Judge Enrique C. Asis meted with P20,000.

00 fine for gross misconduct and

dishonesty.

Note.The act of a judge in rendering a decision based on fabricated

transcript of stenographic notes definitely constitutes grave misconduct
which merits his dismissal. (Re: Report on the Judicial Audit Conducted in
the RTC, Branch 60, Barili, Cebu, 447 SCRA 246 [2004])

o0o

G.R. No. 133347. October 15, 2008.*

ABS-CBN BROADCASTING CORPORATION, EUGENIO LOPEZ, JR.,

AUGUSTO ALMEDA-LOPEZ, and OSCAR M. LOPEZ, petitioners, vs.
OFFICE OF THE OMBUDSMAN, ROBERTO S. BENEDICTO,**
EXEQUIEL B. GARCIA, MIGUEL V. GONZALES, and SALVADOR
(BUDDY) TAN,** respondents.

Criminal Procedure; Actions; Death of the Accused; The death of the

accused necessarily calls for the dismissal of the criminal case against him,
regardless of the institution of the civil case with it; Civil liability based
solely on the criminal action is extinguished, and a different civil action
cannot be continued and prosecuted in the same criminal action.
Consistent with People v. Bayotas, 236 SCRA 239 (1994), the death of the
accused necessarily calls for the dismissal of the criminal case against him,
regardless of the institution of the civil case with it. The civil action which
survives the death of the accused must hinge on other sources of obligation
provided in Article 1157 of the Civil Code. In such a case, a surviving civil
action against the accused founded on other sources of obligation must be
prosecuted in a separate civil action. In other words, civil liability based
solely on the criminal action is extinguished, and a different civil action
cannot be continued and prosecuted in the same criminal action.

_______________
* THIRD DIVISION.

** Deceased.

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Ombudsman; Appeals; Supreme Court do not review the Ombudsmans

exercise of discretion in prosecuting or dismissing a complaint except when
the exercise thereof is tainted with grave abuse of discretion.It is crystal
clear that we do not interfere with the Ombudsmans exercise of his
investigatory and prosecutory powers vested by the Constitution. In short,
we do not review the Ombudsmans exercise of discretion in prosecuting or
dismissing a complaint except when the exercise thereof is tainted with
grave abuse of discretion.

SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.

The facts are stated in the opinion of the Court.

Chavez, Miranda, Aseoche Law Offices for petitioners.

Gonzalez, Sinense, Jimenez & Associates for respondents Benedicto and

Gonzalez.

Escudero, Marasigan, Vallente and H.E. Villareal for respondent Tan

(deceased).

Dominador R. Santiago for the administratrix of the intestate Estate of the

late Roberto S. Benedicto.

Napoleon Gamo for respondent Garcia.

NACHURA, J.:

At bar is a petition for certiorari under Rule 65 of the Rules of Court

challenging the Joint Resolution1 dated May 2, 1997 of then Ombudsman
Aniano Desierto in OMB-0-94-1109, dismissing the complaint filed by
petitioners against private respondents, and the Order2 denying their motion
for reconsideration.

This case stems from an all too familiar chapter in Philippine history, i.e.,
the declaration of martial law by then President Ferdinand Marcos and the
simultaneous sequestration of not a few private corporations, including one
of the petitioners herein, ABS-CBN Broadcasting Corporation (ABS-CBN).

_______________

1 Rollo, pp. 36-54.

2 Id., at pp. 55-61.

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On April 18 and 26, 1994, petitioners Eugenio, Jr., Oscar and Augusto
Almeda, all surnamed Lopez, as officers and on behalf of ABS-CBN,
executed separate complaint-affidavits charging private respondents Roberto
S. Benedicto, Exequiel B. Garcia, Miguel V. Gonzalez, and Salvador
(Buddy) Tan with the following crimes penalized under the Revised Penal
Code (RPC): (a) Article 298 Execution of Deeds by Means of Violence or
Intimidation; (b) Article 315 paragraphs 1[b], 2[a], 3[a] Estafa; (c) Article
308 Theft; (d) Article 302 Robbery; (e) Article 312 Occupation of Real
Property or Usurpation of Real Rights in Property; and (f) Article 318
Other Deceits.

Individual petitioners complaint-affidavits3 uniformly narrated the

following facts:

1. The day after the declaration of martial law, or on September 22, 1972,
just before midnight, military troops arrived at the ABS-CBN Broadcast
Center in Bohol Avenue, Quezon City, and informed the officers and
personnel thereat of the seizure and closure of the premises by virtue of
Letter of Instruction (LOI) No. 1 issued by President Marcos ordering the
closure of all radio and television stations in the country.

