Supreme Court Benchbook Provisional Remedies

PROVISIONAL REMEDIES

PROVISIONAL REMEDIES Rita Linda Ventura - Jimeno

DEFINITION A provisional remedy is a collateral proceeding, permitted only in connection with a regular action, and as one of its incidents, which provides for a present need, or for the occasion, i.e, one adapted to meet a particular exigency.1

NATURE OF PROVISIONAL REMEDIES a. Interim Remedies which parties may resort to for the preservation or protection of rights or interest during the pendency of an action.2 b. Ancillary Remedies which are mere incidents in, and are dependent upon, the result of the main action.3 c. Provisional Remedies which constitute temporary measures availed of during the pendency of the action.4 DIFFERENT PROVISIONAL REMEDIES I. Under the 1997 Revised Rules of Court: A. In Civil Cases 1. Attachment (Rule 57) 1

Silangan Textile Manufacturing Corporation, et al. v. Demetria, G.R. No. 166719, March 12, 2007, 518 SCRA 160, citing Feria Noche, Civil Procedure Annotated (2001 Ed.), p. 261. 2 Cootauco v. Court of Appeals, G.R. No. 56565, June 16, 1988, 162 SCRA 122. 3 Silangan Textile Manufacturing Corporation, et al. v. Demetria, supra note 1, citing Regalado, Remedial Law Compendium, Vol. 1 (7th Ed.), p. 606. 4 Buyco v. Baraquia, G.R. No. 177486, December 21, 2009, 608 SCRA 699, citing Regalado, Remedial Law Compendium, Vol. 1 (7th Ed.), p. 606. C-1

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2. Preliminary Injunction and Temporary Restraining Order (Rule 58) 3. Receivership (Rule 59) 4. Replevin or delivery of private property (Rule 60) 5. Support Pendente Lite (Rule 61)

B. In Criminal Cases (Rule 127) The provisional remedies in civil actions, insofar as they are applicable, may be availed of in connection with the civil action deemed instituted with the criminal action5 II. Under Special Laws A. Temporary Protection Order under the Anti Violence Against Women and their Children Act (Republic Act No. 9262)

B. Provisional Remedies under the Human Security Act of 1997 (Rep. Act No. 9372) 1. Inspection, Examination of Accounts and Freeze Order 2. Seizure and Sequestration of Accounts and Assets 3. Restriction of Travel

C. Protective Order under the Anti-Child Pornography Act of 2009 (Rep. Act No. 9775)

D. Freeze Order under the Anti-Money Laundering Act of 2001 (Rep. Act No. 9194) as Amended by Rep. Act No. 9160

E. Protection Orders for victims and witnesses under the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity (Rep. Act No. 9851) 5

REVISED RULES OF CRIMINAL PROCEDURE, Rule 127, Sec. 1. C-2

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III. Under other Supreme Court Issuances A. Provisional Remedies under the Rule on the Writ of Amparo (A.M. No. 079-12-SC) 1. Temporary Protection Order 2. Inspection Order 3. Production Order 4. Witness Protection Order

B. Provisional Remedies under the Rule on Corporate Rehabilitation (A.M. No. 00-8-10 SC) 1. Stay Order 2. Receivership

C. Provisional Remedies under the Rule on Provisional Orders (A.M. No. 0211-12-SC) 1. Spousal Support 2. Child Support 3. Child Custody 4. Visitation Rights 5. Hold Departure Order 6. Order of Protection 7. Administration of Common Property

D. Provisional Remedies under the Rule on Involuntary Commitment of Children (A.M. 02-1-19) 1. Guardian Ad Litem of a Child

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2. Temporary Custody of a Child E. Provisional remedies under the Rules of Procedure for Environmental Cases (A.M. 09-6-8-SC)6 F. Hold Departure Order in Criminal Cases

COMMON REQUIREMENTS 1. Affidavits of merit are required to support the issuance of these remedies, except in receivership. 2. Generally, a bond to answer for damages by reason of the improvident issuance of the writ is required. Exempted from the bond requirement: a. temporary restraining order,7 b. support pendente lite,8 c. inspection of accounts, freeze order and restriction of travel under the Human Security Act9 and the Anti-Money Laundering Act,10 as amended, d. inspection and production orders under the Rule on the Writ of Amparo,11 e. seizure and sequestration of accounts and assets under the Human Security Act,12 f. hold departure order,13 g. temporary protection order under the Anti Violence Against Women and their Children Act,14

6

For a full discussion on the Rules of Procedure for Environmental Cases, see Section on Environmental Law. 7 RULES OF COURT, Rule 58. 8 Id., Rule 61. 9 Rep. Act No. 9372 [2007]. 10 Rep. Act No. 9194 [2003]. 11 AM 02-11-12-2003-03-15. 12 Rep. Act No. 9372, Sec. 39. 13 Circular 39-97. 14 Rep. Act No. 9262 [2004]. C-4

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h. environmental protection order (EPO) and temporary environmental protection order (TEPO) under the Rules of Procedure for environmental cases.15 GUIDELINES ON HOW TO FIX BONDS All applications for bail/judicial bonds, before their approval by the judge concerned, shall be coursed thru the Clerk of Court or his duly authorized personnel, who shall see to it that the bond is in order. In accepting a surety bond, the Clerk of Court should see to it that all the requisites are complied with, otherwise, the bond should be rejected. Every bond shall be accompanied by a clearance from the Supreme Court showing that the company concerned is qualified to transact business which is valid only for thirty (30) days from the date of its issuance.16 Concededly, the duty rests with the Clerk of Court to ascertain that the bond is in order and all the requisites are complied with. Nevertheless, the judge is also bound to review the documents before approving the same.17 WHEN DAMAGES MAY BE RECOVERED FROM THE BOND  The recovery of damages from the bond on account of improper, irregular or excessive attachment is governed by Rule 57, Section 20.18 When to file. The application for recovery must be filed with the trial court before appeal is perfected. Or, it may also be filed before the judgment becomes executory, with due notice to the attaching party and his surety or sureties, setting forth the facts showing his right to damages and the amount thereof.19 Where to file. Damages. The claim for damages should be presented in the same action which gave rise to the special proceeding in order that it may be included in the final judgment of the case. Generally, it cannot be the subject of a separate action.20 Exception - Where the principal action is dismissed for lack of jurisdiction over the subject matter and the court is 15

A.M. 09-6-8-SC. Judicial Audit and Physical Inventory of Confiscated Cash, Surety and Property Bonds at the Regional Trial Court of Tarlac City, Branches 63, 64 and 65, (OCA-IPI No. 04-7-358-RTC), July 22, 2005. 17 Id. 18 RULES OF COURT, Rule 58, Sec. 8; Rule 59, Sec. 9; Rule 60, Sec.10. 19 Id., Rule 57, Sec. 20. 20 Cruz v. Manila Surety & Fidelity Co., Inc., et al., G.R. No. 5268, 92 Phil. 699 (1953). 16

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prevented from rendering any judgment thereon which could include the claim for damages. Such claim will then have to be filed in a separate action.21

21

Santos v. Court of Appeals, et al., 95 Phil. 360 (1954). C-6

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SPECIFIC CHARACTERISTICS OF PROVISIONAL REMEDIES I. Under the 1997 Revised Rules of Court A. Attachment 1. Definition A writ of preliminary attachment is a provisional remedy issued upon the commencement of a trial, or any time before entry of judgment, 22 where an action is pending, ordering the levy of the property or properties of the defendant therein, the same to be held thereafter by the sheriff as security for the satisfaction of whatever judgment might be secured in said action by the attaching creditor against the defendant.23

2. Purpose 2.1. To secure the satisfaction of any judgment that may be recovered24 in payment of the pecuniary obligation contracted by a person or believed to have been contracted by him, either by virtue of a civil obligation emanating from contract or from law, or by virtue of some crime or misdemeanor that he might have committed. 2.2. To secure a contingent lien on defendant’s property until plaintiff can, by appropriate proceedings, obtain a judgment and have such property applied to its satisfaction, or to make some provision for unsecured debts in cases where the means of satisfaction thereof are liable to be removed beyond the jurisdiction, or improperly disposed of, or concealed, or otherwise placed beyond the reach of creditors.25 2.3. To enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the property in those instances where personal service of summons on the creditor cannot be effected.26

3. How implemented The writ issued is executed by a sheriff attaching and safely keeping the movable property of the defendant, or by annotating upon 22

Mangila v. Court of Appeals, G.R. No. 125027, August 12, 2002, 387 SCRA 162. Torres, et al. v. Satsatin, et al., G.R. No. 166759, November 25, 2009, 605 SCRA 453, citing Cuartero v. Court of Appeals, G.R. No. 102448, August 5, 1992, 212 SCRA 260. 24 RULES OF COURT, Rule 57, Sec. 1. 25 Spouses Salgado v. Court of Appeals, G.R. No. 55381, March 26, 1984, 128 SCRA 395. 26 Quasha Asperilla Ancheta Valmonte Peña & Marcos v. Juan, et al., G.R. No. 49140, November 19, 1982, 118 SCRA 505. 23

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the record of the Register of Deeds a copy of the order with a notice and a description of the property attached, to an extent as may be sufficient to satisfy the plaintiff’s demands.27 4. Nature and Scope: Attachment purely statutory Attachment, as a provisional remedy, is purely a statutory one. It does not exist unless expressly granted by the statute. It is, therefore, not available except in those cases where the statute expressly permits.28 For this purpose, the party seeking an attachment must show that a sufficient cause of action exists and that the amount due him is as much as the sum for which the order of attachment is sought.29

5. Strict compliance with the rule The rule on the issuance of a writ of attachment must be construed strictly against the applicant and in favor of the defendant. If all the requisites for the issuance of the writ are not present, the court which issues it acts in excess of jurisdiction.30 It should be issued only on concrete and specific grounds.31 An order of attachment cannot be issued on a general averment, such as one ceremoniously quoting from a pertinent rule. Thus, a petitioner cannot merely cite Section 1(b) and (d), Rule 57, of the Revised Rules of Court, as mere reproduction of the rules, without more, cannot serve as good ground for issuing a writ of attachment. To sustain an attachment under Section 1(d), Rule 57 of the Rules of Court, it must be shown that the debtor, in contracting the debt or incurring the obligation, intended to defraud the creditor. In this case, there were no factual allegations as to how the fraud alleged by petitioner was committed. Again, it lacks particulars upon which the court can discern whether or not a writ of attachment should issue.32

27

Gruenberg v. Court of Appeals, G.R. No. 45948, September 10, 1985, 138 SCRA 471; Guzman v. Catolica, 65 Phil. 257 (1937). 28 U.S. v. Namit, 38 Phil. 926 (1918). The word “statutory” included the RULES OF COURT at the time of the promulgation of this case. 29 General v. De Venecia, 78 Phil. 780 (1947). 30 Gruenberg v. Court of Appeals, supra note 27. 31 Dy v. Enage, G.R. No. 35351, March 17, 1976, 70 SCRA 96. 32 Philippine Bank of Communications v. Court of Appeals and Filipinas Textile Mills Inc., G.R. No. 119723, February 23, 2001, 352 SCRA 616; Philippine Bank of Communications v. Court of Appeals and Bernardo Villanueva, G.R. No. 115678, February 23, 2001, 352 SCRA 616. C-8

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Rationale behind rule: A preliminary attachment is a rigorous remedy which exposes the debtor to humiliation and annoyance, such that it should not be abused to cause unnecessary prejudice. It is, therefore, the duty of the court, before issuing the writ, to ensure that all the requisites of the law have been complied with. Otherwise, the judge acts in excess of his jurisdiction and the writ so issued shall be null and void.33

6. Attachment to acquire jurisdiction over the res Attachment is intended to confer jurisdiction by the court over the res. When real property of a non-resident defendant located in the Philippines is attached to answer for the claim of the plaintiff, the court acquires jurisdiction over the res and, in that event, the jurisdiction over the person of said defendant is not essential.34 When the case instituted is an action in rem or quasi in rem, Philippine courts have jurisdiction to hear and decide the case because, in actions in rem and quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court, provided that the court acquires jurisdiction over the res. Thus, in such instance, extraterritorial service of summons can be made upon the defendant. The said extraterritorial service of summons is not for the purpose of vesting the court with jurisdiction, but for complying with the requirements of fair play or due process, so that the defendant will be informed of the pendency of the action against him and the possibility that property in the Philippines belonging to him or in which he has an interest may be subjected to a judgment in favor of the plaintiff, and he can thereby take steps to protect his interest, if he is so minded. On the other hand, when the defendant or respondent does not reside and is not found in the Philippines, and the action involved is in personam, Philippine courts cannot try any case against him because of the impossibility of acquiring jurisdiction over his person, unless he voluntarily appears in court.35

33

Sievert v. Court of Appeals, G.R. No. 84034 December 22, 1988, 168 SCRA 692; Spouses Salgado v. Court of Appeals, supra note 25; Salas v. Adil, G.R. No. 46009, May 14, 1979, 90 SCRA 121. 34 Mabanag v. Gallemore, 81 Phil. 254 (1948). 35 Perkin Elmer Singapore PTE Ltd. v. Dakila Trading Corporation, G.R. No. 172242, August 14, 2007, 530 SCRA 170. C-9

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7. Stages in the issuance of the writ 7.1 . The court issues the order granting the application; 7.2 . The writ of attachment issues pursuant to the order granting the the application; and 7.3 . The writ is implemented. For the initial two stages, it is not necessary that jurisdiction over the person of the defendant is obtained. However, once the implementation commences, it is required that the court must have acquired jurisdiction over the defendant because 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.36 8. Procedure 8.1 . When writ of preliminary attachment may issue37 a. In an action for recovery of a specified amount of money or damages against a party who is about to depart from the Philippines and with intent to defraud creditors;38 However, where the plaintiff merely stated that the defendant (Kenneth O. Glass) was a foreigner but there was no showing, much less an allegation, that the defendant was about to depart from the Philippines with intent to defraud his creditor, or that he was a non-resident alien, the attachment of properties was not justified.39 b. In an action involving embezzled or fraudulently misapplied or converted money or property;40 c. In an action to recover possession of fraudulently taken property;41 36

Torres, et al. v. Satsatin, et al., supra note 23; Mangila v. Court of Appeals, supra note 22, citing Cuartero v. Court of Appeals, G.R. No. 102448, August 5, 1992, 212 SCRA 260. 37 RULES OF COURT, Rule 57, Sec. 1. 38 Id., Sec.1 (a). 39 K.O. Glass Construction Co. Inc. v. Valenzuela, G.R. No. 48756 September 11, 1982, 116 SCRA 568. 40 RULES OF COURT, Rule 57, Sec 1 (b). 41 Id., Sec. 1 (c). C-10

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d. In an action involving fraud in contracting the debt or incurring or performing an obligation;42 The fraud in contracting debt or incurring the obligation must relate to the execution of the agreement and must have been the reason which induced the other party into giving consent, which he would not have otherwise given. To constitute a ground for attachment under Section 1(d), Rule 57 of the Rules of Court, fraud should be committed upon contracting the obligation sued upon. A debt is fraudulently contracted if, at the time of contracting it, the debtor had a preconceived plan or intention not to pay, as it was in this case.43 e. In an action against a party who has, or is about to remove or dispose of his property, to defraud creditors;44 or f. In an action against a non-resident defendant who is not found in the Philippines.45

8.2. Order of attachment  How issued. An order of attachment may be issued either ex parte, or upon motion with notice and hearing.46  By whom issued. An order of attachment may be issued by the court in which the action is pending, or by the Court of Appeals or the Supreme Court.47 The trial court may issue a writ of attachment even though appeal had been perfected. The trial court may even issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal.48  Contents. The order shall require the sheriff to attach property in the Philippines of the party against whom it is issued, not exempt from execution, as may be sufficient to satisfy the applicant's 42

Id., Sec. 1 (d). Metro Inc., et al. v. Lara’s Gifts and Decors, Inc., G.R. No. 171741, November 27, 2009, 606 SCRA 175, citing Liberty Insurance Corporation v. Court of Appeals, G.R. No. 104405, 13 May 1993, 222 SCRA 37. 44 RULES OF COURT, Rule 57, Sec. 1 (e). 45 Id., Sec. 1 (f). 46 Id., Sec 2. 47 Id. 48 Uy, et al. v. Court of Appeals, G.R. No. 95550, November 23, 1992, 215 SCRA 859. 43

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demand, unless such party makes a deposit or gives a bond in an amount fixed in the order.49 All properties exempt from execution are also exempt from attachment.50  Multiple writs, allowed. Several writs may be issued at the same time to the sheriffs of the courts of different judicial regions.51

8.3 . Applicant’s affidavit: 

Contents of affidavit52 a. sufficient cause of action; b. the case is one of those mentioned in Rule 57, Section 1; c. there is no sufficient security for the claim sought to be enforced by the action; d. the amount due to the applicant is as much as the sum for which the order is granted above all legal counterclaims.

