ALEX OLADELE ELUFIOYE & ORS v. IBRAHIM HALILU & ORS
(1990)LCN/0102(CA)
In The Court of Appeal of Nigeria
Monday, the 15th day of January, 1990
Case Number: CA/L/38/89
RATIO
COURT PRACTICE: POSITION OF THE LAW WHERE THERE ARE CONFLICTING REPRESENTATIONS
The resolution of the issue is clearly important in the context of Foss v. Harbottle (supra). When the issue of representation was first raised by way of an objection, this Court, in a Ruling dated 9/5/89, observed per Akpata, J.C.A.:- “It is beyond question that there are at least two factions in the Union. This is vividly brought out by the fact that Chief Williams is representing the 1st, 3rd, 4th, 6th and 9th defendants, while Mr. Aka-Bashorun is representing the 2nd, 7th, 10th and 12th defendants. The plaintiffs who are also members of the Union are challenging the validity of the 1st – 11th defendants as officers of the Union. What Mr. Aka-Bashorun wants this Court to do by implication is to declare the faction represented by him as the authentic Union. In effect the faction he represents is trying, if I may say so, to gain in the roundabouts what it has obtained in the swings. It seems to me that where there are apparently two or more factions in any organisation such as a Trade Union, the question as to which of them is the authentic Union must first be resolved by due legal process in an appropriate forum before an application of this nature can best be dealt with by an Appeal Court…” The Court concluded, again per Akpata, J.C.A.:- ‘It seems to me that there is nothing wrong in Chief Williams and Mr. Aka-Bashorun announcing themselves as representing the 18th defendant, the Union. Stopping either of them from doing so is to recognise at this stage without justification one of the factions as the legitimate Union.’ Having thus exited from imminent danger, the Court proceeded to hear, on its merits, the objection as to the competency of the suit. While Chief Williams urged the lack of competency because the Union was not the plaintiff, Aka-Bashorun urged contra, also for the Union. Indeed, it was as if Aka Bashorun was playing the role of amicus curiae. Normally, the position should have been that even where there are conflicting representations, the most senior counsel leads, and speaks, for the team. I certainly have no doubt in my mind that what has transpired here is not good for the image of the profession, but whether or not it is permissible, I do not know. Be that as it may, and even without going into the merits, this situation appears to knock the bottom out of the objection of Chief Williams, since it raises the question as to whether he represents the Union or its majority, while Aka-Bashorun represents the Union and its minority. Although the issue is yet to be resolved by due legal process, yet and clearly Foss v. Harbottle (supra) cannot now be invoked without the issue of majority and minority being resolved one way or the other. To so hold at this stage would amount to argumentum abinconvenienti. Also, in view of the challenge to earlier decisions of this Court as ‘per incuriam,’ it would be unfair to rest the decision in this appeal on the above premise. PER AWOGU, J.C.A.
JUSTICES:
ADENEKAN ADEMOLA Justice of The Court of Appeal of Nigeria
EPHRAIM OMOROSE IBUKUN AKPATA Justice of The Court of Appeal of Nigeria
BOLARINWA OYEGOKE BABALAKIN Justice of The Court of Appeal of Nigeria
FRANCIS OLISA AWOGU Justice of The Court of Appeal of Nigeria
UMARU ATU KALGO Justice of The Court of Appeal of Nigeria
Between
- ALEX OLADELE ELUFIOYE
2. SEGUN EWEDEMI
3. ARIWODO OGECHI
4. FELIX OGBANDU
5. FRIDAY OSUYA
6. SEGUN ADESANYA
7. AKIN OKE
8. K. ARIYO
9. BASSEY E. BASSEY
10. GANIYU O. BELLO Appellant(s)
AND
- IBRAHIM HALILU
2. DAYO ADEMOYERO
3. JOHN EGBUCHIRI
4. DANIEL NWANYANWU
5. WAHAB O. ONAKOYA
6. SAMUEL OBI
7. RAPHAEL O. AKINNIRANYE
8. PETER IDAGHARA AGONO
9. LAMIDI OLANREWAJU
10. RALPH A. OBIECHI
11. KEHINDE BELLO
12. ADEAGBO A. TAIWO
13. UNION BANK OF NIGERIA LTD.
14. BANK OF CREDIT & COMMERCE INTERNATIONAL LTD.
15. ALLIED BANK OF NIG. LTD.
16. AFRICAN CONTINENTAL BANK LTD.
17. FIRST BANK OF NIGERIA LTD.
18. NATIONAL UNION OF BANKS, INSURANCE AND FINANCIAL INSTITUTIONS EMPLOYEES Respondent(s)
AWOGU, J.C.A. (Delivering the Leading Judgment): Two interlocutory appeals have reached this court from the decisions of Adeniji, J., and Segun, J., in the above suit. The first, dated 5th December, 1988, was in respect of the discharge of an ex-parte order in favour of accelerated hearing. The second, dated 7th February, 1989, was, after Segun, J., took over, the refusal to dismiss the claim in limine for reasons given in the motion dated 19th December, 1988. Both judgments were to have been delivered together but for the request that the second appeal be heard by the full court in view of the conflicting decision of this court with regard to the Rule in Foss v. Harbottle (1843) 2 Hare 461. As a result, the appeal in respect of the discharge of the ex-parte injunction had to be disposed of earlier. The present judgment by the full court is in respect of the second appeal.
The plaintiffs and the defendants are members of National Union of Banks, Insurance and Financial Institutions Employees (NUBIFE, for short), the other parties being their bankers. The plaintiffs brought an action against the defendants claiming, inter alia, the following reliefs:-
“(v) An injunction restraining the 1st – 11th defendants and each of them from:-
(a) performing any of the functions of the respective office to which he was appointed in November, 1985;
(b) parading himself as an officer of the 18th defendant Union or as a member of the National Executive Council thereof;
(c) operating any of the Bank Accounts of the 18th defendant Union in any Bank or from disposing of, receiving, negotiating or in any way dealing with any of the assets of the 18th defendant Union.
(vi) A mandatory injunction directing the 12th defendant. The General Secretary of 18th defendant Union – to summon and service a National Delegates’ Conference for the purpose of Constitution in lieu of the Delegates’ Conference which should have been summoned for November, 1988.
