Republic of the Philippines

Court of Appeals
Manila

FOURTEENTH DIVISION

TVI EXPRESS HOLIDAYS CA-G.R. SP No. 137353

PHILIPPINES, INC.,
Petitioner, Members:

ROSARIO, J., CHAIRPERSON,

PERALTA, JR, &
- versus - MARTIN, JJ.

Promulgated:
SECURITIES AND
EXCHANGE COMMISSION,
Respondent. MARCH 15, 2018
____________________

DECISION

MARTIN, J.:*

This is a Petition for Certiorari and Prohibition (with Prayer for

Issuance of Writ of Preliminary Injunction and/or Temporary Restraining
Order) under Rule 65 of the 1997 Revised Rules of Civil Procedure assailing
the Resolution1 dated 2 September 2014 of the respondent Securities and
Exchange Commission which denied petitioner TVI Express Holidays
Philippines, Inc.'s Motion to Lift Cease and Desist Order, 2 and hence, made
permanent the Cease and Desist Order3 dated 11 July 2013.

This case was submitted for Decision on 3 August 2015.4

*
This case was re-assigned to the new Ponente only on 2 February 2018 pursuant to Office Order No. 05-18-RFB dated
12 January 2018, as part of his Initial Case Load.
1
Rollo, pp. 33-43.
2
Rollo, pp. 44-60.
3
Rollo, pp. 61-69.
4
Rollo, p. 296.
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The Facts

Petitioner TVI Express Holidays Philippines, Inc. (TVI Express) is a

private domestic corporation organized and existing under the laws of the
Republic of the Philippines.5

Respondent Securities and Exchange Commission (SEC) is impleaded

in this Petition as the quasi-judicial tribunal that issued the assailed
Resolution.6

TVI Express was registered with the SEC on 27 October 2010 under
SEC Registration No. CS201017609.7 Based on its Amended Articles of
Incorporation, the company's primary purpose was “[t]o engage in an online
direct selling business through an automated marketing system, independent
distributorship and network marketing by linking access to various booking
and search engines that offers high quality travel and leisure, providing
business and training tools, and compensation plan package, to the extent
permitted by law.”8

On 11 July 2013, the SEC issued a Cease and Desist Order (CDO)
against TVI Express which enjoined TVI Express' officers, directors, agents,
representatives, conduits, assigns, and any and all persons claiming and
acting for and in behalf and under its authority, from offering, soliciting or
selling unregistered securities in the form of investment contracts to the
public.9 The CDO was based on an investigation conducted by the
Enforcement and Prosecution Department (EPD) of the SEC.10

Previously, on 25 February 2013, the EPD allegedly received a

Memorandum dated 18 February 2013 from Director Renato V. Egypto of its
Cagayan de Oro extension office (CDO extension office) informing EPD
that TVI Express is operating a pyramid scheme in Tandag City, Surigao del
Sur. Respondent alleged that the Memorandum came with a letter dated 7
February 2013 from the Office of the City Mayor of Tandag City stating that
TVI Express enticed several persons, eleven (11) of whom are teachers in
the area, into investing various amounts (P13,000.00 – P66,000.00) with the
promise of “receiving the benefits of their investment doubled within six (6)
months and to earn $10,000 in another six months.”11

5
Rollo, Petition for Certiorari and Prohibition, p. 6.
6
Id.
7
Rollo, Comment, p. 109.
8
Rollo, Amended Articles of Incorporation of TVI Express Holidays Philippines, Inc., p. 139.
9
Supra at Note 3.
10
Rollo, Comment, p. 110.
11
Rollo, Comment, pp. 110-111.
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The basis of the letter from the City Mayor of Tandag City was a
handwritten statement executed by the eleven (11) teachers stating that: a)
they have not received the amounts promised by TVI Express promoters,
Rey Pedrola (Pedrola) and his sister Dorothea Waje (Waje), despite the
lapse of more than one year; and b) they eventually demanded the amount
that they invested, but they failed to collect the same.12

