MONTENEGRO V. MONTENEGRO (REMEDIAL)

Issue: Whether the court erred in holding the petitioner guilty of indirect contempt for willfully disobeying the orders of the trial court requiring his to appear for purposes of examination as a judgment obligor.

No.

The Rules of Court penalizes two types of contempt, namely DIRECT CONTEMPT AND INDIRECT CONTEMPT. Direct contempt is committed in the presence of or so near a court as to obstruct or interrupt the proceedings before the same, and includes disrespect toward the court, offensive personalities towards others, or refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully required to do so.

Indirect contempt may either be initiated

1. motu proprio by the court by issuing an order or any other formal charge requiring the respondent to show cause why he should not be punished for contempt; or
2. by the filing of a verified petition, complying with the requirements for filing initiatory pleadings.

In the present case, the trial court initiated the proceedings for indirect contempt by issuing two orders directing the petitioner to show cause why he should not be punished for indirect contempt.

Contempt, whether direct or indirect, may be civil or criminal depending on the nature and effect of the contemptuous act. Criminal contempt is "conduct directed against the authority and dignity of the court or a judge acting judicially, it is an act obstructing the administration of justice which tends to bring the court into disrepute or disrespect."

On the other hand, civil contempt is the failure to do something ordered to be done by a court or a judge for the benefit of the opposing party therein and is therefore, an offense against the party in whose behalf the violated order was made. If the purpose is to punish, then it is criminal in nature; but if to compensate, then it is civil.

It is of no moment that petitioner was eventually examined as judgment obligor, nine months after the original setting. his subsequent appearance at the hearing did not wipe out his contemptuous conduct.

In the present case, the nature of the contemptuous acts committed is civil in nature. the act however which the trial court ordered the petitioner to do has already been performed, albeit belatedly and not without delay for an unreasonable length of time. As such, the penalty of imprisonment may no longer be imposed despite the fact that its non-implementation was due to petitioner's absence in the Philippines.

Contempt may be initiated by the Court motu proprio for disregarding its previous orders, independently of the motions filed by the parties. No verified petition is required if the proceedings for indirect contempt are initiated in this manner and the absence of a verified petition does not affect the procedure adopted.

ESPANOL V. FORMOSO (REMEDIAL)

Issue: Whether petitioner erred in ruling that respondents are guilty of direct contempt of court for using falsified documents when Sharcons filed its complaint for quieting of title.

DIRECT CONTEMPT is one done in the presence of or so near the court or judge as to obstruct the administration of justice. It is a contumacious act done facie curiae and may be punished summarily without hearing. In other words, one may be summarily adjudged in direct contempt at the very moment or at the very instance of the commission of the act of contumely.

INDIRECT OR CONSTRUCTIVE CONTEMPT in turn,is one perpetrated outside of the sitting of the court and may include misbehavior of an officer of a court in the performance of his official duties or in his official transactions, disobedience of or resistance to a lawful writ, process, order, judgment, or command of a court, or injunction granted by a court or a judge, any abuse or any unlawful interference with the process or proceedings of a court not constituting direct contempt, or any improper conduct tending directly or indirectly to impede, obstruct, or degrade the administration of justice.

We agree with the petitioner that the use of falsified and forged documents is a contumacious act. However, it constituted indirect contempt, not direct contempt. In Santos v. CFI of Cebu, we ruled that the imputed use of a falsified document, more so where the falsity of the document is not apparent on its face, merely constituted indirect contempt, and as such is subject to such defenses as the accused may raise in the proper proceedings. Thus, following Section 3, Rule 71, a contemner may be punished only after a charge in writing has been filed, and an opportunity has been given to the accused to be heard by himself and counsel.

Moreover, settled is the rule that a contempt proceeding is not a civil action, but a separate proceeding of a criminal nature in which the court exercises limited jurisdiction. Thus, the modes of procedure and the rules of evidence in contempt proceedings are assimilated as far as practicable to those adopted to criminal prosecutions. Perforce, petitioner judge erred in declaring summarily that respondents are guilty of direct contempt and ordering their incarceration. She should have conducted a hearing with notice to respondents.

LARANO V. CALENDACION (REMEDIAL)

Issue: Whether the complaint is one for unlawful detainer.

Settled is the rule that jurisdiction in ejectment cases is determined by the allegations pleaded in the complaint. The test for determining the sufficiency of those allegations is whether, admitting the facts alleged, the court can render a valid judgment in accordance with the prayer of the plaintiff.

In UNLAWFUL DETAINER, the possession was originally lawful but became unlawful by the expiration or termination of the right to possess; hence, the issue of rightful possession is decisive for, in such action, the defendant is in actual possession and the plaintiff's cause of action is the termination of the defendant's right to continue in possession.

Applied to the present case, petitioner, as vendor, must comply with two requisites for the purpose of bringing an ejectment suit:

1. there must be failure to pay the installment due or comply with the conditions of the Contract to Sell (cause of action); and
2. there must be demand both to pay or to comply and vacate within the periods specified in Rule 70, namely: 15 days in case of land and 5 days in case of buildings (jurisdictional requirement).

The first requisite refers to the existence of the cause of action for unlawful detainer, while the second refers to the jurisdiction requirement of demand in order that said cause of action may be pursued.

Both demands - to pay installment due or adhere to the terms of the Contract to Sell and to vacate are necessary to make the vendee deforciant in order that an ejectment suit may be filed. It is the vendor's demand for the vendee to vacate the premises and the vendee's refusal to do so which makes unlawful the withholding of the possession. Such refusal violates the vendor's right of possession giving rise to an action for unlawful detainer. However, prior to the institution of such action, a demand from the vendor to pay the installment due or comply with the conditions of the Contract to Sell and to vacate the premises is required under the rule.