(vii) An injunction restraining the 13th, 14th, 15th, 16th and 17th defendants from honouring any cheques or orders for payment of money or for the disposal of or other dealing in any Security or assets of the 18th Defendant Union except and until a proper National Delegates’ Conference shall have been held and fresh officers of the 9th Defendant Union shall have been elected for that purpose by the 18th Defendant Union.”
Later, the plaintiffs also filed a motion for an Interlocutory Injunction restraining the 1st – 11th defendants and each of them from:-
“1. (a) performing any of the functions of the respective office to which he was elected in November, 1985;
(b) parading himself as an officer of the Union or as a member of the National Executive Council thereof;
(c) operating any of the Bank Accounts of the Union in any Bank or from disposing of, receiving, negotiating or in any way dealing with any of the assets of the Union;
2. An injunction restraining the 13th, 14th, 15th, 16th and 17th Defendants from honouring any cheques or orders for payment of money or for the disposal of or other dealing in any security or assets of the 18th Defendant Union except and until a proper National Delegates’ Conference shall have been elected for the purpose by the 18th Defendant Union pending the determination of the Motion on Notice filed herein or until further order.”
This was preceded by an ex-parte application, which was granted, and later, discharged. Thereafter, Chief Williams, S.A.N., for 1st, 3rd, 4th, 6th, 8th, 9th and 18th Defendants, gave notice of the following preliminary objections to the action:-
“(i) The court has no jurisdiction to entertain the action because, at common law an action of this nature does not lie at the instance of individual members of the 18th defendant union and the right of action conferred by Sec. 16(1) of the Trade Union Act, 1973, No. 31 is exercisable only at the instance of “any five or more members of the union.” Seven of the plaintiffs, to wit – the 2nd, 3rd, 4th, 6th, 7th, 9th and 10th plaintiffs have not subscribed to the funds of the 18th defendant union as prescribed by law and by Rule 4(1) of the Constitution of the Union.
(ii) In so far as the claims (or some of them) constitute legal proceedings instituted for the purpose of directly enforcing:-
(a) an agreement for the application of the funds of a trade union;
and
(b) an agreement binding on the National Executive Council in its relationship with the union;
the court has no jurisdiction to entertain such claims.
(iii) Even if (which is not conceded) the plaintiffs are qualified to sue under Sec. 16(i) of the Trade Union Act, 1973, they can only sue as such individuals in respect of a claim for an injunction to restrain any unauthorized or unlawful application of the funds of a trade union. Accordingly, the plaintiffs have no locus standi to claim any of the other reliefs contained in the originating summons.
In other words, it is not competent for the plaintiffs herein to invoke the jurisdiction of the court in this action.”
After hearing argument on the preliminary objection, Segun, J., dismissed it on February 7, 1989. Dissatisfied with the Ruling, the defendants represented by Chief Williams appealed against it on the following grounds:-
(i) The learned trial Judge erred in law in holding as follows:-
“The provisions of Rule 7(v) of the Constitution gave any member the right to initiate action at his own expense in connection with any breach of the Constitution. This to my mind is not only decisive but also conclusive of the issue of locus standi in this matter. I am bound in this case therefore to hold that the plaintiffs/respondents had a locus standi to institute this suit and apply for an order of injunction.”
Particulars of Error
(a) The provisions of the rules have no more than the force of a contract binding between or among the parties thereto. Such provisions can never, in law, over-ride the mandatory requirements of a statute such as are contained in Sec. 16 of the Trade Union Act.
(b) It is only the provisions of an enactment that are capable of derogating from the effect of Sec.16 of the Trade Union Act.
(ii) The learned trial Judge misdirected himself in holding as follows:
“The Constitution is registered under the Trade Union Act with the Registrar of Trade Union. Once this is done it has the force of law and forms part and parcel of the law of this nation. It was validly and completely registered and has become the article of faith among the union members. If it was duly registered quoestio cadit. See Nigerian Civil Service Union and Anor. v. O.C. Essien & Anor. (1985) 3 N.W.L.R. (Pt.12) 306 C.A.”
Particulars of Misdirection
(a) The registration of the rules of a trade union under the Trade Union Act does not give the registered rules “the force of law.”
(b) Even if (which is not conceded) the said rules do have the force of law they are invalid in so far as they are inconsistent with the provisions of the enactment contained in Sec. 16 of the Trade Union Act.
(c) The right of access to Courts of law is, on grounds of public policy, regulated by rules of law and not by private contract.
(d) In any event the rule 7(v) of the Union’s Constitution is ultra vires and invalid in so far as it is inconsistent with any rule of law such as the Rule in Foss v. Harbottle (supra).
(e) The case cited by the learned trial Judge in the passage quoted from his judgment is no authority for the proposition of law for which it was cited.
(iii) The learned trial Judge erred in law in holding (after citing 3 rules from the Constitution) that-
“The above three rules in the Constitution were blatantly violated by the defendants/applicants and the plaintiffs have an undoubted right to protect their interests.”
And later on, going further to hold that –
“It is the President of the Union together with the General Secretary and Treasurer who should run the accounts of the Union but right now only the President and the Treasurer are running it. Again Exhibit OE4 attached to the Originating Summons and issued to the 13th Defendant was signed by only two people instead of three. These are instances of the violation of the Constitution complained of by the Plaintiffs. ”
Particulars of Error
(a) At the stage of the proceedings when he made the pronouncements cited above, the learned Judge has heard no arguments whatsoever from the appellant’s counsel on the subject-matter of the said pronouncements.
(b) The pronouncements in question were a determination of some of the substantive issues raised in the Originating Summons before him.
(c) The questions raised by the Preliminary Objection of the Appellants before the learned trial Judge do not require a determination of or an adjudication upon the merits of the claims on the Originating Summons or upon the matters upon which he made the aforementioned pronouncements.
(d) In the premises, the decision of such issue at this interlocutory stage was contrary to the numerous guidelines laid down by this Court and by the Supreme Court.
(iv) The learned trial Judge erred in law in failing to observe that in (a) Oduduru v. National Union of Hotel & Personnel Services Workers (unreported) FCA/L/226/83 delivered on 30/3/83; (b) Nigerian Civil Service Union v. Essien (1985) 2 N.W.L.R. (Pt.12) 306 C.A., and were all decisions of this Court where the impact of Sec.16 of the Trade Union was neither raised nor considered or decided.