On 6 March 2013, the Corporation Finance Department (CFD) of the

SEC issued a Certification13 stating that TVI Express is not a registered
issuer of securities under Sections 8 and 12 of the Securities Regulation
Code (SRC) and as such, it is not licensed to offer or sell securities to the
public.14

On 20 March 2013, the EPD received a Preliminary Report from the

CDO extension office which described the experience of the complaining
teachers with TVI Express. 15 As a result of its investigation, EPD was able
to verify that almost all the teachers-complainants are indeed members of
TVI Express based on its membership list/database which numbers
thousands of Philippine-based individuals.16

Consequently, on 11 July 2013, the SEC issued the subject CDO. The
SEC found that the investment opportunities sold by Pedrosa, Waje and and
Shimpee Quiñonez (Quiñonez) to the complainant teachers were investment
contracts not registered with the SEC. The SEC concluded that TVI Express
was engaged in the sale of unregistered investment contracts to the teachers
who were not paid their promised returns.

On 2 September 2014, the SEC issued a Resolution17 denying TVI

Express' Motion to Lift CDO and made permanent the CDO it issued on 11
July 2013.

Hence, this Petition.18

Issues

Petitioner raised the following issues presented to this Court for

resolution:
12
Rollo, Handwritten Letter from the Teachers
13
Rollo, Annex “5”, p. 163.
14
Rollo, Comment, p. 112.
15
Id.
16
Rollo, Comment, pp. 112-113.
17
Rollo, Annex “B”, Resolution, pp. 33-43.
18
Rollo, pp. 3-28.
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WHETHER RESPONDENT COMMITTED GRAVE

ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION IN FINDING THAT
PETITIONER WAS ENGAGED IN THE SALE OF
SECURITIES.

II

WHETHER RESPONDENT COMMITTED GRAVE

ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION IN ISSUING THE
SUBJECT CDO AND IN MAKING THE SAME
PERMANENT.

III

WHETHER RESPONDENT MUST BE PROHIBITED

FROM ENFORCING THE DISPOSITIVE PORTION OF
ITS RESOLUTION.

The Court's Ruling

On the procedural issue:

TVI Express availed of the

correct remedy under Rule 65
of the 1997 Revised Rules of
Civil Procedure

In its Comment, the SEC through the Office of the Solicitor General
(OSG) contends that TVI Express availed of the incorrect remedy of a
Petition for Certiorari and Prohibition under Rule 65 and that the correct
remedy is to file a Petition for Review under Rule 43 of the 1997 Revised
Rules of Civil Procedure. The SEC further contends that TVI Express cannot
depend on Rule X, Section 10-8 of the SEC Rules of Procedure because it
specifically refers to the procedure within the SEC itself.19

On the other hand, TVI Express, citing the cases of Power Homes

19
Rollo, Comment, pp. 116-118.
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Unlimited Corporation v. SEC20 and SEC v. Prosperity.com, Inc.21 contends

that it availed of the correct remedy, as in these cases, the petitioners in said
cases availed of the remedy under Rule 65 of the 1997 Revised Rules of
Civil Procedure in assailing the CDO in the said cases. 22

The Court agrees with the arguments of TVI Express. TVI Express
availed of the correct remedy as Rule X, Section 10-8 of the SEC Rules of
Procedure itself provides that a CDO “shall not be a subject of an appeal and
no appeal from it will be entertained.” There being “no appeal or any plain,
speedy and adequate remedy in the ordinary course of law”, 23 TVI Express
availed of the correct remedy by filing a Petition for Certiorari and
Prohibition under Rule 65 of the 1997 Revised Rules of Civil Procedure.

On the substantive issues:

TVI Express is engaged in the

selling of investment
contracts without prior
registration with the SEC

The SEC in its assailed Resolution dated 2 September 2014 applied

the concept of an investment contract derived from the US Supreme Court
case SEC v. W.J. Howey Co. where the Court stated that an investment
contract is a transaction, contract, or scheme whereby a person (1) makes an
investment of money, (2) in a common enterprise, (3) with the expectation of
profits, (4) to be derived solely from the efforts of others. The SEC went on
and concluded that TVI Express in engaged in the unauthorized selling of
securities, specifically investment contracts which is prohibited by Section
8.1 of Republic Act (R.A.) No. 8799, otherwise known as the Securities and
Regulation Code (SRC).

