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Basa vs Mercado

Meaning of "newspaper of general circulation"

FACTS: Hon. Hermogenes Reyes, Judge of Pampanga CFI, allowed and probated the last will and testament of Ines Basa, decedent. The same judge also approved the account of the administrator of the estate, declared him the only heir and closed the administration proceedings. Joaquin Basa, et al., filed a motion to reopen the proceedings, alleging that the court lacked jurisdiction because there was failure to comply with the requirements as to the publication of the notice of hearing. They contended that the hearing took place only twenty-one days after the date of first publication instead of three full weeks. Moreover, they questioned whether Ing Katipunan, the newspaper where the notice was published was a newspaper of general circulation as contemplated by the law. ISSUEs:

Whether or not there was compliance with the publication requirement Whether or not Ing Katipunan is a newspaper of general circulation

HELD: The language used in section 630 of the Code of Civil Procedure does not mean that the notice, referred to therein, should be published for three full weeks before the date set for the hearing of the will. In other words, the first publication of the notice need not be made 21 days before the day appointed for the hearing. The records show that Ing Katipunan is a newspaper of general circulation in view of the fact that it is published for the dissemination of local news and general information; that it has a bona fide subscription list of paying subscribers; that it is published at regular intervals and that the trial court ordered the publication to be made in Ing Katipunan precisely because it was a newspaper of general circulation in the Province of Pampanga.

Tanada vs tuvera 36 scra 27 Publication Presidential Proclamations Invoking the peoples right to be informed on matters of public concerns as well as the principle that laws to be valid and enforceable they must be published in the Official Gazette or otherwise effectively promulgated, Taada et al seek a writ of mandamus to compel Tuvera to publish and/or to cause the publication in the Official Gazette of various Presidential Decrees (PDs), Letters of Instructions(LOIs), Proclamations(PPs), Executive Orders(EOs), and Administrative Orders(AOs). ISSUE: Whether or not the various PDs et al must be published before they shall take effect. HELD: The Supreme Court held that the fact that a PD or LOI states its date of effectivity does not preclude their publication in the Official Gazette as they constitute important legislative acts, particularly in the present case where the president may on his own issue laws. The clear objective of this provision is to give the public general adequate notice of the various laws which are to regulate their actions and conduct. Without such notice and publication, there would be no basis for the application of the maxim ignorantia legis non excusat. Publication is indispensable.

TITLE: People of the Phils v Que Po Lay CITATION: 94 Phil 640 | GR No. 6791, March 29, 1954 FACTS: The appellant was in possession of foreign exchange consisting of US dollars, US checks and US money orders amounting to about $7000 but failed to sell the same to the Central Bank as required under Circular No. 20. Circular No. 20 was issued in the year 1949 but was published in the Official Gazette only on Nov. 1951 after the act or omission imputed to Que Po Lay. Que Po Lay appealed from the decision of the lower court finding him guilty of violating Central Bank Circular No. 20 in connection with Sec 34 of RA 265 sentencing him to suffer 6 months imprisonment, pay fine of P1,000 with subsidiary imprisonment in case of insolvency, and to pay the costs. ISSUE: 1. Whether or not publication of Circular 20 in the Official Gazette is needed for it to become effective and subject violators to corresponding penalties. HELD: It was held by the Supreme Court, in an en banc decision, that as a rule, circular and regulations of the Central Bank in question prescribing a penalty for its violation should be published before becoming effective. This is based on the theory that before the public is bound by its contents especially its penal provisions, a law, regulation or circular must first be published for the people to be officially and specifically informed of such contents including its penalties. Thus, the Supreme Court reversed the decision appealed from and acquit the appellant, with costs de oficio.

PESIGAN VS. ANGELES 129 SCRA 174 (April 30, 1984) FACTS: Petitioners Anselmo and Marcelino Pesigan, carabao dealers, transported in a 10-wheeler truck in April 1982, 26 carabaos and a calf, from Camarines Sur to Batangas. Despite the health certificate, permit to transport, and certificate of inspection issued to them by the provincial veterinarian, provincial commander and constabulary command, respectively, while petitioners were negotiating the town of Basud, Camarines Norte, the carabaos were confiscated by private respondents, Police Station Commander Lt. Zanarosa, and provincial veterinarian Dr. Miranda. The confiscation was based on Executive Order 626-A which prohibited the transport of carabaos from one province to another. Pursuant to EO 626-A, Dr Miranda distributed the carabaos to 25 farmers of Basud. Petitioners filed for recovery of the carabaos and damages, against private respondent Judge Angeles who heard the case in Daet and later transferred to Caloocan City, and dismissed the case for lack of cause of action.

