ABASS OLADOSU & ANOR v. SAMUEL OLOYODE OLAOJOYETAN & ANOR (2012)

ABASS OLADOSU & ANOR v. SAMUEL OLOYODE OLAOJOYETAN & ANOR

(2012)LCN/5495(CA)

In The Court of Appeal of Nigeria

On Thursday, the 28th day of June, 2012

CA/I/215/2006

RATIO

JUDGMENT: NATURE OF FUNCTUS OFFICIO

Ordinarily, once a Judge has delivered judgment in a case before him, he becomes functus officio. He lacks jurisdiction to review or vary the judgment except to correct accidental slips or clerical mistakes or some error arising from accidental slip or omission in order to give effect to its meaning or intention. A judgment that correctly represents what the court decided shall not be varied. Furthermore the operative part of a judgment shall not be varied and a different form substituted. See: Alao vs. A.C.B. Ltd. (2000) 6 SC (Pt.1) 27 @ 37; Adefulu vs. Okulaja (1998) 5 NWLR 435; Pearlman (Veneers) S.A. (Pt.) Ltd. Vs. Bartels (1954) 3 ALL ER 659; Bank of the North Ltd. Vs. Intra Bank S.A. (1969) 1 ALL NLR 91. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

JUDGMENT: OPTIONS AVAILABLE TO A PERSON TO WHOM JUDGMENT OBTAINED BY FRAUD IS OBTAINED AGAINST

Where a party is able to establish by any of the above means that the judgment against him was obtained by fraud, the remedy is that the judgment would be declared a nullity and accordingly set aside.

COURT: WHETHER A COURT OF COORDINATE JURISDICTION CAN REVIEW OR SIT ON APPEAL OVER ITS OWN JUDGMENT

A court of coordinate jurisdiction cannot review or sit on appeal over its own judgment save in the circumstances already referred to. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

JUSTICES

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria

Between

1. ABASS OLADOSU
(Substituted for Alhaji Lamidi Akanmu pursuant to the order of The Court of Appeal granted on 16th day Of October, 2008)
2. ALHAJI MUFUTAU AMINU
(For themselves and on behalf of Ilobu section of Woru Isale Ruling House of Baale Woru Chieftaincy in Egbedore Local Government Area of Osun State) Appellant(s)

AND

1. SAMUEL OLOYODE OLAOJOYETAN
(For himself and on behalf of Oguntobi section Of Woru Isale Ruling House of Baale Woru Chieftaincy in Egbedore Local Government Area Of Osun State)
2. ADELEKE OYELAMI
(For himself and on behalf of Woru Oke Ruling House of Baale Woru Chieftaincy in Egbedore Local Government Area of Osun State) Respondent(s)

CHINWE EUGENIA IYIZOBA J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Osun State sitting at Osogbo Judicial Division delivered on the 8th day of June, 2005 dismissing a suit instituted by the plaintiffs/appellants for a review of the Judgment of Osogbo High Court in Suit No.HOS/116/89: Lawani Siyanbola & 2 Ors v. Oba Jimoh Oyeyemi (Oludo of Ido-Osun) & Anor delivered on 10/12/92 on the ground that the said judgment was obtained by fraud.
This appeal concerns the Baale Woru minor Chieftaincy stool in Woru village Egbedore Local Government of Osun State. The facts giving rise to the appeal are as follows: Following a vacancy in the stool, one Aminu Adebayo, the father of the 2nd appellant herein was selected, appointed and installed as the Bale Woru. His selection, appointment and installation were challenged by the representatives of the two ruling houses of Bale Woru Chieftaincy in Suit No HOS/116/89. In a judgment delivered on 10/12/92, the learned trial Judge declared the selection, appointment and installation of Aminu Adebayo Bale Woru null and void and against the native law and custom regulating the selection, appointment and installation of Bale Woru. His appointment, selection and installation were consequently nullified and he was further restrained from parading himself as Bale Woru. There was no appeal against this judgment. In 2002, the 2nd appellant herein, the son of the deposed Bale Woru and one other instituted suit No HOS/161/2002 against the two ruling houses of Baale Woru Chieftaincy claiming inter alia a review of the judgment of Osogbo High Court in Suit no HOS/116/89 on the ground that the said judgment was obtained by fraud. After exchange of pleadings, the defendants/respondents filed a motion on notice for the striking out of the suit on grounds of lack of jurisdiction, res judicata and abuse of court process. The motion was vigorously opposed by the appellants. The learned trial Judge in a reserved ruling delivered on 8/6/2005 upheld the contention of the respondents and dismissed the appellants’ suit. The appellants dissatisfied with the ruling filed a notice of appeal containing seven grounds of appeal. Out of the seven grounds of appeal, the appellants in their brief settled by Awoniyi Alabi Esq. formulated two issues for the determination of this court. The issues are:
1. Whether the learned trial Judge was right in declining jurisdiction to entertain the Appellant’s suit on the grounds that
(i) The court lacks jurisdiction to review the judgment of Alao J. in suit No HOS/116/89; Lawani Siyanbola & 2 ors v. Oba Jimoh Oyeyemi (Oludo of Ido-Osun) & ors;
(ii) That the suit was caught by the doctrine of res judicata; and
(iii) That it therefore constitutes an abuse of court process? (Grounds I, III, V, VI, and VII)
2. Whether it was proper for the learned trial Judge to have decided the proof or non-proof of fraud on the basis of pleadings alone without having gone into full trial in the circumstances of this case? (Grounds II and IV).