TVI Express, on the other hand, contends that it is not involved in the
sale of securities. Instead, TVI Express argues that it is engaged in the online
direct-selling business through an automated marketing system, independent
distributorship and network marketing by linking access to various booking
and search engines.24 It further claims that the complaint of the teachers only
pertains to the “complained petitioner's members” in Tandag City, Surigao
del Sur and not against TVI Express itself or any of its members.25

20
G.R. No. 164182, 26 February 2008.
21
G.R. No. 164197, 25 January 2012.
22
Rollo, Reply, pp. 197-198.
23
Section 1, Rule 65 of the Revised Rules of Court.
24
Rollo, Petition, pp. 10-11.
25
Rollo, Petition, pp. 12-13.
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TVI Express also claims that it is watchful of members who are

promoting it as an investment scheme, and warns its members against the
practice of investment promotion.26

The Court is not convinced by the arguments of TVI Express.

TVI Express would have this Court believe that it is operating a

legitimate business. However, a closer look at the evidence presented by the
parties leads this Court to agree with the findings of the SEC.

Section 8.1 of the SRC27 provides that securities shall not be sold or
offered for sale or distribution within the Philippines, without a registration
statement duly filed with and approved by the SEC.

The term “securities” is defined as “shares, participation or interests in

a corporation or in a commercial enterprise or profit-making venture and
evidenced by a certificate, contract, instrument, whether written or electronic
in character.”28

An investment contract also falls under the definition of securities. 29

And as such, it also requires registration prior to its offer, sale or
distribution. An investment contract refers to a contract, transaction or
scheme whereby a person invests his money in a common enterprise and is
led to expect profits primarily from the efforts of others. 30 It is presumed to
exist whenever a person seeks to use the money or property of others on the
promise of profits.31

The concept of an investment contract originated from a ruling in the

US Supreme Court case of Securities and Exchange Commission v. W.J.
Howey Co.32 In fact, it has been applied in the cases Power Homes
Unlimited Corporation v. Securities and Exchange Commission 33 and

26
Rollo, Petition, pp. 14-16.
27
Section 8. Requirement of Registration of Securities.– 8.1. Securities shall not be sold or offered for sale or
distribution within the Philippines, without a registration statement duly filed with and approved by the Commission.
Prior to such sale, information on the securities, in such form and with such substance as the Commission may
prescribe, shall be made available to each prospective purchaser.
28
Section 3.1 of R.A. No. 8799, otherwise known as the Securities Regulation Code.
29
Section 3.1 (b) of R.A. No. 8799.
30
Virata v. Ng Wee, G.R. Nos. 220926, 221058, 221109, 221135 & 221218, 5 July 2017, citing Power Homes
Unlimited Corporation v. Securities and Exchange Commission, G.R. No. 164182, February 26, 2008, 546 SCRA 567,
575-576.
31
Virata v. Ng Wee, G.R. Nos. 220926, 221058, 221109, 221135 & 221218, 5 July 2017, citing Securities and
Exchange Commission v. Santos, G.R. No. 195542, March 19, 2014, 719 SCRA 514.
32
328 US 293 (1946).
33
Supra at Note 20.
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Securities and Exchange Commission v. Prosperity.com, Inc.34 cited by both

petitioner and respondent respectively. Its application was also affirmed in
the recent case of Virata v. Ng Wee.35

Under the Howey test, the following must concur for an investment
contract to exist: (1) a contract, transaction, or scheme; (2) an investment of
money; (3) investment is made in a common enterprise; (4) expectation of
profits; and (5) profits arising primarily from the efforts of others.36

In the instant case, it is indubitable that all of the elements of an

investment contract are present.