2. LOI No. 1 authorized the Secretary of National Defense to take over or

control, or cause the taking over and control of all x x x newspapers,
magazines, radio and television facilities and all other media of
communications throughout the country. Consequently, a total of seven (7)
television stations owned and operated by ABS-CBN were closed down by
the government.4

_______________

3 Id., at pp. 62-99.

4 Television Stations

Channel Location

1. TV Channel 2 Metro Manila

2. TV Channel 4 Metro Manila

3. Batangas Channel 3 Batangas City

4. DZBC TV Channel 3 Baguio City

5. DYCB TV Channel 3 Cebu City

6. DYXL TV Channel 4 Bacolod City

 7. DXAW TV Channel 4 Davao City

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3. When it became apparent that petitioners would not be granted a permit

to re-open, ABS-CBN on October 31, 1972, terminated the services of all its
employees, giving each employee his/her retirement benefits. Corollary
thereto, sometime in November 1972, Eugenio Lopez, Jr., then president of
ABS-CBN, wrote then Secretary of National Defense, Juan Ponce Enrile,5
of their desire to sell ABS-CBN to the government. In that same month,
however, Eugenio Lopez, Jr. was arrested by the military, and detained at
Fort Bonifacio for almost five (5) years until his escape therefrom on
September 30, 1977.

4. Subsequently, after the proposal to sell ABS-CBN to the Marcos

government did not materialize, ABS-CBN started negotiations with then
Governor of Leyte, Benjamin Kokoy Romualdez, who expressed his
desire and intention to acquire the former.

_______________

Radio Stations

Frequency/Call Sign Location

1. DZXL (AM) 620 Khz Metro Manila

2. DZAQ (AM) 960 Khz Metro Manila

3. DZYK (FM) 101.1 Khz Metro Manila

4. DZMM (AM) 1000 Khz Metro Manila

 5. DZWL (AM) 830 Khz Metro Manila

6. DZMY (AM) 1160 Khz Metro Manila

7. DZYL (AM) 1340 Khz Metro Manila

8. DZBC (AM) 690 Khz Baguio

9. DZRI (AM) 1040 Khz Dagupan

10. DZXI (AM) 660 Khz Laoag

11. DZQM (AM) 1020 Khz Lucena

12. DZRB (AM) 750 Khz Naga

13. DZBL (AM) 690 Khz Legaspi

14. DYPL (AM) 670 Khz Iloilo

15. DYXL (AM) 870 Khz Bacolod

16. DYCB (AM) 570 Khz Cebu

17. DXJW (AM) 1010 Khz Zamboanga

18. DXCL (AM) 700 Khz Cagayan de Oro

19. DXAW (AM) 640 Khz Davao

20. DXLI (AM) 910 Khz Iligan

21. DXLC (AM) 660 Khz Cotabato

5 Now a senator of the Republic of the Philippines.

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However, the negotiations with Kokoy Romualdez in 1973 likewise did not
result in the sale and re-opening of ABS-CBN.

5. On June 6, 1973, the television and radio stations of Kanlaon

Broadcasting System (KBS) on Roxas Boulevard, Pasay City were
consumed by fire. KBS was the umbrella corporation of the Benedicto
Group of broadcasting companies, including Radio Philippines Network
(RPN),6 which operated TV Channel 9, the only television station allowed
to continue operating during the early years of the martial law regime.
Respondent Benedicto, then Philippine Ambassador to Japan, managed,
controlled, and was one of the principal stockholders of RPN.

6. On even date, both Benedicto and Alfredo Montelibano, who at that

time was Chairperson of the Board of Directors (BOD) of ABS-CBN, were
in Bacolod. Benedicto constituted Montelibano as his emissary to the
Lopezes, relaying his plan to temporarily use ABS-CBNs broadcast studios
in Quezon City, from which to operate TV Channel 9, for such period of
time as may be necessary to rebuild KBS burned studios.

7. On June 8, 1973, Montelibano met with other officers and executives of

ABS-CBN, including herein petitioners Oscar and Augusto Lopez,
informing them of Benedictos request. Oscar and Augusto, and the rest of
the ABS-CBN management team, strongly opposed the request. Eventually,
however, when Montelibano mentioned that Malacaang and Romualdez
had cleared said request, the possibility of a government-ordered
confiscation of ABS-CBN, and not least of all, the possible release of
Eugenio Lopez, Jr., petitioners Oscar and Augusto, as with the rest of ABS-
CBNs executives, acquiesced to Benedictos request.

8. Thus, at noontime on the same day, representatives of KBS headed by

Jose Montalvo arrived at the Meralco Building to finalize the proposed
arrangement with ABS-CBN. The transaction between ABS-CBN and KBS
is evidenced by a letter-agreement dated June 8, 1973, which reads in
relevant part:

_______________
6 As alleged in petitioners complaintaffidavits, KBS and RPN are treated
as one and the same entity, unless otherwise separately identified.

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This is to confirm the agreement arrived at between RPN and ABS-CBN to

the following effect:

1. Commencing on the date hereof, ABS-CBN hereby conveys to RPN by

way of lease its TV and radio equipment (excluding TV channels and radio
frequencies) and its premises at the ABS-CBN Broadcast Center, Bohol
Avenue, Quezon City (collectively called the leased facilities) listed in the
schedule attached hereto and marked as Annex A.