Further Particulars
(a) The High Court is only bound under the doctrine of stare decisis by propositions of law which form the basis of the judgment of this Court or of the Supreme Court. The High Court cannot be held bound by a proposition of law involving the effect of an enactment which was never considered by this Court.
(b) It is trite law that in exercising its appellate jurisdiction parties before this Court are bound by issues raised in their grounds of appeal and so, before the High Court can be held bound by a decision of this Court on a point of law, it must satisfy itself that that point was raised and determined by this Court.
(c) The first case in which this Court first adverted to Sec. 16 of the Trade Union Act was probably in the case of Imagie v. Sodade (unreported) CA/L/184/87 delivered on 24/1/89; [1989] 4 NWLR (Pt.114) 250.”
The dissatisfied defendants filed and exchanged briefs with the plaintiffs/respondents. Aka-Bashorun, counsel for 2, 7, 10-12 and 18 defendants, also filed a Brief on behalf of his clients. According to the defendants/appellants, the issue for determination are as follows:-
“(i) Whether it was competent for the learned trial Judge to have determined in his ruling Of/the Appellants’ Preliminary Objection that certain rules of the Constitution were blatantly violated by the said Appellants.
(ii) Whether the decision in Oduduru’s case was given per incuriam and, if so, whether it ought to be over-ruled.
(iii) Whether the Constitution of a trade union, when registered, has the force of law;
(iv) Irrespective of whether or not the Oduduru case was rightly decided, whether in the light of the provision of Sec. 16 of the Trade Union Act, 1973, it is permissible for ten individuals who allege that they are members of the union to sue for the reliefs claimed by the plaintiffs in this action.”
According to the Plaintiffs/Respondents, the issues are as follows:-
“(i) Can the right conferred on its members by Rule 7(v) of the Constitution of the Union be nullified by the Rule in Foss v. Harbottle (supra)?
(ii) Does Sec.16 of the Trade Union Act, 1973 affect the decisions given by the Court of Appeal in the Oduduru case or the Nigerian Civil Service Union case?”
The defendants represented by Aka-Bashorun did not set down any issues for determination.
As there is hardly any disagreement over the issue for determination in this appeal, I accordingly adopt the same. At the oral hearing, Chief Williams, S.A.N., for the Defendants/Appellants, adopted his brief. He referred to the four issues for determination and said that the first was whether the trial Judge should not have avoided the pronouncement complained of in his ruling on the preliminary objection when he said that certain rules of the constitution of the Union were blatantly violated by the said Defendants/Appellants. All the other three issues, he said, hinged upon Section 16(i) of the Trade Union Act, 1973, and the Rule in Foss v. Harbottle (supra). The combined effect of both was that the present Plaintiff/Respondents lacked locus standi in respect of the claim. He said that the provision in the Constitution of the Union to the effect that any member may sue was like enlarging the jurisdiction of a court of law, contrary to Section 16(i) and the Rule in Foss v. Harbottle (supra). He said that the only judgment of this Court which touched directly on 16(i) of the Act did not involve the application of the rule in Foss v. Harbottle (supra). Three other decisions of the Court however appear to be per incuriam. He referred to the decision in Oduduru where this Court held that a party was entitled to sue for any infringement if the Constitution of the Union so provided. In that decision, however, no consideration was given to the Rule in Foss v. Harbottle (supra). The other two decisions were Agbonikhena v. Egba (1987) 2 N.W.L.R. (Pt.57) 494 C.A., and the Nigerian Civil Service Union v. Essien (1985) 3 N.W.L.R. (Pt.12) 306 C.A. He urged the full Court to hold that all three decisions were per incuriam and to pronounce Section 16(i) as an exception to the Rule in Foss v. Harbottle (supra). He referred to the claim and submitted that only the Union or a majority of the members of the Union could sue, not a minority. The Plaintiffs in the instant appeal must therefore show some injury suffered individually by each of them and not an injury suffered by the Union. He further submitted that the rules of the Union do not have the force of law. Mrs. Obe, for the Plaintiffs/Respondents, adopted her brief of argument. She said that Section 16(i) of the Trade Union Act conferred locus standi on any five or more members of the Union to sue. The plaintiffs in the present action were ten members of the Union. She also contended that claims v(c) and (vii) were within the ambit of Sec. 16(i) and so the entire claim of the plaintiffs could not be said to be incompetent. She submitted that the agreement in Rules 7(v) of the Union’s Constitution took the issue of locus out of the Rule in Foss v. Harbottle (supra); Foss v. Harbottle (supra) did not deal with any clause similar to Rule 7(v) of the Union and so was not predicated upon such agreement. She referred to Oduduru, Agbonikhena and Essien and submitted that all three decisions of this Court supported her submission in respect of Rule 7(v) of the Union’s Constitution. She submitted that there was no law which provided that Foss v. Harbottle could not be excluded by agreement of the parties. She said that Section 16(i) was considered in Agbonikhena and could not therefore be said to be per incuriam. Foss v. Harbottle (supra) was also raised in Oduduru and Essien and so were not per incuriam. She submitted that this Court was therefore bound by its three previous decisions on the point. All three decisions, she said, were agreed that the contract of agreement was binding on the parties. She urged the Court to stand by its former decisions and to dismiss the objection.
Aka-Bashorun also relied on his brief filed out of time but in respect of which he sought and obtained the order of the Court to deem it as properly filed. He submitted that the right to join a Union in Nigeria was statutory. He referred to Section 37 of the 1979 Constitution which preserved the right to join a Trade Union. This being so, Rule 7(v) was binding on the members of the Union. He said that Foss v. Harbottle (supra) was a common law rule which could not therefore derogate from a constitutional right. He referred to Schedule (i) and Section 5(vii) of the Trade Union Act 1973 under which the constitutions of Trade Unions must comply with the Act itself. He said that, in consequence, they acquired the force of law. He submitted that the rule in Foss v. Harbottle (supra) did not apply to the claim before the lower court and urged the Court to over-rule the preliminary objection.
In his reply, Chief Williams compared what transpired in Re-Adadevoh and in Re-Williams to what has happened in Oduduru and Egba. In each case, the issue was not closely examined in the first case and so held to be per incuriam. He referred to Cheshire’s Private International Law, 10th Edn .. pp.212-214, on choice of law, which he said was permissible in terms of jurisdiction, but submitted that parties cannot agree as to the circumstances in which a court should, or should not, have jurisdiction. He cited in support Heyting v. Dupont (supra), p.1192. He said that if Rule 7(v) were allowed to stand, it would cover the field and render Section 16(i) of the Act meaningless. He said that Sec. 16(i) modified the common law hence even the Attorney-General of the Federation may sue thereunder. He referred to Emiola on Nigerian Labour Law, at pages 199-201. He said that the fact of registration of the Constitution of Unions cannot give the regulations of a Union the force of law. Judgment was thereafter reserved.
