Issuance of Writ of Preliminary Attachment

Allied Banking Corp. v. South Pacific Sugar Corp. (as cited in the case of Santiago and Tanchan v. Allied Banking Corporation G.R. No. 164510)

"Such general averment will not suffice to support the issuance of the writ of preliminary attachment. It is necessary to recite in what particular manner an applicant for writ of attachment was defrauded."

"...in this jurisdiction, fraud is never presumed."

"...written contracts x x x are presumed to have been entered into for a sufficient consideration."


Ng Wee v. Tankiansee (as cited in the case of Santiago and Tanchan v. Allied Banking Corporation G.R. No. 164510)

"The affidavit, being the foundation of the writ, must contain such particulars as to how the fraud imputed to respondent was committed for the court to decide whether or not to issue the writ. Absent any statement of other factual circumstances to show the respondent, at the time of contracting the obligation, had a preconceived plan or intention not to pay, or without any showing of how respondent committed the alleged fraud, the general averment in the affidavit x x x is insufficient to support the issuance of a writ of preliminary attachment."


Santiago and Tanchan v. Allied Banking Corporation G.R. No. 164510

"...rules require that for the writ to issue, there must be a recitation of clear and concrete factual circumstances manifesting that the debtor practices fraud upon the creditor at the time of the execution of their agreement in that said debtor had a pre-conceived plan or intention not to pay the creditor. Being a state of mind, fraud cannot be merely inferred from a bare allegation of non-payment of debt or non-performance of obligation."

"...the requirement [to prove fraud] becomes all the more stringent when the application for preliminary attachment is directed against a defendant officer of a defendant corporation [in this case, a surety and principal debtor], for it will not be inferred from the affiliation of one to the other that the officer participated in or facilitated in any fraudulent practice attributed to the corporation."

Claim for damages:

"A wrongful attachment may give rise to liability for moral damages but evidence must be adduced not only for the torment and humiliation brought upon the defendant by the attaching party but also the latter's bad faith or malice in causing the wrongful attachment, such as evidence that the latter deliberately made false statements in its application for attachment. Absent such evidence of malice, that attaching party cannot be held liable for moral damages."


Liberty Insurance Corporation v. Court of Appeals (as cited in the case of Philippine Bank of Communications v. Court of Appeals G.R. No. 115678)

"To sustain an attachment on this ground [fraud], it must be shown that the debtor in contracting the debt or incurring the obligation intended to defraud the creditor. The fraud must relate to the execution of the agreement and must have been the reason which induced the other party into giving consent which he would not have otherwise given. To constitute a ground for attachment in Section 1 (d), Rule 57 of the Rules of Court, fraud should be committed upon contracting the obligation sued upon. A debt is fraudulently contracted if at the time of contracting it the debtor has a preconceived plan or intention not to pay x x x. Fraud is a state of mind and need not be proved by direct evidence but may be inferred from the circumstances attendant in each case."


Philippine Bank of Communications v. Court of Appeals G.R. No. 115678

",,,fraudulent intent not to honor the admitted obligation cannot be inferred from the debtor's inability to pay or comply with the obligations."

"...fraud may be gleaned from a preconceived plan or intention not to pay."

"...the lower court should have conducted a hearing and required private petitioner to substantiate its allegation of fraud, embezzlement and misappropriation."

"...not only was petitioner's application defective for having merely given general averments, what is worse, there was no hearing to afford private respondents an opportunity to ventilate their side, in accordance with due process, in order to determine the truthfulness of the allegations of petitioner."

"Time and again, we have held that the rules on the issuance of a writ of attachment must be construed strictly against the applicants. The stringency is required because the remedy of attachment is harsh, extraordinary and summary in nature. If all requisites for the granting of the writ are not present, the court which issues it acts in excess of its jurisdiction."


D.P. Lub Oil Marketing Center, Inc. v. Nicolas (as cited in the case of Philippine Bank of Communications v. Court of Appeals G.R. No. 115678)

"There is thus the necessity of giving to private respondents an opportunity to ventilate their side in a hearing, in accordance with due process, in order to determine the truthfulness of the allegations."

Kabataan Party-list vs. COMELEC Case DIgest (G.R. No. 189868, December 15, 2009)

FACTS:

In the instant case, the petitioners, Kabataan Party-List, seeks to extend the voters registration for the May 10, 2010 national and local elections from October 31, 2009, as fixed by COMELEC Resolution No. 8514, to January 9, 2010 which is the day before the 120-day prohibitive period starting on January 10, 2010.

The petitioners anchor its ground on the provision of Section 8 of R.A. 8189 which reads: "The personal filing of application of registration of voters shall be conducted daily in the office of the Election Officer during regular office hours. No registration shall, however, be conducted during the period starting one hundred twenty (120) days before a regular election and ninety (90) days before a special election."

On the other hand, COMELEC maintains that the Constitution and the Omnibus Election Code confer upon it the power to promulgate rules and regulations in order to ensure free, orderly and honest elections; that Section 29 of R.A. 6646 and Section 28 of R.A. 8436 authorize it to fix other dates for pre-election acts which include voters registration; and that the October 31, 2009 deadline was impelled by operational and pragmatic considerations, citing Akbayan-Youth v. COMELEC.

ISSUE:

Whether or not the COMELEC has the authority to fix the voter's registration beyond the prohibitive period set forth by R.A. 8189.

RULING:

The Court ruled in favor of the petitioners. 

It held that the right of every Filipino to choose its leaders and participate to the fullest extent in every national or local election is so zealously guarded by Article V of the 1987 Constitution.

The Court explained that Section 8 of R.A. 8189 decrees that voters be allowed to register daily during office hours, except during the period starting 120 days before a regular election and 90 days before a special election. The Court is bound to respect the determination of Congress that the 120 day or 90 day period, as the case may be, was enough to make the necessary preparations with respect to the coming elections and COMELEC's rule making power should be exercised in accordance with the prevailing law.

R.A. 6646 and R.A. 8436 is not in conflict with the mandate of continuing voter's registration under R.A. 8189. R.A. 6646 and R.A. 8436 both grant COMELEC the power to fix other period for pre-election activities only if the same cannot be reasonable held within the period provided by law. However, this grant of power, is for the purpose of enabling the people to exercise the right of suffrage -- the common underlying policy under R.A. 8189, R.A. 6646 and R.A. 8436.

In the case at bar, the Court did not find any ground to hold that continuing voter's registration cannot be reasonably held within the period provided by R.A. 8189.

With regard to the Court's ruling in Akbayan-Youth v. COMELEC, The court explained that if the petitioners had only filed their petition, and sought extension, before the 120 day prohibitive period, the prayer would have been granted pursuant to the mandate of R.A. 8189.

As a result, the petition was granted and the COMELEC resolution fixing voters registration for the May 10, 2010 national and local elections on October 31, 2009 was declared null and void.