Sunday, November 06, 2005
This day in history from:

Blog Lecture No. 48: Requisites of a TRO/Injuction

This previous blog-lecture is a pre-requisite.

What are the requisites for an injunction?

Injunction may issue pendente lite (pending litigation or pending the case) only in cases of extreme urgency, where the right to the possession, during the pendency of the main case, of the property involved is very clear; where considerations of relative inconvenience bear strongly in favor of the complainant seeking the possession of the property pendente lite; where there was willful and unlawful invasion on plaintiff's right, over his protest and remonstrance, the injury being a continuing one.

Before an injunction can be issued, it is essential that the following requisites be present: (1) there must be a right in esse or the existence of a right to be protected; and (2) the act against which injunction is to be directed is a violation of such right. (ORTAÑEZ-ENDERES, ET AL. vs. COURT OF APPEALS, ET AL. (G.R. No. 128525, 17 December 1999)

The onus probandi (a cool latin term for "burden of proof") is on movant to show that there exists a right to be protected, which is directly threatened by the act sought to be enjoined. Further, there must be a showing that the invasion of the right is material and substantial and that there is an urgent and paramount necessity for the writ to prevent a serious damage.(Gustillo vs. Real, A.M. No.MTJ-00-1250, 28 February 2001)

What are the additional requirements for the issuance of a TRO?

Under existing rules:

xxx If it shall appear 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, the court to which the application for preliminary injunction was made, may issue a temporary restraining order to be effective only for a period of twenty (20) days from service on the party or person sought to be enjoined, except as herein provided. Within the said twenty-day period, the court must order said party or person to show cause, at a specified time and place, why the injunction should not be granted, determine within the same period whether or not the preliminary injunction shall be granted, and accordingly issue the corresponding order. (Section 5, Rule 58, 1997 Revised Rules of Civil Procedure)
Again, a TRO may be issued if it appears from the facts shown by the affidavits of the verified application that GREAT and IRREPARABLE INJURY would result BEFORE the matter is heard on notice.

To be technical about it, therefore, TROs are granted without the other party being heard on the matter because it will be the judge's discretion to issue it based only on the initial pleadings (the verified petition and its accompanying affidavits).

In my opinion, therefore, a TRO issued after hearing the other party would already show the judge's inclination on the issuance of the preliminary injunction, despite any statements to the contrary.

How does this fit in the PCIJ blog issue?

You be the judge, based on the information I have stated above. The sub judice rule prevents me from lecturing on this futher and applying the above to the PCIJ issue.

0 Objection(s):

Post a Comment

<< Home

Disaster relief, sustainable development & community service


Featured PinoyBlog of the Week

Side Prayers

PRAYER FOR GENEROSITY
Lord Jesus,
Teach me to be generous,
Teach me to serve You as You deserve
To give and not to count the cost,
To fight and not to heed the wounds,
To toil and not to seek for rest,
To labor and not to ask for reward,
except that of knowing
That I do Your Holy Will. Amen

THE LAWYER'S PRAYER
May every word I speak be from Your Truth...
I ask come from Your Wisdom...
May every case I handle receive Your Guidance...
May every heart, every life I touch, feel Your Love.

THE JABEZ PRAYER
And Jabez called on the God of Israel saying,
"Oh, that You would bless me indeed,
and enlarge my territory,
that Your Hand be with me,
that You would keep me from evil,
that I may not cause pain."

So God granted him what he requested.

Side Oath

The Lawyer's Oath
I do solemnly swear that
I will maintain allegiance to
the Republic of the Philippines,
I will support its Constitution
and obey the laws as well as
the legal orders of the
duly constituted authorities therein;
I will do no falsehood,
nor consent to the doing of any in court;
I will not wittingly or willingly
promote or sue any groundless,
false or unlawful suit,
nor give aid nor consent to the same;
I will delay no man for money or malice,
and will conduct myself as a lawyer
according to the best of my knowledge
and discretion with all good fidelity
as well to the courts as to my clients;
and I impose upon myself this voluntary obligation
without any mental reservation
or purpose of evasion.
So help me God.

Side Chatter

Add me to Skype

Noel Punzi Eustaquio Punzalan's Facebook profile

Tagontheside

Blog Lectures

Side Blog Roll

Blogroll Me!

Shameless Sideplugs

Powered by Blogger





A Pinoy Blogger

Get Firefox!











Bored Single Bloggers Club



My blog is worth $35,566.02.
How much is your blog worth?

<a href="http://www.bloginspace.com/" target="_blank"><img src="http://www.bloginspace.com/_assets/img/badges/bloginspace_145x100.gif" width="145" height="100" border="0" alt="BlogInSpace.com"></a>

 

Image hosted by Photobucket.com

Technorati search

eXTReMe Tracker

Enter your Email


Powered by FeedBlitz

Get Firefox!

Creative Commons License
This work is licensed under a Creative Commons License.

in/out sider(s) online
Casino

Mesothelioma Lawsuit
mesothelioma

Who Links Here