S & A GAISANO INCORPORATED, CANUTO CUPIN, REPRESENTED BY HIS SON SALVADOR P. CUPIN AS ATTORNEY-IN-FACT; VICENTE CUPIN: EVARISTO CUPIN, REPRESENTED BY HIS WIFE MARITES R. CUPIN A…

This is a petition for Certiorari, Prohibition, Mandamus, and Injunction with
Writ of Preliminary Injunction praying, among others that this Court:  (a) nullify and set aside the September 30, 1987 Order of the Regional Trial Court of
Agusan del Norte and Butuan City in Civil Case No. 3156, denying the
prayer for the issuance of a writ of
preliminary injunction; (b) order respondent Chan and all those acting in his
behalf to desist and stop the encroachment in petitioner’s property and place
it in the same condition prior to the encroachment:  (c) order respondent Building Official or
representatives to revoke and cancel the questioned building permit as well as
inhibit the issuance of any building permit without clearance from this Court;
and (d) order respondent Register of Deeds not to allow any transfer of the
disputed property to other parties.

As gathered from the records, the undisputed facts are as
follows:

On March 4, 1987, petitioner S & A Gaisano purchased a parcel
of commercial land from Isidro Villanueva known as Lot No. 423-A-1 covered by
TCT-RT-935 with an area of 1,711 square meters and Lot No. 8-E-1 covered by TCT
RT-1090 with an area of 296 square meters, both situated in the commercial
section of Zamora Street, Butuan
City.  Subsequently, Gaisano discovered
that a strip of land five (5) meters wide and 43 meters long with an area of
214 square meters, is situated in between the land it acquired from the
Villanuevas and Zamora Street.  To
facilitate the expansion of Gaisano’s business, the latter negotiated the
purchase of said strip of land with its owners, the heirs of Generoso Cupin and
the parties concerned have agreed to the sale although the formal execution of
the Deed of Sale was deferred pending partition among the heirs of the late
Generoso Cupin.

Meanwhile, respondent Victor Chan succeeded in buying the subject
property and the sale was registered with the City Register of Deeds and a
Transfer Certificate of Title was issued in his favor.

Petitioners Cupin maintained, among others, that the sale between
them and respondent.  Victor Chan is null
and void because they were led to believe that the sale is only a conditional
sale; that there is a defect in the execution of their contract and that there
is no consideration.

On May 29, 1987,
herein petitioners filed with the Regional Trial Court of Agusan del Norte and Butuan
City, Branch V, presided by herein
respondent judge, a complaint for annulment of deed of sale of land, cancellation of Transfer Certificate of Title No.
RT-18812 of Victor Chan, damages, and injunction, against respondent Victor
Chan and respondent Arturo Ricaforte, in his capacity as Registrar of the
Registry of Deeds of Butuan City, docketed therein as Civil Case No. 3156.

Private respondent Chan, in his Answer with Counterclaim, denied
all the material allegations of the complaint and alleged, among others, that
in Civil Case No. 3151, before Branch III of the same court, entitled “S & A Gaisano, Inc. vs. Otis
Enterprises and/or Victor Chan”, petitioner Gaisano admitted that respondent Chan is the owner of the property
in question when it said in paragraph 3 of its complaint in said case
that –

“The respondents are the vendees of a parcel of land adjacent
to the aforedescribed property of petitioners, which parcel of land containing
an area of Two Hundred Fourteen (214) square meters and located in between
petitioner’s land and the national highway called Zamora St., poblacion, Butuan
City, was acquired by the respondents from the heirs of Nolasco A. Cupin
through a Deed of Sale:

which judicial admission binds petitioner
Gaisano and forecloses and defeats its alleged cause of action in the instant
case.  To this, petitioners filed their
Reply and Answer to Counterclaim dated June
5, 1987.

