Saturday, April 7, 2012

notes: remedial/

provisional remedies: session ii

session ii

-hints: read about the subject on the day it will be taken.

preliminary injuction:
-in the life of the judge. it is the most controversial can make or break a judge. its where a lot of discretion is given to the judge. it may be abused.

what is PI? an order granted by the court where the action is pending at any stage prior to the judgment. its almost the sme as attachment but this time the purpose is different. requiring a party, court or agency to rfrain from doin a particular act. either to preserve the status quo or restore the status quo ante.

status quo- its very important in PI.

what is the nature of the remedy? it is ancillary. its just a mere adjunct. it cannot exist by its own but there has to be a main proceeding.
-interim and collateral like attachment.
-it is preserves, insures the protection a party's substantive right/interest pending judgment in the principal action.

-provisional-meaning temporary-subject to the final disposition of the principal action.

there are two kinds of PI: prohibitory and mandatory.
-prohibits a person or anybdy to do something.
-when you say mandatory-it directs a person or a certain tribunal to do somthin.

purpose? to prevent future injury and to maintain the status quo.

-again rule57,section 1.
-status quo-the last actual peaceable, uncontested status which preceeded the principal action.

its sole object is to maintain the status quo.
suspension orders are equivalennt to injunction.

upon agreement of the party's. say. defendant has committed that all the acts will be suspended.

independet PI, is not allowed as a primary action.

ex. you own a land and there are squatters. PI is not possible. it may be UDetainer or Forcible Entry.

a substantive relief must be sought.

is not to correct a wrong of the past. it prevents further injury.

to stop to the last uncontested thing before the case was filed in court.

essential requisites. PI: a right i esse, the existent of a right to be protected.

rights-if you are the possessor of a property. is that a rgiht in esse? yes

if you are cultivating a rented land and some persons want to get it. it that a right in esse? yes.

a forcible entry is a clear violation of the right to possess.

there is an irreparable injury.

there is no other speedy adequate remedy .

ex. FE & UD has been filed and the was not injuction filed. then it was decided. can INJ still be filed? no more. the remedy of EXECUTION is already available.

SC has issued circular. to exercise utmost caution, prudence, and judiciousness.

a TRO can make a lot of difference.

a directive for something to be stopped or done.

hearings required? it is necessary but an exec. judge is not req. to conduct one for a 72hr TRO.

what is an exec. judge? if you've been to our local court there are many RTC judges. there is 1,2, or 3 exec.judges. they have additional assignments. they act as administrative officers of the entire Hall of Justice. the have many function like the issuance of 72hr TRO or a 20day TRO. who makes a decision w/not to issue. its called an executive TRO. bond and hearing is not required.

after(72hr TRO) it has been granted. there will be a need for hearing to extend it to 20days. a summary hearing is required.

-summary hearing:submission of affidavits documents.sometimes counsels are makulit. no evidence or witnesses required.

who conducts the summary hearing?
are you aware of the raffling procedure in the courts?

when a complaint is filed before the MTC or RTC.there has to be a raffling.if there is an application for a 72hr TRO before the raffling the exec.judge shall make decision w/not to issue the 72hr TRO. after it grants or even if it denies then that complaint will have to be raffled among the judges.

it will be raffled among the judges and it goes to a a specific court. that specific court will now be the one to conduct a summary hearing w/not to grant a 30-day TRO or to extend the 72hr TRO already granted by the EJ. so again, hearings are conducted except when the 72hr TRO is the one being considered.

there are many cases that are like this thats why it gets muddled. it deserves repeating. it concerns/more of a warning to the judges more than the counsels but you should be aware of it.

although the judges are like measured in granting . when you deny, there should also be a ground stated for the denial. there was a case where the judge denied it without a hearing he just denied it flatly so it was questioned by the applicant that there was no proper hearing. the judge thought that hearing was required only in granting.

most judges think that a denial does not need a hearing. this is wrong. so summary denial without hearing is denial of 'due process' of law.

when hearing on the merits not necessary? if the ground of denial is the insufficiency of a complaint which is apparent from the complaint itself.or it does not state what are suppose to be stated.under r58sec6. the court may also refuse an injunction upon its own assessment the court may issue an auto denial.

always, hearing is necessary w/not granted. except the 72hr TRO.

TRO's are not just issued by RTC or MTC. SC and CA also does. CA 60 days. SC limitless (eff.until further orders).

the SC issued a TRO against the BMJE agreement or MOA. dispose as rendered moot and academic because malacanan did not pursue it anyway.

procedure for application:
verified application showing the nec. facts. with AOM. bond to be filed unless the court exempts it. hearing/notice required as a general rule ex

where PROPER:
-to restrain continued breach of a valid negative obligation.  to restrain a spouse from alienating or encumbering conjugal property during the pendency of legal separation or an annulment. one issue in annulment is the separation of properties.

-to enjoin repeated tresspass on land.
-to restrain the city from proceeding with the abatement of a nuissance per accidens until it has been judicially declared to be such.
-to restrain voting of disputed shares of stocks.