An aspect of this case which again calls for comment is the issue of who represents NUBIFE, now a divided house. The resolution of the issue is clearly important in the context of Foss v. Harbottle (supra). When the issue of representation was first raised by way of an objection, this Court, in a Ruling dated 9/5/89, observed per Akpata, J.C.A.:-
“It is beyond question that there are at least two factions in the Union. This is vividly brought out by the fact that Chief Williams is representing the 1st, 3rd, 4th, 6th and 9th defendants, while Mr. Aka-Bashorun is representing the 2nd, 7th, 10th and 12th defendants. The plaintiffs who are also members of the Union are challenging the validity of the 1st – 11th defendants as officers of the Union. What Mr. Aka-Bashorun wants this Court to do by implication is to declare the faction represented by him as the authentic Union. In effect the faction he represents is trying, if I may say so, to gain in the roundabouts what it has obtained in the swings. It seems to me that where there are apparently two or more factions in any organisation such as a Trade Union, the question as to which of them is the authentic Union must first be resolved by due legal process in an appropriate forum before an application of this nature can best be dealt with by an Appeal Court…”
The Court concluded, again per Akpata, J.C.A.:-
‘It seems to me that there is nothing wrong in Chief Williams and Mr. Aka-Bashorun announcing themselves as representing the 18th defendant, the Union. Stopping either of them from doing so is to recognise at this stage without justification one of the factions as the legitimate Union.’
Having thus exited from imminent danger, the Court proceeded to hear, on its merits, the objection as to the competency of the suit. While Chief Williams urged the lack of competency because the Union was not the plaintiff, Aka-Bashorun urged contra, also for the Union. Indeed, it was as if Aka Bashorun was playing the role of amicus curiae. Normally, the position should have been that even where there are conflicting representations, the most senior counsel leads, and speaks, for the team. I certainly have no doubt in my mind that what has transpired here is not good for the image of the profession, but whether or not it is permissible, I do not know. Be that as it may, and even without going into the merits, this situation appears to knock the bottom out of the objection of Chief Williams, since it raises the question as to whether he represents the Union or its majority, while Aka-Bashorun represents the Union and its minority. Although the issue is yet to be resolved by due legal process, yet and clearly Foss v. Harbottle (supra) cannot now be invoked without the issue of majority and minority being resolved one way or the other. To so hold at this stage would amount to argumentum abinconvenienti. Also, in view of the challenge to earlier decisions of this Court as ‘per incuriam,’ it would be unfair to rest the decision in this appeal on the above premise.
Before going further, Chief Williams challenged a statement in the Ruling of Segun, J., to the effect that the Appellants (other than NUBIFE) had violated the Constitution of the Union. As he rightly pointed out, a trial Judge should avoid a determination in limine of an issue for trial, as such preliminary determination may prejudice the substantive case. One of Chief Williams grounds of objection to the suit was stated in the Ruling as follows:
‘(2) That in so far as the claims (or some of them) constitute legal proceedings instituted for the purpose of directly enforcing:-
a) an agreement for the application of the funds of a trade union; and
(b) an agreement binding on the National Executive Council in its relationship with the Union, the Court has no jurisdiction to entertain such claims.’
This being so, the learned Judge had to examine the affidavit in support of the originating summons for the allegations so made in support, which formed the reasons for the objection to jurisdiction and stated as follows (at page 6):-
Rule 10 (iii) of the Constitution of the Union provides:-
Members of the National Executive Council, excepting full-time officials, shall be elected and hold office for a period of three (3) years and shall be eligible for re-election.’
Rule 15(vi) of the Constitution also provides:-
‘No candidates for any elective national office position in the Union shall be allowed to run for anyone office in the Union for more than two consecutive terms.’
Rule 16(iv) of the same Constitution also provides:-
‘He (that is the President of the Union) shall together with the General Secretary and the Treasurer operate the accounts of the Union in accordance with the provisions of the Constitution’
(words in brackets are mine)
The above three rules of the Constitution of the Union were blatantly violated by the defendant/applicants and the plaintiffs have an undoubted right to protect their interest.’
The above findings of ‘blatant violation’ as alleged in the affidavit in support of the originating summons enabled the learned Judge to hold that this being so, he had jurisdiction to entertain the claim. Unlike the situation in interlocutory applications settled on affidavit evidence and generally on disputed facts, which must not be tried twice over and so must avoid any determination which may prejudice the substantive case, the findings of fact here were necessary for a determination as to whether or not to strike out the claim.
They were not findings as would prejudice substantially the main trial, for the allegations of breach of the Constitution support some, but not all, of the claims of the plaintiffs against the defendants.
Similarly, Aka-Bashorun postulates, and the learned Judge appeared to have agreed with him, that as Trade Unions must be registered and their Constitutions comply with the provisions of the 1973 Act, membership of such Unions not only thereby becomes constitutional right under Sec. 37 of the 1979 Constitution, but also the very registration of the Constitution of the Union gives it the force of law. This proposition of law calls for scrutiny. The learned Judge in his Ruling, put it thus:-
“The constitution is registered under the Trade Union Act with the Registrar of Trade Union. Once this is done it has the force of law and forms part and parcel of the law of this nation.”
Nothing can be farther from the truth. It is as if in a bid to bring sanity into Trade Unionism in Nigeria by the 1973 Act, such Unions thereby acquired a higher status under the law of the land than other associations based on ethnicity, college/university attendance, or even, social associations. By this interpretation, the constitution of NUBIFE would become subject to judicial notice. This cannot be so, and whether or not Rule 7(v) of the Constitution of NUBIFE can stand vis-a-vis the Rule in Foss v. Harbottle (supra) must find an anchor elsewhere, not on its sacrosanctity. Having disposed of these two points, I now go into the question of per incuriam raised by Chief Williams. The phrase, according to Evershed, M.R., in Morelle Limited v. Wakeling (1955) 1 All E.R. 708 at 718, means that:-
“As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong.”