First, the teachers entered into an agreement with TVI Express

promoters. The SEC was also able to present a filled out distributor's
application form by one of the complainant-teachers, Rebecca Biol (Biol).37
Hence there is evidence to prove that a contract, transaction or scheme exists
between TVI Express and the complainant.

Second, the teachers paid a purchase price for the so-called

“membership” with TVI Express which ranged from P13,000.00 to
P66,000.00.38 In fact, in Biol's case, she deposited the amount of
P117,600.00 with TVI Express's Banco De Oro (BDO) savings account as
proven by the bank deposit slip.39 Hence, there is evidence to prove that
there was an investment of money with TVI Express.

Third, the complaining teachers were made to believe by Pedrosa,

Waje and Quiñonez who represented TVI Express that their money would
yield high returns through its business operations. This is evidenced by the
handwritten letter by the teachers.

Biol even executed a separate Judicial Affidavit for a Criminal Case of

Swindling against Pedrosa, Waje and Quiñonez before the Tandag City,
Office of the Provincial Prosecutor.40 In the said case, Biol alleged that
Pedrosa, Waje and Quiñonez went to her residence, presented and
convinced her to invest with TVI Express in the amount of Php14,000.00 per
share and that after six months, the amount she invested will earn

34
Supra at Note 21.
35
G.R. Nos. 220926, 221058, 221109, 221135 & 221218, 5 July 2017.
36
Id.
37
Rollo, Annex “4”, Distributor's Application Form, p. 160.
38
Rollo, Annex “3”, p. 159.
39
Rollo, Annex “3”, p. 161.
40
Rollo, Annex “6”, pp. 177-180.
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Php32,000.00, and after a year, she will receive USD10,000.00.41 To prove

her allegations, Biol also executed a Joint Affidavit together with other
teacher complainants namely Evelyn S. Berdos, Lilian Gabole, Marivic
Diaz, Yvonne Novo, Nelsa Bangoy, Susana Balbutin, and Marivic Cabillan.42

Thus, the existence of the third and fourth elements are established.
There were investments made in a common enterprise and the promised high
returns with the teachers naturally led them to expect profits.

Lastly, the teachers did not have a hand in the operation of TVI
Express or the management of their money. In the present case, the teachers
were made to believe that the returns on their investments were
unconditional and only require the mere lapse of time. Hence, the profits
would arise primarily on the effort of TVI Express.

The required quantum of proof in cases before quasi-judicial bodies

such as the SEC has been enunciated in the case of Gatus v. Social Security
System43 citing Ortega v. Social Security Commission:44

“The requisite quantum of proof in cases filed before

administrative or quasi-judicial bodies is neither proof beyond reasonable
doubt nor preponderance of evidence. In this type of cases, a fact may be
deemed established if it is supported by substantial evidence, or that
amount of relevant evidence which a reasonable mind might accept as
adequate to justify a conclusion.” (emphasis supplied)

In the present case, the conclusion that TVI Express was engaged in
the sale of investment contracts without a prior registration with the SEC has
been supported by substantial evidence.

TVI Express is engaged in a

pyramiding scheme

TVI Express argues that it is not engaged in a pyramiding scheme. It

cited the case of SEC v. Prosperity.com, Inc45. wherein the SEC also issued a
CDO against Prosperity.com for a violation of the SRC despite the latter's
contention that its business activity is centered on network marketing and
not investment. The SEC contended that the sale of websites constituted sale
of securities within the purview of the law. As Prosperity.com was not
41
Rollo, Annex “6”, p. 177.
42
Rollo, Annex “6”, pp. 181-182.
43
G.R. No. 174725, 26 January 2011.
44
G.R. No. 176150, 25 June 2008.
45
Supra at Note 21.
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licensed as a securities issuer, dealer or broker, the SEC considered

Prosperity.com to be in violation of the SRC.46

The relevant portion of the ruling of the Supreme Court in the case of
SEC v. Prosperity.com, Inc.47 concluded:

“Here, PCI's clients do not make such investments. They buy a

product of some value to them: an Internet website of a 15-MB capacity.
The client can use this website to enable people to have internet access to
what he has to offer to them, say, some skin cream. The buyers of the
website do not invest money in PCI that it could use for running some
business that would generate profits for the investors. The price of
US$234.00 is what the buyer pays for the use of the website, a tangible
asset that PCI creates, using its computer facilities and technical skills.

