Too late

It is quite basic that temporary restraining orders (TROs) which courts have been notoriously and sometimes indiscriminately issuing are supposed to enjoin acts not yet done. So if an act is already performed or is a fait accompli, no TRO can be issued anymore. This is illustrated in this case of Mike.

Mike was a concessionaire of a land in Iloilo belonging to the Air Transportation Office (ATO) where he operates a paid parking space, taxi and limousine service. But on August 8, 2001, the Regional Trial Court (RTC) nullified the concession permit issued to him by the ATO Area Manager. While Mike sought reconsideration of said decision, the RTC denied it so the decision had become final.

Sometime in June 2004 however, Mike resumed business over the concession area and despite ATO’s protest even operated a car wash service not included in the cancelled permit. Hence when its demand to vacate the area and return possession of the same was not heeded by Mike, ATO filed an action for unlawful detainer against Mike before the Municipal Trial Court (MTCC).

In a decision dated January 9, 2006, the MTCC ordered Mike to immediately vacate and deliver to ATO the concession area he occupied and to demolish the buildings, structures and other improvements introduced thereon. ATO thus moved for the execution of said decision. On the other hand Mike filed a notice of appeal on February 20, 2006.

On February 28, 2006, the MTCC ordered the issuance of the writ of execution but at the same time gave due course to Mike’s appeal and elevated the records to the RTC.

Since Mike failed to file a supersedeas bond and to deposit the accruing rentals pending appeal, a writ of execution was issued on March 14, 2006. On March 31, 2006, the sheriff implemented the writ of execution and delivered the complete possession of the premises to ATO.

Mike however still filed with the RTC an Urgent Motion to nullify the writ of execution and the notice to vacate and for the issuance of a TRO to restrain their implementation. But the RTC denied the same.

Nevertheless, Mike still went to the Court of Appeals (CA) on a petition for certiorari with a prayer for the issuance of a TRO and /or preliminary injunction arguing that he was deprived of due process and there was already a novation of judgment. In a resolution dated April 21, 2006 and clarified on May 3, 2006, the CA issued a TRO ordering that the status quo ante or the last peaceable possession of the premises before the decision was rendered in the unlawful detainer case be observed. Was the CA correct?

No. To begin with, the writ of execution had already been enforced and Mike was already evicted from the premises as ATO was placed in possession thereof by the sheriff. Case law teaches that a TRO will not issue if the act sought to be enjoined is a fait accompli.

Furthermore, a judgment in favor of the plaintiff in an unlawful detainer suit is immediately executory to prevent further damage to him arising from the loss of possession. The immediate execution may be stayed only if the (1) defendant perfects his appeal, (2) he files a supersedeas bond, and (3) he periodically deposits the rentals falling due during the pendency of the appeal (Rule 70 Section 19, Rules of Court).

In this case, Mike failed to file the supersedeas bond and to deposit the accruing rentals. So it was the ministerial duty of the MTCC to issue the writ of execution upon such failure. By issuing the TRO enjoining the eviction of Mike, the CA allowed him to extend his stay in the premises despite the mandatory provision of said Rule. The TRO issued by the CA is a patent nullity as it contravenes the express provision of said Rule. It committed a grave abuse of discretion in restraining the implementation of the writ of execution based on the circumstances obtaining in this case (ATO vs. CA G.R. 172426, October 17, 2008).  

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.

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