ALHAJI RAIMI FUNMILAYO & ORS v. ALHAJI KARIMU FOLORUNSO & ANOR
(2014)LCN/6827(CA)
RATIO
WHETHER ALL PARTIES TO AN ACTION .UST TESTIFY ON THEIR RESPECTIVE BEHALF
There is no law that I know of that says all parties to an action must testify on their respective behalf’s especially where as in this case the claims are joint claims and one party only can testify in respect of the whole case. I am of the firm view that in the present case there was no need for the 2nd, 3rd and 4th Plaintiffs to have testified. If the plaintiffs’ case has been presented even by a sole witness it is enough, calling of other witnesses is superfluous. Per CHIDI NWAOMA UWA, J.C.A.
In The Court of Appeal of Nigeria
On Thursday, the 6th day of February, 2014
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Oyo State High Court presided over by A. Adeniran, J, sitting at Ibadan delivered on 29th March, 1995 in which the claims of the Plaintiffs (now Appellants) were dismissed.
The Plaintiffs claimed against the Defendants jointly and severally (now Respondents) in the lower court as follows:-
(a) “Declaration that the 1st Defendant is not entitled to present himself to the 2nd Defendant for appointment as the Mogaji of Jagun Ibagbe Family as he (1st Defendant) is not a member of the family.
(b) Declaration that the 1st plaintiff was lawfully nominated in the meeting held on 11/6/89 as the person to be appointed by the 2nd Defendant as the Mogaji of Jagun-Ibagbe family.
(c) Declaration that the 1st plaintiff is the person entitled to be appointed as the Mogaji of Jagun Ibagbe Family in succession to late Yesufu Opaniyi Ibitokun who was the last Mogaji of the family.
(d) Perpetual Injunction restraining the 2nd Defendant his servants and/or agents from appointing or doing anything towards the appointment of the 1st Defendant as the Mogaji of Jagun-Ibagbe family.
(e) Perpetual Injunction restraining the 1st Defendant from presenting himself for appointment as the Mogaji of Jagun Ibagbe Family.”
The background facts are that the Appellants claimed the 1st Appellant is a member of Jagun-Ibagbe family and is entitled to be nominated and appointed as Mogaji while alleging that the 1st Respondent is a stranger to the family. On the other hand, the 1st Respondent contended that he is a member of Jagun Ibagbe family and he is entitled to be lawfully nominated, elected and appointed as Mogaji of Ibagbe family and that the 1st Appellant and the 1st Respondent are members of Jagun-Ibagbe family but found that the 1st Respondent had been duly nominated and appointed as the Mogaji of the family. The lower court dismissed the claims of the Appellants in its entirety. The Appellants were dissatisfied with the decision and appealed to this Court. The Appellants formulated four (4) issues for determination of this appeal as follows:
“1. Whether or not the lower court was right to have declined to rely on the findings in Exhibit ‘J’ simply because it was alleged that there was an appeal against its judgment?
2. Is the lower court right in its application of the provisions of Section 149(d) of the Evidence Act or not in this case?
3. Whether or not the lower court was right to have rejected the evidence of nomination of the 1st Appellant because some Appellants did not appear in court to give evidence and that some of those who gave evidence were not members of the family?
4. Whether or not the trial court was right not to have made a finding on the qualification of the Mogajis accepted by both sides as previous Mogajis to enable it determine whether any member of the family or a grandson of Jagun-Ibagbe could become or aspire to be Mogaji?
The Respondents adopted the issues as raised by the Appellants. When this appeal came up for hearing, the learned counsel to the Appellants E. Abiodun Esq. did not appear in court despite service of the hearing Notice on the Appellants. No reason was given for the absence of learned counsel. The Appellants’ brief of argument dated 3/6/02 filed the same day but deemed as properly filed and served on 4/6/02 was deemed as argued.
The learned counsel to the Respondents, J.O.A. Ajakaiye Esq. adopted and relied on his brief of argument dated 17/7/02 filed on 18/7/02 in urging us to dismiss the appeal.
