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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI BEFORE HIS LORDSHIP HON. JUSTICE O. Y. ANUWE Dated: October 30, 2014 SUIT NO. NICN/EN/109/2013 Between: 1. Declan Mbadiwe Emeluba 2. Chief Mike Iheanatu Claimants/Respondents 3. Emeronye Benjamin And 1. Imo State Government 2. Governor of Imo State Defendants/Appellants/Applicants 3. Attorney General of Imo State 4. Accountant General of Imo State 5. Imo State House of Assembly Service Commission Representation: C. H. Azuine (Mrs.), with the brief of K.C.O. Njemanze SAN, for the Claimants/Respondents J. C. Ibe (Mrs.) Asst. Director Civil Litigation; Imo State Ministry of Justice, for the Defendants/Appellants/Applicants. RULING On the 29th day of April 2013, the Claimant filed this complaint against the Defendants seeking for the following reliefs: 1. The sum of N40,055,454.00 (Forty Million, Fifty Five Thousand, Four Hundred and Fifty-four Naira) being unpaid severance gratuities, accommodation and security allowances due and payable to the Claimants from the defendants as members of the Imo State House of assembly between May 2007 and June 2011, which the Defendants have failed, refused and/or neglected to pay despite repeated demands. 2. Interest on the aforesaid sum at the rate of 10% from the date of judgment until the judgment debt is liquidated. The Defendants/Appellant/Applicants had filed a Notice of Preliminary Objection wherein they had challenged the jurisdictional competence of the suit on the grounds that the court lacked jurisdiction by virtue of Section 2(a) of the Public Officers Protection Act, that the essential and proper party the Imo State house of Assembly was not sued, and that there was no proper or reasonable cause of action against the parties sued, being that the said cause of action was statute barred. The Claimant/Respondent filed a counter affidavit with Written Address in opposition to the Notice of Preliminary Objection and the Defendants/Appellants/Applicants filed a counter affidavit in opposition to the motion for summary judgment. The Honourable Court in a considered Ruling on the 13th day of May 2014, dismissed the application, declined to enter judgment in favour of the claimants on the summary judgment; and went on to assume jurisdiction, and thereafter, set the case down for hearing. By a motion on notice dated the 10th day of June 2014 and filed on the 13th day of June 2014 and brought pursuant to Order 30 Rule 1 of the National Industrial Court Rules, 2007, the Defendants/Appellants/Applicants, having appealed against the ruling of this court delivered on the 13th day of May 2014, are praying this Court for an order staying further proceedings in this suit pending the determination of the appeal they have purportedly filed at the Court of Appeal. In support, they have filed a 6 paragraph affidavit upon which they have placed reliance. In their written address in support of the motion for stay of proceedings, the applicants have raised a sole issue for determination which is WHETHER THE APPLICATION OUGHT TO BE GRANTED In arguing the sole issue, the applicants have submitted that in an application for stay of proceedings, the applicant must show special or exceptional circumstances that will enable the trial court exercise its discretion in favour of the applicant. Such special or exceptional circumstance arises whenever the issue of jurisdiction of the trial court is put in issue or challenged. They cited the case of N.N.P.C vs. O.E. (NIG.) LTD. (2008) 8 NWLR (Pt. 1090) 583 pp. 618 – 619 G – D; 620 – 621, G – A, where it was held thus: “In an application for stay of proceedings where a genuine issue of jurisdiction is raised by an applicant, then he has satisfied a special or exceptional circumstances to warrant the grant of stay of further proceedings pending the determination of his appeal”. The court continued further that: “In the instant case, Court of Appeal found that the applicant did not raise the issue of jurisdiction of the trail court as a ploy to delay hearing of the case. Consequently, it held that they were entitled to a stay of trial court’s proceedings in the circumstances”. Counsel submitted that the circumstances of the facts of this case preceding this application are the same with the facts in N.N.P.C vs. O.E. (NIG.) LTD. (SUPRA) where a stay of proceedings was granted pending appeal. This is because, the court has always followed the principle that where an interlocutory appeal following an application for stay of proceedings will finally dispose of the case, or put an end to the proceedings in the lower court, stay of proceedings would be granted. An example given by the court in the instant case is where an appeal raised the issue of jurisdiction of the lower court. It was the submission of counsel that in N.N.P.C. vs. O.E. (NIG,) LTD. (SUPRA) the principles guiding the refusal of an application