The respondents in their brief of argument settled by Tunde Akande, Esq. distilled three issues for determination in this appeal. They are:
1. Whether the learned trial Judge was right in declining jurisdiction to entertain the Appellants’ suit.
2. Whether the learned trial Judge was right when (sic) the appellant suit was caught by the doctrine of res judicata.
3. Whether the mere averments in paragraph 37 – 39 of the amended statement of claim as contained in pages 35D – 35F of the record of proceedings constitute sufficient and explicit particulars of bribery as a fraud perpetrated by the 1st Respondent.
Learned counsel for the respondents in his arguments in the brief treated issues 1 and 3 together and issue 2 separately and thereby effectively reducing the issues to two just as the appellants. I shall briefly summarize the arguments of both sides.

The summary of the contention of the appellants is that the learned trial judge was wrong to decline jurisdiction on the ground that it will amount to sitting on appeal on the decision of a brother Judge of coordinate jurisdiction. Counsel argued that the basis of the new suit in the lower court is that the judgment in suit no HOS/116/89 was obtained by fraud and that there in now fresh evidence both to prove the fraud as well as to establish the true position of things to enable the court to come to a just and equitable decision. Counsel relying on the cases of Talabi v. Adeseye (1972) 8 – 9 SC 20 @ 40 and Anatogu v. Iweka (1995) 8 NWLR (Pt.415) 547 @ 586 paras A – G submitted that that the law is that if a judgment or order has been obtained by fraud, a fresh action will lie to impeach the judgment. Such fresh action, counsel argued is not the same as an appeal as the substance of the new suit and the old one are different. Counsel submitted that the learned trial Judge erred in his conclusion that the particulars of fraud relied on in the new suit have not been properly pleaded in a way to enable the court try and determine the suit. Counsel further submitted that there was sufficient pleading of the particulars of the fraud to sustain the case and that if the learned trial Judge had heard the case on its merits, evidence of the fraud would have been led to satisfy the court that the judgment was obtained by fraud which prevented the defendants in suit no HOS/116/89 from putting before the trial court minutes of the family meeting which would have established beyond doubt that the 2nd defendant in the case (the father of the 1st appellant herein) was a member of the Baale Woru Chieftaincy family. On the doctrine of res judicata, counsel submitted that it was inapplicable as the subject matter in the two cases and the parties are different. Counsel also submitted that there was no abuse of the process of the court as the review of the case on grounds of fraud being asked for is allowed by the rules and procedure of the court.
Mr. Akande for the respondents in his brief of argument in reply, called the attention of the court to the following documents:
1. Appellants’ claims in his amended statement of claim at pages 35E – 35F of the supplementary records;
2. The affidavit in support of the application for the dismissal of the suit at pages 23 and 24 of the record of appeal;
3. The judgment of Alao J. in suit No. HOS/116/89, Exhibit A attached to the application of the respondent at the lower court which judgment provided the platform for the ruling of Bada J (as he then was) appealed against at pages 38 51 of the record of appeal.
Counsel submitted that a perusal of the documents set out above will reveal that the lower court was right to have declined jurisdiction to “review the judgment of Osogbo High court in Suit No. HOS/116/89” as prayed for in paragraph 39(1) of the amended statement of claim at page 35E of the supplementary records because the two courts are courts of coordinate jurisdiction and one cannot review the judgment of the other. Further, counsel conceded that while a judgment obtained by fraud could be set aside, the fraud must have been established and the particulars clearly and explicitly pleaded in the statement of claim. Counsel submitted that the particulars of the alleged bribe were not explicitly stated in the amended statement of claim. The learned trial judge was therefore right in declining jurisdiction.
I have considered carefully the above points and other issues raised by the parties, it is necessary to set out the facts that gave rise to suit No.HOS/116/89 for a better understanding of the issues at stake here. The case was a minor chieftaincy dispute. The plaintiffs represented the two ruling houses of Woru Isale and Woru Oke for the Baale Woru Chieftaincy. Upon the demise of the late Baale, members of the two ruling houses met to nominate one of them to be appointed as the next Baale Woru. The 3rd plaintiff Oloyede Olaojoyetan was nominated and was presented to the Kingmakers who approved his nomination. The Kingmakers wrote to the 1st defendant Oba Jimoh Oyeyemi the Oludo of Osun who is the prescribed authority for Baale Woru Chieftaincy. Instead of appointing the 3rd plaintiff as the new Baale Woru, Oba Oyeyemi went ahead to handpick the 2nd defendant and installed him as the Baale Woru. The plaintiffs were aggrieved by this appointment which they claimed contravened their native law and custom relating to Baale Woru chieftaincy. They traced their genealogy to their ancestor Kankulola, a prince of Oyo who came to settle at Woru so that he could have children. He married Omosawo the daughter of Oludo of Iddo-Osun. Kankulola begat Oladodu. Oladodu married Aisaku and Asagere. The children of the two wives now constitute the two ruling houses of Woru Isale and Woru Oke. At the time of the original settlement, there