In his first issue the learned counsel to the Appellants E. Abiodun Esq. submitted that the Respondents in the lower court pleaded the judgment in suit No. I/617/84 tendered as Exhibit ‘J’ and at page 62, in paragraph 16 of their amended statement of defence also pleaded that they would rely on judgments in other suits relevant to the proper prosecution of this case. It was the contention of the learned counsel that the trial court examined Exhibit ‘J’ and referred to a finding in it wherein the children of Jagun-Ibagbe were identified as (i) Ojo (ii) Adeniran and (iii) Ibitokun and that the 1st Respondent is also a relation of Jagun Ibagbe and not a grandson. All the same, the learned trial judge declined to rely on same because the judgment was appealed against as informed by the 1st Respondent.
It was the submission of the learned counsel that it was wrong for the trial court to have declined to rely on this important finding and allowed parties, to re-open a decided issue and by this arrived at a wrong decision. We were urged to resolve this issue in favour of the Appellants.
On his second issue, it was submitted that the 1st Appellant and his witnesses in the lower court mentioned the introduction of the 1st Respondent by one Alao Olomo on which there was no cross-examination. We were urged to act on the unchallenged evidence, see, ALAKI V. SHAAKO (1999) 3 NWLR (PT.589) 387 at 3950-F and OBI V. OZOR (1991) 9 NWLR (PT. 213) 94 at 109 E-F. It was the contention of the learned counsel that despite the exhaustive cross-examination of the 1st Appellant and his witnesses no question was put to them concerning Alao Olomo. It was argued that the trial court was wrong to have invoked Section 149(d) of the Evidence Act, 1990 against the Appellants for not calling Alao Olomo as a witness.
On his third issue, the learned counsel to the Appellants faulted the trial court’s emphasis on the non-appearance of the 2nd, 3rd and 4th Plaintiffs in court to give evidence in support of the claim. It was contended that the evidence of the first witness for the Appellants, the son of a former Mogaji, was not rejected by the trial court. Also, that the 1st Respondent in his evidence-in-chief at page 70 of the printed records gave evidence to the effect that the 1st Plaintiff had been put forward to contest the title with him. It was argued that the nomination of the 1st Appellant was no longer a burden for the Appellants to establish. The rejection of the 1st Appellant’s nomination led to a miscarriage of justice.
On their fourth and last issue the learned counsel to the Appellant submitted that the family tree of Jagun Ibagbe family traced also through their farms in three branches of the children, Ojo, Adeniran and Ibitokun is different from that of the 1st Respondent who refuted the need for connection to the farms owned by Jagun Ibagbe in order to be able to claim a direct descendancy from Jagun Ibagbe.
It was argued that out of the eight Mogajis listed by the Appellants, the 1st Respondent admitted only five. The 1st Respondent denied that Ojo, Akinpelu and Funmilayo the ancestor, the grandfather and father of the 1st Appellant were ever Mogajis, while he claimed that his ancestor Ogundele is the 1st son of Jagun-Ibagbe and the 1st Mogaji. These issues and disagreements were said not to have been resolved by the learned trial judge before holding that the two parties were eligible to be Mogaji of the family. The learned counsel to the Appellant also referred to the trial court’s reference to Exhibit ‘J’ where the children of Jagun-Ibagbe were identified as Ojo, Adeniran and Ibitokun, also the fact that the 1st Respondent is a relation and not a grandson.
It was contended that there were many issues raised during trial that remained unresolved as no findings of facts were made concerning these issues. Declaring the two warring parties as ineligible to be Mogaji of the family was argued not to be resolution of the outstanding issues before the trial court. We were urged to resolve issues two, three and four in favour of the Appellants and order a retrial of the action, see, OZIBE V. AIGBE (1977) 7 SC at 10-11 and OLUFOSOYE V. OLORUNFUNMI (1989) 1 NWLR (PT. 95) 26 at 40.
In response, the learned counsel to the Respondents J.O.A. Ajakaiye Esq. who adopted the issues as formulated by the Appellants submitted in respect of the first issue that Exhibit ‘J’ was not part of the case of the Appellants since it was the Respondents that pleaded it in paragraph 5(viii) and (ix) of their Amended Statement of Defence to show that the Respondent had been representing Jagun Ibagbe family to prosecute cases and that Exhibit ‘J’ was on appeal. It was agreed that the Respondent did not tender Exhibit ‘J’ in his evidence-in-chief but, rather the Appellants that did through the Respondents under cross-examination. The learned counsel to the Respondents agreed with the reason given by the third judge for not relying on Exhibit ‘J” the fact that the judgment was on appeal. It was submitted that the learned trial judge was justified not to have relied upon Exhibit ‘J’.