for stay of proceedings pending appeal were held to include:- (a) There must be a pending appeal. A stay of proceeding can be granted only if there is a pending appeal, which is valid in law; (b) There must be an arguable appeal. The appeal, which forms the basis of an application for stay of proceedings must be competent and arguable on its merits; (c) Where the appeal will dispose of the proceedings. Where the interlocutory appeal following an application for stay of proceedings will finally dispose of the case, or put an end to the proceedings in the lower court, stay of proceedings will be granted. (d) Where it will render the order of the appellate court nugatory, a stay of proceedings will be granted where to do otherwise will tend to render any order of the appellate court nugatory. See pages 617 – 618 para. B-D. See also N.B.N. LTD. vs. N.E.T. LTD (1986) 3 NWLR (pt, 31) 667, AROJOYE vs. UBA (1986) 2 NWLR (pt. 20) 101, AKILU vs. FAWEHINMI (No. 2) (1989) 2 NWLR (Pt. 102) 112. Counsel therefore submitted that the applicants herein have satisfied all these conditions which should induce the court to exercise its discretion in their favour. See paragraphs 11(I – vi) of the supporting affidavit and the annexed proposed notice of appeal. Counsel placed further reliance on the case of NIKA FISHING CO. LTD. vs. LAVINA CORPORATION (2008) 16 NWLR (pt. 11114) 509, pp. 540 – 541, para. H – C, where it was held inter alia:- “In order to grant an application for a stay of proceedings pending appeal, the pending appeal must be arguable and this should be borne out by the ground or grounds of appeal. In other words, the grounds of appeal must clearly denote the legal strength of the appeal but only in terms of it being arguable. An applicant has no duty to prove at that stage that the appeal will succeed. Once he shows that the appeal is arguable and there are chances of success an application for stay could be granted.” Counsel went on that the Defendants/Appellants/Applicants have filed their appeal against the ruling dismissing the preliminary objection and have consequently brought this application. The applicants have contended that their appeal is valid, competent and arguable and pray the court to grant the application in the interest of justice and in accordance with established judicial and binding precedents placed before the court. Counsel contended that the Defendants/Appellants/Applicants have equally shown special or exceptional circumstances which should warrant granting this application. Counsel urged the court to grant this application and stay further proceedings in this suit. In opposition, the Claimants/Respondents filed a Courter Affidavit of fourteen (14) paragraphs and are contending that a motion for extension of time to seek leave to appeal cannot operate as a valid and arguable appeal, the notice of appeal filed by the Applicants are incompetent, that the issues of jurisdiction etc are not genuine, and that the application is brought in bad faith with the sole aim of delaying and frustrating the hearing and determination of the substantive suit. The Claimants/Respondents raised a sole issue for determination, which is: Whether the applicant had made out a case for the grant of stay of proceedings pending appeal. In arguing the sole issue, it was the submission of counsel to the Respondent that the grant of stay of proceedings of a case before the court is a matter of discretion of the court. The exercise of the discretion is dependent on the facts and circumstances of each case. OKAFOR vs NNAIFE (1987) 4 NWLR (pt. 645) 129. Counsel went further that by virtue of the provisions of Order 30 Rule 1 of the National Industrial Court Rules 2007, an application for stay of proceedings is predicated on the existence of a valid appeal to the Court of Appeal against the decision of the National Industrial Court. It follows that the filing of a valid appeal is a condition precedent for filing an application for stay of proceedings. This condition precedent found judicial expression in OMOLOLU-THOMAS vs. ADERINOKUN (2004) 5 WRN 129 AT 142 where ADEKEYE J.C.A (as he then was) held as follows:- “Before proceeding to decide the merits of the application, I have to inquire into whether there is an appeal pending before this court. The application cannot be granted unless there is an appeal before the court which is a condition precedent for the filing of an application for stay of proceedings. In effect there must be a valid and competent notice of appeal already filed”. The court was further referred to the cases of NNPC vs. O.E. (NIG.)LTD. (2008) 8 NWLR (pt. 1090) 583; and KOTOYE vs. SARAKI (1995) 5 NWLR (pt. 395) 256. It was the submission of Counsel to the Claimant/Respondent that the Defendants/Applicants’ application is predicated on the purported proposed Notice of Appeal attached to the Affidavit in Support of the Motion and marked Exhibit “A”. He said this