Republic of the Philippines

7th Judicial Region

MUNICIPAL TRIAL COURT
Minglanilla, Metro Cebu

SPS. DANIEL V. TORION &

MERIAM G. TORION,
Plaintiffs,

-versus- CIVIL Case No. 16-14

FOR: FORCIBLE
ENTRY/EJECTMENT, DAMAGES
AND ATTORNEY’S FEES
LUZVIMINDA PENAFORT,
Defendant.
x--------------------------------------------------/

MOTION TO INHIBIT

DEFENDANT, Luzviminda Penafort, through the undersigned counsel

unto this Honorable Court, most respectfully states that:

1. This Honorable Court rendered a decision dated 22 May 2018, the

dispositive portion of which reads:
“WHEREFORE, judgment is hereby rendered in favor of the plaintiffs
and against defendant as follows:
1. Directing defendant Luzviminda Penñ afort or any person acting for
and in her behalf or derive right from her to vacate the subject lots
known as Lot No. 10698, 10693 and 10697 situated at Linao,
Minglanilla, Cebu with the total area of FORTY SEVEN THOUSAND
THREE HUNDRED (47,300), covered by Tax Declaration Nos. 028-
44480-A, 028-44477-A and 028-47990-A and turned over
possession thereof to the plaintiffs upon finality of this decision
free from any structure or improvements;
2. Directing defendant Luzviminda Penñ afort to pay plaintiffs the sum
of Php 10,000.00 per month from the filing of this case on October
20, 2016 and every month thereafter until she shall vacate the
premises and turn over possession to the plaintiffs as just
compensation;
3. No pronouncement at to costs.

SO ORDERED.”

2. On 4 June 2018, defendant filed a Notice of Appeal within fifteen (15)

days from receipt of the above-quoted Decision. Defendant also paid
the full amount of the appellate court docket fees and other legal fees
and the sufficient supersedeas bond of Php 200,000.00 to complete
her appeal.
 3. On 5 June 2018, the Honorable Court issued an Order stating that the
notice of appeal has been filed within the fifteen (15)

4. Plaintiffs filed a Comment with Opposition to Defendant’s Notice of

Appeal with Motion to Expunge Defendant’s Notice of Appeal from
the Records.

5. On 6 June 2018, defendant received plaintiffs’ Motion for Issuance of

Writ of Execution which the defendant vehemently objects as to
allow such would be contrary to law. Thereafter, defendant filed an
Opposition (To Plaintiffs’ Motion for Issuance of Writ of Execution).

6.

The undersigned private complainants are ranking directors/officers of the xxx

SUBDIVISION HOMEOWNERS ASSOCIATION, INC. (xxx).

5. There have been a protracted political and socio-economic conflicts and

struggles between the aforementioned two (2) groups for many years now.

The said conflicts and struggles have escalated to litigations between and among the
herein parties before the Housing and Land Use Regulatory Board (HLRUB), the
National Water Resources Board (NWRB), the Office of the Provincial Prosecutor of
the Province of Rizal, the Municipal Trial Court of xxx, xxx, the Manila Water Co.,
Inc., and others.

6. The Honorable Presiding Judge xxx, in the abovecited Civil Case No. xxx, has
issued certain Orders, which are enumerated hereinbelow, favorable to the plaintiff
therein (xxx) and its leaders (i.e., the accused-appellants in these appealed criminal
cases).

The said Orders have adversely affected the organizational effectiveness of the
leadership of the undersigned private complainants, as among the incumbent leaders
of xxx, as well as the efficient and prompt delivery of socio-economic services by the
undersigned private complainants to the homeowners of the Xxx Subdivision, to wit:

(a) TEMPORARY RESTRAINING ORDER, dated xxx, 2015;

(b) ORDER OF PRELIMINARY INJUNCTION, dated xxx, 2015;

(c) SHOW-CAUSE ORDER, dated xxx, 2015; and

(d) ORDER, dated xxx, 2016, denying the special affirmative defenses raised by the
undersigned private complainants in their supplemental responsive pleading as the
co-defendants in the aforecited Civil Case No. xxx.

7. It will be recalled that in the Urgent Ex-Parte Manifestation filed by the

undersigned private complainants on xxx, 2015, the undersigned private
complainants, together with the their co-defendants in the aforecited Civil Case No.
xxx, had brought to the attention of the Honorable Judge xxx the xxx, 2015
Newsletter distributed by xxx (a ranking leader of the xxx, plaintiff in the said civil
case).