On issue two, the learned counsel to the 1st Respondent submitted that the evidence by the Appellants’ witnesses to the effect that it was one Alao Olomo that brought the 1st Respondent to the family and introduced him as the son of Ogundele is hearsay evidence which is not admissible. It was argued that whether the witnesses were cross-examined on this issue is not relevant to the admissibility of the evidence. It was argued that the Appellants ought to have called Alao Olomo to testify or an explanation given by the witness concerning the introduction of the 1st Respondent to the family is at variance with what was pleaded in paragraph 24 of the amended statement of claim, at pages 81-84 of the records of appeal. It was contended that the trial court was justified in not acting on the evidence relating to what Alao Olomo told the Appellants.
On the third issue it was the contention of the learned counsel to the Appellant that the Appellants gave little or oral evidence as to the 1st Appellant’s nomination, except mere assertion that he was nominated as the Mogaji. Further, that 2nd, 3rd and 4th Appellants did not testify as to nomination or selection of the 1st Appellant and that the trial court was correct to have observed that 2nd-4th Appellants did not testify at the hearing and the holding that the case of the 1st Respondent was more probable and preferable to that of the 1st Appellant as to his nomination, selection and approval by the 2nd Respondent, see, MOGAJI V. ODOFIN (1978) 4 S.C. 91 at 94-95. It was argued that the evidence of the 1st Respondent on the issue of the Appellant having been nominated did not support the nomination of the 1st Appellant but was to show that the 1st Appellant and the 1st Respondent were invited to appear before the 2nd Respondent as to who should be appointed as Mogaji.
It was argued that the trial court was right to have held as unfounded the Appellants’ assertion that the 1st Respondent is not a member or relation of Jagun-Ibagbe family while relying on Exhibit ‘C’ to hold this view.
On the fourth and last issue, it was submitted that the learned trial judge was right to have resorted to the traditional evidence given by the parties but rightly resorted to acts in recent times, that is, documentary evidence tendered by the parties, page 147 line 72 – page 148 lines 1-23 of the printed records. To this effect, Exhibits ‘C’ and ‘D’ were utilized in arriving at the court’s decision, that is: that the 1st Respondent is a member of Jagun-Ibagbe family, as the family had put him forward as such and that the trial court also found that the 1st Appellant to be a member of Jagun-Ibagbe family, pages 148 – 150 of the records.
As to who between the 1st Appellant and the 1st Respondent is entitled to be appointed Mogaji (head) of the family resorted to Exhibits ‘A’, ‘F’ and ‘G’ and evidence from both parties. The Court did not utilize Exhibit ‘A’ and oral evidence from the Appellants in support because it was not in the language of the court but, relied on Exhibits ‘F’ and ‘G’ in concluding that the Respondent had been lawfully nominated as Mogaji of Ibagbe family, having earlier found that the 1st Respondent is a member of Jagun Ibagbe family. We were urged not to fault the judgment of the trial court.
We were urged to resolve all the issues against the Appellants and dismiss the appeal.
In determining the appeal, I would adopt the issues as formulated by the learned counsel to the Appellants Mr. Abiodun also adopted by the learned counsel to the Respondents, Mr. Ajakaiye.
In respect of the first issue both parties in their various briefs of argument agreed that the learned trial judge declined to rely on Exhibit ‘J’ because the judgment was on appeal having relied on only the evidence of the 1st Respondent in this respect and nothing more. As rightly argued by Mr. Abiodun there is always a presumption of the validity and bindingness of a judgment of court until it is set aside. see, OBA LAWANI ALADEGBEMI V. OBA JOHN FASANMADE (1988) 3 NWLR (PT. 81) 129. In ROSSEK & ORS V. A.C.B. LTD & OTHERS (1993) 8 NWLR (PT. 312) 382 at 471-472 His Lordship, Bello C.J.N. had the following to say on the validity and bindingness of Judgment of Court until set aside.
He stated thus:
“A judgment of a Court of law is presumed valid and the parties concerned are not only bound to obey it but the authorities charged with responsibility for the enforcement of judgments are also obliged to enforce it unless it is declared a nullity or set aside by a Court of competent jurisdiction.”