court has a duty to scan the affidavit and documents attached to the application to determine whether there is a competent and valid appeal pending, and whether the issues raised in the proposed notice of appeal were properly and/or genuinely raised. It is the Claimants/Respondents contention that section 9 (1) and 9 (2) of the National Industrial Act 2006 and Sections 243 (2) and 243 (3) of the 1999 constitution (as amended) by the third alternation Act 2010 provides that an appeal to the Court of Appeal shall be as of right on questions of fundamental rights. Every other appeal shall be with leave of the Court of Appeal. The Defendants/Applicants have exhibited a motion filed at the Court of Appeal for extension of time to apply for leave to appeal against the ruling of this court. We submit that there is no valid and arguable appeal before the Court of Appeal as the applicants have not even been granted their prayer for extension of time for leave to appeal. Counsel further contended that the Applicants cannot on the basis of this motion for extension of time to seek leave to appeal, want this court to exercise its discretion to stay proceedings in this matter. And since there is no valid and competent notice of appeal filed this application should be refused. To counsel, even if, without conceding, there is a valid appeal pending, the question would arise whether the issues or grounds raised in EXHIBIT “A” are properly and genuinely raised, or whether they are merely a ploy to delay proceedings in this suit. On this point, counsel referred the court to the case of OMOLOLU-THOMAS vs. ANDERINKOUN (2004) 5 WRN 129 AT 144 where the Court of Appeal held thus: “The issue of jurisdiction to qualify as a ground for granting a stay must be genuine and substantial – it must not be a self-imposed or self-informed type of jurisdiction which basically is a cover to delay the proceedings in the substantive Suit”. Also in BANK OF THE NORTH LTD. vs. BAMIDELE (2004) 47 WRN 112 it was held thus: “Issue of jurisdiction is another special circumstance. Where it is clear that a court lacks jurisdiction to entertain a matter place before it, proceedings before it on that matter can be stayed. However, care must be taken to see that the jurisdiction issue raised is germane. It should not be a wooly one designed to deceive or confuse the court”. The claim, statement of facts and frontloaded documents being before this Court, the Court had in its said well-considered ruling, considered the nature of the claim before it and had ruled, based on sound and unassailable rationale of same. It is was the submission of Counsel to the Claimant/Respondent that the Applicants have not placed before the Court, materials to fully satisfy and convince the court that the issue of jurisdiction and others are really genuine and germane issues of jurisdiction involved in this matter; and that it is incumbent on the Applicants to show the genuineness of the issues. He went on that the issue of jurisdiction is not raised by mere saying it or raising it, and that a court should not be swayed by the mere raising of an issue of jurisdiction, or to fold its arms, or to simply for that reason, grant a stay of proceedings. It is not a magic wand. EZE vs. OKOLOJI (1997) 7 NWLR (Pt. 513) 515 at 530. It is now settled law that before a court can stay proceedings, the Applicant must adduce or show strong reasons making it probable that the decision appealed against is certain to be set aside on appeal. FATOYIMBO vs. OSADEYI (2002) 11 NWLR (pt. 778) 384. It follows that the appeal filed must not be frivolous or oppressive. DINGADI VS. INEC (NO.1) (2010) 18 NWLR (pt. 1224) 1. Counsel pointed out that assuming, without conceding, that the purported notice of appeal annexed is valid, the sole ground of appeal is bereft of any substantial point of law and does not in any way make a strong probable case that the decision appealed against will certainly be set aside on appeal. To this end he urged the court to hold that this application is made to buy time, to delay and frustrate the determination of this; and also hold that in the circumstance the Applicants have not disclosed any special or exceptional circumstance to warrant the grant of this application. He went on that the applicants have by their conduct not shown any willingness and desire to prosecute the proposed or purported appeal. The Applicants have till date not moved their motion at the Court of Appeal nor caused records to be settled, and have not compiled the Records of Appeal, and have not transmitted same to the Court of Appeal. In urging the court to hold that from the materials before the court, the applicants have not made a case for the grant of stay or proceedings, counsel to the Claimant/Respondent submitted that, in the circumstance of this case, it is not just and equitable to grant stay of proceedings of this suit. He therefore prayed the court to