Thus, mere failure to pay the installment due or violation of the terms of the Contract to Sell does not automatically render a person's possession unlawful. Furthermore, the giving of such demand must be alleged in the complaint; otherwise, the MTC cannot acquire jurisdiction.

It is clear from the foregoing that the allegations in the Complaint failed to constitute a case of unlawful detainer. What is clear is that in the Complaint, petitioner alleged that respondents had violated the terms of the Contract to Sell. However, the Complaint failed to state the petitioner made demands upon respondents to comply with the conditions of the contract - the payment of the installments and the accounting and delivery of the harvests. When the complaint does not satisfy the jurisdictional requirements of a valid cause for unlawful detainer, the MTC does not have jurisdiction to hear the case.

JAVELOSA V. CA (REMEDIAL)

In FORCIBLE ENTRY cases, the prescriptive period is counted from the date of defendant's actual entry on the land; in UNLAWFUL DETAINER, from the date of last demand to vacate.

Hence, to determine whether the case was filed on time, there was a necessity to ascertain whether the complaint was one for forcible entry or unlawful detainer. In light of these consideration, the Court ruled that since the main distinction between the two actions is when and how defendant entered the land, the determinative facts should be alleged in the complaint.

It is settled that prior physical possession is indispensable only in actions for forcible entry but not in unlawful detainer. Since we have ruled that the MTC case filed against petitioner is one for unlawful detainer, petitioner's prior possession of the land is of no moment. Private respondents are entitled to its possession from the time title was issued in their favor as registered owners. An action for unlawful detainer may be filed when possession by a landlord, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of their right to hold possession by virtue of a contract, express or implied.

We find that private respondents have adequately proved that they are entitled to possess the subject land as the registered owners thereof. The age-old rule is that the person who has a Torrens title over the land is entitled to possession thereof. Except for the bare claim that the title of private respondents was obtained in bad faith, petitioner has pointed to no right to justify his continued possession of the subject property.

Be that as it may, we reiterate the rule that the award of possession de facto over the subject land to private respondents would not constitute res judicata as to the issue of ownership thereof, which issue is still litigated before the RTC where the case for annulment of mortgages and foreclosure proceedings is pending.

The one-year period should be counted:

• unlawful detainer - from the date of last demand to vacate.
• forcible entry - from accrual of cause of action (dispossession).

REFUGIA V. CA (REMEDIAL)

Issue: Whether the MTC, as well as the RTC, in the exercise of its appellate jurisdiction, have jurisdiction to resolve the issue of ownership in an action for unlawful detainer where the issue of possession cannot be resolved without deciding the question of ownership.

As the law on forcible entry and unlawful detainer cases now stands, even where the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the MTCs, nevertheless have the undoubted competence to resolve the issue of ownership albeit only to determine the issue of possession as set forth in Section 33(2) of BP 129.

In the case at bar, petitioners failed to show that they were legally entitled to continue occupying the unit in question. On the considerations detailed, we agree with the position of respondent CA that petitioners would in effect be occupying the premises by mere tolerance. A person who occupies the land of another at the latter's tolerance or permission, without any contract between them, is necessarily bound by an implied promise that he will vacate the same upon demand, failing which a summary action for ejectment is the proper remedy against him. The status of petitioners is analogous to that of a lessee or tenant whose term of lease has expired but whose occupancy continued by tolerance of the owner.

UNION BANK V. CA (REMEDIAL)

It is settled that the buyer in a foreclosure sale becomes the absolute owner of the property purchased if it is not redeemed during the period of one year after the registration of the sale. Consolidation took place as a matter of right since there was no redemption of the foreclosed property and the TRO expired upon dismissal of the complaint.

Unionbank need not have informed private respondent that it was consolidating its title over the property upon the expiration of the redemption period, without the judgment debtor having made use of his right or redemption, the ownership of the property sold becomes consolidated in the purchaser.

Notices to the mortgagors and with more reason, to private respondents who are not even parties to the mortgage contract nor to the extrajudicial sale is not necessary.

In real estate mortgage, when the principal obligation is not paid when due, the mortgagee has the right to foreclose the mortgage and to have the property seized and sold with a view of applying the proceeds to the payment of the principal obligation. Thereafter, the mortgagor has one year within which to redeem the property from and after registration of the sale with the Register of deeds.

In case of non-redemption, the purchaser at foreclosure sale shall file with the RD, either a final deed of sale executed by the person authorized by virtue of the power of attorney embodied in the deed of mortgage, or his sworn statement attesting to the fact of non-redemption; whereupon the RD shall issue a new certificate of title in favor of the purchaser after the owner's duplicate of the certificate has been previously delivered and canceled. Thus, upon failure to redeem foreclosed realty, consolidation of title becomes a matter of right on the part of the auction buyer, and the issuance of a certificate of title in favor of the purchaser becomes ministerial upon the RD.

There is moreover, nothing erroneous with the denial of private respondents' application for preliminary prohibitory injunction. The acts complained of have already consummated. It is impossible to restrain the performance of consummated acts through the issuance of prohibitory injunction. When the act sought to be prevented had long been consummated, the remedy of injunction could no longer be entertained, hearing the application for preliminary injunction would just be an exercise in futility.

In the case at bar, the consolidation of ownership over the mortgages property in favor of Unionbank and the issuance of a new title in its name during the pendency of an action for annulment and reconveyance will not cause irreparable injury to private respondents who are plaintiffs in the said preliminary injunction.

This is because as purchaser at a public auction, Unionbank is only substituted to ans acquires the right, title, interest, and claim of the judgment debtors or mortgagors to the property at the time of levy. Perforce, the judgment in the main action for reconveyance will not be rendered ineffectual by the consolidation of ownership and the issuance of title in the name of Unionbank.

REPUBLIC V. PHIL-VILLE (REMEDIAL)

Issue: Whether or not a final determination of just compensation in an expropriation proceeding must first be made before an order of expropriation may be issued by the court.