were no Kingmakers. Kingmakers later emerged and are now four namely Jagun Woru who is the chief to place “akoko” traditional leaf on any Bale of Woru at the time of his installation, Ese Woru, Otun and Ikolaba. It was not the native law and custom of Woru people for Chief Oloriga of Iddo-Osun to place “akoko’ leaf on Baale Woru. The Baale plaintiffs claimed that the 2nd defendant the newly installed Woru is not related to them and is not a descendant of Kankulola as he claimed because he has eleven tribal marks as against the eight which members of the ruling family have. He lives at Ilobu whereas the plaintiffs live at Osogbo; that he is a customary tenant of the plaintiffs and not a Woru landlord; that he did not participate in the building of Woru palace; that his father worships at Erinle whereas the plaintiffs are Sango devotees. They consequently wanted his installation nullified.
The 2nd defendant now Baale Woru traced his genealogy to Baale Kankulola. He claimed that Asagere one of the two wives of Oladodu begat Olamise. Olamise begat Aromaragun who begat Dele, Falola and Osadiya. Osadiya begat Oke, his father. He claimed that after the invasion of Woru town by the Fulanis, part of the Woru community fled to Ilobu and part went to Osogbo to settle. The 2nd defendant belonged to the part that settled in Ilobu. He claimed to be related to the plaintiffs because they are from the same ancestor Kankulola. He conceded that there are two ruling houses for the Baale Woru chieftaincy but claimed that the ruling houses are Olamise ruling house consisting of those who fled to Ilobu to which he belongs and Lalakin comprising of those who fled to Osogbo to settle to which the plaintiffs belong. He claimed that when ever there is a vacancy in Baale Woru chieftaincy, the person to fill the vacancy is chosen at a family meeting. Members of Olamise ruling house living at Ilobu met and chose him the 2nd defendant to fill the vacancy. He claimed Woru Kingmakers were at the palace of Oludo of Ido Osun on the day of his installation and that they followed him home for merriment. He admitted that it is the function of the Kingmakers to approve the nomination of the ruling houses before the name of anybody appointed is sent to the prescribed authority for approval. He claimed his family at Ilobu consulted with the plaintiffs’ family at Osogbo but his candidature to fill the vacant stool was rejected by them. He claimed he is related to the plaintiffs because some of his children have facial tribal marks like the plaintiffs. He also claimed that the third plaintiff, Mufutau his son and Atoyebi are joint signatories to the family’s joint account at a bank at Idiseke Osogbo. He shares in the proceeds of sale of Baale Woru Family land at Woru. The learned trial judge considered the evidence of the plaintiffs and the defendants as stated above and the evidence adduced by other witnesses called by the parties and came to the following conclusions:
1. That the Baale Woru is a ruling chieftaincy with two ruling houses Woru Isale and Woru Oke as claimed by the plaintiffs.
2. That this accords with the traditional evidence relating to genealogy of the plaintiffs and the 2nd defendant in that the two houses consist of the children of the two wives of Oladodu, the son of Kankulola the founder of the first Baale of Woru. The two wives were Aisaku and Asagere. The 2nd defendant traced his genealogy to Asegere and that if it is true then he is related to the plaintiffs.
3. The customary law pertaining to the appointment of Baale Woru is that when there is a vacancy, the two ruling houses would meet to nominate a suitable candidate to fill the vacancy. The name of the nominee would be sent to the four Kingmakers of Woru for approval. Having approved it, the Kingmakers would forward the name to the first defendant the Oludo of Iddo Osun who is the prescribed authority. If it is approved by the Oludo, the nominee would then be installed by the Oludo on a date agreeable to both the ruling houses and Oludo.
4. The court rejected the claim of the first defendant, the Oludo of Iddo Osun and the prescribed authority that he has the right to handpick anybody he likes as Baale Woru
5. The second defendant not having been nominated by the appropriate ruling houses of Woru Oke and Woru Isale, his purported nomination by his own family at Ilobu and not even approved by the Kingmakers was irregular. Having been handpicked and installed by the first defendant, his appointment and installation was contrary to Section 22 (2) of the Chiefs Law and consequently a nullity.
This was the judgment of the court in suit No HOS/116/89 as it relates to the present appeal. In the suit HOS/161/2002 which is now before us on appeal, the appellants suing for themselves and on behalf of Ilobu section of Woru Isale Ruling House of Baale Woru Chieftaincy in Egbedore Local Government Area of Osun State are now seeking inter alia a review of the judgment in HOS/116/89 on the ground that it was obtained by fraud. The particulars of the fraud as set out in the statement of claim are as follows:
i. “The plaintiffs in suit No HOS/116/89 bribed and hired to their side the then secretary of Baale Woru family who could have given evidence in favour of the then defendants.
ii. By bribing and hiring the then Secretary of Baale Woru family to their side the then plaintiffs suppressed the tendering of relevant minutes of family meetings that could have established the 2nd defendant as authentic member of Baale Woru Chieftaincy Family.
iii. If the aforementioned minutes of family meetings were not suppressed and had been tendered the court would have reached a different conclusion.
iv. The relevant minutes of Baale Woru Family Meetings are now available and obtainable.”

