULING

The Ombudsman dismissed Dechavez from the service with all accessory
penalties after finding him guilty.9 The Ombudsman ruled that the complainants
sufficiently established their allegations, while Dechavez's defenses had been
successfully rebutted. The motion for reconsideration that Dechavez filed was
subsequently denied.10

THE CA’S RULING

The CA examined the same pieces of evidence that the Ombudsman considered
and reversed the Ombudsman s findings.11

In complete contrast with the Ombudsman's rulings, the CA found that the
complainants failed to sufficiently show that Dechavez had deliberately lied in his
May 10, 2002 affidavit. Dechavez sufficiently proved that he went on an official
trip, based on the reasons outlined below and its reading of the evidence:

First, there was nothing wrong if Dechavez worked on a Sunday; he must, in

fact, be commended for his dedication.

Second, the Ombudsman should have accorded greater belief on the NSCA
drivers positive assertion that they were not available to drive for Mr. and Mrs.
Dechavez (as they had serviced other faculty members at that time), as against
the NSCA security guards allegation that these drivers were available then
(because they allegedly saw the drivers within the college premises on that
Sunday); speculations on the nature of the trip should not arise simply because
Dechavez personally drove the vehicle.

Third, the certifications of Mr. Larry Parroco (Pontevedra Sanggunian Bayan

Member) and Mr. Cornelio Geanga (Chair of the Education Committee and Head
Teacher of the M.H. Del Pilar Elementary School) should have persuaded the
Ombudsman that the affiants are public officials who would not lightly issue a
certification or falsely execute affidavits as they know the implications and
consequences of any falsity.

52
Fourth, and lastly the two lists of teaching instructors had been prepared by the
same person, and if the second list had indeed been questionable, Mr. Pablito
Cuizon (NSCA s Chairman for Instructions) would have not attached the second
list to his affidavit.

On February 7, 2007, the CA denied12 the motion for reconsideration filed by the
Ombudsman.

THE PARTIES ARGUMENTS

The Ombudsman argues that the guilt of Dechavez has been proven by
substantial evidence -the quantum of evidence required in administrative
proceedings. It likewise invokes its findings and posits that because they are
supported by substantial evidence, they deserve great weight and must be
accorded full respect and credit.

Dechavez counters that the present petition raises factual issues that are
improper for a petition for review on certiorari under Rule 45. He adds that the
present case has been mooted by his retirement from the service on April 9,
2006, and should properly be dismissed.

THE COURT’S RULING

The Court finds the petition meritorious.

The CA’s factual findings are conclusive exceptions

The rule that the Court will not disturb the CA' s findings of fact is not an
absolute rule that admits of no exceptions. 13 A notable exception is the
presence of conflict of findings of fact between or among the tribunals' rulings on
questions of fact. The case before us squarely falls under this exception as the
tribunals below made two critical conflicting factual findings. We are thus
compelled to undertake our own factual examination of the evidence presented.

This Court cannot be any clearer in laying down the rule on the quaritum of
evidence to support an administrative ruling: In administrative cases, substantial
evidence is required to support any findings. Substantial evidence is such
relevant evidence as a reasonable mind may accept as adequate to support a
conclusion. The requirement is satisfied where there is reasonable ground to
believe that the petitioner is guilty of the act or omission complained of, even if
the evidence might not be overwhelming."14

Our own examination of the records tells us that the Ombudsman's findings and
appreciation of the presented evidence are more in accord with reason and

53
common experience so that it successfully proved, by the required quantum of
evidence, Dechavez's dishonesty, at the same time that we find the respondent's
reading of the evidence to be stretched to the point of breaking, as our analysis
below shows.

We start with our agreement with the CA's view that the Ombudsman's finding –
that Dechavez was not on official business on May 5, 2002 because it was a
Sunday (a non-working day) -by itself, is not sufficient basis for the conclusion
that Dechavez's business on that day was not official. We, nevertheless,
examined the other surrounding facts and are convinced that the spouses
Dechavez's trip was a personal one; thus, Dechavez had been dishonest when he
made the claim that he went on official business. The dishonesty, of course, did
not arise simply from the nature of the trip, but from the claim for insurance that
brought the spouses a substantial sum. First, Dechavez alleged that the trip was
urgent, and there were no drivers available; hence, he drove the vehicle himself.
He added that the fact that the trip ticket was accomplished on May 5, 2002, a
Sunday, and that it was typewritten, are not material as he was not prohibited
from driving the car himself.

We do not agree with Dechavez's claim about the immateriality of the trip ticket;
it was presented as evidence and, as such, carries implications far beyond what
Dechavez claims. The fact alone that the ticket, for a trip that was allegedly
urgent, was typewritten already speaks volumes about the integrity of this piece
of evidence. We agree with the Ombudsman, based on common experience and
probability, that had the trip really been urgent and had the trip ticket been
accomplished on the date of the trip, May 5, 2002, it would have been
handwritten. The trip ticket, however, was typewritten, indicating that it had
been prepared ahead of time, or thereafter, not on that Sunday immediately
before leaving on an urgent trip. In fact, if it had been prepared ahead of time,
then the trip could not have been urgent as there was advance planning
involved.

In other words, if the trip ticket had been prepared ahead of time, the trip should
have been scheduled ahead of time, and necessary arrangements should have
been made for the availability of a driver. Therefore, it was unlikely that
Dechavez would have known that no driver would be available for him on the
date of the trip.

On another note, if the trip ticket had been prepared after the trip, the
Ombudsman was correct in observing that Dechavez had no authority to drive
the vehicle in the absence of the requisite trip ticket.15 Worse, if it had been
prepared after the trip after an accident had intervened, then there had been a.
conscious attempt to sanitize the incidents of the trip. It is at this point where

54
the claim for insurance becomes material; the trip ticket removed all questions
about the regularity and official character of the trip.

After examining the testimonies, too, we lean in favor of the view that there
were available drivers on May 5, 2002, contrary to what Dechavez claimed. As
between the assertion of the security guards that they had seen available drivers
on the day of the trip, and the drivers' denial (and assertion that they had
serviced other faculty members at that time), the settled evidentiary rule is that
as between a positive and categorical testimony which has a ring of truth, on one
hand, and a bare denial, on the other, the former is generally held to
prevail.16 Furthermore, while Dechavez insists that the allegations of the drivers
were corroborated by the teachers they had driven for, the attestations of these
teachers remained to be hearsay: Dechavez failed to present their attestations in
evidence.

Dechavez additionally argues that the way the trip ticket was accomplished bears
no significance in these circumstances, insisting further that it is of no moment
that he drove the vehicle himself, as he was not prohibited from doing so. Read
in isolation, the Court might just have found these positions convincing. Read
with the other attendant circumstances, however, the argument becomes shaky.

If Dechavez thought that there was nothing wrong in driving the vehicle himself,
why would he indicate that the reason he drove the vehicle himself was that
there were no available drivers, and that it was urgent? Finally, if indeed it was
true that Dechavez used to perform his extension service or confer with the
NSCA's linkages during weekends, how come the trip became urgent and the
driver had not been assigned beforehand?

Second. We cannot give weight to the certification of Mr. Parroco that Dechavez
used to visit the Pontevedra District to coordinate with his office, and that
Dechavez also visited his office on May 5, 2002. We likewise disregard the
statement of Mr. Geanga that Dechavez appeared before his office on May 5,
2002. The certifications of these two witnesses were submitted only in October
2004 or two (2) years after the case was filed with the Ombudsman. The time
lag alone already renders the certifications suspect and this inconsistency has not
been satisfactorily explained. The late use of the certifications also deprived the
complainants of the opportunity to refute them and the Ombudsman the chance
to examine the affiants. As the Ombudsman observed, too, it is hard to believe
that all four (4) of them -Mr. and Mrs. Dechavez, Mr. Parroco, and Mr. Geanga -
happened to agree to work on a Sunday, a non-working day; this story simply
stretches matters beyond the point of believability in the absence of supporting
proof that this kind of arrangement has been usual among them.

55
Finally we find that Mrs. Dechavez was not on official business on May 5, 2002;
in fact, she was not teaching at that time. We note in this regard that the parties
presented two (2) conflicting instructor's summer teaching loads for 2002: the
first one, dated April 1, 2002, which did not include Mrs. Dechavez, while the
other, an undated one, included Mrs. Dechavez's name. Curiously, the same
person who prepared both documents, Mr. Cuizon, failed to explain why there
were two (2) versions of the same document. Considering the highly irregular
and undated nature of the list that contained the name of Mrs. Dechavez, we
again concur with the Ombudsman's reading that while we can presume that the
undated list had been prepared before the start of the summer classes, we can
also presume that the other list had been prepared subsequently to conveniently
suit the defense of the respondent.17

Likewise, Ms. Fe Ulpiana, a teacher at the NSCA, whose name appears in the
second document, attested that she had never been assigned to register and
assess the students' school fees, contrary to what appeared thereon. We find it
worth mentioning that Dechavez's witness, Mr. Cuizon, despite being subpoenaed
by the Ombudsman, failed to furnish the Schedule of Classes for Summer 2002
and the Actual Teaching Load for Summer 2002.18 Dechavez also failed to
provide the Ombudsman with the subpoenaed daily time record (DTR) of Mrs.
Dechavez for summer 2002 as the DTR supposedly could not be located.

All told, too many gaps simply existed in Dechavez's tale and supporting
evidence for his case to be convincing.

Retirement from the service

during the pendency of an
administrative case does not
render the case moot and academic

As early as 1975, we have upheld the rule that the jurisdiction that was Ours at
the time of the filing of the administrative complaint was not lost by the mere
fact that the respondent public official had ceased to be in office during the
pendency of his case. The Court retains its jurisdiction either to pronounce the
respondent official innocent of the charges or declare him guilty thereof. A
contrary rule would be fraught with injustices and pregnant with dreadful and
dangerous implications."19

Arguably, the cited case above is not applicable as it involved a judge who
retired four (4) days after a charge of grave misconduct, gross dishonesty and
serious inefficiency was filed against him.1âwphi1 The wisdom of citing this
authority in the present case can be found, however, in its ruling that: "If
innocent, respondent official merits vindication of his name and integrity as he
leaves the government which he served well and faithfully; if guilty, he deserves

56
to receive the corresponding censure and a penalty proper and imposable under the
situation."20

Recently, we emphasized that in a case that a public official's cessation from service
does not render moot an administrative case that was filed prior to the official's
resignation. In the 2011 case of Office of the Ombudsman v. Andutan Jr.21 we reiterated
the doctrine and laid down the line of cases supporting this principle when we ruled:

To recall, we have held in the past that a public official's resignation does not render
moot an administrative case that was filed prior to the official's resignation. In Pagano v.
Nazarro, Jr., we held that:

In Office of the Court Administrator v. Juan [A.M. No. P-03-1726, 22 July 2004, 434
SCRA 654, 658], this Court categorically ruled that the precipitate resignation of a
government employee charged with an offense punishable by dismissal from the service
does not render moot the administrative case against him. Resignation is not a way out
to evade administrative liability when facing administrative sanction. The resignation of
a public servant does not preclude the finding of any administrative liability to which he
or she shall still be answerable-[Baquerfo v. Sanchez A.M. No. P-05-1974, 6 April 2005,
455 SCRA 13, 19-20]. [Italics supplied, citation omitted]

Likewise, in Baquerfo v. Sanchez22 we held:

Cessation from office of respondent by resignation or retirement neither warrants the

dismissal of the administrative complaint filed against him while he was still in the
service nor does it render said administrative case moot and academic. The jurisdiction
that was this Court's at the time of the filing of the administrative complaint was not lost
by the mere fact that the respondent public official had ceased in office during the
pendency of his case. Respondent's resignation does not preclude the finding of any
administrative liability to which he shall still be answerable. [Emphases ours; citations
omitted]

Thus, from the strictly legal point of view and as we have held in a long line of cases,
jurisdiction, once it attaches, cannot be defeated by the acts of the respondent save only
where death intervenes and the action does not survive.

WHEREFORE, under these premises we hereby GRANT the petition for review on
certiorari Accordingly we REVERSE AND SET ASIDE the decision dated March 31, 2006
and the resolution dated February 7, 2007 of the Court of Appeals in CA-G.R. SP. No.
00673 and REINSTATE the decision dated October 29 2004 and the order dated April 6
2005 of the Office of the Ombudsman.

Costs against respondent Marcelino A. Dechavez.

SO ORDERED.

57
 SECOND DIVISION

G.R. No. 193809, March 23, 2015

SATURNINO NOVECIO, GAVINO NOVECIO, ANASTACIO GOLEZ, ABUNDIO

SOMBILON, BERTING RODRIGUEZ, MELITON
CATALAN, Petitioners, v. HON. RODRIGO F. LIM, JR., AS CHAIRMAN, HON.
LEONCIA R. DIMAGIBA AS PONENTE AND AS MEMBER AND HON.
ANGELITA A. GACUTAN AS MEMBER, FORMER TWENTY-THIRD DIVISION,
COURT OF APPEALS, MINDANAO STATION, HON. JUDGE BENJAMIN
ESTRADA, IN HIS CAPACITY AS PRESIDING JUDGE OF BRANCH 9, RTC,
MALAYBALAY, BUKIDNON, MARIA CARMEN J. TUAZON, REP. BY HER
ATTORNEY-IN-FACT, LOPE DUROTAN, Respondents.

VERGELIO ROSALES, LUIS TEQUILIO, GREGORIO PANANGIN, JOSEPH

RODRIQUEZ, EDDIE RODRIGUEZ, Petitioners, v. HON. RODRIGO F. LIM,
JR., AS CHAIRMAN, HON. LEONCIA R. DIMAGIBA AS PONENTE AND AS
MEMBER DESIGNATED AS ACTING CHAIRPERSON, PER SPECIAL ORDER
NO. 1955 DATED MARCH 23, 2015. DESIGNATED AS ACTING MEMBER
VICE ASSOCIATE JUSTICE ANTONIO T. CARPIO, PER SPECIAL ORDER NO.
1956 DATED MARCH 23, 2015. AND HON. ANGELITA A. GACUTAN AS
MEMBER, FORMER TWENTY-THIRD DIVISION, COURT OF APPEALS,
MINDANAO STATION, HON. JUDGE BENJAMIN ESTRADA, IN HIS
CAPACITY AS PRESIDING JUDGE OF BRANCH 9, RTC, MALAYBALAY,
BUKIDNON, MANUEL V. NIETO, REP. BY HIS ATTORNEY-IN-FACT, LOPE
DUROTAN, Respondent.

DECISION

BRION, J.:

We resolve the petition for certiorari1 filed under Rule 65 of the Rules of Court
with prayer for the issuance of a temporary restraining order and/or writ of
preliminary injunction. The petition assails the resolutions2 dated January 28,
2010 and July 16, 2010 of the Court of Appeals (CA) in CA-G.R.SP No. 02863.

The assailed resolutions denied the petitioners' prayer for the issuance of a
preliminary injunction pending resolution of the Petition for Review filed in the
CA. The subject of the Petition for Review was the consolidated decision of the
Regional Trial Court (RTC), Branch 9, Malaybalay, Bukidnon, which reversed the
decision of the Municipal Trial Court (MTC) of Quezon, Bukidnon. The MTC
dismissed the forcible entry cases filed by the respondents against the

58
petitioners.

On October 18, 2010, this Court issued a Temporary Restraining

Order (TRO) enjoining the RTC from executing its consolidated decision.3

The Factual Antecedents

Respondents Maria Carmen J. Tuazon and Manuel V. Nieto, represented by their

attorney-in-fact, Lope Durotan (the respondents), filed complaints4 for forcible
entry with damages against petitioners Saturnino Novecio, Gavino Novecio,
Anastacio Golez, et al. (the petitioners).5

The respondents alleged that on February 15, 2004, the petitioners, by force,
intimidation, threat, strategy and stealth, unlawfully squatted and took
possession of several portions of land with an area of eight (8) hectares,
described as Project No. 9, Block 1, LC Map No. 777. The petitioners allegedly
planted crops, erected makeshift shelters, and continue to plant and /or improve
the shelters as of the filing of the complaints for forcible entry, all without the
consent and/or against the will of the respondents.