dismiss this application for stay of proceedings. The Defendants/Respondent filed a written submission on points of law in respect of the motion for stay of proceedings pending the appeal in this suit. The applicants therein, in answer to the points raised by the Claimant/Respondent, submitted that the Claimant/Respondent’s arguments lost sight of the Provisions of Section 30 of the Court of Appeal Act Laws of the Federation of Nigeria, 2004 wherein an appeal is defined to include an application for leave to appeal. It was the submission of Counsel that the Defendants/Applicants as can be seen on the face of their motion paper predicated their motion for stay of proceedings on their earlier prayer for leave to appeal. Counsel went on that where this Court grants the Applicants’ prayers, then that is the leave to appeal. This, counsel said, translates into the fact that the ancillary prayer for motion for stay can also be granted. Counsel went on that by the clear and unambiguous provision of Section 30 of the Court of Appeal Act, the Defendants/Applicants application for leave to appeal is equivalent to an appeal pending; and that the various case laws cited and being relied upon by the Claimants/Respondent cannot supersede the provisions of Section 30 of the Court of Appeal Act. To counsel, it is trite that where the provision of a Statute is clear and unambiguous, it requires no manner of interpretation by the Court except to say that the court will give it its natural or literal meaning of interpretation. The court was then referred to the case of ABUBAKAR vs. NASAMU 2012 ALL FWLR PT 630 PG. 1207 @ PAGES 1291 – 134 where it was held that “The object of interpreting statue or constitution is to discover the intention of the legislature, which intention is usually deduced from the language used in a statute or constitution. Therefore where words used in the constitutional provisions are clear and unambiguous they must be given their ordinary plain meaning so as to avoid reading into the provisions, meanings not intended by the lawmakers. The above clearly means that where the words used in the provision are clear and unambiguous, the question of interpretation becomes a non-issue as there is nothing to be interpreted as the court is duty bound to assign the words used in the provision their ordinary plain meaning”. Further reference was made to the following cases: OGBORU vs. UDUAGHAN 2012 ALL FWLR PT. 160 PG. 1206 ESP AT 1236 – 1239, SHETIMA vs. OGONI (2011) 18 NWLR PT. 1279 PG. 413. See also ALL FWLR PT. 609 PAGE 1007, PAP vs. CPC (2011) 17 NWLR PT. 1277 PG. 485 OR 2011 ALL FWLR PT. 603 PAGE 1786, AMADI vs. INEC 2012 ALL FWLR PT 621 PG 415. Counsel concluded by urging the court to give SECTION 30 OF THE COURT OF APPEAL ACT its ordinary plain meaning and grant the application of the Defendants/Applicants by staying proceedings in this suit in that it is fair and just to grant the said application pending appeal. I have carefully considered the totality of the submissions of counsel and the affidavit evidence before me with respect to this application. In the determination of this application, I shall adopt the sole issue formulated by the Applicants counsel, J.C. Ibe (Mrs.), in her written address for determination which is: WHETHER THE APPLICATION OUGHT TO BE GRANTED. The issue whether or not to stay proceeding in this matter is a matter of discretion of this court. This court will only be disposed to exercise its discretion in favour of granting the application if the applicants are able to establish, on well-founded grounds, that the proceedings ought not to proceed. In plethora of authorities, the principles upon which an application for stay of proceedings could be granted have been considered and settled. One of the factors a court must take into consideration in an application of stay of proceeding is whether there is a pending appeal. See MOBIL PRODUCING NIG UNLTD vs. AYENI (2008) ALL FWLR (PT 408) 1346 AT 1360; OGUNYEMI vs. EJIDE (2008) ALL FWLR (PT 408) 1400 AT 1406. An appeal must have been filed before a court is called on to stay proceedings in the matter. It is a well-established principle of law that a pending appeal is a condition precedent to stay of proceeding. This was the view of ADEKEYE J.C.A (as he then was) in OMOLOLU-THOMAS vs. ADERINOKUN (2004) 5 WRN 129 AT 142 when he held as follows:- “Before proceeding to decide the merits of the application, I have to inquire into whether there is an appeal pending before this court. The application cannot be granted unless there is an appeal before the court which is a condition precedent for the filing of an application for stay of proceedings. In effect there must be a valid and competent notice of appeal already filed”. Therefore, for the applicants to be entitled to the exercise of the discretion of this court in their favour by the grant of this application, they have to satisfactorily show to