Actually, PCI appears to be engaged in network marketing, a

scheme adopted by companies for getting people to buy their products
outside the usual retail system where products are bought from the store's
shelf. Under this scheme, adopted by most health product distributors, the
buyer can become a down-line seller. The latter earns commissions from
purchases made by new buyers whom he refers to the person who sold the
product to him. The network goes down the line where the orders to buy
come.

The commissions, interest in real estate, and insurance coverage

worth P50,000.00 are incentives to down-line sellers to bring in other
customers. These can hardly be regarded as profits from investment of
money under the Howey test.

The CA is right in ruling that the last requisite in the Howey test is
lacking in the marketing scheme that PCI has adopted. Evidently, it is PCI
that expects profit from the network marketing of its products. PCI is
correct in saying that the US$234 it gets from its clients is merely a
consideration for the sale of the websites that it provides.”

TVI Express went on and argued that the P15,000.00 membership fee
is not an investment that will allow people to receive profits even without
working. It added that the members who neither promote the business nor
attain the thresholds set by the various compensation plans of the company
will not earn until and unless they manage to produce sales themselves. It
likens its set-up with Prosperity.com and contends that it is the company
itself and not its members that will earn profit from the work done by its

46
Rollo, Reply, pp. 203-206.
47
Supra at Note 21.
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independent distributors. As such, it claims that the last element in the

Howey test is not present in the instant case.48

The Court is again not convinced by the arguments of TVI Express.

As correctly argued by the SEC, the business operations of TVI

Express is indeed akin to a pyramid scheme. A pyramid scheme which is
also known as a Ponzi scheme is "an investment swindle in which high
profits are promised from fictitious sources and early investors are paid off
with funds raised from later ones." It is sometimes called a pyramid scheme
because a broader base of gullible investors must support the structure as
time passes.49

It was uncontroverted by TVI Express that their website's Frequently

Asked Questions (FAQ) contained the following statements:

“12. Can I sponsor more than two people?

To qualify and earn commissions, you need to sponsor two people.

However, if you want to progress fast and create multiple legs to ensure
faster cycles and enhanced residual income with other bonuses, we do
urge you to sponsor as many people as you can and support them at the
same time.

13. What is the advantage of sponsoring more than two people?

You will receive a 5-10% bonus for every member that joins your
organization after you cycle out of Express board. Sponsoring more than
two people and opening multiple legs in your downline organization will
not just have you earn more money from the matrix structure but will also
ensure faster cycles in the Express Board. Follow-the-leader system makes
all members to follow their sponsors.”50

Other than the FAQ in website of TVI Express, there were other
statements in the website that highlighted the promise of high monetary
returns and other financial benefits one a person becomes a member of TVI
Express. These statements that were likewise uncontroverted by TVI
Express read:

“xxx ... change the way you look at creating wealth. xxx

And witness how our Distributors coming from different walks of life are
making thousands of dollars a month, with a simple and effective system
48
Rollo, Reply, pp. 205-206.
49
People v. Romero, G.R. No. 112985, 21 April 1999.
50
Rollo, Annex “7”, Printout of Frequently Asked Questions from TVI Express'' website, pp. 184. Note, at present, the
website could no longer be accessed.
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which is changing the entire industry.

xxx

PLUS OPPORTUNITY TO EARN OVER P450,000 per week in CASH

to travel & party around the World!

Are you intrigued?

You should be! This is a real opportunity and a real Business company
with REAL PEOPLE WORLDWIDE making fantastic monthly incomes
that will come to them month-after-month, year-after-year.

xxx”51

It is worth noting that even TVI Express's counsel, Atty. Peter S.