The petitioners, on the other hand, contended that they have already been in
possession of the land for more than two years when the complaints were filed.
They maintained that they have planted the land with corn, durian, coconut,
mango, jackfruit, rambutan, etc. for their livelihood. They also alleged that they
were harassed by some men armed with shotguns and pistols on February 12,
2004.6

The petitioners further maintained that Manuel V. Nieto, father of Maria Carmen
J. Tuazon, had previous landholding in the area but the same was covered by the
Comprehensive Agrarian Reform Program (CARP) and so it was subdivided in
favor of the tenants.7

The MTC's Ruling

The MTC ruled in favor the petitioners.8

The MTC found that the respondents anchored their alleged prior possession on
the fact that they have applied title for the land as shown by a certification
authorizing land survey.9 Other than this, the respondents had no evidence of
their actual and physical possession of the land. The MTC also found that they
were not even residents of the place and never personally appeared in court
during trial.

The petitioners, on the other hand, claimed their prior possession on the fact that

59
their livelihood as fisher folks and farmers require them to live by the riverbank
where the land is located. The petitioners also asserted that they have been
occupying the land for more than two (2) years when the complaints were filed.
The MTC held that the certification issued by the barangay captain that the
petitioners are residents of the place is a very strong evidence of their prior
physical possession.10

The MTC concluded: "[a]s between a resident and a non-resident the likelihood is
that the resident has the prior physical possession because of his accessibility to
the area."11

The dispositive portion of the MTC decision reads:

WHEREFORE, by preponderance of evidence showing defendants' prior physical

possession of the land and the filing of the complaint beyond the one-year
period[,] judgment is rendered in favor of the defendants DISMISSING the
cases.12

The respondents appealed the MTC decision to the RTC.

The RTC's Ruling

The RTC reversed the MTC decision.13

The RTC held that the MTC ignored some pieces of evidence, warranting the
reversal of the decision.

The RTC ruled that the MTC should have given credence to the certification
issued by the Department of Environment and Natural Resources - Community
Environment and Natural Resources Office (DENR-CENRO) showing that the land
in litigation is the subject of an application for title and claim by the respondents.
The RTC also took judicial notice of the request for authority to conduct a survey
over the subject property, which provides that "the parcel of land herein treated
was an unsurveyed land and Manuel V. Nieto was the identified occupant and
tiller of the land."14

In view of these, the RTC ruled that the respondents were the actual occupants
of the property in litigation long before the petitioners had taken possession of
the same property. The RTC ordered the petitioners' ejectment.

The dispositive portion of the RTC decision reads:

WHEREFORE, premises considered and finding the appeal to be with merit, the
assailed Consolidated Decision dated November 7, 2005 of the Municipal Trial

60
Court of Quezon, Bukidnon is hereby reversed and set aside, finding in favor of
plaintiff-appellants, ordering the ejectment of all defendants-appellees and "John
Does" in both cases and for them to turn over peaceful possession/occupancy of
the landholding in litigation. No pronouncement as to costs.15

The Proceedings before the CA

The petitioners filed on April 30, 2009 a Petition for Review16 with the CA -
Mindanao Station, assailing the judgment of the RTC.

As the respondents sought the execution of the RTC judgment, the petitioners
filed on May 14, 2010 an Extremely Urgent Application for Writ of Preliminary
Injunction and Immediate Issuance of Temporary Restraining Order.17

On July 13, 2009, the CA issued a TRO effective for sixty (60) days. Meanwhile,
the CA directed the parties to submit their memoranda and position papers.

On January 28, 2010, the CA issued the first assailed resolution denying the
petitioners' application for preliminary injunction.18 The CA, without necessarily
resolving the petition on the merits, held that the petitioners were not entitled to
the relief demanded under Rule 58 of the Rules of Court. The petitioners' Motion
for Reconsideration was denied on July 16, 2010.

The Petition

The petitioners impute grave abuse of discretion on the CA in denying their

prayer for injunction pending resolution of the Petition for Review.

The petitioners argue that the CA denied their prayer for preliminary injunction
despite the pressing need for it to prevent grave and irreparable injury to them.
They emphasize that the records clearly show that they were the prior
possessors of the subject lot. In fact, the lot has been their home and source of
livelihood for several years prior to the institution of the forcible entry cases.

The respondents filed their comment19 on December 3, 2010. They argue that
grave abuse of discretion means such capricious and whimsical exercise of
judgment equivalent to lack of jurisdiction. Mere abuse of discretion, according to
the respondents, is not enough. The respondents maintain that the petitioners
are not entitled to the injunctive relief since they have not established a clear
legal right for its issuance.

This Court, acting on the petitioners' prayer, issued a TRO on October

18, 2010, enjoining the RTC from executing its decision. The TRO
remains effective until this day.

61
Finally, it appears that the CA has yet to issue a decision on the Petition for
Review.20

The Issue

The sole issue is whether or not the CA acted with grave abuse of discretion,
amounting to lack or excess of jurisdiction, when it denied the petitioners' prayer
for preliminary injunction.

The Court's Ruling

We find the petition meritorious.

We note at the outset that the petition merely assails the interlocutory orders of
the CA. Thus, the remedy of certiorari under Rule 65 is appropriate as the
assailed resolutions are not appealable and there is no plain, speedy or adequate
remedy in the ordinary course of law.21

Our decision in this case is without prejudice to the Petition for Review pending in
the CA. Our judgment is limited to the resolutions of the C A denying the prayer
for the issuance of a preliminary injunction.

Subject to this clarification, we find that the CA committed grave abuse of

discretion when it denied the injunctive relief prayed for by the petitioners.

There is grave abuse of discretion when an act is (1) done contrary to the
Constitution, the law or jurisprudence or (2) executed whimsically, capriciously
or arbitrarily, out of malice, ill will or personal bias.22

We quote the assailed CA resolutions. The January 28, 2010 Resolution states:

Without necessarily resolving the instant petition on the merits, We find [the]
petitioners not entitled to the relief demanded under Rule 58 of the Revised
Rules of Procedure. Thus, [the] petitioners' application for the issuance of [a]
Writ of Preliminary Injunction is hereby DENIED.

The July 16, 2010 Resolution reads:

Upon careful evaluation of [the] petitioners' Motion, We find no cogent and

compelling reasons to warrant reversal of Our Resolution. The arguments raised
by [the] petitioners were mere reiteration and already considered and passed
upon by this Court in denying [the] petitioners' application for issuance of the
Writ of Preliminary Injunction.

62
 A review of the records, however, shows that the CA ignored relevant facts that
would have justified the issuance of a preliminary injunction. Contrary to
established jurisprudence, the CA also denied the prayer for preliminary
injunction without giving the factual and legal bases for such denial.

Section 3, Rule 58 of the Rules of Court provides that a preliminary injunction

may be granted when the following have been established:

i. That the applicant is entitled to the relief demanded, and the whole or part of
such relief consist in restraining the commission or continuance of the act or acts
complained of, or in requiring the performance of an act or acts, either for a
limited period or perpetually;

ii. That the commission, continuance or non-performance of the act or acts

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

iii. That a party, court, agency or a person is doing, threatening, or is attempting to

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

A preliminary injunction is proper when the plaintiff appears to be clearly entitled

to the relief sought and has substantial interest in the right sought to be
defended. As this Court has previously ruled, "while the existence of the right
need not be conclusively established, it must be clear."23

A writ of preliminary injunction is generally based solely on initial or incomplete

evidence. Such evidence need only be a sampling intended merely to give the
court an evidence of justification for a preliminary injunction pending the decision
on the merits of the case, and is not conclusive of the principal action which has
yet to be decided.24

In a prayer for preliminary injunction, the plaintiff is not required to

submit conclusive and complete evidence. He is only required to show
that he has an ostensible right to the final relief prayed for in his
complaint.25

In this case, the petitioners have adequately shown their entitlement to a

preliminary injunction. First, the relief demanded consists in restraining the
execution of the RTC decision ordering their ejectment from the disputed land.
Second, their ejectment from the land from which they derive their source of

63
livelihood would work injustice to the petitioners. Finally, the execution of the
RTC decision is probably in violation of the rights of the petitioners, tending to
render the MTC judgment dismissing the forcible entry cases ineffectual.

Moreover, the court in granting or dismissing an application for a writ of

preliminary injunction based on the pleadings of the parties and their respective
evidence must state in its order the findings and conclusions based on the
evidence and the law. This is to enable the appellate court to determine whether
the trial court committed grave abuse of its discretion amounting to excess or
lack of jurisdiction in resolving, one way or the other, the plea for injunctive
relief.26

Thus, we do not understand why the CA denied the prayer for preliminary
injunction without citing any legal or factual basis for the denial. The CA
resolution provides: "[We] find [the] petitioners not entitled to the relief
demanded under Rule 58 of the Revised Rules of Civil Procedure."

Neither does the resolution denying the petitioners' Motion for Reconsideration
contain any factual and legal bases for the denial. It only provides that "[u]pon
careful evaluation of the petitioners' Motion, We find no cogent and compelling
reasons to warrant reversal of Our Resolution."

We therefore have no idea why and how the CA came to the conclusion that the
petitioners are not entitled to the injunctive relief. Hence, we are forced to go
beyond the function of a certiorari under Rule 65 and examine the factual
findings of the MTC and the RTC.

The MTC found that the petitioners have been in actual and physical possession
of the land for more than two (2) years prior to the institution of the complaints
for forcible entry.27 The MTC also found that the respondents were not even sure
how the petitioners entered the land. In their complaints, they alleged that
petitioners entered the land by means of "force, intimidation, threat, stealth and
strategy," a shotgun allegation which shows that respondents' lack knowledge of
how the petitioners entered the disputed property.

We quote the MTC decision with approval, viz:

xxx Force, intimidation[,] and threat usually connote actual knowledge of

dispossession. One cannot force, intimidate or threaten another who is not
around. In stealth and strategy[,] the actual entry is usually done without the
knowledge of the plaintiff. If they are not sure how [the] defendants entered the
land[,] the likelihood is that they also do not know when [the] defendants]
entered the land. The court is apt to believe that [the] defendants have been in
possession of the land for more than 2 years. And under Rule 70[,] the action of

64
forcible entry must be filed within one year from dispossession. The filing of
these cases was beyond the one-year period.28

The RTC, on the other hand, relied on a mere request for authority to conduct a
land survey, allegedly showing that respondent Manuel V. Nieto was the
occupant and tiller of the land.

However, this document does not prove prior possession of the subject land. It
only points to the fact that there was an application for a land title in the name of
one of the respondents, which application was not even shown to have been
granted. This document merely authorized the survey of the land; the declaration
regarding possession was just incidental to the application for land survey.

Between the clear findings of the MTC, which conducted the trial of the forcible
entry cases, and the RTC acting as an appellate court, which relied on
documentary evidence but without sufficiently explaining how such evidence
would prove prior possession, we are inclined to give weight to the MTC's ruling.

This Court has held:

xxx The Court generally recognizes the profundity of conclusions and findings of
facts reached by the trial court and hence sustains them on appeal except for
strong and cogent reasons inasmuch as the trial court is in a better position to
examine real evidence and observe the demeanor of witnesses in a case. No
clear specific contrary evidence was cited by the respondent appellate court to
justify the reversal of the lower court's findings. Thus, in this case, between the
factual findings of the trial court and the appellate court, those of the trial court
must prevail over that of the latter.29

Under this factual backdrop, we conclude that the CA committed grave abuse of
discretion when it denied the prayer for preliminary injunction without
explanation and justification.

We ought to remember that the grant of preliminary injunction would have only
been provisional and would not be conclusively determinative of the principal
action. The issuance of the writ would have served its purpose, i.e., to preserve
the status quo or to prevent future wrongs in order to preserve and protect the
interests of the petitioners during the pendency of the action.30

WHEREFORE, in view of the foregoing, we GRANT the writ of certiorari and

accordingly SET ASIDE the resolutions of the Court of Appeals dated January
28, 2010 and July 16, 2010 for grave abuse of discretion.

SO ORDERED.

65
 EN BANC

G.R. No. 205875, June 30, 2015

LIBERTY BROADCASTING NETWORK, INC., NOW KNOWN AS WI-TRIBE

TELECOMS, INC., Petitioner, v. ATLOCOM WIRELESS SYSTEM,
INC., Respondent.

[G.R. No. 208916]

NATIONAL TELECOMMUNICATIONS COMMISSION, Petitioner, v. ATLOCOM

WIRELESS SYSTEM, INC., Respondent.

DECISION

VILLARAMA, JR., J.:

The consolidated petitions before us assail the Decision1 dated June 29, 2012 and
Resolution2 dated February 18, 2013 of the Court of Appeals (CA) in CA-G.R. SP
No. 119868. The CA reversed and set aside the Orders3 dated December 9, 2010
and March 21, 2011 of the Regional Trial Court (RTC) of Quezon City, Branch 95
denying the application for a writ of prohibitory or mandatory injunction in Civil
Case No. Q-09-65566.

Antecedent Facts

Atlocom Wireless System, Inc. (Atlocom) is a grantee of a legislative franchise

under Republic Act (R.A.) No. 8605.4 On October 8, 2003, the National
Telecommunications Commission (NTC) issued an Order5 in NTC Case No. 98-158
relative to the application of Atlocom for a Certificate of Public Convenience
(CPC), as follows:chanRoblesvirtualLawlibrary
WHEREFORE, it appearing that applicant is financially and technically capable of
undertaking the proposed project and that the operation thereof will promote the
interest of the people in Metro Manila, in a proper and suitable manner, the
Commission hereby grants to herein applicant ATLOCOM WIRELESS SYSTEM,
INC. a Provisional Authority (PA) to install, operate and maintain a Multi-Point
Multi-Channel Distribution System [MMDS] in METRO MANILA, subject to the
assignment of frequency by the Frequency Management Division of this
Commission and to the following -

CONDITIONS

x x x x6

66
 As stated in the above order, the PA shall be valid for a period of eighteen (18)
months, or until April 8, 2005. In a letter7 dated April 5, 2004, Atlocom thru its
counsel requested for "an extension of time of the allocation of the above-
enumerated frequencies and for the period for the construction and installation of
the radio stations in the condition no. 2 of the Order." Earlier, Atlocom filed an
Application for Permit to Import8 the necessary equipment. Atlocom followed up
its application for extension of PA through a letter9 dated June 2, 2005 addressed
to Deputy Commissioner Jorge V. Sarmiento. Subsequently, Atlocom filed a
Motion for Extension of Provisional Authority10 in NTC Case No. 98-158 on March
3, 2005.

On August 23, 2005, NTC issued Memorandum Circular No. (MC) 06-08-
200511 re-allocating the following bands for broadband wireless access for fixed,
nomadic and mobile networks:

 450 - 470 Mhz

 1900-1910 MHz
 1980-1990 MHz
 2400-2483 MHz
 2500-2700 MHz
 3400-3600 MHz
 5150-5350 MHz
 5470-5850 MHz
 10150-10650 MHz

On December 23, 2008, NTC denied Atlocom's motion for extension of PA, citing
the re-allocation of MMDS frequencies for Broadband Wireless Access in
accordance with MC 06-08-2005 and the unavailability of other alternative
frequencies.12chanrobleslaw

On September 8, 2009, Atlocom filed in the RTC a Petition13 to enjoin the

implementation of MC 06-08-2005 and reinstate the frequencies of Atlocom. It
was further prayed that after hearing the court render judgment declaring the
said issuance as null and void because NTC unlawfully deprived Atlocom of the
right to its assigned frequencies without notice and hearing. The case was
docketed as Civil Case No. Q-09-65566.

Liberty Broadcasting Network, Inc. (LBNI), also a grantee of a legislative

franchise (R.A. No. 1553, as amended by R.A. No. 4154) for radio and television
broadcasting, as well as radio stations for international and domestic
communications of all types and services, and holder of a Certificate of Public
Convenience and Necessity (CPCN) to operate a radio communications network,
was allowed to intervene in the case, joining the defendant NTC in opposing
Atlocom's claims. Pursuant to MC 06-08-2005, frequency bands 2535-2545 MHz

67
and 2565-2595 MHz were re-allocated and assigned to LBNI, which covered the
2572-2596 MHz being claimed by Atlocom as allegedly assigned to it.

Per Certification14 dated October 22, 2003 issued by Alvin N. Blanco, Chief,
Broadcast Services Division of NTC, the following frequencies were "identified"
for Atlocom's MMDS (Metro Manila) system:chanRoblesvirtualLawlibrary
C3 2572 - 2578 Mhz
D3 2578 - 2584 Mhz
C4 2584 - 2590 Mhz
D4 2590 - 2596 Mhz
On December 9, 2010, the RTC, after due hearing, issued an Order denying
Atlocom's application for a writ of preliminary prohibitory or mandatory
injunction. Atlocom filed a motion for reconsideration but it was likewise denied
by the RTC under Order dated March 21, 2011.