In other words, it is euphemism for judicial ignorance. Like the Emperor who refuses to accept that he was transparently naked in his new robes, a learned Judge must not admit being ignorant! At the lower court, reliance was placed on the decision of this Court in Oduduru v. National Union of Hotels etc. (FCA/L/126/83 of 13/3/85 (unreported), Nigerian Civil Service Union v. Essien (1985) 3 N.W.L.R. (Pt.12) 306 C.A., and Agbonikhena v. Egba (1987) 2 N.W.L.R. (Pt.57) 494 C.A. These decisions support the view that where a Union by its constitution confers a right to sue on a member, the Rule in Foss v. Harbottle (supra) cannot apply. As Ademola, J .C.A., said of a similarly worded Union rule is Oduduru (supra):-
“There is the Constitution of the Union which in Article 5 Rule 5, as noted in the submission of learned counsel for the Appellant in his brief, conferred on every member of the Union the right of action at the member’s expense in connection with any breach of the Constitution of the Union. This, to my mind, is not only decisive but also conclusive of the issue of locus standi in this matter.”
Although all the subsequent decisions of the Court appear to follow Oduduru it is the contention of Chief Williams that the Rule in Foss v. Harbottle (supra) was not fully discussed in all the decisions and, to that extent, the decisions were per incuriam. In addition, while this Court dealt with the provisions of Section 16(1) of the Trade Union Act in Imagie & Ors. v. Sodade & Ors. (1989) 4 N.W.L.R. (Pt.114) 250, the case did not involve a consideration of the Rule in Foss v. Harbottle (supra).
A careful reading of Oduduru (supra) will no doubt show that Foss v. Harbottle (supra) was brought into play in the argument of both counsel in the case, after which, Ademola, J.C.A., said (see page 12):-
“The issue in this appeal is a simple one. Is the Judge right to say here that the Appellant have no locus standi to bring the action? Put differently, is the rule in Foss v. Harbottle (supra) applicable at all after a finding by him that the action of the Union Executive in passing a resolution to dissolve itself at its Oguta Meeting is ulta vires of the 1st Respondent Constitution and also the meeting at Kano not being in accordance with the Constitution of the Union…Asquith, L.J., put it very well in Edwards & Anor. v. Halliwell & Ors. (supra) and I agree with him thus:-
“When in circumstances such as I have described a remedy is sought by an individual, complaining of a particular act in breach of his rights and inflicting particular damage on him, it seems to me the principle in Foss v. Harbottle (supra), which has been so strongly relied upon by the defendants, does not apply either by way of barring the remedy or supporting the objection that the action is wrongly constituted because the Union is not a plaintiff.”
It is therefore difficult for me to hold that Foss v. Harbottle (supra) was not considered in Oduduru (supra). Then followed Essien (supra), a few months after Oduduru. Although Foss v. Harbottle (supra) was not cited, the Court, per Nnaemeka-Agu, J.C.A. (as he then was), said (at page 315):-
“This is an agreement which the members of the Union have reached among themselves, inspite of Section 6(6)(b) of the Nigerian Constitution. In FCA/L/226/83, Benson Oduduru & Anor. v. National Union of Hotels etc. & Ors. of the 13th March, 1985 (unreported), this Court was faced with the problem of construing a similar provision in the constitution of another Union. It unanimously held (per Ademola, J.C.A.) as follows:-
‘there is the Constitution of the Union which in Article 5 rule 5, as noted in the submission of the learned counsel for the appellant in his brief, conferred on every member of the Union a right of action at the member’s expenses in connection with any breach of the Constitution of the Union. This to my mind is not only decisive but also conclusive of the issue of locus standi in this matter.’
I am bound by this opinion until it is reversed by the Supreme Court.”
By approving of the decision in Oduduru (supra), the rule in Foss v. Harbottle (supra) was similarly considered and approved, albeit sub silentio. Oduduru and Essien were followed, two years later, by Agbonikhena v. Egba (1987) 2 N.W.L.R. (Pt.12) 494. Agbonikhena is more akin to the instant appeal. Counsel for the parties relied upon, and against, the rule in Foss v. Harbottle (supra), although Kolawole, J.C.A., did not pronounce upon it. He did, however, refer to the similar situation in Oduduru (supra), and said (at page 506):
“Article 5(8) is similar to article 5 rule 5 considered in the case of Benson Oduduru & Anor. v. National Union of Hotels etc. & Ors. FCA/L/226/88 of 13/3/85 unreported. There, Adenekan Ademola, J.C.A., held as follows:-
‘This to my mind is not only decisive but also conclusive of the issue of locus standi in this matter.’
It is my view that having regard to the provisions of article 5(8) of the Constitution of the 9th appellant Union the Respondents who are members of the 9th appellant Union have locus standi to institute the present proceeding against the defendants.”
By approving of the decision in Oduduru (supra), Kolawole, J.C.A., cannot be said to be unaware of Foss v. Harbottle (supra), which counsel cited and which he considered in his summation of the address. This fact was made a ground of appeal in Uzor & Ors. v. Nigerian Stores Workers Union (1973) 9 – 10 S.C., 35, where Kassim, J., heard argument on Foss v. Harbottle (supra) but did not pronounce on it in his judgment. To this, Udo Udoma, J.S.C., said (at page 53):-
“The whole matter might well have been treated as the internal affairs of the Nigerian Workers Council on the authority of Foss v. Harbottle (supra) which the members could easily have resolved internally among themselves. In his ruling, the learned trial Judge appeared to have drawn heavily from Edward & Anor. v. Halliwell & Ors. (1950) 2 All E.R. 1064 in which it was held that as the matter in question in that case was not a mere irregularity in the internal management of the Union concerned, but a matter of substance, tinctured with oppression, the court would grant the plaintiff therein relief, if it was proper to do so, as distinct from the decision in Foss v. Harbottle (supra). But in relying on this authority, the learned trial Judge over-looked the fact that in that case, to start with, the proper parties were before the court.”
Kolawole, J.C.A. may not have dealt with and pronounce upon the Rule, but it is difficult to agree that Foss v. Harbottle (supra) was not considered in all three decisions of this Court considered above. This, then, brings me to a consideration of Section 16(1) of the Trade Union Act, 1973, which states as follows:
“Without prejudice to the right of any person having a sufficient interest in the relief sought to apply for an injunction to restrain any unauthorised or unlawful application of the funds of a trade union, an injunction restraining any such application of the funds of a trade union may be granted by the appropriate High Court upon the application of the Attorney-General of the Federation or of the Registrar, or of any five or more members of the Union.”