In the said Newsletter xxx created that impression in the minds of the homeowners,
including the undersigned private complainants, that the Honorable Presiding Judge

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 had, in a partial and biased manner, prejudged the guilt of the defendants in the said
pending civil case for indirect contempt, implying that the Honorable Judge was on
their side as the movants for indirect contempt in the said pending civil case.

(Please see attached manifestation and newsletter, marked as Exhs. “1” and “2”).

8. Lest the undersigned private complainants be misconstrued by this Honorable

Court, the undersigned private complainants most respectfully and humbly wish to
state that, in filing this “motion to inhibit and to re-raffle”, the undersigned private
complainants have no malicious intention of attributing any ill, unjust or
dishonest motive against the person, name, and reputation of the Honorable
Presiding Judge Xxx.

9. This motion is being filed by the undersigned private complainants, with all
humility and with all due respect to the Honorable Presiding Judge, solely as an
honest exercise by the private complainants of their constitutional right to
substantive and procedural due process of law.

The two (2) basic dimensions of due process of law are (a) the right of a litigant to a
state of peace of mind while his case is being litigated by a trial court, and (b) the
right of a litigant to assert the duty of a trial court to maintain a public image that
meets the strict perception-based standard of “the cold neutrality or an impartial
judge” or the “Caesar’s Wife Doctrine” in Legal and Judicial Ethics.

10. In support of this motion, the undersigned private complainants respectfully

cite the relevant case of “PEOPLE OF THE PHILIPPINES VS. HON. JUSTICE
GREGORY S. ONG, Chairman, Fourth Division, Sandiganbayan, and MRS.
IMELDA R. MARCOS”, G.R. Nos. 162130-39, May 5, 2006.

In the aforecited case, the petition for certiorari and prohibition with prayer for a
temporary restraining order and/or preliminary injunction filed with the Supreme
Court sought to nullify and set aside the resolutions issued by public respondent
Gregory S. Ong, Associate Justice and Chairperson of the Fourth Division of the
Sandiganbayan, in Criminal Case Nos. 17287 to 17291, 19225 and 22867 to 22870,
specifically:

(a) The Resolution dated October 15, 2003 denying the motion for inhibition filed by
petitioner People of the Philippines; and,

(b) The Resolution dated December 30, 2003 denying petitioner’s motion for
reconsideration.

The petitioner PEOPLE OF THE PHILIPPINES likewise prayed in its petition to the
Supreme Court that the said public respondent (Justice Ong) be permanently
enjoined from presiding over the trial and sitting in judgment in these ten
consolidated cases against private
respondent Ms. Imelda R. Marcos for violation of Section 3(h) of Republic Act No.
3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act.

The Supreme Court noted in the said case that the aforecited case related intimately
to Civil Case No. 0141 (forfeiture case) arising from the petition for forfeiture filed by
the Presidential Commission on Good Government on behalf of the Republic of the
Philippines (Republic) to recover from former President Ferdinand E. Marcos and
herein private respondent (collectively, respondents) funds alleged to be ill-gotten
and deposited under different Swiss bank accounts in the name of several foreign
foundations.

Disposing of the aforecited case, the Supreme Court cited Sec. 7, Rule 137 (inhibition
and disqualification of judges) of the Rules of Court:

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SECTION 1. Disqualification of judges. - No judge or judicial officer shall sit in any
case in which he, or his wife or child, is pecuniarily interested as heir, legatee,
creditor or otherwise, or in which he is related to either party within the sixth degree
of consanguinity or affinity, or to counsel within the fourth degree, computed
according to the rules of civil law, or in which he has been executor, administrator,
guardian, trustee or counsel, or in which he has presided in any inferior court when
his ruling or decision is the subject of review, without the written consent of all
parties in interest, signed by them and entered upon the record.
A judge may, in the exercise of his sound discretion, disqualify himself from sitting in
a case, for just or valid reasons other than those mentioned above. (Emphasis
supplied.)

The Supreme Court held therein that (a) due process necessarily requires that a
hearing is conducted before an “impartial and disinterested tribunal” because
unquestionably, every litigant is entitled to nothing less than “the cold neutrality of
an impartial judge” and (b) that “all the other elements of due process, like notice
and hearing, would be meaningless if the ultimate decision would come from a
partial and biased judge.”