 Determination of sufficiency, discretionary. Whether or not the affidavit sufficiently established facts therein stated is a question to be determined by the court in the exercise of its sound discretion. The mere filing of an affidavit reciting the facts required by the above provision is not sufficient to compel the judge to grant the writ. It all depends upon the amount of credit given it by the judge, who may accept or reject it in the exercise of his discretion.53  The application is fatally defective when the affidavit fails to show that there is no other sufficient security for the claim sought to be enforced by the action, and that the said amount due to the plaintiff above all legal set-offs or counterclaim is as much as the sum for which the order is sought.54

49

Supra note 47. RULES OF COURT, Rule 57, Secs. 2 and 5. 51 Id., Sec. 2. 52 Id., Sec. 3. 53 La Granja Inc. v. Samson, 58 Phil. 378 (1933). 54 Guzman v. Catolica, supra note 27; Jardine Manila Finance, Inc. v. Court of Appeals, G.R. No. 55272, April 10, 1989, 171 SCRA 636; K.O. Glass Construction Co., Inc. v. Valenzuela, supra note 39. 50

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8.4.

Applicant’s bond55

 Conditions. The applicant shall give a bond executed to the adverse party in the amount fixed by the court, conditioned that the applicant will pay: a. all costs which may be adjudged to the adverse party; and b. all damages which the adverse party may sustain by reason of the attachment, if the court shall finally adjudge that the applicant was not entitled thereto.

8.5 . Manner of attaching property  What may be attached.56 The sheriff enforcing the writ shall attach only so much of the property in the Philippines of the adverse party not exempt from execution as may be sufficient to satisfy the applicant’s demand.  Prior or contemporaneous service of summons. The levy on property pursuant to the writ thus issued may not be validly effected unless preceded, or contemporaneously accompanied, by service on the defendant of: a. Summons b. copy of the complaint (and of the appointment of guardian ad litem, if any) c. application for attachment (if not incorporated in, but submitted separately, from the complaint) d. plaintiff's affidavit and attachment bond e. the order and writ of attachment.57 o Rationale behind rule. It is indispensable, not only for the acquisition of jurisdiction over the person of the defendant, but also upon consideration of fairness, to apprise the defendant of the complaint against him and the issuance of a writ of preliminary attachment and the grounds therefor that 55

RULES OF COURT, Rule 57, Sec. 4. Id., Sec. 5. 57 Id.; Davao Light & Power Co., Inc. v. Court of Appeals, G.R. No. 93262, November 29, 1991, 204 SCRA 343. 56

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prior to, or contemporaneously with, the serving of the writ of attachment, defendant is served the summons, a copy of the complaint, the application for attachment, the applicant’s affidavit and bond, and the order.58 o Exceptions to the rule:59 a. when summons could not be served personally or by substituted service despite diligent efforts, or b. when defendant is a resident of the Philippines but temporarily absent therefrom, or c. when defendant is a non-resident, or d. when action is in rem or quasi in rem. As earlier discussed, when the case instituted is an action in rem or quasi in rem, courts have jurisdiction to hear and decide the case because, in actions in rem and quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court, as long as the court acquires jurisdiction over the res.60  Attachment of real and personal property.61 Real and personal property shall be attached by the sheriff executing the writ in the following manner: A. Real property – 1. by filing with the registry of deeds a copy of the order, property description, and a notice that it is attached; 2. by leaving a copy of such order, description, and notice with the occupant of the property, if any, or his agent if found within the province. B. Personal property capable of manual delivery - by taking and safely keeping it in the sheriff’s custody;

58

Torres, et al. v. Satsatin, et al., supra note 23. RULES OF COURT, Rule 57, Sec. 5. 60 Perkin Elmer Singapore PTE Ltd. v. Dakila Trading Corporation, supra note 35. 61 RULES OF COURT, Rule 57, Sec. 7. 59

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C. Stocks or shares - by leaving with the resident or managing agent thereof, a copy of the writ, and a notice that the stock or interest is attached in pursuance of such writ; D. Debts and credits and other personal property not capable of manual delivery – by garnishment, which is a species of attachment or execution for reaching any property pertaining to a judgment debtor which may be found owing to such debtor by a third person. It cites some stranger to the litigation who is debtor to one of the parties to the action. Such debtor-stranger becomes a forced intervenor, and the court, having acquired jurisdiction over his person by means of citation, requires him to pay his debt, not to his former creditor, but to the new creditor, who is the creditor in the main case. It is merely a case of involuntary novation by the substitution of one creditor for another;62 E. Interest in property belonging to the estate of the decedent by serving the executor, administrator or other representative of the decedent with a copy of the writ and notice that said interest is attached, filing the same in the estate settlement court and serving the same upon the heir, legatee or devisee.  Attachment of property in custodia legis.63 If the property sought to be attached is in custodia legis, a copy of the writ of attachment shall be filed with the proper court or quasi-judicial agency, and notice of the attachment served upon the custodian of such property. 8.6. Sheriff’s return.64 After enforcing the writ, the sheriff must likewise, without delay, make a return thereon to the court which issued the writ, with a full statement of his proceedings under the writ and a complete inventory of the property attached, together with any counter-bond given by the party against whom attachment is issued, if any, and serve copies thereof on the applicant.

8.7. Effects of attachment  Attachment of debts, credits and all other similar personal property65 – A debtor stranger becomes a forced intervenor, and 62

Solidum v. Court of Appeals, et al., G.R. No. 161647, June 22, 2006, 492 SCRA 261. RULES OF COURT, Rule 57, Sec. 7. 64 Id., Sec. 6. 65 Id., Sec. 8. 63

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the court, having acquired jurisdiction over his person by means of citation, requires him to pay his debt, not to his former creditor, but to the new creditor, who is the creditor in the main litigation.66 o Service of summons upon the garnishee is not necessary. All that is necessary is the service upon him of the writ of garnishment, as a consequence of which he becomes a virtual party or a forced intervenor in the case.67  Attachment of interest in property belonging to the estate of a decedent68 - The attachment of the interest of an heir, legatee, or devisee in the property belonging to the estate of a decedent shall not impair the power of the executor, administrator, or representative of the decedent over such property for the purpose of administration. Such personal representative, however, shall report the attachment to the court when any petition for distribution is filed. But the property attached shall be ordered delivered to the sheriff making the levy, subject to the claim of such heir, legatee, or devisee, or any person claiming under him.

8.8 . Sale of attached property, after levy on attachment and before entry of judgment, when proper. A. when the property attached is perishable, or B. when the interests of all the parties to the action will be served by the sale thereof.69

8.9.

Discharge of attachment

 After a writ of attachment has been enforced, the party whose property has been attached, or the person appearing on his behalf, may move for the discharge of the attachment, wholly or in part, on the security given.70

66

Solidum v. Court of Appeals, supra note 62. Perla Compania de Seguros v. Ramolete, et al., G.R. No. 60887, November 13, 1991, 203 SCRA 487. 68 RULES OF COURT, Rule 57, Sec. 9. 69 Id., Sec. 11. 70 Id., Sec. 12. 67

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

Grounds for discharge of writ:

A. Debtor has posted a counter-bond or has made the requisite cash deposit;71 B. Attachment was improperly or irregularly issued72 as where there is no ground for attachment,73 or affidavit and/or bond filed therefor are defective or insufficient;74 C. Attachment is excessive but the discharge shall be limited to the excess;75 D. Property attached is exempt from execution;76 E. Judgment is rendered against the attaching creditor.77

9.

Jurisprudence: 9.1. Attachment proceedings is an action quasi in rem. As such, jurisdiction over the person of the (non-resident) defendant is not essential. Service of summons on a non-resident defendant who is not found in the country is required, not for purposes of physically acquiring jurisdiction over his person but simply in pursuance of the requirements of fair play.78 Where a lien already exists, e.g., a maritime lien, the same is equivalent to an attachment,79 such as that under a real estate mortgage. 9.2. When the ground relied upon in asking for preliminary attachment is impending fraudulent removal, concealment and disposition of defendant’s property under paragraphs (d) and (e) of Section 1, Rule 57, the court should conduct a hearing to gather facts regarding the allegations of fraud.80 9.3. If a property has been levied upon by virtue of a writ of preliminary attachment, it becomes one under custodia legis and a subsequent extrajudicial foreclosure of said property by a third-party mortgagee

71

Id. Id., Sec. 13. 73 Id., Sec. 1. 74 Id., Sec. 3. 75 Id., Sec. 13. 76 Id., Secs. 2 and 5. 77 Id., Sec. 19. 78 Biaco v. Philippine Country Side Rural Bank, G.R. No. 161417, February 8, 2007, 515 SCRA 106, citing Banco Español-Filipino v. Palanca, 37 Phil. 92 (1918). 79 Quasha v. Juan, supra note 26. 80 Adlawan v. Torres, G.R. Nos. 65957-58, July 5, 1994, 233 SCRA 645. 72

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does not affect the lien created by the attachment. 81 Attachment is a proceeding in rem which, in effect means that the property attached is an indebted thing and a virtual condemnation of it to pay the owner’s debt.82 9.4. A foreign corporation duly licensed to do business in the Philippines is not a non-resident within the meaning of Section 1(f), Rule 57. Hence, its property here may not be attached on the sole ground that it is a nonresident.83 9.5. Insolvency of the defendant debtor is not a ground for the issuance of a writ of preliminary attachment.84 9.6. Garnishment does not lie against the funds of the regular departments or offices of the government, but funds of public corporations are not exempt from garnishment.85 9.7. It is doctrinal that a levy on attachment, duly registered, has preference over a prior unregistered sale, and even if the prior unregistered sale is subsequently registered before the sale on execution, but after the levy is made, the validity of the execution sale should be upheld because it retroacts to the date of the levy on attachment.86 Thus, because of the principle of constructive notice to the whole world, one who deals with registered property, which is the subject of an annotated levy on attachment, cannot invoke the rights of a purchaser in good faith. 87

B. Preliminary Injunction 1. Definition A preliminary injunction is an order granted by the court where the action or proceeding is pending, at any stage prior to judgment, requiring a party or a court, agency or a person to refrain from doing a particular act or acts. It may also require the performance of a particular act or acts, in which case, it shall be known as a preliminary mandatory injunction. 88 81

Consolidated Bank and Trust Corporation v. Intermediate Appellate Court, G.R. No. 73976, May 29, 1987, 150 SCRA 591. 82 Biñan Steel Corporation v. Court of Appeals, G.R. No.142013, October 15, 2002, 391 SCRA 90. 83 Claude Neon Lights, Fed., Inc. v. Philippine Advertising Corporation, 57 Phil. 607 (1932). 84 Aboitiz and Co., Inc. v. Provincial Sheriff, G.R. No. 35990, June 17, 1981, 105 SCRA 88. 85 Philippine National Bank v. Pabalan, G.R. No. 33112, June 15, 1978, 83 SCRA 595. 86 Biñan Steel Corporation v. Court of Appeals, supra note 82. 87 Id. 88 RULES OF COURT, Rule 58, Sec. 1. C-18

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2. Nature 2.1. Ancillary and Provisional - A preliminary injunction is a mere adjunct, an ancillary remedy which exists only as an incident of the main proceeding.89 A preliminary injunction, as the term itself suggests, is merely temporary, subject to the final disposition of the principal action.90 An independent action merely to obtain preliminary injunction is not allowed. Some substantive relief must be sought in the principal action.91 2.2. Preservative - It is a preservative remedy to ensure the protection of a party’s substantive rights or interests pending the final judgment in the principal action. A plea for an injunctive writ lies upon the existence of a claimed emergency or extraordinary situation which should be avoided for, otherwise, the outcome of a litigation would be useless as far as the party applying for the writ is concerned.92 2.3. Issuance must be exercised with great caution – Judges are enjoined to observe utmost caution, prudence and judiciousness in the issuance of temporary restraining order and in the grant of writs of preliminary injunction to avoid any suspicion that its issuance or grant was for consideration other than the strict merits of the case.93  Rationale: There is no power, the exercise of which is more delicate and requires greater caution, deliberation, and sound discretion, or (which is) more dangerous in a doubtful case than the issuing of an injunction. It is the strong arm of equity that never ought to be extended unless in cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages.94

89

Mirasol, et al. v. Department of Public Works and Highways and Toll Regulatory Board, G.R. No. 158793, June 8, 2006, 490 SCRA 318, citing Urbanes, Jr. v. Court of Appeals, G.R. No. 117964, 28 March 2001, 355 SCRA 537. 90 Transfield Philippines, Inc. v. Luzon Hydro Corporation et al., G.R. No. 146717, November 22, 2004, 443 SCRA 307. 91 Bengzon v. Court of Appeals, G.R. No. 82568, May 31, 1988, 161 SCRA 745; Cootauco v. Court of Appeals, G.R. No. 56565 June 16, 1988, 162 SCRA 122. 92 Hernandez, et al. v. National Power Corporation, G.R. No. 145328, March 23, 2006, 485 SCRA 166. 93 Administrative Circular No. 7-99. 94 28 Am. Jur.201, IV-A Vicente J. Francisco, THE REVISED RULES OF COURT OF THE PHILIPPINES [1971], quoted in University of the Philippines v. Catungal, Jr., G.R. No. 121863, May 5, 1997, 272 SCRA 221, 236. C-19

PROVISIONAL REMEDIES

3. Kinds 95 3.1. Preliminary prohibitory injunction which commands a party to refrain from doing a particular act; and 3.2. Preliminary mandatory injunction which commands performance of some positive act to correct a wrong in the past.

the

4. Purpose Generally, the sole object of a preliminary injunction, whether prohibitory or mandatory, is to preserve the status quo until the merits of the case can be heard.96  Status Quo - is the last, actual, peaceable, uncontested status (LAPUS) that preceded the pending controversy.97 More specifically, the purpose of a preliminary prohibitory injunction is not to correct a wrong of the past, in the sense of injury already sustained, but to prevent further injury,98 while the purpose of a preliminary mandatory injunction is to reestablish and maintain a preexisting continuing relation between the parties, recently and arbitrarily interrupted by the defendant, than to establish a new relation.99 5. Preliminary prohibitory injunction 5.1.