Chief Williams submitted that this provision enables not less than five members of the Union to sue notwithstanding the Rule in Foss v. Harbottle (supra), thereby confirming the fact that there is no way whereby any agreement of the Trade Union can be construed to alter or abolish the Rule in Foss v. Harbottle (supra). The power to sue under the section, he submitted, was so conferred because the plaintiffs would otherwise have lacked the necessary locus standi or competence to prosecute the claim. As he put it in his brief:-
“If, therefore, Section 16(1) of the Trade Union Act defines or limits the scope of area of permissible exclusion of the Rule in Foss v. Harbottle (supra), is it competent for a trade union to enlarge that scope or area by an agreement between or among themselves? The question only has to be posed for the answer (in the negative) to be seen. That being so, it is respectfully submitted that the Oduduru line of cases must be regarded as having been decided per incuriam. This is because the ratio decidendi or those cases is that what is contained in one of the rules of the constitution of the Union enables any member of the Union to sue the Union in respect of any matter concerning a breach of the provisions of the Constitution which is clearly an enlargement of the scope of Section 16(1) of the Trade Union Act in relation to the operation of the Rule in Foss v. Harbottle (supra).”
In my view, there is fallacy in this argument. In the first place, as argued by the plaintiffs/respondents, no provision similar to Rule 7(v) of the Constitution of the 18th Defendant was in issue in Foss v. Harbottle (supra). Nor do the Articles and Memorandum of Companies in Nigeria provide for the equivalent of Rule 7(v). Indeed, it is the absence of such a provision that, no doubt, gave birth to the Rule in Foss v. Harbottle (supra), which was a Rule based on common sense and natural justice. Secondly, to read the Rule in Foss v. Harbottle (supra) into the provisions of Section 16(1) of the Act is erroneous. I say so because there is no interpretation of the Rule throughout the Commonwealth where, without being a member of a Company or Union, a third party (such as the Attorney-General of the Federation or the Registrar of Trade Unions) can sue even in the limited situation of prevention of wrongful dissipation of Union funds, as is the case under Section 16(1). To my mind, the provision is peculiar to Nigeria, having regard to the manner in which in the past the funds of Unions were used to promote interests other than those of the Union itself. For this reason, therefore, even if the Union connives, the Registrar of Trade Union or the Attorney-General of the Federation – third parties – may seek an injunction to stop the squandermania. Similarly, no less than five members of the Union may do so. I do not therefore agree that Section 16(1) of the Trade Union Act contemplated the common law rule in Foss v. Harbottle (supra) when it so provided. Indeed, it is for this reason that Section 16(1) is qualified by the provision, “Without prejudice to the right of any person having a sufficient interest in the relief sought,” which clearly limits the intervention by either the Registrar of Trade Unions or the Attorney-General of the Federation. Although the section was not considered in the three decisions under review, it was hardly applicable. And even if it does, no less than nine plaintiffs in the instant appeal are challenging the Union (i.e. NUBIFE) and, in addition, not all the claims can be said to be caught by the provisions of Section 16(1) of the Act. This is not to say that Chief Williams, this time with the advantage of foresight, not hindsight, is raising a false alarm. I can see the situation in which a minority shareholder, with a claim that has nothing to do with his ‘little’ shareholding, seeks to hold a Company or Union to ransom and prevent the payment of wages to employees who are not shareholders, by suing in defiance of the Rule in Foss v. Harbottle (supra). Indeed, in the course of the protracted hearing of this appeal, Chief Williams did make the point that if only the funds of the Union are unaffected so that the workers may be paid their due wages, the luxury of the present legal disquisitions would perhaps be more palatable to all concerned. I am totally in agreement. Still, if NUBIFE chooses, like the proverbial seamless garb, to be the subject of casting of lots as to who controls it, then the workers of NUBIFE must not only enjoy but abide by the result of the game, though side-lined. In sum, the objection to the competency of the suit must fail, and is hereby dismissed. The trial will, once again, resume before Segun, J. As all parties to the present appeal, save the Bankers, are members of NUBIFE.
I make no order as to costs.
ADEMOLA, J.C.A.: I have read the judgment just read in its draft form. I agree with its conclusions.
There is no question that the decisions of this Court beginning with the Oduduru v. National Union of Hotels etc., have been given per incuriam. In fact what that case established is that where allegations of infringement of constitutional right of a member of an organisation is made, an exception to the rule in Foss v. Harbottle (supra) came in. That is what the decision of Asquith, L.J., in Edward v. Halswell (1950) 2 All E.R. p.1064 is all about. I applied that case in the lead judgment of this Court in Oduduru v. National Union of Hotels etc., case. In the instant case the allegation is about infringement of parts of the Union Constitution by the officials of the Union. What dearer example of injustice to some members of the Union can be alleged? To resort to the rule in Foss v. Harbottle (supra) to the effect that such allegation is mere irregularity that can be rectified by the members of the Union itself is to take the attitude of an Ostrich that buries its head in the sand and leaves the other parts of its body exposed. It is a situation of mere pretence and hypocrisy.
Section 6(6)(b) of the suspended Constitution of Nigeria of 1979 guarantees an unimpeded right of access to a Court of Law where a person’s right is abridged. Whereas in this case, the constitution of the Union confers such a right on its members, a submission that such members have no right to come to court is to my mind untenable. In our law that situation must be recognized for what it is, namely an exception to the rule in Foss v. Harbottle (supra).
AKPATA, J.C.A.: This is an intricate appeal. The problem it poses is, in the main, whether Rule 7(v) of the Constitution of the 18th respondent (NUBIFIE) amounts to giving the court jurisdiction which it does not possess.
It is trite that parties cannot, by consent, confer jurisdiction upon a court where, for instance, the Constitution of the country has clearly ousted such jurisdiction. (See Attorney-General of Eastern Nigeria v. A.B. Briggs (1965) N.M.L.R. 45 at page 49). There is the case of Heyting v. Dupont and Anor. (1963) 1 W.L.R.. 1192, also reported in (1963) 3 All E.R. 97, cited by Chief Williams, where Plowman, J., in the English Chancery Division said he had no jurisdiction to entertain an action instituted by minority shareholders in a company on the principle that an ordinary person has no power, which the legislature has, to impose on the Judge of the Chancery Division a jurisdiction which is not given to him by the procedure of the court or by any statute. The rule in Foss v. Harbottle (supra), on which Plowman, J., based his decision, is that in general an action to remedy a wrong done to a company lay only at the suit of the company. The rule has been extended to cover associations such as Trade Unions.