2. RPN shall pay ABS-CBN monthly rental as is reasonable compensation

for the use of the leased facilities. The amount of the rental shall be
determined after a discussion with Ambassador Roberto Benedicto.

3. The term of this lease shall commence on the date hereof and continue
for such reasonable time as may be normally necessary for the rehabilitation
of RPNs facilities unless an earlier period may be fixed by RPN and ABS-
CBN after discussion with Ambassador Benedicto.

4. RPN hereby assumes full and complete responsibility for the leased
facilities and shall be answerable for any and all losses and damages to such
facilities.

xxxx
6. Upon termination of this lease, RPN shall return the possession of the
leased facilities to ABS-CBN and vacate the same without the need of notice
or demand.

7. ABS-CBN, through its Chairman, Mr. Alfredo Montelibano, shall have

the right to select and designate the personnel (not to exceed 20 at any one
time) to maintain and operate all specialized TV and radio equipment.

xxxx

10. ABS-CBN shall have the right to enter the Broadcast Center at any
reasonable time during the term of this lease for the purpose of determining
compliance by RPN of the terms hereof.

xxxx

12. RPN shall not, without the prior written consent of ABS-CBN, sub-
lease the leased facilities or any part thereof nor shall any part be removed
from the premises except the equipment, which are intended for operation
the Broadcast Center in due course of operations.

9. Meanwhile, it appears that the parties were hard pressed to negotiate and
fix the monthly rental rate. Several attempts by

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Oscar to set up a meeting with Benedicto for the fixing of the monthly
rentals proved unsuccessful.

10. After more than four months of trying, a meeting between Oscar and
Benedicto finally materialized on October 31, 1973. At that meeting, the
discussion not only covered fixing of reasonable rentals for the lease of the
ABS-CBN studios, but likewise included the possibility of an outright sale.
11. Thereafter, the discussions and negotiations stopped as none of the
petitioners were able to meet anew with Benedicto who had supposedly
referred the matter to people above and the man on top.

12. Frustrated, then Senator Lorenzo Taada, as counsel for ABS-CBN, in

May 1976, wrote Benedicto demanding vacation of the ABS-CBN
Broadcast Center and payment of back rentals for the use of the ABS-CBN
studios and facilities.

13. In response, Senator Estanislao Fernandez, on behalf of Benedicto, met

with Senator Taada in June 1976. Another meeting took place between the
parties respective counsels which included respondent Gonzales, another
counsel for Benedicto. Despite these meetings, no agreement was reached
between Benedicto and ABS-CBN. On the whole, from June 8, 1973, the
time KBS occupied the ABS-CBN studios in Quezon City, no rental was
paid by the former to the latter.

14. In the years following until the Marcos government was toppled in
1986, the ABS-CBN stations were transferred to the National Media
Production Center (NMPC) headed by Gregorio Cendaa of the Ministry of
Information. Starting in January 1980, KBS, on a staggered basis,
transferred possession, control and management of ABS-CBNs provincial
television stations to NMPC. Some of the radio stations of ABS-CBN were
turned over to the governments Bureau of Broadcast, while some were
retained by KBS thru the Banahaw Broadcasting Corporation (BBC) and
Radio Philippines Network (RPN).

15. Parenthetically, during a military inventory in 1979-1980, and a visit

by ABS-CBN executives at ABS-CBNs radio transmitting stations in
Meycauayan, Bulacan, headed by petitioner Au-

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ABS-CBN Broadcasting Corporation vs. Office of the Ombudsman

gusto, on August 13, 1984, ABS-CBN properties and massive equipment

were found to be missing. In addition, the musical records and radio dramas
accumulated by ABS-CBN in a span of twenty-five (25) years and stored in
its library were now gone.

16. In June 1986, President Corazon Aquino, acting on the request of

ABS-CBN through Senator Taada, returned to ABS-CBN these radio and
TV stations on a gradual and scheduled basis.

As required by the Ombudsman, the respondents, except for Garcia, filed

their respective counter-affidavits,7 with Benedicto adopting that of
Gonzales, denying petitioners charges, and averring that:

1. The execution of the June 8, 1973 letter-agreement was a free and

voluntary act of ABS-CBN which agreed thereto fully expecting
remuneration in the form of rentals, thus:

2. RPN shall pay ABS-CBN monthly rental as is reasonable compensation

for the use of the lease facilities. The amount of the rental shall be
determined after a discussion with Ambassador Roberto Benedicto.

2. In that regard, respondent Gonzales, counsel for KBS, RPN and

Benedicto, participated in the negotiations and was present at three (3)
meetings for the fixing of rentals. Also in attendance were former Senator
Estanislao Fernandez, specially engaged to represent RPN and Benedicto,
and Senator Taada and petitioner Augusto for ABS-CBN.

3. Initially, the discussions centered on the possible formulas for the fixing
of rentals. Later on, however, before an agreement on the rental rate could
be reached, the discussions shifted to the possibility of an outright sale. The
discussions on the sale were expanded as various creditors of ABS-CBN had
made and presented claims before respondent Garcia, then Comptroller of
KBS-RPN.

