TOMAWIS V. TABAO-CAUDANG (COMPLETENESS OF SERVICE, FORUM SHOPPING, INJUNCTION, CES ELIGIBILITY)

Rule 13, Section 10: Completeness of service. Personal service is complete upon actual delivery. Service by ordinary mail is complete upon the expiration of 10 days after mailing, unless the court otherwise provides. Service by registered mail is complete upon actual receipt by the addressee, or after 5 days from the date he received the first notice of the postmaster, whichever date is earlier.

The rule on service by refistered mail contemplates 2 situations:

1. actual service, the completeness of which is determined upon receipt by the addressee of the registered mail; or
2. constructive notice, the completeness of which is determined upon expiration of 5 days from the date the addressee received the first notice from the postmaster.

The best evidence to prove that notice was sent would be a certification from the postmater to the effect that not only was notice issued or sent but also on how, when, and to whom the delivery was made.

In the instant case, there was no sufficient proof that the respondent actually received a copy of the Dec 15 resolution. Neither was there proof that a first notice was indeed received by her. As such, the rule on constructive notice cannot apply. Accordingly, since the respondent was not served a copy of the resolution, the decision sonld never attain finality. Consequently, there can be no valid basis for the issuance of the writ of execution.

Before a writ of execution may issue, there must necessarily be a final judgment or order that idsposes of the action or proceeding. The writ of execution is the means by which a pary can enforce a final judgment or order of the court. Absent a final judgment or order, there is nothing to enforce or execute; thus, there can be no valid writ of execution.

Injunction is a judicial writ, process, or proceeding whereby a party is ordered to do or refrain from doing a certain act. It may be the main action or merely a provisional remedy for and as an incident in the main action. As a rule, to justify the injunctive relief prayed for, the movant must show:

1. the existence of a right in esse or the existence of a right to be protected; and
2. that the act against which injunction is to be directed is a violation of such right.

A clear legal right means one clearly founded on or granted by law or is enforceable as a matter of law. The onus probandi is on movant to show that there exists a right to be protected, which is directly threatened by the acts 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.

Tomawis was appointed Regional Director. However, as he did not possess the requisite CES eligibility, his appointment was characterized merely as temporary. As such, he had no security of tenure. Upon appointment of Caudang to the position, Tomawis' right to the position ceased to exist. Thus, he should have vacated and relinquished the position and turned over the duties, funds, and properties of the office to Caudang.

Accordingly, his petition for injunction should have been denied outright by the court. In the absence of a clear legal right, the issuance of the injunctive writ constitutes grave abuse of discretion.

Lastly, the SC cannot sustain petitioner's claim that respondent is guilty of multiple forum shopping. There is forum shopping where the elements of litis pendentia are present or where a final judgment in one case will amount to res judicata in the other. true, respondent had previously instituted quo warranto proceedings involving the same contested position, and her petitions had been dismissed with finality by this Court. We, however, find that the issue in the instant case is based on a different set of facts.