Essential requisites for issuance100 a. the applicant must have a clear and unmistakable right, that is, a right in esse; b. there is a material and substantial invasion of such right; c. there is an urgent need for the writ to prevent irreparable injury to the applicant; and

95

Levi Strauss & Co. v. Clinton Apparel, Inc., G.R. No. 138900, September 20, 2005, 470 SCRA 236, 252. 96 Unciano Paramedical College, Inc., et al. v. Court of Appeals, et al., G.R. No. 100335, April 7, 1993, 221 SCRA 285. 97 Yujuico, et al. v. Quiambao, et al., G.R. No. 168639, January 29, 2007, 513 SCRA 243, citing Searth Commodities Corp. v. Court of Appeals, G.R. No. 64220, March 31, 1992, 207 SCRA 622. 98 First Global Realty and Development Corporation v. San Agustin, G.R. No.144499, February 19, 2002, 377 SCRA 341. 99 Unciano Paramedical College, Inc., et al. v. Court of Appeals, et al., supra note 96. 100 Marquez, et al. v. Sanchez, et al., G.R. No. 141849, February 13, 2007, 515 SCRA 577. C-20

PROVISIONAL REMEDIES

d. no other ordinary, speedy, and adequate remedy exists to prevent the infliction of irreparable injury.

5.2.

Instances where preliminary prohibitory injunction lies a. in petitions for relief from judgment entered through fraud, accident, mistake or excusable negligence.101 b. in petitions for certiorari, prohibition and mandamus.102 c. to restrain continued breach of a valid negative obligation.103 d. to restrain a spouse from alienating or encumbering conjugal property during the pendency of legal separation or annulment proceedings.104 e. to enjoin repeated trespass on land.105

f. to restrain a city from proceeding with the abatement of a nuisance “per accidens” before it has been judicially declared to be such.106 g. to restrain voting of disputed shares of stock.107 h. to restrain a sheriff from selling property on execution not belonging to the judgment debtor.108

5.3. 

Instances where preliminary prohibitory injunction does not lie When preliminary prohibitory injunction is prohibited under statute a. In labor cases

101

RULES OF COURT, Rule 38, Sec. 5. Id., Rule 65, as amended by A.M. No. 07-7-12-SC. 103 Ollendorf v. Abrahamson, 38 Phil. 585 (1918). 104 De La Viña v. Villareal, 41 Phil. 13, 14 (1920). 105 Rodulfa v. Alfonso, 76 Phil. 225, 231 (1946). 106 Iloilo Ice and Cold Storage Co. v. Municipal Council of Iloilo, 24 Phil. 471 (1913). 107 Madrigal v. Rodas, 80 Phil. 252, 255 (1948). 108 Codesal & Ocampo v. Ascue, 38 Phil. 902 (1918). 102

C-21

PROVISIONAL REMEDIES

i. Under Article 255 of the Labor Code of the Philippines, as amended by Section 4 of Batas Pambansa Blg. 227, no temporary or permanent injunction in cases growing out of labor disputes shall be issued by a court or other entity, except by the following:109 

The National Labor Relations Commission, which shall have the power and authority to enjoin or restrain any actual or threatened commission of any or all prohibited or unlawful acts in any labor dispute which may cause grave or irreparable damage to any party, provided that said injunction shall be issued only after due notice and hearing.110



The Secretary of Labor and Employment, who shall assume jurisdiction over or decide a labor dispute which in his opinion is likely to cause strikes or lockouts adversely affecting the national interest, or he may certify the same to the commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout.111

b. Injunctions to restrain the collection of tax under Rep. Act No. 8424.112 

General Rule. No court may grant an injunction to restrain the collection of any national internal revenue tax, fee or charge imposed by the National Internal Revenue Code of 1997.113



Exception. Where some special circumstances are shown to exist, as in irreparable injury.114

109

Associated Labor Union (ALU-TUCP) v. Borromeo, G.R. No. 75736, September 29, 1988, 166 SCRA 99. 110 LABOR CODE OF THE PHILIPPINES, Art. 218, as amended by Batas Pambansa Blg. 227 [1982], Sec. 3. 111 Id., Art. 264. 112 Tax Reform Act of 1997, An Act Amending The National Internal Revenue Code, as Amended, and for other purposes. 113 Id., Sec. 218. 114 Sarasola v. Trinidad, 40 Phil. 252 (1919); David v. Ramos, 90 Phil. 351 (1951). C-22

PROVISIONAL REMEDIES

c. Injunctions to prevent the implementation of national government infrastructure projects under Rep. Act No. 8975.115 

General Rule: The issuance of temporary restraining orders, preliminary injunctions, or preliminary mandatory injunctions against national government infrastructure projects is prohibited under this law.116



No court, except the Supreme Court, shall issue any TRO or preliminary injunction or preliminary mandatory injunction against the government, or any of its subdivisions or officials, whether public or private, acting under the government direction to restrain, prohibit or compel the following acts: a. Acquisition, clearance and development of the right-of-way and/or site or location of any national government project; b. Bidding or awarding of contract/ project of the national government; c. Commencement, prosecution, execution, implementation, operation of any such contract or project; d. Termination or rescission contract/project; and

of

any

such

e. The undertaking or authorization of any other lawful activity necessary for such contract/project.117 

Exception: This prohibition shall not apply when the matter is of extreme urgency involving a constitutional issue, such that unless a temporary restraining order is issued, grave injustice and irreparable injury will arise. The applicant shall file a bond, in an amount to be fixed by the court, which shall accrue in favor of the government if the court should finally decide that the applicant was not entitled to the relief sought.118

115

An Act to Ensure the Expeditious Implementation and Completion of Government Infrastructure Projects by Prohibiting Lower Courts from Issuing Temporary Restraining Orders, Preliminary Injunctions or Preliminary Mandatory Injunctions, Providing Penalties for Violations thereof, and for Other Purposes, enacted November 7, 2000. 116 Id., Sec. 3. 117 Id. 118 Id. C-23

PROVISIONAL REMEDIES

d. Injunctions to prevent the foreclosure of real estate mortgages by government financing institutions under Pres. Decree No. 385.119 

The law prohibits the issuance of any restraining order, temporary or permanent injunction against any government financing institution in any action taken by such institution in connection with the mandatory foreclosure where arrears amount to at least 20% of the total outstanding obligations, including interest and other charges as appearing in the book of accounts and/or related records of the financial institutions concerned.120



Courts are directed to exercise utmost caution and judiciousness in the issuance of Temporary Restraining Orders or Preliminary injunctions in the foreclosure of real estate mortgages by government financial institutions.121



Inapplicability. Presidential Decree No. 385 cannot, however, be applied in the following instances: a. Where the extent of the loan actually received by the borrower is still to be determined.122 b. Where properties involved are already foreclosed. The prohibition found in Pres. Decree No. 385 against the issuance of injunctions by lower courts, unless certain conditions are met, applies only to foreclosure proceedings initiated by government financing institutions, like the Development Bank of the Philippines.123

119

Requiring Government Financial Institutions to Foreclose Mandatorily All Loans with Arrearages, Including Interest and Charges Amounting to at Least Twenty (20%) Percent of the Total Outstanding Obligation; OCA Circular No. 93-2004, in relation to RULES OF COURT, Rule 141, Sec. 21; Pres. Decree No. 385 [1974], Sec. 3; and Administrative Circular No. 07-99. 120 Sec. 2, in relation to Pres. Decree No. 385, Sec. 1; Filipinas Marble Corporation v. Intermediate Appellate Court, G.R. No. 68010, May 30, 1986, 142 SCRA 180. 121 OCA Circular No. 93-2004, in relation to RULES OF COURT, Rule 141, Sec. 21; Pres. Decree No. 385, Sec. 3; and Administrative Circular 07-99. 122 Filipinas Marble Corporation v. Intermediate Appellate Court, supra note 120; Government Service Insurance System v. Court of Appeals, G.R. No. 42278, January 20, 1989, 169 SCRA 244. 123 Searth Commodities Corporation v. Court of Appeals, supra note 97; Republic of the Philippines v. Court of Appeals, G.R. No. 107943, February 3, 2000, 324 SCRA 569. C-24

PROVISIONAL REMEDIES

e. Injunctions to prevent the Anti Money Laundering Council from issuing and/or implementing freeze orders under Rep. Act 9160,124 as amended by Rep. Act No. 9194.125 

No court, except the Court of Appeals or the Supreme Court, shall issue a temporary restraining order or writ of injunction against any freeze order of accounts issued by the AMLC where there has been a determination of probable cause that the subject account is dubious in character.126

f. Injunctions to restrain the Presidential Agrarian Reform Council, Department of Agrarian Reform, the Department of Agriculture, the Department of Environment and Natural Resources and the Department of Justice under Rep. Act No. 6657,127 as amended by Rep. Act No. 9700.128 

Except for the Supreme Court, no court in the Philippines shall have jurisdiction to issue any restraining order or writ of preliminary injunction against the PARC, the DAR, or any of its duly authorized or designated agencies in any case, dispute or controversy arising from, necessary to, or in connection with the application, implementation, enforcement, or interpretation of such Act and other pertinent laws on agrarian reform.129



No injunction, restraining order, prohibition or mandamus shall be issued by the regional trial courts, municipal trial courts, municipal circuit trial courts, and metropolitan trial courts against the DAR, the DA, the DENR, and the Department of Justice in their implementation of the agrarian reform program.130

124

Anti-Money Laundering Act of 2001, enacted September 29, 2001. An Act Amending Rep. Act No. 9160 [2001], otherwise known as the "Anti-Money Laundering Act Of 2001," enacted March 7, 2003. 126 Id., Sec. 10. 127 An Act Instituting a Comprehensive Agrarian Reform Program to Promote Social Justice and Industrialization, Providing the Mechanism for its Implementation, and for other Purposes, enacted June 10, 1988. 128 An Act Strengthening the Comprehensive Agrarian Reform Program (CARP), Extending the Acquisition and Distribution of All Agricultural Lands, Instituting Necessary Reforms, Amending for the Purpose Certain Provisions of Rep. Act No. 6657, Otherwise Known as the Comprehensive Agrarian Reform Law of 1988, as amended, and Appropriating Funds therefor, enacted August 7, 2009. 129 Rep. Act No. 9700 [2009], Sec. 20, amending Rep. Act No. 6657 [1988], Sec. 55. 130 Id., Sec. 23. 125

C-25

PROVISIONAL REMEDIES

g. Injunction against the Asset Privatization Trust (APT) under Proc. No. 50,131 as amended by Proc. No. 50-A.132 

No injunction. — No court or administrative agency shall issue any restraining order or injunction against the Trust in connection with the acquisition, sale or disposition of assets transferred to it pursuant to this Proclamation. Nor shall such order or injunction be issued against any purchaser of assets sold by the Trust to prevent such purchaser from taking possession of any asset purchased by him. 133



Note: The term of the Asset Privatization trust ended on December 31, 2000. However, its powers and functions are now undertaken by the Privatization and Management Office under the Department of Finance.134

h. Injunctions against public administrative officers in the issuance of public grants for the exploitation of natural resources under Pres. Decree No. 605.135 

No court of the Philippines shall have jurisdiction to issue any of the following: - restraining order; - preliminary injunction; or - preliminary mandatory injunction in any case involving or growing out of: - the issuance; - approval or disapproval; - revocation or suspension of; or - any action whatsoever

131

Proclaiming and Launching a Program for the Expeditious Disposition and Privatization of Certain Government Corporations and/or the Assets thereof, and Creating the Committee on Privatization and the Asset Privatization Trust. 132 Proc. No. 50-A, Sec. 31-A; Mantruste System v. Court of Appeals, G.R. Nos. 86540-41, November 6, 1989, 179 SCRA 136. 133 Proc. No. 50-A, Sec. 31. 134 See Executive Order No. 323, Art. III [2000], cited in Jose Feria and Maria Concepcion Noche, CIVIL PROCEDURE ANNOTATED, 2001 ed., p. 345. 135 Banning the Issuance by Courts of Preliminary Injunctions in Cases Involving Concessions, Licenses, and other Permits Issued by Public Administrative Officials or Bodies for the Exploitation of Natural Resources, enacted December 12, 1974. C-26

PROVISIONAL REMEDIES

committed by the proper administrative official or body involving any of the following: - concessions, - licenses, - permits, - patents, or - public grants of any kind which are related to the: - disposition, - exploitation, - utilization, - exploration, and/or - development of the natural resources of the Philippines.136





Exception: The prohibition does not apply in a case where the complaint does not put in issue the legitimacy of the defendant’s claim of being holders of mining lease contracts, but asserts that defendants had rights.137

Where Preliminary Prohibitory Injunction Was Held Improper a. To restrain the sale of conjugal properties where the claim can be annotated on the title as a lien, such as the husband’s obligation to give support.138 b. To restrain a mayor proclaimed as duly elected from assuming his office.139 c. To restrain consummated or ministerial acts.140 i. not proper to restrain the disposition of a case on the merits.141

136

Id., Sec. 1. D.C. Crystal, Inc. v. Laya, G.R. No. 53597, February 28, 1989, 170 SCRA 734. 138 Saavedra v. Estrada, 56 Phil. 33 (1931). 139 Cereno v. Dictado, G.R. No. 81550, April 15, 1988, 160 SCRA 759. 140 Philippine National Bank v. Adil, G.R. No. 52853, November 2, 1982, 118 SCRA 110. 141 Government Service Insurance System (GSIS) v. Florendo, G.R. NO. 48603, September 29, 1989, 178 SCRA 76; Ortigas and Company Limited Partnership v. Court of Appeals, G.R. No. 79128, June 16, 1988, 162 SCRA 165. 137

C-27

PROVISIONAL REMEDIES

ii. not proper to stop the execution of judgment where the judgment was already executed.142 iii. not proper for the regional trial court to issue a writ of injunction against the Register of Deeds if its effect is to render nugatory a writ of execution issued by the National Labor Relations Commission.143 iv. Where the act sought to be prevented had already been committed. An injunction suit becomes moot and academic after the act sought to be enjoined has already been committed or consummated.144 d. Where an action for damages would adequately compensate the injuries caused. The very foundation of the jurisdiction to issue the writ of injunction rests on: (1) the possibility of irreparable injury, (2) the inadequacy of pecuniary compensation, and (3) the prevention of multiplicity of suits. Where facts are not shown to bring the case within these conditions, the relief of injunction should be refused.145 e. When it is issued against courts or tribunals of co-equal rank. i. a court may not interfere by injunction with the judgments or orders of another court or quasi-judicial agency of coordinate and concurrent jurisdiction.146 ii. no writ may be issued by the Regional Trial Court against quasi-judicial bodies of equal rank, such as the Social Security Commission, Government Service Insurance Commission, Securities and Exchange Commission,147 Intellectual Property Office, Commission on Elections, Workmen’s Compensation Commission and others.148

142

Meneses v. Dinglasan, 81 Phil. 470 (1948). Ambrosio v. Salvador, G.R. No. 47651, December 11, 1978, 87 SCRA 217. 144 Ramos, Sr. v. Court of Appeals, G.R. Nos. 80908-09, May 24, 1989, 173 SCRA 550; Rivera v. Florendo, No. 57586, October 8, 1986, 144 SCRA 658; Romulo v. Yñiguez, G.R. No. 71908, February 4, 1986, 141 SCRA 263; Philippine National Bank v. Adil, supra note 140; Philippine Commercial and Industrial Bank v. National Mines and Allied Workers Union (NAMAWU-MIF), G.R. No. 50407, August 19, 1982, 115 SCRA 873. 145 Golding v. Balatbat, et al, 36 Phil. 941 (1917). 146 Roldan, Jr. v. Arca, G.R. No. 25434, July 25, 1975, 65 SCRA 336; Abiera v. Court of Appeals, G.R. No. 26294, May 31, 1972, 45 SCRA 314. 147 Philippine Pacific Fishing Co., Inc. v. Luna, G.R. No. 59070, March 15, 1982, 112 SCRA 604. 148 Nocnoc v. Vera, G.R. No. 37737, February 27, 1979, 88 SCRA 529. 143