4. However, the discussions were discontinued when then Secretary of

National Defense Juan Ponce Enrile reminded KBS of the
_______________

7 Rollo, pp. 106-119.

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sequestered status of ABS-CBN facilities such that arrangements undertaken

for the use and lease thereof should be taken up with the government.8

5. Meanwhile, in July 1974, Secretary Ponce Enrile authorized KBS,

acting on behalf of BBC, to make use of the ABS-CBN provincial stations
which were not covered by the June 8, 1973 letter-agreement. The
authorization was granted in connection with the increased undertakings
assigned by the Department of National Defense (DND) to KBS,
specifically, for the governments mass-media developmental peace and
order nationwide campaign.

7. Thereafter, in October 1977, RPN vacated the ABS-CBN studios and

turned over the properties to George Viduya, the general manager of the
government station GTV-4. Viduya continued operations of GTV-4 at the
ABS-CBN properties, after which, the properties were all delivered in 1979
to the NMPC headed by Cendaa. The provincial stations were delivered
and turned over on a staggered basis, with the DZRI station in Dagupan
handed over in 1979. The successive transfer of all ABS-CBN studios and
stations, in Quezon City and the provinces, were covered by receipts which
were collated by the law firm of respondent Gonzales retained by KBS for
that purpose.

8. The use of the ABS-CBN studios involved only three (3) juridical
entities, RPN, ABS-CBN and the government. The charges leveled by
petitioners in their complaint-affidavits merely point to civil liability as
specified in the letter-agreement itself:

4. RPN hereby assumes full and complete responsibility for the leased
facilities and shall be answerable for any and all losses and damages to such
facilities.

On the whole, the allegations of petitioners do not support the elements of

the crimes charged.

_______________

8 Letter dated June 28, 1976, id., at p. 151.

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9. Lastly, respondents invoke the grant of absolute immunity to Benedicto

as part of the Compromise Agreement in Sandiganbayan Civil Case No. 34
which states:

The Government hereby extends absolute immunity, as authorized under

the pertinent provisions of Executive Orders Nos. 1, 2, 14 and 14-A, to
Benedicto, the members of his family, officers and employees of the
corporations above mentioned, who are included in past, present and future
cases and investigations of the Philippine Government, such that there shall
be no criminal investigation or prosecution against said persons for acts,
omissions committed prior to February 25, 1986 that may be alleged to have
violated any penal law, including but not limited to Republic Act No. 3019,
in relation to the acquisition of any asset treated, mentioned or included in
this Agreement.
Expectedly, the petitioners in their joint reply-affidavit refuted respondents
counter-affidavits. Contrary to respondents allegations, petitioners
reiterated Benedictos over-all ploy, in conspiracy with the other
respondents who were officers of KBS and/or RPN, to use and occupy ABS-
CBN properties without paying compensation therefor. Petitioners maintain
that respondents grand scheme was to take-over ABS-CBN, albeit
ostensibly covered by the letter-lease agreement, giving the take over a
semblance of legality.

Thereafter, with the issues having been joined, the Ombudsman issued the
herein assailed Joint Resolution dismissing petitioners complaints. To the
Ombudsman, the following circumstances did not give rise to probable cause
necessary to indict respondents for the various felonies charged:

1. The Letter-Agreement of June 8, 1973 belie any illegal take-over of the

ABS-CBN complex.

While the Lopezes are now complaining that the letter-agreement was
virtually forced unto them thru intimidation, hence, the vitiated consent of
Mr. Montelibano, there is nothing however which the complainants adduced
to prove this allegation except their threadbare allegations of threats. On the
contrary, it appears that the Lopezes blessed the letter-agreement hoping that
their financial difficulties with respect to the affairs of the ABS-CBN and
their problem concerning the continued deten-

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tion of Eugenio Lopez, Jr. by the military, would at least be mitigated. x x x

It is thus clear that the ABS-CBN complex was freely leased by

Montelibano upon consultation with the Lopezes who entertained some
ulterior motives of their own which they expect would result from the
agreement, either directly or indirectly. Of course, the Lopezes may not have
realized some of these expectations (i.e., the rentals, the release of Eugenio,
Jr. from detention) but this does not change the fact that the parties consent
to the contract appears to have been freely given. Perforce, the complaint
under Article 298 of the Revised Penal Code of the Philippines must fail.

