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.