Jurisprudential law has already settled that condemnation suits involve two stages:

1. the order authorizing expropriation; and
2. the judgment on just compensation.

Petitioner Republic is correct in saying that an order of expropriation denotes the end of the first stage of expropriation. Its end then paves the way for the second stage - the determination of just compensation, and ultimately, payment. An order of expropriation puts an end to any ambiguity regarding the right of the petitioner to condemn the respondent's properties.

Because an order of expropriation merely determines the authority to exercise the power of eminent domain and the propriety of such exercise, its issuance does not hinge on the payment of just compensation. After all, there would be no point in determining just compensation if in the first place, the plaintiff's right to expropriate the property was not first clearly established.

To stress, payment of just compensation is not a condition sine qua non to the issuance of an order of expropriation. In expropriation proceedings, it is the transfer of title to the land expropriated that must wait until the indemnity is actually paid. This is made all the more clear when note is taken of the second paragraph of Section 4, Rule 67, which states that the defendant may appeal from the order of expropriation by filing a record on appeal, which appeal does not prevent the court form determining the just compensation to be paid.

Clearly, it is after the rendition of the order of expropriation that the court shall appoint commissioners to ascertain the just compensation for the property sought to be taken.

NAPOCOR V. CA (REMEDIAL)

Issue: At what point should the value of the land subject of expropriation be computed: at the time of taking or at the time of the filing of the complaint for eminent domain?

Normally, the time of the taking coincides with the filing of the complaint for expropriation. Hence, many rulings of this Court have equated just compensation with the value of the property as of the time of filing of the complaint.

The general rule however admits of an exception where this Court fixed the value of the property as of the date it was taken and not at the date of the commencement of the expropriation proceedings.

In the old case of Provincial Government of Rizal v. Caro de Araullo, the Court ruled that ..."the owners of the land have no right to recover damages for this unearned increment resulting from the construction of the public improvement (lengthening of Taft Avenue from Manila to Pasay) for which the land was taken. To permit them to do so would be to allow them to recover more than the value of the land at the time when it was taken, which is the true measure of the damages, or just compensation and would discourage the construction of important public improvements.

In Municipality of La Carlota v. Spouses Felicidad Baltazar and Vicente Gan, Justice Fernando said ..."the owner as is the constitutional intent, is paid what he is entitled to according to the value of the property so devoted to public use as of the date of taking. From that time, he had been deprived thereof. He had no choice but to submit. He is not, however to be despoiled of such a right. No less than the fundamental law guarantee is just compensation. It would be an injustice to him certainly if from such a period, he could not recover the value of what was lost. There could be on the other hand, injustice to the expropriator if by a delay in the collection, the increment in price would accrue to the owner. The doctrine to which this Court has been committed is intended precisely to avoid contingency fraught with unfairness."

BRGY SAN ROQUE V. HEIRS OF PASTOR (REMEDIAL)

We agree with the petitioner that an EXPROPRIATION suit is incapable of pecuniary estimation.

In the present case, an expropriation suit does not involve the recovery of a sum of money. Rather, it deals with the exercise by the government of its authority and right to take private property for public use.

As held in NAPOCOR v. Jocson, expropriation proceedings have two phases:

1. The first is concerned with the determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts involved in the suit. It ends with an order, if not of dismissal of the action, 'of condemnation declaring that the plaintiff has a lawful right to take the property sought to be condemned for the public use or purpose described in the complaint.
2. The second phase is concerned with the determination by the court of the just compensation for the property sought to be taken. This is done by the court with the held of three commissioners.

It should be stressed that the primary consideration in an expropriation suit is whether the government or any of its instrumentalities has complied with the requisites for the taking of private property. Hence, the courts determine the authority of the government entity, the necessity of the expropriation, and the observance of due process. In the main, the subject of an expropriation suit is the government's exercise of eminent domain, a matter that is incapable of pecuniary estimation.

REPUBLIC V. ANDAYA (REMEDIAL)

Issue: Is the Republic liable for just compensation if in enforcing the legal easement of right-of-way on a property, the remaining area would be rendered unusable and uninhabitable?

It is undisputed that there is a legal easement of right-of-way in favor of the Republic. We are unable t sustain Republic's argument that it is not liable to pay consequential damages if in enforcing the legal easement of Andaya's property, the remaining area would be rendered unusable and uninhabitable.

TAKING in the exercise of the power of eminent domain occurs not only when the government actually deprives or dispossesses the property owner of his property or of its ordinary use, but also when there is practical destruction or material impairment of the value of his property. Using this standard, there was undoubtedly a taking of the remaining area of Andaya's property.

True, no burden was imposed thereon and Andaya still retained title and possession of the property. But the nature and the effect of the floodwalls would deprive Andaya of the normal use of the remaining areas. It would prevent ingress and egress to the property and turn it into a catch basin for the floodwaters coming form the Agusan River.

For this reason, in our view, Andaya is entitled to payment of just compensation, which must be neither more nor less that the monetary equivalent of the land.

JC (Just Compensation) = FMV (Fair Market Value) + CD (Consequential Damages) - CB (Consequential Benefits) (CB should not exceed CD)

Eminent Domain is the substantive law. Expropriation is the procedural law. Public use or public purpose may cater only to a minority.

MENDOZA V. ALLAS (REMEDIAL)

QUO WARRANTO is a demand made by the State upon individual or corporation to show by what right they exercise some franchise individual or corporation to show by what right they exercise some franchise or privilege appertaining to the State, which, according to the Constitution and laws of the land, they cannot legally exercise except by virtue of a grant or authority from the State,

In other words, a petition for quo warranto is a proceeding to determine the right of a person to the use or exercise of a franchise or office and to oust the holder from its enjoyment, if his claim is not well-founded, or if he has forfeited his right to enjoy the privilege.