In a petition for certiorari filed before the CA, Atlocom questioned the validity of
the aforesaid orders of the RTC.

In its Resolution15 dated August 12, 2011, the CA denied Atlocom's prayer for the
issuance of a writ of preliminary prohibitory injunction and its alternative prayer
for a provisional mandatory injunction.

However, in its Decision dated June 29, 2012, the CA ruled in favor of Atlocom
and reversed the RTC's denial of application for preliminary injunction.
The fallo of the decision reads:chanRoblesvirtualLawlibrary
WHEREFORE, premises considered, the petition is GRANTED. The assailed
Orders dated December 9, 2010 and March 21, 2011 of the Regional Trial Court
(RTC) of Quezon City, Branch 95 are hereby REVERSED and SET ASIDE. The
plea for the issuance of a Preliminary Prohibitory Injunction is GRANTED. Let
therefore a writ of preliminary prohibitory injunction issue enjoining Respondent
NTC from implementing Memorandum Circular No. 06-08-2005, insofar as the
frequencies ranging from 2572-2596 Mhz are concerned and for its Co-
Respondent LBNI from using the said frequencies during the pendency of Civil
Case No. Q-09-65566 pending before Branch 95 of the Regional Trial Court of
Quezon City upon the posting of a bond in the amount of Php 200,000.00 to
answer for all damages which they may sustain by reason of the injunction if the
RTC should finally decide that petitioner is not entitled thereto. The alternative
plea for a writ of Preliminary Mandatory Injunction is DENIED.

SO ORDERED.16
LBNI filed a Motion for Reconsideration with Ad Cautelam Offer to File Counter-
Bond and Addendum to Motion for Reconsideration with Ad Cautelam Offer to File
Counter-Bond. NTC also filed a Motion for Reconsideration and Supplemental
Motion for Reconsideration. The CA denied these motions.

68
LBNI filed its petition (G.R. No. 205875) in this Court on April 22, 2013. Acting
on LBNI's motion for the issuance of a temporary restraining order (TRO) and/or
writ of preliminary injunction, we issued a TRO enjoining the implementation of
the writ of preliminary injunction issued by the CA, conditioned upon LBNI's
posting of a cash bond in the sum of P300,000.00.

On April 18, 2013, NTC filed its separate petition (G.R. No. 208916) for review
from the same CA Decision and Resolution. We ordered the consolidation of the
two cases as they arose from the same factual setting, involve the same parties
and raise identical issues.

Issues

The main issues to be resolved are: (1) whether Atlocom complied with the
requisites for issuance of a writ of preliminary injunction; and (2) whether LBNI's
motion to file counter-bond was correctly denied by the CA.

Specifically, LBNI asserts that the CA erred: (1) in finding that the NTC did not
observe due process when it issued MC 06-08-2005 and basing such conclusion
on a mistaken notion that the grant of PA is tantamount to a frequency
assignment; (2) in failing to recognize that Atlocom has not sufficiently
established its claim that it had been assigned the 2572-2596 frequency bands
by the NTC; (3) in granting the provisional injunctive writ that in effect pre-
judged the civil case pending in the RTC; and (4) in denying LBNI's motion to file
counter-bond on the basis of a technical conclusion it is not qualified to make in
the first place.

NTC faults the CA in finding that Atlocom's right to due process was violated
because it was not notified of the hearing prior to the issuance of MC 06-08-
2005, and concluding that Atlocom has a clear and unmistakable property right
over the 2572-2596 frequency range.

Our Ruling

The petitions are meritorious.

A preliminary injunction is defined as "[a]n order granted at any stage of an

action prior to the judgment or final order, requiring a party or a court, agency or
a person to refrain from a particular actor acts."17It may be a prohibitory
injunction, which requires a party to refrain from doing a particular act, or a
mandatory injunction, which commands a party to perform a positive act to
correct a wrong in the past.18 It is a provisional remedy that a party may resort
to in order to preserve and protect certain rights and interests during the

69
pendency of an action.19chanrobleslaw

Section 3, Rule 58 of the Rules of Court provides:chanRoblesvirtualLawlibrary

SEC. 3. Grounds for issuance of preliminary injunction. - A preliminary injunction
may be granted when it is established:ChanRoblesVirtualawlibrary

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

(b) That the commission, continuance or nonperformance of the act or acts

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

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

to do, or is procuring or suffering to be done, some act or acts probably in
violation of the rights of the applicant respecting the subject of the action or
proceeding, and tending to render the judgment
ineffectual.chanroblesvirtuallawlibrary
The following requisites must be proved before a writ of preliminary injunction
will issue: (1) The applicant must have a clear and unmistakable right to be
protected, that is, a right in esse; (2) There is a material and substantial invasion
of such right; (3) There is an urgent need for the writ to prevent irreparable
injury to the applicant; and (4) No other ordinary, speedy, and adequate remedy
exists to prevent the infliction of irreparable injury.20chanrobleslaw

The grant or denial of a writ of preliminary injunction is discretionary upon the

trial court because the assessment and evaluation of evidence towards that end
involve findings of fact left to the said court for its conclusive determination. For
this reason, the grant or denial of a writ of preliminary injunction shall not be
disturbed unless it was issued with grave abuse of discretion amounting to lack
or in excess of jurisdiction.21chanrobleslaw

In denying Atlocom's application for a writ of preliminary injunction, the RTC held
that Atlocom failed to demonstrate a clear and unmistakable legal right thereto,
as evidence showed Atlocom has no more right to be protected considering that
its PA had already expired and its application for extension was subsequently
denied by the NTC. As to the claim of violation of right to due process, the RTC
found that prior to the issuance of MC 06-08-2005, NTC published a notice of
public hearing in The Manila Times, a newspaper of general circulation, and at
the said hearing the participants were given opportunity to be heard through oral
arguments and submission of position papers. Atlocom's alternative plea for a
writ of mandatory injunction was likewise denied. According to the RTC, ordering

70
the NTC to reinstate Atlocom's frequencies would create an impression that the
court had pre-judged the main case by nullifying MC 06-08-2005 as prayed for
by Atlocom in its petition.

However, the CA rendered a contrary ruling. The CA underscored the fact that
NTC failed to act upon Atlocom's motion for extension for more than three years,
and concluded that because of NTC's inordinate delay or refusal to renew the PA
granted to Atlocom, the latter was deprived of its right to use the frequencies
"granted to it by" the PA. The CA thus held:chanRoblesvirtualLawlibrary
In deciding whether to grant an injunction, a court must consider established
principles of equity and all the circumstances of the test for issuing an injunction
is whether the facts show a necessity for the intervention of equity in order to
protect rights cognizable in equity. Here, there are factual and legal justification
for issuance of the writ of injunction. To reiterate to the point of being pedantic,
petitioner's right to its frequencies is covered by a provisional authority. The
provisional authority was withdrawn by MC No. 06-08-2005 without the
Respondent NTC acting on petitioner's plea for previous extensions. The
propriety for the issuance of MC No. 06-08-2005 is placed in issue on the ground
of fairness. Petitioner as the rightful grantee thereof has the right, in the
meantime, to enjoin its implementation.

We are not unaware of Our Resolution promulgated on August 12, 2011 denying
petitioner's plea for the ancillary remedy of both prohibitory and/or mandatory
injunction. Indeed, as of said date, the denial of petitioner's prayer is
appropriate. We have now the complete facts of the case and, as the legal
consequence of Our declaration that the RTC committed grave abuse of
discretion in issuing the assailed orders, We consider it proper to enjoin the
Respondent NTC from implementing Memorandum Circular No. 06-08-2005, but
insofar as the frequencies ranging from 2572-2596 Mhz are involved and for its
Co-Respondent LBNI from using the aforestated frequencies. This is not to
preempt the RTC of whatever judgment it may thereafter issue with respect to
the merits of the case before it but is issued in order to maintain the status quo
in view of petitioner's claim of a breach of due process and a continuing violation
of its right over the aforestated frequencies.22
The CA explained that since it is only through a frequency that Atlocom can
provide adequate broadcast service to the public, the withdrawal of frequency
assignment without observance of due process defeats its legislative grant and
reduces Atlocom to a mere repository of transmitters and equipment devoid of
any purpose or value. It cited the following provisions of R.A. No.
8605:chanRoblesvirtualLawlibrary
SEC. 3. Prior Approval of the National Telecommunications Commission. - The
grantee shall secure from the National Telecommunications Commission,
hereinafter referred to as the Commission, the appropriate permits and licenses
for the construction and operation of its stations, transmitters or facilities and

71
shall not use any frequency in the radio and television spectrum without having
been authorized by the Commission. The Commission, however, shall not
unreasonably withhold or delay the grant of any such authority.

xxxx

SEC. 6. Right of Government. x x x

The radio spectrum is a finite resource that is a part of the national patrimony
and the use thereof is a privilege conferred upon the grantee by the State and
may be withdrawn anytime, after due process. (Italics supplied)
On the withdrawal of the frequencies previously identified for Atlocom, the CA
insisted that NTC did not observe due process, viz.:chanRoblesvirtualLawlibrary
x x x While it is true that there was a publication of a Notice of Public Hearing on
June 21, 2005 before the issuance of Memorandum Circular No. 06-08-2005 on
August 23, 2005, the fact is, the publication or notice was a general one and was
not meant to dispose of petitioner's previous requests for an extension of its
provisional authority and/or application for permit to purchase equipment. The
order which dealt with these requests was the Order dated December 23, 2008,
which was issued almost four (4) years after the filing of the first request on April
5, 2004 and almost three (3) years from the issuance of Memorandum Circular
No. 06-08-2005. Withal and subject to whatever proof it may submit to the RTC
regarding the delay, the Respondent NTC should have first acted on petitioner's
requests for extension before setting for public hearing the re-allocation of the
frequencies.23
We do not concur with the CA in holding that NTC's inaction or delay on
Atlocom's application for extension of PA had violated the latter's right to due
process because it resulted in depriving Atlocom of the use of frequencies which
were re-allocated through the issuance of MC 06-08-2005. Such declaration
rather conveys an inaccurate picture of the regulatory process for public
broadcasting and telecommunications services.

Under existing laws and regulations, it is clear that a frequency assignment is not
automatically included in the PA granted by the NTC to an applicant for a CPC.
Thus, the Order dated October 8, 2003 expressly provided that the PA granted to
Atlocom, valid for 18 months, is subject to several conditions, foremost of which
is the assignment of frequency by the Frequency Management Division (FMD).

While Atlocom presented a Certification24 dated October 22, 2003 issued by Alvin
N. Blanco, Chief of NTC's Broadcast Division, stating that certain frequencies
were "identified" for Atlocom's MMDS (Metro Manila) covering 2572-2596
frequency bands, there is no document evidencing that these frequencies were
actually assigned to Atlocom by the FMD. There is likewise nothing in the records
to suggest that NTC "unreasonably" withheld or delayed authority to use such

72
frequencies identified for Atlocom.

Atlocom blamed NTC's three-year delay in resolving the motion for extension of
PA for its inability to use the frequencies identified for its MMDS, as these were
eventually re-allocated in 2005 under MC 06-08-2005. But as Atlocom was fully
aware, Section 6 of R.A. No. 8605 provides that the Government may at anytime
withdraw the frequency after due process. Records showed that a notice was
duly published and a public hearing was actually conducted on July 12, 2005 by
NTC on the proposed Memo Circular: Frequency Band Allocations for Broadcast
Wireless Access. Said event was attended by representatives of the different
broadcasting and telecommunication companies, including Atlocom.25 The
position papers and feedback submitted by various companies in connection with
the proposed memorandum circular on wireless broadband access were all
presented as evidence in the RTC.26 We have held that the essence of due
process is simply an opportunity to be heard, or as applied to administrative
proceedings, an opportunity to explain one's side.27 The requirements of due
process were thus satisfied by the NTC in the re-allocation of frequency.

Contrary to the CA's pronouncement, the re-allocation of frequency cannot be

conditioned on resolution of any pending request for extension of PA previously
granted. Even entities with unexpired PA cannot claim a vested right on a specific
frequency assignment. This proceeds from the nature of its franchise which is not
solely for commercial purposes but one imbued with public interest. As earlier
quoted, Atlocom's franchise (R.A. No. 8605) declared the use of radio spectrum
as a mere privilege conferred upon the grantee by the State that may be
withdrawn anytime provided that due process is observed. It further emphasized
that the radio spectrum is a finite resource and its use and distribution should be
aligned with existing laws and policies.

R.A. No. 7925 likewise recognizes the vital role of telecommunications to national
development and security and provides that the radio frequency shall be
managed and directed to serve the public interest. Being a limited resource, the
law mandates a periodic review of frequency allocation.
SEC. 4. Declaration of National Policy. - Telecommunications is essential to the
economic development, integrity and security of the Philippines, and as such
shall be developed and administered as to safeguard, enrich and strengthen the
economic, cultural, social and political fabric of the Philippines. The growth and
development of telecommunications services shall be pursued in accordance with
the following policies:ChanRoblesVirtualawlibrary

xxxx

c) The radio frequency spectrum is a scarce public resource that shall be

administered in the public interest and in accordance with international

73
agreements and conventions to which the Philippines is a party and granted to
the best qualified. The government shall allocate the spectrum to service
providers who will use it efficiently and effectively to meet public demand for
telecommunications service and may avail of new and cost effective technologies
in the use of methods for its utilization;

xxxx

SEC. 15. Radio Frequency Spectrum. - The radio frequency spectrum allocation
and assignment shall be subject to periodic review. The use thereof shall be
subject to reasonable spectrum user fees. Where demand for specific frequencies
exceed availability, the Commission shall hold open tenders for the same and
ensure wider access to this limited resource.chanroblesvirtuallawlibrary
As a grantee of PA, Atlocom can only invoke the condition in MC 06-08-2005 that
"[t]he transfer of previously authorized persons or entities operating radio
stations within the above listed radio frequency bands shall be governed by Rule
603 of MC 3-3-96."28 Said rule states:chanRoblesvirtualLawlibrary
603. TRANSFER OF AFFECTED AUTHORIZED RADIO FREQUENCY USER

a. The commission shall allocate available radio frequencies for assignment to

those affected by the reallocation as a result of the review of the radio spectrum
pursuant to Rule 601.

b. The cost of the transfer to new radio frequencies of affected authorized users
shall be borne by the new assignees to the radio frequency channel/band where
the radio frequencies of the previously authorized users fall within.

c. When the transfer to a new set of radio frequencies would require additional
radio links, the cost of these links shall also be taken into consideration.

d. The manner and the cost of the transfer shall be negotiated in good faith
between the affected authorized users and the assignees within 90 days from
receipt of notice of relocation.

e. The Commission shall extend all the necessary assistance to all affected
authorized users and shall mandate settlement if the parties fail to come to an
agreement within 90 days from receipt of notice of relocation or when warranted
under the circumstances.

f. Other means/mode of transmission comparable in quality to the existing

facility shall be taken into consideration in the negotiation for the transfer.

g. Transfer of radio frequency assignment shall only take effect upon activation

74
of service by relocated party using its newly assigned or relocated frequency as
agreed or mandated.chanroblesvirtuallawlibrary
Considering that Atlocom has not even launched its MMDS network nor
constructed radio stations, it is doubtful whether Atlocom can exercise the
foregoing rights of an affected frequency user. Neither can Atlocom attribute its
non-operational state to the delayed action on its motion for extension of PA.
Among the conditions of its PA is the commencement of the construction and
installation of its station within six months from issuance of the order granting it
the provisional authority and its complete three months thereafter. Perusal of the
motion for extension reveals that Atlocom at the time was still in the process of
identifying and finalizing arrangements with its potential investors for the
establishment of a nationwide MMDS network coverage.

Based on its evaluation, the NTC found that: (1) Atlocom filed an application for
Permit to Purchase MMDS transmitter on February 9, 2005, but no permit of any
kind was issued to it; (2) In the clarificatory hearing held on September 4, 2006,
concerns were raised regarding reports of foreign equity on Atlocom's capital
structure and status of band allocated for MMDS within the 2.5-2.7 Ghz band;
and (3) On June 21, 2008, Atlocom is requesting for an allocation of a Digital
Terrestrial TV frequency (Ch 14-20 & Ch 21-51) in replacement for their MMDS
frequency, but the NTC thru FMD denied such request because the proposed
frequency band for DTT service is not yet approved/allocated. With the re-
allocation of MMDS frequency bands for the Broadband Wireless Access under MC
06-8-2005, and the aforesaid findings, the NTC en banc decided not to grant the
extension sought by Atlocom.