2. Other TV and radio stations were taken over pursuant to LOI 1-A, hence
no violations of Art. 312, 302 and 308 of RPC.

To the alleged violation of Art. 312 of the Revised Penal Code, the
respondents contended that their use of ABS-CBNs facilities other than
those included in the lease-agreement, was in fact with the authority of the
then Department of National Defense (DND). There is no denying that all of
the ABS-CBN properties including the provincial ones are under
sequestration pursuant to Presidential Letter of Instruction No. 1-A, issued
on September 28, 1972. It was under the strength of this Presidential Letter
of Instruction that KBS-RPN was authorized to enter, occupy and operate
the facilities of ABS-CBN. This was also confirmed by DND Secretary Juan
Ponce Enrile in his letter to RPN dated June 26, 1976. Unmistakably, KBS-
RPNs possession of the ABS-CBNs property other than those in the ABS-
CBN complex is primarily anchored on the authority pursuant to LOI 1-A.
With this apparent authority, this investigation can not see in any which way
how the respondents could have illegally taken over the properties of the
[petitioners], particularly those in the province; there is therefore no
convincing proof to support a charge under Article 312 of the Revised Penal
Code. It may come to mind that occupation of real property or usurpation
of real rights in property under Article 312 requires as one of its elements
the presence of violence against or intimidation of persons as a means in
securing real property or rights belonging to another. Plainly, this element is
not shown. The complainants may have felt intimidated by the sequestration
order, but it is in the nature of such Order to be coercive. It was an act
flowing from the martial law powers of then President Marcos.

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3. No unlawful taking as to justify charges for Robbery or Theft.

Robbery and Theft under Articles 302 and 308 of the Revised Penal Code
were also attributed by the [petitioners] against the respondents. From the
records, it is clear that KBS-RPN has juridical possession of the ABS-CBN
properties subject of this complaint; a right which can be validly set-up even
against ABS-CBN itself. It can be recalled that KBS-RPN was authorized to
enter, occupy and operate ABS-CBN facilities by virtue of the authority
granted by the President, pursuant to LOI No. 1-A. Aside, the Broadcast
Center itself was covered by the lease-agreement. Under these situations,
there is obviously no basis to charge the respondents for robbery and theft;
for these penal offense require as an element the act of unlawful taking or
asportation. Asportation is simply poles apart from the juridical possession
which KBS-RPN enjoyed over the properties.

4. No deceit was employed to gain possession of the Broadcast Center and

the provincial TV and radio stations.

In the prosecution for estafa under [Articles 315, paragraphs 2(a), 3(a) and
318] of the Revised Penal Code, it is indispensable that the element of
deceit, consisting in the false statement of fraudulent representation of the
accused, be made prior to, or, at least simultaneously with, the delivery of
the thing by the complainants, it being essential that such false statement or
fraudulent representation constitutes the very cause or the only motive which
induces the complainants to part with the thing. If there be no such prior or
simultaneous false statement or fraudulent representation, any subsequent
act of the respondent, however fraudulent or suspicious it may appear, can
not serve as basis for the prosecution of these crimes.
[From petitioners complaint-affidavits], it is very clear that the late Alfredo
Montelibano was the one who talked with Roberto Benedicto, preparatory to
the signing of the lease-agreement. As the complainants did not identify
exactly which constitute the deceitful act (or the intimidation) which could
have induced the Lopezes into accepting the lease agreement, in most
probability, the occurrences which vitiated their consent happened during
this preliminary discussion. Noticeably however, it is not Alfredo
Montelibano, the one who supposedly talked with Benedicto, who is
testifying on the alleged veiled threat or deceits, if there are. Precisely,
because he is already dead.

x x x [I]t is submitted that the Lopezes can not now testify on something
which are not derived from their own personal perception. The bottomline is
that what they are now trying to adduce, pertaining to the

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alleged deceits [or intimidation] attending the negotiation of the lease

agreement are purely hearsay. This is a matter which only Alfredo
Montelibano could testify competently.9

The Ombudsman saw no need to discuss the defenses of prescription and

immunity from suit raised by the respondents given his dismissal of the
complaint-affidavits on the merits. However, in a subsequent Order denying
petitioners Motion for Reconsideration of the Joint Resolution, the
Ombudsman lifted the Office of the Chief Legal Counsels ratiocination for
dismissing the complaint-affidavits, thus:

Incidentally, RPN has been identified as among the corporation in which

respondent Benedicto has substantial interests. In fact, it was one of the
subject matters of the Compromise Agreement reached by the government
and respondent Benedicto in Sandiganbayan Civil Case no. 34.

In that Compromise Agreement, for and in consideration of respondent

Benedictos cession of equities, and assignment of his rights and interest in
corporations therein listed, among them RPN, the government extended
absolute immunity to Benedicto, including officers of his corporations as
therein mentioned, such that there shall be no criminal investigation or
prosecution against said persons for acts or omissions committed prior to
February 25, 1986 that may be alleged to have violated any penal law,
including but not limited to Republic Act No. 3019, in relation to the
acquisition of any asset treated or included in this Agreement.

In effect, the People of the Philippines as the offended party in criminal

cases has waived its right to proceed criminally against Benedicto, et al., for
whatever crime they may have committed relative to, among others, the
alleged plunder of ABS-CBN properties. Again, whatever liability that
remains thereabout on respondents part is perforce only civil in nature.10

Hence, this recourse by the petitioners alleging grave abuse of discretion in

the Ombudsmans Joint Resolution and Order.