In the same Rossek’s case His Lordship Ogundare, JSC stated clearly thus: (at pages 434-435)
“There is always a presumption of correctness in favour of a court’s judgment. And until that presumption is rebutted and the judgment is set aside, it subsists and must be obeyed.”
See also, HADKINSON V. HADKINSON (1982) 2 ALL E.R. 567, 569; ADEBAYO V. JOHNSON (1969) 1 ALL NLR 176, AJAO V. ALAO (1986) 5 NWLR (PT. 45) 802.
In the present case, the fact that the previous judgment, Exhibit ‘J’ was on appeal is of no moment, because a judgment on appeal would be effective only when there is a decision on appeal, affirming the previous judgment on appeal or setting it aside. Until then the existing judgment even if appealed against remains valid until the appeal is determined. In the present case the trial court or the Respondents did not make out that there was a decision from the appellate court in respect of Exhibit ‘J’. Also, in MAGNUSSON V. KOIKI (Supra) it was decided by this Court that there is always a presumption that the judgment of a court is correct until the contrary is proved. At page 149 of the printed records of Appeal, the learned trial judge referred to specific findings as to the status of the 1st Respondent being a relation of Jagun-Ibagbe but not a grandson, while the children of Ibagbe were identified as (i) Ojo (ii) Adeniran and (iii) Ibitokun.
The trial court declined to rely on Exhibit ‘J’ but rather re-opened the issue of the status of the parties which had been decided upon by the previous court which is a court of record. The law is that once a fact has been decided upon in a court of record, neither of the parties shall be allowed to call in question and have the same fact retried thereafter, as long as the decision stands unreversed by the appellate court, otherwise there would be no end to litigation on decided issues. The trial court in this case ought to have started from known to unknown to inquire further, see AKUJOBI V. EKENAN (supra).
In the present case, what the trial court did was to allow relitigation on the status of the parties for the reason that the previous judgment is on appeal yet to be decided at the time. The stand taken by the trial court in my considered view is wrong, it ought not to have declined reliance on Exhibit ‘J’ for the reasons given. I resolve the first issue in favour of the Appellants.
The second issue is as to whether the trial court rightly applied Section 149(d) of the Evidence Act in this case. The Appellants made out that one Alao Olomo introduced the 1st Respondent into the family and introduced him as the son of Ogundele. The Respondents argued that the said Alao Olomo ought to have been brought to testify or his absence explained in court. I agree with the submissions of Mr. Abiodun that the evidence given by the 1st Appellant and his witnesses concerning Alao Olomo was not challenged by the Respondents who had the opportunity to do so under cross-examination of the witnesses. Since the evidence on Alao Olomo remained unchallenged or uncontroverted the burden placed on the Appellants had been discharged, I am at one with the argument of Mr. Abiodun, and disagree with Mr. Ajakaiye and the trial court that Mr. Alao Olomo ought to have been called to testify. It is trite that once a point on an issue has been established or point made clear by one or two witnesses, there is no need to call a whole lot of other witnesses to establish the same point or give evidence on the same issue. The absence of Alao Olomo as a witness to the Appellants ought not to have worked against the Appellants whose case it was and knew who to call as a witness or not to establish their case. Section 149(d) of the Evidence Act, 1990 ought not to have been invoked against the Appellants. I resolve the second issue in favour of the Appellants.
The third issue is as to whether the trial court was right to have rejected the evidence of nomination of the 1st Appellant because some of the Appellants did not testify in court and that some of those who testified were not members of the family. At this juncture it is pertinent to note that the action in the lower court was brought jointly and severally, see paragraph 27 of the Amended statement of claim.
The first Plaintiffs’ witness was Alhaji Raimi Funmilayo a member of Jagun Ibagbe family and at the time the nominated head of the family, he testified that his father was the former Mogaji and gave a detailed account of their family tree and successions of the Mogajis until it became his turn.