C-28

PROVISIONAL REMEDIES

f. To prevent the implementation or execution of contracts for the operation of a public utility.149 g. When the act sought to be enjoined has already been committed.150 h. Where the injunction is not prayed for in the complaint. Courts should not issue orders or injunctions beyond those prayed for in the complaint.151 i. To restrain criminal prosecutions,152 except in the following cases:153 i. For the orderly administration of justice; ii. To prevent the use of the strong arm of the law in an oppressive and vindictive manner; iii. To avoid multiplicity of actions; iv. To afford adequate protection of constitutional rights; v. Where the statute relied upon is unconstitutional or was held invalid;154 vi. Where the constitutionality of the Chinese Book Keeping Law was questioned;155 vii. Where the hearing of the libel case was enjoined by permanent injunction after the Supreme Court, in a separate case, found the communication alleged to be libelous as privileged and not libelous;156 viii. Where a traffic ordinance was found to be invalid;157 149

G&S Transport Corporation v. Court of Appeals, G.R. No. 120287, May 28, 2002, 382 SCRA 262. 150 Philippine National Bank v. Adil, supra note 140; Ramos, Sr. v. Court of Appeals, G.R. Nos. 80908-09, May 24, 1989, 173 SCRA 550. 151 The Chief of Staff, AFP v. Guadiz, Jr., G.R. No. 35007, December 29, 1980, 101 SCRA 827. 152 Romero, et al. v. Chief of Staff, AFP. Brig. Gen. Manuel Casaclang, et al., G.R. No. 84076 February 20, 1989, 170 SCRA 408. 153 Brocka v. Enrile, G.R. Nos. 69863-65, December 10, 1990, 192 SCRA 182. 154 Justiniani v. Castillo, G.R. No. 41114, June 21, 1988, 162 SCRA 378. 155 Yu Cong Eng v. Trinidad, 47 Phil. 385 (1925). 156 Ang v. Castro, G.R. No. 66371, May 15, 1985, 136 SCRA 453; Justiniani v. Castillo, supra note 154. 157 Primicias v. Municipality of Urdaneta, Pangasinan, G.R. No. 26702, October 18, 1979, 93 SCRA 462. C-29

PROVISIONAL REMEDIES

6. Preliminary Mandatory Injunction 6.1.

Requisites a. Invasion of the right is material and substantial; b. Right of complainant is clear and unmistakable; c. Urgent and permanent necessity for the writ to prevent serious damage.158

6.2.

When not allowed a. to compel one of the spouses to cohabit with, and render conjugal rights to, the other;159 b. to cancel an attachment;160 c. to transfer the property in litigation from the possession of one party to another where the legal title is in dispute and the party having possession asserts ownership thereto.161 This is more particularly applicable where the legal title is in dispute and the party having possession asserts ownership in himself.162 d. when the effect would be to create a new relation between the parties.163

6.3.

When allowed a. In forcible entry cases where the Court may issue a preliminary mandatory injunction, upon motion within 5 days from the filing of the complaint, to restore the plaintiff in possession164 and those involving leases in which the court may, on appeal, grant similar mandatory injunctive relief.

158

Pelejo v. Court of Appeals, G.R. No. 60800, October 18, 1982, 117 SCRA 666; Rivera v. Florendo, supra note 144. 159 Arroyo v. Vasquez De-Arroyo, G.R. No. 17014, August 11, 1921. 160 Levy Hermanos, Inc. v. Lacson, et al., G.R. No. 47285, December 16, 1940. 161 Toyota Motors Philippines Corporation v. Court of Appeals, G.R. No. 102881, December 7, 1992, 216 SCRA 236. 162 Gordillo v. Del Rosario, 39 Phil. 829 (1919). 163 Alvaro, et al. v. Zapata, et al., G.R. No. 50548, November 25, 1982, 118 SCRA 722. 164 RULES OF COURT, Rule 70, Sec. 15. C-30

PROVISIONAL REMEDIES

The exception applies only to ejectment cases exclusively cognizable by the municipal trial court.165 b. Property covered by Torrens Title when there is a clear finding of ownership and possession of the land, unless the subject property is covered by a Torrens Title pointing to one of the parties as the undisputed owner.166 7. Procedure for issuance of preliminary injunction 7.1.

Grounds a. applicant is entitled to the relief demanded which consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts; b. commission, continuance or non-performance of the acts complained of during the litigation would probably work injustice to the applicant; or c. 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.167

7.2. The application for injunction must be verified and must show facts entitling the applicant to the relief demanded168 7.3. Unless exempted by the court, the applicant must file a bond executed to the party or person enjoined, in an amount to be fixed by the court169

165

Ramos v. Court of Appeals, G.R. No. 81354, July 26, 1988, 163 SCRA 583. Government Service Insurance System (GSIS) v. Florendo, supra, note 141; Cagayan de Oro City Landless Residents Association, Inc. v. Court of Appeals, G.R. No. 106043, March 4, 1996, 254 SCRA 229. 167 RULES OF COURT, Rule 58, Sec. 3. 168 Id., Sec. 4. 169 Id. 166

C-31

PROVISIONAL REMEDIES

7.4 Hearing and prior notice to the party/person sought to be enjoined170 Exceptions to the requirement of hearing a. Great or irreparable injury would result to the applicant before the matter can be heard on notice. i.

Thus, the court may issue a TRO effective for 20 days from service on the party sought to be enjoined.171

ii.

Injury is “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.172

b. The matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury. i.

Judge may issue ex parte a TRO effective for 72 hours from issuance.

ii.

Within 72 hours, the judge shall conduct a summary hearing to determine whether the TRO shall be extended until the application for preliminary injunction can be heard.

iii.

Maximum period of effectivity of TRO is 20 days. o If the application for preliminary injunction is denied or not resolved within the said period, the TRO is deemed automatically vacated. o The effectivity of a TRO is not extendible and no court shall have authority to extend or renew the same on the same ground for which it was issued.

170

Id., Sec. 5. Id. 172 Philippine Airlines v. National Labor Relations Commission, G.R. No. 120567 March 20, 1998, 287 SCRA 672. 171

C-32

PROVISIONAL REMEDIES

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

7.5

When final injunction granted

If after 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 complained of, confirming the preliminary mandatory injunction.173 8. Jurisprudence 8.1. A suspension order is equivalent to injunction.174 8.2. Summary denial without adequate hearing improper. In issuing preliminary injunction, the courts are given sufficient discretion to determine the necessity of granting the relief prayed for. However, there is a caveat that extreme caution be observed in the exercise of such discretion because it affects the respective rights of the parties. But it is with an equal degree of care and caution that courts ought to proceed in the denial of the writ. It should not just summarily issue an order of denial without an adequate hearing and judicious evaluation of the merits of the application. A perfunctory and improvident action in this regard would be a denial of procedural due process and could result in irreparable prejudice to a party.175 8.3. When hearing on the merits unnecessary. If the ground for the opposition of the issuance of the writ is the insufficiency of the complaint, the same will be apparent on the face of the complaint itself. Preliminary injunction in such a circumstance may be refused outright, with or without notice to the adverse party. In fact, under Section 6 of Rule 58, the court may also refuse an injunction on other grounds on

173

RULES OF COURT, Rule 58, Sec. 9. Philippine National Bank v. Adil, supra note 140. 175 Bataclan v. Court of Appeals, G.R. No. 78148, July 3, 1989, 175 SCRA 764. 174

C-33

PROVISIONAL REMEDIES

the basis of affidavits which may have been submitted by the parties in connection with such application. Rule 58, Sec. 7 does not declare that a hearing on the merits is mandatory or a prerequisite in the granting of the writ. Otherwise, the courts will be forced to conduct a hearing even if, from a consideration of the pleadings alone, it can readily be ascertained that the movant is not entitled to the writ. It would be different if there is a prima facie showing on the face of the motion or pleadings that the grant of preliminary injunction may be proper, in which case, notice to the opposing party would be necessary since the grant of such writ on an ex parte proceeding is now proscribed. If there is a prima facie showing that the preliminary injunction is proper, a hearing should be conducted, since under such circumstances, only in cases of extreme urgency will the writ issue prior to a final hearing. But it does not follow that such a hearing is indispensable where at the outset the court is reasonably convinced that the writ will not lie. What was then discouraged and is now specifically prohibited is the issuance of the writ without notice and hearing.176 9. Effect when a Higher Court Issues a Writ of Preliminary Injunction Against a Lower Court, Board or Tribunal in a Petition for Certiorari under Rule 65:  The trial court, the Court of Appeals, the Sandiganbayan or the Court of Tax Appeals that issued a writ of preliminary injunction against a lower court, board, officer or quasi-judicial agency shall decide the main case or the petition within six months from the issuance of the writ.  Under this provision, higher courts that restrain a lower court from proceeding with a case by issuing a writ of preliminary injunction must decide the petition for certiorari within six months in order not to unduly delay the main case lodged in a lower court.177

176

Valley Trading Co., Inc. v. Court of First Instance, G.R. No. 49529, March 31,1989, 171 SCRA 501. 177 Rule 58, Sec. 5, as amended by A.M. No. 07-7-12-SC, which took effect on December 27, 2007. C-34

PROVISIONAL REMEDIES

10. Temporary Restraining Order178 10.1. Procedure. When an application for a writ of preliminary injunction or a temporary restraining order is included in a complaint or any initiatory pleading, the case, if filed in a multiple-sala court, shall proceed as follows: a. Verified application and bond for preliminary injunction or temporary restraining order; b. Determination from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice;

c. If the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of a multiple-sala court or the presiding judge of a single sala court may issue ex parte a temporary restraining order effective for only seventy-two (72) hours from issuance; d. In either case, even if no TRO had been issued because there is no extreme urgency, the case shall be raffled only after notice to, and in the presence of, the adverse party or the person to be enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint or initiatory pleading and the applicant’s affidavit and bond, upon the adverse party in the Philippines. However, (1) where the summons could not be served personally or by substituted service despite diligent efforts, or (2) the adverse party is a resident of the Philippines temporarily absent therefrom or is a nonresident thereof, the requirement of prior or contemporaneous service of summons shall not apply. e. If no TRO has been issued because there is no extreme urgency, the application for a temporary restraining order shall thereafter be acted upon only after all parties are heard in a summary hearing, which shall be conducted within twenty-four (24) hours after the sheriff’s return of service and/or the records are received by the branch selected by raffle and to which the records shall be transmitted immediately.

178

Id., Secs. 4 and 5. C-35

PROVISIONAL REMEDIES

f. Within the aforesaid seventy-two (72) hours, the judge before whom the case is pending shall conduct a summary hearing to determine whether the temporary restraining order shall be extended until the application for preliminary injunction can be heard. In no case shall the total period of effectivity of the temporary restraining order exceed twenty (20) days, including the original seventy-two hours provided herein. g. Determination, within twenty days from service of the TRO on the party sought to be enjoined, whether a preliminary injunction shall issue or not. h. The effectivity of a temporary restraining order is not extendible without need of any judicial declaration to that effect and no court shall have authority to extend or renew the same on the same ground for which it was issued. Another restraining order may, therefore, be issued provided it is not based on the same ground.

10.2. Supreme Court guidelines in the issuance of temporary restraining orders and/or preliminary injunction a. Judges are enjoined to observe utmost caution, prudence and judiciousness in issuance of temporary restraining orders and writs of preliminary injunctions to avoid any suspicion that its issuance or grant was for consideration other than the strict merits of the case.179 b. Courts are without jurisdiction to issue injunctive writs against the implementation or execution of government infrastructure projects.180 c. The Collector of Customs has exclusive jurisdiction over seizure and forfeiture proceedings and regular courts cannot interfere with his exercise thereof or stifle or put it to naught.181 d. Administrative Circular No. 62-2002182 requires trial judges to submit a report on the status of temporary restraining orders or 179

Administrative Circular No. 07-99, issued June 25, 1999. Id., citing Garcia v. Burgos, G.R. No. 124130 and June 29, 1998, 291 SCRA 546; Administrative Circular No. 11 – 2000, Re: Ban on the Issuance of Temporary Restraining Orders or Writs of Preliminary Prohibitory or Mandatory Injunctions In Cases Involving Government Infrastructure Projects, issued on 13 November 2000. 181 Administrative Circular No. 07-99, citing Mison v. Natividad, G.R. No. 82586, September 11, 1992, 213 SCRA 734. 182 Issued November 20, 2002. 180

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PROVISIONAL REMEDIES

writs of preliminary injunction issued in various cases. The circular requires reports to indicate the following: i. full case caption and docket number; ii. nature of case; iii. date of filing of complaint or motion; iv. date TRO was issued; v. date the writ of preliminary prohibitory injunction was issued, if any; vi. status of the TRO or the writ of the preliminary prohibitory injunction (whether it is still in force); vii. actual status of the case; viii. if the case is already deemed submitted for decision, the date it was deemed submitted; and ix. if the case has been pending for more than one year, the reason therefore. e. Guidelines on issuing TRO or writ of preliminary injunction in relation to extrajudicial and judicial foreclosure of real estate mortgages: i. 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; ii. 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 12 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;

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PROVISIONAL REMEDIES

iii. 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 SC, through the Office of the Court Administrator, quarterly reports on the progress of the cases involving P10 million and above; iv. 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.183 f. Special rules for temporary restraining orders and preliminary injunctions.184 i. Where an application for temporary restraining order (TRO) or writ of preliminary injunction is included in a complaint or any initiatory pleading filed with the trial court, such compliant or initiatory pleading shall be raffled only after notice to the adverse party and in the presence of such party or counsel. ii. 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. iii. If the matter is of extreme urgency, such that unless a TRO is issued, grave injustice and irreparable injury will arise, the Executive Judge shall issue the TRO effective only for seventy-two (72) hours from issuance, but shall immediately summon the parties for conference and immediately raffle the case in their presence. Thereafter, before the expiry of the seventy-two (72) hours, the Presiding Judge to whom the case is assigned shall conduct a summary hearing to determine whether the TRO can be extended for another period until a hearing in the pending application for preliminary injunction can be conducted. In no case shall the total period of the TRO exceed twenty (20) days, including the original seventy-two (72) hours, for the TRO issued by the Executive Judge. 183

Administrative Matter No. 99-10-05-O, issued February 20, 2007. Administrative Circular No. 20-95, issued September 12, 1995 - Re: Special Rules For Temporary Restraining Orders and Preliminary Injunctions. 184

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PROVISIONAL REMEDIES

iv. 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. C. Receivership185 1. Definition Receivership is a legal or equitable proceeding in which a receiver is appointed for an insolvent corporation, partnership or individual to preserve its assets for the benefit of the affected parties.186 A receiver is a person appointed by the court on behalf of all the parties to the action for the purpose of preserving and conserving the property in litigation and prevent its possible destruction or dissipation, if it were left in the possession of any of the parties.187 He is not the agent or representative of either party to the action, but is uniformly regarded as an officer of the court, exercising his functions in the interest of neither plaintiff nor defendant, but for the common benefit of all parties in interest.188 2. Purpose Receivership is aimed at the preservation of, and making more secure, existing rights; it cannot be used as an instrument for the destruction of those rights.189

3. Appointment of a Receiver 3.1 Who may be appointed. The general rule is that neither party to the litigation should be appointed as a receiver without the consent of the other, because a receiver is supposed to be an impartial and

185

Receivership under this Rule is different from receivership under the Rules on Corporate Rehabilitation, the discussion of which is found on page 68 hereof. 186 Black’s Law Dictionary (6th ed., 1990). 187 Commodities Storage & Ice Plant Corporation, et al. v. Court of Appeals, et al., G.R. No. 125008, June 19, 1997, 274 SCRA 439. 188 Pacific Merchandising Corp. v. Consolacion Ins. & Surety Co., Inc., G.R. No. 30204, October 29, 1976, 73 SCRA 564. 189 Arranza, et al. v. B.F. Homes, Inc., et al., G.R. No. 131683, June 19, 2000, 333 SCRA 799. C-39

PROVISIONAL REMEDIES

disinterested person.190 A clerk of court should not be appointed as a receiver as he is already burdened with his official duties.191

3. 2.