Before anything else, we note that on April 5, 1999 and June 13, 2000, the
respective counsel for respondents Tan and Benedicto, in

_______________

9 Id., at pp. 40-44, 47.

10 Id., at pp. 59-60.

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compliance with Section 16,11 Rule 3 of the Rules of Court, filed pleadings
informing the Court of their clients demise. Benedictos counsel filed a
Notice of Death (With Prayer for Dismissal)12 moving that Benedicto be
dropped as respondent in the instant case for the reason that the pending
criminal cases subject of this appeal are actions which do not survive the
death of the party accused.

Petitioners opposed the move to drop Benedicto as respondent, citing

Torrijos v. Court of Appeals13 which held that civil liability of the accused
survives his death; because death is not a valid cause for the extinguishment
of civil obligations.

Our ruling on this issue need not be arduous. The rules on whether the civil
liability of an accused, upon death, is extinguished together with his criminal
liability, has long been clarified and settled in the case of People v.
Bayotas:14

_______________

11 SEC. 16. Death of party; duty of counsel.Whenever a party to a

pending action dies, and the claim is not thereby extinguished, it shall be the
duty of his counsel to inform the court within thirty (30) days after such
death of the fact thereof, and to give the name and address of his legal
representative or representatives. Failure of counsel to comply with this duty
shall be a ground for disciplinary action.

The heirs of the deceased may be allowed to be substituted for the deceased,
without requiring the appointment of an executor or administrator and the
court may appoint a guardian ad litem for the minor heirs.

The court shall forthwith order said legal representative or representatives to

appear and be substituted within a period of thirty (30) days from notice.

If no legal representative is named by the counsel for the deceased party, of

if the one so named shall fail to appear within the specified period, the court
may order the opposing party, within a specified time, to procure the
appointment of an executor or administrator for the estate of the deceased
and the latter shall immediately appear for and on behalf of the deceased.
The court charges in procuring such appointment, if defrayed by the
opposing party, may be recovered as costs.

12 Rollo, pp. 395-399.

13 G.R. No. L-40336, October 24, 1975, 67 SCRA 394.

14 G.R. No. 102007, September 2, 1994, 236 SCRA 239, 255-256.

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1. Death of an accused pending appeal of his conviction extinguishes his

criminal liability as well as the civil liability based solely thereon. As opined
by Justice Regalado, in this regard, the death of the accused prior to final
judgment terminates his criminal liability and only the civil liability directly
arising from and based solely on the offense committed, i.e., civil liability ex
delicto in senso strictiore.

2. Corollarily, the claim for civil liability survives notwithstanding the

death of accused, if the same may also be predicated on a source of
obligation other than delict. Article 1157 of the Civil Code enumerates these
other sources of obligation from which the civil liability may arise as a result
of the same act or omission:

a) Law

b) Contracts

c) Quasi-contracts
d) x x x

e) Quasi-delicts

3. Where the civil liability survives, as explained in Number 2 above, an

action for recovery therefor may be pursued but only by way of filing a
separate civil action and subject to Section 1, Rule 111 of the 1985 Rules on
Criminal Procedure15 as amended. The separate civil action may be
enforced either against the executor/administrator or the estate of the
accused, depending on the source of obligation upon which the same is
based as explained above.

4. Finally, the private offended party need not fear a forfeiture of his right
to file this separate civil action by prescription, in cases where during the
prosecution of the criminal action and prior to its extinction, the private-
offended party instituted together therewith the civil action. In such case, the
statute of limitations on the civil liability is deemed interrupted during the
pendency of the criminal case, conformably with provisions of Article 1155
of the Civil Code, that should thereby avoid any apprehension on a possible
[de]privation of right by prescription.

Applying the foregoing rules, ABS-CBNs insistence that the case at bench
survives because the civil liability of the respondents subsists is stripped of
merit.

_______________

15 Now the 2000 Revised Rules of Criminal Procedure.

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ABS-CBN Broadcasting Corporation vs. Office of the Ombudsman

To begin with, there is no criminal case as yet against the respondents. The
Ombudsman did not find probable cause to prosecute respondents for
various felonies in the RPC. As such, the rule that a civil action is deemed
instituted along with the criminal action unless the offended party: (a)
waives the civil action, (b) reserves the right to institute it separately, or (c)
institutes the civil action prior to the criminal action,16 is not applicable.

In any event, consistent with People v. Bayotas,17 the death of the accused
necessarily calls for the dismissal of the criminal case against him,
regardless of the institution of the civil case with it. The civil action which
survives the death of the accused must hinge on other sources of obligation
provided in Article 1157 of the Civil Code. In such a case, a surviving civil
action against the accused founded on other sources of obligation must be
prosecuted in a separate civil action. In other words, civil liability based
solely on the criminal action is extinguished, and a different civil action
cannot be continued and prosecuted in the same criminal action.

Significantly, this Court in Benedicto v. Court of Appeals,18 taking

cognizance of respondent Benedictos death on May 15, 2000, has ordered
that the latter be dropped as a party, and declared extinguished any criminal
as well as civil liability ex delicto that might be attributable to him in
Criminal Cases Nos. 91-101879 to 91-101883, 91-101884 to 101892, and
92-101959 to 92-101969 pending before the Regional Trial Court of Manila.