He gave evidence that no member of the 1st Defendant’s (Respondent) family or relation of Ogundele had ever become Mogaji as they were strangers or tenants who were in the past allowed to settle at Jagun Ibagbe. Ogundele was said to be the grandfather of the 1st Defendant. He testified that no stranger had ever been appointed the Mogaji of the family, see pages 86-87 of the printed records. It is noteworthy that the trial court did not reject the evidence of the PW1. At page 85 he testified as follows:
“The name of my family is Jagun Ibagbe. I am the head of Jagun Ibagbe family. This suit is brought by the said Jagun Ibagbe Family. It is brought by the entire family except the son of Yesufu Ibitokun who is also a member of the family. I know the first Defendant in this case. The father of the first Defendant was a tenant to Jagun Ibagbe family.
His father’s name is Ogundele.”
(Underlined mine for emphasis).
There is no law that I know of that says all parties to an action must testify on their respective behalf’s especially where as in this case the claims are joint claims and one party only can testify in respect of the whole case. I am of the firm view that in the present case there was no need for the 2nd, 3rd and 4th Plaintiffs to have testified. If the plaintiffs’ case has been presented even by a sole witness it is enough, calling of other witnesses is superfluous.
The learned trial judge was not satisfied with the evidence of PW2 and PW3 (should have been PW3 and PW4 at pages 94-98 and pages 99-103 respectively) because they were not members of Jagun Ibagbe family but these are witnesses who knew the parties well. With the testimony of the PW1 who testified on behalf of the other Plaintiffs, being a joint claim, the evidence of PW1 (should be PW2) at pages 91-93 of the records as well as that of the two Plaintiffs’ witnesses above are superfluous and ought not to have been disregarded merely for the reason that the witnesses are not from Jagun Ibagbe family and because the 2nd, 3rd and 4th Plaintiffs did not testify. In the case of EME vs. WAMUOH (1991) 7 NWLR (PT. 203) PAGE 375 at p. 387 C-D, this court succinctly put it this way:
“The submission of Appellants counsel that it was wrong for the learned trial judge to give Judgment on the sole evidence of the 1st plaintiff when the action was instituted in an individual capacity seems to me not to be well founded in view of the main contest between the parties. The pleadings and evidence show that the main claim is whether or not the Appellants and Respondents are adult members of Umuatako family. The battle was fought on that basis. There is no law which stipulates that apart from the 1st Respondent the remaining two must testify.”
On this note, I hold that a judge could give judgment based on the evidence of a sole witness. The evidence of the first Plaintiffs’ witness in this case was enough to put across the case of the rest of the plaintiffs, their claim not being individual claims but for themselves and the entire members of Jagun-Ibagbe family. The 1st Respondent did not contest the fact that the action was for a joint claim on behalf of the family.
The learned trial judge accepted the evidence of the 1st Respondent to the effect that he had been elected as the Mogaji (head) of the family but, also testified that he with other members of the Jagun-Ibagbe family on 24/7/89 went to the palace of the 2nd Defendant where he also met the first Plaintiff who had also been put forward to contest the title with him, see page 107 of the printed records. This in my view is an acknowledgment by the 1st Defendant that the 1st plaintiff had been nominated by his family to contest the Mogajiship of the family. For this reason the trial court’s rejection of the 1st Appellant’s nomination is erroneous, and to have held thus, at page 151 of the records:
“It is pertinent to note that none of the 2nd, 3rd and 4th plaintiffs appeared in court to give any evidence in support of the claim. Moreover of the three witnesses who testified for the plaintiffs in addition to the 1st plaintiff, two of them, namely Alhaji Raufu Akintunde and Samuel Adebayo Ojekunle admitted that they are not members of Jagun Ibagbe family. I am not satisfied with the evidence of the plaintiffs that the 1st plaintiff was duly nominated by members of Jagun Ibagbe family as the Mogaji.”
By the trial court’s rejection of the 1st Appellant as having been nominated by the Jagun Ibagbe family, this deterred the lower court from properly putting the parties on equal footing to determine who between the two was truly nominated by the Jagun-Ibagbe family and who was qualified to be made Mogaji of the family.
Mr. Ajakaiye had argued that the 1st Respondent’s mention of the 1st Appellant having been invited to appear before the 2nd Respondent with him was to show that both were invited to appear before the 2nd Respondent was to show who should be appointed as Mogaji as required of the 2nd Respondent by law to give the 1st Appellant a hearing on the matter. This argument does not hold any water, because if the 1st Appellant had not been nominated by Jagun-Ibagbe family he would not qualify to be considered for appointment by the 2nd Respondent. The nomination by the family comes before the presentation to the 2nd Respondent for approval.