When receiver may be appointed 192 a. When it appears from the verified application, and such other proof as the court may require, that the party applying for the appointment of a receiver has an actual interest in the property subject of the action or proceeding, and that such property is in danger of being lost, removed, or materially injured, unless a receiver be appointed to administer and preserve it;193 b. When it appears in an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted or dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage; c. After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise to carry the judgment into effect; d. Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing of the property in litigation.194

3.3.

Who may appoint receiver195 a. Court where the action is pending b. Supreme Court

190

Commodities Storage & Ice Plant Corporation, et al. v. Court of Appeals, et al., supra note 187, citing Alcantara v. Abbas, G.R. No. 4890, September 30, 1963, 9 SCRA 54. 191 Abrigo v. Kayanan, G.R. No. 28601, March 18, 1983, 121 SCRA 20. 192 RULES OF COURT, Rule 59, Sec. 1. 193 Commodities Storage & Ice Plant Corporation, et al. v. Court of Appeals, et al., supra note 187. 194 Ralla v. Alcasid, 116 Phil. 622, 625 (1962). 195 RULES OF COURT, Rule 59, Sec. 1. C-40

PROVISIONAL REMEDIES

c. Court of Appeals d. During the pendency of an appeal, the appellate court may allow an application for the appointment of a receiver to be filed in and decided by the court of origin. General Powers of a Receiver196

4.

4.1. Bring and defend, in such capacity, actions in his own name with leave of court; 4.2.

Take and keep possession of the property in controversy;

4.3.

Receive rents;

4.4. Collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver; 4.5.

Compound for and compromise the same;

4.6.

Make transfers;

4.7.

Pay outstanding debts;

4.8. Divide the money and other property that shall remain among the persons legally entitled to receive the same; 4.9. Generally, to do such acts respecting the property as the court may authorize; 4.10. Invest funds in his hands, but only by order of the court upon the written consent of all the parties.

5.

Specific situations when a receiver may be appointed 5.1.

Family Code, Article 101

If a spouse, without just cause, abandons the other or fails to comply with his or his obligations to the family, the aggrieved spouse may petition the court for receivership.

196

Id., Sec. 6. C-41

PROVISIONAL REMEDIES

5.2

Rules of Court, Rule 39, Section 41

The court may appoint a receiver of the property of the judgment obligor; and it may also forbid the transfer or other disposition of, or any interference with, the property of the judgment obligor not exempt from execution. 5.3. After the perfection of an appeal, the trial court retains jurisdiction to appoint a receiver of the property under litigation since this matter does not touch upon the subject of the appeal.197 5.4. After final judgment, a receiver may be appointed as an aid to the execution of judgment.198 5.5. Appointment of a receiver over the property in custodia legis may be allowed when it is justified by special circumstances as when it is reasonably necessary to secure and protect the rights of the real owner.199

D. REPLEVIN 1. Definition Replevin is a possessory action, the gist of which is the right of possession in the plaintiff. The primary relief sought therein is the return of the property wrongfully detained by another person. It is an ordinary statutory proceeding to adjudicate rights to the title or possession of personal property.200 2. Purpose The provisional remedy of replevin allows the plaintiff to retain the thing in dispute during the pendency of the action and hold it pendente lite.201

197

RULES OF COURT, Rule 41, Sec. 9; Acuña v. Caluag, 101 Phil. 446 (1957). Salientes v. IAC, et al., G.R. No. 66211, July 14, 1995, 246 SCRA 150; Ranon v. Liwag, et al., G.R. No. 66211, July 14, 1995, 246 SCRA 150; Philippine Trust Company v. Santamaria, 53 Phil. 463 (1929). 199 Dolar v. Sundiam, G.R. No. 27631, April 30, 1971, 38 SCRA 616. 200 Basaya v. Militante, G.R. No. 75837, December 11, 1987, 156 SCRA 299. 201 BA Finance Corporation v. Court of Appeals, et al., G.R. No. 102998, July 5, 1996, 258 SCRA 102. 198

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PROVISIONAL REMEDIES

3. Requirements 3.1.

Application202 a. Who may apply: party praying for the recovery of possession of personal property. b. When: (1) at the commencement of the action or (2) before the answer. This is unlike attachment, injunction and support pendente lite which may be issued at anytime before final judgment and also unlike receivership which may issued anytime even after final judgment.

3.2. Affidavit.203 The applicant must show by his own affidavit or that of some other person who personally knows the facts that: a. the applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof; b. the property is wrongfully detained by the adverse party, alleging the cause of detention thereof according to the best of his knowledge, information, and belief; c. the property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodia legis, or if so seized, that it is exempt from such seizure or custody; and d. the actual market value of the property. 3.3 Bond.204 The applicant must also give a bond, executed to the adverse party in double the value of the property as stated in the affidavit aforementioned, for the return of the property to the adverse party if such return be adjudged, and for the payment to the adverse party of such sum as he may recover from the applicant in the action.

4.

Order of replevin205

Upon filing such affidavit and approval of the bond, the court shall issue an order and the corresponding writ of replevin, describing the 202

RULES OF COURT, Rule 60, Sec. 1. Id., Sec. 2. 204 Id. 205 Id., Sec. 3. 203

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PROVISIONAL REMEDIES

personal property alleged to be wrongfully detained and requiring the sheriff forthwith to take such property into his custody.

5.

Jurisprudence 5.1 The applicant for a writ of replevin need not be the owner for it is enough that he has a right to posses it.206 5.2 Replevin cannot be availed of if the property is in custodia legis where it is under attachment or was seized under a search warrant,207 except: a. when the seizure is illegal;208 and b. where there is reason to believe that the seizure will no longer be followed by the filing of the criminal action in court, and there are conflicting claims over the seized property.209 5.3 The defendant is entitled to the return of the property taken under a writ of replevin if the following requisites are met: a. the defendant posts a redelivery bond executed to the plaintiff in an amount double the value of the property; b. the defendant serves plaintiff with a copy thereof; c. it is done within five (5) days from taking;210 and d. the bond is sufficient.211 5.4 . The RTC has no jurisdiction to take cognizance of the petition for replevin; issue the writ of replevin; and order its enforcement where the Collector of Customs had already seized the vehicles and set the sale thereof at a public auction. The RTC should have dismissed the petition for replevin at the outset.212

206

Yang v. Valdez, G.R. No. 73317, August 31, 1989, 177 SCRA 141. Pagkalinawan v. Gomez, G.R. No. 22585, December 16, 1967, 21 SCRA 1275; RULES OF COURT, Rule 60, Sec. 2 (c). 208 Bagalihog v. Fernandez, G.R. No. 96356, June 27, 1991, 198 SCRA 614. 209 Chua v. Court of Appeals, G.R. No. 79021, May 17, 1993, 222 SCRA 85. 210 La Tondena Distillers, Inc. v. Court of Appeals, G.R. No. 88938, June 8, 1992, 209 SCRA 553; Ong v. IAC, G.R. No. 74073, September 13, 1991, 201 SCRA 543. 211 RULES OF COURT, Rule 60, Secs. 5 and 6. 212 Asian Terminals Incorporated v. Bautista, et al., G.R. No. 166901, October 27, 2006, 505 SCRA 748. 207

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PROVISIONAL REMEDIES

E. Support Pendente Lite 1. Support pendente lite may be granted by the court in two (2) instances: 1.1. in a family case for support, legal separation between spouses or nullity of marriage,213 1.2. in a criminal action where civil liability includes support for the offspring as a consequence of the crime.214 2. Nature of proceedings in the grant of support pendente lite Proceedings for support pendente lite in family cases are summary in nature. Family Courts may issue orders directing support pendente lite upon either an application by a party at any stage of the proceedings or motu proprio. These orders may be enforced immediately.215 3. Procedure 3.1.

Verified application216 a. Who may apply: any party b. When: 1. at the commencement of the proper action or proceeding, 2. at any time prior to the judgment or final order. c. Contents: 1. Grounds for the claim 2. Financial conditions of both parties 3. Affidavits, depositions, or other authentic documents in support thereof.

213

FAMILY CODE OF THE PHILIPPINES, Art. 203. RULES OF COURT, Rule 61, Sec. 6. 215 AM 02-11-12, Rule on Provisional Orders in Family Cases, Sec. 1. 216 RULES OF COURT, Rule 61, Sec. 1. 214

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PROVISIONAL REMEDIES

3.2. Verified comment.217 A copy of the application and all supporting documents shall be served upon the adverse party, who shall have 5 days to comment thereon, unless a different period is fixed by the court upon motion. 3.3. Hearing.218 The application for support pendente lite shall be set for hearing within 3 days after the comment is filed or after the expiration of the period for its filing.

3.4. Order of support. If the application is granted, the court shall fix the amount of money to be provisionally paid or such other forms of support as should be provided, taking into account the necessities of the applicant and the resources or means of the adverse party, and the terms of payment or mode for providing the support. If the application is denied, the principal case shall be tried and decided as early as possible.219  Judgments in actions for support shall be enforceable after their rendition and shall not be stayed by an appeal taken therefrom, unless otherwise ordered by the trial court.220 3.5. Failure to comply with order of support. 221 If the adverse party fails to comply with an order granting support pendente lite, the court shall, motu proprio or upon motion, issue an order of execution against him, without prejudice to his liability for contempt. When the person ordered to give support pendente lite refuses or fails to do so, any third person who furnished that support to the applicant may, after due notice and hearing in the same case, obtain a writ of execution to enforce his right of reimbursement against the person ordered to provide such support.

217

Id., Sec. 2. Id., Sec. 3. 219 Id., Sec. 4. 220 Id., Rule 39, Sec. 4. 221 Id., Rule 61, Sec. 5. 218

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PROVISIONAL REMEDIES

3.6. Remedies of a party who was erroneously ordered to give support:222 a. Apply for an order for such reimbursement by the recipient on motion in the trial court in the same case, unless such restitution is already included in the judgment; or b. Failing therein, file a separate action for reimbursement against the person legally obliged to give support.

3.7. Support in criminal cases. Support pendente lite is allowed in criminal actions where the civil liability includes support for the offspring as a consequence of the crime and the civil aspect thereof has not been waived, reserved or instituted prior to its filing.223

3.8. Child support may be ordered by a Family Court from either or both parents in such amount as may be necessary for the support, maintenance and education of the child, taking into consideration the following: 

financial resources of the custodial and non-custodial parent;



the physical and emotional health of the child;



the child’s special needs and aptitudes;



and the standard of living to which the child has become accustomed to.224

3.9. Spousal support may be ordered by a Family Court during the pendency of a petition for declaration of nullity of marriage or a petition for legal separation, upon showing that: a. there is no adequate provision in a written agreement between the spouses; b. the spouse seeking support is the custodian of a child whose circumstances make it appropriate for that spouse not to seek employment, or c. such other circumstances that may merit spousal support.225 222

Id., Sec. 7. Id., Sec. 6. 224 AM 02-11-12, Rule on Provisional Orders in Family Cases, Sec. 3. 223

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PROVISIONAL REMEDIES

4. Jurisprudence 4.1. Where the right to support is put in issue by the pleadings or the fact from which the right to support arises is in controversy or has not been established, the court cannot grant support pendente lite.226 4.2. The amount of support pendente lite is not final in character in the sense that it can be the subject of modification depending on the changing conditions affecting the ability of the obligor to pay the amount fixed for support.227 4.3. If an application for support pendente lite is denied, the remedy is certiorari. 4.4. Mere affidavits or other documents appearing in the record are sufficient basis for the court to determine amount of support pendente lite.228 F. Provisional Remedies in Criminal Cases 229 1. Availability of Provisional Remedies230 The provisional remedies in civil actions, insofar as they are applicable, may be availed of in connection with the civil action deemed instituted with the criminal action. 2. Attachment231 When the civil action is properly instituted in the criminal action as provided in Rule 111, the offended party may have the property of the accused attached as security for the satisfaction of any judgment that may be recovered from the accused, in the following cases: 2.1. When the accused is about to abscond from the Philippines; 2.2. When the criminal action is based on a claim for money or property embezzled or fraudulently misapplied or converted to the use of the accused who is a public officer, officer of a corporation, attorney, 225

Id., Sec. 2. Francisco v. Zandueta, 61 Phil. 752 (1929). 227 San Juan v. Valenzuela, G.R. No. 59906, October 23, 1982, 117 SCRA 926. 228 Reyes v. Ines-Luciano, G.R. No. 48219, February 28, 1979, 88 SCRA 803. 229 REVISED RULES OF CRIMINAL PROCEDURE, Rule 127. 230 Id., Sec. 1. 231 Id., Sec. 2. 226

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PROVISIONAL REMEDIES

factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty; 2.3. When the accused has concealed, removed, or disposed of his property, or is about to do so; and 2.4. When the accused resides outside the Philippines.

II. UNDER SPECIAL LAWS: A. Temporary Protection Order under the Anti-Violence Against Women and their Children Law232 1. Definition A protection order under Republic Act No. 9262 is an order issued for the purpose of preventing further acts of violence against a woman or her child as specified in R.A. No. 9262, Sec. 5 and granting other necessary relief. The relief granted under a protection order serves the purpose of: (1) safeguarding the victim from further harm, (2) minimizing any disruption in the victim's daily life, and (3) facilitating the opportunity and ability of the victim to independently regain control over her life. The provisions of the protection order shall be enforced by law enforcement agencies.233

2. Protection Order under Rep. Act No. 9262 v. Protection Order under A.M. No. 02-11-12-SC234 on the Rule on Provisional Orders

Principal Action

Relief

Protection Order under Protection Order under Rep. Act No. 9262 A.M. No. 02-11-12-SC Cases of Violence against Cases for declaration of women and their children absolute nullity of void under Rep. Act No. 9262 marriage or for annulment of voidable marriage or for legal separation Enumeration under Section Enumeration under Section 7 8 of Rep. Act No.. 9262 of A.M. No. 02-11-12-SC

232

Rep. Act No. 9262. Id., Sec. 8. 234 Took effect on March 15, 2003. 233

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PROVISIONAL REMEDIES

Who may File

a) the offended party; b) parents or guardians of the offended party; c) ascendants, descendants or collateral relatives within the fourth civil degree of consanguinity or affinity; d) officers or social workers of the DSWD or social workers of local government units (LGUs); e) police officers, preferably those in charge of women and children's desks; f.) Punong Barangay or Barangay Kagawad; g.) lawyer, counselor, therapist or healthcare provider of the petitioner; h.) At least two (2) concerned responsible citizens of the city or municipality where the violence against women and their children occurred and who have personal knowledge of the offense committed.

a.) TPE issued Motu proprio by court or b. Upon application under oath of any of the parties, guardian or designated custodian.