A right to be protected by injunction, means a right clearly founded on or

granted by law or is enforceable as a matter of law.29 An injunction is not a
remedy to protect or enforce contingent, abstract, or future rights; it will not
issue to protect a right not in esse, and which may never arise, or to restrain an
act which does not give rise to a cause of action.30chanrobleslaw

From the evidence on record, no clear, actual and existing right to the subject
frequencies or to the extension of PA had been shown by Atlocom. Accordingly,
no grave abuse of discretion was committed by the RTC in denying Atlocom's
application for a writ of preliminary injunction to restrain the implementation of
MC 06-08-2005 insofar as the use of the reallocated frequencies claimed by
Atlocom. The CA thus seriously erred in reversing the RTC and holding that
Atlocom was entitled to injunctive relief due to alleged violation of its right by the
NTC.

A writ of preliminary injunction being an extraordinary event, one deemed as a

strong arm of equity or a transcendent remedy, it must be granted only in the
face of actual and existing substantial rights. In the absence of the same, and

75
where facts are shown to be wanting in bringing the matter within the conditions
for its issuance, the ancillary writ must be struck down for having been rendered
in grave abuse of discretion.31chanrobleslaw

Pursuant to Section 6,32 Rule 58 of the 1997 Rules of Civil Procedure, a

preliminary injunction may be dissolved if it appears after hearing that although
the applicant is entitled to the injunction or restraining order, the issuance or
continuance thereof, as the case may be, would cause irreparable damage to the
party or person enjoined while the applicant can be fully compensated for such
damages as he may suffer, and the former files a bond in an amount fixed by the
court on condition that he will pay all damages which the applicant may suffer by
the denial or the dissolution of the injunction or restraining order. Two conditions
must concur: first, the court, in the exercise of its discretion, finds that the
continuance of the injunction would cause great damage to the defendant, while
the plaintiff can be fully compensated for such damages as he may suffer;
second, the defendant files a counterbond.33chanrobleslaw

In denying LBNI's offer to file counterbond, the CA relied on the

Affidavit34 executed by Rene Rosales, Atlocom's technical consultant, to refute
the earlier Affidavit35 submitted by LBNI, which was executed by its Director for
Network Engineering, Edwin C. Mabitazan. Mabitazan stated that the injunction
issued by the CA will result in reducing LBNI's usable bandwidth from 40 Mhz to
only 15 Mhz, which is inadequate to serve LBNI's thousands of subscribers.
Mabitazan's opinion should have been given more weight in view of his intimate
knowledge of LBNI's operations and technical requirements. Moreover, it should
be stressed that LBNI's business projections were based on its existing technical
capability which stands to be greatly diminished once the frequency bands re-
assigned to it will be reduced as a result of the CA's injunction order. The
possibility of irreparable damage is indeed present, not only in terms of financial
losses -the total investment by LBNI has already reached billions of pesos - but
on the reputation of LBNI as a new player in the telecommunications industry for
reliability and dependability of its services. In contrast, whatever damage
Atlocom stands to suffer should the injunction be dissolved, can be fully
compensated considering that it has not constructed stations nor launched any
network service. No single document was submitted by Atlocom to show it had
actually complied with the conditions of its PA and invested in the establishment
of MMDS network, which never materialized.

In gross abuse of discretion, the CA brushed aside evidence presented by LBNI in

support of its offer to file counter-bond, stating that these were submitted only
after the appellate court had rendered its decision granting Atlocom's prayer for
preliminary injunction. The CA failed to consider the fact that it was Atlocom
which misled the courts and the NTC in claiming that the subject frequencies had
been assigned to it. The matter was raised by NTC and LBNI only in their motions

76
 for reconsideration because it was only at that time when their inquiry from FMD
disclosed that said office had not actually granted a frequency assignment to
Atlocom. Thus, NTC in its Supplemental Motion for Reconsideration, submitted a
Certification36 dated August 2, 2012 issued by the FMD Chief, Pricilla F. Demition,
together with attached documents, setting forth the same facts relative to
Atlocom's non-operational state. Atlocom countered that said evidence was just
an afterthought because the absence of frequency assignment was not
mentioned by Engr. Demition when she testified before the RTC on January 14,
2009 during the hearing on the application for writ of preliminary injunction.
Atlocom, however, never disputed the findings of the FMD.

The pertinent portions of the FMD Certification are herein

reproduced:chanRoblesvirtualLawlibrary

2. In a memo addressed to the Chief, Broadcast Services Division dated January 10,
2006 (copy attached as Annex "B"); signed by then Deputy Commissioner Jorge
V. Sarmiento, an inquiry was made to the Broadcast Services Division (BSD)
regarding the status of usage of the frequency assignments granted to broadcast
companies for MMDS use and to provide information thru the FMD of the latest
related information to include among others permits/licenses issued to their
favor; such information was needed in view of the re-allocation of the band in
use for BWA (MC No. 06-08-2005);

3. In a memo dated January 12, 2006 (copy attached as Annex "C") in compliance
to the January 10, 2006 Memo, BSD's report shows under the column Latest
Permits/License issued, that the latest permit or license issued for ATLOCOM was
only its PA dated 10.08.03;

4. In a memo addressed to the Records Verification Committee dated 06 September

2006 (copy attached as Annex "D") signed by then Commissioner Ronald Olivar
Solis, citing a memo dated 21 September 2005 from then DOTC Secretary
Leonardo R. Mendoza and Office Order No. 71-08-2006, the Records Verification
Committee was directed to verify the status of several radio frequency bands
therein listed, and to submit its report to include, among others, SUF payments,
latest permits, and licenses issued and photocopies of the same;

5. The Records Verification Committee reported in a memo dated 08 September

2006 (copy attached as Annex "E"), that with respect to Atlocom Wireless
System, Inc., no record on file was found as to station location,
frequency, license/permit no., radio station license or permit to
purchase and possess;

6. In a memo addressed to the Acting Chief BSD dated 07 January 2008 by then
FMD Acting Chief Engr. Joselito C. Leynes (copy attached as Annex "F") [w]ith
reference to the 03 January 2008 indorsement letter from BSD (copy attached as

77
 Annex "G) regarding the request of Atlocom Wireless System, Inc. for an
allocation of a Digital Television (DTT) frequency (copy attached as Annex "H"),
the BSD was informed of the following for guidance:chanRoblesvirtualLawlibrary

"that the proposed frequency band from Channel 14-20 and Channel 21-51 is not
yet been finally allocated/approved for the purpose of DTT operation. Further, in
the event that said frequency band re-allocation is approved, only broadcasting
company with existing TV station/s and/or authority to operate is entitled for
application/issuance of a DTT frequency channel."

7. A Memo addressed to the Chief, Frequency Management Division dated 27 July

2012 (copy attached as Annex "I") Chief, BSD in connection with the
"certification" issued to Atlocom Wireless System, Inc. clarifies the
following:chanRoblesvirtualLawlibrary

"that the frequencies stated in the subject certification were simply

identified as candidate frequencies for the MMDS service under NTC Case
No. 98-158, subject to final frequency assignment by the Frequency
Management Division (FMD) of this Commission." and

"Furthermore inasmuch as frequency assignments covering the band 2500-2700

Mhz are issued by the Frequency Management Division (FMD), the undersigned is
of the view that the determination of the assignment of the subject frequencies
to Atlocom Wireless, or to any other entity, can best be certified by the
Frequency Management Division (FMD)"

8. As per NTC Office Order No. 59-07-2003 dated July 30, 2003 (copy attached as
Annex "J), all requests, applications requiring clearance and/or new radio
frequency assignments, except for frequencies that have been pre-allocated
and/or decentralized, shall be cleared with the Office of the Commissioner thru
the Frequency Management Division:chanRoblesvirtualLawlibrary

"Henceforth, except for frequencies that have been pre-allocated and/or

decentralized, all requests applications requiring clearance and/or new radio
frequency assignment shall be cleared with the Office of the Commissioner thru
the Frequency Management Division."

9. No records/documents were however found at the Frequency

Management Division showing frequency assignment clearance for the
use of ATLOCOM's MMDS system. (Emphasis supplied)

In light of all the foregoing established facts, we hold that the CA gravely abused
its discretion when it issued a writ of preliminary injunction against the
implementation of MC 06-08-2005 in the absence of a clear legal right on the

78
part of Atlocom, and subsequently denying LBNFs offer to file counter-bond
despite compliance with the requisites provided in Section 6 of Rule 58. However,
with our ruling that the writ of preliminary injunction was improperly issued,
hence, null and void, the matter of allowing LBNI to post a counter-bond has
been rendered moot.

A final note. In its Memorandum,37 Atlocom argues that LBNI is part of mass
media and its franchise violates Article XVI, Section 11 (1) of the
Constitution38 because it is not wholly-owned by Filipino citizens.39chanrobleslaw

Unless properly raised and the very lis mota of the case, we do not pass upon
constitutional issues. The resolution of the constitutional issues must be
absolutely necessary for the determination of the case.40In the spirit of deference
to the acts of other constitutional departments and organs, issues before this
Court should address only the narrowest issues necessary to determine whether
the reliefs prayed for can be granted. As in this case, reliefs can be determined
on procedural issues.

The main issue presented in this case is the validity of Atlocom's application for a
writ of preliminary injunction against the NTC. This issue can be resolved without
passing upon the constitutionality of LBNI's franchise. The resolution of the issue
on LBNI's eligibility thus has no bearing on whether Atlocom has the right to be
granted a frequency allocation for Broadband Wireless Access by the NTC. The
constitutional issue raised by the respondent may be raised and resolved in
proper cases when necessary in the future.

WHEREFORE, the petitions are GRANTED. The Decision dated June 29, 2012
and Resolution dated February 18, 2013 of the Court of Appeals in CA-G.R. SP
No. 119868 are REVERSED and SET ASIDE.

Consequently, the writ of preliminary injunction issued in said case, if any, is

hereby declared NULL and VOID.

The Orders dated December 9, 2010 and March 21, 2011 of the Regional Trial
Court of Quezon City, Branch 95 in Q-09-65566 are
hereby REINSTATED and UPHELD.

The Temporary Restraining Order issued by this Court on April 30, 2013 is
hereby made PERMANENT.

No pronouncement as to costs.

SO ORDERED.cralawlawlibrary

79
 ECOND DIVISION

G.R. No. 197472, September 07, 2015

REPUBLIC OF THE PHILIPPINES, REPRESENTED BY COMMANDER

RAYMOND ALPUERTO OF THE NAVAL BASE CAMILLLO OSIAS, PORT SAN
VICENTE, STA. ANA, CAGAYAN, Petitioner, v. REV. CLAUDIO R. CORTEZ,
SR., Respondent.

DECISION

DEL CASTILLO, J.:

An inalienable public land cannot be appropriated and thus may not be the
proper object of possession. Hence, injunction cannot be issued in order to
protect one's alleged right of possession over the same.

This Petition for Review on Certiorari1 assails the June 29, 2011 Decision2 of the
Court of Appeals (CA) in CA-GR. CV No. 89968, which dismissed the appeal
therewith and affirmed the July 3, 2007 Decision3 of the Regional Trial Court
(RTC) of Aparri, Cagayan, Branch 8 in Spl. Civil Action Case No. 11-2403.

Factual Antecedents

Respondent Rev. Claudio R. Cortez, Sr. (Rev. Cortez), a missionary by vocation

engaged in humanitarian and charitable activities, established an orphanage and
school in Punta Verde, Palaui Island, San Vicente, Sta. Ana, Cagayan. He claimed
that since 1962, he has been in peaceful possession of about 50 hectares of land
located in the western portion of Palaui Island in Sitio Siwangag, Sta. Ana,
Cagayan which he, with the help of Aetas and other people under his care,
cleared and developed for agricultural purposes in order to support his
charitable, humanitarian and missionary works.4

On May 22, 1967, President Ferdinand E. Marcos issued Proclamation No. 201
reserving for military purposes a parcel of the public domain situated in Palaui
Island. Pursuant thereto, 2,000 hectares of the southern half portion of the
Palaui Island were withdrawn from sale or settlement and reserved for the use of
the Philippine Navy, subject, however, to private rights if there be any.

More than two decades later or on August 16, 1994, President Fidel V. Ramos
issued Proclamation No. 447 declaring Palaui Island and the surrounding waters
situated in the Municipality of Sta. Ana, Cagayan as marine reserve. Again
subject to any private rights, the entire Palaui Island consisting of an aggregate
area of 7,415.48 hectares was accordingly reserved as a marine protected area.

80
On June 13,2000, Rev. Cortez filed a Petition for Injunction with Prayer for the
Issuance of a Writ of Preliminary Mandatory Injunction5 against Rogelio C. Biñas
(Biñas) in his capacity as Commanding Officer of the Philippine Naval Command
in Port San Vicente, Sta. Ana, Cagayan. According to him, some members of the
Philippine Navy, upon orders of Biñas, disturbed his peaceful and lawful
possession of the said 50-hectare portion of Palaui Island when on March 15,
2000, they commanded him and his men, through the use of force and
intimidation, to vacate the area. When he sought assistance from the Office of
the Philippine Naval Command, he was met with sarcastic remarks and
threatened with drastic military action if they do not vacate. Thus, Rev. Cortez
and his men were constrained to leave the area. In view of these, Rev. Cortez
filed the said Petition with the RTC seeking preliminary mandatory injunction
ordering Biñas to restore to him possession and to not disturb the same, and
further, for the said preliminary writ, if issued, to be made permanent.

Proceedings before the Regional Trial Court

After the conduct of hearing on the application for preliminary mandatory

injunction6 and the parties' submission of their respective memoranda,7 the RTC
issued an Order8 dated February 21, 2002 granting the application for a writ of
preliminary mandatory injunction. However, the same pertained to five hectares
(subject area) only, not to the whole 50 hectares claimed to have been occupied
by Rev. Cortez, viz.:cralawlawlibrary

It should be noted that the claim of [Rev. Cortez] covers an area of 50 hectares
more or less located at the western portion of Palaui Island which is within the
Naval reservation. [Rev. Cortez] presented what he called as a survey map (Exh.
"H") indicating the location of the area claimed by the Church of the Living God
and/or Rev. Claudio Cortez with an approximate area of 50 hectares identified as
Exh. "H-4". However, the Survey Map allegedly prepared by [a] DENR personnel
is only a sketch map[,] not a survey map as claimed by [Rev. Cortez]. Likewise,
the exact boundaries of the area [are] not specifically indicated. The sketch only
shows some lines without indicating the exact boundaries of the 50 hectares
claimed by [Rev. Cortez]. As such, the identification of the area and its exact
boundaries have not been clearly defined and delineated in the sketch map.
Therefore, the area of 50 hectares that [Rev. Cortez] claimed to have peacefully
and lawfully possessed for the last 38 years cannot reasonably be determined or
accurately identified.

For this reason, there is merit to the contention of [Biñas] that [Rev. Cortez]'
claim to the 50 hectares of land identified as Exh. ["]H-4" is unclear and
ambiguous. It is a settled jurisprudence that mandatory injunction is the strong
arm of equity that never ought to be extended unless to cases of great injury,

81
where courts of law cannot afford an adequate and commensurate remedy in
damages. The right must be clear, the injury impending or threatened, so as to
be averted only by the protecting preventive process of injunction. The reason
for this doctrine is that before the issue of ownership is determined in the light of
the evidence presented, justice and equity demand that the [status quo be
maintained] so that no advantage may be given to one to the prejudice of the
other. And so it was ruled that unless there is a clear pronouncement regarding
ownership and possession of the land, or unless the land is covered by the
torrens title pointing to one of the parties as the undisputed owner, a writ of
preliminary injunction should not issue to take the property out of possession of
one party to place it in the hands of another x x x.

Admittedly, the documentary exhibits of [Rev. Cortez] tended only to show that
[he] has a pending application of patent with the DENR. Even so, [Rev. Cortez]
failed to present in evidence the application for patent allegedly filed by [him]
showing that he applied for patent on the entire 50 hectares of land which he
possessed or occupied for a long period of time. Under the circumstances,
therefore, the title of petitioner to the 50 hectares of land in Palaui Island
remains unclear and doubtful, and [is] seriously disputed by the government.