The action may be commenced for the Government by the Solicitor General or the fiscal against individuals who usurp a public office, against a public officer whose acts constitute a ground for the forfeiture of his office, and against an association which acts a corporation without being legally incorporated.

The action may also be instituted by an individual in his own name who claims to be entitled to the public office or position usurped or unlawfully held or exercised by another.

Where the action is filed by a private person, he must prove that he is entitled to the controverted position,otherwise, respondent has a right to the undisturbed possession of the office. If the court finds for the respondent, the judgment should simply state that the respondent is entitled to the office. If however, the court finds for the petitioner and declares the respondent guilty of usurping, intruding into, or unlawfully holding or exercising the office, the court may order:

1. the ouster and exclusion of the defendant from office;
2. the recovery of costs by plaintiff or relator; or
3. the determination of the respective rights in and to the office, position, right, privilege, or franchise of all the parties to the action as justice requires.

Ordinarily, a judgment against a public officer in regards to a public right binds his successor in office. This rule, however, is not applicable in quo warranto cases. A judgment in quo warranto does not bind the respondent's successor in office, even though such successor may trace his title to the same source, This follows the nature of the writ of quo warranto itself. It is never directed to an officer as such but always against the persons - to determine whether he is constitutionally and legally authorized to perform any act in, or exercise any function of the office to which he lays claim.

In the case at bar, the petition for quo warranto was filed by the petitioner solely against respondent Allas. What was threshed out before the trial court was the qualification and right of petitioner to the contested position as against respondent Allas, not Olores.

FVR appointed Allas in the position held by Mendoza. During appeal, Allas was appointed to another office. Appeal was recalled. Appeal became moot and academic. Judgment could no longer be executed because the usurper is no longer in office. Judgment of quo warranto is directed against the person and not the office.

Unpaid salaries, Mendoza got nothing; cannot be paid. Salaries of government employees need appropriation and the salaries of the said office have already been disbursed.

TUASON V. RD OF CALOOCAN (REMEDIAL)

The Decree reveals that Mr. Marcos exercised an obviously judicial function. He made a determination of facts and applied the law to those facts, declaring what the legal rights of the parties were in the premises. These acts essentially constitute a judicial function or an exercise of jurisdiction which is the power and authority to hear or try and decide or determine a cause.

These acts may thus be properly struck down by the writ of certiorari because done by an officer in the performance of what in essence is a judicial function, if it be shown that the acts were done without or in excess of jurisdiction, or with grave abuse of discretion. Since Mr Marcos was never vested with judicial power, such power as everyone knows being vested in the Supreme Court and such inferior courts as may be established by law, the judicial acts done by him were in the circumstances indisputably perpetrated without jurisdiction. The acts were completely alien to his office as Chief Executive and utterly beyond the permissible scope of the legislative power that he had assumed as head of the Martial Law regime.

PD 293 wherefore is declared to be unconstitutional and void ab initio in all its parts.

YANG V. VALDEZ (REMEDIAL)

A bond that is required to be given by law is commonly understood to refer to an obligation or undertaking in writing that is sufficiently secured. It is not indispensably necessary, however, that the obligation of the bond be secured or supported by cash or personal property or real property or the obligation of a surety other than the person giving the bond.

The sufficiency of a bond is a matter addressed to the sound discretion of the court which must approve the bond. In the case at bar, the replevin bond given by respondent spouses was properly secured by the sureties themselves who declared their solvency and capacity to answer for the undertaking assumed.

The provisional remedy of REPLEVIN is in the nature of a possessory action and the applicant who seeks immediate possession of the property involved need not be holder of the legal title to the property. It suffices if at the time he applies for a writ of replevin, he is entitled to the possession thereof.

A defendant in a replevin suit may demand return of possession of the property replevied by filing a REDELIVERY BOND within the periods specified in Sections 5 and 6 of Rule 60. Under Section 5, petitioner may at any time before the delivery of property to the plaintiff, require the return of the property; in Section 6, he may do so within 5 days after the taking of the property by the officer. Both periods are mandatory in character.

The decisional principle on the filing of counter replevin bond to entitle the defendant to the redelivery or retaining possession of the property, is compliance with all the conditions precedent pursuant to the rules, and failure to comply therewith entitles plaintiff to possession and the initial steps in obtaining redelivery must be taken within the time limit provided therein.

A defendant in a replevin suit may demand return of possession of the property replevied by filing a redelivery bond within 5 days; otherwise, the sheriff will release the property to the third party claimant.

ALEMAR'S SIBAL V. NLRC (REMEDIAL)

Petitioner contends that public respondent should have denied the order of the Labor Arbiter for the immediate payment of separation pay in favor of private respondent. Petitioner insists that s stay of execution of monetary award is justified in this case because of the order of the SEC suspending all claims against petitioner pending before any court, tribunal, or body.

We note that at the time this petition had been filed, petitioner had been placed under rehabilitation receivership. Jurisprudence has established that a stay of execution may be warranted by the fact that a petitioner corporation has been placed under rehabilitation receivership. However, it is undisputed that the SEC issued an order approving the proposed rehabilitation plan of petitioner and placing it under liquidation.

Petitioner pointed out that the SEC order suspending all claims against it pending before any other court, tribunal, or body was pursuant to the rehabilitation receivership proceedings. Such order was necessary to enable the rehabilitation receiver to effectively exercise its powers free from any judicial or extra-judicial interference that might unduly hinder the rescue of the distressed company. Since receivership proceedings have ceased and petitioner's receiver and liquidator has been given the imprimatur to proceed with corporate liquidation, the cited order of the SEC has been rendered functus officio. Thus, there is no legal impediment for the execution of the decision of the Labor Arbiter for the payment of separation pay.