3. Period of Validity of a TPO A temporary protection order may initially be issued ex parte for a period of 30 days.235 The TPO may continuously be extended or renewed until final judgment is issued, at which time the court shall either lift the TPO or convert it into a permanent protection order. The TPO may be modified in the course of the trial to address the needs of the applicant.236

235 236

Rep. Act No. 9262, Sec. 15. Id., Sec. 16. C-50

PROVISIONAL REMEDIES

4. How the TPO is Enforced A temporary protection order is directed to the respondent and is enforced by law enforcement agencies.237 5. The TPO Shall Include Any, Some, or All of the Following Reliefs: a. Prohibiting the respondent from threatening to commit or committing, personally or through another, any of the following acts against women and their children: i.

Causing physical harm to the woman or her child;

ii.

Threatening to cause the woman or her child physical harm;

iii.

Attempting to cause the woman or her child physical harm;

iv.

Placing the woman or her child in fear of imminent physical harm;

v.

Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her child has the right to desist from or desist from conduct which the woman or her child has the right to engage in, or attempting to restrict or restricting the woman’s or her child’s freedom of movement or conduct by force or threat of force, physical or other harm or threat of physical or other harm, or intimidation directed against the woman or child. This shall include, but not limited to, the following acts committed with the purpose or effect of controlling or restricting the woman’s or her child’s movement or conduct:  Threatening to deprive or actually depriving the woman or her child of custody to her/his family;  Depriving or threatening to deprive the woman or her children of financial support legally due her or her family, or deliberately providing the woman’s children insufficient financial support;  Depriving or threatening to deprive the woman or her child of a legal right;  Preventing the woman in engaging in any legitimate profession, occupation, business or activity or controlling

237

Id., Sec. 15. C-51

PROVISIONAL REMEDIES

the victim’s own money or properties, or solely controlling the conjugal or common money, or properties; vi.

Inflicting or threatening to inflict physical harm on oneself for the purpose of controlling her actions or decisions;

vi.

Causing or attempting to cause the woman or her child to engage in any sexual activity which does not constitute rape, by force or threat of force, physical harm, or through intimidation directed against the woman or her child or her/his immediate family;

vii.

Engaging in purposeful, knowing, or reckless conduct, personally or through another that alarms or causes substantial emotional or psychological distress to the woman or her child. This shall include, but not be limited to, the following acts:  Stalking or following the woman or her child in public or private places;  Peering in the window or lingering outside the residence of the woman or her child;  Entering or remaining in the dwelling or on the property of the woman or her child against her/his will;  Destroying the property and personal belongings or inflicting harm to animals or pets of the woman or her child; and 

viii.

Engaging in any form of harassment or violence;

Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor children of access to the woman’s child/children;

b. Prohibiting any public official or employee or a private individual or entity from threatening to commit acts that tend, or threaten, to violate the life, liberty and security of a person; c. Prohibition of the respondent from harassing, annoying, telephoning, contacting or otherwise communicating with the petitioner, directly or indirectly;

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PROVISIONAL REMEDIES

d. Removal and exclusion of the respondent from the residence of the petitioner, regardless of ownership of the residence, either temporarily for the purpose of protecting the petitioner, or permanently where no property rights are violated, and if respondent must remove personal effects from the residence, the court shall direct a law enforcement agent to accompany the respondent to the residence, to remain there until respondent has gathered his things, and to escort respondent from the residence; e. Directing the respondent to stay away from petitioner and any designated family or household member at a distance specified by the court, and to stay away from the residence, school, place of employment, or any specified place frequented by the petitioner and any designated family or household member; f. Directing lawful possession and use by petitioner of an automobile and other essential personal effects, regardless of ownership, and directing the appropriate law enforcement officer to accompany the petitioner to the residence of the parties to ensure that the petitioner is safely restored to the possession of the automobile and other essential personal effects, or to supervise the petitioner’s or respondent’s removal of personal belongings; g. Granting a temporary or permanent custody of a child/children to the petitioner; h. Directing the respondent to provide support to the woman and/or her child if entitled to legal support. Notwithstanding other laws to the contrary, the court shall order an appropriate percentage of the income or salary of the respondent to be withheld regularly by the respondent’s employer and for the same to be automatically remitted directly to the woman. Failure to remit and/or withhold or any delay in the remittance of support to the woman and/or her child without justifiable cause shall render the respondent or his employer liable for indirect contempt of court; i. Prohibition of the respondent from any use or possession of any firearm or deadly weapon and order him to surrender the same to the court for appropriate disposition by the court, including revocation of license and disqualification to apply for any license to use or possess a firearm. If the offender is a law enforcement agent, the court shall order the offender to surrender his firearm and shall direct the appropriate authority to investigate the offender and take appropriate action on the matter;

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PROVISIONAL REMEDIES

j. Restitution for actual damages caused by the violence inflicted including, but not limited to, property damage, medical expenses, childcare expenses and loss of income; k. Directing the DSWD or any appropriate agency to provide petitioner temporary shelter and other social services that the petitioner may need;238 l. Directing a person to permit a parent or a person entitled to visitation to visit a child at stated periods;239 and m. Directing a party to permit a designated party to enter the residence during a specified period to take personal belongings not contested in the proceedings.240 6. Who May File a Petition for Protection Order241 6.1.

the offended party;

6.2.

the parents or guardians of the offended party;

6.3. ascendants, descendants or collateral relatives within the fourth civil degree of consanguinity or affinity of the offended party; 6.4. officers or social workers of the DSWD or social workers of local government units (LGUs); 6.5. police officers, preferably those in charge of women and children’s desks; 6.6.

Punong barangay or barangay kagawad;

6.7. lawyer, counselor, therapist or healthcare provider of the petitioner; and 6.8. at least two (2) concerned responsible citizens of the city or municipality where the violence against women and their children occurred and who have personal knowledge of the offense committed.

238

Id., Sec. 8. A.M. 02-11-12-SC Rule on Provisional Orders, Sec. 7. 240 Id. 241 Rep. Act No. 9262, Sec. 9. 239

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PROVISIONAL REMEDIES

7. Jurisprudence 7.1. Section 5 of Rep. Act No. 9262 expressly recognizes that the acts of violence against women and their children may be committed by an offender through another. The protection order that may be issued for the purpose of preventing further acts of violence against the woman or her child may include individuals other than the offending husband (such as the parents-in-law of the petitioner in this case).242 7.2. A TPO, much like a TRO in civil cases, is required to be served immediately, precisely to serve its purpose as a protective relief.243 B. Provisional Remedies under the Human Security Act of 2007244 1. Inspection, Examination, and Freeze Orders245 1.1. Who issues. The justices of the Court of Appeals designated as a special court to handle anti-terrorism cases.246

1.2. When issued. After determination that there exists probable cause in a hearing called for that purpose. Requisites are as follows: a. a person is charged with or suspected of the crime of terrorism or, conspiracy to commit terrorism; b. he belongs to a judicially declared and outlawed terrorist organization, association, or group of persons; and c. is a member of such judicially declared and outlawed organization, association, or group of persons.247 1.3. Scope of order. The authorizing division248 of the Court of Appeals may authorize in writing any police or law enforcement officer and the 242

Go-Tan v. Spouses Tan, G.R. No. 168852, September 30, 2008, 567 SCRA 231. Ocampo v. Arcaya-Chua, A.M. OCA IPI No. 07-2630-RTJ; Office of the Court Administrator v. Arcaya-Chua, A.M. No. RTJ-07-2049; Office of the Court Administrator v. Arcaya-Chua and Jamora, A.M. No. RTJ-08-2141; Santos v. Arcaya-Chua, A.M. No. RTJ-07-2093, April 23, 2010, 619 SCRA 59. 244 Rep. Act No. 9372. 245 Although not relevant to this BenchBook for trial courts since jurisdiction to issue these reliefs is vested on appellate courts, they are included because they deal with provisional remedies which is the subject of this paper. 246 Id., Sec. 27. 247 Id. 243

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members of his/her team duly authorized in writing by the antiterrorism council to do the following: a. examine, or cause the examination of, the deposits, placements, trust accounts, assets and records in a bank or financial institution; and b. gather or cause the gathering of any relevant information about such deposits, placements, trust accounts, assets, and records from a bank or financial institution. The bank or financial institution concerned shall not refuse to allow such examination or to provide the desired information, when so, ordered by and served with the written order of the Court of Appeals.249

1.4. What may be ordered inspected. The provisions of Rep. Act No. 1405250 on the secrecy of bank accounts notwithstanding, if there are deposits and outstanding balances, placements, trust accounts, assets, and records in any bank or financial institution, moneys, businesses, transportation and communication equipment, supplies and other implements, and property of whatever kind and nature belonging: a. to any person suspected of, or charged before a competent Regional Trial Court, for the crime of terrorism or the crime of conspiracy to commit terrorism; or b. to a judicially declared and outlawed organization, association, or group of persons; or c. to a member of such organization, association, or group of persons.

1.5.

Conditions for issuance of inspection order

A written order for inspection and examination of accounts shall only be granted by the authorizing division of the Court of Appeals upon:

248

Refers to the Justices of the Court of Appeals designated as a special court to handle antiterrorism cases (Rep. Act No. 9372, Sec. 27). 249 Rep. Act No. 9372, Sec. 27. 250 An Act Prohibiting Disclosure of or Inquiry Into, Deposits with Any Banking Institution and Providing Penalty therefore, enacted on September 9, 1955. C-56

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 an ex parte application to that effect by a police or of a law enforcement official, duly authorized in writing to file such ex parte application by the Anti-Terrorism Council,  upon examination under oath or affirmation of the applicant and the witnesses he may produce,  establishment of the facts that will justify the need and urgency of examining and freezing the bank deposits, placements, trust accounts, assets, and records of: (1) the person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, (2) a judicially declared and outlawed terrorist organization, association or group of persons, or (3) any member of such organization, association, or group of persons.251

1.6.

Effectivity of court order

The authorization issued or granted by the authorizing division of the Court of Appeals shall be effective for the length of time specified in the written order, which shall not exceed a period of thirty (30) days from the date of receipt of the written order by the applicant police or law enforcement official. The authorizing division of the Court of Appeals may extend or renew the said authorization for another thirty (30) day period, renewable for another thirty (30) days, provided that the authorizing division of the Court of Appeals is satisfied that such extension or renewal is in the public interest, and provided further that the application for extension or renewal, which must be filed by the original applicant, has been duly authorized in writing by the Anti-Terrorism Council. In case of death of the original applicant or in case he is physically disabled to file the application for extension or renewal, the one next in rank to the original applicant among the members of the team named in the original written order of the authorizing division of the Court of Appeals shall file the application for extension or renewal.

251

Rep. Act No. 9372, Sec. 28. C-57

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The applicant police or law enforcement official shall have thirty (30) days after the termination of the period granted by the Court of Appeals within which to file the appropriate case before the Public Prosecutor’s Office for any violation of the Human Security Act.252

2. Seizure and Sequestration of Accounts Under the Human Security Act, a division of the Court of Appeals may order the seizure, sequestration, or freezing of the following: deposits; accounts; placements; assets; moneys; businesses; and property of any kind; belonging to a person, or persons, association or organization suspected of or charged before a Regional Trial Court for the crime of terrorism or conspiracy to commit terrorism, in order to prevent their use, transfer, or conveyance for purposes inimical to the state and to the safety and security of persons.253 3. Restriction on Travel254 In cases under the Human Security Act, where evidence of guilt is not strong, and the person charged is entitled to bail and is granted the same, the court, upon application by the prosecutor, shall limit the right of travel of the accused to within the municipality or city where he resides or where the case is pending, in the interest of national security and public safety. Travel outside of said municipality or city, without the authorization of the court, shall be deemed a violation of the terms and conditions of his bail, which shall then be forfeited as provided under the Rules of Court. The accused may also be placed under house arrest by order of the court at his usual place of residence. While under house arrest, he may not use telephones, cell phones, e-mails, computers, the internet or other means of

252

Id., Sec. 30. Id., Sec. 39. 254 Id., Sec. 26. 253

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communications with people outside the residence until otherwise ordered by the court.255

C.

Protective Order under the Anti-Child Pornography Act of 2009256 1. Contents of protective order.257 Any form of child pornography materials that are part of the court records shall be placed under a protective order that provides as follows: a. The material may be viewed only by the parties, their counsel, their expert witness and guardian ad litem; b. The material or any portion thereof shall not be divulged or shown to any other person, except as necessary for investigation, prosecution or trial; and c. No person shall be granted access to any form of child pornography or any part thereof unless he signs a written affirmation that he has received and read a copy of the protection order; that he submits to the jurisdiction of the court with respect to the protective order; and that, in case of violation thereof, he will be subject to the contempt power of the court. 2. Penalties and sanctions.258 Any person found guilty of violating the protective order shall suffer the penalty of arresto mayor in its minimum period and a fine of not less than One Hundred Thousand Pesos (P100,000.00) but not more than Three Hundred Thousand Pesos (P300,000.00).

D. Freeze Order under the Anti-Money Laundering Act of 2001,259 as Amended260 1. Who Issues After amendment of Republic Act No. 9160 by Republic Act No. 9194, it is now the Court of Appeals, upon application ex parte by the AMLC, and after determination that probable cause exists that any

255

Should this not have been applied in the case of former President Estrada? Rep. Act No. 9775. 257 Id., Sec. 13 (d). 258 Id., Sec. 15 (m). 259 Rep. Act No. 9160. 260 Rep. Act No. 9194. 256

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monetary instrument or property is in any way related to an unlawful activity, which may issue a freeze order.261

2. Effectivity After amendment of Section 10, Republic Act No. 9160, twenty (20) days, unless extended by the court.

3. Procedure 3.1. When application may be made by the AMLC. After conducting an investigation and upon determination of probable cause,262 the AMLC may file an ex-parte application before the Court of Appeals for the issuance of a freeze order on any monetary instrument or property subject thereof prior to the institution or in the course of, the criminal proceedings involving the unlawful activity to which said monetary instrument or property is any way related.263

3.2 . Scope of application. Considering the intricate and diverse web of related and interlocking accounts pertaining to the monetary instrument(s) or property(ies) that any person may create in the different covered institutions, their branches and/or other units, the AMLC may apply with the Court of Appeals, the freezing, not only of the monetary instruments or properties in the names of the reported owner(s)/holder(s), and monetary instruments or properties named in the application of the AMLC but also all other related web of accounts264 pertaining to other monetary instruments and properties, the funds and sources of which originated from or are related to the

261

Id., Sec. 10. Probable cause under Rule 10.2 of the Revised Implementing Rules and Regulations of Rep. Act No. 9160, as amended by Rep. Act No. No. 9194 is defined as follows: “Probable cause” includes such facts and circumstances which would lead a reasonably discreet, prudent or cautious man to believe that an unlawful activity and/or a money laundering offense is about to be, is being or has been committed and that the account or any monetary instrument or property subject thereof sought to be frozen is in any way related to said unlawful activity and/or money laundering offense. 263 Revised Implementing Rules and Regulations of Rep. Act No. 9160, as amended by Rep. Act No. 9194, Rule 10.1.a. 264 Related web of accounts pertaining to the money instrument or property subject of the freeze order under Rule 10.4 of the Revised Implementing Rules and Regulations of Rep. Act No. 9160, as amended by Rep. Act No. 9194 is defined as those accounts, the funds and sources of which originated from and/or are materially linked to the monetary instrument(s) or property(ies) subject of the freeze order(s). 262

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monetary instrument(s) or property(ies) subject of the freeze order(s).265

3.3 . Duty of covered institution upon receipt of notice of the freeze order. 266 A. immediately freeze the monetary instrument or property and related web of accounts subject thereof;267 B. immediately furnish a copy of the notice of the freeze order upon the owner or holder of the monetary instrument or property or related web of accounts subject thereof;268 C. submit, to the Court of Appeals and the AMLC, by personal delivery, within 24 hours from receipt of the freeze order, a detailed written return on the freeze order, specifying all the pertinent and relevant information which shall include the following: 1. account number(s); 2. name(s) of the account owner(s) or holder(s); 3. amount of the monetary instrument, property or related web of accounts as of the time they were frozen; 4. all relevant information as to the nature of the monetary instrument or property; 265

Revised Implementing Rules and Regulations of Rep. Act No. 9160, as amended by Rep. Act No. 9194, Rule 10.5.b. 266 “Covered Institution” refers to: 1. banks, non-banks, quasi-banks, trust entities, and all other institutions and their subsidiaries and affiliates supervised or regulated by the Bangko Sentral ng Pilipinas (BSP); 2. Insurance companies and all other institutions supervised or regulated by the Insurance Commission; and 3. Securities dealers, brokers, salesmen, investment houses and other similar entities managing securities or rendering services as investment agent, advisor, or consultant, (ii) mutual funds, close and investment companies, common trust funds, pre-need companies and other similar entities, (iii) foreign exchange corporations, money changers, money payment, remittance, and transfer companies and other similar entities, and (iv) other entities administering or otherwise dealing in currency, commodities or financial derivatives based thereon, valuable objects, cash substitutes and other similar monetary instruments or property supervised or regulated by Securities and Exchange Commission. 267 Revised Implementing Rules and Regulations of Rep. Act No. 9160, as amended by Rep. Act No. 9194, Rule 10.3.a. 268 Id., Rule 10.3.b. C-61

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5. any information on the related web of accounts pertaining to the monetary instrument or property subject of the freeze order; and 6. time when the freeze thereon took effect.

