NG WEE V. TANKIANSEE (REMEDIAL)

For a writ of attachment to issue under this rule, the applicant must sufficiently show the factual circumstances of the alleged fraud because fraudulent intent cannot be inferred from the debtor's mere non-payment of the debt or failure to comply with his obligation. The applicant must then be able to demonstrate that the debtor has intended to defraud the creditor.

In the instant case, petitioner's affidavit is bereft of any factual statement that respondent committed fraud. As to the participation of the respondent in the transaction, the affidavit merely states that respondent, an officer and director of Wincorp, connived with the other defendants in the civil case to defraud petitioner of his money placements. In other words, petitioner has not shown any specific act or deed to support the allegation that respondent is guilty of fraud.

Considering therefore, that in this case, petitioner has not fully satisfied the legal obligation to show the specific acts constitutive of the alleged fraud committed by respondent, the trial court acted in excess of its jurisdiction when it issued the writ of preliminary attachment against the properties of respondent.

We are not unmindful of the rule enunciated in GB Inc. v. Sanchez, that the merits of the main action are not triable in a motion to discharge an attachment, otherwise, an applicant for the dissolution could force a trial of the merits of the case on his motion.

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.