THUS:

“X x x .
This rule enumerates the specific grounds upon which a judge may be disqualified
from participating in a trial. It must be borne in mind that the inhibition of judges is
rooted in the Constitution, specifically Article III, the Bill of Rights, which
guarantees that no person shall be held to answer for a criminal offense without due
process of law. Due process necessarily requires that a hearing is conducted before
an impartial and disinterested tribunal because unquestionably, every litigant is
entitled to nothing less than the cold neutrality of an impartial judge. All the other
elements of due process, like notice and hearing, would be meaningless if the
ultimate decision would come from a partial and biased judge.

Relevant to the present case is the second paragraph governing voluntary inhibition.
Based on this provision, judges have been given the exclusive prerogative
to recuse themselves from hearing cases for reasons other than those pertaining to
their pecuniary interest, relation, previous connection, or previous rulings or
decisions. The issue of voluntary inhibition in this instance becomes primarily a
matter of conscience and sound discretion on the part of the judge. It is a subjective
test the result of which the reviewing tribunal will generally not disturb in the
absence of any manifest finding of arbitrariness and whimsicality.

This discretion granted to trial judges takes cognizance of the fact that these judges
are in a better position to determine the issue of voluntary inhibition as they are the
ones who directly deal with the parties-litigants in their courtrooms. Nevertheless, it
must be emphasized that the authority for voluntary inhibition does not give judges
unlimited discretion to decide whether or not they will desist from hearing a
case. The decision on whether or not judges should inhibit themselves must be based
on their rational and logical assessment of the circumstances prevailing in the cases
brought before them.

X x x.”

FINALLY, the Supreme Court, in the aforecited case, held that (a) judges should
avoid “not just impropriety” in their conduct but even the “mere appearance” of
impropriety for appearance is an essential manifestation of reality”; (b) that it is

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essential that judges be “above suspicion”; and (c) that a judge has the avowed duty
to promote “confidence in the judicial system”.

THUS:

“X x x.
Public respondent is reminded of the principle that judges should avoid not just
impropriety in their conduct but even the mere appearance of impropriety for
appearance is an essential manifestation of reality. In insulating the Bench from
unwarranted criticism, thus preserving a democratic way of life, it is essential that
judges be above suspicion. It bears stressing that the duty of judges is not only to
administer justice but also to conduct themselves in a manner that would avoid any
suspicion of irregularity. This arises from the avowed duty of members of the
bench to promote confidence in the judicial system. Occupying as they do an exalted
position in the administration of justice, judges must pay a high price for the honor
bestowed upon them. Hence, any act which would give the appearance of
impropriety becomes, of itself, reprehensible.

X x x.”

WHEREFORE, premises considered, it is respectfully prayed that the Hon.

Xxx, Presiding Judge of this Honorable Court voluntarily INHIBIT himself from
adjudicating the instant appealed criminal cases and that the same be RE-RAFFLED
to another Branch of the Honorable Court.

FURTHER, the movants respectfully pray for such and other reliefs as may be
deemed just and equitable in the premises.

Xxx, xxx, March 21, 2016.

X x x.”

PRAYER

WHEREFORE, it is most respectfully prayed of this Honorable Court

that the hearing on 26 July 2018 be set to another date.

And all other equitable reliefs are prayed for.

Respectfully Submitted.

12 July 2018, Cebu City for Minglanilla, Cebu, Philippines.

LLEWELYN P. MENCHAVEZ-PORTA
Roll of Attorney No. 57391
2 Flr., WDC Bldg., P. Burgos & Osmeña St., Cebu City
nd

0922-6508158/032-2553029

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 llewelyn_menchavez@yahoo.com
IBP No. AR001974; 01-25-2018; Cebu City
PTR No. 186733; 01-25-2018; Cebu
MCLE V-0005686; 01-20-2015

The Clerk of Court

Municipal Trial Court
Minglanilla, Cebu

Copy furnished:

Atty. Paulino B. Labrado

Room 202, 2nd Flr., Aniceta Bldg
Osmena Blvd., Capitol Site
Cebu City 6000

Greetings!

Request and notice, respectively is hereby given that the foregoing motion will be
submitted for the consideration and approval of this Honorable Court on 19 July 2018 at 8:30 in
the morning without presence of movant’s counsel due to previous commitments.

Thank you.

LLEWELYN P. MENCHAVEZ-PORTA

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