Considering that petitioner's monetary obligation to private respondent is long overdue and that petitioner has signified its willingness to comply with such obligation by entering into an agreement with private respondent as to the amount and manner of payment, petitioner cannot delay satisfaction of private respondent's claim. However, due to events subsequent to the filing of its petition, private respondent must present its claim with the rehabilitation receiver and liquidator of petitioner, subject to the rules on preference of credits.

SY YONG HU V. CA (REMEDIAL)

Petitioners assail the propriety of the receivership theorizing that there was no necessity therefor and that such remedy should be granted only in extreme cases and that at any rate, the rights of respondent Intestate Estate are adequately protected since notices of lis pendens of the aforesaid civil case have been annotated on the real properties of the partnership.

The findings of the CA accord with the existing rules and jurisprudence on receivership.

To ensure that no further disposition shall be made of the questioned assets and in view of the pending civil case in the lower court, there is a compelling necessity to place all these properties and assets under the management of a receivership committee. The receivership committee, which will provide active participation, through a designated representative, on the part of all interested parties, can best protect the properties involved and assure fairness and equity for all.

RECEIVERSHIP, which is admittedly a harsh remedy, should be granted with extreme caution. Sound bases therefor must appear on record, and there should be a clear showing of its necessity. The need for a receivership in the case under consideration can be gleaned from the aforecited disquisition by the CA finding that the properties of the partnership were in danger of being damaged or lost on account of certain acts of the appointed manager in liquidation.

The dispositions of certain properties by said manager, on the basis of partial partition, which was not yet final and executory, indicated that the feared irreparable injury to the properties of the partnership might happen again. So also the failure of the manager in liquidation to submit to the SEC an accounting of all the partnership assets as required in its order justified the SEC in placing the subject assets under receivership.

IDOLOR V. CA (REMEDIAL)

Issue: Whether or not 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.

Injunction is a preservative remedy aimed at protecting substantive rights and interests. 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; and
2. The act against which the injunction is to be directed is a violation of such right.

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 wither 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.

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 irremedial injury to some of the parties before their claims can be thoroughly investigated and advisedly adjudicated. It is to be resorted to only when there is a pressing necessity to avoid injurious consequences which cannot be remedied under any standard of compensation.

In the instant case, we agree with the respondent Court that petitioner has not more proprietary right to speak of over the foreclosed property to entitle her to the issuance of a writ of injunction.

When petitioner filed her complaint for annulment of sheriff's sale against private respondents with prayer for the issuance of a writ of preliminary injunction on 25 June 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 13 June 1998, i.e., two 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. The possibility of irreparable damage without proof of actual existing right is not a ground for an injunction.

The existence of a right vilated is a prerequisite to the granting of an injunction. Injunction is not designed to protect contingent or future rights.

OWWA V. CHAVEZ (REMEDIAL)

Respondents prayed for the issuance of a WRIT OF PRELIMINARY INJUNCTION to restrain petitioners from:

1. implementing its organizational structure as approved by the OWWA Board of Trustees in its 9 January 2004 Resolution; and
2. advertising and proceeding with the recruitment and placement of new employees under the new organizational structure.

RTC granted respondents' prayer for writ of preliminary injunction, which the CA appeared, finding that respondents possess a clear and legal right to the issuance of the writ.

Section 1, Rule 58 of the Rules of Court, defines a PRELIMINARY INJUNCTION as an order at any stage of an action prior to the judgment or final order requiring a party or a court, an agency, or a person to refrain from a particular act or acts.

To be entitled to an injunctive relief, petitioner must show, inter alia, the existence of a clear and unmistakable right and an urgent and paramount necessity for the writ to prevent serious damage. the rule is, the matter of the issuance of a writ is addressed to the sound discretion of the trial court, unless the court commits grave abuse of discretion.

More significantly, a preliminary injunction is merely a provisional remedy, an adjunct to the main case subject to the latter's outcome, the sole objective of which is to preserve the status quo until the trial court hears fully the merits of the case. The status quo should be that existing at the time of the filing of the case. The status quo usually preserved by a preliminary injunction is the last actual peaceable and uncontested status which preceded the actual controversy. The status quo ante litem is ineluctably, the state of affairs which is existing at the time of the filing of the case. Indubitably, the trial court must not make use of its injunctive power to alter such status.

We hold that the RTC, in granting the assailed writ of preliminary injunction, committed grave abuse of discretion amounting to lack of jurisdiction. In the case at bar, the RTC did not maintain the status quo when it issued the writ of preliminary injunction. Rather, it effectively restored the situation prior to the status quo, in effect, disposing the issue of the main case without trial on the merits. The RTC forgot that what is imperative in preliminary injunction cases is that the writ cannot be effectuated to establish new relations between the parties.

This Court in lifting the therein assailed writ, underscored the legal proscription which states that courts should avoid issuing a writ of preliminary injunction which would in effect dispose of the main case without trial.

As has been reiterated, 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 action which did not give rise to a cause of action.

A writ of preliminary injunction being an extraordinary event, one deemed as a strong arm of equity or a transcendental remedy,. it must be granted only in the face of actual and existing substantial rights. In the absence of the same, and where facts are shown to be wanting in bringing the matter within the conditions for its issuance, the ancillary writ must be struck down for having been rendered in grave abuse of discretion.

LAW STUDENT PRACTICE RULE (RULE 138-A, RULES OF COURT)

SECTION 1. Conditions for student practice.-
A law student who has successfully completed his third year of the regular four-year prescribed law curriculum and is enrolled in a recognized law school's clinical legal educational program approved by the Supreme Court, may appear without compensation in any civil, criminal, or administrative case before any trial court, tribunal, board, or officer, to represent indigent clients accepted by the legal clinic of the law school.

SECTION 2. Appearance.-
The appearance of the law student authorized by this rule, shall be under the direct supervision and control of a member of the IBP, duly accredited by the law school. Any and all pleadings, motions, briefs, memoranda, or other papers to be filed, must be signed by the supervising attorney for and in behalf of the legal clinic.