Chief Williams therefore submitted that Rule 7(v) which purports to override the common law, as enunciated in Foss v. Harbottle (supra), and which tends to side-track section 16(1) of the Trade Unions Act cannot vest jurisdiction in the court, so as to entertain the action of the plaintiffs minority members of the union.
It is necessary to examine closely the meaning of jurisdiction within the context of this appeal. Broadly speaking, the word “jurisdiction” and the expression “the court has no jurisdiction” are used in two different senses. The first, and which Pickford, L.J., in Guaranty Trust Company of New York v. Hannay & Co. (1915) 2 K.B. 536 at page 563, regarded as the “only real correct sense of the expression” is that the court “has no power to deal with and decide the dispute as to the subject-matter before it, no matter in what form or by whom it is raised.” The second is that although the court has power to decide the question it will not, according to its settled practice, do so except in a certain way and under certain circumstances.
However, in Garthwaite v. Garthwaite (1963-64) Probate 356 at page 387, Diplock, L.J., regarded the definition by Pickford, L.J., given to “Jurisdiction” in the first or strict sense as too restrictive. He expressed his views thus:
“In its narrow and strict sense, the “jurisdiction” of a validly constituted court connotes the limits which are imposed upon its powers to hear and determine issues between persons seeking to avail themselves of its processes by reference (1) to the subject-matter of the issue or (2) to the persons between whom the issue is joined or (3) to the kind of relief sought, or to any combination of these factors.
In its wider sense this embraces also the settled practice of the court as to the way in which it will exercise its power to hear and determine issues which fall within its “jurisdiction” (in the strict sense) or as to the circumstances in which it will grant a particular kind of relief which it has “jurisdiction” (in the strict sense) to grant, including its settled powers, or to refuse to exercise such powers, or to grant such reliefs in particular circumstances.”
As Obaseki, J.S.C., observed in the recent case of Attorney-General of Lagos State v. Dosunmu (1989) 3 N.W.L.R. (Part 111) 552 at page 602 there are other definitions of jurisdiction.
I hold the strong view that Pickford, L.J., has given too broad a scope to the narrow and strict sense in which “jurisdiction” is understood. Perhaps I should say that the stricter sense enunciated by Pickford, L.J., is more relevant to the case in hand. In the strict (stricter) sense “lack of jurisdiction” implies that the court is totally precluded from entertaining the action because of the subject-matter of the action, regardless of the parties involved. In the broad sense, a court may lack jurisdiction because of the incapacity of the plaintiff to institute the action or because of the status of the defendant. For instance, a court may lack jurisdiction to entertain a suit against a foreign sovereign or ambassador.
It seems to me that while the consent of parties cannot give the court a jurisdiction it does not otherwise possess, when it is lack of jurisdiction in the strict sense, a party may waive his right which otherwise will deprive the court of jurisdiction, if it is lack of jurisdiction in the broad sense.
For instance, if an Ambassador waives his diplomatic immunity, a court which otherwise lacks jurisdiction to entertain an action instituted against him because of his status, will be vested with jurisdiction. Similarly, it seems to me, where generally by the rule in Foss v. Harbottle (supra) minority shareholders or minority group are not competent to institute an action against a company or an association, such as a Trade Union, the company or association is competent to waive its right by a provision in its Article of Association or Constitution similar to Rule 7(v).
In the case of Emmanuel Onyema & Ors. v. Uwaeze Oputa & Anor. (1987) 3 N.W.L.R. (Part 60) 259 at page 293, Oputa, J.S.C., made the point that “submitting to jurisdiction of the court is no answer to want of jurisdiction for a total want of jurisdiction cannot be cured by assent of the parties. If the court does not possess an initial jurisdiction over the subject-matter, it is not possible that the consent of an individual could confer such jurisdiction.” If I may put it pointedly the other way, where it is not a question of total want of jurisdiction parties may, in certain cases, be able to vest jurisdiction in the court. As disclosed in Ariori & Ors. v. Elemo & Ors. (1983) 1 SCNLR 1 (1983) 1 S.C. 13 at page 50 by Eso, J.S.C., a beneficiary under a statute should have full competence to waive those rights once the rights are solely for his benefit. The dictum in Foss v. Harbottle (supra) is solely for the benefit of the company or association.
It should also be borne in mind that the rule in Foss v. Harbottle (supra) is not Iron-cast. There is the general exception which allows action by minority shareholders in cases either of actions ultra vires the company or of fraud by the majority or oppression of the minority by them in the form usually called a fraud on the minority, that is to say, where some property or advantage is monopolised by the majority to the exclusion of the minority.
When the case of Heyting v. Dupont (1963) 3 All E.R. 97, earlier referred to in this judgment, went on appeal to the Court of Appeal in England, Russel, L.J., in his lead judgment made the point that the rule in Foss v. Harbottle (supra) is not a rigid one and that exception will be made where the justice of the case demands. (See Heyting v. Dupont (1964) 2 All E.R. 273 at 279).
In Edwards v. Halliwell (1950) 2 All E.R. 1064 at page 1067, Jenkins, L.J., had this to say:
The cases foiling within the general ambit of the rule are subject to certain exceptions. It has been noted in the course of argument that in cases where the act complained of is wholly ultra vires the company or association the rule has no application because there is no question of the transaction being confirmed by any majority. It has been further pointed out that where what has been ……. done amounts to what is generally called in these case a fraud on the minority and the wrong-doers are themselves in control of the company, the rule is relaxed in favour of the aggrieved minority who are allowed to bring what is known as a minority shareholders’ action on behalf of themselves and all others. The reason for this is that, if they were denied that right their grievance could never reach the court because the wrongdoers themselves, being in control, would not allow the company to sue. Those exceptions are not directly in point in this case, but they show, especially the last one that the rule is not an inflexible rule and it will be relaxed where necessary in the interests of justice.