More significantly, at the time that Proc. No. 201 was issued on May 22, 1967,
[Rev. Cortez] has not perfected his right over the 50 hectares of land nor
acquired any vested right thereto considering that he only occupied the land as
alleged by him in 1962 or barely five (5) years before the issuance of the
Presidential Proclamation. Proclamation No. 201 had the effect of removing
Palaui Island from the alienable or disposable portion of the public domain and
therefore the island, as of the date of [the] Issuance [of the proclamation], has
ceased to be disposable public land. ChanRoblesVirtualawlibrary

However, the court is not unmindful that [Rev. Cortez] has lawfully possessed
and occupied at least five (5) hectares of land situated at the western portion of
the Palaui Island identified as Exh "H-4". During the hearing, Cmdr. Rogelio Biñas
admitted that when he was assigned as Commanding Officer in December 1999,
he went to Palaui Island and [saw only] two (2) baluga families tilling the land
consisting of five (5) hectares. Therefore, it cannot be seriously disputed that
[Rev. Cortez] and his baluga tribesmen cleared five (5) hectares of land for
planting and cultivation since 1962 on the western portion identified as Exhibit
"H-4". The Philippine Navy also admitted that they have no objection to settlers
of the land prior to the Presidential Proclamation and [Rev. Cortez] had been
identified as one of the early settlers of the area before the Presidential
Proclamation. The DENR also acknowledged that [Rev. Cortez] has filed an
application for patent on the western area and that he must be allowed to pursue
his claim.

82
Although the court is not persuaded by the argument of [Rev. Cortez] that he
has already acquired vested rights over the area claimed by him, the court must
recognize that [Rev. Cortez] may have acquired some propriety rights over the
area considering the directive of the DENR to allow [Rev. Cortez] to pursue his
application for patent. However, the court wants to make clear that the
application for patent by [Rev. Cortez] should be limited to an area not to exceed
five (5) hectares situated at the western portion of x x x Palaui Island identified
in the sketch map as Exh. "H-4." This area appears to be the portion where [Rev.
Cortez] has clearly established his right or title by reason of his long possession
and occupation of the land.9chanrobleslaw

In his Answer,10 Biñas countered that: (1) Rev. Cortez has not proven that he
has been in exclusive, open, continuous and adverse possession of the disputed
land in the concept of an owner; (2) Rev. Cortez has not shown the exact
boundaries and identification of the entire lot claimed by him; (3) Rev. Cortez
has not substantiated his claim of exemption from Proclamation No. 201; (4)
under Proclamation No. 447, the entire Palaui Island, which includes the land
allegedly possessed and occupied by Rev. Cortez, was reserved as a marine
protected area; and, (4) injunction is not a mode to wrest possession of a
property from one person by another.

Pre-trial and trial thereafter ensued.

On July 3, 2007, the RTC rendered its Decision11 making the injunction final and
permanent. In so ruling, the said court made reference to the Indigenous
Peoples' [Fight] Act (EPRA) as follows:chanRoblesvirtualLawlibrary

The Indigenous [Peoples' Right] Act should be given effect in this case. The
affected community belongs to the group of indigenous people which are
protected by the State of their rights to continue in their possession of the lands
they have been tilling since time immemorial. No subsequent passage of law or
presidential decrees can alienate them from the land they are tilling.12

Ultimately, the RTC held, thus:cralawlawlibrary

WHEREFORE, finding the petition to be meritorious, the same is hereby

GRANTED.

xxxx

SO DECIDED.13chanrobleslaw

Representing Biñas, the Office of the Solicitor General (OSG) filed a Notice of
Appeal14 which was given due course by the RTC in an Order15 dated August 6,

83
2007.

Ruling of the Court of Appeals

In its brief,16 the OSG pointed out that Rev. Cortez admitted during trial that he
filed the Petition for injunction on behalf of the indigenous cultural communities
in Palaui Island and not in his capacity as pastor or missionary of the Church of
the Living God. He also claimed that he has no interest over the land. Based on
these admissions, the OSG argued that the Petition should have been dismissed
outright on the grounds that it did not include the name of the indigenous
cultural communities that Rev. Cortez is supposedly representing and that the
latter is not the real party-in-interest. In any case, the OSG averred that Rev.
Cortez failed to show that he is entitled to the issuance of the writ of injunction.
Moreover, the OSG questioned the RTC's reference to the EPRA and argued that
it is not applicable to the present case since Rev. Cortez neither alleged in his
Petition that he is claiming rights under the said act nor was there any showing
that he is a member of the Indigenous Cultural Communities and/or the
Indigenous Peoples as defined under the IPRA.

In its Decision17 dated June 29, 2011, the CA upheld the RTC's issuance of a final
injunction based on the following ratiocination:cralawlawlibrary

The requisites necesary for the issuance of a writ of preliminary injunction are:
(1) the existence of a clear and unmistakable right that must be protected; and
(2) an urgent and paramount necessity for the writ to prevent serious damage.
Here, [Rev. Cortez] has shown the existence of a clear and unmistakable right
that must be protected and an urgent and paramount necessity for the writ to
prevent serious damage. Records reveal that [Rev. Cortez] has been in peaceful
possession and occupation of the western portion of Palaui Island, Sitio
Siwangag, San Vicente, Sta. Ana[J Cagayan since 1962 or prior to the issuance
of Proclamation Nos. 201 and 447 in 1967 and 1994, respectively. There he built
an orphanage and a school for the benefit of the members of the Dumagat Tribe,
in furtherance of his missionary and charitable works. There exists a clear and
unmistakable right in favor [of Rev. Cortez] since he has been in open,
continuous and notorious possession of a portion of Palaui island. To deny the
issuance of a writ of injunction would cause grave and irreparable injury to [Rev.
Cortez] since he will be displaced from the said area which he has occupied since
1962. It must be emphasized that Proclamation Nos. 201 and 447 stated that the
same are subject to private rights, if there be [any]. Though Palaui Island has
been declared to be part of the naval reservation and the whole [i]sland as a
marine protected area, both recognized the existence of private rights prior to
the issuance of the same.

From the foregoing, we rule that the trial court did not err when it made

84
permanent the writ of preliminary mandatory injunction. Section 9, Rule 58 of
the Rules of Court provides that if after the trial of the action it appears that the
applicant is entitled to have the act or acts complained of permanently enjoined,
the court shall grant a final injunction perpetually restraining the party or person
enjoined from the commission or continuance of the act or acts or confirming the
preliminary mandatory injunction.18chanrobleslaw

Anent the issue of Rev. Cortez not being a real party-in-interest, the CA noted
that this was not raised before the RTC and therefore cannot be considered by it.
Finally, with respect to the RTC's mention of the IPRA, the CA found the same to
be a mere obiter dictum.

The dispositive portion of the CA Decision reads:cralawlawlibrary

WHEREFORE, premise[s] considered, the instant Appeal is hereby DENIED. The

assailed 3 July 2007 Decision of the Regional Trial Court of Aparri, Cagayan,
Branch 8 in Civil Case No. 11-2403 is AFFIRMED.

SO ORDERED.19
chanrobleslaw

Hence, this Petition brought by the OSG on behalf of the Republic of the
Philippines (the Republic).

The Issue

The ultimate issue to be resolved in this case is whether Rev. Cortez is entitled to
a final writ of mandatory injunction.

The Parties' Arguments

The bone of contention as the OSG sees it is the injunctive writ since Rev. Cortez
failed to prove his clear and positive right over the 5-hectare portion of Palaui
Island covered by the same. This is considering that by his own admission, Rev.
Cortez started to occupy the said area only in 1962. Hence, when the property
was declared as a military reserve in 1967, he had been in possession of the 5-
hectare area only for five years or short of the 30-year possession requirement
for a bona fide claim of ownership under the law. The OSG thus argues that the
phrase "subject to private rights" as contained in Proclamation No. 201 and
Proclamation No. 447 cannot apply to him since it only pertains to those who
have already complied with the requirements for perfection of title over the land
prior to the issuance of the said proclamations.

85
Rev. Cortez, for his part, asserts that the arguments of the OSG pertaining to
ownership are all immaterial as his Petition for injunction does not involve the
right to possess based on ownership but on the right of possession which is a
right independent from ownership. Rev. Cortez avers that since he has been in
peaceful and continuous possession of the subject portion of Palaui Island, he
has the right of possession over the same which is protected by law. He asserts
that based on this right, the writ of injunction was correctly issued by the RTC in
his favor and aptly affirmed by the CA. On the technical side, Rev. Cortez avers
that the Republic has no legal personality to assail the CA Decision through the
present Petition since it was not a party in the appeal before the CA.

The Court's Ruling

We grant the Petition.

For starters, the Court shall distinguish a preliminary injunction from a final
injunction.

"Injunction is a judicial writ, process or proceeding whereby a party is directed

either to do a particular act, in which case it is called a mandatory injunction, [as
in this case,] or to refrain from doing a particular act, in which case it is called a
prohibitory injunction."20 "It may be the main action or merely a provisional
remedy for and as an incident in the main action."21

"The main action for injunction is distinct from the provisional or ancillary remedy
of preliminary injunction."22 A preliminary injunction does not determine the
merits of a case or decide controverted facts.23 Since it is a mere preventive
remedy, it only seeks to prevent threatened wrong, further injury and irreparable
harm or injustice until the rights of the parties are settled.24 "It is usually granted
when it is made to appear that there is a substantial controversy between the
parties and one of them is committing an act or threatening the immediate
commission of an act that will cause irreparable injury or destroy the status
quo of the controversy before a full hearing can be had on the merits of the
case."25 A preliminary injunction is granted at any stage of an action or
proceeding prior to judgment or final order.26 For its issuance, the applicant is
required to show, at least tentatively, that he has a right which is not vitiated by
any substantial challenge or contradiction.27 Simply stated, the applicant needs
only to show that he has the ostensible right to the final relief prayed for in his
complaint.28 On the other hand, the main action for injunction seeks a judgment
that embodies a final injunction.29 A final injunction is one which perpetually
restrains the party or person enjoined from the commission or continuance of an
act, or in case of mandatory injunctive writ, one which confirms the preliminary
mandatory injuction.30 It is issued when the court, after trial on the merits, is

86
convinced that the applicant is entitled to have the act or acts complained of
permanently enjoined.31 Otherwise stated, it is only after the court has come up
with a definite pronouncement respecting an applicant's right and of the act
violative of such right, based on its appreciation of the evidence presented, that
a final injunction is issued. To be a basis for a final and permanant injunction,
the right and the act violative thereof must be established by the applicant with
absolute certainty.32

What was before the trial court at the time of the issuance of its July 3, 2007
Decision is whether a final injunction should issue. While the RTC seemed to
realize this as it in fact made the injunction permanent, the Court, however, finds
the same to be wanting in basis.

Indeed, the RTC endeavored to provide a narrow distinction between a

preliminary injunction and a final injunction. Despite this, the RTC apparently
confused itself. For one, what it cited in its Decision were jurisprudence relating
to preliminary injunction and/or mandatory injunction as an ancillary writ and not
as a final injunction. At that point, the duty of the RTC was to determine, based
on the evidence presented during trial, if Rev. Cortez
has conclusively established his claimed right (as opposed to preliminary
injunction where an applicant only needs to at least tentatively show that he has
a right) over the subject area. This is considering that the existence of such right
plays an important part in determining whether the preliminary writ of
mandatory injunction should be confirmed. Surprisingly, however, the said
Decision is bereft of the trial court's factual findings on the matter as well as of
its analysis of the same vis-a-vis applicable jurisprudence. As it is, the said
Decision merely contains a restatement of the parties' respective allegations in
the Complaint and the Answer, followed by a narration of the ensuing
proceedings, an enumeration of the evidence submitted by Rev. Cortez, a
recitation of jurisprudence relating to preliminary injunction and/or specifically,
to mandatory injunction as an ancillary writ, a short reference to the IPRA which
the Court finds to be irrelevant and finally, a conclusion that a final and
permanent injunction should issue. No discussion whatsoever was made with
respect to whether Rev. Cortez was able to establish with absolute certainty his
claimed right over the subject area.cralawlawlibrary

Section 14, Article VIII of the Constitution, as well as Section 1 of Rule 36 and
Section 1, Rule 120 of the Rules on Civil Procedure, similarly state that a
decision, judgment or final order determining the merits of the case shall state,
clearly and distinctly, the facts and the law on which it is based. Pertinently, the
Court issued on January 28, 1988 Administrative Circular No. 1, which requires
judges to make complete findings of facts in their decision, and scrutinize closely
the legal aspects of the case in the light of the evidence presented, and avoid the
tendency to generalize and to form conclusion without detailing the facts from

87
which such conclusions are deduced.33
chanrobleslaw

Clearly, the Decision of the RTC in this case failed to comply with the aforestated
guidelines.

In cases such as this, the Court would normally remand the case to the court a
quo for compliance with the form and substance of a Decision as required by the
Constitution. In order, however, to avoid further delay, the Court deems it proper
to resolve the case based on the merits.34

"Two requisites must concur for injunction to issue: (1) there must be a right to
be protected and (2) the acts against which the injunction is to be directed are
violative of said right."35 Thus, it is necessary that the Court initially determine
whether the right asserted by Rev. Cortez indeed exists. As earlier stressed, it is
necessary that such right must have been established by him with absolute
certainty.

Rev. Cortez argues that he is entitled to the injunctive writ based on the
right of possession (jus possesionis) by reason of his peaceful and continuous
possession of the subject area since 1962. He avers that as this right is protected
by law, he cannot be peremptorily dispossessed therefrom, or if already
dispossessed, is entitled to be restored in possession. Hence, the mandatory
injunctive writ was correctly issued in his favor.

Jus possessionis or possession in the concept of an owner36 is one of the two

concepts of possession provided under Article 52537 of the Civil Code. Also
referred to as adverse possession,38 this kind of possession is one which can
ripen into ownership by prescription.39 As correctly asserted by Rev. Cortez, a
possessor in the concept of an owner has in his favor the legal presumption that
he possesses with a just title and he cannot be obliged to show or prove it. In
the same manner, the law endows every possessor with the right to be respected
in his possession.41

It must be emphasized, however, that only things and rights which are
susceptible of being appropriated may be the object of possession.42 The
following cannot be appropriated and hence, cannot be possessed: property of
the public dominion, common things (res communes) such as sunlight and air,
and things specifically prohibited by law.43

Here, the Court notes that while Rev. Cortez relies heavily on his asserted right
of possession, he, nevertheless, failed to show that the subject area over which
he has a claim is not part of the public domain and therefore can be the proper
object of possession.

88
Pursuant to the Regalian Doctrine, all lands of the public domain belong to the
State.44 Hence, "[a]ll lands not appearing to be clearly under private ownership
are presumed to belong to the State. Also, public lands remain part of the
inalienable land of the public domain unless the State is shown to have
reclassified or alienated them to private persons."45 To prove that a land is
alienable, the existence of a positive act of the government, such as presidential
proclamation or an executive order; an administrative action; investigation
reports of Bureau of Lands investigators; and a legislative act or a statute
declaring the land as alienable and disposable must be established.46

In this case, there is no such proof showing that the subject portion of Palaui
Island has been declared alienable and disposable when Rev. Cortez started to
occupy the same. Hence, it must be considered as still inalienable public domain.
Being such, it cannot be appropriated and therefore not a proper subject of
possession under Article 530 of the Civil Code. Viewed in this light, Rev. Cortez'
claimed right of possession has no leg to stand on. His possession of the subject
area, even if the same be in the concept of an owner or no matter how long,
cannot produce any legal effect in his favor since the property cannot be lawfully
possessed in the first place.

The same goes true even if Proclamation No. 201 and Proclamation No. 447 were
made subject to private rights. The Court stated in Republic v.
Bacas,47viz.:cralawlawlibrary

Regarding the subject lots, there was a reservation respecting 'private rights.'
In Republic v. Estonilo, where the Court earlier declared that Lot No. 4319 was
part of the Camp Evangelista Military Reservation and, therefore, not registrable,
it noted the proviso in Presidential Proclamation No. 265 requiring the
reservation to be subject to private rights as meaning that persons claiming
rights over the reserved land were not precluded from proving their claims.
Stated differently, the said proviso did not preclude the LRC from determining
whether x x x the respondents indeed had registrable rights over the property.

As there has been no showing that the subject parcels of land had been
segregated from the military reservation, the respondents had to prove
that the subject properties were alienable or disposable land of the
public domain prior to its withdrawal from sale and settlement and
reservation for military purposes under Presidential Proclamation No.
265. The question is primordial importance because it is determinative if the
land can in fact be subject to acquisitive prescription and, thus, registrable under
the Torrens system. Without first determining the nature and character of
the land, all other requirements such as length and nature of possession
and occupation over such land do not come into play. The required

89
length of possession does not operate when the land is part of the public
domain.