SECTION 3. Privileged communications.-
The Rules safeguarding privileged communications between attorney and client shall apply to similar communications made to or received by the law student, acting for the legal clinic.

SECTION 4. Standards of conduct and supervision.-
The law student shall comply with the standards of professional conduct governing members of the Bar. Failure of an attorney to provide adequate supervision of the student practice may be a ground for disciplinary action.

COULDN'T AGREE MORE!

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ATTORNEY'S LIENS (RULE 138, SECTION 37 RULE OF COURT)

SEC. 37. Attorney's liens. -

An attorney shall have a lien (RETAINING LIEN) upon the funds, documents, and papers of his client which have lawfully come into his possession and may retain the same until his lawful fees and disbursements have been paid, and may apply such funds to the satisfaction thereof.

He shall also have a lien (CHARGING LIEN) to the same extent upon all judgments for the payment of money, and executions issued in pursuance of such judgments, which he has secured in a litigation of his client, from and after the time when he shall have caused a statement of his claim of such lien to be entered upon the records of the court rendering such judgment, or issuing such execution, and shall have caused written notice thereof to be delivered to his client and to the adverse party; and he shall have the same right and power over such judgments and executions as his client would have to enforce his lien and secure the payment of his just fees and disbursements.

GROUNDS FOR DISBARMENT (RULE 138, SECTION 27, RULES OF COURT)

SECTION 27. Disbarment or suspension of attorneys by Supreme Court; grounds therefor. -
A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any

1. deceit;
2. malpractice;
3. other gross misconduct in such office;
4. grossly immoral conduct;
5. by reason of his conviction of a crime involving moral turpitude;
6. for violation of the oath, which he is required to take before admission to practice;
7. for a wilful disobedience of any order of the superior court; or
8. for corruptly or willfully appearing as an attorney for a party to a case without authority to do so.

The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice.

CHUIDIAN V. SANDIGANBAYAN (REMEDIAL)

Petitioner argues that he also raised the issue that there was no evidence on record other than the affidavit of PCGG Chairman. This issue of fraud, however, touches on the very merits of the main case which accuses petitioner of committing fraudulent acts in his dealings with the government. Moreover, this alleged fraud was one of the grounds for the application of the writ, and the Sandiganbayan granted said application after it found a prima facie case of fraud committed by petitioner.

In fine, fraud was not only one of the grounds for the issuance of the preliminary attachment, it was at the same time the government's cause of action in the main case.

The SC has uniformly held that:

xxx when the preliminary attachment is issued upon a ground which is at the same time the applicant's cause of action, e.g., an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any person in a fiduciary capacity, or for a willful violation as such, or an action against a party who has been guilty of fraud in contracting the debt or incurring the obligation upon which the action is brought, the defendant is not allowed to file a motion to dissolve the attachment under Section 13 Rule 57 by offering to show the falsity of the factual averments in the plaintiff's application and affidavits on which the writ was based - and consequently that the writ based thereon had been improperly or irregularly issued - the reason being that the hearing on such a motion for dissolution of the writ would be tantamount to a trial of the merits of the action. In other words, the merits of the action would be ventilated at a mere hearing of a motion, instead of at the regular trial.

Thus, this Court has time and again ruled that the merits of the action in which a writ of preliminary attachment has been issued are not triable on a motion for dissolution of the attachment, otherwise, an applicant for the lifting of the writ could force a trial on the merits of the case on a mere motion.

Moreover, we have held that when the writ of attachment is issued upon a ground which is at the same time the applicant's cause of action, the only other way the writ can be lifted or dissolved is by a counterbond, in accordance with Section 12 of the same rule. This recourse however, was not availed of by the petitioner.

To reiterate, there are only two ways of quashing a writ of attachment:

1. by filing a counterbond immediately; and
2. by moving to quash on the ground of improper and irregular issuance.

These grounds for the dissolution of an attachment are fixed in Rule 57 of the Rules of Court and the power of the Court to dissolve an attachment is circumscribed by the grounds specified therein. Petitioner's motion to lift attachment failed to demonstrate any infirmity or defect in the issuance of the writ of attachment, neither did he file a counterbond.

MANGILA V. CA (REMEDIAL)

Distinction should be made between issuance and implementation of the writ of attachment. It is necessary to distinguish between the two to determine when jurisdiction over the defendant should be acquired to validly implement the writ.

The grant of the provisional remedy of attachment involves 3 stages:

1. the court issues the order granting the application;
2. the writ of attachment issues pursuant to the order granting the writ; and
3. the writ is implemented.

For the initial 2 stages, it is not necessary that jurisdiction over the defendant be first obtained. However, once the implementation of the writ commences, the court must have acquired jurisdiction over the defendant for without such jurisdiction, the court has no power and authority to act in any manner against the defendant. Any order issuing from the court will not bind the defendant.

The alias summons belatedly served cannot be deemed to have cured the fatal defect in the enforcement of the writ. The trial court cannot enforce such a coercive process without obtaining jurisdiction over the defendant.

The preliminary writ of attachment must be served before or simultaneous with the service of summons. The subsequent service of summons does not confer a retroactive acquisition of jurisdiction because the law does not allow retroactivity of belated service.

BILL OF RIGHTS (ARTICLE III, CONSTITUTION)

Section 1
No person shall be deprived of
life, liberty, or property
without due process of law,
nor shall any person be denied
the equal protection of the laws.

Section 2
The right of the people to be secure in their
persons, house, papers, and effects
against unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge
after examination under oath or affirmation
of the complainant and the witnesses he may produce,
and particularly describing the place to be searched
and the persons or things to be seized.

Section 3
1. The privacy of communication and correspondence
shall be inviolable
except upon lawful order of the court,
or when public safety or order requires otherwise
as prescribed by law.