In their motion on notice at page 22 of the record of appeal, the respondents herein prayed for an order striking out the suit for want of jurisdiction on the grounds that:
1. “this honourable court lacks the jurisdiction to review the judgment delivered on the 10th day of December, 1992 by Alao J. in suit No.HOS/116/89.
2. The issues raised in the pending suit had been decided in HOS/116/89.
3. The present suit constitutes an abuse of court process.”

In paragraph 8 of the affidavit in support of the motion at page 24 of the record of appeal, it was deposed:
8. “That the Defendant/Applicants informed me and I verily believe them that the plaintiffs are not related to them whatsoever which findings was upheld by Alao J. in the judgment delivered in suit No HOS/116/89.”
I undertook the tedious task of setting out in great detail the proceedings and processes filed in this appeal to show that there has been some misrepresentations and also for better understanding of the issues. Firstly, the plaintiffs in suit No HOS/161/2002 sued on behalf of Ilobu Section of Woru Isale Ruling House of Baale Woru Chieftaincy in Egbedore Local Government Area of Osun State. This is contrary to the claim of the 2ND defendant (the 2nd plaintiff’s/appellant’s father) in suit no HOS/116/89. In that suit the 2nd plaintiff appellant’s father Aminu Adebayo, 2nd defendant claimed that the two ruling houses are Olamise comprising settlers from Ilobu and Lalakin comprising settlers from Osogbo. The judgment of the court was that the two ruling houses are Woru Isale Ruling House and Woru Oke Ruling House which the appellants herein appear to have now adopted. Again contrary to the deposition in the respondent’s affidavit in support of the motion, the learned trial Judge in HOS/116/89 Ajao J. did not make a finding that the defendants in that case were not related to the plaintiffs. Rather, the finding of the learned trial Judge is that if the claim of the 2nd defendant was true that he is a descendant of Asegere, one of the wives of Oladodu then he is related to the plaintiffs. The learned judge did not determine the issue of the relationship of the appellants herein to the respondents. He left the matter open.
Having resolved these points, I now come to the issues for determination. On the contention of the appellant that the learned trial Judge was wrong in law to have declined jurisdiction to review the judgment of Alao J. in HOS/116/89 on the ground that it will amount to sitting on appeal over same, the case of Anatogu v. Iweka II (supra) is directly in point. There at page 573, Uwais J.S.C. referred to the dicta of James L.J. in Flower v. Llody (No.1). (1877) 6 Ch.D 297 @ 301 as to the course to be followed in a review case for fraud:-
“I agree with what has been said by the Master of the Rolls that in the case of a decree (or judgment as we call it now) being obtained by fraud there always was power, and there still is power, in the Courts of Law in this country to give adequate relief. But that must be done by proceeding putting in issue that fraud, and that fraud only. You cannot go to your adversary and say, ‘You obtained the judgment by fraud, and I will have a rehearing of the whole case’ until that fraud is established. The thing must be tried as a distinct and positive issue; ‘You’ the defendant or ‘You’ the plaintiff obtained that judgment or decree in your favour by fraud; you bribed the witnesses, you bribed my counsel, you committed some fraud or other of that kind.’ That would be tried like anything else by evidence properly taken directed to that issue and wholly free from and unembarrassed by any of the matters originally tried.” (Italics mine) i.e. Uwais J.S.C. (underlining and boldness mine for emphasis).