this court that they have filed an appeal which is now pending. Has the applicants been able to discharge this proof in their affidavit evidence? The applicants have deposed in paragraph 4 (d) to (g) of the affidavit in support of the application as follows- 4. (d) That the appellants/applicants not being satisfied with the ruling of the honourable court in this suit filed an application before the Court of Appeal seeking inter alia for leave to file their notice and grounds of appeal on the 9/6/2014. (e) That the defendants/appellants/applicants filed leave to appeal and proposed notice and grounds of appeal against the ruling of the honourable court and the said application is annexed hereto as exhibit A (f) That attached as exhibit B is a copy of the ruling of the honourable court (g) That the applicants have now brought this motion for stay of proceeding pending the determination of the appeal The said exhibit A as annexed to the affidavit is a motion dated 5th June 2014 and filed before the Court of Appeal, Owerri Division. The motion seeks, among other reliefs, extension of time within which to apply for leave to appeal, leave to appeal out of time, leave to appeal and extension of time to file Notice of Appeal. Also annexed to the motion is a proposed Notice and Grounds of appeal. I have considered the facts deposed to by the applicants as set out above and the said exhibit A. In my view, there is no pending or valid appeal before the Court of Appeal against the ruling of this court. It is clear from the applicants’ affidavit that the motion filed at the Court of Appeal has not even been heard yet. Therefore, the applicants’ right to appeal, which is dependent on the grant of the motion, has not been affirmed or granted by the Court of Appeal. In effect, leave not having been granted to the applicants to appeal, they do not have any appeal pending. Furthermore, Notice of Appeal, which is the originating process and the very foundation of an appeal, has not been filed. What the applicants annexed to the motion before the Court of Appeal is only a proposed Notice and Ground of Appeal. As it is, there no competent Notice of Appeal filed. It is apparent on the face of the proposed Notice of Appeal that there is no receipt evidencing filing of any appeal at the Court of Appeal. The simple inference to be drawn therefrom is that there is no appeal before the Court of Appeal. In her reply on points of law to the respondents written address, the applicants counsel has submitted that since Section 30 of the Court of Appeal Act has defined an appeal to include an application for leave to appeal, the application for leave to appeal filed at the Court of Appeal is equivalent to a pending appeal. With respect to Counsel, a look at the reliefs sought on the motion before the Court of Appeal is for, first of all a prayer for extension of time to seek leave to appeal. This prayer takes the application outside the contemplation of section 30 Court of Appeal Act. In my view, the definition of “Appeal” in the section clearly does not include leave to appeal out of time. In NIKA FISHING CO.LTD V. LAVINA CORPORATION (2008) ALL FWLR (PT 437) 1 AT 22 it was held as follow “In order to consider an application for stay of proceeding, there should be a pending appeal and the pending appeal must be valid. For instance, where an appeal is filed out of time, it is incompetent and therefore invalid” In view of the foregoing, I find that there is no pending appeal in respect of the ruling of this court given on 13th May 2014. Therefore, there is both in law and fact no basis for this court to stay proceedings in this matter. It will be wrong of this court to grant the application when it is obvious no appeal has been filed. The Supreme Court has similarly expressed the considered view in ABUBAKAR vs. CHUKS (2008) ALL FWLR (PT 408) 207 AT 227 when it held- “The decision of the learned trial chief judge to unilaterally grant a stay even before the notice of appeal is filed is totally wrong. It was a wrong exercise of his judicial discretion. Similarly, application made by learned counsel for the defence that further proceeding be stayed in the matter until the determination of his proposed appeal was also wrong” (underlining mine) Furthermore, Order 30, Rule 2 NIC Rule 2007 mandates an applicant for stay of execution or stay of proceeding to compile records of appeal within 21 days of filing notice of appeal. The applicants have deposed in paragraph 5 (h) of the affidavit in support of the motion that they will ensure the record of appeal is promptly compiled and transmitted to the Court of Appeal. This deposition establishes the fact that as at the date of the application, the record of appeal was yet to be compiled. In paragraph 12 of the respondent’s counter affidavit deposed by Mrs. Chinenye Osuala, the fact is deposed to, that the record of appeal has not been compiled and transmitted to