Castillo II also admitted that the financial returns to its members came from
the membership fees of its new recruits. This was evident from Atty.
Castillo's statements during the hearing conducted by the SEC on 1 August
2013:

“ATTY. BALTAZAR

But to clarify. The incentives for the club are not based on the actual
purchase, booking of rooms or accommodations through TVI. That is
correct, right? Meaning the incentives members get in TVI is not
contingent on anyone actually booking in this. That is correct?

ATTY. CASTILLO II

Sorry I don't.

ATTY. BALTAZAR

Okay, at least based on the previous explanation and you feel free to
mention this in a memorandum. You get an incentive…

ATTY. CASTILLO II

The discount?

ATTY. BALTAZAR

No, no, not the discount, the incentive, the financial incentive.

ATTY. CASTILLO II

The compensation?
51
Rollo, Annex “8”, Printout of Website of TVI Express', pp. 186-187. Note, at present, the website could no longer be
accessed.
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ATTY. BALTAZAR

Yeah, the compensation when people are recruited.

ATTY. CASTILLO II

Yes.

ATTY. BALTAZAR

That’s correct right?

ATTY. CASTILLO II

Yes.

ATTY. BALTAZAR

Is there any factor towards compensation that can be attributed to

when people actually book?

ATTY. CASTILLO II

None.

ATTY. BALTAZAR

None. Just wanted to be clear on that. So it is possible for TVI to offer it

without anyone booking any tickets?

ATTY. CASTILLO II

(inaudible)

ATTY. BALTAZAR

And even if nobody is booking any tickets or cashing in the travel voucher
so long as people are being recruited meaning the payment of P15,000,
some individuals will get compensation?

ATTY. CASTILLO II

Yes. Without using the product?

ATTY. BALTAZAR

Yes

ATTY. CASTILLO II
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Yes, because it is the prerogative of the members to use the product.” 52

(emphasis and underscoring supplied)

That TVI Express merely obtains its funds to finance the supposed
returns of its more established members or “uplines” from the membership
fees of new recruits is confirmed by the statements made by Atty. Villamosa,
another representative of TVI Express during the hearing held on 1 August
2013:

“ATTY. BALTAZAR

None. Underneath the tab profile on the left… commission, what exactly
is that supposed to be?

REPRESENTATIVE FROM TVI:

Residual Income.

ATTY. BALTAZAR

I see several dates … residual income and then the commission. Can you
just explain …

REPRESENTATIVE FROM TVI:

Okay. Residual income is the income that you get for growing your
organization, helping your downlines. Pag nag-join kasi halimbawa mag-
join kayo, I get residual income from you.

ATTY. CASTILLO II

Overriding Commission.

REPRESENTATIVE FROM TVI:

Overriding Commission, parang ahente.

ATTY. BALTAZAR:

So it is based on the recruitment?

REPRESENTATIVE FROM TVI:

Yes.

ATTY. BALTAZAR

So is it correct to say that this residual income is derived from the

membership?

52
Rollo, Comment, pp. 128-120; Annex “6”, pp. 168-170; Annex “9”, pp. 189-191.
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ATTY. CASTILLO

Sale of membership.

REPRESENTATIVE FROM TVI:

Sale of membership.” (emphasis, underscoring and italics supplied)53

In the present case, the SEC was able to present substantial evidence
that TVI Express was indeed engaged in a pyramiding scheme. TVI
Express's self-serving statements which were unsubstantiated cannot
overturn the evidentiary weight of the statements contained in their website
as well as the statements uttered by their representatives. If TVI Express
actually operated a legitimate business, it could have easily gathered
statements from its satisfied members that would prove its legitimate
operation and that indeed, they have received from TVI Express the
promised high returns from its business operations. Unfortunately, for TVI
Express, all it presented were self-serving statements that were
unsubstantiated. It is an age-old rule that the one who alleges a fact has the
burden of proving it and the proof should be clear, positive and convincing.
Mere allegation is not evidence.54

No grave abuse of discretion

on the part of SEC in making
permanent the CDO against
TVI Express

The SEC has the power to issue CDOs to prevent fraud or injury to
the investing public. In the present case, the SEC's basis for the issuance of
the CDO against TVI Express is Section 64.1 of the SRC which reads:

“SEC. 64. Cease and Desist Order. —

64.1. The Commission, after proper investigation or verification, motu
proprio, or upon verified complaint by any aggrieved party, may issue a
cease and desist order without the necessity of a prior hearing if in its
judgment the act or practice, unless restrained, will operate as a fraud on
investors or is otherwise likely to cause grave or irreparable injury or
prejudice to the investing public.”