Lastly, we note that petitioners appear to have already followed our ruling in
People v. Bayotas19 by filing a separate civil action to enforce a claim
against the estate of respondent Benedicto.20 The claim against the estate of
Benedicto is based on contractthe June 8, 1973 letter-agreementin
consonance with Section 5,21

_______________

16 See Rules of Court, Rule 111, Section 1(a).

17 Supra note 14.

18 416 Phil. 722; 364 SCRA 334 (2001).

19 Supra note 14.

20 Rollo, pp. 475-491.

21 SEC. 5. Claims which must be filed under the notice. If not filed,
barred; exceptions.All claims from money against the decedent, arising

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Rule 86 of the Rules of Court. Plainly, the dropping of respondents

Benedicto and Tan as parties herein is in order.

We now come to the core issue of whether the Ombudsman committed

grave abuse of discretion in dismissing petitioners complaint against the
respondents. We rule in the negative and, accordingly, dismiss the petition.

We cannot overemphasize the fact that the Ombudsman is a constitutional

officer duty bound to investigate on its own, or on complaint by any person,
any act or omission of any public official, employee, office or agency, when
such act or omission appears to be illegal, unjust, improper, or
inefficient.22 The raison dtre for its creation and endowment of broad
investigative authority is to insulate it from the long tentacles of officialdom
that are able to penetrate judges and fiscals offices, and others involved in
the prosecution of erring public officials, and through the execution of
official pressure and influence, quash, delay, or dismiss investigations into
malfeasances and misfeasances committed by public officers.23

_______________
from contract, express or implied, whether the same be due, not due, or
contingent, all claims for funeral expenses and expenses for the last sickness
of the decedent, and judgment for money against the decedent, must be filed
within the time limited in the notice; otherwise they are barred forever,
except that they may be set forth as counterclaims in any action that the
executor or administrator commences an action, or prosecutes an action
already commenced by the deceased in his lifetime, the debtor may set forth
by answer the claims he has against the decedent, instead of presenting them
independent to the court as herein provided, and mutual claims may be set
off against each other in such action; and if final judgment is rendered in
favor of the defendant, the amount so determined shall be considered the
true balance against the estate, as though the claim had been presented
directly before the court in the administration proceedings. Claims not yet
due, or contingent, may be approved at their present value.

22 1987 Constitution, Art. XI, Sec. 13(1).

23 Republic v. Desierto, G.R. No. 135123, January 22, 2007, 512 SCRA 57.

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ABS-CBN Broadcasting Corporation vs. Office of the Ombudsman

In Presidential Commission on Good Government (PCGG) v. Desierto,24

we dwelt on the powers, functions and duties of the Ombudsman, to wit:

The prosecution of offenses committed by public officers is vested

primarily in the Office of the Ombudsman. It bears emphasis that the Office
has been given a wide latitude of investigatory and prosecutory powers
under the Constitution and Republic Act No. 6770 (The Ombudsman Act of
1989). This discretion is all but free from legislative, executive or judicial
intervention to ensure that the Office is insulated from any outside pressure
and improper influence.

Indeed, the Ombudsman is empowered to determine whether there exist

reasonable grounds to believe that a crime has been committed and that the
accused is probably guilty thereof and, thereafter, to file the corresponding
information with the appropriate courts. The Ombudsman may thus conduct
an investigation if the complaint filed is found to be in the proper form and
substance. Conversely, the Ombudsman may also dismiss the complaint
should it be found insufficient in form or substance.

Unless there are good and compelling reasons to do so, the Court will refrain
from interfering with the exercise of the Ombudsmans powers, and respect
the initiative and independence inherent in the latter who, beholden to no
one, acts as the champion of the people and the preserver of the integrity of
public service.

The pragmatic basis for the general rule was explained in Ocampo v.
Ombudsman:

The rule is based not only upon respect for the investigatory and prosecutory
powers granted by the Constitution to the Office of the Ombudsman but
upon practicality as well. Otherwise, the functions of the courts will be
grievously hampered by innumerable petitions assailing the dismissal of
investigatory proceedings conducted by the Office of the Ombudsman with
regard to complaints filed before it, in much the same way that the courts
would be extremely swamped if they would be compelled to review the
exercise of discretion on the part of the fiscals or prosecuting attorneys each
time they decide to file an information in court or dismiss a complaint by
private complainants.25

_______________

24 G.R. No. 139675, July 21, 2006, 496 SCRA 112.

25 Id., at pp. 121-122.

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From the foregoing, it is crystal clear that we do not interfere with the
Ombudsmans exercise of his investigatory and prosecutory powers vested
by the Constitution. In short, we do not review the Ombudsmans exercise of
discretion in prosecuting or dismissing a complaint except when the exercise
thereof is tainted with grave abuse of discretion.

By grave abuse of discretion is meant such capricious and whimsical

exercise of judgment tantamount to lack of jurisdiction. The abuse of
discretion must be so patent and gross as to amount to an evasion of a
positive duty or a virtual refusal to perform a duty enjoined by law, or to act
at all in contemplation of law, as where the power is exercised in an arbitrary
and despotic manner by reason of passion or hostility.26 In this regard,
petitioners utterly failed to demonstrate the Ombudsmans abuse, much less
grave abuse, of discretion.