-restrain the sherif from selling property from execution not belonging to a judgment debtor. remedy under r39 when a certain property is attach not belonging to the judgment debtor.
-restrain criminal prosecutions for the orderly  under the fll. cases.for the orderly administration of justice.
ex.can the court restrain/order mandatory injunction on the DOJ ? ex. agra to include additional respondents???
to prevent the strong arm of the law in an opressive and vendictive avoid multiplicity of actions. where there is res judicata. accussed has been filed the case several times
-to afford adequate protection of constitutional rights.where the stature relied upon was unconstitutional or held invalid. cases to be cited...

injunction IMproper:
-restrain the collection of taxes except in cases of irreparable injury or ordinance as basis is declared to be illegal.
-restrain a mayor who has been duly elected to assume his office. an election protest is the proper remedy. maybe quo warranto.
-against consumated acts. why? purpose is to it cannot be done.
-where possession of a property to another where the title is still being disputed.since the func. of the inj is to presere the status quo ante. ex. a certain person has been renting/planting banana on a land on a valid lease agreement for the past 5yrs.when the owner wants it back without any valid they filed a case to eject that person who has been there. they have already filed an injunction now the court granted the injunction. possession was transfered. that cannot be allowed. INJ is suppose to preserve the status is already giving the main prayer to give it back to them.this cannot be done.the inj is not suppose to revert to another status.
-against another court or courts of equal rank.RTC not to another RTC in doing some acts.or tribunals of co-equal rank.
-against the APT(asset privatization trust).this is a specific proclamation no.50 during the time of cory aquino.when during the time of marcos. there were many dummys' suppbsibly private company's but acquired by public funds(like coco levy) or property with many loans from the govt.they can be classified as quasi-govt entities. the purpose of APT is to privatize public corp that are no longer profitable. rem NONUC mining. a private company with loans that they cannot pay.PANTRNCO is another case. it was privatized and changed to another name. the loan was very big that the govt just had to take it. also PNB. it seemed to be was no lonegr a profitable biz. it was bought by lucio tan. injunction cannot be granted against the APT for them to stop privatization because was for the 'common good'public policy so and was allowed in its enabling law.
-labor disputes/cases under the labor code. court has no jurisdiction against the NLRC or any labor arbiter.
-no injunction beyond the prayer in the complaint.the basic rule when you become lawyers is to always see your prayers. the relief being ask for from the court. when the court decides(in a civil case) 'wherefore',(after the discussion and all things else) find in favor..what is the remedy asked for?the court goes back to this in the counsels complaint.if no relief sought, none will be the same manner if the INJ askd for is different from what the court grants. ex.another person was prohibited from is not a proper INJ. rem to pray for what you really want. you cannot leave it to the court. it must be prayed for and the relief sought must be stated there
-in cases to enjoin the prosecution of criminal proceedings. that is why the court cannot ex. sec. of DOj.from prosecuting.
-cases involving govt infra project. there are sherifs who are punished by dismissal because of this though it is the judge's fault. the judge gets a reprimand but the sherif is dismissed from construction of bridges, roads, which are ordered by the courts to be stopped.its a sad story.
-if against govt financing institutions regarding mandatory foreclosures where arrears amount to at least 20% of the outstanding obligation. what are these govt fin.inst. land bank, DBP,only two? law req. govt fund deposited in govt.FI. why GSIS deposits in UNIONbnk? food for thought.
-no INJ on the implimentation of the CARP or CARper.

***those are all preliminary prohibitory injunctions.

how about mandatory  injunctions?
can be granted to prevent serious damage.
-the effect cannot be made to make a new relation between the parties.
when improper:
-one cannot compel cohabitation. you cannot force a man to cohabit with a woman.or a woman to cohabit with a man.that is so illegal.
-cancellation of attachment cannot be the subject of injunction.
-to release imported goods pending with the commissioner of customs. it is not proper case for injunction to be issued.
-to take one property under the control of another party. again why?the purpose of injunction is to preserve the status quo. and if you are goin to transfer it to another person. you are not preserving the status quo. you are making another status is not preserving.
-a TRO issued by the CA or RTC against the MTC or the CA against the RTC. the SC against the CA. the higher court in those cases should decide the main case petition must decide within 6months from the issuance if the writ.

as a distinction,this does not apply to the SC. if there is no TRO the lower court must proceed. this is a new rule. sometimes the RTC's orders are brought up to the CA on certiorari. the RTC awaits the CA ruling. hierarchy of the courts, nkkhija but under ther new amendment of 2007, the lower court should proceed with the proceedings unless there is a TRO.long ago, even if there is no TRO the lower court does not proceed in deference to the higher court.lower courts are reprimanded.Now the ruleis very clear.

(end of session ii)


Anonymous said...

Where's my miracle??
Jesus turned water into wine. I want a miracle too.
Perhaps the modern prophet should get a modern miracle::Turn sugar into cocaine. I'd hear from my sister then. "We're having a party. Come on down. All my friends will be there." Yea, I bet.

rhaj said...

yes..we'll have 'suman' and 'bibingka'.