By rejecting the 1st Appellant’s nomination which had been accepted by the 1st Defendant (Respondent) the trial court shut out the 1st Appellant from the contest. In my considered view, it is a wrong decision. I resolve this issue in favour of the Appellants.
The fourth and last issue is whether or not the trial court was right not to have made a finding on the qualification of the Mogajis accepted by both parties as previous Mogajis to enable it determine whether any member of the family or a grandson of Jagun-Ibagbe could become or aspire to be Mogaji?
The Appellants had made out that the Jagun-Ibagbe had three children through whom they claim, Ojo, Adeniran and Ibitokun. They also claimed that there are three farms shared out to the three children through whom any descendant of the family must come from while the 1st Respondent made out that any claim of descendancy through the three children and their farms is not relevant. The 1st Respondent denied Ojo, Akinpelu and Fumilayo, the ancestor, grandfather and father respectively of the 1st Appellant were ever the Mogaji. The 1st Respondent instead, claimed that his father Ogundele is the 1st son of Jagun-Ibagbe and the 1st Mogaji. Both parties gave evidence of their family trees, showing their descendants and how each side produced the Mogajis in the past. The learned trial judge abandoned their traditional evidence where each showed their descendancy of the Jagun-Ibagabe family and right to be Mogaji. The learned trial judge relied on documentary evidence instead to determine that the 1st Respondent is a member of the family and duly nominated as the Mogaji of the family contrary to the claims of the Plaintiffs that he is not.
The trial court relied on Exhibits ‘F’ and ‘G’ as proof. Exhibit ‘F’ is a list of names purportedly listed as members of Jagun-Ibagbe family who nominated the 1st Respondent as Mogaji, while Exhibit ‘G’ is a letter from the Secretary of the 2nd Respondent inviting the 1st Respondent for an interview in which he was addressed as “Mogaji elect for Ibagbe Family”, could these be conclusive trace of the 1st Respondent’s descent? I think not.
Both parties have laid claim to the Mogajiship as well as being direct descendants of Jagun Ibagbe families but through different routes. This important issue must first be resolved by the trial court and not determined by a wave of the hand, rejecting the Plaintiffs’ evidence and accepting that of the 1st Respondent, before holding that the two parties were eligible to be Mogaji of the family. It is also important to have determined who would qualify to be a Mogaji of the family and whether only direct descendants could be nominated or if relations are also included.
Findings of fact ought to have been made concerning these issues. I agree with Mr. Abiodun that extending the eligibility to the two warring parties is not enough. The trial court has left both with nothing and the feud would continue considering the contents of the claims and reliefs sought in paragraph 27 of the Amended Statement of claim against the 1st Defendant. In the present circumstance, I am of the considered view that there were issues that were yet to be resolved by the trial court bearing in mind the state of the pleadings of the parties. I resolve this fourth issue in favour of the Appellants.
In the final analysis, the appeal is meritorious, I allow same. The judgment of the learned trial judge of the Oyo State High Court, presided over by Adeniran, J, delivered on 29th March, 1995 in Suit No. I/600/89 is hereby set side. I remit the case back to the Chief Judge of Oyo State for reassignment for retrial by another Judge of the High Court other than A. Adeniran, J. considering the age of this case, accelerated hearing is hereby ordered on commencement of retrial.
Each party to bear its respective costs.
HARUNA SIMON TSAMMANI, J.C.A.: I had the privilege of reading in advance the judgment delivered by my learned brother, C. N. Uwa, JCA.
My learned brother has comprehensively considered and resolved the issues that came up for determination. I agree with him that the appeal is meritorious. Accordingly, I too allow the appeal and set aside the judgment of the court below in Suit No. I/600/89 delivered on the 29th of March, 1995. I abide by the consequential order made by my learned brother, including the order on costs.
OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my Lord Chidi Nwaoma Uwa J.C.A. I am of the view as my lord, that the justice of the case requires that it be sent back to the lower court for re-assignment by the Chief Judge of Oyo State to another Judge of the High Court of that State.
Appearances
Appellants served but absent.For Appellant
AND
J. O. A. Ajakaiye Esq. with Mrs. Olajumoke AdelekeFor Respondent