Apart from a blanket and general charge that remaining respondents herein,
Gonzales and Garcia, are officers of KBS/RPN and/or alter egos of
Benedicto, petitioners complaint-affidavits are bereft of sufficient ground to
engender a well-founded belief that crimes have been committed and the
respondents, namely, Gonzales and Garcia, are probably guilty thereof and
should be held for trial.27 Certainly, the Ombudsman did not commit grave
abuse of discretion in dismissing petitioners complaint-affidavits.

From the entirety of the records, it is beyond cavil that petitioners seek to
attach criminal liability to an unequivocally civil undertaking gone awry. As
pointed out by the Ombudsman, although the petitioners may not have
realized their expectations in entering into the June 8, 1973 letter-agreement,
such does not render their consent thereto defective.
The execution and validity of this letter-agreement is connected with
respondents culpability for the felonies charged as these include the element
of whether they had juridical possession of the

_______________

26 See Presidential Commission on Good Government v. Desierto, G.R. No.

139296, November 23, 2007, 538 SCRA 207, 216.

27 See Rules of Court, Rule 112, Section 1.

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ABS-CBN Broadcasting Corporation vs. Office of the Ombudsman

ABS-CBN properties. Essentially, petitioners claim they did not freely give
their consent to the letter-agreement. However, on more than one occasion,
petitioners have invoked the letter-agreements provisions, and made claims
thereunder.

First, petitioners met and discussed with respondents the fixing of the rental
rate for the ABS-CBN studios in Quezon City as provided in paragraph 2 of
the letter-lease agreement. Next, petitioners counsel wrote a demand letter
to respondents for the payment of rentals for the latters occupation and use
of ABS-CBN properties pursuant to the letter-agreement. Last and most
importantly, petitioners have made a claim against the estate of Benedicto
based on the same June 8, 1973 letter-agreement.

This action of petitioners clearly evinces their ratification of the letter-

agreement. As previously discussed, the civil liability of respondents
Benedicto and Tan hinging on the charged criminal acts herein was
extinguished upon their death. But other civil liabilities founded on other
sources of obligations under Article 1157 of the Civil Code may still be
prosecuted either against the estate of the deceased if based on contract,28 or
against the executors and administrators of the deceaseds estate if based on
quasi-delict.29

As petitioners have ratified the letter-agreement, even after the lifting of

martial law and the toppling of the Marcos government, and advanced the
validity of the letter-agreement in their claim against the estate of Benedicto,
they cannot, in the same breath, aver that respondents actuations in the
execution of the letter-

_______________

28 See Rules of Court, Rule 86, Sec. 5.

29 Rules of Court, Rule 87, Section 1.

SECTION 1. Actions which may and which may not be brought against
executor or administrator.No action upon a claim for the recovery of
money or debt or interest thereon shall be commenced against the executor
or administrator; but actions to recover real or personal property, or an
interest therein, from the estate, or to enforce a lien thereon, and actions to
recover damages for an injury to person or property, real or personal, may be
commenced against him.

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agreement were criminal in nature, or that the letter-agreement was more

ostensible than real and to insist on the prosecution of respondents for
felonies supposedly committed in connection with this ubiquitous letter-
agreement.30

In fine, the Ombudsman did not abuse his discretion in determining that the
allegations of petitioners against respondents are civil in nature, bereft of
criminal character. Perforce, he was correct in dismissing petitioners
complaint-affidavits.

WHEREFORE, premises considered, the petition is hereby DISMISSED.

Roberto S. Benedicto and Salvador Tan are dropped as private respondents
without prejudice to the filing of separate civil actions against their
respective estates. The assailed Joint Resolution and Order of the
Ombudsman in OMB-0-94-1109 are AFFIRMED.

_______________

30 See Articles 1390 (2), 1391, 1392, 1393 and 1396 of the Civil Code.

Art. 1390. x x x

(2) Those where the consent is vitiated by mistake, violence, intimidation,

undue influence or fraud.

Art. 1391. The action for annulment shall be brought within four years.

This period shall begin: In cases of intimidation, violence or undue

influence, from the time the defect of the consent ceases.

In case of mistake or fraud, from the time of the discovery of the same.

And when the action refers to contracts entered into by minors or other
incapacitated persons, from the time the guardianship ceases.

Art. 1392. Ratification extinguishes the action to annul a voidable

contract.

Art. 1393. Ratification may be effected expressly or tacitly. It is

understood that there is a tacit ratification if, with knowledge of the reason
which renders the contract voidable and such reason having ceased, the
person who has a right to invoke it should execute an act which necessarily
implies an intention to waive his right.

Art. 1396. Ratification cleanses the contract from all its defects from the
moment it was constituted. ABS-CBN Broadcasting Corporation vs. Office
of the Ombudsman, 569 SCRA 59, G.R. No. 133347 October 15, 2008