In this case, however, the respondents miserably failed to prove that, before the
proclamation, the subject lands were already private lands. They merely relied
on such 'recognition' of possible private rights. In their application, they alleged
that at the time of their application, they had been in open, continuous, exclusive
and notorious possession of the subject parcels of land for at least thirty (30)
years and became its owners by prescription. There was, however, no allegation
or showing that the government had earlier declared it open for sale or
settlement, or that it was already pronounced as inalienable and
disposable.48chanrobleslaw

In view of the foregoing, the Court finds that Rev. Cortez failed to conclusively
establish his claimed right over the subject portion of Palaui Island as would
entitle him to the issuance of a final injunction.

Anent the technical issue raised by Rev. Cortez, i.e, that the Republic has no
personality to bring this Petition since it was not a party before the CA, the Court
deems it prudent to set aside this procedural barrier. After all, "a party's standing
before [the] Court is a [mere] procedural technicality which may, in the exercise
of [its] discretion, be set aside in view of the importance of the issue raised." 49

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

WHEREFORE, the Petition is GRANTED. The June 29, 2011 Decision of the
Court of Appeals in CA-GR. CV No. 89968 denying the appeal and affirming the
July 3, 2007 Decision of the Regional Trial Court of Aparri, Cagayan-Branch 08 in
Spl. Civil Action Case No. 11-2403, is REVERSED and SET ASIDE. Accordingly,
the final injunction issued in this case is ordered DISSOLVED and the Petition for
Injunction in Spl. Civil Action Case No. II-2403, DISMISSED.

SO ORDERED.chanroblesvirtuallawlibrary

90
 EN BANC

G.R. No. 213948, April 25, 2017

KNIGHTS OF RIZAL, Petitioner, v. DMCI HOMES, INC., DMCI PROJECT

DEVELOPERS, INC., CITY OF MANILA, NATIONAL COMMISSION FOR
CULTURE AND THE ARTS, NATIONAL MUSEUM, AND NATIONAL
HISTORICAL COMMISSION OF THE PHILIPPINES, Respondents.

DECISION

CARPIO, J.:

Bury me in the ground, place a stone and a cross over it.

My name, the date of my birth, and of my death. Nothing more.
If you later wish to surround my grave with a fence, you may do so.
No anniversaries. I prefer Paang Bundok.

- Jose Rizal

The Case

Before this Court is a Petition for Injunction, with Applications for Temporary
Restraining Order, Writ of Preliminary Injunction, and Others1 filed by the
Knights of Rizal (KOR) seeking, among others, for an order to stop the
construction of respondent DMCI Homes, Inc.'s condominium development
project known as the Torre de Manila. In its Resolution dated 25 November 2014,
the Court resolved to treat the petition as one for mandamus.2

The Facts

On 1 September 2011, DMCI Project Developers, Inc. (DMCI-PDI)3 acquired a

7,716.60-square meter lot in the City of Manila, located near Taft Avenue,
Ermita, beside the former Manila Jai-Alai Building and Adamson University.4 The
lot was earmarked for the construction of DMCI-PDI's Torre de Manila
condominium project.

On 2 April 2012, DMCI-PDI secured its Barangay Clearance to start the

construction of its project. It then obtained a Zoning Permit from the City of
Manila's City Planning and Development Office (CPDO) on 19 June 2012.5

91
Then, on 5 July 2012, the City of Manila's Office of the Building Official granted
DMCI-PDI a Building Permit, allowing it to build a "Forty-Nine (49) Storey w/
Basement & 2 penthouse Level Res'l./Condominium" on the property.6

On 24 July 2012, the City Council of Manila issued Resolution No. 121 enjoining
the Office of the Building Official to temporarily suspend the Building Permit of
DMCI-PDI, citing among others, that "the Torre de Manila Condominium, based
on their development plans, upon completion, will rise up high above the back of
the national monument, to clearly dwarf the statue of our hero, and with such
towering heights, would certainly ruin the line of sight of the Rizal Shrine from
the frontal Roxas Boulevard vantage point[.]"7

Building Official Melvin Q. Balagot then sought the opinion of the City of Manila's
City Legal Officer on whether he is bound to comply with Resolution No. 121.8 In
his letter dated 12 September 2012, City Legal Officer Renato G. Dela Cruz
stated that there is "no legal justification for the temporary suspension of the
Building Permit issued in favor of [DMCI-PDI]" since the construction "lies outside
the Luneta Park" and is "simply too far to be a repulsive distraction or have an
objectionable effect on the artistic and historical significance" of the Rizal
Monument.9 He also pointed out that "there is no showing that the [area of]
subject property has been officially declared as an anthropological or
archeological area. Neither has it been categorically designated by the National
Historical Institute as a heritage zone, a cultural property, a historical landmark
or even a national treasure."

Subsequently, both the City of Manila and DMCI-PDI sought the opinion of the
National Historical Commission of the Philippines (NHCP) on the matter. In the
letter10 dated 6 November 2012 from NHCP Chairperson Dr. Maria Serena I.
Diokno addressed to DMCI-PDI and the letter11 dated 7 November 2012 from
NHCP Executive Director III Ludovico D. Badoy addressed to then Manila Mayor
Alfredo S. Lim, the NHCP maintained that the Torre de Manila project site is
outside the boundaries of the Rizal Park and well to the rear of the Rizal
Monument, and thus, cannot possibly obstruct the frontal view of the National
Monument.

On 26 November 2013, following an online petition against the Torre de Manila

project that garnered about 7,800 signatures, the City Council of Manila issued
Resolution No. 146, reiterating its directive in Resolution No. 121 enjoining the
City of Manila's building officials to temporarily suspend DMCI-PDI's Building
Permit.12

In a letter to Mayor Joseph Ejercito Estrada dated 18 December 2013, DMCI-PDI

President Alfredo R. Austria sought clarification on the controversy surrounding
its Zoning Permit. He stated that since the CPDO granted its Zoning Permit,

92
DMCI-PDI continued with the application for the Building Permit, which was
granted, and did not deem it necessary to go through the process of appealing to
the local zoning board. He then expressed DMCI-PDI's willingness to comply with
the process if the City of Manila deemed it necessary.13

On 23 December 2013, the Manila Zoning Board of Adjustments and Appeals

(MZBAA) issued Zoning Board Resolution No. 06, Series of
2013,14 recommending the approval of DMCI-PDI's application for variance. The
MZBAA noted that the Torre de Manila project "exceeds the prescribed maximum
Percentage of Land Occupancy (PLO) and exceeds the prescribed Floor Area Ratio
(FAR) as stipulated in Article V, Section 17 of City Ordinance No. 8119[.]"
However, the MZBAA still recommended the approval of the variance subject to
the five conditions set under the same resolution.

After some clarification sought by DMCI-PDI, the MZBAA issued Zoning Board
Resolution No. 06-A, Series of 2013,15 on 8 January 2014, amending condition
(c) in the earlier resolution.16

On 16 January 2014, the City Council of Manila issued Resolution No. 5, Series of
2014,17 adopting Zoning Board Resolution Nos. 06 and 06-A. The City Council
resolution states that "the City Council of Manila find[s] no cogent reason to deny
and/or reverse the aforesaid recommendation of the [MZBAA] and hereby
ratif1ies] and confirm[s] all previously issued permits, licenses and approvals
issued by the City [Council] of Manila for Torre de Manila[.]"

Arguments of the KOR

On 12 September 2014, the KOR, a "civic, patriotic, cultural, nonpartisan, non-

sectarian and non-profit organization"18 created under Republic Act No.
646,19 filed a Petition for Injunction seeking a temporary restraining order, and
later a permanent injunction, against the construction of DMCI-PDI's Torre de
Manila condominium project. The KOR argues that the subject matter of the
present suit is one of "transcendental importance, paramount public interest, of
overarching significance to society, or with far-reaching implication" involving the
desecration of the Rizal Monument.

The KOR asserts that the completed Torre de Manila structure will "[stick] out
like a sore thumb, [dwarf] all surrounding buildings within a radius of two
kilometer/s" and "forever ruin the sightline of the Rizal Monument in Luneta
Park: Torre de Manila building would loom at the back and overshadow the entire
monument, whether up close or viewed from a distance."20

Further, the KOR argues that the Rizal Monument, as a National Treasure, is
entitled to "full protection of the law"21 and the national government must abate

93
the act or activity that endangers the nation's cultural heritage "even against the
wishes of the local government hosting it."22

Next, the KOR contends that the project is a nuisance per se23 because "[t]he
despoliation of the sight view of the Rizal Monument is a situation that 'annoys or
offends the senses' of every Filipino who honors the memory of the National Hero
Jose Rizal. It is a present, continuing, worsening and aggravating status or
condition. Hence, the PROJECT is a nuisance per se. It deserves to be abated
summarily, even without need of judicial proceeding."24

The KOR also claims that the Torre de Manila project violates the
NHCP's Guidelines on Monuments Honoring National Heroes, Illustrious Filipinos
and Other Personages, which state that historic monuments should assert a
visual "dominance" over its surroundings,25 as well as the country's commitment
under the International Charter for the Conservation and Restoration of
Monuments and Sites, otherwise known as the Venice Charter.26

Lastly, the KOR claims that the DMCI-PDI's construction was commenced and
continues in bad faith, and is in violation of the City of Manila's zoning
ordinance.27

Arguments of DMCI-PDI

In ts Comment, MCI-PDI argues that the KOR's petition should be dismissed, on

the following grounds:chanRoblesvirtualLawlibrary
I.

THIS HONORABLE COURT HAS NO JURISDICTION OVER THIS ACTION.

II.

KOR HAS NO LEGAL RIGHT OR INTEREST TO FILE OR PROSECUTE THIS ACTION.

III

TORRE DE MANILA IS NOT A NUISANCE PER SE.

IV.

DMCI-PDI ACTED IN GOOD FAITH IN CONSTRUCTING TORRE DE MANILA; AND

V.

KOR IS NOT ENTITLED TO A TEMPORARY RESTRAINING ORDER AND/OR A WRIT

OF PRELIMINARY INJUNCTION.28

94
First, DMCI-PDI asserts that the Court has no original jurisdiction over actions for
injunction.29 Even assuming that the Court has concurrent jurisdiction, DMCI-PDI
maintains that the petition should still have been filed with the Regional Trial
Court under the doctrine of hierarchy of courts and because the petition involves
questions of fact.30

DMCI-PDI also contends that the KOR's petition is in actuality an opposition or

appeal from the exemption granted by the City of Manila's MZBAA, a matter
which is also not within the jurisdiction of the Court.31 DMCI-PDI claims that the
proper forum should be the MZBAA, and should the KOR fail there, it should
appeal the same to the Housing and Land Use Regulatory Board (HLURB).32

DMCI-PDI further argues that since the Rizal Monument has been declared a
National Treasure, the power to issue a cease and desist order is lodged with the
"appropriate cultural agency" under Section 25 of Republic Act No. 10066 or
the National Cultural Heritage Act of 2009.33 Moreover, DMCI-PDI asserts that
the KOR availed of the wrong remedy since an action for injunction is not the
proper remedy for abatement of a nuisance.34

Second, DMCI-PDI maintains that the KOR has no standing to institute this
proceeding because it is not a real party in interest in this case. The purposes of
the KOR as a public corporation do not include the preservation of the Rizal
Monument as a cultural or historical heritage site.35 The KOR has also not shown
that it suffered an actual or threatened injury as a result of the alleged illegal
conduct of the City of Manila. If there is any injury to the KOR at all, the same
was caused by the private conduct of a private entity and not the City of
Manila.36

Third, DMCI-PDI argues that the Torre de Manila is not a nuisance per se. DMCI-
PDI reiterates that it obtained all the necessary permits, licenses, clearances,
and certificates for its construction.37 It also refutes the KOR's claim that the
Torre de Manila would dwarf all other structures around it, considering that there
are other tall buildings even closer to the Rizal Monument itself, namely, the Eton
Baypark Tower at the corner of Roxas Boulevard and T.M. Kalaw Street (29
storeys; 235 meters from the Rizal Monument) and Sunview Palace at the corner
of M.H. Del Pilar and T.M. Kalaw Streets (42 storeys; 250 meters from the Rizal
Monument).38

Fourth, DMCI-PDI next argues that it did not act in bad faith when it started
construction of its Torre de Manila project. Bad faith cannot be attributed to it
since it was within the "lawful exercise of [its] rights."39 The KOR failed to
present any proof that DMCI-PDI did not follow the proper procedure and zoning
restrictions of the City of Manila. Aside from obtaining all the necessary permits
from the appropriate government agencies,40 DMCI-PDI also sought clarification

95
on its right to build on its site from the Office of the City Legal Officer of Manila,
the Manila CPDO, and the NHCP.41 Moreover, even if the KOR proffered such
proof, the Court would be in no position to declare DMCI-PDI's acts as illegal
since the Court is not a trier of facts.42

Finally, DMCI-PDI opposes the KOR's application for a Temporary Restraining

Order (TRO) and writ of preliminary injunction. DMCI-PDI asserts that the KOR
has failed to establish "a clear and unmistakable right to enjoin the construction
of Torre de Manila, much less request its demolition."43 DMCI-PDI further argues
that it "has complied with all the legal requirements for the construction of Torre
de Manila x x x [and] has violated no right of KOR that must be protected.
Further, KOR stands to suffer no damage because of its lack of direct pecuniary
interest in this petition. To grant the KOR's application for injunctive relief would
constitute an unjust taking of property without due process of law."44

Arguments of the City of Manila

In its Comment, the City of Manila argues that the writ of mandamus cannot
issue "considering that no property or substantive rights whatsoever in favor of
[the KOR] is being affected or x x x entitled to judicial protection[.]"45

The City of Manila also asserts that the "issuance and revocation of a Building
Permit undoubtedly fall under the category of a discretionary act or duty
performed by the proper officer in light of his meticulous appraisal and evaluation
of the pertinent supporting documents of the application in accordance with the
rules laid out under the National Building Code [and] Presidential Decree No.
1096,"46 while the remedy of mandamus is available only to compel the
performance of a ministerial duty.47

Further, the City of Manila maintains that the construction of the Torre de Manila
did not violate any existing law, since the "edifice [is] well behind (some 789
meters away) the line of sight of the Rizal Monument."48 It adds that the City of
Manila's "prevailing Land Use and Zoning Ordinance [Ordinance No. 8119] x x x
allows an adjustment in Floor Area Ratios thru the [MZBAA] subject to further
final approval of the City Council."49 The City Council adopted the MZBAA's
favorable recommendation in its Resolution No. 5, ratifying all the licenses and
permits issued to DMCI-PDI for its Torre de Manila project.

In its Position Paper dated 15 July 2015, the City of Manila admitted that the
Zoning Permit issued to DMCI-PDI was "in breach of certain provisions of City
Ordinance No. 8119."50 It maintained, however, that the deficiency is "procedural
in nature and pertains mostly to the failure of [DMCI-PDI] to comply with the
stipulations that allow an excess in the [FAR] provisions."51 Further, the City of
Manila argued that the MZBAA, when it recommended the allowance of the

96
project's variance, imposed certain conditions upon the Torre de Manila project in
order to mitigate the possible adverse effects of an excess FAR.52

The Issue

The issues raised by the parties can be summed up into one main point: Can the
Court issue a writ of mandamus against the officials of the City of Manila to stop
the construction of DMCI-PDI's Torre de Manila project?

The Court's Ruling

The petition for mandamus lacks merit and must be dismissed.

There is no law prohibiting the construction of the Torre de Manila.

In Manila Electric Company v. Public Service Commission,53 the Court held that
"what is not expressly or impliedly prohibited by law may be done,
except when the act is contrary to morals, customs and public order."
This principle is fundamental in a democratic society, to protect the weak against
the strong, the minority against the majority, and the individual citizen against
the government. In essence, this principle, which is the foundation of a civilized
society under the rule of law, prescribes that the freedom to act can be curtailed
only through law. Without this principle, the rights, freedoms, and civil liberties
of citizens can be arbitrarily and whimsically trampled upon by the shifting
passions of those who can shout the loudest, or those who can gather the
biggest crowd or the most number of Internet trolls. In other instances,54 the
Court has allowed or upheld actions that were not expressly prohibited by
statutes when it determined that these acts were not contrary to morals,
customs, and public order, or that upholding the same would lead to a more
equitable solution to the controversy. However, it is the law itself - Articles
130655 and 1409(1)56 of the Civil Code - which prescribes that acts not contrary
to morals, good customs, public order, or public policy are allowed if also not
contrary to law.