Public respondent Register of Deeds Arturo Ricaforte, likewise,
filed an answer dated June 15, 1987
wherein after denying the material allegations of the complaint, he prayed that
the complaint, insofar as the Butuan City Register of Deeds is concerned, be
dropped for utterly being devoid of merit.

Respondent judge, acting on the prayer for the issuance of a writ
of preliminary injunction, issued an order on June 4, 1987 setting a
hearing on the incident on June
23, 1987.  After the parties have presented their respective
evidence, respondent judge, in an order dated September 30, 1987 denied the prayer, to wit:

“IN VIEW OF ALL THE FOREGOING consideration, the Court finds
no valid justification for the issuance of a writ of preliminary
injunction.  Considering that the title over the property in
question has not been ordered cancelled, the owner may not be deprived of his
right as owner thereof.”

Petitioners filed a Motion for Reconsideration dated October 10, 1987 and a Supplemental to Motion for
Reconsideration dated October 23,
1987, but without waiting for respondent judge to act on the same, petitioner, on November 5, 1987, filed the instant petition.

In a Resolution dated November
9, 1987, this Court resolved to require the respondents to comment,
and to issue a temporary restraining order.

On November 13, 1987,
respondents, instead of filing a comment, filed an answer dated November 12, 1987.  Thereafter on November 19, 1987, respondents filed an Urgent Motion to
Set Petition for Immediate Oral Arguments, Dissolve Restraining Order and
Resolve Issues Raised in the Petition and the Answer, dated November 12, 1987 and on December 4, 1987, respondent Victor
Chan’s Offer of Bond to Dissolve Restraining Order.

In the resolution dated February
15, 1988, petitioners were required to put up a bond in the amount
or P100.000.00, to which petitioners filed their compliance on March 17, 1988.

In the resolution dated August 15, 1988, the petition was given
due course; the parties were required to file their respective memoranda;
respondent Chan’s motion for reconsideration was denied, which denial was
declared final; and the petition for intervention of the Republic of the
Philippines which also claimed a legal interest in the land in question
allegedly having been formed as part of the national highway along Zamora
Street, Butuan City was granted.

In compliance with the said resolution of August 15, 1988,
petitioners filed their memorandum on October 3, 1988, to which respondent Chan
filed a brief reply thereto on October 17, 1988:  while respondent Chan filed his Memorandum on
October 11, 1988.  On the other hand, the
Solicitor General, on December 13,
1988, manifested for respondent Registry of Deeds, that he be
excused from filing his memorandum.

In petitioners’ memorandum, the following issues were raised:

I

WHETHER OR NOT RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION WHEN
IT ISSUED THE QUESTIONED ORDER OF SEPTEMBER 30, 1987, DENYING PETITIONERS’
PRAYER FOR THE ISSUANCE OF A WRIT OF PRELIMINARY INJUNCTION;  AND

II

WHETHER OR NOT RESPONDENT VICTORIO GO, IN HIS CAPACITY AS NATIONAL
BUILDING OFFICIAL ABUSED HIS DISCRETION WHEN HE ISSUED IN FAVOR OF RESPONDENT
CHAN A BUILDING PERMIT FOR THE CONSTRUCTION OF A BUILDING ON THE QUESTIONED
LAND.

The instant petition is devoid of merit.

To put matters in the proper perspective, the case before the
lower court is one for Annulment of Deed of Sale of Land, Cancellation of TCT
No. RT-18812 issued in favor of respondent Victor Chan, Damages and Injunction.

After the initial presentation of their evidence, both parties
petitioned the Court that they be allowed to submit their formal offer of their
exhibits in writing as well as their respective comments/opposition thereto.

Petitioners’ exhibits were admitted only for purposes of the
motion for the issuance of an injunction while respondent Victor Chan’s Formal
Offer of Exhibits were all admitted.  As previously stated, the issuance of a writ of
preliminary injunction was denied.

The only issue, therefore, is whether or not respondent judge
gravely abused his discretion in denying said injunction.  The other issues refer to factual matters yet
to be determined by the trial court in the trial on the merits.