ISSUE: Whether or not EO 626-A be enforced before its publication in the Official Gazette. HELD: EO 626-A should not be enforced against petitioner on April 2, 1982, because it is a penal regulation published more than two months later in the Official Gazette dated June 14, 1982. It became effective only 15 days thereafter as provided in Art. 2 of the Civil Code, and Sec. 11 of the Administrative Code. Philippine International Trading Co. vs Angeles 263 scra 420 Publication Administrative Orders PITC issued Administrative Order No. SOCPEC 89-08-01 under which applications to the PITC for importation from the Peoples Republic of China must be accompanied by a viable and confirmed export program of Philippine products. PITC barred Remington and Firestone from importing products from China on the ground that they were not able to comply with the requirement of the said administrative order. Thereafter they filed a petition for prohibition and mandamus against the said order of PITC in which the trial court upheld and declared to be null and void for being unconstitutional. The court contends further authority to process and approve applications for imports SOCPEC and to issue rules and regulations pursuant to LOI 144 has already been repealed by EO 133 issued on February 27, 1987. Hence, the PITC filed a certiorari seeking the reversal of the said decision. ISSUE: Whether or not PITCs Administrative Order 89-08-01 is valid. HELD: The Supreme Court held that PITC is empowered to issue such order; nevertheless, the said AO is invalid within the context of Article 2 of the New Civil Code. The Court cited Tanada vs Tuvera which states that all statues including those of local application and private laws shall be published as condition for their effectivity, which shall begin 15 days after publication in the Official Gazette or a newspaper of general circulation unless a different effectivity date is fixed by the legislature. The AO under consideration is one of those issuances which should be published for its effectivity since it is punitive in character.

Laureano vs Court of Appeals

Applicability of Foreign Laws

Sometime in 1978 plaintiff Laureano was employed on a contract basis for two years as an expatriate B-707 captain by defendant company Singapore Airlines. His first term was then extended for another 2 years. However, defendant was hit by a recession and initiated a cost cutting measure. Plaintiff was advised to take advance leave. Realizing that the recession would not be for a short time, Singapore Airlines decided to terminate its excess personnel including plaintiff. Subsequently, Laureano instituted a case and claim for damages due to illegal termination of contract of services before the court a quo. Singapore Airlines filed a motion to dismiss alleging inter alia that the court has no jurisdiction over the subject matter of the case and that Philippine courts have no jurisdiction over the case. The defendant postulated that Singapore laws should apply.

ISSUE: Whether or not Philippine laws should be applied and Philippine courts should have jurisdiction over the instant case. HELD: The Supreme Court concurred in the assumption of jurisdiction by the RTC which rightly ruled on the application of Philippine laws. The SC further stated that neither can the court determine whether the termination of Laureano is legal under Singapore laws because of the Airlines failure to show which proves the applicability of the foreign law. It is a well settled rule that the party who claims the applicability of a foreign law has the burden of proof and where said party has failed to discharge the burden, Philippine laws apply. The defendant has failed to do so. Therefore, Philippine law should be applied. G.R. No. L-18816 December 29, 1962