3.4. Extension of freeze order. Prior to its amendment, Section 10 of Republic Act 9160 allowed the AMLC to apply in court for an extension of the period of effectivity of the freeze order.269 With the amendment introduced by Republic Act No. 9194 and the Revised Implementing Rules and Regulations, the AMLC shall now file its application for extension with the Court of Appeals.270 Upon the timely filing of such application and pending the decision of the Court of Appeals to extend the period, said period shall be deemed suspended and the freeze order shall remain effective. However, the covered institution shall not lift the effects of the freeze order without securing official confirmation from the AMLC.271

3.5. Prohibition against issuance of freeze orders against candidates for an electoral office during election period. No assets shall be frozen to the prejudice of a candidate for an electoral office during an election period.272

3.6. Jurisdiction of Money Laundering Cases. The Regional Trial Courts shall have jurisdiction to try all cases on money laundering, except those committed by public officers and private persons who are in conspiracy with such public officers which shall be under the jurisdiction of the Sandiganbayan.273 3.7. Authority to Inquire into Bank Deposits upon a court order.274 Notwithstanding the provisions of Rep. Act No. 1405, as amended, Rep. Act No. 6426, as amended, Rep. Act No. 8791, and other laws, the AMLC may inquire into or examine any particular deposit or investment with any banking institution or non-bank financial institution and their subsidiaries and affiliates upon order of any competent court 269

Implementing Rules and Regulations of Rep. Act No. 9160, Rule 10.7. Revised Implementing Rules and Regulations of Rep. Act No. 9160, Rule 10.1 (c) and Rule 10.5. 271 Id. 272 Id., Rule 10.6. 273 Id., Rule 5.1. 274 Id., Rule 11.1. 270

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in cases of violation of this Act, when it has been established that there is probable cause that the deposits or investments involved are related to an unlawful activity as defined in Section 3 (i) hereof or a money laundering offense under Section 4 hereof; except in cases as provided under Rule 11.2.275

3.8. Application for provisional remedies in court a. The AMLC may apply, in the course of the criminal proceedings, for provisional remedies to prevent the monetary instrument or property subject thereof from being removed, concealed, converted, commingled with other property or otherwise to prevent its being found or taken by the applicant or otherwise placed or taken beyond the jurisdiction of the court. However, no assets shall be attached to the prejudice of a candidate for an electoral office during an election period.276 b. Where there is conviction for money laundering under Section 4 of the AMLA, the court shall issue a judgment of forfeiture in favor of the Government of the Philippines with respect to the monetary instrument or property found to be proceeds of one or more unlawful activities. However, no assets shall be forfeited to the prejudice of a candidate for an electoral office during an election period.277

3.9. Claim on Forfeited Assets. - Where the court has issued an order of forfeiture of the monetary instrument or property in a criminal prosecution for any money laundering offense under Section 4 of the AMLA, the offender or any other person claiming an interest therein may apply, by verified petition, for a declaration that the same legitimately belongs to him, and for segregation or exclusion of the monetary instrument or property corresponding thereto. The verified 275

Id., Rule 11.2. Authority to Inquire into Bank Deposits WITHOUT COURT ORDER. - The AMLC may inquire into or examine deposit and investments with any banking institution or nonbank financial institution and their subsidiaries and affiliates without a court order where any of the following unlawful activities are involved: (a) Kidnapping for ransom under Art. 267 of Act No. 3815, otherwise known as the REVISED PENAL CODE, as amended; (b) Secs. 4, 5, 6, 8, 9, 10. 12, 13, 14, 15, and 16 of Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002; (c) Hijacking and other violations under Rep. Act No. 6235 [1971]; destructive arson and murder, as defined under the REVISED PENAL CODE, as amended, including those perpetrated by terrorists against noncombatant persons and similar targets 276 Id., Rule 15.2.a. 277 Id., Rule 15.2.b. C-63

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petition shall be filed with the court which rendered the judgment of conviction and order of forfeiture within fifteen (15) days from the date of the order of forfeiture, in default of which the said order shall become final and executory. This provision shall apply in both civil and criminal forfeitures.278 E. Protection Orders for Victims and Witnesses under the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and other Crimes Against Humanity279 1. Jurisdiction of Philippine Courts.280 The Regional Trial Court of the Philippines shall have original and exclusive jurisdiction over the crimes punishable under the Act. Their judgments may be appealed to the Court of Appeals and to the Supreme Court, as provided by law. 2. Protection of victims and witnesses.281 - In addition to existing provisions under Philippine law for the protection of victims and witnesses, the following measures shall be undertaken: a. The Philippine court shall take appropriate measures to protect the safety, physical and physiological well-being, dignity and privacy of victims and witnesses. In so doing, the court shall have regard of all relevant factors, including age, gender and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children. The prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused, including right to a fair and impartial trial; b. As an exception to the general principle of public hearings, the court may, to protect the victims and witnesses or an accused, conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special means. In particular, such measures shall be implemented in the case of the victim of sexual violence or a child who is a victim or is a witness, unless otherwise ordered by the court, having regard to all the circumstances, particularly the views of the victim or witness; c. Where the personal interests of the victims are affected, the court shall permit their views and concerns to be presented and considered 278

Id., Rule 12.3. Rep. Act No. 9851 [2009]. 280 Id., Chapter VII, Sec. 18. 281 Id., Chapter VI, Sec.13. 279

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at stages of the proceedings determined to be appropriate by the court in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the court considers it appropriate in accordance with the established rules of procedure and evidence; and d. Where the disclosure of evidence or information pursuant to this Act may lead to the grave endangerment of the security of a witness for his/her family, the prosecution may, for purposes of any proceedings conducted prior to the commencement of the trial, withhold such evidence or information and instead submit a summary thereof. Such measures shall be exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused and to a fair and impartial trial. III. UNDER OTHER SUPREME COURT ISSUANCES A. Definition of Terms 1. Amparo literally means “protection” and the writ originated in Mexico.282 The writ is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity.283

2. Habeas Data is a Latin phrase which literally means “you should have the data.” It is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.284

282

The Secretary of National Defense, et al. v. Manalo, et al., G.R. No. 180906, October 7, 2008, 568 SCRA 1, citing Barker, R., "Constitutionalism in the Americas: A Bicentennial Perspective," 49 University of Pittsburgh Law Review (Spring, 1988) 891, 906. 283 A.M. No. 07-9-12-SC, Sec. 1. 284 A.M. No. 08-1-16-SC, The Rule on the Writ of Habeas Data, issued on January 22, 2008, Sec. 1. C-65

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B. Provisional Remedies under the Rule on the Writ of Amparo285 1. TEMPORARY PROTECTION ORDER286 The court, upon motion or motu proprio, may order that the petitioner or the aggrieved party, and any member of his immediate family be protected in a government agency, or by an accredited person, or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution because there is no known member of the immediate family or relative of the aggrieved party, then the protection may be extended to the officers involved. 2. INSPECTION ORDER287 2.1.

What may be ordered inspected

In a petition for the issuance of the writ of amparo, the court, justice or judge, upon verified motion and after due hearing, may order any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon. 2.2. Requirements for issuing inspection order under amparo

the writ of

In a petition for the writ of amparo, the motion for issuance of an inspection order of a place or land shall state in detail the place or places to be inspected. It shall be supported by affidavits or testimonies of witnesses having personal knowledge of the enforced disappearance or whereabouts of the aggrieved party. The movant must show that the inspection order is necessary to establish the right of the aggrieved party allegedly threatened or violated. 2.3.

When opposed

If the motion is opposed on the ground of national security or of the privileged nature of the information, the court, justice or

285

A.M. No. 07-9-12-SC, The Rule on the Writ of Amparo, which took effect on October 24, 2007. NOTE: For a more exhaustive discussion on the Rule on the Writ of Amparo, see the Chapter on Special Proceedings. 286 A.M. No. 07-9-12-SC, Sec. 14 (a). 287 Id., Sec. 14 (b). C-66

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judge may conduct a hearing in chambers to determine the merit of the opposition. 2.4.

What inspection order under the writ of amparo should contain

The inspection order shall specify the person/s authorized to make the inspection and the date, time, place, and manner of making the inspection. It may prescribe other conditions to protect the constitutional rights of all parties. The order shall expire five (5) days after its issuance, unless extended for justifiable reasons. 3. PRODUCTION ORDER288 3.1. Production order. In a petition for the issuance of the writ of amparo, the court, upon verified motion and after due hearing, may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by, or on behalf, of the movant. 3.2. Grounds for opposition. The motion may be opposed on the ground of national security or privileged nature of the information, in which case the court/ justice/ judge may conduct a hearing in chambers to determine the merit of the opposition. 3.3 . Other conditions of order. The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all the parties. 4. WITNESS PROTECTION ORDER289 Referral by court upon motion or motu proprio. The court/ justice/ judge, upon motion or motu proprio, may refer the witnesses to the Department of Justice for admission to the Witness Protection, Security and Benefit Program, pursuant to Republic Act No. 6981. The court, justice or judge may also refer the witnesses to other government agencies, or to accredited persons or private institutions capable of keeping and securing their safety.

288 289

Id., Sec. 14 (c). Id., Sec. 14 (d). C-67

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5. JURISPRUDENCE The provisional reliefs are intended to assist the court before it arrives at a judicious determination of the amparo petition. The court cannot order the inspection of the military camps and order the army units to conduct an investigation into the disappearance of the victims in this case after it absolved the respondents. Thus, to grant the temporary reliefs under the rule is not in sync with a finding that the respondents could not be held accountable for the disappearance of the victims.290 C. Provisional Remedies under the Rule on Corporate Rehabilitation291 1. Stay Order 1.1. Contents of order292 If the court finds the petition to be sufficient in form and substance, it shall, not later than five (5) working days from the filing of the petition, issue an order: a. appointing a rehabilitation receiver and fixing his bond; b. staying enforcement of all claims, whether for money or otherwise and whether such enforcement is by court action or otherwise, against the debtor, its guarantors and persons not solidarily liable with the debtor. The stay order shall not cover claims against letters of credit and similar security arrangements issued by a third party to secure the payment of the debtor's obligations. Further, the stay order shall not cover foreclosure by a creditor of property not belonging to a debtor under corporate rehabilitation; provided, however, that where the owner of such property sought to be foreclosed is also a guarantor or one who is not solidarily liable, said owner shall be entitled to the benefit of excussion as such guarantor; c. prohibiting the debtor from selling, encumbering, transferring, or disposing in any manner any of its properties, except in the ordinary course of business;

290

Yano v. Sanchez, et al., G.R. No. 186640, February 11, 2010, 612 SCRA 347. A.M. No. 00-8-10 SC, which took effect on January 16, 2009; See also PHILJA Casebook on Commercial Law. 292 Id., Sec. 7. 291

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d. prohibiting the debtor from making any payment of its liabilities, except as provided in items (e), (f) and (g) of this Section or when ordered by the court pursuant to Section 10 of Rule 3; e. prohibiting the debtor's suppliers of goods or services from withholding supply of goods and services in the ordinary course of business for as long as the debtor makes payments for the services and goods supplied after the issuance of the stay order; f. directing the payment in full of all administrative expenses incurred after the issuance of the stay order; g. directing the payment of new loans or other forms of credit accommodations obtained for the rehabilitation of the debtor with prior court approval; h. fixing the dates of the initial hearing on the petition, not earlier than forty-five (45) days but not later than sixty (60) days from the filing thereof; i. directing the petitioner to publish the Order in a newspaper of general circulation in the Philippines once a week for two (2) consecutive weeks; j.

directing the petitioner to furnish a copy of the petition and its annexes, as well as the stay order, to the creditors named in the petition and the appropriate regulatory agencies, such as, but not limited to, the Securities and Exchange Commission, the Bangko Sentral ng Pilipinas, the Insurance Commission, the National Telecommunications Commission, the Housing and Land Use Regulatory Board and the Energy Regulatory Commission;

k. directing the petitioner that foreign creditors with no known addresses in the Philippines be individually given a copy of the stay order at their foreign addresses; l. directing all creditors and all interested parties (including the regulatory agencies concerned) to file and serve on the debtor a verified comment on or opposition to the petition, with supporting affidavits and documents, not later than fifteen (15) days before the date of the first initial hearing and putting them on notice that their failure to do so will bar them from participating in the proceedings; and

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m. directing the creditors and interested parties to secure from the court copies of the petition and its annexes within such time as the court may order to enable themselves to file their comment on or opposition to the petition and to prepare for the initial hearing of the petition. 1.2. Period of Effectivity.293 The stay order shall be effective from the date of its issuance until the approval of the rehabilitation plan or the dismissal of the petition.

1.3.

Effects of the stay order a. The issuance of a stay order does not affect the right to commence actions or proceedings insofar as it is necessary to preserve a claim against the debtor;294 and b. The stay order shall likewise prohibit the debtor corporation from selling, encumbering or disposing of its properties except in the ordinary course of business.295

1.4.

What are not covered by the stay order296 a. Claims against letters of credit and similar security arrangements issued by a third party to secure the payment of the debtor’s obligations. b. Foreclosure of a property not belonging to a debtor under corporate rehabilitation, unless the owner of such property is a guarantor or one who is solidarily liable with the debtor.

1.5.

Relief from, modification, or termination of stay order297 a. The court may, upon motion, terminate, modify, or set conditions for the continuance of the stay order, or relieve a claim from the coverage thereof upon showing that (1) any of the allegations in the petition, or any of the contents of any

293

Id., Sec. 9. Id., Sec. 7. 295 Id., Sec. 7 (c). 296 Id., Sec. 7 (b). 297 Id., Sec. 10. 294

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attachment, or the verification thereof has ceased to be true; (2) a creditor does not have adequate protection over property securing its claims; (3) the debtor's secured obligation is more than the fair market value of the property subject of the stay order and such property is not necessary for the rehabilitation of the debtor; or (4) the property covered by the stay order is not essential or necessary to the rehabilitation and the creditor's failure to enforce its claim will cause more damage to the creditor than to the debtor. b. For purposes of this Section, the creditor lacks adequate protection if it can be shown that: i.