the Court of Appeal till date. I have looked at the record of this suit at the time of writing this ruling and I noticed that its compilation has not yet been done. The record has nothing therein to show that it is being compiled and forwarded to the Court of Appeal. The applicants have not complied with this rule. It is therefore clear that the applicants have failed to comply with the requirements of the law in their intention to appeal against the ruling of this court. There being no pending or valid appeal and the record of appeal not having been compiled and transmitted to the court of appeal as prescribed by the rules of this court, I find no reason to grant the application. The applicants have further averred in the affidavit in support of the application that the appeal raises a fundamental issue of jurisdiction which, according to them, is a special circumstance for the court to stay proceeding. On this point, the applicants counsel submitted in support that where a genuine issue of jurisdiction is raised in an application for stay of proceedings, then he has satisfied a special or exceptional circumstance to warrant the grant of stay of further proceedings pending the determination of his appeal. Cited in support is the case of N.N.P.C vs. O.E. (NIG.) LTD. (2008) 8 NWLR (Pt. 1090) 583. Certainly, the position of the law is as correctly set out in the case cited by learned counsel. However, merely raising an issue of jurisdiction is not a conclusive reason to grant an application for stay of proceeding pending appeal. It is not the law that once an issue of jurisdiction of trial court is raised in an interlocutory appeal, the court must grant a stay of proceeding pending the determination of the appeal. See NIGERCHIN INDUSTRIES LTD vs. OLADEHIN (2006) ALL FWLR (PT 327) 557 571; YOUNG SHALL GROW MOTORS LTD vs. AFOLABI (2002) FWLR (PT 135) 785 AT 796. In this instance, can it be said there is a Notice of Appeal before this court where an issue of jurisdiction has been raised? The Notice of Appeal relied on by the applicants has not been filed. It thus means there is no valid Notice of Appeal presented before this court from which the court can deduce that a genuine issue of jurisdiction has been raised. Since no appeal has been filed, there is nothing upon which the court is to base its discretion to stay proceedings on ground of jurisdiction. The respondents have deposed in paragraphs 5, 6 and 8 of the counter affidavit that, the suit being one of simple debt recovery has been delayed by the applicants since the suit was filed. The respondents believe this application is another of such acts of the applicants to further delay the determination of the suit. These facts have not been controverted or denied by the applicants in any further affidavit. The facts are deemed admitted and are accepted as true. See OPOBIYI V. MUNIRU (2008) ALL FWLR (PT 408) 380 AT 386. The respondents’ depositions have shown that granting the application will cause hardship on the respondents. An application for stay of proceeding ought not to be granted if it will cause greater hardship than if the application is refused. Once a court comes to the conclusion that the grant of the application will do more harm than good, it will be refused. This was the decision in EZE vs. OKOLONJI (1997) 7 NWLR (PT 513) 515 AT 529 where it was held thus- "One important factor in an application for stay of proceedings is hardship. A Court of law will be most reluctant to grant an application for stay of proceedings if it will cause greater hardship than if the application is refused... The question of hardship is a matter of fact which can be deduced from the competing affidavit evidence. The moment the Court comes to the conclusion that the grant of the application will do more harm than good, it will be refused” See also NIKA FISHING CO. LTD vs. LAVINA CORPORATION (SUPRA) AT 23. I have considered the affidavit evidence of both parties in respect of this application and their competing rights to justice and equity and I am satisfied that the respondents would be subjected to more hardship and delay if the proceeding is stayed. Stay of proceeding is a fundamental interruption in the right that a party has to conduct his litigation in the trial on the basis of the merits of his case. A stay of proceeding should not be granted unless the proceeding ought not to be allowed to continue. In this instant application, I do not see any reason to stay this proceeding. The applicants have not shown this court any special or exceptional circumstance to warrant this proceeding to be stayed. Therefore, the equity and justice of the application is in favour of refusing it. Consequently, the application for stay of the proceeding of this matter is refused and it is hereby dismissed. The matter shall accordingly proceed to trial. Parties are to bear their costs. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Judge