2. An evidence obtained
in violation of this or the preceding section
shall be inadmissible
for any purpose in any proceeding.

Section 4
No law shall be passed
abridging the freedom
of speech, of expression, of the press,
or the right of the people to peaceably assemble
and petition the Government for redress of grievances.

Section 5
No law shall be made
respecting a establishment of religion
or prohibiting the free exercise thereof.
The free exercise and enjoyment
of religious profession and worship,
without discrimination or preference,
shall forever be allowed.
No religious test shall be required
for the exercise of civil or political rights.

Section 6
The liberty of abode and of changing the same
within the limits prescribed by law
shall not be impaired
except upon lawful order of the court.
Neither shall the right to travel be impaired
except in the interest of
national security, public safety, or public health,
as may be provided for by law.

Section 7
The right of the people to information
on matters of public concern
shall be recognized.
Access to official records
and to documents and papers
pertaining to official acts, transactions, or decisions,
as well as government research data used for policy development
shall be afforded the citizen
subject to such limitations as may be provided for by law.

Section 8
The right of the people,
including those employed in the public and private sectors,
to form unions, associations, or societies,
for purposes not contrary to law,
shall not be abridged.

Section 9
Private property shall not be taken for public use
without just compensation.

Section 10
No law impairing the obligation of contracts shall be passed.

Section 11
Free access to the courts and quasi-judicial bodies
and adequate legal assistance
shall not be denied to any person by reason of poverty.

Section 12
1. Any person under investigation for the commission of an offense
shall have the right to be informed of his right to remain silent
and to have a competent and independent counsel preferably of his own choice.
If the person cannot afford the services of a lawyer,
he must ha provided with one.
These rights cannot be waived
except in writing and in the presence of counsel.

2. No torture, force, violence, threat, intimidation, or any other means
which vitiate the free will shall be used against him.
Secret detention places, solitary incommunicado, or other similar forms of detention are prohibited.

3. Any confession or admission
obtained in violation of this or Section 17 thereof
shall be inadmissible in evidence against him.

4. The law shall provide for penal and civil sanctions
for violations of this section
as well as compensation to and rehabilitation
of victims of torture or similar practices, and their families.

Section 13
All persons, except those charged
with offenses punishable by reclusion perpetua,
when evidence of guilt is strong,
shall, before conviction,
be bailable by sufficient sureties,
or be released on recognizance
as may be provided for by law.
The right to bail shall not be impaired
even when the privilege of writ of habeas corpus is suspended.
Excessive bail shall not be required.

Section 14
1. No person shall be held to answer for a criminal offense
without due process of law.

2. In all criminal prosecutions,
the accused shall be presumed innocent until the contrary is proved,
and shall enjoy the right to be heard by himself and counsel,
to be informed of the nature and cause of the accusations against him,
to have a speedy, impartial, and public trial, t
o meet the witnesses face to face,
and to have a compulsory process to secure the attendance of witnesses
and the production of evidence in his behalf.
However, if after arraignment,
trial may proceed notwithstanding the absence of the accused
provided that he has been duly notified
and his failure to appear is unjustifiable.

Section 15
The privilege of the writ of habeas corpus shall not be suspended
except in cases of invasion or rebellion
when public safety requires it.

Section 16
All persons shall have
the right to a speedy disposition of their cases
before all judicial, quasi-judicial, or administrative bodies.

Section 17
No person shall be compelled to be a witness against himself.

Section 18
1. No person shall be detained solely by reason of his political beliefs and aspirations.

2. No involuntary servitude in any form shall exist
except as punishment for a crime whereof the party shall be duly convicted.

Section 19
1. Excessive fines shall not be imposed,
nor cruel, degrading punishment, inflicted.
Neither shall death penalty be imposed,
unless for compelling reasons involving heinous crimes,
Congress hereafter provides for it.
Any death penalty already imposed shall be reduced to reclusion perpetua.

2. The employment of physical, psychological, or degrading punishment
against any prisoner or detainee
or the use of substandard or inadequate penal facilities
under subhuman conditions shall be dealt with by law.

Section 20
No person shall be imprisoned
for debt or non-payment of a poll tax.

Section 21
No person shall be twice put in jeopardy
of punishment for the same offense.
If an act is punished by a law and an ordinance,
conviction or acquittal under either
shall constitute a bar to another prosecution for the same act.

Section 22
No ex post facto law or bill of attainder shall be enacted.

PARISH PRIEST OF VICTORIA V. RIGOR (CIVIL)

The will of the testator is the first and principal law in the matter of testaments. When his intention is clearly and precisely expressed, any iterpretation must be in accord with the plain and literal meaning of his words, except when it may certainly appear that his contention was different from that literally expressed.

The intent of the testator is the cardinal rule in the construction of wills. It is the greatest rule in giving effect to a will.

From the testamentary provisions, it may be deduced that the testator intended to devise the ricelands to his nearest male relative who would become a priest, who was forbidden to sell the ricelands, who would lose the devise if he discontinued his studies for the priesthood, or having been ordained a priest, he was excommunicated, and who would be obligated to say masses for the repose of the souls of the testator and his parents.

On the other hand, it is clear that the parish priest of Victoria would administer the ricelands only in two situations: (a) during the interval of time that no nearest male relative of the testator was studying for priesthood; and (b) in case the testator's nephew became a priest and he was excommunicated.

Inasmuch as the testator was not survived by any nephew who became a priest, the unavoidable conclusion is that the bequest in question was ineffectual or inoperative. Therefore, the administration of the ricelands by the parish priest of Victoria as envisaged in the will was likewise inoperative.

The appellant in contending that a public charitable trust was constituted by the testator in his favor assumes that he was a trustee or a substitute devisee. The contention is untenable. A reading of the testamentary provisions does not support the view that the parish priest was a trustee or a substitute devisee in the event that the testator was not survived by a nephew who became a priest.