The debtor fails or refuses to honor a pre-existing agreement with the creditor to keep the property insured;

ii.

The debtor fails or refuses to take commercially reasonable steps to maintain the property; or

iii.

The property has depreciated to an extent that the creditor is undersecured.

c. Upon showing the creditor's lack of adequate protection, the court shall order the rehabilitation receiver: i.

to make arrangements to provide for the insurance or maintenance of the property, or

ii.

to make payments or otherwise provide additional or replacement security such that the obligation is fully secured. If such arrangements are not feasible, the court shall modify the stay order to allow the secured creditor lacking adequate protection to enforce its claim against the debtor; provided, however, that the court may deny the creditor the remedies in this paragraph if such remedies would prevent the continuation of the debtor as a going concern or otherwise prevent the approval and implementation of a rehabilitation plan.

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2. Appointment of Receiver 2.1. In a petition for corporate rehabilitation, when the court finds the same to be sufficient in form and substance, the Court shall, within five days from filing of the petition, appoint a rehabilitation receiver and fix his bond.298

2.2. Service of stay order on rehabilitation receiver. The petitioner shall immediately serve a copy of the stay order on the rehabilitation receiver appointed by the court, who shall manifest his acceptance or non-acceptance of his appointment not later than ten (10) days from receipt of the order.299 2.3. Qualifications of rehabilitation receiver300 a. In the appointment of the rehabilitation receiver, the following qualifications shall be taken into consideration by the court: i. Expertise and acumen to manage and operate a business similar in size and complexity to that of the debtor; ii. Knowledge in management, finance and rehabilitation of distressed companies; iii. General familiarity with the rights of creditors in suspension of payments or rehabilitation and general understanding of the duties and obligations of a rehabilitation receiver; iv. Good moral character, independence and integrity; iv. Lack of conflict of interest as defined in this Section; and vi. Willingness and ability to file a bond in such amount as may be determined by the court. b. Without limiting the generality of the following, a rehabilitation receiver may be deemed to have a conflict of interest if: i. He is a creditor or stockholder of the debtor; 298

A.M. No. 00-8-10-SC, 2009, Rules of Procedure on Corporate Rehabilitation, Sec. 7. Id., Sec. 8. 300 Id., Sec. 11. 299

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ii. He is engaged in a line of business which competes with the debtor; iii. He is, or was, within two (2) years from the filing of the petition, a director, officer, or employee or the auditor or accountant of the debtor; iv. He is, or was, within two (2) years from the filing of the petition, an underwriter of the outstanding securities of the debtor; v. He is related by consanguinity or affinity within the fourth civil degree to any creditor, stockholder, director, officer, employee, or underwriter of the debtor; or vi. He has any other direct or indirect material interest in the debtor or any creditor.

2.4. For other relevant provisions on corporate rehabilitation, as well as the powers and functions of a corporate rehabilitation receiver – see Section 12 of A.M. No. 00-8-10-SC, 2009 Rules of Procedure on Corporate Rehabilitation. D. Provisional Remedies under the Rule on Provisional Orders301 1. Spousal Support302 1.1. In determining support for the spouses, the court may be guided by the following rules:

301 302

a.

In the absence of adequate provisions in a written agreement between the spouses, the spouses may be supported from the properties of the absolute community or the conjugal partnership;

b.

The court may award support to either spouse in such amount and for such period of time as the court may deem just and reasonable based on their standard of living during the marriage;

A.M. No. 02-11-12-SC, which took effect on March 15, 2003. Id., Sec. 2. C-73

PROVISIONAL REMEDIES

c.

The court may likewise consider the following factors: i. whether the spouse seeking support is the custodian of a child whose circumstances make it appropriate for that spouse not to seek outside employment; ii. the time necessary to acquire sufficient education and training to enable the spouse seeking support to find appropriate employment, and that spouse’s future earning capacity; iii. the duration of the marriage; iv. the comparative financial resources of the spouses, including their comparative earning abilities in the labor market; v. the needs and obligations of each spouse; vi. the contribution of each spouse to the marriage, including services rendered in home-making, child care, education, and career building of the other spouse; vii. the age and health of the spouses; viii. the physical and emotional conditions of the spouses; ix. the ability of the supporting spouse to give support, taking into account that spouse’s earning capacity, earned and unearned income, assets, and standard of living; and x. any other factor the court may deem just and equitable.

d.

The Family Court may direct the deduction of the provisional support from the salary of the spouse.

2. Child Support303 2.1. The common children of the spouses shall be supported from the properties of the absolute community or the conjugal partnership.

303

Id., Sec. 3. C-74

PROVISIONAL REMEDIES

2.2. Subject to the sound discretion of the court, either parent or both may be ordered to give an amount necessary for the support, maintenance, and education of the child. It shall be in proportion to the resources or means of the giver and to the necessities of the recipient.

2.3. In determining the amount of provisional support, the court may likewise consider the following factors: a. the financial resources of the custodial and non-custodial parent and those of the child; b. the physical and emotional health of the child and his or her special needs and aptitudes; c. the standard of living the child has been accustomed to; d. the non-monetary contributions that the parents will make toward the care and well-being of the child.

2.4. The Family Court may direct the deduction of the provisional support from the salary of the parent. 3. Child Custody304 3.1. In determining the right party or person to whom the custody of the child of the parties may be awarded pending the petition, the court shall consider the best interests of the child and shall give paramount consideration to the material and moral welfare of the child,

3.2. The court may likewise consider the following factors: a. the agreement of the parties; b. the desire and ability of each parent to foster an open and loving relationship between the child and the other parent; c. the child’s health, safety, and welfare; d. any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the child, including anyone courting the parent; 304

Id., Sec. 4. C-75

PROVISIONAL REMEDIES

e. the nature and frequency of contact with both parents; f. habitual use of alcohol or regulated substances; g. marital misconduct; h. the most suitable physical, emotional, spiritual, psychological and educational environment; and i. the preference of the child, if over seven years of age and of sufficient discernment, unless the parent chosen is unfit.

3.3. Order of preference. The court may award provisional custody in the following order of preference: a. to both parents, jointly; b. to either parent, taking into account all relevant considerations under the foregoing paragraph, especially the choice of the child over seven years of age, unless the parent chosen is unfit; c. to the surviving grandparent, or if there are several of them, to the grandparent chosen by the child over seven years of age and of sufficient discernment, unless the grandparent is unfit or disqualified; d. to the eldest brother or sister over twenty-one years of age, unless, he or she is unfit or disqualified; e. to the child’s actual custodian over twenty-one years of age, unless unfit or disqualified; or f. to any other person deemed by the court suitable to provide proper care and guidance for the child.

3.4. Notice. The custodian temporarily designated by the court shall give the court and the parents five days notice of any plan to change the residence of the child or take him out of his residence for more than three days, provided it does not prejudice the visitation rights of the parents.

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3.5. Best interest of the child. Article 363 of the Civil Code provides that in all questions relating to the care, custody, education and property of the children, the latter's welfare is paramount. This means that the best interest of the minor can override procedural rules and even the rights of parents to the custody of their children. Since, in this case, the very life and existence of the minor is at stake and the child is in an age when she can exercise an intelligent choice, the courts can do no less than respect, enforce and give meaning and substance to that choice and uphold her right to live in an atmosphere conducive to her physical, moral and intellectual development. The minor’s threat of committing suicide may be proven empty, but the child has a right to a wholesome family life that will provide her with love, care and understanding, guidance and counseling and moral and material security.305This refers to the totality of the circumstances and conditions that are most congenial to the survival, protection and feelings of security of the child and most encouraging to the child’s physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the child.306 4. Visitation Rights307 Appropriate visitation rights shall be provided to the parent who is not awarded provisional custody, unless found unfit or disqualified by the court. 5. Hold Departure Order308 5.1. Rule: Pending resolution of the petition, no child of the parties shall be brought out of the country without prior order from the court.

5.2. When HDO may be issued. The court, motu proprio or upon application under oath, may issue ex-parte a hold departure order, addressed to the Bureau of Immigration and Deportation, directing it not to allow the departure of the child from the Philippines without the permission of the court. The Family Court issuing the hold departure order shall furnish the Department of Foreign Affairs and the Bureau of Immigration and 305

Horacio Luna & Liberty Hizon-Luna v. IAC, et al, G.R. No. 68374, June 18, 1985, 137 SCRA 1. A.M. No. 02-1-18-SC, dated November 24, 2009, Rule on Juveniles in Conflict with the Law. 307 A.M. No. 02-11-12-SC, Sec. 5. 308 Id., Sec. 6. 306

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Deportation a copy of the hold departure order issued within 24 hours from the time of its issuance and through the fastest available means of transmittal.

5.3.

The hold-departure order shall contain the following information:

a. the complete name (including the middle name), the date and place of birth, and the place of last residence of the person against whom a hold-departure order is issued or whose departure from the country has been enjoined; b. the complete title and docket number of the case in which the hold departure is issued; c. the specific nature of the case; d. the date of the hold-departure order; and e. if available, a recent photograph of the person against whom a hold-departure order is issued or whose departure from the country is enjoined, should also be included.

5.4. Recall of HDO. The court may recall the order, motu proprio or upon verified motion of any of the parties, after a summary hearing subject to such terms and conditions as may be necessary - for the best interests of the child. 6. Order of Protection309 The court may issue an order of protection requiring any person: a. to stay away from the home, school, business, or place of employment of the child, other parent or any other party, and to stay away from any other specific place designated by the court; b. to refrain from harassing, intimidating, or threatening such child or the other parent or any person to whom custody of the child is awarded;

309

Id., Sec. 7. C-78

PROVISIONAL REMEDIES

c. to refrain from acts of commission or omission that create an unreasonable risk to the health, safety, or welfare of the child; d. to permit a parent, or a person entitled to visitation by a court order or a separation agreement, to visit the child at stated periods; e. to permit a designated party to enter the residence during a specified period of time in order to take personal belongings not contested in a proceeding pending with the Family Court; and f. to comply with such other orders as are necessary for the protection of the child. 7. Administration of Common Property310 7.1. If a spouse, without just cause, abandons the other, or fails to comply with his or her obligations to the family, the court may, upon application of the aggrieved party under oath, issue a provisional order appointing the applicant or a third person as receiver or sole administrator of the common property subject to such precautionary conditions it may impose. 7.2. The receiver or administrator may not dispose of, or encumber any common property or specific separate property, of either spouse without prior authority of the court. 7.3. Registration, required. The provisional order issued by the court shall be registered in the proper Register of Deeds and annotated in all titles of properties subject of the receivership or administration. E. Provisional Remedies under the Rule on Involuntary Commitment of Children311 1. Guardian Ad Litem of Child312 If neither of the parents nor the guardian of the child can be located or does not appear in court despite due notice, or if the court finds them incompetent to protect the best interests of the child, the court shall 310

Id., Sec. 8. A.M. 02-1-19, which took effect on April 15, 2002. 312 Id., Sec. 4(f). 311

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PROVISIONAL REMEDIES

appoint a suitable person as guardian ad litem to represent the child. In making the appointment, the court shall consider the background of the guardian ad litem and his familiarity with the judicial process, social service programs and child development. A member of the Philippine Bar may be appointed as guardian ad litem. 2. Temporary Custody of a Child313 a. A duly licensed child-placement or child-caring agency or individual to whom a child has been committed may file a verified motion with the court which granted the petition for involuntary commitment of a child to place him in the care of any suitable person, upon the latter's request, for a period not exceeding one month at a time. b. The court may order the social worker to submit a case study report to aid it in evaluating whether such temporary custody shall be for the best interests of the child. c. The period of temporary custody of the child may be extended by the court for a period not exceeding one month at a time upon motion of the duly licensed child-placement or child-caring agency or individual to which the child has been committed. F. Provisional Remedies Environmental Cases314

under

the

Rules

of

Procedure

for

1. When Temporary Environmental Protection Order (TEPO) may issue If it appears from the verified complaint with a prayer for the issuance of an Environmental Protection Order (EPO) that the matter is of extreme urgency and the applicant will suffer grave injustice an irreparable injury, the executive judge of the multiple sala court before raffle, or the presiding judge of a single sala court, as the case may be, may issue exparte a TEPO effective for only seventy-two (72) hours from date of the receipt of the TEPO by the party or person enjoined. Within said period, the court where the case is assigned shall conduct a summary hearing to determine whether the TEPO may be extended until the termination of the case.315

313

Id., Sec. 4(m). A.M. 09-6-8-SC, which took effect on 29 April 2010. Note: For a more comprehensive discussion on this subject, see Section on Environmental Law. 315 Id., Sec. 8. 314

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PROVISIONAL REMEDIES

2. Court’s duty to monitor acts subject of TEPO The court where the case is assigned shall periodically monitor the existence of acts that are the subject matter of the TEPO, even if issued by the executive judge, and may lift the same at any time as circumstances may warrant. 3. Applicant exempt from bond requirement The applicant shall be exempted from posting bond for issuing TEPO.

4. Dissolution of TEPO 4.1. Affidavits, necessary. The grounds for a motion to dissolve a TEPO shall be supported by affidavits of the party or person enjoined, which the applicant may oppose, also by affidavits. 4.2. Grounds for dissolution. The TEPO may be dissolved if it appears after hearing that its issuance or continuance would cause irreparable damage to the party or person enjoined while the applicant may be fully compensated for such damages as he may suffer and subject to the posting of a sufficient bond by the party or person enjoined.316 5. Report on TEPO, EPO, TRO or preliminary injunction. The judge shall report to the Supreme Court, through the Office of the Court Administrator any action taken on any TEPO, EPO. TRO or a preliminary injunction, including its modification or dissolution, within ten (10) days from the action taken.317 G. Hold Departure Order in Criminal Cases318 1. Who may issue A hold departure order may be issued by a Regional Trial Court against an accused in criminal cases falling within its jurisdiction. The RTC issuing the HDO must furnish the Department of Foreign Affairs, the 316

Id., Sec. 9. Id., Sec. 11. 318 Circular No. 39-97, issued on June 19 1997, Re: Guidelines in the Issuance of Hold-Departure Orders. 317

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PROVISIONAL REMEDIES

Department of Justice and the Bureau of Immigration with a copy of the Order within 24 hours from its issuance. First level courts may not issue hold departure orders.319

2. In the issuance of (1) orders directing the inclusion of the name of any person in the hold-departure list of the Bureau of Immigration; or (2) HoldDeparture Orders, all judges shall comply strictly with the provisions of Section 3 of Circular No. 39-97, dated 19 June 1997. This section provides that the order involved shall contain the following information: 2.1. The complete name (including the middle name), the date and place of birth of the person against whom a Hold-Departure Order has been issued or whose departure from the country has been enjoined; 2.2. The complete title and the docket number of the case in which the Hold-Departure Order was issued; 2.3.

The specific nature of the case; and

2.4.

The date of the Hold-Departure Order.

3. Should information on the alias/aliases and the number of the passport of the person subject of the Hold-Departure Order be available, the same should be included in the order involved. The completion of all required information in the court order will obviate problems of identification and will facilitate the effective implementation thereof by the immigration agents of the Bureau of Immigration.320

319

Id. Circular No. 3-99, January 12, 1999, Re: Inclusion of Complete Information in Hold-Departure Orders. 320

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