PHILIPPINE BANK OF COMMERCE, plaintiff-appellee, vs. TOMAS DE VERA, defendant-appellant. Sumulong, Sumulong & Libongco for plaintiff-appellee. Natividad T. Perez for defendant-appellant. BARRERA, J.: This is an appeal1 taken by defendant Tomas de Vera from the decision of the Court of First Instance of Manila (in Civil Case No. 35169) ordering him to pay to plaintiff Philippine Bank of Commerce, his outstanding obligation of P99,033.20, with 6% interest from April 16, 1956 until fully paid, and P5,000.00 as attorney's fees, plus costs. The facts of the case, which are undisputed, are briefly stated in the trial court's decision, to wit: By virtue of a contract (Exh. A), entitled 'Consolidation of First Real Estate Mortgage and Deed of Assignment, executed on April 26, 1951, defendant Tomas de Vera is indebtedness to the plaintiff in the total amount of P127,312.24, guarantee by a real estate mortgage of the defendant's land, particular described in TCT No. 1631 of the Register of Deeds of Pasay City and in TCT No. 37641 of the Register of Deeds of the City of Rizal (now Pasay City), with the same terms and conditions embodied in the original Deed of Real Estate Mortgage, both dated February 28, 1947. Presumably, both document and the document Exh. A, were registered in the Registry of Deeds of Pasay City. Upon maturity of the defendant's obligation on March 15, 1956, and despite several demands, the defendant failed to pay the outstanding balance of his obligation in the amount of P.99,033.20 as of January 31, 1958, under the contract Exh. for which reason, the plaintiff filed a petition with the Sheriff of Pasay City on March 14, 1956 (Exh. B) to sell the properties subject to the Real Estate Mortgage executed and duly recorded in the Registry of Deeds on May 17, 1949, for the sum of P150,000.00. Another document, Assignment of Real Estate Mortgage, was executed on the same day, May 17, 1947, which two documents, were later on consolidated on April 26, 1951, in the document Exh. A. The Sheriff acting accordingly, sold at public auction the two parcels of land covered by TCT No. 1631 and No. 37641 to the highest bidder, which was the plaintiff creditor in this case Philippine Bank of Commerce, for the amount of P86,700.00 and the corresponding certificate of sale was issued by the Sheriff of Pasay City (Exh. C) dated April 16, 1956. The plaintiff now, thru the present action, seeks to recover fro the defendant the balance of his obligation after deducting the price of the land sold at public auction, of which, together with the interest up to January 31, 1958, there remained an outstanding balance of P99,033.20, as per the Statement of Account (Exhibit D). On the basis of the foregoing facts, the trial court rendered considered the decision above adverted to. The sole issue to be resolved in this case is whether the trial court acted correctly in holding appellee Bank en titled to recover from appellant the sum of P99,033.20 a deficiency arising after the extrajudicial foreclosure, under Act No. 3135,