In this case, there is no allegation or proof that the Torre de Manila project is
"contrary to morals, customs, and public order" or that it brings harm, danger, or
hazard to the community. On the contrary, the City of Manila has determined
that DMCI-PDI complied with the standards set under the pertinent laws and
local ordinances to construct its Torre de Manila project.

There is one fact that is crystal clear in this case. There is no law prohibiting the
construction of the Torre de Manila due to its effect on the background "view,
vista, sightline, or setting" of the Rizal Monument.

97
Zoning, as well as land use, in the City of Manila is governed by Ordinance No.
8119. The ordinance provides for standards and guidelines to regulate
development projects of historic sites and facilities within the City of Manila.

Specifically, Section 47 reads:chanRoblesvirtualLawlibrary

SEC. 47. Historical Preservation and Conservation Standards. - Historic sites and
facilities shall be conserved and preserved. These shall, to the extent possible, be
made accessible for the educational and cultural enrichment of the general
public.

The following shall guide the development of historic sites and facilities:

1. Sites with historic buildings or places shall be developed to conserve and

enhance their heritage values.

2. Historic sites and facilities shall be adaptively re-used.

3. Any person who proposes to add, to alter, or partially demolish a designated

heritage property will require the approval of the City Planning and Development
Office (CPDO) and shall be required to prepare a heritage impact statement that
will demonstrate to the satisfaction of CPDO that the proposal will not adversely
impact the heritage significance of the property and shall submit plans for review
by the CPDO in coordination with the National Historical Institute (NHI).

4. Any proposed alteration and/or re-use of designated heritage properties shall

be evaluated based on criteria established by the heritage significance of the
particular property or site.

5. Where an owner of a heritage property applies for approval to demolish a

designated heritage property or properties, the owner shall be required to
provide evidence to satisfaction that demonstrates that rehabilitation and re-use
of the property is not viable.

6. Any designated heritage property which is to be demolished or significantly

altered shall be thoroughly documented for archival purposes with a history,
photographic records, and measured drawings, in accordance with accepted
heritage recording guidelines, prior to demolition or alteration.

7. Residential and commercial infill in heritage areas will be sensitive to the

existing scale and pattern of those areas, which maintains the existing landscape
and streetscape qualities of those areas, and which does not result in the loss of
any heritage resources.

8. Development plans shall ensure that parking facilities (surface lots, residential

98
garages, stand-alone parking garages and parking components as parts of larger
developments) are compatibly integrated into heritage areas, and/or are
compatible with adjacent heritage resources.

9. Local utility companies (hydro, gas, telephone, cable) shall be required to

place metering equipment, transformer boxes, power lines, conduit, equipment
boxes, piping, wireless telecommunication towers and other utility equipment
and devices in locations which do not detract from the visual character of
heritage resources, and which do not have a negative impact on its architectural
integrity.

10. Design review approval shall be secured from the CPDO for any alteration of
the heritage property to ensure that design guidelines and standards are met
and shall promote preservation and conservation of the heritage property.
(Emphasis supplied)
It is clear that the standards laid down in Section 47 of Ordinance No. 8119 only
serve as guides, as it expressly states that "the following shall guide the
development of historic sites and facilities." A guide simply sets a direction or
gives an instruction to be followed by property owners and developers in order to
conserve and enhance a property's heritage values.

On the other hand, Section 48 states:chanRoblesvirtualLawlibrary

SEC. 48. Site Performance Standards. - The City considers it in the public
interest that all projects are designed and developed in a safe, efficient and
aesthetically pleasing manner. Site development shall consider the
environmental character and limitations of the site and its adjacent properties.
All project elements shall be in complete harmony according to good design
principles and the subsequent development must be visually pleasing as well as
efficiently functioning especially in relation to the adjacent properties and
bordering streets.

1 The design, construction, operation and maintenance of every facility shall be

in harmony with the existing and intended character of its neighborhood. It shall
not change the essential character of the said area but will be a substantial
improvement to the value of the properties in the neighborhood in particular and
the community in general.

Furthermore, designs should consider the following:

1. Sites, buildings and facilities shall be designed and developed with regard to
safety, efficiency and high standards of design. The natural environmental
character of the site and its adjacent properties shall be considered in the site
development of each building and facility.

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2. The height and bulk of buildings and structures shall be so designed that it
does not impair the entry of light and ventilation, cause the loss of privacy
and/or create nuisances, hazards or inconveniences to adjacent developments.

3. Abutments to adjacent properties shall not be allowed without the neighbor's

prior written consent which shall be required by the City Planning and
Development Office (CPDO) prior to the granting of a Zoning Permit (Locational
Clearance).

4. The capacity of parking areas/lots shall be per the minimum requirements of

the National Building Code. These shall be located, developed and landscaped in
order to enhance the aesthetic quality of the facility. In no case, shall parking
areas/lots encroach into street rights-of-way and shall follow the Traffic Code as
set by the City.

5. Developments that attract a significant volume of public modes of

transportation, such as tricycles, jeepneys, buses, etc., shall provide on-site
parking for the same. These shall also provide vehicular loading and unloading
bays so as street traffic flow will not be impeded.

6. Buffers, silencers, mufflers, enclosures and other noise-absorbing materials

shall be provided to all noise and vibration-producing machinery. Noise levels
shall be maintained according to levels specified in DENR DAO No. 30 -
Abatement of Noise and Other Forms of Nuisance as Defined by Law.

7. Glare and heat from any operation or activity shall not be radiated, seen or
felt from any point beyond the limits of the property.

8. No large commercial signage and/or pylon, which will be detrimental

to the skyline, shall be allowed.

9. Design guidelines, deeds of restriction, property management plans and other

regulatory tools that will ensure high quality developments shall be required from
developers of commercial subdivisions and condominiums. These shall be
submitted to the City Planning and Development Office (CPDO) for review and
approval. (Emphasis supplied)
Section 47 of Ordinance No. 8119 specifically regulates the "development of
historic sites and facilities." Section 48 regulates "large commercial
signage and/or pylon." There is nothing in Sections 47 and 48 of Ordinance
No. 8119 that disallows the construction of a building outside the boundaries
of a historic site or facility, where such building may affect the background of
a historic site. In this case, the Torre de Manila stands 870 meters outside and to
the rear of the Rizal Monument and "cannot possibly obstruct the front view of
the [Rizal] Monument."57 Likewise, the Torre de Manila is not in an area that has

100
been declared as an "anthropological or archeological area" or in an area
designated as a heritage zone, cultural property, historical landmark, or a
national treasure by the NHCP.58

Section 15, Article XIV of the Constitution, which deals with the subject of arts
and culture, provides that "[t]he State shall conserve, promote and popularize
the nation's historical and cultural heritage and resources x x x." Since this
provision is not self-executory, Congress passed laws dealing with the
preservation and conservation of our cultural heritage.

One such law is Republic Act No. 10066,59 or the National Cultural Heritage Act of
2009, which empowers the National Commission for Culture and the Arts and
other cultural agencies to issue a cease and desist order "when the physical
integrity of the national cultural treasures or important cultural properties [is]
found to be in danger of destruction or significant alteration from its
original state."60 This law declares that the State should protect the "physical
integrity" of the heritage property or building if there is "danger of destruction
or significant alteration from its original state." Physical integrity refers to the
structure itself - how strong and sound the structure is. The same law
does not mention that another project, building, or property, not itself a
heritage property or building, may be the subject of a cease and desist order
when it adversely affects the background view, vista, or sightline of a heritage
property or building. Thus, Republic Act No. 10066 cannot apply to the Torre de
Manila condominium project.

Mandamus does not lie against the City of Manila.

The Constitution states that "[n]o person shall be deprived of life, liberty or
property without due process of law x x x."61 It is a fundamental principle that no
property shall be taken away from an individual without due process, whether
substantive or procedural. The dispossession of property, or in this case the
stoppage of the construction of a building in one's own property, would violate
substantive due process.

The Rules on Civil Procedure are clear that mandamus only issues when there is
a clear legal duty imposed upon the office or the officer sought to be compelled
to perform an act, and when the party seeking mandamus has a clear legal right
to the performance of such act.

In the present case, nowhere is it found in Ordinance No. 8119 or in any law,
ordinance, or rule for that matter, that the construction of a building outside the
Rizal Park is prohibited if the building is within the background sightline or view
of the Rizal Monument. Thus, there is no legal duty on the part of the City of
Manila "to consider," in the words of the Dissenting Opinion, "the standards

101
set under Ordinance No. 8119" in relation to the applications of DMCI-PDI for
the Torre de Manila since under the ordinance these standards can never be
applied outside the boundaries of Rizal Park. While the Rizal Park has been
declared a National Historical Site, the area where Torre de Manila is being built
is a privately-owned property that is "not part of the Rizal Park that has been
declared as a National Heritage Site in 1995," and the Torre de Manila area is in
fact "well-beyond" the Rizal Park, according to NHCP Chairperson Dr. Maria
Serena I. Diokno.62 Neither has the area of the Torre de Manila been designated
as a "heritage zone, a cultural property, a historical landmark or even a national
treasure."63

Also, to declare that the City of Manila failed to consider the standards under
Ordinance No. 8119 would involve making a finding of fact. A finding of fact
requires notice, hearing, and the submission of evidence to ascertain compliance
with the law or regulation. In such a case, it is the Regional Trial Court which has
the jurisdiction to hear the case, receive evidence, make a proper finding of fact,
and determine whether the Torre de Manila project properly complied with the
standards set by the ordinance. In Meralco Public Service Commission,64 we held
that it is the cardinal right of a party in trials and administrative proceedings to
be heard, which includes the right of the party interested or affected to present
his own case and submit evidence in support thereof and to have such evidence
presented considered by the proper court or tribunal.

To compel the City of Manila to consider the standards under Ordinance No. 8119
to the Torre de Manila project will be an empty exercise since these standards
cannot apply outside of the Rizal Park - and the Torre de Manila is outside the
Rizal Park. Mandamus will lie only if the officials of the City of Manila have a
ministerial duty to consider these standards to buildings outside of the Rizal
Park. There can be no such ministerial duty because these standards are not
applicable to buildings outside of the Rizal Park.

The KOR also invokes this Court's exercise of its extraordinary certiorari power of
review under Section 1, Article VIII65 of the Constitution. However, this Court can
only exercise its extraordinary certiorari power if the City of Manila, in issuing the
required permits and licenses, gravely abused its discretion amounting to
lack or excess of jurisdiction. Tellingly, neither the majority nor minority
opinion in this case has found that the City of Manila committed grave abuse of
discretion in issuing the permits and licenses to DMCI-PDI. Thus, there is no
justification at all for this Court to exercise its extraordinary certiorari power.

Moteover, the exercise of this Court's extraordinary certiorari power is limited to

actual cases and controversies that necessarily involve a violation of the
Constitution or the determination of the constitutionality or validity of a
governmental act or issuance. Specific violation of a statute that does inot raise

102
the issue of constitutionality or validity of the statute cannot, as a rule, be the
subject of the Court's direct exercise of its expanded certiorari power. Thus, the
KOR's recourse lies with other judicial remedies or proceedings allowed under the
Rules of Court.

In Association of Medical Clinics for Overseas Workers, Inc. v. GCC Approved

Medical Centers Association, Inc.,66 we held that in cases where the question of
constitutionality of a governmental action is raised, the judicial power that the
courts exercise is likewise identified as the power of judicial review - the power
to review the constitutionality of the actions of other branches of government. As
a rule, as required by the hierarchy of courts principle, these cases are filed with
the lowest court with jurisdiction over the subject matter. The judicial review that
the courts undertake requires:chanRoblesvirtualLawlibrary
1)there be an actual case or controversy calling for the exercise of judicial power;

2)the person challenging the act must have "standing" to challenge; he must
have a personal and substantial interest in the case such that he has sustained,
or will sustain, direct injury as a result of its enforcement;

3)the question of constitutionality must be raised at the earliest possible

opportunity; and

4)the issue of constitutionality must be the very lis mota of the case.
The lower court's decision under the constitutional scheme reaches the Supreme
Court through the appeal process, through a petition for review
on certiorari under Rule 45 of the Rules of Court.

In the present case, the KOR elevated this case immediately to this Court in an
original petition for injunction which we later on treated as one for mandamus
under Rule 65. There is, however, no clear legal duty on the City of Manila to
consider the provisions of Ordinance No. 8119 for applications for permits to
build outside the protected areas of the Rizal Park. Even if there were such legal
duty, the determination of whether the City of Manila failed to abide by this legal
duty would involve factual matters which have not been admitted or established
in this case. Establishing factual matters is not within the realm of this Court.
Findings of fact are the province of the trial courts.

There is no standard in Ordinance No. 8119 for defining or determining the

background sightline that is supposed to be protected or that is part of the
"physical integrity" of the Rizal Monument. How far should a building like the
Torre de Manila be from the Rizal Monument - one, two, three, four, or five
kilometers? Even the Solicitor General, during the Oral Arguments, conceded that
the ordinance does not prescribe how sightline is determined, neither is there
any way to measure by metes and bounds whether construction that is not part
103
of the historic monument itself or is outside the protected area can be
said to violate the Rizal Monument's physical integrity, except only to say
"when you stand in front of the Rizal Monument, there can be no doubt that your
view is marred and impaired." This kind of a standard has no parameters and can
include a sightline or a construction as far as the human eyes can see when
standing in front of the Rizal Monument. Obviously, this Court cannot apply such
a subjective and non-uniform standard that adversely affects property rights
several kilometers away from a historical sight or facility.

The Dissenting Opinion claims that "the City, by reason of a mistaken or

erroneous construction of its own Ordinance, had failed to consider its duties
under [Ordinance No. 8119] when it issued permits in DMCI-PDI's favor."
However, MZBAA Zoning Board Resolution Nos. 06 and 06-A67 easily dispel this
claim. According to the resolutions, the City of Manila, through the MZBAA, acted
on DMCI-PDI's application for variance under the powers and standards set forth
in Ordinance No. 8119.

Without further proof that the MZBAA acted whimsically, capriciously, or

arbitrarily in issuing said resolution, the Court should respect MZBAA's exercise
of discretion. The Court cannot "substitute its judgment for that of said officials
who are in a better position to consider and weigh the same in the light of the
authority specifically vested in them by law."68 Since the Court has "no
supervisory power over the proceedings and actions of the administrative
departments of the government," it "should not generally interfere with purely
administrative and discretionary functions."69 The power of the Court in
mandamus petitions does not extend "to direct the exercise of judgment or
discretion in a particular way or the retraction or reversal of an action
already taken in the exercise of either."70

Still, the Dissenting Opinion insists on directing the re-evaluation by the City of
Manila, through the CPDO, of the permits previously issued in favor of the Torre
de Manila project to determine compliance with the standards under Ordinance
No. 8119. It also declares that the circumstances in this case warrant the pro hac
vice conversion of the proceedings in the issuance of the permits into a
"contested case" necessitating notice and hearing with all the parties involved.

Pro hac vice means a specific decision does not constitute a precedent because
the decision is for the specific case only, not to be followed in other cases. A pro
hac vice decision violates statutory law - Article 8 of the Civil Code - which states
that "judicial decisions applying or interpreting the laws or the Constitution shall
form part of the legal system of the Philippines." The decision of the Court in this
case cannot be pro hac vice because by mandate of the law every decision of
the Court forms part of the legal system of the Philippines. If another case comes
up with the same facts as the present case, that case must be decided in the

104
same way as this case to comply with the constitutional mandate of equal
protection of the law. Thus, a pro hac vice decision also violates the equal
protection clause of the Constitution.

It is the policy of the courts not to interfere with the discretionary executive acts
of the executive branch unless there is a clear showing of grave abuse of
discretion amounting to lack or excess of jurisdiction. Mandamus does not lie
against the legislative and executive branches or their members acting in the
exercise of their official discretionary functions. This emanates from the respect
accorded by the judiciary to said branches as co-equal entities under the
principle of separation of powers.

In De Castro v. Salas,71 we held that no rule of law is better established than the
one that provides that mandamus will not issue to control the discretion of an
officer or a court when honestly exercised and when such power and authority is
not abused.

In exceptional cases, the Court has granted a prayer for mandamus to compel
action in matters involving judgment and discretion, only "to act, but not to act
one way or the other,"72 and only in cases where there has been a clear
showing of grave abuse of discretion, manifest injustice, or palpable
excess of authority.73

In this case, there can be no determination by this Court that the City of Manila
had been negligent or remiss in its duty under Ordinance No. 8119 considering
that this determination will involve questions of fact. DMCI-PDI had been issued
the proper permits and had secured all approvals and licenses months before the
actual construction began. Even the KOR could not point to any law that
respondent City of Manila had violated and could only point to declarations of
policies by the NHCP and the Venice Charter which do not constitute clear legal
bases for the issuance of a writ of mandamus.