It is a well-established rule that the grant or denial of an
injunction rests upon the sound discretion of the court in the exercise of
which, appellate courts will not interfere except on a clear case of abuse
(Belisle Investment and Finance Co., Inc. v. State Investment House, Inc., 151 SCRA 630, 636 [1987], citing
the case of Yaptinchay v. Torres, 28 SCRA 489 [1969]).

Equally well-settled is the rule that injunction will not lie to
take the property out of the control of the party in possession (Ortigas & Co. Ltd. Partnership v. Ruiz,
148 SCRA 327 ([1987]).  In actions involving realty, two requisites
are necessary if an injunction is to issue, namely:  the existence of a right to be protected and
that the facts against which the injunction is to be directed are violative of
said right.  Furthermore, in such
actions, preliminary injunction will lie only after the plaintiff has fully
established his title or right thereto by a proper action brought for the
purpose.  To authorize temporary
injunction, the complainant must make out at least a prima facie showing of a
right to the final relief (Buayan Cattle Co., Inc. v. Quintillan, 128 SCRA 276;
286–287 [1984]; Ortigas & Co. Ltd., supra).  In order that a preliminary injunction
may be granted at any time after the commencement of the action and before judgment, the right
thereto must be established (Rosauro v. Cuneta, 151 SCRA 574-575 [1987])

Hence, the existence of a right violated, is a prerequisite to
the granting of an injunction.  An
injunction will not issue to protect a right
not in esse and which may never arise.  Failure
to establish either the existence of a clear and positive right which should be
judicially protected through the writ of injunction or that the defendant has
committed or has attempted to commit any act which has endangered or tends to
endanger the existence of said right, is a sufficient ground for denying the
injunction (Rosauro v. Cuneta, supra, p. 575).

In the case at bar, the right of private respondent to the
possession and enjoyment of the property in litigation is clearly
unassailable.  It is founded on the right
of ownership.  Thus, as correctly found
by the trial court, it is not disputed that the transfer certificate of title
over subject property is in the name of
Victor Chan.  Equally important is the
fact that petitioners do not have a sufficient cause of action.  Under the above-cited doctrines of this Court
petitioners’ prayer for injunctive relief would necessarily fall.

In fact, even the claim of the government that the same land was
reserved to increase the width of the national highway was withdrawn by the
Secretary of the Ministry of Public Works and Highways in his letter of May 6, 1988 informing the Solicitor
General* of the basis of his request for withdrawal as follows:

“Subsequent to February 4, 1988, we directed our ADB-PM0 to
ascertain the approved Road Right-of-Way of the ADB-assisted Iligan-Cagayan de
Oro-Butuan Road from Km. 320+400 to Km. 322+100 (Butuan side) where the
property subject of the litigation in this case is situated.  In a certification dated May 4, 1988, the
Project Director confirmed that according to approved Plans and Profile for
this particular portion of this highway the Road Right-of-Way is only 20 meters
while from Km. 320+400 going towards the Municipality of Buenavista the Road
Right-of-Way is 30 meters.” (Annex “A”, Rollo, p. 579).

Finally, this Court is not a trier of facts (Rosauro v. Cuneta,
151 SCRA 576 [1987]).  The parties must
litigate the other issues including the
annulment of the sale in the lower court if they have not as yet done so.

WHEREFORE, the petition is Dismissed, the assailed order
of September 30, 1987 of
the Regional Trial Court of Agusan del Norte
and Butuan City
is Affirmed, the restraning order issued by this Court is Dissolved; and the
case is hereby ordered re­manded to the lower court for trial on the merits.

SO ORDERED.

Fernan, C.J., (Chairman), and
Gutierrez, Jr., J., concur.

Feliciano, J., on leave.

*
The Solicitor General
subsequently filed a “Motion to Withdraw Petition in Intervention”
dated November 15, 1990 which was granted on November 28,
1990.