The CA correctly rules that this case is covered by Article 956 of the Civil Code which provides that if "the bequest for any reason should be inoperative, it shall be merged into the estate, except in cases of substitution and those in this the right of accretion exists."

This case is also covered by Article 960(2) which provides "legal succession takes place when the will does not dispose of all the belongings to the testator." There being mo substitution nor accretion as to the said ricelands, the same should be distributed among the legal heirs. The effect is as if the testator had made no disposition as to the said ricelands.

The Civil Code recognizes that a person may die partly testate and partly intestate, or that there may be mixed succession. If a conditional legacy does not take effect, there will be intestate succession as to the property recovered by the said legacy.

CAYETANO V. LEONIDAS (REMEDIAL)

Under Rule 73, Section 1 of the Rules of Court, it is provided that:

Section 1. Where estate of deceased persons settled - If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved or letters of administration granted, and his estate settled, in the RTC in the province in which he resided at the time of his death, and if he is an inhabitant of a foreign country, the RTC of any province in which he has estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on record.

Therefore, the settlement of the estate of Adoracion Campos was correctly filed with the RTC of Manila where she had an estate since it was alleged and proved that Adoracion at the time of her death was a citizen and permanent resident of USA and not a usual resident of Cavite as alleged by petitioner.

Moreover, petitioner is now estopped from questioning the jurisdiction of the probate court in the petition for relief. It is a settled rule that a party cannot invoke the jurisdiction of a court to secure affirmative relief against his opponent and after failing to obtain such relief, repudiate or question that same jurisdiction.

BONILLA V. BARCENA (REMEDIAL)

While it is true that a person who is dead cannot sue in court, yet he can be substituted by his hers in pursuing the case up to its completion.

Records show that the death of Fortunata Barcena took place on 9 July 1975 while the complaint was filed on 31 March 1975, which means that when the complaint was filed, Fortunata was still alive, and therefore, the court had acquired jurisdiction over her person.

If thereafter she died, the Rules of Court prescribes the procedure whereby a party who died during the pendency of the proceeding can be substituted. Under Section 16, Rule 3, "whenever a party to a pending case dies... it shall be the duty of his attorney to inform the court promptly of such death... and to give the mane and residence of his executor, administrator, guardian, or other legal representatives."

This duty was complied with by the counsel for the deceased plaintiff when he manifested client's death before the court and asked for the proper substitution of parties. The respondent court however, instead of allowing the substitution, dismissed the complaint on the ground that a person has no legal personality to sue - this is a grave error.

When Fortunata died, her claim or right to the parcels of land in litigation was not extinguished by her death but was transmitted to her heirs upon her death. Her heirs have thus acquired interest in the properties in litigation and became parties in interest in the case. There is therefore, no reason for the respondent court not to allow their substitution as parties in interest for the deceased plaintiff.

The question as to whether an action survives or not depends on the nature of the action and the damage sued for. In the causes of action which survive the wrong complained affects primarily and principally property and property rights, the injuries to the person being merely incidental, while in the causes of action which do not survive the injury complained of is to the person, the property, and rights of property affected being incidental.

Following the foregoing criterion, the claim of the deceased plaintiff which is an action to quiet title over the parcels of land in litigation affects primarily and principally property and property rights and therefore, is one that survives even after her death. It is therefore, the duty of the respondent court to order the legal representative of the deceased plaintiff to appear and to be substituted for her.

Under Section 17, Rule 3, it is even the duty of the court, if the legal representative fails to appear, to order the opposing party to procure the appointment of a legal representative of the deceased. In the instant care, the respondent court did not have to bother ordering the opposing party to procure the same because her counsel has not only asked that the minor children be substituted for her but also suggested that their uncle be appointed as guardian ad litem for them because their father is busy in Manila earning a living for the family. But the respondent court refused for substitution on the ground that the children were still minors and cannot sue in court - another grave error.

Precisely in the instant case, unquestionably, the respondent court has gravely abused its discretion in not complying with the clear provisions of the Rules.

TUASON V. LINGAD (TAX)

Issue: Whether or not the properties in question which the petitioner had inherited and subsequently sold in small lots to other persons should be regarded as capital assets.

As thus defined by law, CAPITAL ASSETS include all properties of a taxpayer whether or not connected with his trade or business, except:

1. stock in trade or other property included in the taxpayer's inventory;
2. property primarily for sale to customers in the ordinary course of his trade or business;
3. property used in the trade or business of the taxpayer and subject to depreciation allowance; and
4. real property used in trade or business.

If the taxpayer sells or exchanges any of the properties above, any gain or loss relative thereto is an ordinary gain or an ordinary loss; the loss or gain from the sale or exchange of all other properties of the taxpayer is a capital gain or a capital loss.

Under Section 34(b)(2) of the Tax Code, if a gain is realized by a taxpayer (other than a corporation) from the sale or exchange of capital assets held for more than 12 months, only 50% of the net capital gain shall be taken into account in computing the net income.

The Tax Code's provisions on so-called long-term capital gains constitutes a statute of partial exemption. In view of the familiar and settled rule that tax exemptions are construed in strictissimi juris against the taxpayer and liberally in favor of the taxing authority, it is the taxpayer's burden to bring himself clearly and squarely within the terms of a tax-exempting statutory provision, otherwise, all fair doubts will be resolved against him.

In the case at bar, after a thoroughgoing study of all the circumstances, this Court is of the view and so holds that petitioner's thesis is bereft of merit. Under the circumstances, petitioner's sales of the several lots forming part of his rental business cannot be characterized as other than sales of non-capital assets. the sales concluded on installment basis of the subdivided lots do not deserve a different characterization for tax purposes.

This Court finds no error in the holding that the income of the petitioner from the sales of the lots in question should be considered as ordinary income.