The above quotation is a complete answer to the issues involved in this appeal. A review of a judgment obtained by fraud is possible. The way to do it is to file a fresh suit with the objective of establishing the fraud. The pleading shall deal with nothing other than facts relating to the fraud. Evidence will then be led to establish the fraud. In that suit, the plaintiff must not raise any of the issues originally tried. This is where the appellant herein fell foul of the law. His entire pleading in his amended statement of claim is a rehash of all the matters originally tried in HOS/116/89. Only a small fraction of the 39 paragraph amended statement of claim was devoted to averments relating to the alleged fraud. It thus created confusion. It appeared as if the appellants were asking the learned trial Judge to sit on appeal against the judgment of his brother judge of coordinate jurisdiction. His Lordship was therefore right to hold that he had no jurisdiction to do so. The learned judge in his ruling at page 36 of the record observed:-
“In fact one judge has no power to set aside or vary the order of another Judge of concurrent or coordinate jurisdiction unless the judgment was obtained by fraudulent means. In the instant case a new suit was instituted by the plaintiffs in respect of a matter which had been properly adjudicated upon in Exhibit “A” i.e. suit No.HOS/116/89 against the same party. In view of the foregoing it is my view that the plaintiffs’ case as presently constituted is an abuse of court process. On the whole, the defendant’s application succeeded and the plaintiffs’ suit is hereby dismissed.”
The learned trial Judge is right that the plaintiff must first sue and establish by the appropriate order of a court of competent jurisdiction that the judgment was obtained fraudulently before coming to the court for an order to set aside or vary the judgment of the court. The appellant wanted the lower court in the same suit to deal with the matter of whether the judgment was obtained fraudulently and at the same time review or set aside the judgment. That clearly is a wrong procedure and can only lead to embarrassing confusion. The learned trial judge was right in declining jurisdiction. His Lordship should have however struck out the suit, the remedy requested for by the respondents in their application instead of dismissing same. The order of dismissal could work injustice on the appellants in view of the misrepresentation in the affidavit in support of the motion on notice that Alao J. in his judgment in suit No HOS/116/89 made a finding that the appellants are not related to the respondents.
In conclusion, I hold that this appeal lacks merit. The order of dismissal of the suit by the learned trial Judge is however substituted by an order striking out Suit No HOS/161/2002. Subject to the above, this appeal is dismissed as unmeritorious. The parties are to bear their own costs.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the privilege of reading before now the judgment of my learned brother, Chinwe E. Iyizoba, JCA just delivered. His Lordship has insightfully captured and ably resolved the issues in contention in this appeal.
The facts that gave rise to this appeal have been fully set out in the lead judgment. No useful purpose would be served by repeating them here. The main issue for determination in this appeal is whether the appellants’ Suit No. HOS/161/2002 seeking a review of a previous judgment of the High Court of Osogbo in HOS/116/89 on the ground that the judgment was obtained by fraud was competent.
Ordinarily, once a Judge has delivered judgment in a case before him, he becomes functus officio. He lacks jurisdiction to review or vary the judgment except to correct accidental slips or clerical mistakes or some error arising from accidental slip or omission in order to give effect to its meaning or intention. A judgment that correctly represents what the court decided shall not be varied. Furthermore the operative part of a judgment shall not be varied and a different form substituted. See: Alao vs. A.C.B. Ltd. (2000) 6 SC (Pt.1) 27 @ 37; Adefulu vs. Okulaja (1998) 5 NWLR 435; Pearlman (Veneers) S.A. (Pt.) Ltd. Vs. Bartels (1954) 3 ALL ER 659; Bank of the North Ltd. Vs. Intra Bank S.A. (1969) 1 ALL NLR 91.