In sum, therefore, whether Foss v. Harbottle (supra) is applicable depends on the peculiar facts of each case. As observed by my learned brother, Awogu, J.C.A., in his judgment, and I am in full agreement, “no provision similar to Rule 7(v) of the Constitution of the 18th defendant was in issue in Foss v. Harbottle (supra). Nor do the Articles and Memorandum of Companies in Nigeria provide for the equivalent of Rule 7(v).”
There is some justification in Chief Williams submitting that section 16(1) of the Trade Union Act 1973 is an exception to Foss v. Harbottle (supra). This is so because without Rule 7(v) of the Constitution of the Union, section 16(1) would be the only basis on which minority members of the Union, not less than five, could validly institute an action to remedy a wrong relating to the funds of the Union apart from the already identified exceptions to Foss v. Harbottle (supra) and the unidentified cases which can validly come under the umbrella of “in the interest of justice.” I however adopt the reasoning of my learned brother as to the essence of section 16(1). Also, suffice it to say that I have already given my views in this judgment as to the effect of Rule 7(v) and the competence of the Union to make the rule. It does not infringe section 16(1).
Lastly, and more importantly, previous decisions of this court relating to the issue of this appeal, as rightly and meticulously analysed by my learned brother Awogu, J.C.A., were not given per incuriam. So that granted that the decisions were wrong, which I do not concede, this court is not competent to depart from them. The responsibility to do so lies with another venue, the Supreme Court. The appeal therefore fails. It is accordingly dismissed. I also make no order as to costs.
BABALAKIN, J.C.A.: I have had a preview of the judgment just delivered by my learned brother, Awogu, J.C.A. I agree with the reasoning and conclusions reached therein.
For reasons given therein I agree that the Rule in Foss v. Harbottle (supra) was either directly or by necessary implication considered in the cases of Oduduru v. National Union of Hotels etc., Nigerian Civil Service Union v. Essien and Agbonikhena v. Egba that had come for consideration and decision in this court. I am also of the firm view that on the peculiar facts of each of these cases none was decided per incuriam and therefore there is no need for this court to declare all or any of them as such.
The position is that where the constitution of a Trade Union makes provisions for its members and/or a third party to take action and such members or such third party comply with those provisions of the Constitution they have clothed themselves with necessary locus standi and the Rule in Foss v. Harbottle (supra) cannot apply.
In this case the plaintiff/respondents are suing at least in part for what section 16(1) of the Trade Union Act provided for and they are therefore within their constitutional limit to do so.
I too therefore over-rule the objection to the competency of the suit. The appeal is dismissed.
I make similar consequential orders contained in the judgment. I make no order as to costs.
KALGO, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother, Awogu, J.C.A., just delivered. I am in entire agreement with his reasoning and conclusions. But by way of emphasis, I would like to add the following.
The rule in Foss v. Harbottle (supra) (F v H) is no doubt a common law, or judge made rule of law. It is not a statutory provision, and so cannot over ride any specific provision of the law. Section 16(1) of the Trade Union Act, 1973, sets out clearly that apart from the Attorney-General of the Federation, the Registrar of Trade Union, any five or more members of a Union (not necessarily being majority members) may sue for an injunction to restrain the unlawful application of Union Funds. This section therefore gives even outsiders or third parties the right to interfere with the union matters without any regard to the application of the rule in Foss v. Harbottle (supra). But the opening words of section 16 states that this is “without prejudice to the right of any person having sufficient interest in the relief sought” which means, in my humble view, that the issues of the majority membership interest is still taken care of but the rule in Foss v. Harbottle (supra) is amended to the extent, provided in the rest of that section.
I agree with my learned brother, Akpata, J.C.A., in his contribution when he said that the rule in Foss v. Harbottle (supra) “is not iron-cast”, and its application must be confined to the facts peculiar to each case. On what is meant by “jurisdiction of a court” this has been extensively discussed by my learned brother, Akpata, J.C.A., and I adopt argument and reasoning there.
Jurisdiction of a court whether at 1st instance or appeal, is not in my view, determined by nature of the claim alone; it must be only as conferred by law. It is a creature of statute and cannot be presumed or implied. The nature of the claim must come within the ambit of the law conferring the jurisdiction for the court to entertain it. I agree with Chief Williams, S.A.N., that generally jurisdiction cannot be conferred on a court by agreement of parties. But there are some exceptions such as where the court would ordinarily have jurisdiction but for certain reason, if that reason is dispensed with, e.g. diplomatic immunity. For the same reason since the rule in Foss v. Harbottle II (supra) is not a statutory provision, the agreement, which is binding between the union members, contained in rule 7(v) in this appeal, will give the court jurisdiction to entertain the action by any aggrieved member. To that extent the majority members of the Union are deemed to have waived their right pursuant to the application of the rule in Foss v. Harbottle (supra). Rule 7(v) is not in conflict with S.16(1) of the said Act particularly the opening words of the section.
The right to “belong to any trade union or any association” for the protection of the interest of any Nigerian entrenched under S.37 of the 1979 Constitution and the powers of the courts to protect any contravention or alleged contravention of that right, does not in my view, clothe the registered constitution of the Union with the force of law. The registration is only a requirement of the Trade Union Act, 1973 and has certain benefits and privileges under that Act, and no more.
I have read the three previous decisions of this court which Chief Williams, S.A.N., asked the court to reconsider in the light of the rule in Foss v. Harbottle (supra) and the provisions of section 16(1) of the Trade Union Act, and I find, with due respect, that these decisions were given on the facts and issues raised before the court and were not given per incuriam. I think the only avenue open for reconsideration or reviewing these decisions, is the appeal to the Supreme Court.
Finally, I agree with my learned brother, Awogu, J.C.A. that this appeal fails and it is dismissed. I make no order as to costs.
Appeal dismissed.
Appearances
Chief F.R.A. Williams, S.A.N. (with him, Mrs. O.A. Oyagbola and F. R. A. Williams Junior) -for the 1st, 3rd, 4th, 6th, 9th and 18th Defendants/Appellants. For Appellant
AND
Mrs. Ayo Obe – for the Plaintiffs/Respondents.
Alao Aka-Bashorun (with him, Femi Falana) – for the 2nd, 7th, 10th, 11th, 12th and 18th Defendant/Respondents.
Miss A.A, Akinseye – for the 13th Defendant/Respondents.
K. Shomade – for the 14th Defendant/ Respondent.
A. O. Omotosho – for the 15th Defendant/Respondent.
E. Kudaya – for the 17th Defendant/Respondent. For Respondent