The teachers-complainants are but a small sample of those who were

victimized. They came forward to seek justice against TVI Express. If TVI
Express would be allowed to continue to operate, it will cause grave or
irreparable injury or prejudice to the investing public on a massive scale,
53
Rollo, Comment, pp. 130-131; Annex “6”, pp. 170-171; Annex “10”, pp. 192-193.
54
Noblejas v. Italian Maritime Academy Phils., et al., G.R. No. 207888, 9 June 2014.
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considering that they have thousands of members that are being encouraged
by TVI Express to recruit more people in order to earn additional
commissions.

What is even more alarming is that TVI Express also has operations in
other countries. Their website indicates that it is currently operational in 150
countries.55 In fact, the National Bureau of Investigation also had a press
release back in 2011 in which the Federal court of Australia found TVI
Express to be a pyramid selling scheme.56

In view of the aforegoing discussion, this Court finds that the issuance
of the CDO to enjoin TVI Express and its officers, agents, representatives
and employees from further offering for sale to the public investment
contracts which they market as travel membership packages was proper.

TVI Express not entitled to a

Temporary Restraining
Order and/or Writ of
Preliminary Injunction

The case of Australian Professional Realty, Inc. v. Municipality of

Padre Garcia Batangas Province57 is instructive on the instances when a
writ of preliminary injunction and a temporary restraining order may issue:

“A writ of preliminary injunction and a TRO are injunctive reliefs

and preservative remedies for the protection of substantive rights and
interests. An application for the issuance of a writ of preliminary
injunction and/or TRO may be granted upon the filing of a verified
application showing facts entitling the applicant to the relief demanded.

Essential to granting the injunctive relief is the existence of an

urgent necessity for the writ in order to prevent serious damage. A TRO
issues only if the matter is of such extreme urgency that grave injustice
and irreparable injury would arise unless it is issued immediately. Under
Section 5, Rule 58 of the Rule of Court, a TRO may be issued only if it
appears from the facts shown by affidavits or by the verified application
that great or irreparable injury would be inflicted on the applicant before
the writ of preliminary injunction could be heard.

Thus, to be entitled to the injunctive writ, petitioners must show

that (1) there exists a clear and unmistakable right to be protected; (2) this
right is directly threatened by an act sought to be enjoined; (3) the
invasion of the right is material and substantial; and (4) there is an urgent
55
Rollo, Annex “8”, p. 187.
56
http://nbi.gov.ph/press_releases/2011/12232011/1291/ last accessed 1 March 2018.
57
G.R. No. 183367, 14 March 2012.
 CA-G.R. SP No. 137353 Page 16 of 16
DECISION
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and paramount necessity for the writ to prevent serious and irreparable
damage.”

In this case, TVI Express is engaged in selling investment contracts

without the requisite registration from the SEC as well as engaging in a
pyramiding scheme. In view of its violation of the SRC, there is no clear and
unmistakable right to be protected. Hence, TVI Express is not entitled to a
writ of injunction.

WHEREFORE, the application for a Temporary Restraining Order

and/or Preliminary Injunction is DENIED. The Petition is DISMISSED for
lack of merit.

SO ORDERED.

RONALDO ROBERTO B. MARTIN

Associate Justice

WE CONCUR:

RICARDO R. ROSARIO EDUARDO B. PERALTA, JR.

Associate Justice Associate Justice

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby

certified that the conclusions in the above decision were reached in
consultation before the case was assigned to the writer of the opinion of the
Court.

RICARDO R. ROSARIO
Associate Justice
CHAIRPERSON, FOURTEENTH DIVISION