as amended, of the mortgaged properties in question. It is urged, on appellant's part, that since Act No. 3135, as amended, is silent as to the mortgage's right to recover deficiency arising after an extrajudicial foreclosure sale of mortgage, he (mortgagee) may not recover the same. A reading of the provisions of Act No. 3135, as amended (re extra-judicial foreclosure) discloses nothing, it is true, as to the mortgagee's right to recover such deft efficiency. But neither do we find any provision thereunder which expressly or impliedly prohibits such recovery. Article 2131 of the new Civil Code, on the contrary, expressly provides that "The form, extent and consequence of a mortgage, both as to its constitution, modification and extinguishment, and as to other matters not include in this Chapter, shall be governed by the provisions of the Mortgage Law and of the Land Registration Law.' Under the Mortgage Law, which is still in force, the mortgagee has the right to claim for the deficiency resulting from the price obtained in the sale of the real property at public auction and the outstanding obligation at the time of the foreclosure proceedings. (See Soriano v. Enriquez, 24 Phil. 584; Banco de Islas Filipinas v. Concepcion decision e Hijos, 53 Phil. 86; Banco Nacional v. Barreto, 5 Phil. 101). Under the Rules of Court (See. 6, Rule 70) "Upon the sale of any real property, under an order for following sale to satisfy a mortgage or other incumbrance thereon, if there be a balance due to the plaintiff after applying the proceeds of the sale, the court, upon motion, should render a judgment against the defendant for any such balance for which, by the record of the case, he may be personally liable to the plaintiff, ...." It is true that this refers to a judicial foreclosure, but the underlying principle is the same, that the mortgage is but a security an not a satisfaction of indebtedness. As the trial court correctly observed: .... the real estate mortgage does not, in any way, limit nor minimize the amount of the obligation. Its only purpose is to guarantee the fulfillment of said obligation and, in case of default on the part of the debtor mortgagor, the credit mortgagee may execute the obligation on the real property give as a mortgage by way of judicial or extrajudicial foreclosure, according to our statutes and procedure. Therefore, by analogy and applying the same principle of equity, if after the sale the mortgaged property at public auction, there is a resulting deficiency in the application for the payment of the obligate of the debtor mortgagor to the creditor mortgagee, the latter may proceed in a proper action against the debtor mortgagor for the deficiency of the former's obligation. It is of no importance whether the buyer of the highest bidder in the public auction is the creditor itself.lawphil.net By following the defendant's theory, there may occur ridiculous situation in which, when the amount of the loan is very much bigger than the value of the mortgaged property, by abandonment or default of the debtor mortgagor his obligation may automatically be reduced in quantity, against the will and consent of the creditor mortgagee, and in prejudice of the latter, which situation is absurd and not contemplated by Act No. 3135, as amended. Let it be noted that when the legislature intends to foreclose the right of a creditor to sue for any deficiency resulting from the foreclosure of the security given to guarantee the obligation, it so expressly provides. Thus, in respect to pledges, Article 2115 of the new Civil Code expressly states: ".... If the price of the sale is less (than the amount of the principal obligation) neither shall the creditor be entitled to recover the deficiency, notwithstanding any stipulation to the contrary." Likewise, in the event of a foreclosure of a chattel mortgage on the thing sold in installments "he (the vendor) shall have no further action against the purchaser to recover any unpaid balance of the price. Any agreement to the contrary shall be void" (Article 1484, paragraph 3, ibid). It is then clear that in the absence of a similar provision in Act No. 3135, as amended, it can not be concluded that the creditor loses his right given him under the Mortgage Law and recognized in the Rules of Court, to take action for the recovery of any unpaid balance on the principal obligation, simply because he has chosen to foreclose his mortgage extra-judicially pursuant to a special power of attorney given him by the mortgagor in the mortgage contract. As stated by this Court in Medina v. Philippine National Bank (56 Phil. 651), a case analogous to the one at bar, the step taken by the mortgagee-bank in resorting to extra-judicial foreclosure under Act No. 3135, was "merely to find a proceeding for the sale, and its action can not be taken to mean a waiver of its right to demand the payment of the whole debt." WHEREFORE, finding no reversible error in the decision appealed from of the court a quo, the same is hereby affirmed with costs against the defendant-appellant. So ordered. Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L. and Paredes, JJ., concur. Dizon, Regala and Makalintal, JJ., took no part. Footnotes

1 Originally taken to the Court of Appeals, but certified to us by said court on July 27, 1961, because it involves only questions of law Cui vs Arellano University TITLE: Emetrio Cui v Arellano University CITATION: GR NO. L15127, May 30, 1961 | 112 Phil 135

FACTS:

Emetrio Cui took his preparatory law course at Arellano University. He then enrolled in its College of Law from first year (SY1948-1949) until first semester of his 4th year. During these years, he was awarded scholarship grants of the said university amounting to a total of P1,033.87. He then transferred and took his last semester as a law student at Abad Santos University. To secure permission to take the bar, he needed his transcript of records from Arellano University. The defendant refused to issue the TOR until he had paid back the P1,033.87 scholarship grant which Emetrio refunded as he could not take the bar without Arellanos issuance of his TOR. On August 16, 1949, the Director of Private Schools issued Memorandum No. 38 addressing all heads of private schools, colleges and universities. Part of the memorandum states that the amount in tuition and other fees corresponding to these scholarships should not be subsequently charged to the recipient students when they decide to quit school or to transfer to another institution. Scholarships should not be offered merely to attract and keep students in a school.

ISSUE: Whether or not Emetrio Cui can refund the P1,033.97 payment for the scholarship grant provided by Arellano University. HELD:

The memorandum of the Director of Private Schools is not a law where the provision set therein was advisory and not mandatory in nature. Moreover, the stipulation in question, asking previous students to pay back the scholarship grant if they transfer before graduation, is contrary to public policy, sound policy and good morals or tends clearly to undermine the security of individual rights and hence, null and void. The court sentenced the defendant to pay Cui the sum of P1,033.87 with interest thereon at the legal rate from Sept.1, 1954, date of the institution of this case as well as the costs and dismissing defendants counterclaim.