However, where a judgment is obtained by fraud, the person against whom it is obtained has several options: (i) he may apply by way of motion to the court that gave the judgment to set it aside; (ii) he may appeal against the judgment; and (iii) he may file a separate action for the judgment to be set aside. See: Remawa vs. N.A.C.B. & F. C. Ltd & Anr. (2007) 2 NWLR (1017) 155.
Where a party is able to establish by any of the above means that the judgment against him was obtained by fraud, the remedy is that the judgment would be declared a nullity and accordingly set aside.

The court, whether it is the court that delivered the judgment or the appellate court cannot, after pronouncing a judgment a nullity on grounds of fraud, proceed to review the same judgment and render a different decision on the merits.
In the instant case the appellants specifically sought a review of the judgment in Suit No.HOS/116/89 on grounds of fraud. They proceeded in their pleadings to re-hash all the issues already tried in the former suit. In my respectful view they laboured under a misapprehension of the limits of an action of this nature. A court of coordinate jurisdiction cannot review or sit on appeal over its own judgment save in the circumstances already referred to.
Where the aggrieved party elects to file an action to challenge the judgment complained of on grounds of fraud, as elaborately stated by my learned brother in the lead judgment, what he is obliged to do is to establish the alleged fraud and how it impacted on the judgment and no more. He cannot go beyond establishing the fraud to delve into the merits of the case, which has already been decided. See: Anatogu & Ors, Vs. Iweka II (1995) 8 NWLR (415) 547 @ 573 – 574 H – B; (1995) 9 SCNJ 1.
In the present case what the appellants sought was not only a determination that the previous judgment was obtained by fraud but a consequential review of the judgment and the rendering of a different decision on the merits in its place. The court clearly had no jurisdiction to do.
For these and the more detailed reasons contained in the lead judgment, I also dismiss the appeal as lacking in merit. I abide by the order for costs.

MOORE A. A. ADUMEIN, J.C.A.: I had a preview of the judgment prepared by my learned brother – Chinwe Eugenia Iyizoba, JCA just delivered. I agree with His Lordship’s reasoning and conclusion that this appeal is devoid of merit and should be dismissed. I also dismiss it.
I abide by all the consequential orders in that lead judgment.

Appearances

Awoniyi Alabi Esq. with F. I. OyebadeFor Appellant

AND

Sheriff Raji Esq.For Respondent