The Venice Charter is merely a codification of guiding principles for the

preservation and restoration of ancient monuments, sites, and buildings. It
brings together principles in the field of historical conservation and restoration
that have been developed, agreed upon, and and laid down by experts over the
years. Each country, however, remains "responsible for applying the plan within
the framework of its own culture and traditions."74

The Venice Charter is not a treaty and therefore does not become enforceable as
law. The Philippines is not legally bound to follow its directive, as in fact, these
are not directives but mere guidelines a set of the best practices and techniques
that have been proven over the years to be the most effective in preserving and
restoring historical monuments, sites and buildings.

105
The City of Manila concedes that DMCI-PDI's Zoning Permit was granted without
going through the process under Ordinance No. 8119. However,the same was
properly rectified when, faced with mounting opposition, DMCI-PDI itself sought
clarification from the City of Manila and immediately began complying with the
procedure for applying for a variance. The MZBAA did subsequently recommend
the approval of the variance and the City Council of Manila approved the same,
ratifying the licenses and permits already given to DMCI-PDI. Such ratification
was well within the right of the City Council of Manila. The City Council of Manila
could have denied the application had it seen any reason to do so. Again, the
ratification is a function of the City Council of Manila, an exercise of its discretion
and well within the authority granted it by law and the City's own Ordinance No.
8119.

The main purpose of zoning is the protection of public safety, health,

convenience, and welfare. There is no indication that the Torre de Manila project
brings any harm, danger, or hazard to the people in the surrounding areas
except that the building allegedly poses an unsightly view on the taking of photos
or the visual appreciation of the Rizal Monument by locals and tourists. In fact,
the Court must take the approval of the MZBAA, and its subsequent ratification
by the City Council of Manila, as the duly authorized exercise of discretion by the
city officials. Great care must be taken that the Court does not unduly tread upon
the local government's performance of its duties. It is not for this Court to dictate
upon the other branches of the government how their discretion must be
exercised so long as these branches do not commit grave abuse of discretion
amounting to lack or excess of jurisdiction.

Likewise, any violation of Ordinance No. 8119 must be determined in the propel
case and before the proper forum. It is not within the power of this Court in this
case to make such determination. Without such determination, this Court cannot
simply declare that the City of Manila had failed to consider its duties under
Ordinance No. 8119 when it issued the permits in DMCI-PDI's favor without
making a finding of fact how the City of Manila failed "to consider" its duties with
respect to areas outside the boundaries of the Rizal Park. In the first place, this
Court has no jurisdiction to make findings of fact in an original action like this
before this Court. Moreover, the City of Manila could not legally apply standards
to sites outside the area covered by the ordinance that prescribed the standards.
With this, taken in light of the lack of finding that there was grave abuse of
discretion on the part of the City of Manila, there is no basis to issue the writ of
mandamus against the City of Manila.

During the Oral Arguments, it was established that the granting of a variance s
neither uncommon nor irregular. On the contrary, current practice has made

106
granting of a variance the rule rather than the
exception:chanRoblesvirtualLawlibrary
JUSTICE CARPIO: Let's go to Ordinance 8119. For residential condominium that
stand alone, in other words not part of a commercial complex or an industrial
complex...
ATTY. FLAMINIANO: Yes, Your Honor.

JUSTICE CARPIO: The [Floor Area Ratio (FAR)] is uniform for the entire City of
Manila, the FAR 4, correct?
ATTY. FLAMINIANO: I believe so, Your Honor, it's FAR 4.

JUSTICE CARPIO: So it's FAR 4 for all residential condominium complex or

industrial projects.
ATTY. FLAMINIANO: There might be, the FAR might be different when it comes to
condominiums in commercial areas, Your Honor.

JUSTICE CARPIO: Yes, I'm talking of stand-alone...

ATTY. FLAMINIANO: Yes, Your Honor.

JUSTICE CARPIO: ...residential condominiums...

ATTY. FLAMINIANO: Uniform at FAR 4, Your Honor.

JUSTICE CARPIO: And the percentage of land occupancy is always 60 percent.

ATTY. FLAMINIANO: 60 percent, correct, Your Honor.

JUSTICE CARPIO: Okay...how many square meters is this Torre de Manila?

xxxx
ATTY. FLAMINIANO: The land area, Your Honor, it's almost 5,000...5,556.

JUSTICE CARPIO: So, it's almost half a hectare.

ATTY. FLAMINIANO: Yes, Your Honor.

JUSTICE CARPIO: And at FAR 4, it can only build up to 18 storeys, I mean at FAR
4, is that correct?
ATTY. FLAMINIANO: If the 60 percent of the lot...

JUSTICE CARPIO: Yes, but that is a rule.

ATTY. FLAMINIANO: That is a rule, that's the rule, Your Honor.

JUSTICE CARPIO: 60 percent of...

ATTY. FLAMINIANO: Of the land area.

JUSTICE CARPIO: ...buildable, the rest not buildable.

ATTY. FLAMINIANO: Yes, Your Honor.

107
JUSTICE CARPIO: Okay, so if you look around here in the City of Manila
anywhere you go, you look at stand alone residential condominium buildings...
ATTY. FLAMINIANO: There's a lot of them, Your Honor.

JUSTICE CARPIO: It's always not FAR 4, it's more than FAR 4.
ATTY. FLAMINIANO: Yes, Your Honor.

JUSTICE CARPIO: And the buildable area is to the edge of the property...it's not
60 percent, correct?
ATTY. FLAMINIANO: Yes, Your Honor.

JUSTICE CARPIO: So, if you look at all the...residential buildings in the

last ten years, they [have] all variances. They did not follow the original
FAR 4 or the 60 percent (of land occupancy). Every residential building
that stand alone was a variance.
ATTY. FLAMINIANO: That's correct, Your Honor.

JUSTICE CARPIO: So the rule really in the City of Manila is variance, and
the exception which is never followed is FAR 4.
ATTY. FLAMINIANO: FAR 4, it appears to be that way, Your Honor.

xxxx

JUSTICE CARPIO: Every developer will have to get a variance because it

doesn't make sense to follow FAR 4 because the land is so expensive and
if you can build only two storeys on a 1,000-square meter lot, you will
surely lose money, correct?
ATTY. FLAMINIANO: Exactly, Your Honor.75 (Emphasis supplied)
Thus, the MZBAA's grant of the variance cannot be used as a basis to
grant the mandamus petition absent any clear finding that said act
amounted to "grave abuse of discretion, manifest injustice, or palpable
excess of authority."

The KOR is Estopped from Questioning the Torre de Manila Construction.

The KOR is now estopped from questioning the construction of the Torre de
Manila project. The KOR itself came up with the idea to build a structure right
behind the Rizal Monument that would dwarf the Rizal Monument.

In the mid-1950s, the Jose Rizal National Centennial Commission (JRNCC)

formulated a plan to build an Educational Center within the Rizal Park. In July
1955, the KOR proposed the inclusion of a national theater on the site of the
Educational Center. The JRNCC adopted the proposal. The following year, a law -

108
Republic Act No. 142776 - authorized the establishment of the Jose Rizal National
Cultural Shrine consisting of a national theater, a national museum, and a
national library on a single site.77

To be built on the open space right behind the 12.7 meter high Rizal Monument
were: the KOR's proposed national theater, standing 29.25 meters high and 286
meters in distance from the Rizal Monument; the national library, standing 25.6
meters high and 180 meters in distance from the Rizal Monument, with its rear
along San Luis Street (now T.M. Kalaw Street); and facing it, the national
museum, at 19.5 meters high and 190 meters in distance from the Rizal
Monument, with its back along P. Burgos Street.78

However, several sectors voiced their objections to the construction for various
reasons. Among them, the need to preserve the open space of the park, the high
cost of construction, the desecration of the park's hallowed grounds, and the
fact that the proposed cultural center including the 29.25 meter high
national theater proposed by the KOR would dwarf the 12.7 meter high
Rizal Monument.79 The JRNCC revised the plan and only the National Library -
which still stands today - was built.80

According to the NHCP, the KOR even proposed to build a Rizal Center on the
park as recently as 2013.81The proposal was disapproved by the NHCP and the
Department of Tourism.

Surely, as noble as the KOR's intentions were, its proposed center would have
dwarfed the Rizal Monument with its size and proximity.

In contrast, the Torre de Manila is located well outside the Rizal Park, and to the
rear of the Rizal Monument - approximately 870 meters from the Rizal Monument
and 30 meters from the edge of Rizal Park.82

It is a basic principle that "one who seeks equity and justice must come to court
with clean hands."83 In Jenosa v. Delariarte,84 the Court reiterated that he who
seeks equity must do equity, and he who comes into equity must come with
clean hands. This "signifies that a litigant may be denied relief by a court of
equity on the ground that his conduct has been inequitable, unfair and dishonest,
or fraudulent, or deceitful as to the controversy in issue."85 Thus, the KOR,
having earlier proposed a national theater a mere 286 meters in distance from
the back of the Rizal Monument that would have dwarfed the Rizal Monument,
comes to this Court with unclean hands. It is now precluded from "seeking any
equitable refuge"86 from the Court. The KOR's petition should be dismissed on
this ground alone.

Torre de Manila is Not a Nuisance Per Se.

109
In its petition, the KOR claims that the Torre de Manila is a nuisance per se that
deserves to be summarily abated even without judicial proceedings.87 However,
during the Oral Arguments, counsel for the KOR argued that the KOR now
believes that the Torre de Manila is a nuisance per accidens and not a
nuisance per se.88

Article 694 of the Civil Code defines a nuisance as any act, omission,
establishment, business, condition of property, or anything else which: (1)
injures or endangers the health or safety of others; (2) annoys or offends the
senses; (3) shocks, defies or disregards decency or morality; (4) obstructs or
interferes with the free passage of any public highway or street, or any body of
water; or (5) hinders or impairs the use of property.

The Court recognizes two kinds of nuisances. The first, nuisance per se, is one
"recognized as a nuisance under any and all circumstances, because it
constitutes a direct menace to public health or safety, and, for that reason, may
be abated summarily under the undefined law of necessity."89 The second,
nuisance per accidens, is that which "depends upon certain conditions and
circumstances, and its existence being a question of fact, it cannot be abated
without due hearing thereon in a tribunal authorized to decide whether such a
thing in law constitutes a nuisance."90

It can easily be gleaned that the Torre de Manila is not a nuisance per se. The
Torre de Manila project cannot be considered as a "direct menace to public health
or safety." Not only is a condominium project commonplace in the City of Manila,
DMCI-PDI has, according to the proper government agencies, complied with
health and safety standards set by law. DMCI-PDI has been granted the following
permits and clearances prior to starting the project: (1) Height Clearance Permit
from the Civil Aviation Authority of the Philippines;91 (2) Development Permit
from the HLURB;92 (3) Zoning Certification from the HLURB;93 (4) Certificate of
Environmental Compliance Commitment from the Environment Management
Bureau of the Department of Environment and Natural Resources;94 (5)
Barangay Clearance;95 (6) Zoning Permit;96 (7) Building Permit;97 (8) and
Electrical and Mechanical Permit.98

Later, DMCI-PDI also obtained the right to build under a variance recommended
by the MZBAA and granted by the City Council of Manila. Thus, there can be no
doubt that the Torre de Manila project is not a nuisance per se.

On the other hand, the KOR now claims that the Torre de Manila is a
nuisance per accidens.

By definition, a nuisance per accidens is determined based on its surrounding

110
conditions and circumstances. These conditions and circumstances must be well
established, not merely alleged. The Court cannot sinlply accept these conditions
and circumstances as established facts as the KOR would have us do in this
case.99 The KOR itself concedes that the question of whether the Torre de Manila
is a nuisance per accidens is a question of fact.100

The authority to decide when a nuisance exists is an authority to find facts, to

estimate their force, and to apply rules of law to the case thus made.101 This
Court is no such authority. It is not a trier of facts. It cannot simply take the
allegations in the petition and accept these as facts, more so in this case where
these allegations are contested by the respondents.

The task to receive and evaluate evidence is lodged with the trial courts. The
question, then, of whether the Torre de Manila project is a nuisance per
accidens must be settled after due proceedings brought before the proper
Regional Trial Court. The KOR cannot circumvent the process in the guise of
protecting national culture and heritage.

The TRO must be lifted.

Injunctive reliefs are meant to preserve substantive rights and prevent further
injury102 until final adjudication on the merits of the case. In the present case,
since the legal rights of the KOR are not well-defined, clear, and certain, the
petition for mandamus must be dismissed and the TRO lifted.

The general rule is that courts will not disturb the findings of administrative
agencies when they are supported by substantial evidence. In this case, DMCI-
PDI already acquired vested rights in the various permits, licenses, or even
variances it had applied for in order to build a 49-storey building which is, and
had been, allowed by the City of Manila's zoning ordinance.

As we have time and again held, courts generally hesitate to review discretionary
decisions or actions of administrative agencies in the absence of proof that such
decisions or actions were arrived at with grave abuse of discretion amounting to
lack or excess of jurisdiction.

In JRS Business Corp. v. Montesa,103 we held that mandamus is the proper

remedy if it could be shown that there was neglect on the part of a tribunal in
the performance of an act which the law specifically enjoins as a duty, or there
was an unlawful exclusion of a party from the use and enjoyment of a right to
which he is clearly entitled. Only specific legal rights may be enforced by
mandamus if they are clear and certain. If the legal rights of the petitioner are
not well-defined, definite, clear, and certain,104 the petition must be dismissed.
Stated otherwise, the writ never issues in doubtful cases. It neither confers

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powers nor imposes duties. It is simply a command to exercise a power already
possessed and to perform a duty already imposed.105

In sum, bearing in mind the Court does not intervene in discretionary acts of the
executive department in the absence of grave abuse of discretion,106 and
considering that mandamus may only be issued to enforce a clear ahd certain
legal right,107 the present special civil action for mandamus must be dismissed
and the TRO issued earlier must be lifted.

A FINAL WORD

It had been Rizal's wish to die facing the rising sun. In his Mi Ultimo Adios, the
poem he left for his family the night before he was executed, Rizal
wrote:chanRoblesvirtualLawlibrary
Yo muero cuando veo que el cielo se colora Y al fin anuncia el dia tras lobrego
capuz108

[Ako'y mamamatay, ngayong namamalas na sa Silanganan ay namamanaag

yaong maligayang araw na sisikat sa likod ng luksang nagtabing na ulap.]109

[I die just when I see the dawn break, Through the gloom of night, to herald the
day]110
Yet at the point of his execution, he was made to stand facing West towards
Manila Bay, with his back to the firing squad, like the traitor the colonial
government wished to portray him. He asked to face his executioners, facing the
East where the sun would be rising since it was early morning, but the Spanish
captain did not allow it. As he was shot and a single bullet struck his frail body,
Rizal forced himself, with his last remaining strength, to turn around to face the
East and thus he fell on his back with his face to the sky and the rising sun.
Then, the Spanish captain approached Rizal and finished him off with one pistol
shot to his head.

Before his death, Rizal wrote a letter to his family. He asked for a simple tomb,
marked with a cross and a stone with only his name and the date of his birth and
death; no anniversary celebrations; and interment at Paang Bundok (now, the
Manila North Cemetery). Rizal never wanted his grave to be a burden to future
generations.

The letter never made it to his family and his wishes were not carried out. The
etter was discovered many years later, in 1953. By then, his remains had been
entombed at the Rizal Monument, countless anniversaries had been celebrated,
with memorials and monuments built throughout the world.

Rizal's wish was unmistakable: to be buried without pomp or pageantry, to the

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point of reaching oblivion or obscurity in the future.111 For Rizal's life was never
about fame or vainglory, but for the country he loved dearly and for which he
gave up his life.

The Rizal Monument is expressly against Rizal's own wishes. That Rizal's statue
now stands facing West towards Manila Bay, with Rizal's back to the East, adds
salt to the wound. If we continue the present orientation of Rizal's statue, with
Rizal facing West, we would be like the Spanish captain who refused Rizal's
request to die facing the rising sun in the East. On the other hand, if Rizal 's
statue is made to face East, as Rizal had desired when he was about to be shot,
the background - the blue sky above Manila Bay would forever be clear of
obstruction, and we would be faithful to Rizal's dying wish.

WHEREFORE, the petition for mandamus is DISMISSED for lack of merit. The
Temporary Restraining Order issued by the Court on 16 June 2015
is LIFTED effective immediately.

SO ORDERED.

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