Elements
1. right in esse (St. James College of Paranaque vs. Equitable PCI Bank, G.R.
No. 179441, 09 August 2010)
- applicant must have a clear and unmistakable right to be protected
- It bears to stress, however, that the injunctive writ is conditioned on
the existence of a clear and positive right of the applicant which
should be protected, the writ being the strong arm of equity, an
extraordinary peremptory remedy which can be availed of only upon
the existence of well-defined circumstances.
- Indeed, the Rules requires that the applicants right must be clear or
unmistakable, that is, a right that is actual, clear, and positive
especially calling for judicial protection. An injunction will not issue to
protect a right not in esse and which may never arise, or to restrain
an act which does not give rise to a cause of action.
2. violation of right (St. James College of Paranaque vs. Equitable PCI Bank,
G.R. No. 179441, 09 August 2010)
- material and substantial invasion of such right.
- That 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. (Section 3,
Rule 58 of the Rules of Court)
Hearing for the issuance of TRO or injunctive writ requires hearing and
presentation of evidence:
- However, subject to the provisions of the preceding sections, 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 but shall immediately comply with the provisions of the
next preceding section as to service of summons and the documents
to be served therewith. Thereafter, 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.
From the provisions, it appears clearly that before a writ of
preliminary injunction may be issued, a clear showing must be
made that there exists a right to be protected and that the acts
against which the writ is to be directed are violative of an
established right. The holding of a hearing, where both parties
can introduce evidence and present their side, is also required
before the courts may issue a TRO or an injunctive writ. (China
Bank Corporation vs. Spouses Ciriaco, G.R. No. 170038, 11 July
2012)
What is the extent of the judges power to determine the issuance of the
72-hour TRO?
-
Culled from the foregoing provisions, particularly with respect to the
second paragraph of Section 5, Rule 58 of the Rules of Court, as
amended, it is clear that, on the matter of the issuance of an ex parte
72-hour TRO, an executive judge of a multiple-sala court (applicable
to respondent judge), or the presiding judge of a single-sala court, is
empowered to issue the same in matters of extreme emergency,
in order to prevent grave injustice and irreparable injury to the
applicant. However, it is also an unequivocal provision that, after the
issuance of the 72-hour TRO, the executive judge of a multiple-sala
court is bound to comply with Section 4(c) of the same rule with
respect to the service of summons and the documents to be served
therewith. (Lago v. Abul Jr., A.M. No. RTJ-10-2255, 17 January
2011)
